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2011 DIGILAW 746 (MP)

Subedar Major Mukesh Rana v. Union Of India

2011-07-08

K.K.TRIVEDI

body2011
JUDGMENT ( 1. ) THE petitioner has come before this Court against the order dated 27-1-2010 issued by the respondent No. 3, contending that the petitioner is transferred from G.E. (East) Jabalpur Madhya Pradesh to H.Q. 136 Wks Engrs Siliguri (West Bengal) which is about 1700 kilometer away from the present place of posting. It is contended that the petitioner, who is going to retire on 31st December, 2011 has been shifted in such an illegal manner to a far of place. It is further contended that such shifting of the petitioner will disturb his study of B.E. (Civil) from Government Engineering College, Jabalpur which course he is prosecuting with the due sanction of the competent authority. It is contended that he made a representation, specifically pointed out the provisions made in the Record Office Instructions with respect to Last Tenure of Posting, but the said representation was not considered, therefore, he was required to file the present writ petition with a prayer to invoke extraordinary jurisdiction of this Court to interfere in the order of transfer. ( 2. ) FACTS giving rise to filing of the present petition in brief as pleaded by petitioner, are that the petitioner was junior commissioned officer as defined under the Army Act, 1950 (in short the Act hereinafter). He is designated as Subedar Major, Junior Engineer (Civil), enrolled in Bengal Engineer Group "A". He had completed 15 years of service without any stigma or any adverse remark. It is contended that corps of the petitioner is Non-combat and he is presently posted under the control of Respondent No. 5 Garrison Engineer (East) M.E.S. Jabalpur M.P. where he was posted in the month of December, 2007. According to the petitioner since he was to retire in the month of December, 2011, he obtained sanction to prosecute B.E. Degree Course in Government Engineering College, Jabalpur, which sanction was granted to him vide Annexure P/1 dated 29th December, 2007. It is the case of the petitioner that there are provisions made in the Record Office Instructions in para 1491 which reads thus : "LAST TENURE OF POSTING" 1491. Individuals due to retire on superannuation/completion of service limits/term of engagements may be considered for posting to a station of their choice subject to availability of vacancies. Application will be submitted to Record Office through their Chief Engineer Comd Six months in advance. Individuals due to retire on superannuation/completion of service limits/term of engagements may be considered for posting to a station of their choice subject to availability of vacancies. Application will be submitted to Record Office through their Chief Engineer Comd Six months in advance. Chief Engineer/office Commanding should however, ensure that the individual is actually due to retire with in the next two/three years. Those who have had a tenure nearer to home, their cases will be considered on merit subject to availability of vacancy." ( 3. ) THUS, since the petitioner was to retire within two years, he moved an application for his continuance at Jabalpur, which was duly forwarded with recommendation. The application submitted by the petitioner is placed on record as Annexure P/2, made on 28th August, 2009, which was sent with recommendations of the competent authority. It is alleged that the application of the petitioner was returned vide memo dated 27th October, 2009 Annexure P-3 and the same was again sent through proper channel on 4th November, 2009 Annexure P/4, which again was sent with recommendations on the very same date, but instead of considering the same, impugned order was issued on 27th January, 2010 and the application of the petitioner was rejected by the order of the even date. The rejection order is placed on record as Annexure P/6 and impugned transfer order is placed on record as Annexure P/5. The contention of the petitioner is that he again made a representation on 13th February, 2010 which was sent along with the certificate of retirement of the petitioner, but instead of considering same again a communication was sent on 2nd August, 2010 for relieving of the petitioner According to the petitioner since his right to remain posted in the last of his career on the choice place has been snatched away, therefore, he was required to file the writ petition. ( 4. ) THE matter came up for hearing before this Court on 16-8-2010 and a direction to maintain status quo with regard to the working of the petitioner as was existing on the date of order was issued by this Court. ( 4. ) THE matter came up for hearing before this Court on 16-8-2010 and a direction to maintain status quo with regard to the working of the petitioner as was existing on the date of order was issued by this Court. The respondents entered appearance and they filed a detailed return, categorically denying the claim made by the petitioner and stating that since the petitioner has remained posted in G.E. (East), Jabalpur w.e.f. 26-12-2007, he was not correct in claiming the benefit of Last Leg Posting. It is contended that the petitioner was promoted as Subedar Major w.e.f. 29-12-2007 and will be discharged from service w.e.f. 31-12-2011 on completing four years of service as Subedar Major. It is contended that as per the Record Office Instructions (R.O.I hereinafter) the normal tenure of Subedar Major at a particular Unit is only two years, therefore, the petitioner's posting order was planned and was issued where his services were required. The application of the petitioner said to be sent for invoking clause of Last Leg Posting at Jabalpur Unit has already been rejected. His prayer for extension of service on Last Leg Posting, was duly replied and rejected. It is contended that the petitioner has all India transfer liability and there are no rules made with respect to the transfer of the army personnel. The instructions so issued are the guidelines and have no statutory force. Further, it is specifically contended that when the petitioner moved the application for granting him permission to prosecute the B.E in Civil Engineering, he was required to file a certificate of undertaking, in which he has categorically agreed that no representation for continued retention in station on this count will be submitted in the event of posting out. Such document is placed on record as Annexure R/1. It is said that not only the petitioner has signed on this undertaking, but the same was counter-signed by the Garrison Engineer (East). This being so, it is contended that the petitioner having no legal right much less fundamental right to continue on one post in one place, was rightly transferred. It is contended that the requirement of Army is paramount and movement of such officer from one station to another is normally done only in case of requirement. This being so, the claim as made by the petitioner is wholly misconceived. ( 5. It is contended that the requirement of Army is paramount and movement of such officer from one station to another is normally done only in case of requirement. This being so, the claim as made by the petitioner is wholly misconceived. ( 5. ) THE respondents have very categorically contended that the R.O.I referred to by the petitioner is not complete. THE line of caution is already included in that wherein it is stated that "this concession will not be claimed as a right. THE request for such posting will be considered if administratively feasible, subject to availability of vacancies." ( 6. ) IT is contended that because of this it cannot be said that the petitioner has any right to be posted at Jabalpur only and that being so, he has rightly been transferred. The specific pleas with respect to the grounds raised by the petitioner have been replied and it is said that the provision of "para 1437 (a) of ROI is not applicable in the case of the petitioner because he is not in Extra Regimental Employment nor is being employed in Extra Regimental Employment. It is further contended that the order was issued 23 months before the retirement of the petitioner. It is contended that the provision of para 1452 of ROI deals with Subedar Major Clerks (SD) and the Military Engineering Services, militarized cadre persons of which the petitioner belongs is not covered by this para. According to para 5 of ROI 2001 the tenure of Subedar Major is two years which is specifically provided in such document. Copy of which is placed on record as Annexure R-8. Thus, it is reiterated by the respondents that the petitioner was not entitled to any relief, the petition is liable to be dismissed. ( 7. ) AN application i.e. LA. No. 7886/2011 for taking documents on record has been filed. Certain documents have been filed along with the additional return filed in the shape of reply to the rejoinder filed by the petitioner. ( 8. ) I have heard the counsels for both the parties and Officer-in-Charge of the case on behalf of the respondents. ) AN application i.e. LA. No. 7886/2011 for taking documents on record has been filed. Certain documents have been filed along with the additional return filed in the shape of reply to the rejoinder filed by the petitioner. ( 8. ) I have heard the counsels for both the parties and Officer-in-Charge of the case on behalf of the respondents. On carefully perusal of the record and the documents relied by the petitioner, this Court is of the opinion that the petitioner has wrongly relied on Last Tenure Posting Clause mentioned in para 1491 of ROI and only because of that Clause, the petitioner was not entitled to any relief. The fact remains that the petitioner is serving in transferable post in Armed Forces of the Union which is to follow strict discipline. The fact relating to nearing retirement of the petitioner was well within the knowledge and after due consideration the prayer made by the petitioner for his Last Leg Posting was rejected and after intimating such fact the posting order was issued to the petitioner. Such order was issued on 27th January, 2010, but the petition itself was filed by the petitioner on 16-8-2010 when even after considering his representation and rejecting the same the movement order was issued. The petitioner thus, was knowing fully well that such claim made by the petitioner was not to be acceded at all. But any how by making some application he got remained posted at Jabalpur. According to the sanction granted to the petitioner to prosecute higher study, specific undertaking was given by the petitioner that no representation for continuance/retention in the station on this account will be submitted in the event of posting out. When such application was moved by the petitioner and undertaking was given on 29th December, 2007 the petitioner was fully aware that he will have to retire on 31st December, 2011, therefore, he was aware that in case he complete two years tenure posting as Subedar Major, he may be moved out. That being so, the petitioner was not right in contending that some right was available under the ROI to allow the petitioner in one station and to retire from that station only. If this is accepted then every army officer will try to enforce such clause and will not obey the orders of the superiors. That being so, the petitioner was not right in contending that some right was available under the ROI to allow the petitioner in one station and to retire from that station only. If this is accepted then every army officer will try to enforce such clause and will not obey the orders of the superiors. This will not be in the interest of strict discipline which is to be followed in the army. ( 9. ) ARMED services are quite different than that of any other Civil Services or Para Military Force Services. A strict rule of discipline has to be followed in the Army, if this rule is not followed, keeping under control of such huge army as is possessed by this country, will not be possible. Any single default is not to be permitted to go without any action. The petitioner though is not in combat corps but is an integral part of the forces and, therefore, was bound to carry out the orders of the superiors. Such order cannot be said to be bad merely because wish of the petitioner was not taken note of. Therefore, such contention of the petitioner cannot be accepted. ( 10. ) THE settled principle to invoke extraordinary jurisdiction under Article 226 of the Constitution of India by this Court to judicially review the order of transfer is that any order of transfer is to be examined only on three counts, namely the competence of the authority issuing order of transfer, the mala fide of authority in actuating the order of transfer and the violation of the statutory rules while issuing the order of transfer. THE Apex Court in scores of cases held that the High Courts and the Tribunals should not ordinarily interfere in an administrative order of transfer merely because it is causing some inconvenience to the employee concerned. THE practice of interfering in the order of transfer by the Courts has been deprecated by the Supreme Court and it has been held on several occasions, that the power of judicial review of order of transfer is to be exercised sparingly by the Courts. THE practice of interfering in the order of transfer by the Courts has been deprecated by the Supreme Court and it has been held on several occasions, that the power of judicial review of order of transfer is to be exercised sparingly by the Courts. This being so, unless there is element of mala fide alleged and proved in a petition filed against the order of transfer or any violation of statutory rules is pointed out this Court will not ordinarily interfere with the order of transfer, THE petitioner has utterly failed to show any mala fide of the authority in issuing order of transfer. He has not pointed out any statutory rules on the basis of which it could be said that the order of transfer is bad in law. THE competence of the authority issuing the order of transfer has not been challenged. Thus, in considered opinion of this Court, none of the condition is available to interfere in an order of transfer issued by the competent authority with intention to maintain discipline within the armed forces. The Apex Court in the case of Rajendra Singh and others vs. State of U.P. and others, (2010) 1 SCC (L and S) 503 has considered all the earlier decisions given by the Apex Court in the matter and has held that no scope was available to the High Court to interfere with an order of transfer so issued by the competent authority. Reliance has been placed by the Apex Court in its decisions in the case of Shilpi Bose vs. State of Bihar, 1992 SCC (LandS) 127, wherein in para 4 the Supreme Court has opined : "4. In our opinion, the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. A government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the Courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. The High Court overlooked these aspects in interfering with the transfer orders." ( 11. ) THE Apex Court has further stated that the Court are always remain reluctant in interfering with the order of transfer of employee unless such transfer is vitiated by policy having force of law or, statutory provision or suffer from mala fide. THE provision of ROI referred to by the petitioner are merely guidelines and are not having any force of law. No other provision from the Act has been pointed out by the petitioner which provides any scheme of transfer in the army. As has been held earlier, the petitioner has utterly failed to prove plea of mala fide of the respondent authority. THErefore, in the considered opinion of this Court there is no scope to interfere in the order of transfer. THE plea which has been raised is that the petitioner is to retire and for that he should not have been transferred. It is to be seen that the petitioner was ordered to be transferred on 27-1-2010 and at that time sufficient service was left with the petitioner. Upon his own he moved the representation and filed the writ petition in the month of August, 2010. If because of interim order, the petitioner has remained working at Jabalpur, it will not confer any right on the petitioner to say that now he will not comply with the order of the transfer. ( 12. ) THEREFORE, the petition is devoid of any substance, deserves to be and is hereby dismissed. The order of interim stay is vacated. However, looking to the facts of the case there will be no order as to costs. Petition dismissed.