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2012 DIGILAW 440 (JK)

S. Mohan Singh Sohal v. Union of India & Ors.

2012-07-20

J.P.SINGH

body2012
1. Vide Headquarters Directorate General Border Roads' P.O. No. 54/2012 dated June 08, 2012, the petitioner, a Superintending Engineer, who was working as Commandant 50 BRTF since October, 2010 was ordered to be transferred to Headquarter CE(P) Arunank in place of Suresh Gupta-respondent No. 4, who was to replace the petitioner at HQ 50 BRTF/SAMPARK. The petitioner represented against his transfer to the Directorate General Border Roads vide Representation dated June 11, 2012 seeking completion of his tenure of two years at his present place of posting. 2. Without waiting for the decision on the Representation, he approached this Court within two days of his representing against the transfer, seeking quashing of the transfer order besides issuance of directions to the respondents to refrain from transferring him from 50 BRTF, Vijaypur before completion of his Command Tenure so that he gained eligibility of two years' Command, for next promotion. The grounds pleaded in the Writ Petition to question the transfer are as follows:- i) The transfer and posting was against the Policy guidelines and even otherwise discriminatory because the petitioner was singled out for hostile discrimination when other similarly situated persons had been permitted to complete their command tenure as envisaged by the Directorate's Policy. ii) Mr. Suresh Gupta-respondent No. 4 was a blue eyed person of respondent No. 3, who had managed his transfer with the help of the Deputy Director General-respondent No. 2. iii) Suffering from extensive dermatitis, the petitioner was advised to avoid humid and sultry weather; his transfer in the circumstances, was unwarranted, iv) The transfer was neither in public interest nor in the interests of administration and was otherwise in violation of the service rights of the petitioner. 3. The grounds urged by the petitioner to question his transfer were supplemented by additional pleadings, inter alia, projecting that the action taken against the petitioner was in violation of the Central Vigilance Commission's guidelines circulated vide its Communication dated June 29, 1999. 4. Justifying the transfer, it is pleaded by the official respondents that although in terms of the guidelines the Command Tenure was of two years but the Policy guidelines, not being mandatory, the employer had every right to transfer its employees at any time, in the organizational interests. 4. Justifying the transfer, it is pleaded by the official respondents that although in terms of the guidelines the Command Tenure was of two years but the Policy guidelines, not being mandatory, the employer had every right to transfer its employees at any time, in the organizational interests. Supporting the plea that the petitioner's transfer was in the interests of the Organization, it is stated by the respondents that number of Complaints were received against the petitioner's unprofessional conduct and the then Chief Engineer, Project Sampark recommended his transfer approaching the Directorate General, Border Roads in this behalf vide his Communication of March 21, 2011. During the investigation of the anonymous Complaints, the Investigating Officers found that there was a high level of dissatisfaction and resentment amongst the troops in 50 BRTF and posting out of the petitioner would help in preventing further deterioration of the working atmosphere in the Task Force. The petitioner was called upon to improve his command, control and management of the Task Force. 5. Reply filed by the petitioner to the Advisory issued to him in this behalf is relied upon by the respondents to demonstrate petitioner's attitude and bent of mind in dealing with the Superior Officers. Referring to the petitioner's plea that transfer before completion of two years' tenure would affect his promotional prospects, it is submitted that the Directorate had initiated move to introduce amendment in the recruitment and promotion rules to delete the requirement of Command Tenure for further promotion and that petitioner's future promotion will not be affected for his not completing duration of two years' of Command. 6. Respondent No. 4 has specifically denied him to be the blue eyed boy of respondent Nos. 2 and 3 in his Response to the Writ Petition additionally urging that neither did he serve under respondent No. 2 nor had he ever met such a Senior Officer, who belonged to the State of Maharashtra. He denied his reported connection with the official respondents. It is submitted by the respondent that the policy guidelines of the Border Roads were unenforceable, in that, these would not vest any enforceable right in the employees to stay at a particular place of posting for a fixed tenure. 7. The parties have filed additional pleadings i.e. Affidavits, Supplementary Affidavits and documents. 8. Mr. It is submitted by the respondent that the policy guidelines of the Border Roads were unenforceable, in that, these would not vest any enforceable right in the employees to stay at a particular place of posting for a fixed tenure. 7. The parties have filed additional pleadings i.e. Affidavits, Supplementary Affidavits and documents. 8. Mr. Pangotra, the learned Assistant Solicitor General, produced the records of the Investigation carried out into the Complaints received against the petitioner. 9. At the time of the consideration of the Petition, learned senior counsel appearing for the petitioner concentrated only on three grounds in support of the petitioner's challenge to the transfer viz. (i) the transfer was malafide and had been managed by respondent No. 4, (ii) the transfer deprives the petitioner of his promotional prospects for which completion of Command of two years was one of the eligibility conditions and (iii) transfer on the basis of Complaints was impermissible. The challenge to the Transfer Order on the ground that it may not be conducive to the petitioner's health, however, was not pressed. 10. I have considered the submissions of the learned counsel for the parties and gone through the case law cited at the Bar. 11. The petitioner's plea that his transfer was malafide and had been managed by respondent No. 4 with the help of respondent Nos. 2 and 3, needs to be mentioned only for its rejection, for, none of the respondents appear to have played any role in the petitioner's transfer which, as it so appears from the Directorate General's P.O. No. 54/2012, had been ordered by the Directorate General, Border Roads, and respondent No. 2 had only carried out the directions of the Headquarters by issuing the order in question. This apart, the petitioner's plea that respondent No. 4 had managed the petitioner's transfer with the help of respondent Nos. 2 and 3, before completion of his Command Tenure, having been specially denied by respondent No. 4, cannot be accepted, in that, the petitioner has not placed any material on records on the basis whereof the plea may be sustained. Even otherwise, allegations being vague, ambiguous and uncertain, do not merit consideration. The petitioner's plea that his Transfer had been managed by respondent No. 4 with the help of respondent Nos. 2 and 3, therefore, fails and is rejected. 12. Even otherwise, allegations being vague, ambiguous and uncertain, do not merit consideration. The petitioner's plea that his Transfer had been managed by respondent No. 4 with the help of respondent Nos. 2 and 3, therefore, fails and is rejected. 12. The next question that falls for consideration is as to whether there was any embargo in Directorate's ordering the petitioner's transfer before completion of his Command Tenure of two years. 13. The interests of the Organization are of paramount consideration for an employer and such interests cannot be sacrificed merely on the ground that transfer of the employee may not permit him to complete requisite Command Tenure that may entitle him to promotion in the years to come. 14. The Transfer Policy relied upon by the petitioner in support of his plea, does not as such confer any absolute right in the officers to complete their assured completion of executive tenures, in that, the Organizational and Functional Requirements are stated in the Policy to have the over-riding consideration for posting. 15. During the course of consideration, learned Assistant Solicitor General submitted that although the Directorate had moved the Authorities for deletion of the requirement of completion of Command Tenure as one of the eligibility conditions for further promotion, yet the petitioner may not be affected by his transfer ordered in the interests of the Organization in any way, in that, having been promoted only recently, he may not be due for further promotion in the near future. 16. Coming to the petitioner's plea that his transfer was bad in law having been made on thebasis of the Complaints, it is found from the records that although there were numerous anonymous Complaints against the petitioner about his style of functioning and dealing with the staff members, yet cognizance thereof was not taken because of their anonymous nature. However, on the basis of the information gathered during the investigation by the Investigators, a change in Command of 50 BRTF was recommended in view of intense sense of resentment amongst personnel and staff of 50- BRTF lest there was further flare up of the issue and occurrence of untoward incident. The investigation in the Complaints was conducted somewhere in April, 2012. 17. The investigation in the Complaints was conducted somewhere in April, 2012. 17. True it is that transfer of an employee is not warranted as a measure of punishment and on complaints unless inquired into, but the facts and circumstances of the present case do not indicate the petitioner's transfer to have been ordered as a measure of punishment, in that, no action has been taken on the basis of the Complaints received against the petitioner because the Complaints were anonymous. The guidelines issued vide Central Vigilance Commission's Communication may not, therefore, be of any help to the petitioner. On the other hand, the petitioner's transfer appears to have been made by the Directorate General in the organizational interest and pursuant to the recommendations made by the Investigating Officers, who, though did not go into the Complaints, yet conveyed their observations about the style of functioning of the petitioner recommending change in the command. 18. The records further reveal that the petitioner's Response to the Advisory sent to him by the Officer holding position superior to him is couched in such a language which is not expected from an officer of his status and hints at in-subor-dination. 19. Be that as it may, the petitioner has hastened to approach this Court rather than waiting for consideration of his Representation by the Directorate against his transfer, in that, within two days of his moving the Representation, he invoked the Extra Ordinary Writ Jurisdiction of the Court. 20. Transfer is an incidence and condition of service and any employee aggrieved thereby is required, ordinarily, to approach his employer, in the first instance, to seek redressal of his/her grievance against the transfer because transfers are justiciable only in rare and exceptional cases, which the present case is certainly not the one. 21. I, therefore, do not find any justification to entertain the petitioner's Writ Petition and leave it to the Directorate General to pass appropriate orders on the petitioner's Representation, as warranted in the interests of administration and keeping the Policy guidelines on transfers in view. This Writ Petition is, accordingly, dismissed. Records be returned to the learned Union Counsel.