Research › Search › Judgment

Madras High Court · body

2013 DIGILAW 477 (MAD)

V. Jeeva Rekha v. Director General of Police

2013-01-22

K.CHANDRU

body2013
Judgment 1. The petitioner has come forward with this Writ Petition with a second round of litigation. The petitioner is a Head Constable working in CRPF, Avadi under the CRPF Act. When the petitioner was transferred on promotion to the post of Additional Sub Inspector at the Unit at Ranga Reddy in Andhra Pradesh, the petitioner filed W.P.No.17103 of 2012 seeking to transfer the order of promotion cum transfer dated 28.5.2012. The petitioner did not challenge either the jurisdiction of the authority to transfer him or attribute any mala fides. The only ground raised by her was that she is having no issues even after the Marriage and she is undergoing allopathy treatment for over 5 years. Therefore, having failed in it, she started to take treatment in Ayurvedha. In the middle of the treatment, if she is transferred, her desire to have a child will be thwarted. She also claimed that the Additional Director General of Police, CRPF, Hyderabad made a remark that she may be retained at the CRPF Avadi during the treatment. However, this Court, after notice to the respondents passed a final order on 2.8.2012. In that order, this Court directed the petitioner's representation to be considered within one week regarding her declining promotion, which was given in the form of additional affidavit. The respondents without considering her representation filed a Writ Appeal No.2549 of 2012 challenging the direction issued by the learned Judge. 2. In the meanwhile, the petitioner preferred a Contempt Petition alleging that the order has been disobeyed. The Writ Appeal came to be dismissed on the ground that the order of the learned Judge has been complied with by the respondents. If at all, the petitioner is aggrieved, she should come independently challenging the said order. Hence, the petitioner is before this Court with the second round of litigation. 3. In this Writ Petition, the petitioner has chosen to challenge an order dated 29.8.2012 passed by the Deputy Inspector General of Police, CRPF, Avadi and after setting out the same seeks for retention of the petitioner at the CRPF, Avadi. 4. When the Writ Petition came up on 19.12.2012, this Court while ordering notice of motion granted interim stay. Aggrieved by the grant of interim stay, the respondents have filed M.P.No.1 of 2013 seeking to vacate the interim order supported by a counter affidavit dated 2.1.2013. 5. 4. When the Writ Petition came up on 19.12.2012, this Court while ordering notice of motion granted interim stay. Aggrieved by the grant of interim stay, the respondents have filed M.P.No.1 of 2013 seeking to vacate the interim order supported by a counter affidavit dated 2.1.2013. 5. The only question to be considered is whether the order dated 29.8.2012 is liable to be interfered by this Court. By the impugned order dated 29.08.2012, the authorities have rejected reconsideration of the petitioner's request to forgo promotion and retention in the same Centre at Avadi and by communication dated 03.09.2012, she was informed that her request for forgoing promotion was denied. 6. The contention of the petitioner was that Para 8(b) of the Standing Order No.2/2007 is supplementary to the rules by which a member of the Force shall make a written request to the appointing authority to allow to continue at the present place of post for one year and therefore, refusal of promotion was illegal. It was stated that the third respondent gave consent through his representative that they will exercise discretion as per the instruction given by various orders of the Government of India. The petitioner placed reliance upon the instructions given in Para 17.12 of Smamy's Manual on Establishment and Administration regarding promotion. It is necessary to refer to the said passage which reads as below: “Refusal of promotion 17.12. When a Government employee does not want to accept a promotion which is offered to him, he may make a written request that he may not be promoted and the request will be considered by the appointing authority, taking relevant aspects into consideration. If the reasons adduced for refusal of promotion are acceptable to the appointing authority, the next person in the select list may be promoted. However, since it may not be administratively possible or desirable to offer appointment to the persons who initially refused promotion, on every occasion on which a vacancy arises, during the period of validity of the panel, no fresh offer of appointment on promotion shall be made in such cases for a period of one year from the date of refusal of first promotion or till a next vacancy arises, whichever is later. On the eventual promotion to the higher cadre, such Government servant will lose seniority vis-a-vis his juniors promoted to the higher grade earlier irrespective of the fact whether the posts in question are filled by selection or otherwise. The above-mentioned policy will not apply where ad hoc promotion against short-term vacancies are refused. [In cases where the reasons adduced by the officer for his refusal for promotion are not acceptable to the appointing authority, then he should enforce the promotion of the officer and in case the officer still refuses to be promoted, then even disciplinary action can be taken against him for refusing to obey his order.]" The said passage merely stated that written request made by an employee can be considered after taking relevant aspects into consideration as to whether it is administratively possible or desirable to offer appointment to the persons, who initially refused promotion, on every occasion on which a vacancy arises. 7. In the counter affidavit filed by the third respondent para 8(b) of the Standing Order No.2/2011 was incorporated to mean that it is applicable only to such of those employes who have not been considered earlier for retention at Chennai or any other particular place. It is further stated that the petitioner has been staying in Avadi Camp with effect from 15.02.2006 and he has been there for more than 6½ years and in a normal circumstances, any person shall be retained only for a period of four years. The reason given by the petitioner for retention cannot be a relevant ground in the said circumstances, as the petitioner having completed her normal tenure of 2 years her request was considered twice and she was given extension on the very same ground pleaded by her. Even though she was relieved from duty 03.09.2012, she has not reported for duty at the transferred place. A reference was also made to Section 7(1) of the CRPF Act, 1949, wherein every member of the Force shall be liable to serve beyond, as well as within the territory of India and it shall be the duty of every member of the Force to promptly obey and execute all order and warrants lawfully issued to him/her by the competent authority. Thus the petitioner, being a member of the Armed Force of India, is liable to be transferred all over the country and at times, even outside the country. Thus the petitioner, being a member of the Armed Force of India, is liable to be transferred all over the country and at times, even outside the country. The women Members of the Force who are in the Avadi Center after completion of four years of retention in the unit and the details of such transfer has been set out in para 12 of the counter. 8. Mr. R. Maheswari, learned Senior Central Government Standing Counsel for the respondents also referred to the Judgment of the Hon'ble Supreme Court in Major General J.K. Bansal v. Union of India and Others reported in (2005) 7 SCC 227 . Reference was made to the following paras of the said decision: “11. Similar view has been taken in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan [ (2001) 8 SCC 574 ] wherein it has been held that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders, as though they were the Appellate Authorities substituting their own decision for that of the management. 12. It will be noticed that these decisions have been rendered in the case of civilian employees or those who are working in public sector undertakings. The scope of interference by the courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed forces should be posted. The courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptionally strong case is made out, no interference should be made.” 9. It is for the higher authorities to decide when and where a member of the armed forces should be posted. The courts should be extremely slow in interfering with an order of transfer of such category of persons and unless an exceptionally strong case is made out, no interference should be made.” 9. The learned Standing Counsel also referred to another judgment of the Supreme Court in Rajendra Singh and Others v. State of Uttar Pradesh and Others reported in (2009) 15 SCC 178 , wherein when the High Court did not find any flaw in a transfer order, no interference is called for. In paras 8 to 10 of the said decision it was observed as follows: “8. A government servant has no vested right to remain posted at a place of his choice nor can be insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires [see State of U.P v. Gobardhan Lal, (2004) 11 SCC 402 , p.406, para 7]. 9. The courts are always reluctant in interfering with the transfer of an employee unless such transfer is vitiated by violation of some statutory provisions or suffers from mala fides. In Shilpi Bose v. State of Bihar [1992 SCC (L&S) 127, p.661 para 4] this Court held : “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.” 10. In N.K. Singh v. Union of India [ (1994) 6 SCC 98 , p.103, para 6] this Court reiterated that, “6...... the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision....” In view of the stand taken by the respondents and in view of the legal position as laid down in the decisions cited supra, this Court is not inclined to interfere in the impugned order. 10. Accordingly, this writ petition stands dismissed. No costs. Consequently, connected miscellaneous petitions are closed.