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2016 DIGILAW 1218 (JHR)

Kabita Sethi @ Kavita Sethi wife of Dilip Kumar Sethi v. Union of India

2016-08-03

ANANDA SEN

body2016
ORDER : The petitioner, is a female constable of Central Reserve Police Force (CRPF for short), who challenged the communication dated 23.02.2016 by which a decision dated 19.02.2016 was taken to transfer the petitioner from Central Training College (Telecom and Information Technology), Dhurwa, Ranchi, to 213 (Mah) Bn, Nagpur. She further challenged the portion of letter dated 14.07.2016, which is a communication of the decision of the competent authority by which the representation of the petitioner was turned down. 2. The petitioner was appointed in Central Reserve Police Force as a Constable (General Duty) Mahila, on 22.2.1995. She was transferred to different places and ultimately she was transferred from Delhi to Ranchi and she gave her joining at Central Training College (T & IT), Ranchi on 15.09.2011. The petitioner got married during service tenure and was blessed with one daughter and one son, aged about 13 and 8 years respectively. The husband of the petitioner was transferred to Ranchi vide order dated 07.09.2011 and he joined at B/3 Signal at Central Training College (T&IT), Ranchi on 15.10.2011, there after he was again transferred to 133/BN at Dhurwa, Ranchi on 05.01.2015. 3. The petitioner was served with a letter dated 23.02.2016 by which she could come to know that a decision was taken by the competent authority on 19.02.2016 to transfer the petitioner from her present place of posting i.e. Central Training College (T&IT), Ranchi to 213 (Mah) Bn, Nagpur. The petitioner has filed a representation against her transfer order which also stood rejected and communicated to the petitioner vide letter dated 14.07.2016. Challenging the aforesaid two orders, the petitioner has filed this writ application. 4. Counsel for the petitioner submits that the order of transfer is absolutely bad and fails to take into consideration the fact that both husband and wife as far as practicable should be kept in the same place. It is further submitted that para 12(k) of SO-07/2015, as relied upon by the respondents, is not applicable so far as the petitioner is concerned. It has been further argued that the transfer of this petitioner is in violation of the standing order of the department which provides that Group-C employees can remain static for period of eight years, whereas this petitioner only remained at the same station for four years eight months, thus her transfer was premature. 5. It has been further argued that the transfer of this petitioner is in violation of the standing order of the department which provides that Group-C employees can remain static for period of eight years, whereas this petitioner only remained at the same station for four years eight months, thus her transfer was premature. 5. To decide the issue and the questions raised, it is necessary to take note of the standing order no. SO-07/2015. The said standing order has been issued by the Directorate General, CRPF (Ministry of Home Affairs) which relates to transfer of Non-Gazetted Force Personnel including Mahila Personnel. Clause 12 of the said standing order relates to and deals with the transfer of Mahila Personnel. Clause 12 (a) of the said standing order deals with the eligibility criteria for first static posting and subsequent static posting, it is necessary to quote clause12 (a) which reads as follows:- RANK FIRT PEACE STATION/STATIC (including B/Trg) SUBSEQUENT PEACE STATION/STATIC Group B 06 years service 04 years subsequent field service as on 31 March of year under consideration. Group C 08 years service 08 years subsequent field as on 31 March of year under consideration. It is also necessary to quote some other clauses i.e. clause 12 (h), (i), (j) “(h) Tenure of Mahila Personnel in Mahila BNs and RAF will be for four years or continue on exigencies of services.” “(i) In GC, training institutions, etc. Mahilas are authorized as a Welfare measure. Tenure, there will be for three years without any extension.” “(j) In case of husband and wife they will be considered for posting to the same place or area for one tenure and thereafter husband will be posted to field unit as per eligibility and wife will continue in or posted to Mahila or RAF BN as the case may be.” 6. From perusal of Clause 12(h), it is understood that the tenure of Mahila Personnels in Mahila BNs will be for four years or will continue on exigencies of the services. As per clause 12(i), in training institutions the tenure will be for three years without any extension. From perusal of Clause 12(h), it is understood that the tenure of Mahila Personnels in Mahila BNs will be for four years or will continue on exigencies of the services. As per clause 12(i), in training institutions the tenure will be for three years without any extension. Clause 12(j) specifies that in case of husband and wife they will be considered for posting in the same place or area for one tenure, thereafter, the husband will be posted to field unit and the wife will continue in or posted to Mahila or RAF BN as the case may be. 7. Admittedly, the petitioner was in training institution. As Clause 12(i), the tenure of women (Mahila) in the training institutions will be for three years without any extension. This petitioner was posted in the training institutions on 15.08.2011 and is working there till date. The order of transfer was issued on 23.02.2016. Thus for four years and four months, which is undoubtedly more than three years, the petitioner is posted in the institute. Clause 12(j) provides that the husband and the wife will spent one tenure together, thereafter, the husband will be posted to the filed unit and the wife will continue in, or posted in Mahila or RAF BN as the case may be. 8. In the instant case, we find that after completion of the three years period in the training institute, which is “a tenure”, the petitioner was transferred to Mahila BN i.e. 213(Mah) Bn. The petitioner tries to take support of clause 12(a). She submits that she has to be kept atleast eight years in static posting whereas she was kept only for four years and four months. 9. Clause 12(a) nowhere remotely suggests that an employee has to be kept in the statics posting for eight years. It only says that for Group-C employees the first static posting would be after eight years of service. The petitioner cannot take any benefit of the said clause. The clause which would be applicable so far as the petitioner is concerned is Clause 12(h)(i)(j). As per the clause the tenure of the Mahila Personnel in Mahila BN will be for four years whereas the tenure of the said Mahila Personnel in training institutions would be three years as per Clause 12(j). After completion of the tenure, the Mahila Personnel can be transferred to Mahil BN. 10. As per the clause the tenure of the Mahila Personnel in Mahila BN will be for four years whereas the tenure of the said Mahila Personnel in training institutions would be three years as per Clause 12(j). After completion of the tenure, the Mahila Personnel can be transferred to Mahil BN. 10. The Hon’ble Supreme Court in the case of Shilpi Bose Vs. State of Bihar as reported in 1991 Supp (2) SCC 659, while dealing with transfer observed as under:- “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. 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.” 11. The Hon'ble Supreme Court in the case of Union of India Vs. S.L. Abbas as reported in (1993) 4 SCC 357 observed as under:- “7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guidelines however does not confer upon the government employee a legally enforceable right.” 12. It has been further held in the case of National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan as reported in (2001) 8 SCC 574 reads as under:- “11. The said guidelines however does not confer upon the government employee a legally enforceable right.” 12. It has been further held in the case of National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan as reported in (2001) 8 SCC 574 reads as under:- “11. 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 or transferable posts from one place to another is not only an incident, but a condition or 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.” 13. The aforementioned cases relates to civilian employees. The Hon'ble Supreme Court in the case of Major General J.K. Bansal Vs. Union of India and others, as reported in (2005) 7 SCC 227 , while dealing with the members of the forces have held in paragraph 12 as under:- “12...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 and exceptionally strong case is made out, no interference should be made.” 14. Admittedly the petitioner has remained in the present place of posting for four years four months. Thus, she has stayed more than that the tenure period as mentioned in Clause 12 (h) and (i). Since, she has stayed more than the tenure period, she was liable to be moved out/transferred. She was transferred and posted in Mahila BN 213(Mah) Bn. Clause 12(j) provides that the petitioner can be posted in the Mahila BN after completion of the tenure. The discretion lies with the employer either to continue the Mahila Personnel or to post her to Mahila BN after completion of the tenure. She was transferred and posted in Mahila BN 213(Mah) Bn. Clause 12(j) provides that the petitioner can be posted in the Mahila BN after completion of the tenure. The discretion lies with the employer either to continue the Mahila Personnel or to post her to Mahila BN after completion of the tenure. Here, admittedly the petitioner has completed the tenure, and she was moved out as per provisions of Clause 12(j). Thus, there is no illegality in transferring the petitioner and posting her to Mahila BN after completion of the tenure. 15. Further, applying the ratio of judgments sighted above, I find that this is not a case where there is violation of any rules or regulations or laws prevalent, nor it is a case of transfer which has been effected on instance of any persons/authorities who does not have jurisdiction, nor it is a case of mala fide. 16. Further, the petitioner has not made out any exceptionally strong case for interference. This being the position, I find no merit in this case. 17. Accordingly, this writ application is dismissed.