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2016 DIGILAW 235 (ORI)

Sabir Uddin Khan v. Union of India

2016-03-29

A.K.RATH

body2016
JUDGMENT : A.K. RATH, J. By this writ application, the petitioner assails the order of transfer dated 19.8.2015, vide Annexure-6. Ancillary prayer has been made to allow him to join in his place of posting as per the transfer order dated 29.9.2014, vide Annexure-1. 2. Bereft of unnecessary details, the short facts of the case of petitioner are that he joined as Constable in the CRPF in the year 1999. Thereafter he was transferred to different parts of India. On 9.1.2010 he was posted at Group Centre, Bhubaneswar. On 29.9.2014 he was transferred to 12th Battalion under the Sambalpur G.C.. Because of his family problem, he made a representation on 29.9.2014 to the I.G. of Police, Odisha Sector, CRPF requesting him to defer the date of relieve. The same was allowed and he continued in the post as deputationist. Three persons including the petitioner were allowed to continue for a specific period. In the meantime, two others have been appointed in their place of transfer. While the matter stood thus, by office order dated 13.7.2015, vide Annexure-4, he was transferred to 188th Battalion. He again made a representation on 16.7.2015 to modify the said order. Since the same was not considered, he approached this Court by way of filing a writ application, being W.P.(C) 14014 of 2015. The same was disposed of on 4.8.2015 with a direction to opposite party no.3 to dispose of the representation. The order was communicated to opposite party no.3. It is further stated that basing on the order of this Court, opposite party no.3 became vindictive and issued an office order on 19.8.2015 transferring him to Jammu and Kashmir Zone. On earlier two occasions, he has completed his tenure in the said zone. With this factual background, this writ application has been filed. 3. Pursuant to issuance of notice, counter affidavit has been filed by the opposite parties. It is stated that after completion of his tenure at Bhubaneswar, he was transferred to 12th Battalion, vide office order dated 29.9.2014. On the request of the petitioner, posting was deferred till summer chain transfer-2015 and not for one year. It is further stated that the orders of transfer have been issued by the D.G., CRPF, who is a higher authority than I.G.P.. On the request of the petitioner, posting was deferred till summer chain transfer-2015 and not for one year. It is further stated that the orders of transfer have been issued by the D.G., CRPF, who is a higher authority than I.G.P.. Pursuant to the order dated 4.8.2015 passed by this Court in W.P.(C) No.14014 of 2015, representation of the petitioner was considered and the order of transfer was modified and the petitioner has been allotted to Jammu and Kashmir Zone on 19.8.2015. The order has been issued keeping the larger perspective and objective of the force in mind. There was no mala fide in issuing the order of transfer. The same was issued keeping in view the vacancies in the various zones. 4. Mr. Ojha, learned counsel for the petitioner submits that the order of transfer smacks mala fide and liable to be quashed. He further submits that the petitioner was transferred to 188th Battalion. Because of his problems in the family, he could not join and made a representation. The same was subsequently cancelled. The petitioner has been allotted to Jammu and Kashmir Zone. He further submits that a direction may be issued to the opposite parties to consider the case of the petitioner for his posting either at 12th Battalion or 188th Battalion. 5. Per contra, Ms. Tripathy, learned counsel for the opposite parties submits that CRPF is a disciplinary force. Keeping in view the administrative exigencies, the order of transfer is made. The allegation of mala fide as alleged by the petitioner is baseless. 6. In Abni Kant Ray Vrs. State of Orissa and others, 1995 Suppl.(4) SCC 169, the Supreme Court held that a transfer which is an incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer. In M. Sankaranarayanan, IAS Vrs. State of Karnataka and others, AIR 1993 SC 763 , the apex Court held that it may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture. 7. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture. 7. On the anvil of the decisions cited supra, the case of the petitioner may be examined. 8. The petitioner was posted at Group Centre, Bhubaneswar on 9.1.2010. Though he was transferred to 12th Battalion on 29.9.2014, he did not join. He made a representation to defer the order. The same was acceded to. He was allowed to continue for the time being as deputationist. On 13.7.2015 he was again transferred to 188th Battalion. Thereafter he approached this Court in W.P.(C) No.14014 of 2015, which was disposed of on 4.8.2015 with a direction to opposite party no.3 to consider the representation of the petitioner. A fresh transfer order was passed and he has been allotted to Jammu and Kashmir Zone. 9. Except bald assertion, there is no material on record to come to a finding that the order of transfer smacks mala fide. To say the least, it is the last straw on the camel’s back. In the meantime, the petitioner has completed more than five years in Orissa Zone. In view of the same, this Court is not inclined to interfere with the order of transfer dated 19.8.2015, vide Annexure-6. It is open to the opposite parties to consider the case of the petitioner for his posting considering the exigency of service. The petition is dismissed. No costs.