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2017 DIGILAW 1023 (ORI)

Arun Kumar Biswal v. Director General, Central Industrial Security Force, New Delhi

2017-09-12

BISWAJIT MOHANTY

body2017
JUDGMENT : BISWAJIT MOHANTY, J. This the second journey of the petitioner to this Court challenging the orders of his transfer and posting as well as the order dated 6.6.2017 under Annexure-9 rejecting his prayer for cancellation of transfer. 2. The short facts of the case are as follows: The petitioner is working as S.I.(Min) in the Central Industrial Security Force. During 2015, pursuant to order of transfer under Annexure-1, he joined at Paradip Port Trust Unit, Paradip on 1.4.2015. While working at Paradip, vide order dated 28.1.2017 under Annexure-2, the petitioner along with others has been posted to various sectors. To be precise as per Annexure-2, the petitioner has been allotted to South Sector. The office order under Annexure-2 makes it clear that if any individual wanted to submit representation, he should submit it before the office of opp. party No. 2 by 7.2.2017 for onward transmission. On 10.2.2017, the petitioner submitted his representation to opp. party No.1 under Annexure-3 indicating therein that during last 4-5 years, he has been transferred frequently for which he has suffered financially and such frequent transfers have hampered the study of his son badly. He has also pointed out in his representation that his son was studying in Class-VIII at Kendriya Vidyalaya, Paradip and the transfer at that stage would affect the study of his son. In such background, he prayed that his posting order may be cancelled. Though vide Annexure-C/10 the opp. party No. 2 transmitted such request for cancellation of transfer and posting to Asst. Inspector General/Establishment, CISF HQ, New Delhi; however vide office order dated 14.3.2017 under Annexure-4, the opp. party No.2 intimated that the petitioner would be relieved on 31.3.2017 to join at Ramagundam Unit. Further on 15.3.2017 vide Annexure-C/11, it was made clear that request of the petitioner for cancellation of posting has been considered and regretted. Vide Annexure-5 dated 16.3.2017, such refusal of request for cancellation of posting was intimated to the petitioner. The petitioner filed W.P. (C) No. 4926 of 2016 challenging the order of transfer and vide order dated 13.4.2017, this Court quashed the order dated 16.3.2017 as the same was a non-speaking order and remitted the matter back to opp. party No.2 to reconsider the case of the petitioner by passing a speaking and reasoned order. In such background, on 5.5.2017, the petitioner submitted another representation under Annexure-8 to opp. party No.2 to reconsider the case of the petitioner by passing a speaking and reasoned order. In such background, on 5.5.2017, the petitioner submitted another representation under Annexure-8 to opp. party No.1 indicating therein that during last 5 years, he has been transferred thrice and as per the transfer policy, he was not due for “Out of Home Zone” transfer. He also raised the issue relating to study of his son being hampered badly and accordingly prayed that he may be permitted to continue at Paradip. However, vide impugned order under Annexure-9, the opp. party No.1 rejected his prayer for cancellation of posting and transfer to South Sector. While rejecting the same, the opp. party No. 1 made it clear that the petitioner has completed only 10 years 10 months and 26 days in “Out of Home Zone” against the stipulated period of 13 years and accordingly he has been posted beyond “Home Zone”. Secondly, he indicated in Annexure-9 that as per Section 15 of Central Industrial Security Force Act, 1968, for short “the Act”, every member of force can be employed at any place within and outside India. Lastly, he pointed out that as per existing transfer guidelines, an NGO can be permitted with an extension in his/her present unit for one year if his/her ward is studying in 10th or 12th class in current academic year and since the son of the petitioner was in Class-VIII at the time of issuance of Inter Zonal Transfer-2017, thus he cannot get the benefit of above guidelines. Challenging the transfer order, posting order and the order of rejection under Annexure-9, the petitioner has filed the present writ application on 12.6.2017. On being noticed, the opp. parties have filed counter. In the counter, the opp. parties have defended the impugned order. The petitioner has filed rejoinder highlighting the academic career of his son and stating therein that the petitioner had filed his representation only on 10.2.2017 under Annexure-3 and never on 27.1.2017 as pleaded by opp. parties in their counter. There, he has also indicated that he has been on sick leave from 13.6.2017 and the movement order dated 15.6.2017 under Annexure-11 has been forcibly served on him by the opp. party No.2 along with 4-5 personnel of the Force. As per Annexure11, he has been directed to report at his new place of posting after medical fitness. There, he has also indicated that he has been on sick leave from 13.6.2017 and the movement order dated 15.6.2017 under Annexure-11 has been forcibly served on him by the opp. party No.2 along with 4-5 personnel of the Force. As per Annexure11, he has been directed to report at his new place of posting after medical fitness. In the rejoinder, he has also made it clear that at present two more posts of S.I./Ministerial cadre are lying vacant under opp. party No.2. 3. Heard Mr. N.R. Routray, learned counsel for the petitioner and Mr. P.K. Padhi, learned counsel for the opp. parties. 4. Mr. Routray, learned counsel for the petitioner reiterated the stand taken by the petitioner in the writ application as well as in his rejoinder and submitted that in the last five years, the petitioner has suffered around four transfers in quick succession. Thus, the present transfer to South Sector only reflects harassment and this would greatly affect the study of the son of the petitioner, who admittedly at the time of transfer was a student of Class-VIII of Kendriya Vidyalaya, Paradip. Further, he submitted that the petitioner has been transferred from “Home Zone” to “Out of Home Zone” several times during 2nd tenure of “Home Zone” posting and has completed almost four years of his 3rd tenure in “Out of Home Zone”. Thus, at present he was not due for “Out of Home Zone” posting. In this context, he has relied on the transfer guidelines contained in Annexure-7 dated 15.2.2012. He has also drawn attention of this Court to the earlier guidelines issued in 1997. 5. In reply, Mr. Padhi, learned Central Government Counsel fully defended the reasons given in the rejection order under Annexure-9 and further submitted that the transfer guidelines under Annexure-7 are merely a set of administrative instructions and the same cannot override the statutory provision under Section 15 of “the Act”. Thus, he submitted that the impugned orders of transfer and posting are in tune with Section 15 of “the Act” and since no malafide has been alleged against the authorities issuing the transfer order, this Court should not interfere in the matter, and, accordingly, the writ application be dismissed. 6. By now, law relating to transfer is very well settled. Thus, he submitted that the impugned orders of transfer and posting are in tune with Section 15 of “the Act” and since no malafide has been alleged against the authorities issuing the transfer order, this Court should not interfere in the matter, and, accordingly, the writ application be dismissed. 6. By now, law relating to transfer is very well settled. It is settled that transfer is an incidence of service and there exists very little scope for judicial review of such order unless it is found to have been issued in contravention of statutory rules or when such order has been issued in a malafide manner. To a pointed query, Mr. Routray, learned counsel for the petitioner fairly submitted that the petitioner has not made any allegations of malafide in the present case and that the transfer guidelines of 1997 and 2012 under Annexure-7 are sets of administrative instructions. Further, it is well settled that transfer guidelines issued by the State or employer do not have any statutory force, rather these provide guidelines for understanding of the departmental personnel and that the court does not have a power to annul a transfer order only on the ground that it will cause inconvenience to the employee and his family members. Now, to a few decisions of the Supreme Court on the issue. In the case of Shilpi Bose v. State of Bihar reported in AIR 1991 SC 532 , the Supreme Court held as follows in the said case: “In our opinion, the courts should not interfere with a transfer order which are 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. 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.” Similarly, in the case of Union of India v. S.L. Abbas reported in AIR 1993 SC 2444 , the Supreme Court observed that Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is passed in a mala fide manner or in violation of the statutory provisions. In the case of S.C. Saxena v. Union of India reported in (2006) 9 SCC 583 , the Supreme Court deprecated the practice of the Government employees approaching the Court against the order of transfer instead of joining at the transferred place. In the case of State of Uttar Pradesh v. Gobardhan Lal reported in AIR 2004 SC 2165 , the Supreme Court made it clear that the order of transfer, made even in transgression of administrative guidelines cannot be interfered with, as these do not confer any legally enforceable rights. 7. In the present case, as has been fairly submitted by Mr. Routray, learned counsel for the petitioner, there exists no allegations relating to transfer order being vitiated by mala fide. Similarly, in the present case, there exists no violation of statutory rules. Rather, Section 15 of “the Act” makes it clear that every member of the force shall for the purpose of “the Act” be considered to be always on duty and shall at any time to be liable to be employed at any place within or outside India. Transfer guidelines of 1997 or under Annexure-7 do not confer any legally enforceable rights. In any case, these guidelines cannot override the mandate of Section 15 of “the Act”. In such background, the arguments advanced by the learned counsel for the petitioner that the impugned transfer is contrary to the transfer guidelines, even if accepted would in no way help him on the face of authorative pronouncements made by the Supreme Court. In any case, these guidelines cannot override the mandate of Section 15 of “the Act”. In such background, the arguments advanced by the learned counsel for the petitioner that the impugned transfer is contrary to the transfer guidelines, even if accepted would in no way help him on the face of authorative pronouncements made by the Supreme Court. Even otherwise, a perusal of Annexure-9 would show that the grievance of the petitioner relating to mid-academic session transfer has been dealt with by the authorities and the petitioner has not been allowed the benefit as his son was neither a student of Class-X or XII at the time of issuing of Inter Zonal transfer. It has also dealt with the grievance of the petitioner relating to “Out of Home Zone” posting. 8. Considering all these things, this Court is of the view that no illegality has been committed by the authorities in transferring and posting the petitioner to the South Sector. Accordingly, the writ application is dismissed. No cost.