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2018 DIGILAW 365 (ORI)

Rakesh Kumar Behera v. Union of India

2018-04-06

SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. This writ petition is against the order of transfer dated 18.4.2016 under Annexure-5 on the ground that wife of the petitioner is suffering from psychiatric disease. 2. Counter affidavit has been filed by the opposite parties wherein it has been stated that the petitioner has joined service on 15.3.2003 in 142 BN CRPF, posted in various CRPF offices, lastly reported on transfer from 5 Signal Bn. to 3 Signal Bn. CRPF and further posted to E/3 Signal Bn. CRPF at Bhubaneswar w.e.f. 19.2.2013. As per the Standing Order No.11/2002, normal tenure at static station is three years, accordingly after completion of his normal tenure at static station, Bhubaneswsar, he was required to be posted out to field unit as routine/regular transfer policy in order to give posting to other personnel who have completed their normal tenure at field areas so that they may also get equal opportunity to serve in static locations and can keep their family with them. It has been stated that the petitioner has been transferred by way of Summer Chain Posting,2016 and as such there is no illegality in the order of transfer. It has further been stated that the petitioner has filed W.P.(C) No.7029 of 2016 and the said writ petition was disposed of vide order dated 26.4.2016 by directing the authorities to consider the case of the petitioner on the prayer made in the representation, in turn, the case of the petitioner was considered and rejected vide order dated 26.5.2016, inter alia, stating therein that the order of transfer has been passed after following the guideline to provide equal opportunity to serve in static place under Central Reserve Police Force. 3. Upon hearing the learned counsel for the parties and on appreciation of their rival submissions, it is evident that the petitioner is working as a member of the disciplined Force i.e. the Central Reserve Police Force. He was transferred and posted at E/3 Signal Bn.CRPF at Bhubaneswar on 19.2.2013, he has been provided a chance to be posed in the plain area as also home State in pursuance to the policy decision of the CRPF Standing Order No.11/2002, normal tenure at static station is 3 years. Accordingly, the petitioner was transferred vide order dated 18.4.2016 and after completion of more than 3 years and 2 months. Accordingly, the petitioner was transferred vide order dated 18.4.2016 and after completion of more than 3 years and 2 months. The petitioner being aggrieved with the order of transfer dated 18.4.2016 has filed W.P.(C) No.7029 of 2016, a Coordinate Bench of this Court vide order dated 26.4.2016 has directed the authorities to take decision by passing an interim order for one month i.e. no coercive action shall be taken against the petitioner. In view thereof, the authority has passed order on 26.5.2016 whereby and where under the claim of the petitioner has been rejected on the ground that the order of transfer is in pursuance to the Standing Order No.11 of 2002 in order to give posting to other personnel who have completed their normal tenure at field areas so that they may also get equal opportunity to serve in static areas or at home State. The orders of transfer dated 18.4.2016 and 26.5.2016 are both challenged in this writ petition. 4. This Court has thought it proper to discuss about the jurisdiction of this Court of the power of judicial review conferred under Article 226 of the Constitution of India in the matter of transfer. Reference may be made to the judgment rendered by the Hon’ble Supreme Court in the case of Mrs. Shilpi Bose and others –vs-State of Bihar and others, reported in AIR 1991 Supreme Court 532 whereby and where under at paragraph-4 the Hon’ble Apex Court has been pleased to hold that 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 not 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. In the case of Union of India and others –vs- S.L.Abbas reported in (1993)4 SCC 357 wherein at paragraphs 6 and 7 the Hon’ble Supreme Court held that the an order of transfer is an incident of Government service who should be transferred where, is a matter for the appropriate authority 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 guideline however does not confer upon the government employee a legally enforceable right. In the case of Mohd. Masood Ahmad –vs- State of U.P. and others reported in (2007)8 SCC 150 wherein at paragraphs 4 and 7 it has been laid down that interference by the courts with transfer orders should only be in very rare cases, it should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders. In the case of Government of Andhra Pradesh –vs- G.Venkataratnam reported in (2008)9 SCC 345 wherein it has been laid down by the Hon’ble Supreme Court that if the transfer neither suffers from violation of any statutory rules nor can it be described as mala fide by any stretch of imagination, the orders needs no interference. In the case of Government of Andhra Pradesh –vs- G.Venkataratnam reported in (2008)9 SCC 345 wherein it has been laid down by the Hon’ble Supreme Court that if the transfer neither suffers from violation of any statutory rules nor can it be described as mala fide by any stretch of imagination, the orders needs no interference. In the case of Novartis India Limited –vs- State of West Bengal and others reported in (2009)3 SCC 124 wherein the Hon’ble Supreme Court has been pleased to hold at paragraph-34 that the transfer is an incident of service, unless an order of transfer is passed contrary to the provisions of the statutory rule or settlement, the same should not be interfered with. 5. This Court, after going through the impugned orders dated 18.4.2016 and 26.5.2016 as also the statement made by the opposite parties in the counter affidavit, has found that the authority has followed the guideline of the Standing Order No.11 of 2002 which contained provision that normal tenure in the plain station will be 3 years. The petitioner was posted in the normal area which happens to be his home State on 19.2.2013 and after completion of 3 years and two moths he was transferred on 18.4.2016. According to my considered view, the authority has followed the guideline made in the Standing Order No.11 of 2002 by allowing the petitioner to continue his service in static station for period of more than 3 years. It is also evident from the policy decision as contained in the Standing Order No.11/2002, tenure for 3 years has been provided to the petitioner. If the petitioner would have been allowed to continue in service in the same place, the spirit of the Standing Order No.11/2002 will ultimately be frustrated and others will be denied the same benefit. In view thereof, the authority has not committed any illegality in passing the order of transfer. So far as the contention of the learned counsel for the petitioner that wife of the petitioner is suffering from psychiatric disease, it is settled that merely having some family problems the order of transfer need not be interfered with by sitting under Article 226 of the Constitution of India. 6. In view thereof and in the entirety of the facts and circumstances of the case, this Court is not inclined to interfere with the impugned orders dated 18.4.2016 and 26.5.2016. 6. In view thereof and in the entirety of the facts and circumstances of the case, this Court is not inclined to interfere with the impugned orders dated 18.4.2016 and 26.5.2016. In the result, the writ petition is dismissed. Interim order dated 13.6.2016 passed by this Court shall stand vacated.