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2018 DIGILAW 371 (ORI)

Prasant Kumar Achari v. Union of India

2018-04-09

SUJIT NARAYAN PRASAD

body2018
JUDGMENT : S.N. Prasad, J. This writ petition is for quashing the order of transfer dated 21.4.2017 under Annexure-1 so far as the petitioner is concerned and to quash the order dated 29.5.2017 under Annexure-7 with further direction upon the opposite parties to transfer the petitioner either of the places of choices given as per the option dated 10.12.2016 under Annexure-3. 2. Brief facts of the case of the petitioner, as per the pleadings made in the writ petition, is that he has been appointed as Medical Officer in Central Reserve Police Force on 29.9.1997 and is discharging his duty as a doctor being posted in different places of the country. The petitioner while discharging his duty in 127 Battalion of CRPF has been transferred to 2nd Battalion of CRPF vide order of transfer dated 21.4.2017 who is now being deployed in Sukma in the state of Chhattisgarh. The petitioner on earlier round has approached this Court by filing writ petition being W.P.(C) No.7856 of 2017. The petitioner, in pursuance to the Summer Chain Transfer Policy, has submitted his option to be posted in five places i.e. Composite Hospital CRPF, Hyderabad; Composite Hospital CRPF, Bhubaneswar, Medical Dte, Delhi, GC Pinjore and Composite Hospital CRPF, Bangalore and this Court while disposing of the writ petition vide order dated 2.5.2017 has directed the opposite party to consider the representation and pass appropriate order within period of three weeks from the date of communication of the order. According to the petitioner, the order has been passed on 29.5.2017 but without considering the request made by the petitioner for his choice of posting, hence this writ petition has been filed assailing the order of transfer dated 21.4.2017 and the subsequent order dated 29.5.2017, in terms of the order passed by this Court in W.P.(C) No.7856 of 2017, inter alia, on the ground that the order dated 29.5.2017 is not speaking since the place of posting, on the basis of the request made by the petitioner in terms of the transfer policy related to chain transfer, has not been considered. The authorities have only stated in the order dated 29.5.2017 related to the Composite Hospital, CRPF, Bhubaneswar and Bangalore but there is no whisper regarding his posting either at Composite Hospital, CRPF, Hyderabad or GC Pinjore and as such the order dated 29.5.2017 cannot be said to be sustainable in the eye of law. The authorities have only stated in the order dated 29.5.2017 related to the Composite Hospital, CRPF, Bhubaneswar and Bangalore but there is no whisper regarding his posting either at Composite Hospital, CRPF, Hyderabad or GC Pinjore and as such the order dated 29.5.2017 cannot be said to be sustainable in the eye of law. The petitioner was posted in Left Wing Extremist (LWE) area that comes under category B and as such in pursuance to the chain transfer policy he ought to have been posted at soft/choice location. According to the petitioner, he has already completed his posting by remained posted at Left Wing Extremist area where present 127 Battalion is located i.e. at Bhanjanagar, Ganjam in the State of Odisha and as such he ought to have been posted in soft/choice location as per the transfer policy as contained in scheme No.2(iv) of the Standing Order No.7 of 2014, which according to the petitioner, is to be followed in its letter and spirit in transparent manner without any bias. He has also raised ground of jurisdiction, since according to him the order has to be passed by the Director General but the order of transfer has been passed by the D.I.G.(Pers) not by the Director General, hence the order is without any jurisdiction, the order of transfer is fit to be struck down. He further submits by reverting of the version of the opposite party that due to non-availability of vacancy in the choice place of posting he has not been transferred, but according to him the place where the petitioner has given his choice for his posting is being occupied by the contractual engagee and as per the communication dated 19.4.2011 the contractual appointees are to make room for the direct recruits and the petitioner being a direct recruitee cannot be given go by if the post has been occupied by the contractual engagee. He further submits by replying upon a note given by the Director General of the CRPF where he has given remark that there were cases where personnel have already served their tenure in Left Wing Extremist but they have got a repeat posting after availing soft posting. Zone and Sector office to ensure this does not happen. He further submits by replying upon a note given by the Director General of the CRPF where he has given remark that there were cases where personnel have already served their tenure in Left Wing Extremist but they have got a repeat posting after availing soft posting. Zone and Sector office to ensure this does not happen. By referring to the same under Annexure-8 it has been submitted that the authorities while considering the order of transfer has not complied to the observation made by the Director General, hence on this ground also posting of the petitioner from Left Wing Extremist area to the Left Wing Extremist are i.e. from 127 Battalion, Ganjam to 8th Battalion, Sukma which is clear violation of the instructions of the Director General. Further ground has been taken that the persons who are posted in the static place have not been disturbed while the petitioner has been disturbed even he has been posted at LWE zone and as such he ought to have posted in the static place of posting as per the Standing Order No.7/2014. In response, learned counsel for the opposite party who on the strength of the counter affidavit and additional affidavits, has vehemently opposed the contention of the petitioner by submitting that although the Standing Order No.7 of 2014 is there, the transfer since an incidence of service, the employee cannot claim his posting as matter of right in particular place. The petitioner since worked under the disciplined force and as such as per the requirement he is to be posted. He contends that the petitioner has been posted in the static area almost for 20 years i.e. he remain posted more than 11 years with effect from 7/2001 to 4/2013 in the static location, he remain posted in the State of Odisha for more than 8 years, while posting under 127 Battalion he remained at Composite Hospital, Bhubaneswar for a period of 5 months during the year 2014. He was also posted in the CH Bhubaneswar from June, 2009 to April, 2013 and as such keeping this fact into consideration the authority has not considered his choice place of posting. He was also posted in the CH Bhubaneswar from June, 2009 to April, 2013 and as such keeping this fact into consideration the authority has not considered his choice place of posting. He submits that the provision made in the Standing Order No.7/2014 is not mandatory rather it is to be followed as far as it is possible however there is stipulation that the transfer policy should be followed strictly in letter and spirit but the authority while posting one or the other officers is to take into consideration that the officers who are posted in locations at Category-A may get benefit of posting in the static location and keeping this fact into consideration which is largest interest to safeguard interest of the all the persons. The petitioner’s choice has not been acceded to however he has not posted at Bhubaneswar since he has not completed six years which is the cooling period. So far as Bangalore is concerned, there is no post available. So far as other places of posting is concerned, same is also being occupied by the contractual employee, keeping this fact into consideration the petitioner has not been given choice posting. He submits that even after going through the policy as contained in Standing Order No.5/2017 it has not stipulated that the posting is to be given on the basis of the choice, however, the petitioner has given his option to be posted in 5 places but that does not confer any right upon him that he shall be posted according to his choice. He while reverting the argument advanced by the learned counsel for the petitioner that the order passed by the authority is not by the Director General but the stipulation made in the guideline is that the order is to be passed from the Directorate General and it is not the Director General, here in the instant case, the order has been passed by the Directorate General under the power of delegation of I.G. (Personnel) and as such it cannot be said that the order has been passed without jurisdiction. So far as the argument advanced on behalf of the petitioner that pick and chose policy has been adopted, it has been submitted that the no pick and chose policy has been adopted, rather it is on the basis of the administrative decision the order of transfer has been passed. So far as the argument advanced on behalf of the petitioner that pick and chose policy has been adopted, it has been submitted that the no pick and chose policy has been adopted, rather it is on the basis of the administrative decision the order of transfer has been passed. He submits that so far as cases of officers figured at serial nos.20, 21, 22, 32, 37, 38, 39, 41, 42, 43, 46, 48 and 49, they all have been transferred and posted and although same has not been referred in the order impugned but he, by referring to the statements made in the additional counter affidavit, has submitted that proper explanation of transfer to such officer has been mentioned and explained at paragraph-4. So far as other officers are concerned, some of them have been retained on functional requirement and on administrative grounds and that is the exclusive domain of the authority to post one or the other officers on administrative ground. On the basis of this argument, it has been submitted that the petitioner has not been able to make out a case for interference with the order. 3. Heard learned counsel for the parties and on appreciation of the their rival submissions, it is evident from going through the pleadings made by the authority that the petitioner has been appointed as Medical Officer and now he is working as the Chief Medical Officer(Selection Grade) at 127 Battalion at Ganjam in the State of Odisha who has been transferred to 2nd Battalion, Sukma vide order dated 21.4.2017. The petitioner has taken ground of bias, pick and chose method and non-transparency. The petitioner’s main contention is that he has given option of 5 places to be posted in pursuance to the policy decision of the opposite parties which contained in Standing Order No.7 of 2014. The petitioner, against the order of transfer dated 21.4.2017, has approached this Court by way of filing W.P.(C) No.7856 of 2017 and this Court while disposing of the writ petition dated 2.5.2017, has directed the opposite party no.2 to consider his representation and take decision within stipulated time, in turn thereof, the order dated 29.5.2017 has been passed rejecting the claim of the petitioner, as such the order dated 21.4.2017 and the order dated 29.5.2017 are challenged in this writ petition. 4. 4. Before going into the rival submissions of the parties, it would be relevant for this Court to make reference of the transfer policy as contained in Standing Order No.7/2014. The main features of the policy are: (i) “Transfer policy should be followed strictly in letter and spirit in a transparent manner without any bias. (ii) Posting/Transfer should be impartial and based on the past posting particulars of an officer. (iii) Normal tenure from Asst.Comdt. to DIG would be 03 years. No officer should be allowed to continue for more than a period of 03 years at a stretch except Training Institution/Intelligence Set-up/Parliament Duty, Group/Special Duty, Group/Signals/Legal Cells and COBRA. The tenure of officer posted in Training Institution/Intelligence Set-up/Parliament Duty, Group/Special Duty, Group/Signals/Legal Cells and COBRA would be 04 years. (iv) Officers who are posted in locations at Category-A shall be given posting at soft/choices location only after completion of normal tenure. The officers posted in locations at Category-B shall be considered for soft/choice posting only after accommodating officers posted in locations at Category-A i.e. preference for choices/soft posting shall be given to officers posted in locations at Category-A. (xii) Cooling off period will be six years for posting to the previous place of posting. (xviii) Transfer applications shall be routed through concerned Sector/Zonal HQrs only with their recommendations. Competent authority to transfer (vi) Transfer of Medical Officer up to the rank of CMO(CG) excluding Specialists and CDMO with PG qualification will be decided by the Directorate General. 6. Director General reserves the right to relax one or more of the above guidelines, at his discretion on administrative or operational grounds.” The petitioner’s contention is that in pursuance to the transfer policy as contained in Standing Order No.7/2014 he has submitted his option by giving five places i.e. CH Hyderabad or CH Bhubaneswar, or Medical DTE, Delhi, or GC Pinjore or CH Bangalore as would be evident from the representation made on 10.12.2016 to the IG/Director(Medical, CRPF, New Delhi. The petitioner has given his option in terms of the communication dated 25.11.2016 Annexure-2. The petitioner has given his option in terms of the communication dated 25.11.2016 Annexure-2. The grievance of the petitioner that the authority has transferred him from 127 Battalion to the 2nd Battalion which is situated at Sukma in the State of Chhattisgarh, being aggrieved with the same, he has approached to this Court by filing writ petition being W.P.(C) No.7856 of 2017 and in terms of the order passed by this Court, the authority has passed order dated 29.5.2017. 5. 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. 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. 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 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. 6. In the light of this settled legal position vis-à-vis the Standing Order No.7 of 2014 the fact of the case of the petitioner has been examined by this Court. 6. In the light of this settled legal position vis-à-vis the Standing Order No.7 of 2014 the fact of the case of the petitioner has been examined by this Court. It is evident from the Standing Order No.7/2014 that it is by way of executive instruction although there is stipulation under the provision of the guideline no.2(i) to the effect that the transfer policy should be followed strictly in letter and spirit in a transparent manner without any bias but in the ultimate line of the said policy decision it has been stipulated that the Director General reserves the right to relax one or more of the guidelines, at his discretion on administrative or operational grounds. If the guideline no.2(i) will be read it would be clear that the Standing Order No.7 of 2014 is not having its statutory force rather it is by way of executive, instruction. Case of the petitioner is that he, while working under the 127 Battalion of the CRPF which falls within the jurisdiction of the district of Ganjam in the State of Odisha, was transferred by virtue of the order of transfer dated 21.4.2017. Petitioner has challenged the said order of transfer on the ground that the petitioner, who has exercised option vide Annexure-3 dated 10.12.2016, has not been given effect to by the authority. This Court while examining the policy decision under Annexure-10 has no where found that the transfer is to be made on the basis of the option rather it is by way of policy decision to consider in the way of chain summer transfer. However, option has been sought for from the Medical Officers to submit five choice places as would be evident from Annexure-2 dated 25.11.2016, in turn thereof, the petitioner has given request place of posting, first at CH Hyderabad, second CH Bhubaneswar, third Medical Dte.Delhi, fourth GC Pinjore and fifth CH Bangalore in preference wise. It is evident from the order impugned that the complaint made by the opposite party that the petitioner has been posted in static location for more than 11 years which has been reflected by way of table below: Sl.no. It is evident from the order impugned that the complaint made by the opposite party that the petitioner has been posted in static location for more than 11 years which has been reflected by way of table below: Sl.no. Unit/establishment Location From To Duration 01 3rd Bn Guwahati/ Daltonganj Daltonganj 29.9.1997 13.7.2001 3 yr 9 mth 02 CH Bangalore Bangalore 14.7.2001 24.7.2005 4 yrs 03 GC Gwalior Gwalior 25.7.2005 11.6.2009 3 yr 10 mth 04 CH BBSR Bhubaneswar 12.6.2009 4.4.2013 3 yr 9 mth 05 127 Bn Bhanjanagar, Gangam 5.4.2013 Till date 4 yrs 1 mth It is evident from the details of posting location wise that the petitioner has been posted under the static places about 19 years 5 months out of which he remained in Bhubaneswar from 2009 to 2013 and till date in Bhanjanagar in the district of Ganjam during which period he has remained duty at Bhubaneswar for period of five months, meaning thereby since his appointment i.e. from 29.9.1997 almost about 21 years of his service career he remained at static locations for period about 15 years before posting under 127 Bn which is at Bhanjanagar, Ganjam in the State of Odisha. It is further evident from the decision taken by the authority that the case of the petitioner for his posting at composite hospital, Bhubaneswar has not been taken into consideration because he has not completed cooling off period of six years which is required under the guideline which contains that cooling off period will be six years for posting to the previous place of posting, prior to his posting at Bhanjanagar he was posted in the composite hospital, Bhubaneswar from 12.6.2009 to 4.4.2013 i.e. for the period of 3 years 9 months. Learned counsel for the petitioner has tried to justify that the cooling off period of six years will be counted by taking into account the place of previous postings and the petitioner has not completed cooling off period of six years but this contention is not correct since the fact that the petitioner was posted in static location for 15 years and from Bhubaneswar, he was transferred only on 4.4.2013 and as such cooling of 6 years will be up to 4.4.2019 hence his posting to in composite hospital, Bhubaneswar has not been taken into consideration, hence in my considered view, there is no illegality committed by the authority taking such decision. So far as positing at Composite Hospital, Bangalore is concerned, it has been stated in the impugned order that the post is not vacant. So far as other places are concerned, the reason shown by the authority that the post has been occupied by the contractual engage. However, learned counsel for the petitioner has argued that the contractual posting cannot be said to be regular posting and the direct recruits will have to be appointed in those places but here the case is not of regular recruitment rather it is the case of filling of the post by way of transfer, hence the communication 19.4.2011 will not be applicable, as such the same will not have any aid to the petitioner’s grievance. The petitioner has taken other ground i.e. pick and chose policy has been adopted and considering his argument this Court has passed an order on 20.3.2018, in turn thereof, the additional counter affidavit has been filed by the opposite parties wherein the response has been given that everybody has been transferred but some of the persons have been kept at the static place on the basis of administrative decision which has been taken by the Director General in terms of his discretionary power depending upon the administrative exigency. 7. 7. This Court, after appreciating the rival submission of the parties, is of the view that even assuming that the other persons have been allowed to be continued in service although the same is the exclusive domain of the competent authority but even then the petitioner cannot get any advantage of the same, reason being that he has already remained 19 years and six months out of his 21 years of service career in the static places, save and except the posting in 127 Battalion, Sukma which under LWE but also falls under the State of Odisha which is his native State, out of which 5 months he has also attached to the Composite Hospital, Bhubaneswar. The petitioner has also taken ground of jurisdiction by the policy decision wherein it has been reflected that the order of transfer is to be issued by the Directorate General, this court has directed the opposite party to clarify the position, in turn thereon, the clarification has been given by the opposite party in the additional counter affidavit wherein it has been stated the difference between the Directorate General and the Director General, the stipulation made in the policy decision is Directorate General meaning thereby the order of transfer with respect to the post which the petitioner involved is to be issued from the office of the Directorate General and the order of transfer has been issued by the Deputy Inspector General(Personnel) CRPF on behalf of the Director General(IG) that too after approval by the competent authority and as such it cannot be said that it is without jurisdiction. This Court, after appreciating the argument advanced on behalf of the parties in this regard and after going across the policy decision of the authority as contained in Standing Order No.7 of 2014, is of the view that the transfer of medical officer up to the rank of CMO(SG) excluding specialist and CDMO with P.G. qualification will be decided by the Directorate General, thus it is evident that the reference in the policy is of the Directorate General and not of Director General, meaning of the Director General is that the order of transfer is to be issued from the Director General and if it is issued by the office of the Directorate General by any competent authority on behalf of the Director General it cannot be said to be without jurisdiction. Hence, the point raised by the petitioner has no substance. Learned counsel for the petitioner further submits that he has given option of 5 places and he is not interested to remain in a particular post but he is to be posted according to choice but that prayer cannot be said to be sustainable in view of the fact that the order of transfer cannot be issued on the basis of the choice of an incumbent. However, the option has been sought for but merely seeking an option does not confer any right upon the petitioner that he be posted according to choice of posting rather it depends upon the vacancy position and when the opposite parties has taken decision that he cannot be posted at Bhubaneswar since he has not completed cooling off period and other places since there was no vacancy, as such the decision taken by the authority cannot said to suffer with malice and mala fide. Moreover, the petitioner has been allowed to remain in the plain area for about 15 years excluding the area of 127 Battalion for four years which is also falling within the jurisdiction of the State of Odisha and as such on this pretext also the order of transfer cannot be said to suffer with malice. The petitioner has referred his noting of the Director General, CRPF wherein it has been noted down that where persons have already served tenure at LWE and as such they may not be repeated after availing some posting, on the basis of this, the petitioner want to get choice place of posting but the noting of the Director General cannot confer any vested right upon the petitioner, rather the authority, after taking into consideration his past place of posting, has transferred him to the State of Chhattisgarh which is nearby State of Odisha although in the LWE area but merely on account of the Standing Order his posting to the LWE area cannot be said to be illegal since the Standing Order is not a statutory rule rather it is discretionary subject to relaxation of the Director General and he is the competent authority to post one or the other officers according to administrative reason. 8. 8. This Court, after discussing in detail the factual aspects vis-à-vis ground taken by the petitioner, is of the view that the petitioner has failed to make out a case of interference in the administrative decision since it is not without jurisdiction or in violation of the statutory rule or mala fide exercise, hence this Court declined to interfere with the order of transfer. In the result, the writ petition fails and is dismissed.