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2018 DIGILAW 404 (ORI)

Ashok Ku. Barik v. Union of India

2018-04-12

SUJIT NARAYAN PRASAD

body2018
JUDGMENT : S. N. Prasad, J. Both these writ petitions pertain to transfer of the petitioner, as such both the writ petitions have been decided to hear together and accordingly, heard together today. W.P.(C) 12976 of 2017 is for quashing the order of transfer dated 11.05.2017 (Annexure-4) and signal dated 12.06.2017 (Annexure-9). W.P.(C) No.5982 of 2018 is for quashing the order of relieve dated 20.02.2018. 2. The facts in brief is that the petitioner was appointed as a Constable/General Duty in Central Reserve Police Force (in short ‘CRPF’) on 30.08.1994 and joined in Group Center, CRPF, Bhubaneswar and thereafter being transferred from one place to another in the country, he ultimately posted at Group Center, CRPF, Bhubaneswar, where he has continued since 16.10.2013. The petitioner has been transferred vide order dated 11.05.2017 and in consequence thereof the signal dated 12.06.2017 has been issued. The petitioner being aggrieved with the order of transfer has approached this Court on the ground that he was suffering from medical ailment due to an accident, he became incapacitated to perform hard and rigorous duty in CRPF and at present he is undergoing medical treatment at Bhubaneswar in Composite Hospital, Group Center, CRPF, Bhubaneswar and being referred to S.C.B. Medical College and Hospital, Cuttack, Capital Hospital and some Hospital at Bhubaneswar, as such he has made request to the authorities to cancel the order of transfer. Apart from that ground of study of his daughter has been taken who is a student of Class-X of Kendriya Vidyalaya to appear in the Annual CBSE Examination, 2018. 3. This Court, while hearing the petitioner has issued notice on 04.07.2017 and in pursuance thereof, the opposite parties have appeared and filed counter affidavit, wherein it has been stated that the petitioner has already completed 3 years and 9 months in Group Center, CRPF, Bhubaneswar against the prescribed tenure of 3 years as per the transfer policy laid down in Standing Order No.07/2015 of Non-Gazetted Officers, accordingly he has been transferred to 41 Bn. Bhopal (Madhya Pradesh) during summer chain transfer, 2017 vide order dated 11.05.2017 passed by the Inspector General of Police on administrative ground and in public interest. Bhopal (Madhya Pradesh) during summer chain transfer, 2017 vide order dated 11.05.2017 passed by the Inspector General of Police on administrative ground and in public interest. It has been contended that the petitioner is a member of disciplined Force, as such transfer being the incidence of service, has been transferred after completion of normal tenure to Bhopal (Madhya Pradesh) in public interest, as such the same may not be interfered in exercise of power of judicial review, since it is the transfer in public interest. 4. The petitioner has filed another writ petition being W.P.(C) No.5982 of 2018 assailing the order of relieving dated 20.02.2018 under Annexure-1, whereby and where under the petitioner has been directed to be relieved since he has been allowed to continue in service on misconception since the information has been communicated to the authorities that there is an interim order passed by this Court in W.P.(C) No.12976 of 2017 but actually there is no interim order and in that pretext the petitioner was allowed to continue in service and the moment it came to the notice of the authorities he has been directed to be relieved vide order dated 20.02.2018. The petitioner while challenging the said order has reiterated the ground which he has taken in W.P.(C) No.12976 of 2017. 5. Opposite parties have not interested to file counter affidavit in W.P.(C) No.5982 of 2018 for the reason that they have already filed detail counter affidavit in W.P.(C) No.12976 of 2017 giving therein all details in defence of the order of transfer and disputing the ground raised by the petitioner in the said writ petition. Heard the learned counsel for the parties and on appreciation of their rival submissions, it needs to refer the jurisdiction of the High Court sitting under Article 226 in interfering with the order of transfer. 6. 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. 6. 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. 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. 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. In the light of this legal position and on examination of the Standing Order No.7/2015, it is evident that the normal tenure of transfer from static location is 3 years. The petitioner was posted in Group Center, CRPF, Bhubaneswar w.e.f. 17.10.2013, since he has completed more than normal tenure of 3 years i.e. 3 years and 9 months in Group Center, he in terms of the Standing Order No.7/2015 has been transferred to 41 Bn. during Summer Chain Transfer, 2017. 7. The petitioner has assailed the said order, first related to medical suffering and second study of his daughter who is a Class-X student and CBSE Annual Examination is scheduled to be held in 2018. 8. during Summer Chain Transfer, 2017. 7. The petitioner has assailed the said order, first related to medical suffering and second study of his daughter who is a Class-X student and CBSE Annual Examination is scheduled to be held in 2018. 8. This Court in exercise of power conferred under Article 226 of the Constitution of India is not inclined to interfere with the order of transfer for the following reasons:- (i) The petitioner is a member of discipline Force and he knows the fact that transfer is an incidence of service and he can be transferred across the country. The petitioner has been posted in the static location at Bhubaneswar and remained there for 3 years and 9 months, hence while considering the Summer Chain Transfer, 2017 he has been transferred to 41 Bn., Bhopal (Madhya Pradesh), as such the authorities while transferring the petitioner has taken into consideration the policy decision as contained Standing Order No.7/2015, hence it cannot be said that there is any illegality in the order of transfer that too it has been done in the public interest and the administrative exigencies. (ii) Scope of the High Court as has been discussed above in exercise of power of judicial review sitting under Article 226 of the Constitution of India is very limited in interfering with the administrative decision of the authority in transferring one or the other employees and it can only be interfered, if the order of transfer is without jurisdiction or by way of mala fide or against the statutory rules. It is evident from the pleading made in the writ petition that none of the grounds has been taken by the petitioner to assail the order and the same cannot be taken for the reason that the order of transfer has been passed by the competent authority and it is in terms of the policy decision as contained in Standing Order No.7/2015. However, learned counsel for the petitioner has tried to make out a case of mala fide by arguing the principle of Article 21 of the Constitution of India which guarantees Right to Live. However, learned counsel for the petitioner has tried to make out a case of mala fide by arguing the principle of Article 21 of the Constitution of India which guarantees Right to Live. According to the petitioner he is suffering from medical ailment due to accident and for that he is undergoing treatment in the composite hospital and some time being treated in other Medical Colleges situated in the State of Odisha and also CBSE 10th Examination of his daughter scheduled to be held in 2018. This Court after appreciating the arguments on behalf of the petitioner that the Article 21 of the Constitution of India is of the view that since the transfer is an incidence of service and when the petitioner has accepted the offer of appointment, he was knowing the fact that he can be transferred across the country, not only that he must be knowing the fact that he is going to join the duty of disciplined Force and he can be shifted at any place subject to exigencies and requirement. If anybody is being transferred in the capacity of incidence of service, it cannot be said that there is infringement of Fundamental Right as granted by the Constitution of India for the reason that the petitioner, whether he lives in Bhubaneswar or at Bhopal, his Right to Live is no way going to be infringed. In view thereof, the contention of the petitioner in this regard is not sustainable, as such the same is rejected. So far as, 10th CBSE Examination of his daughter is concerned, the plea was taken by the petitioner at the time of filing of writ petition being W.P.(C) No.12976 of 2017 which was filed on 30.06.2017 but he one way or other, managed to remain at Bhubaneswar for almost one year from the date of transfer, in absence of any interim order passed by this Court and in the meanwhile 10th Examination of his daughter must have finished on the basis of the schedule of CBSE, hence second ground taken by the petitioner is not fit to be accepted for interfering with the order of transfer. (iii) The writ court is the court of equity and the discretion is vested upon the High Court to exercise the jurisdiction and as such it is settled that the jurisdiction of the Court of equity is to be invoked with all fairness. (iii) The writ court is the court of equity and the discretion is vested upon the High Court to exercise the jurisdiction and as such it is settled that the jurisdiction of the Court of equity is to be invoked with all fairness. Although the petitioner has filed the writ petition being W.P.(C) 12976 of 2017 and stated the things in the right manner but his conduct is not appreciated by this Court for the reasons as would be evident from Annexure-1 annexed to the writ petition being W.P.(C) No.5982 of 2018 dated 20.02.2018, which is impugned in the said writ petition and for better appreciation, the part of Annexure-1 is being reproduced herein below:- “xxx xxx The matter has been examined and the competent authority has observed that the Hon’ble Court issued notice to opposite parties on dated 04.07.2017 without granting stay on the operation of order dated 11.05.2017. But vide signal dated 04.07.2017 it was conveyed that the Hon’ble Court granted stay on operation of the order dated 11.05.2017. Now it is being conveyed to this Date after a gap of six month that no stay has been granted. Due to delay, department could not take initiative to relieve the petitioner from the place of present posting and as a result of which the petitioner is continuously enjoying the present place of posting.” 9. Thus, it is evident that the petitioner who was transferred on 13.04.2017 has been allowed to continue in service for one year even though there was no interim order passed by this Court in W.P.(C) No.12976 of 2017 as would be evident from the order dated 4.7.2017, wherein this Court has only issued notice to the opposite parties without passing any interim order. It is evident from Annexure-1 annexed to W.P.(C) No.5982 of 2018 as quoted above, that the petitioner has been allowed to continue in service on the ground that one signal dated 4.7.2017, by which it was conveyed that the this Court has granted stay on operation of the order dated 4.7.2017 and thereafter it was communicated that there was no stay granted by this Court, which resulted into relieving the petitioner. The petitioner was knowing the fact very well that the High Court has passed an order on 4.7.2017 without any interim order but he has not done the part of his duty which he ought to have done by communicating the same to the authorities regarding the true order but he, in order to get the benefit of wrong communication has got the advantage by remaining at the place of posting which he was enjoying prior to the order of transfer. It is evident from Annexure-1 as quoted above that it is the subject matter of enquiry and who is at fault and for that the authorities are taking initiation in this regard, as such the Court is not passing any order rather it is left open for the authorities to take appropriate action against the erring officials. 10. In view of the detail discussion made above and the limited scope of the High Court sitting under Article 226 of the Constitution of India in invoking the jurisdiction from making interference under the power of judicial review in the administrative decision of the authority is not warranted. Accordingly, both writ petitions fail and are dismissed. Before parting with the order since the petitioner has taken ground that he has met with an accident and he is undergoing medical treatment, as such he is not in a position to discharge Battalion duty, as such the petitioner will be at liberty to bring this fact into the notice of the authority after resuming his duty at 41 Bn. who on its verification if found that he is not eligible to discharge the active Battalion duty, he may be given sedimentary duty till he physically recovered being certified by the Medical Officer.