Research › Search › Judgment

Manipur High Court · body

2021 DIGILAW 60 (MAN)

Molingson Tongsin Anal v. Union of India

2021-10-27

M.V.MURALIDARAN

body2021
JUDGMENT [1] This writ petition has been filed by the petitioner seeking to quash the impugned transfer message/order dated 29.9.2021 passed by the third respondent and the consequential relieving order dated 30.9.2021 issued by the fifth respondent and to direct the respondent to consider and dispose of the representation of the petitioner dated 30.9.2021 in terms of the Standing Order No.5/2012 dated 27.2.2013 issued by the second respondent. [2] With consent of both sides, the writ petition itself is taken up for final disposal at the admission stage. [3] The case of the petitioner is that he was initially appointed as Assistant Commandant in Central Reserve Police Force (CRPF) in the year 2014 and after successful completion of the training at CRPF Academy, Gurgaon in February, 2015, the petitioner was posted at 75 Bn. Jammu & Kashmir from March, 2015 to October, 2018 and thereafter, the petitioner was posted at 69 Bn. Mantripukhri, Imphal since 22.10.2018. While that being so, vide impugned message/order dated 29.9.2021, the petitioner along with five other officers were transferred and the petitioner was posted at 151 Bn. Chhattishgarh, which according to the petitioner is highly improper, illegal and arbitrary. Hence, the petitioner has filed the writ petition. [4] Assailing the impugned transfer message/order dated 29.9.2021 and the consequential relieving order dated 30.09.2021, Mr. M. Hemchandra, learned senior counsel for the petitioner submitted that the petitioner was transferred before completion of three years in the home posting. He would submit that as per the Standing Order dated 27.2.2013, when an employee is to be transferred, he should be given 20 days time, whereas the third respondent has given only three days time, which is totally against the Standing Order. [5] Learned senior counsel further submitted that as per the Standing Order, the Assistant Commandant should be transferred only on 1st March, but the impugned transferred was issued during September, 2021. Learned counsel would also submit that after issuance of the transfer order, the petitioner has submitted a representation dated 30.9.2021 seeking one year extension to serve in the present place, which has not been considered so far by the respondent authorities. [6] Learned senior counsel for the petitioner also argued that CCS Rules would be applicable in the case of the petitioner and he should be given 20 days time for joining. [6] Learned senior counsel for the petitioner also argued that CCS Rules would be applicable in the case of the petitioner and he should be given 20 days time for joining. To fortify his submissions, learned counsel has relied upon the following decisions: (i) Prsanna Kumar Nath v. State of Assam and others, 2005 (4) GLT 348 : 2004 Legal Eagle (GAU) 410. (ii) Dayal Das v. State of Assam and others, 2002 (2) GLT 109 : 2001 Legal Eagle (GAU) 220. [7] Per contra, Mr. S. Suresh, the learned Additional Solicitor-General of India appearing for the respondents submitted that the transfer order was issued on 29.9.2021, followed with the relieving order on 30.9.2021. The petitioner submitted a representation on 30.9.2021 and the writ petition was filed on 1.10.2021 without giving any breathing time to the respondent authorities to pass orders on the representation dated 30.9.2021. Hence, the petitioner cannot complain that the respondent authorities have not considered the representation of the petitioner dated 30.9.2021. [8] Learned ASGI further submitted that the petitioner is an Assistant Commandant and not an ordinary police constable and that the transfer order was issued not only to the petitioner, but also five other officers, who have not challenged the impugned transfer order. Learned ASGI would also submit that being an Assistant Commandant, the petitioner should obey the order of his higher officials, which was made on an administrative ground. [9] Learned ASGI then submitted that since the petitioner’s appointment is transferable and he had also given an undertaking at the time of his initial appointment, the petitioner cannot now question the impugned transfer order and firstly, he should obey the transfer order. [10] According to learned ASGI, the CCS Rules not applicable to the ' petitioner, as the petitioner is serving in the Armed Force. Since the impugned transfer order was passed on an administrative ground, the petitioner has no right to challenge the same by way of writ petition and in such matters, the Court should not interfere with the same. In support of his submissions, learned ASGI has placed reliance upon the following judgments: (i) Union of India and others v. H.N. Kirtana, (1989) 3 SCC 445 : 1989 Legal Eagle (SC) 335. (ii) Shilpi Bose and others v. State of Bihar and others, 1991 Supp (2) SCC 659 : 1990 Legal Eagle (SC) 700. In support of his submissions, learned ASGI has placed reliance upon the following judgments: (i) Union of India and others v. H.N. Kirtana, (1989) 3 SCC 445 : 1989 Legal Eagle (SC) 335. (ii) Shilpi Bose and others v. State of Bihar and others, 1991 Supp (2) SCC 659 : 1990 Legal Eagle (SC) 700. (iii) Union of India and others v. S.L.Abbas, (1993) 4 SCC 357 : 1993 Legal Eagle (SC) 412. (iv) National Hydroelectric Power Corporation Limited v. Shri Bhagwan, (2001) 8 SCC 574 : 2001 Legal Eagle (SC) 1175, State of U.P. and others v. Gobardhan Lal, (2004) 11 SCC 402 : 2004 Legal Eagle (SC) 303. (v) Major Genera J.K.Bansal v. Union of India and others, (2005) 7 SCC 227 : 2005 Legal Eagle (SC) 630. (vi) Rajendra Singh and others v. State of Uttar Pradesh, (2009) 15 SCC 178 : 2009 Legal Eagle (SC) 1137. (vii) State of Haryana and others v. Kashmir Singh and another, (2010) 13 SCC 306 : 2010 Legal Eagle (SC) 780. (viii) Kendra Vidyalaya Sangathan v. Damodar Prasad Pandey, (2004) 12 SCC 299 : 2004 Legal Eagle (SC) 834. (ix) S.C. Saxena v. Union of India, (2006) 9 SCC 583 : 2006 Legal Eagle (SC) 123. [11] This Court considered the submissions made by learned counsel appearing on either side and also perused the material available on record. [12] The grievance of the petitioner is that the impugned transfer order is not in terms with the Standing Order, which stipulates that each posting should be of three years tenure. The further grievance of the petitioner is that as per Clause 2 (xxvi) of the Standing Order, all transferees whose transfers are ordered by Dte. including promotion should be relieved within 20 days from the date of issue of the transfer order. However, in the instant case, the respondent authorities have failed to follow the Standing Order and therefore, the impugned transfer order is liable to be quashed. [13] The admitted case of both sides is that the petitioner was initially appointed as Assistant Commandant in CRPF in the year 2014 and after successfully completed his basic training in the Academy at Gurgaon in February, 2015, the petitioner was posted at 75 Bn. J&K where he served from March, 2015 to October, 2018 and thereafter, he was posted at 69 Bn. Mantripukhri, Imphal since 22.10.2018. J&K where he served from March, 2015 to October, 2018 and thereafter, he was posted at 69 Bn. Mantripukhri, Imphal since 22.10.2018. [14] It appears that by the impugned transfer order, the petitioner along with five other Assistant Commandants were transferred on the ground of filling up of the vacancy of SOZ units and the said decision was taken at the Bastar Task Force meeting held on 28.9.2021 at the Directorate General under the Chairmanship of IG (Ops) and the IG (Ops) has desired to fill up the vacancies of SOZ units at Zonal level. Accordingly, as approved by the competent authority, the third respondent issued the impugned order. [15] As rightly argued by learned ASGI, the impugned transfer order was issued purely on an administrative ground i.e. to fill up the vacancy of SOZ units and the impugned transfer order was not issued by violating the transfer policy or the applicable Standing Order. [16] At this juncture, by placing reliance upon the decisions of the Gauhati High Court in the cases of Prasanna Kumar Nath and Dayal Das (supra), learned senior counsel for the petitioner submitted that Clause 2 of the Standing Order says each posting should be of three years period and that the petitioner’s posting comes within the category of J&K/NE. However, the period of the petitioner’s posting at 69 Bn. has not completed three years and within the said period, the petitioner was continuously out from Manipur for 8 months from April, 2019 to November, 2019 for the Coys commitment viz. NRC duty (Assam), West Bengal Parliamentary Election Duty-2019 and Law and Order Duty, Pulwama, J&K respectively and that the petitioner has availed only two years and three months at his home posting at 69 Bn. Therefore, the petitioner is entitled to retain in the home posting at least for the remaining period. [17] In Prasanna Kumar Nath (supra), the Gauhati High Court held as under: “13. The note was endorsed to the Chief Minister on 29.7.2004 and the Chief Minister on the same very date approved the same without assigning any reason. Such approval assigned by the Chief Minister directing the Commissioner of the departmental to proceed in the matter, does not indicate any reason for the same which is against the own guidelines framed by the State Government and implementation of which has been emphasized time and again. Such approval assigned by the Chief Minister directing the Commissioner of the departmental to proceed in the matter, does not indicate any reason for the same which is against the own guidelines framed by the State Government and implementation of which has been emphasized time and again. As per the said guidelines, laid down by Office Memorandums dated 4.2.2002 and 22.5.2002 (Annexure-9 and 10 to the writ petition), whenever public interest demands that an officer should be transferred from his place of posting even before completion of three years in the place, proper justification and ground may be recorded in writing for the transfer. In the Office Memorandum dated 4.2.2002 while reiterating the guidelines laid down in earlier office Memorandum dated 19.9.1992, the decision of this Court in the case of Dayal Das v. State of Assam and others passed in WP(C) No. 5216/2001 directing compliance of the guidelines has also been referred to. By the Office Memorandum dated 22.5.2002 strict compliance of the earlier guidelines has been emphasized and direction has been issued not to make any exception under any circumstances. 14. In reference to the aforesaid Office Memorandum, learned counsel for the respondent No. 5 argued that they are only directory and not mandatory. There is no dispute in respect of the same. However, the question arises as to what for such guidelines are framed. Is it only to violate the same and then to say that those guidelines are not mandatory. Guidelines are always guidelines and not like statutory rules. However, the State Government itself framing the guidelines are bound to act within the parameters of the said guidelines with the justified exception here and there. 16. It is in the above context the Apex Court in the case of Tarlochan Dev Sharna v. State of Punjab and others as reported in (2001) 6 SCC 260 : 2001 Legal Eagle (SC) 905 made the following observations:- “In the system of Indian democratic governance as contemplated by the Constitution, senior officers occupying key positions such as Secretaries are not supposed to mortgage their own discretion volition and decision making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct Rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbecoming of the government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior. In Anirudhsinhji Jadeja this Court has held that a statutory authority vested with Jurisdiction must exercise it according to its won discretion; discretion exercised under the direction or instruction of some higher authority is failure to exercise discretion altogether. Observations of this Court in Purtabpore C. Ltd. are instructive and apposite. Executive Officers may in exercise of their statutory discretions take into account considerations of public policy and in some context, policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless explicit statutory provision has been made for instructions; by a superior to bind them.” [18] In Dayal Das (supra), the Gauhati High Court held thus: “4. On a perusal of the records produced by Mr. B.P. Bora, learned senior Govt. Advocate before this Court, I find that the Minister, Soil Conservation Department has on 20.7.2021 instructed the Commissioner and Secretary, Soil Conservation Department to transfer the Divisonal Officers and poost them at the places as mentioned in his said instruction. Against SI. No.7 of the said instructions he has directed that respondent No.5 who is in south Bank Soil Conservation Division, Guwahati be posted in Kohora Soil Conservation Division, Kohora and the petitioner who is posted as Divisional Officer, Kohora Soil Conservation Division, Kohora be posted in South Bank Soil Conservation Division, Guwahati. The Commissioner and Secretary, Soil Conservation Department, however, has suggested some Changes to the Minister and one of the changes suggested by him is that the petitioner be posted as Divisional Officer Eastern Assam Soil Conservation Division, Dibrugarh and this suggestion has been approved by the Minister on 24.7.2001. Thereafter the impugned notification has been issued on 27.7.2021. The Commissioner and Secretary, Soil Conservation Department, however, has suggested some Changes to the Minister and one of the changes suggested by him is that the petitioner be posted as Divisional Officer Eastern Assam Soil Conservation Division, Dibrugarh and this suggestion has been approved by the Minister on 24.7.2001. Thereafter the impugned notification has been issued on 27.7.2021. The records produced before this Court show that no reasons whatsoever have been recorded justifying the transfer of the petitioner from Kohora soil Conservation Division, Kohora or from Karbi Anglong Autonomous Council where he had not completed the period of 3 years. The records produced before the court also do not indicate that the aforesaid transfer of the petitioner before completion of three years service from his place of posting was placed for approval of the Chief Minister. The guidelines for transfer of officers in the office memorandum dated 19th Sept „92 may not have statutory force, but are checks against arbitrary transfers and deviations from the said guidelines may result in an arbitrary transfers. For these reasons, I am of the view that the transfer of the petitioner by the impugned notification dated 27.7.2001 should not be given effect to till the justification of his transfer with grounds are recorded in writing and these are polaced before the Chief Minister for approval. Since by the impugned notification dated 27th July, 2001 a chain of transfers has been made and any interim order passed by this Court would affect the chain, in any considered opinion, this Court should not keep the matter pending in Court by passing an interim order of stay and should dispose of the writ petition with appropriate directions as indicated above.” [19] It is the say of the petitioner that he should be given 20 days time for joining, however, in the case on hand, he has been given only three days, which is in violation of the Standing Order. The aforesaid arguments of learned counsel for the petitioner cannot be countenanced for the reason that the terms of the Standing Order will be strictly followed only during the general transfer made and not on the transfer made on an administrative ground and due to exigency. The aforesaid arguments of learned counsel for the petitioner cannot be countenanced for the reason that the terms of the Standing Order will be strictly followed only during the general transfer made and not on the transfer made on an administrative ground and due to exigency. [20] However, learned ASGI by placing reliance upon the decisions of the Hon’ble Supreme Court cited supra submitted that transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal. It is also the say of learned ASGI that since the petitioner hold transferable post, he is liable to be transferred from one place to another. Learned ASGI further submitted that the transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary to in public interest and efficiency in public administration. [21] Though nearly ten decisions have been cited by learned ASG, in Support or his submissions, since the law in this regard is well settled, this Court is inclined to quote only few decisions as under: 1. In H.N. Kirtana (supra), the Hon’ble Supreme Court held: “5. After hearing learned counsel for the parties we do not find any valid justification for the High Court for entertaining a writ petition against the order of transfer made against an employee of the Central Government holding transferable post. Further there was no_ valid justification for issuing injunction order against the Central Government. The respondent being a Central Government employee held a transferable post and he was liable to be transferred from one place to the other in the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondent's transfer.” 2. Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of mala fides. There was no good ground for interfering with the respondent's transfer.” 2. In Shilpi Bose (supra), the Hon’ble Supreme Court held: “3. After hearing learned counsel for the parties and having considered the facts and circumstances of the case, we are of the opinion that the High Court committed serious error in interfering with the transfer orders of Primary School teachers. The High Court held that the District Education Establishment Committee had no jurisdiction to transfer the Primary School teachers on their request. We find no justification for this conclusion. There is no dispute that the District Education Establishment Committee is competent to transfer Primary School teachers from one place to the other but merely because such transfers were made on the request of teachers, the Committee is not divested of its jurisdiction. The Director of the Primary Education had issued directions that lady teachers posted in distant areas or rural areas may be accommodated to the place of their request to avoid hardship to them. These directions are reasonable, and the District Education Establishment Committee followed the same principles in transferring the appellants on their requests to avoid hardship which was being caused to them. The respondents challenged the validity of the transfers before the High Court on another ground also that Primary School teachers posted in the urban areas were not liable to be transferred to rural areas though the State Government had issued circular on March 30, 1984 permitting transfers from urban areas to rural areas. The High Court did not interfere with the order of the transfer on this ground instead it held that the transfer orders were without jurisdiction as the same had been made on the appellants’ request with a view to accommodate them. We fail to appreciate the reasoning recorded by the High Court. If the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the court merely because the transfer orders were passed on the request of the employees concerned. We fail to appreciate the reasoning recorded by the High Court. If the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the court merely because the transfer orders were passed on the request of the employees concerned. The respondents have continued to be posted at their respective places for the last several years, they have no vested right to remain posted at one place. Since they hold transferable posts they are liable to be transferred from one place to the other. The transfer orders had been issued by the competent authority which did not violate any mandatory rule, therefore the High Court had no jurisdiction to interfere with the transfer orders. 4. In our opinion, the courts should not interfere with a transfer order which is 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. 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. The High Court overlooked these aspects in interfering with the transfer orders.” 3. In Shri Bagwan (supra), the Hon’ble Supreme Court held: “5. On a careful consideration of the submissions of the learned counsel on either side and the relevant Rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. In Shri Bagwan (supra), the Hon’ble Supreme Court held: “5. On a careful consideration of the submissions of the learned counsel on either side and the relevant Rules to which our attention has been invited to, we are of the view that the High Court was not justified in interfering with the impugned orders of transfer. It is by now well settled and often reiterated by this Court that no government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory Provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned. On the facts and circumstances of the cases before us, we are also unable to agree with the learned counsel for the respondents that Rule 4.1.1 of the Seniority Rules interdicts any transfer of the employees from one office or project or unit to any one of the other as long as the seniority of such an employee is protected based on the length of service with reference to the date of promotion or appointment to the grade concerned irrespective of the date of transfer. We also consider it to be a mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. We also consider it to be a mere submission in vain, the one urged on the basis of alleged adverse consequences detrimental to their seniority resulting from such transfer. In the facts of the present cases, at any rate, no such result is bound to occur since the Project undertaken to which the respondents have been transferred is itself a new one and, therefore, we see no rhyme or reason in the alleged grievance.” [22] It also appears that after the receipt of the transfer order, on 30.9.2021, the petitioner submitted a representation to the third respondent through the fifth respondent requesting for one year extension of tenure at 69 Bn. on compassionate ground. [23] In his representation, the petitioner stated that due to the loss of three elder brothers, his mother was suffering from post-traumatic psychiatric disorder and she is under regular medical treatment and it has become a family obligation for the petitioner to take care of his ailing mother and to support her emotionally by his physical presence. According to the petitioner, the said representation has not been considered by the concerned respondent so far. [24] It is pertinent to note that the representation of the petitioner is dated 30.9.2021 and the writ petition came to be filed on 1.10.2021 without even giving 24 hours time to the respondent authorities to pass orders on the representation. Giving representation a day before the filing of the writ petition and thereafter filing the writ petition on the next day alleging that the representation was not considered by the authority so far is highly unacceptable. The petitioner ought to have waited for a considerable time and then approached this Court for appropriate relief. Anyway that is not an issue now and the only question to be gone into in the writ petition is whether the impugned transfer order is vitiated by the terms of the Standing Order. [25] As stated supra, due to exigency and on an administrative ground i.e. to fill up the vacancies of SOZ units, the impugned transfer order was made. Therefore, there is no violation in the impugned transfer orders. Moreover, not only the petitioner was transferred, but along with the petitioner five other similar Assistant Commandants from different Battalions were transferred and the other five Assistant Commandants have not challenged the impugned transfer order, which fact was also admitted by the petitioner. Therefore, there is no violation in the impugned transfer orders. Moreover, not only the petitioner was transferred, but along with the petitioner five other similar Assistant Commandants from different Battalions were transferred and the other five Assistant Commandants have not challenged the impugned transfer order, which fact was also admitted by the petitioner. In such circumstances, in the public interest and on an administrative ground, the impugned transfer order came to be passed by the third respondent and the petitioner cannot question the same by way of this writ petition. [26] It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in terms of appointment, but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. [27] It is apposite to mention that whenever public interest demands that an officer should be transferred from his place of posting even before completion of three years in the place, proper justification and ground may be recorded in writing for the transfer. In the instant Case, as stated supra, the respondent authorities have given proper justification and the ground on which the transfer order was issued. In view of the proper justification having been given by the respondent authorities, this Court finds no infirmity in the impugned transfer order. [28] It is reiterated that the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer order is made in violation of any mandatory statutory rules or on the ground of mala fide or lack of authority. A Government servant holding a transferable post has no vested right to remain posted at one place or other, he is liable to be transferred from one place to another. [29] It is also well settled that who should be transferred and where is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fide or is made in violation of any statutory provisions, the Court cannot interfere with it. [29] It is also well settled that who should be transferred and where is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fide or is made in violation of any statutory provisions, the Court cannot interfere with it. [30] Though the scope of interference by this Court in regards to members of Armed Forces is far more limited and narrow, considering the present Covid situation, it would be appropriate to give some more time to the petitioner to report duty at the transferred place. [31] In the result, (a) the writ petition is dismissed. (b) The petitioner is directed to report at the transferred place within a period of four weeks from the date of receipt of a copy of this order. (c) If the petitioner failed to join duty at the transferred place within the stipulated period of time, the respondent authorities are at liberty to proceed with the matter in accordance with law. No costs. [34] Registry is directed to issue copy of this order to both the parties through their whatsapp/e-mail on 28.10.2021.