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2021 DIGILAW 62 (MAN)

L. Imocha Singh v. Union of India

2021-10-28

M.V.MURALIDARAN

body2021
JUDGMENT This writ petition has been filed by the petitioner to set aside the Signal bearing No.T.IX-46(SCT)/2019-CZ-ADM-1, dated 13.2.2019, the Signal bearing No.T-IX-1(SCT)/2019-CS-Adm-1, dated 28.2.2019 in respect of the petitioner and the impugned order bearing No.T-IX-1(SCT)/2019-CS-Adm-1, dated 7.6.2019 and to direct the respondents to permit the petitioner to complete his tenure in 109 Bn under the Central Zone in view of Para No.4(vii) and (ix) of the Standing Order dated 07/2015. 2. The case of the petitioner is that he was presently posted to 87 Bn CRPF at Jiribam and attached to the Composite Hospital, CRPF at Imphal and has been performing his duties when the respondent authorities issued the Signal dated 13.2.2019, thereby allotting Inter Zonal Transfer of 1039 personnel of various Zonal Units to Central Zone for further posting. Before issuance of the Signal dated 13.2.2019, the petitioner submitted his choice for posting at 109 Bn or 143 Bn, which was reflected in the Signal dated 13.2.2019. After issuance of the Signal dated 13.2.2019, the petitioner submitted a representation dated 21.2.2019 to the Inspector of Police requesting for posting to 109 Bn on medical ground of his ailing wife. The said representation was not favourably considered and the petitioner was transferred and posted to 162 Bn at J & K vide the Signal dated 28.2.2019. Aggrieved by the Signal dated 28.2.2019, the petitioner filed W.P.(C) No.385 of 2019 for setting aside the Signals dated 13.2.2019 and 28.2.2019 respectively. The said writ petition was disposed of on 15.5.2019, thereby directing the respondents to consider and dispose of the representation dated 21.1.2019 and in the said writ petition it was ordered that till the representation is considered by the respondent authorities the Signal dated 28.2.2019 shall remain suspended in so far as the petitioner is concerned. Thereafter, the petitioner was issued with the impugned Signal dated 7.6.2019 accommodating him to 109 Bn for a period of one year but not allowing to complete his tenure as prescribed in Para No.4(viii) and (ix) of the Standing Order dated 07/2015 illegally and arbitrarily. Challenging the same, the petitioner has filed the present writ petition. 3. The Respondents filed affidavit-in-opposition stating that while the petitioner was posted at 87 Bn, he was allotted on transfer to Central Zone on 31.1.2019 and subsequently, he was sub-allotted to Central Sector vide order dated 13.2.2019 for further posting. Challenging the same, the petitioner has filed the present writ petition. 3. The Respondents filed affidavit-in-opposition stating that while the petitioner was posted at 87 Bn, he was allotted on transfer to Central Zone on 31.1.2019 and subsequently, he was sub-allotted to Central Sector vide order dated 13.2.2019 for further posting. Accordingly, the petitioner has been transferred from 87 Bn to 162 Bn and that on being transferred to 162 Bn, the petitioner filed W.P.(C) No.385 of 2019. In consideration of the direction issued in the said writ petition and taking note of the illness of his wife, an order for transfer of the petitioner from 87 Bn to 109 Bn for one year on compassionate ground was issued vide order dated 7.6.2019. Accordingly, the petitioner reported duty at 109 Bn on 9.11.2019 and taken into strength of the Unit on the same date. But the petitioner has failed to comply with the later part of the same order wherein he has to be transferred out after completion of one year. Hence, the plea of the petitioner to stay in 109 Bn beyond his retention period i.e., one year after 8.11.2019 is against the provisions contained in the Standing Order dated 07/2015 and thus, prayed for dismissal of the writ petition. 4. Heard Mr.K.Roshan, learned counsel for the petitioner and Mr. S. Vijayanand Sharma, the learned Central Government Counsel, appearing for the respondents. 5. Assailing the impugned transfer, the learned counsel for the petitioner submitted that as per the Standing Order, a person can seve in a particular Range/Sector for maximum 10 years and in a particular Zone for 14 years and that it is compulsory for a NGO to serve in a Zone other than his Home Zone for a period of 14 years at least once in his full service. Thus, the petitioner has to serve under the North East Zone for a period of 14 years, however, the inter-zonal transfer dated 13.2.2019 was issued allotting the petitioner to the Central Zone and Signal dated 28.2.2019 was issued transferring him to 162 Bn located at J & K. Therefore, the transfer and posting of the petitioner to Central Zone is in violation of Para No.4(ix) of the Standing Order dated 07/2015. 6. 6. The learned counsel for the petitioner further submitted that the petitioner was given relaxation for one year only and he was given an offer which he cannot refuse by issuing the impugned order dated 7.6.2019, but the respondents in violation and without proper application of mind have not considered the case of the petitioner for allowing to complete his tenure in 109 Bn under the Central Sector. In fact the respondents are aware of the fact that the petitioner has not completed his zonal tenure under the North East Zone, but was subjected to zonal transfer illegally and in violation of the Standing Order. 7. The learned counsel next submitted that since the petitioner has been transferred from North East Zone to Central Zone without allowing to complete his tenure in the North East Zone, he should be allowed to complete his tenure in 109 Bn under the Central Zone. 8. Per contra, the learned Central Government Counsel contended that after considering the illness of the petitioner’s wife and as per the provisions of the Standing Order, the order dated 7.6.2019 transferring the petitioner from 87 Bn to 109 Bn for one year on compassionate ground with the direction to be relieved to 162 Bn after completion of one year as per the original transfer order dated 28.2.2019 was issued. According to the learned counsel, 109 Bn comes under Central Zone and as such the petitioner was accommodated in 109 Bn for a period of one year in accordance to the rules. He would submit that since the petitioner accepted the said order dated 7.6.2019 and joined in 109 Bn and he never challenged the said order earlier and only after the completion of the period of one year of posting as granted by the said order, he has filed the present writ petition, the same is not maintainable. 9. The learned counsel for the respondents further submitted that after completion of the said tenure of one year, the petitioner has been relieved from 109 Bn and he has to report to 162 Bn and failure of which, disciplinary action has to be taken up against the petitioner. 10. 9. The learned counsel for the respondents further submitted that after completion of the said tenure of one year, the petitioner has been relieved from 109 Bn and he has to report to 162 Bn and failure of which, disciplinary action has to be taken up against the petitioner. 10. Placing reliance upon the decisions of the Hon’ble Supreme Court in the cases of Shilpi Bose and others v. State of Bihar and others, AIR 1991 SC 532 : 1990 Legal Eagle (SC) 700 and S.C. Saxena v. Union of India, (2006) 9 SCC 583 : 2006 Legal Eagle (SC) 123, the learned counsel for the respondents submitted that the Court 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 malafide and that a Government servant should first join the place where he is transferred. 11. This Court considered the submissions raised by the learned counsel for the parties and also perused the materials available on record. 12. The grievance of the petitioner is that he was given relaxation for one year only and he was also given an offer which he cannot refuse by issuing the order dated 7.6.2019, but the respondent authorities in violation and without proper application of mind have not considered the case of the petitioner for allowing him to complete his tenure in 109 Bn under the Central Sector as per the Para 4(viii) and (ix) of the Standing Order. Further grievance of the petitioner is that though the respondent authorities are aware that the petitioner has not completed his zonal tenure under the North East Zone, he was subjected to zonal transfer illegally and in violation of the Para 4(ix) of the Standing Order. 13. On the other hand, it is the say of the respondents that after considering the grievance expressed by the petitioner qua his wife’s illness and as per the provisions of the Standing Order, the petitioner was issued the transfer order dated 7.6.2019 transferring him from 87 Bn to 109B Bn for one year with a direction to be relieved to 162 Bn after the completion of one year as per the original transfer order dated 28.2.2019. 14. 14. It is apposite to mention at this juncture that challenging the order dated 28.2.2019, the petitioner has filed W.P.(C) No.385 of 2019 before this Court and by the order dated 15.5.2019, this Court directed the respondent No.3 therein to consider and dispose of the petitioner’s representation dated 21.2.2019 within a period of one month from the date of receipt of a copy of the order and till the representation is considered by the said respondent, the Signal dated 28.2.2019 shall remain suspended in so far as the transfer of the petitioner to 162 Bn Central Zone is concerned. 15. Pursuant to the order of this Court dated 15.5.2019, the Inspector General of Police, considered the matter leniently and sympathetically and issued the order dated 7.6.2019. The operative portion of the order reads thus: “In view of illness of his wife and under the provision of para- 4(xvi) of S/O 07/2015, I take a lenient view and transfer him from 87 Bn to 109 Bn for one year on compassionate ground. On completion of one year tenure in 109 Bn, CRPF above individual may be relieved on transfer to 162 Bn, CRPF as ordered during SCT-2019.” 16. Admittedly, the petitioner accepted the said order dated 7.6.2019 and joined 109 Bn and he never challenged the said order, but challenged the above order only after the completion of the period of one year of posting as granted by the said order. Resultantly, after completion of the said tenure of one year, the petitioner has to be relieved from 109 Bn and he has to report at 162 Bn as per the initial transfer order. Thus, it is clear that the petitioner had enjoyed the fruits of the order and only after completion of the one year period, in order to avoid reporting duty at 162 Bn, he has filed the writ petition. Such approach adopted by the petitioner is unacceptable. Had the petitioner objected and appealed against the order dated 7.9.2019, which granted him posting at 109 Bn for a period of one year when the said order was issued, there could have been some merit in his case. Such approach adopted by the petitioner is unacceptable. Had the petitioner objected and appealed against the order dated 7.9.2019, which granted him posting at 109 Bn for a period of one year when the said order was issued, there could have been some merit in his case. On the contrary, after duly enjoyed his posting at 109 Bn, the petitioner cannot come and question the transfer order dated 7.9.2019 along with the earlier orders dated 13.2.2019 and 28.2.2019 and in fact, the order dated 28.2.2019 was already challenged by the petitioner in W.P.(C) No.385 of 2019. Thus, it is clear that the petitioner has not approached this Court with clean hands. 17. There is no merit in the contentions put forth by the petitioner that as per the stipulations laid down in Para 4(ix) of the Standing Order, he has to serve under the North East Zone for the period of 14 years as prescribed thereto, however, inter-zonal transfer dated 13.2.2019 was issued allotting the petitioner to the Central Zone and Signal dated 28.2.2019 transferring him to 162 Bn located at J & K. 18. Section 4(ix) of the Standing Order lays down the maximum tenure in a particular Sector/Zone during the entire service period. However, the petitioner contended that it should be a continuous tenure. The said contention cannot be accepted as in Sector such as Srinagar Sector, which is a difficult place a personnel cannot be continuously posted for 10 years. The contention of the petitioner that he has not completed his Sector/Zonal tenure as per the Standing Order has no merit since as per Para 4(ix) of the Standing Order, the Sector/Zone tenure of 10/14 years is not continuous as is evident from the own admission of the petitioner himself that he served 13 years in the Northern Zone. In the case on hand, as per the records, the petitioner has enjoyed 10 years of continuous Home posting, in addition to 3 years, 9 moths Home posting earlier, totally, a period of 14 years of Home posting out of his total service period of 18 years till date. 19. In the case on hand, as per the records, the petitioner has enjoyed 10 years of continuous Home posting, in addition to 3 years, 9 moths Home posting earlier, totally, a period of 14 years of Home posting out of his total service period of 18 years till date. 19. At this juncture, learned Central Government Counsel submitted that many personnel from Manipur waiting for a chance for Home posting and the person like the petitioner who has already availed 14 years of Home posting must be rotated to avoid grave injustice to the other CRPF personnel from the State of Manipur. This Court finds some force in the submission of the learned Central Government Counsel. 20. It is pertinent to note that as per the transfer policy framed under Standing Order dated 07/2015, the personnel is eligible for first peace station/static posting after completion of 8 years’ service (one tenure had field area) and for subsequent peace station/static after 8 years subsequent field service (one tenure hard field area). A person if posted in his home State, the same will not be counted as service rendered in hard field area and it will be treated as field/static as the case may be. The normal tenure in field station is of 4 years and for hard field area/SOZ, static and peace stations is 3 years. A person can serve in a particular range/sector for maximum 10 years and in a particular Zone for 14 years. It is compulsory for a personnel to serve in a Zone other than his Home Zone for a period of 14 years at least one in his full service. On completion of tenure, personnel must serve in other theatres for two tenures before considering him for induction in choice/home theatre. 21. As rightly argued by the learned Central Government Counsel that the order impugned dated 7.9.2019 stipulates that: (i) the Executive (NGO) must serve in other theatres for two tenures before considering him for induction in choose/home theatre; (ii) the transfer of the petitioner from 87 Bn to 162 Bn ordered during SCT-2019 is in operational grounds in public interest, exigency of service and under the provisions of the transfer policy framed under Standing Order dated 07/2015; (iii) the petitioner has been given posting at 109 Bn for a period of one year under the provision of Para 4(xvi) of the Standing Order dated 07/2015. 22. It is well settled that only when an allegation of malafides or violation of the mandatory statutory rule is made out, the High Court should entertain a writ petition challenging the transfer order. Here, in the case on hand, the respondent authorities have acted bonafide as is evident from the materials produced by them, particularly the order impugned dated 07.9.2019. 23. 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. 24. In Saxena (supra), the Hon’ble Supreme Court observed that a Government servant should first join the place where he is transferred. After joining the transferred place, he may make a representation to the higher authority to ventilate his grievance. 25. 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. 25. 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. 26. 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. 27. 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. While order 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. 28. As stated supra, the transfer of the petitioner from 87 Bn to 162 Bn ordered during SCT-2019 is on operational grounds, in public interest, exigency of service and under the provisions of the transfer policy framed under Standing Order dated 07/2015 and while issuing the impugned transfer order, the respondent authorities have considered all the aspects and have also given proper justification for transferring the petitioner. This Court finds no infirmity in the transfer orders issued to the petitioner. There is no merit in the writ petition and accordingly, the same is liable to be dismissed. 29. In the result, the writ petition is dismissed. No costs. 30. Registry is directed to issue copy of this order to both the parties through their whatsapp/e-mail.