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2021 DIGILAW 85 (MP)

Rahul Tripathi v. Union of India

2021-02-01

PRAKASH SHRIVASTAVA

body2021
ORDER : Prakash Shrivastava, J. Heard with consent through video conferencing. 1. By this petition, the petitioner who is working in CISF as Inspector/Executive has challenged the order dated 18/3/2020 Annexure P/3 whereby the inter sector transfer of the petitioner from Indore Airport East Zone to Central Zone was ordered. The petitioner has also challenged the order dated 23/3/2020 concerning the inter sector transfer and posting the petitioner from Indore Airport unit to BSP Bhilai Unit. The petitioner is also aggrieved with the communication dated 5th June, 2020 whereby the competent authority has approved the relieving of the petitioner to his new place of posting i.e. CISF Unit BSP Bhilai immediately. The petitioner has also challenged the movement order dated 6/6/2020 whereby the petitioner has been directed to comply with the transfer order for joining at BSP Bhilai. 2. Learned counsel for petitioner submits that the order of transfer was deferred for implementation vide order dated 20th May, 2020 Annexure P/9 upto 31/3/2021 considering the Covid effect, but in the mean while the petitioner has been relieved. He further submits that the petitioner is now entitled for home sector posting, but instead of considering the said claim of the petitioner he has been transferred to Bhilai. He also submits that the petitioner's wife is also working with the respondents, therefore, in terms of the policy the husband wife are required to be posted in the same place. 3. Learned counsel for respondents opposing the prayer has submitted that the petitioner has already completed his tenure for the Airport posting and he is not entitled for the home sector posting and earlier he was transferred to Shimla, but considering his representation he was sent back to Indore and he has completed a very long tenure at Indore and the posting in CISF is a sensitive posting, and, therefore, the petitioner is required to comply with the orders of the authorities which have been passed on the administrative ground. He further submits that the order of transfer have been passed strictly in accordance with the transfer policy and that the wife of the petitioner has refused for her posting at Bhilai. 4. I have heard the learned counsel for parties and perused the record. 5. The impugned order of transfer Annexure P/3 is a general order of transfer whereby several such persons have been transferred to different sectors. 4. I have heard the learned counsel for parties and perused the record. 5. The impugned order of transfer Annexure P/3 is a general order of transfer whereby several such persons have been transferred to different sectors. Same is the position in respect of the posting order dated 23/3/2020 whereby the petitioner has been posted at BSP, Bhilai. These orders have been passed on the administrative ground and the competence of the persons passing these orders is not in issue. The record reflects that out of his total tenure of about 16 years the petitioner has remained at Indore for about six years i.e. he has completed almost 1/3rd of his tenure at Indore. The record reflects that the petitioner was posted at ASG Indore (West Zone) with effect from 1/9/2013 to 15/4/2018 and after completion of four years at Indore the petitioner was posted from ASG Indore to ASG Shimla on regular transfer vide order dated 19/3/2018 and was relieved by order dated 15/4/2018. The petitioner while posted at Shimla had made a request for re-posting at ASG Indore on medical ground of his father. The prayer was considered on compassionate ground and he was reposted at Indore, therefore, as and when possible petitioner's personal difficulty has been considered and that he has already spent substantial period at Indore. 6. The record reflects that the petitioner's wife is working as Lady Constable and presently posted at Dehradun. After the petitioner's order of transfer to Central Sector the willingness of the wife of the petitioner was also asked, but vide communication dated 15/5/2020 Annexure R/15 she had clearly expressed that she was not willing to go to Central Sector. 7. The reply of the respondents further reveal that the posting at Airport Indore is a sensitive posting and there were allegations against the petitioner in respect of involvement in undesirable activities. The transfer of the petitioner is also in accordance with the Circular No. 22/2017 dated 25/9/2017 which itself provides that the transfer guidelines would only serve as broad parameters for posting of the personnel, but the final decision will rest with the competent authorities in CISF and will be governed by the operational and administrative necessities in the post. The transfer of the petitioner is also in accordance with the Circular No. 22/2017 dated 25/9/2017 which itself provides that the transfer guidelines would only serve as broad parameters for posting of the personnel, but the final decision will rest with the competent authorities in CISF and will be governed by the operational and administrative necessities in the post. As per Para 38(a) of this Circular, posting of husband and wife on the same place can be considered subject to availability of vacancies and without disturbing the tenure of other personnel and keeping in view the other administrative needs and operational needs and public interest. Hence, the petitioner does not have any absolute right having posting of husband and wife together at one place. Similarly the Circular CISFHQRS No. 52/2011 dated 25/11/2011 Clause 6(a) makes it clear that a personnel will have maximum of 12 years tenure for posting at Airports, therefore, the petitioner cannot claim posting at Indore Airport for all times to come. Para 6(d) of the Circular makes it clear that the personnel can be shifted from their place of posting irrespective of tenure on administrative, operational or disciplinary grounds. 8. Since the petitioner is working in CISF and posted in sensitive unit, therefore, the scope of interference is very limited and it is for the competent authorities to look into the administrative needs and exigencies. The impugned order of transfer has not been shown to have been passed in violation of any statutory provision nor any mala-fides have been show and established. 9. The Supreme Court in the matter of Union of India (UOI) & Ors. Vs. S.L. Abbas (1993) 4 SCC 357 has held as under:- "7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated of by malafides 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. 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 employees a legally enforceable right. 8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. This is evident from a perusal of Article 323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply" equally to the Tribunal created under Article 323-A. (We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction.) The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer, It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority). 9. Shri Goswami, learned Counsel for the respondent relies upon the decision of this Court in Bank of India v. Jagjit Singh Mehta rendered by a Bench of which one of us (J.S. Verma, J.) was a member. On a perusal of the judgment, we do not think it supports the respondent in any manner. It is observed therein: There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incident of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places.--- No doubt the guidelines requires the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees. (emphasis added) 10. The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondents' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. (emphasis added) 10. The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondents' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the court or the tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be characterised as mala fide for that reason. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions. 11. For the above reasons, the appeal is allowed. The judgment under appeal is set aside. There shall be no order as to costs." 10. The division bench of this Court also in the matter of Himmat Singh Vs. State of M.P. & Ors. (2011) 6 SLR 106 has held as under:- "4. Admittedly, the impugned order has been passed on the Petitioner's representation and, therefore, he has only himself to blame. The submissions of the Petitioner against the impugned order only relate to violation of the transfer policy which alone cannot be a ground for interference with the order of transfer. It is well settled in law that transfer is an incidence of service. Which employee should be posted where, is a matter for the appropriate authority to decide until and unless the transfer is vitiated by malafide or is made in violation of any statutory provisions, the Court cannot interfere with the order of transfer. [See: Union of India and Ors. v. S.L. Abbas (1993) 4 SCC 357 ]. Similarly in Public Services Tribunal Bar Association v. State of UP. and Anr. (2003) 4 SCC 104 , once again dealing with the scope of judicial review in the matter of transfer, Supreme Court reiterated that transfer is an incidence of service and normally should not be interfered with by the Court. If any administrative guidelines regarding transfer of an employee are violated, at best the same confers the right on the employee to approach the higher authorities for redressal of their grievance. Transfer made contrary to policy can also not be interfered with." 11. If any administrative guidelines regarding transfer of an employee are violated, at best the same confers the right on the employee to approach the higher authorities for redressal of their grievance. Transfer made contrary to policy can also not be interfered with." 11. Having regard to the aforesaid factual and legal position, I am of the opinion that no case for interference in the impugned order of transfer is made out. The petition is accordingly dismissed.