Research › Search › Judgment

Manipur High Court · body

2022 DIGILAW 103 (MAN)

Ngangbam Bijayani Devi v. Union of India

2022-06-07

M.V.MURALIDARAN

body2022
JUDGMENT 1. The petitioner has filed this writ petition seeking issuance of a writ of certiorari to quash and set aside the impugned transfer Signal bearing No.T.IX.14/2022-NEZ-DA(Min), dated 4.1.2022 and 6.1.2022 and direct the respondents to allow the petitioner to complete her tenure period at Composite Hospital, Group Centre, Langjing, Imphal; coupled with the interim prayer for staying/suspending the said impugned order dated 6.1.2022 and its rejection signal dated 28.1.2022 till the disposal of the petition. 2. The petitioner has earlier filed W.P. (C) No.24 of 2022 challenging the transfer order dated 6.1.2022. The entire factual gamut has been narrated while disposing of the said writ petition. As the order dated 28.1.2022, now under challenged, is passed as a consequence of the order dated 18.1.2022 passed in W.P. (C) No.24 of 2022, to avoid repetition, the said order which narrated all the facts in detail is in toto extracted herein under: [1] Heard Mr. M. Devananda, learned counsel appearing for the petitioner and BR. Sharma, learned CGSC appearing for the respondents. The present writ petition has been filed assailing the impugned transfer order dated 06.01.2022 by which the petitioner have been transferred from Composite Hospital, Imphal, Manipur to Composite Hospital, B.B.S.R, Orissa. [2] The case of the petitioner is that on completion of her normal tenure in her earlier posting at Group Centre, CRPF, Pinjore, Haryana, the petitioner was transferred to Composite Hospital, CRPF, Imphal by an order dated 30.07.2021 and she was relieved on transfer from Group Centre, Pinjore to CH, Imphal, w.e.f., 24.11.2021 by an order dated 17.11.2021. Thereafter, on her joining to her new place of posting at Composite Hospital, Imphal, the authorities of CRPF issued an order dated 11.12.2021 taking the petitioner into the strength of the said Composite Hospital, Imphal, w.e.f. 10.12.2021. While the petitioner was serving at the Composite Hospital, Imphal, the Deputy Director (Med), CRPF sent a signal dated 03.01.2022 stating, inter-alia, that the husband of the petitioner filed a writ petition before the Hon'ble High Court of Punjab and Haryana against his transfer order and in the said writ petition, the High Court of Punjab and Haryana passed an order on 25.10.2021 to the effect that either the wife of the petitioner may be transferred to Orissa or the petitioner can be transferred to Imphal. [3] In view of the aforesaid order of the Hon'ble High Court, willingness of the petitioner for posting at Orissa State was sought for. In response to the aforesaid signal, the petitioner submitted her unwillingness for transfer at Orissa under the letter dated 04.01.2022. However, the DIG (Admn), NEZ sent a signal dated 04.01.2022 stating, inter-alia, that as per the Courts order dated 25.10.2021 passed by the High Court of Punjab and Haryana in CWP No. 21247 of 2021, filed by the husband of the petitioner, the petitioner may be transferred to Orissa and that her willingness for such transfer is not relevant. It has also been further submitted that as desire by the Cespol, NEZ, being Court matter and to avoid contempt, the petitioner may be posted to CH BBSR immediately and to confirm so that compliance may be submitted to the Court. [4] Pursuant to the aforesaid signal dated 04.01.2022, the Deputy Director, (Med), issued the impugned transfer order dated 06.01.2022, thereby effecting the transfer of the petitioner from CH, Imphal to CH BBSR, Orissa. It has been submitted by Mr. M. Devananda, learned counsel appearing for the petitioner that the petitioner has been transferred before even completing a period of 1 (one) month from her earlier transfer and that the only reason for effecting her transfer is that such transfer has been ordered by the Hon'ble High Court of Punjab and Haryana in its order dated 25.10.2021, passed in CWP No. 21247 of 2021. On perusal of the said order dated 25.10.2021, passed by the Hon'ble High Court of Punjab and Haryana, no order or direction has been given by the Hon'ble High Court for effecting such transfer of the petitioner. It has been submitted that the Hon'ble High Court has only recorded the submission advanced by the learned counsel for the petitioner and except for issuing notice of motion, the Hon'ble High Court has passed no other order. In view of the above, it has been submitted that the transfer of the petitioner has been effected by the authorities by misinterpreting the order of the Hon'ble High Court and without any application of mind. In view of the above, it has been submitted that the transfer of the petitioner has been effected by the authorities by misinterpreting the order of the Hon'ble High Court and without any application of mind. [5] It has also been submitted that under the standing order No. 09/2015 dated 22.12.2015 containing transfer policy for Para-Medical Staff of CRPF, is provided under Para 17 (xi) that whenever any transfer is ordered prematurely, i.e., prior to completion of normal tenure, reasons justifying premature transfer shall be mentioned in the transfer order. In the present case, no reason has been given by the authorities in the impugned transfer order except that the impugned transfer order has been issued in compliance with the order passed by the Hon'ble High Court of Punjab and Haryana and to avoid contempt of Court. Accordingly, the learned counsel prayed for quashing and setting aside the impugned transfer order as the same has been issued in a very arbitrary manner and without any application of mind. [6] Mr. BR. Sharma, learned CGSC appearing for the respondents draw the attention of this Court at Para 12 of the aforesaid Standing Order No. 09/2015 wherein, it has been provided that if any incumbent is aggrieved by the transfer order, it is open to the aggrieved person to submit a representation to the concerned authorities for addressing their grievances and the said representation should be submitted within a period of 20 (twenty) days. It has further been submitted by the learned counsel that in the present case, the petitioner has already submitted a representation against the impugned transfer order on 11.01.2022 and the said representation is still pending for consideration. In view of the above, the learned counsel submitted that the authorities should be given a chance to consider the said representation submitted by the petitioner and accordingly, it has been prayed on behalf of the respondents that the present writ petition may be disposed of with a direction to the authorities to consider and dispose of the said representation within a stipulated period. [7] After hearing the rival contention of the parties, this Court is of the considered view that interest of justice would be served by disposing of the present writ petition with the following directions:- (a) The respondent No. 4, the Director (Medical) Directorate General, CRPF, RK Puram, New Delhi is directed to consider and dispose of the representation dated 11.01.2022 submitted by the petitioner keeping in view the facts and circumstances of the present case as narrated hereinabove and to dispose of the same by issuing a speaking order within a period of 2 (two) months from today. (b) Pending consideration and disposal of the said representation, the impugned transfer order dated 06.11.2022 shall remain stayed. (c) It is made clear that if the petitioner is aggrieved by any order passed by the competent authority in connection with her representation, it is open to her to approach this Court for redressal of her grievances. [8] With the aforesaid directions, the present writ petition is disposed of. A copy of this order be furnished to both the learned counsel appearing for the parties through their Whatsapp/e-mail.' [emphasis supplied] 3. Pursuant to the said order, the respondent authorities rejected the request of the representation of the petitioner by Signal order dated 28.1.2022 on administrative reasons. It was further stated that speaking order in such regard would be passed. Subsequently, vide speaking order dated 25.2.2022, the respondent authorities had categorically stated that the transfer of the petitioner from the present post to Orissa is on the basis of the submission of the counsel for the petitioner's husband before the Punjab and Haryana High Court in C.W.P.No.21247 of 2021, as recorded in the order dated 25.10.2021. 4. To consider the plea raised on either side, it is apposite to refer to the relevant portion of the order dated 25.10.2021 passed in C.W.P.No.21247 of 2021 by the Punjab and Haryana High Court: 'It is submitted by the counsel for the petitioner that either the wife of the petitioner can be transferred to Orissa or the petitioner can be transferred to Imphal, so as to keep the petitioner and his wife at one place, as stipulated in the instructions relating to the transfer, issued by the respondents themselves.' 5. A bare perusal of the order dated 25.10.2021 passed in C.W.P.No.21247 of 2021 by the Punjab and Haryana High Court shows that it is only the submission of the learned counsel for the petitioner in that case which has been recorded by the learned Single Judge. There is no direction by the court to transfer the petitioner. Pointing out the said aspect, the learned Single Judge of this Court while disposing of W.P. (C) No.24 of 2022, vide order dated 18.1.2022, specifically observed as under: 'On perusal of the said order dated 25.10.2021, passed by the Hon'ble High Court of Punjab and Haryana, no order or direction has been given by the Hon'ble High Court for effecting such transfer of the petitioner. It has been submitted that the Hon'ble High Court has only recorded the submission advanced by the learned counsel for the petitioner and except for issuing notice of motion, the Hon'ble High Court has passed no other order. In view of the above, it has been submitted that the transfer of the petitioner has been effected by the authorities by misinterpreting the order of the Hon'ble High Court and without any application of mind.' 6. Despite such categorical finding recorded by the learned Single Judge of this Court, the respondent authorities by relying on the submission made by learned counsel for the petitioner in C.W.P.No.21247 of 2021 before the Punjab and Haryana High Court passed the impugned order rejecting the representation of the petitioner seeking to cancel her transfer order. 7. A perusal of the reasoned and speaking order dated 25.2.2022 passed by the respondent authorities shows that the impugned proceedings had been passed to comply with the order dated 25.10.2021 passed by the Punjab and Haryana High Court. Concededly, the order passed by the Punjab and Haryana High Court is an interim order and the case is still pending adjudication. A perusal of the order dated 25.10.2021 shows that there is no direction to the respondent authorities to consider transfer of the petitioner herein. It was only a submission of the learned counsel for the petitioner before the Punjab and Haryana High Court. Such submission made by a counsel can never be a basis for passing an order of transfer affecting the rights of another person, that too, by recording as if the Punjab and Haryana High Court has given a direction to transfer the present petitioner. Such submission made by a counsel can never be a basis for passing an order of transfer affecting the rights of another person, that too, by recording as if the Punjab and Haryana High Court has given a direction to transfer the present petitioner. Despite such flaw being pointed out in the earlier order dated 18.1.2022, the respondents had not taken any caution or care to rectify their stand, but reiterated the very same reason, i.e., to comply with the order of the Punjab and Harayana High Court, when admittedly no such direction exists. The impugned order passed by the respondents, therefore, suffers from total non-application of mind. 8. It is not the case of the respondent authorities that the petitioner is working in the present position beyond her tenure period. As could be seen from the records, the petitioner is discharging her duties at the Composite Hospital, Group Centre Langjing, Imphal on and from 17.11.2021 having been transferred vide order dated 30.7.2021. Abrupt transfer of the petitioner by the respondent authorities without any cogent reason of administrative exigency, but on misinterpretation of a submission of the counsel before the Punjab and Haryana High Court, is untenable and is liable to be quashed. 9. In the result, the writ petition is allowed and the impugned proceedings are set aside. There will be no order as to costs.