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2022 DIGILAW 140 (MAN)

Md. Ayub v. Union of India

2022-07-28

M.V.MURALIDARAN

body2022
JUDGMENT 1. Heard Mr. M. Devananda, learned counsel for the petitioner and Mr. Kh. Samarjit, learned Additional Solicitor General for the respondents. 2. This writ petition has been filed to quash the transfer and posting order dated 12.7.2002 in respect of the petitioner and to accommodate him in any field Units/Bns based in Manipur under M&N Sector in view of the order dated 21.5.2021 passed by the Judicial Magistrate First Class, Thoubal and also to direct the respondents to allow the petitioner to remain in the GC, Imphal in view of Para 4(xvi)(b)(iii) of the Standing Order No.7/2015 and the guidelines of SANTOS for Summer Chain Retention. 3. The case of the petitioner is that he was appointed as Constable/GD in the year 1994 and was posted in 132 Bn from 25.6.1994 to 4.11.1995 located at Dimapur. From there, he was transferred to 78 Bn located at Zubza, Nagaland, where he served from 4.11.1995 to 18.5.1998 and then to other Units of 78 Bn located and Jammu and Kashmir (LOC), Tamil Nadu (LOC), Chatha J&K and again in Zubza and served till 22.11.2014. The petitioner was promoted to the post of HC/GD in the year 2014 and was posted at 231 Bn located at Bhopal where he served from 22.11.2014 and again was posted at Units of 231 Bn located at Chattisgarh and served till 5.1.2019 and from 231 Bn, he was transferred and posted at GC, Imphal. From 5.1.2019 till the issuance of the impugned transfer he is serving at GC, Imphal. 4. Further case of the petitioner is that he was transferred to GC Imphal under the M&N Sector, North East Zone only in the year 2019 and he is yet to complete the Zonal Tenure of 14 years under the NEZ and the Sector Tenure of 10 years under the M&N Sector as prescribed in Paragraph No.4(ix) of the Standing Order No.7/2015. According to the petitioner, he is entitled to be considered for relaxation for one year in view of Paragraph No.4(xvi)(b)(iii) of the Standing Order considering the delicate physical health condition of the petitioner's son and the continuing treatment at RIMS, Imphal on the reference of the Doctors of Composite Hospital, Imphal. 5. According to the petitioner, his case is covered by Paragraph 1(A(d) under the Heading Summer Chain Special of the SANTOS Guidelines and Paragraph B under the Heading Summer Chain Retention (Medical Emergency). 5. According to the petitioner, his case is covered by Paragraph 1(A(d) under the Heading Summer Chain Special of the SANTOS Guidelines and Paragraph B under the Heading Summer Chain Retention (Medical Emergency). On 20.5.2022, the petitioner has submitted a representation to the DIGP, GC, CRPF, Imphal seeking to retain him for one year on compassionate ground. But without considering the same, the respondents had issued the impugned transfer order. Challenging the same, the writ petition has been filed. 6. The learned counsel for the petitioner submitted that the impugned transfer order is contrary to the transfer policy, more particularly, Paragraphs No.4 (ix) and 4(xvi)(b)(iii) of the Standing Order No.07/2015 and also Para No.1(A)(d) of the SANTOS guidelines. The learned counsel further submitted that on 20.5.2022, the petitioner submitted a representation seeking to retain for one year considering the health condition of his son. However, violating the Standing Order and the guidelines in regard to transfer and posting, the petitioner was illegally and arbitrarily transferred to 44 Bn. 7. The learned counsel urged that the petitioner could have been adjusted in any Units/Bns within M&N Sector, as he has not completed his sector tenure of 10 years and the zonal tenure of 14 years. 8. The learned counsel next submitted that he was arrested by the Lilong Police in connection with FIR No.47(05)2021 under Sections 307/447/326/34 IPC and was released on bail vide order dated 21.5.2021 and he is complying with the conditional order imposed on him. If the petitioner is to leave for 44 Bn, it would amount to violating the order dated 21.5.2021 and he shall be inevitably held for jumping bail and criminally held liable. Therefore, the impugned transfer and posting order is liable to be set aside. 9. On the other hand, the learned Additional Solicitor General submitted that the respondent authorities have issued the impugned transfer and posting order taking into consideration the overall facts and by following the Standing Order and SANTOS guidelines. Therefore, there is no illegality in issuing the impugned order. The medical ground of his son taken by the petitioner is unacceptable and that the petitioner has to obey the impugned transfer order. Thus, a prayer is made to dismiss the writ petition. Therefore, there is no illegality in issuing the impugned order. The medical ground of his son taken by the petitioner is unacceptable and that the petitioner has to obey the impugned transfer order. Thus, a prayer is made to dismiss the writ petition. He would submit that the petitioner who has been appointed to a transferable post is liable to be transferred, as a condition of service, from one place to another and he has no legal right to be posted forever at any particular place. 10. This Court considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record. 11. The grievance of the petitioner is that in the month of May, 2022, he has submitted a representation seeking retention in GC Imphal for one more year on medical ground of his son who is undergoing treatment in RIMS, Imphal. However, the said representation has not been considered till date. Further grievance of the petitioner is that he is yet to complete his tenure in the M&N Sector and under the NEZ as prescribed in Paragraph 4(ix) of the Standing Order and he could be posted in any Manipur based Units/Bns of the M&N Sector. Furthermore, the petitioner is entitled to be considered for relaxation for one year in view of Paragraph 4(xvi)(b)(iii) of the Standing Order considering the delicate physical health of his son. According to the petitioner, his case is also covered by Para No.1(A)(d) under the Heading Summer Chain Special of SANTOS Guidelines. 12. For proper appreciation, Paragraphs 4 (viii), (ix) and (xvi)(b) are extracted hereunder: '(viii) Normal tenure in field station is of 4 years and for hard field area/SOZ, Static and peace stations is 3 years. (ix) 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 NGO to serve in a zone other than his home zone for a period of 14 years at least once in his full service. (xiv) Personnel should not be transferred out prematurely and should be allowed to complete tenure except in exceptional cases with consent from directorate. 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. (xiv) Personnel should not be transferred out prematurely and should be allowed to complete tenure except in exceptional cases with consent from directorate. (xvi) However, the eligibility conditions as laid down above may be relaxed by one year in very deserving cases by Sector IGP in the following circumstances: (b) Transfer on medical grounds may be considered on merit in case one's spouse or child suffering from any of the following disease:- i. Cancer ii. Paralytic Stroke iii. Renal failure iv. Coronary artery disease, Thalassaemia v. Parkinson's disease vi. Motor -neuro disease vii. Infertility viii. Any other criteria/serious disease if recommended by the board of medical officers/composite hospitals.' 13. There is no quarrel that the petitioner was appointed to a transferable post and is liable to be transferred, as a condition of service, from one place to another in the administration of the Force, however, the same should not be in a prejudicial manner. 14. Though the petitioner contended that he is yet to complete his tenure in the M&N Sector and under the NEZ, nothing has been produced to prove the same. That apart, the respondent authorities, after considering the post held by the petitioner in the M&N Sector and under the NEZ as prescribed in Paragraph 4(ix), has rightly issued the impugned transfer order. Furthermore, the aforesaid ground has not been taken by the petitioner in his representation dated 20.05.2022 and for in order to maintain the writ petition, for the first time, he has taken such a ground and the same cannot be accepted. 15. By the impugned order, the petitioner was transferred from GC Imphal to 44 Bn and the impugned transfer order was issued on 12.07.2022. The representation submitted by the petitioner is dated 20.05.2022, wherein the petitioner seeks to extend the period of one year to stay in GC Imphal on medical ground of his son. 16. According to the learned counsel for the respondents, the impugned transfer was made upon considering the representation of the petitioner dated 20.05.2022 and therefore, there is no infirmity in it. 17. It is to be noted that the petitioner himself admitted that he is serving in GC Imphal from 05.01.2019. 16. According to the learned counsel for the respondents, the impugned transfer was made upon considering the representation of the petitioner dated 20.05.2022 and therefore, there is no infirmity in it. 17. It is to be noted that the petitioner himself admitted that he is serving in GC Imphal from 05.01.2019. That means, he is serving in GC Imphal for more than three years. Though it is stated by the petitioner that he is covered by Para No.1(A)(d) of the Heading Summer Chain Special of SANTOS Guidelines, nothing has been produced to show that he has availed of the choice through SAMBHAV App or submitted an application. When the petitioner failed to show any proof regarding the choice availed through SAMBHAV App or submitted an application, this Court is of the view that the petitioner's case is not covered under Para No.1(A)(d) of the Guidelines as claimed by him. 18. The next ground taken by the petitioner to quash the impugned transfer order is that he was arrested by Lilong Police in connection with FIR No.47(05)2021 and he was released on bail vide order dated 21.5.2021 by the Judicial Magistrate First Class, Thoubal with certain conditions and the petitioner is still complying the conditions imposed therein. Further, if the petitioner is to leave for 44 Bn, it would amount to violating the bail order dated 21.5.2021 and therefore, on that ground the impugned transfer order is liable to be quashed insofar as the petitioner is concerned. 19. On perusal of the bail order passed by the learned Judicial Magistrate First Class, Thounal, this Court finds that the petitioner and his wife have been arrayed as an accused in the criminal case and while granting bail, the learned Judicial Magistrate has issued the following conditions: i. They shall appear before the Court and I.O. As and when required. ii. They shall not tamper with any witness and evidence. iii. They shall not leave the State of Manipur without prior permission from the Court. iv. They shall inform the Court in the event of change of address. v. They shall not commit similar offence.' 20. ii. They shall not tamper with any witness and evidence. iii. They shall not leave the State of Manipur without prior permission from the Court. iv. They shall inform the Court in the event of change of address. v. They shall not commit similar offence.' 20. Referring to condition Nos.(i) and (iii), the learned counsel for the petitioner submitted that as per the aforesaid conditions, the petitioner has to report before the Court/IO as and when required by the investigating officer and shall not leave the State of Manipur without prior permission from the Court. Therefore, in order to face the enquiry and examination of witnesses, the petitioner is to be retained at the place where now he is working. Nothing has been produced by the petitioner to show that till today, he is complying with the said conditions. In the absence of any such proof, it cannot be held that the petitioner is still complying with the conditions imposed by the learned Judicial Magistrate First Class, Thoubal and for that his transfer has to be set aside thereby allowing him to work in Imphal. Since because the petitioner is complying with the conditions imposed in the bail application he cannot be transferred to some other place, cannot be countenanced. That apart, the conditions imposed in the bail application and its relaxation, if any, cannot be gone into in this writ petition. Accordingly, the second ground also fails. 21. Transfer of an employee is an administrative prerogative power vested with the competent authority. It is for the competent authority to decide how and where to post the personnel for effective administration. The petitioner, being an employee of an uniformed service, has to abide by the administrative orders, more specifically, of transfers. 22. Intervention in administrative transfers will not only cause inconvenience to the administration, but also amounts to preventing opportunity of other employees to come over to their native places. Administrative transfer policies are implemented in the interest of the department, more so, in the uniformed services, in order to maintain discipline and good conduct. Periodical transfers of uniformed personnel are highly essential. Keeping uniformed personnel in one place may create issues relating to others' right to come over to their native places or any native States. The personnel in the disciplined force, has to maintain such a disciplined conduct throughout in the interest of our great nation. Periodical transfers of uniformed personnel are highly essential. Keeping uniformed personnel in one place may create issues relating to others' right to come over to their native places or any native States. The personnel in the disciplined force, has to maintain such a disciplined conduct throughout in the interest of our great nation. This apart, all the Standing Orders and the Guidelines in this regard or instructions to be followed and no Standing Order prohibits the competent authority from issuing administrative transfer and posting. 23. This Court is very much conscious that administrative transfers are allowed to be implemented in the interest of administration. It is not for the Courts to interfere or exercise the power of judicial review in the matter of transfers. Only on exceptional circumstances i.e. to say, in the event of violation of any statutory rules, the power of judicial review can be exercised and not otherwise. 24. A Government servant holding a transferable post, has no vested right to remain posted at one place or the other and 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 right. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead, the affected party should approach the higher authorities of the department. If 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 Courts need not overlook these aspects while interfering with the orders of transfers. 25. The Hon'ble Supreme Court in the case of S.C. Saxena v. Union of India and Others, (2006) 9 SCC 583 , has observed that government servant in the matter of transfer should first report/join for work where he is transferred. 26. It is settled 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 rules 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 other, he is liable to be transferred from one place to another. 27. 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. 27. The scope of interference by this Court in regard to members of Armed Forces is far more limited and narrow. Considering the facts and circumstances of the case, this Court is of the view that the impugned transfer and posting of the petitioner was made after considering the Standing Order No.7/2015 as also other material documents. Therefore, there is no merit in the writ petition and the same is liable to be dismissed. 28. In the result, the writ petition is dismissed. There will be no order as to costs.