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2022 DIGILAW 149 (MAN)

E. Sushil Singh v. Union of India

2022-08-09

M.V.MURALIDARAN

body2022
JUDGMENT 1. This writ petition has been filed to issue a writ of certiorarified mandamus to quash the orders dated 9.6.2020 and 1.7.2021 and the undated movement order and to allow the petitioner to proceed on voluntary retirement as per Rule 43 d(1) & (vi) of the CRPF Rules, 1955 from 69 Bn by accepting the application dated 5.4.2021. 2. The case of the petitioner is that in the year 2020 when he was under attachment to the Central Swimming Team at the GC Gurugram, the impugned order dated 9.6.2020 was issued, thereby proposing to transfer and post him at GC Ranchi. Despite the petitioner having problems of his mother suffering from heart disease associated with old age and his child suffering PRETERM/VLBW/Neonatal sepsis (Candida non albicans)/Anaemia of prematurity/NNJ, the petitioner was sincerely attending his duties. According to the petitioner, he was eligible for proceeding on voluntary retirement on completion of 20 years of service as per Rule 43 (d) (1) of the CRPF Rules and, in fact, on 5.4.2021, he had submitted an application to the Commandant 69 Bn CRPF requesting to forward the same for proceeding on VRS to the competent authority and for its acceptance. According to the petitioner, no action was taken on the said representation till date, instead, by the order dated 1.7.2021, the petitioner was transferred to GC Ranchi by striking from the strength of 69 Bn with effect from 25.6.2021. A communication dated 5.8.2021 was also sent to the Digcent GC Gurugram to relieve the petitioner and consequently, an undated movement order was issued by the Deputy Commandant GC, Gurugram directing the petitioner to move to GC Ranchi. Challenging the same, the petitioner has filed the present petition. 3. The respondents filed affidavit-in-opposition stating that after completion of the normal tenure in 69 Bn, the petitioner was transferred to GC Ranchi as per IG, CRPF Jharkhand Sector Signal dated 9.6.2020 during Summer Chain Transfer 2020. Since the petitioner was attached with Central Swimming Team at GC Gurugram and was not likely to report to 69 Bn for further relief on transfer to GC Ranchi, the case was taken up with IG, CRPF, Jharkhand Sector to relive him on paper strength. Since the petitioner was attached with Central Swimming Team at GC Gurugram and was not likely to report to 69 Bn for further relief on transfer to GC Ranchi, the case was taken up with IG, CRPF, Jharkhand Sector to relive him on paper strength. Accordingly, IG, CRPF, Jharkhand Sector vide order dated 25.6.2021 permitted 69 Bn to relieve him on paper strength and the petitioner was relieved with effect from 25.6.2021 to GC Ranchi vide order dated 1.7.2021. 4. It is stated that in the meantime, an application for VRS was received from the petitioner. Since the case of transfer of the petitioner to GC Ranchi was under process and also status of his verification of qualifying service was not known to 69 Bn, his application along with the connected documents were forwarded to GC Ranchi. After verification, GC Ranchi issued an order stating that the petitioner had completed only 18 years 5 months and 21 days qualifying service upto 31.5.2021. Further, out of 20 years, 2 months and 8 days of the total service upto 31.5.2021, the petitioner has 1 years, 8 month and 17 days of non-qualifying service due to regularization of overstay from his leave for as many as 7 times. Thus, he has not yet completed the 20 years of mandatory qualifying service and not eligible for proceeding on voluntary retirement as stipulated in Rule 48(A) (a) of CCS (Pension) Rules, 1972. Hence, prayed for dismissal of the writ petition. 5. Assailing the impugned orders, Mr. M. Devananda, the learned counsel for the petitioner submitted that in the year 2017 petitioner's wife gave birth to their son prematurely and the child was diagnosed as PRETERM/VLBW/Neonatal sepsis (Candida non albicans)/Anaemia of prematurity/NNJ and is taking treatment for the said ailment. Even after many years the health of the child does not improve and requires constant medical treatment. Further, the petitioner's mother is also suffering from heart disease and despite having problems which requires his personal attendance, the petitioner has been attending his duties efficiently and sincerely. 6. The learned counsel further submitted that on 5.4.2021, the petitioner has submitted an application for voluntary retirement to the Commandant, 69 Bn for onward forwarding to the competent authority. Further, the petitioner's mother is also suffering from heart disease and despite having problems which requires his personal attendance, the petitioner has been attending his duties efficiently and sincerely. 6. The learned counsel further submitted that on 5.4.2021, the petitioner has submitted an application for voluntary retirement to the Commandant, 69 Bn for onward forwarding to the competent authority. Though the respondents are duty bound to accept the request for proceeding on voluntary retirement as per Rule 43 d (vi) of the CRPF Rules, they have failed to accept the application and no reasons are given for failing to do so. However, surprisingly, the petitioner was issued with the transfer order dated 1.7.2021. 7. The learned counsel urged that the petitioner had completed 20 years of an uninterrupted service in the CRPF and has become very much eligible for proceeding on voluntary retirement as per Rule 43 d (i) of the CRPF Rules. He submitted that a similarly situated person approached this Court by filing W.P.(C) No.401 of 2019, wherein this Court, by the order dated 30.5.2019, directed the petitioner therein to file a fresh representation within a period of 15 days specifying the date on which the petitioner seeks voluntary retirement and thereafter, on receipt of the representation to be filed, the competent authority shall consider the case. In the said case, pursuant to the order of this Court aforesaid, an order dated 24.10.2019 was issued allowing the petitioner therein to proceed on voluntary retirement. The petitioner is similarly situated person and therefore, the said benefit be extended to the case of the petitioner. 8. The learned counsel further submitted that the petitioner is aggrieved by the fact that the mandatory notice period of three months prescribed in Rule 43 d(i) of the CRPF Rules had lapsed by more than 3 months till the filing of the writ petition. But the respondents have failed to make any communication as to why he was not allowed to proceed on voluntary retirement as per Rule 43 d(i). Thus, the impugned orders have been issued in violation of Rule 43 d(i) and (vi) of the CRPF Rules. Therefore, a prayer is made to allow the writ petition. 9. This Court considered the rival submissions and also perused the materials available on record. 10. Thus, the impugned orders have been issued in violation of Rule 43 d(i) and (vi) of the CRPF Rules. Therefore, a prayer is made to allow the writ petition. 9. This Court considered the rival submissions and also perused the materials available on record. 10. The grievance of the petitioner is that due to domestic problems, he has submitted a voluntary retirement application on 5.4.2021, However, without considering the application, the respondent authorities arbitrarily issued the impugned transfer and movement orders transferring him from 69 Bn to GC Ranchi. According to the petitioner, he is eligible for proceeding on voluntary retirement as per Rule 43 d(i) of the CRPF Rules, 1955. 11. On the other hand, the respondents contended that the petitioner has 1 year 8 months and 17 days of non-qualifying service and, thus, he has not completed 20 years of mandatory qualifying service. Hence, the petitioner is not eligible for proceeding on voluntary retirement as per Rule 48(A)(1) of CCS (Pension) Rules, 1972. 12. There is no dispute that the petitioner joined the service as General Duty Constable (CT/GD) in the CRPF on 24.3.2021 and he was initially posted in GC Imphal, where he had worked till 13.5.2022, during which time, the petitioner had completed his basic training in GC Khatkhati. After completing the training, the petitioner was posted at 69 Bn located at Tinsukia from 13.5.2002 to 5.5.2003, Pulwama from 5.5.2003 to 20.7.2006, Kolkata from 20.7.2006 to 16.3.2009, Mantripukhri from 16.3.2009 to 16.2.2016. From Mantripukhri, the petitioner was again posted at 26 Bn located at Chas Bokoro on 16.12.2016 and again was posted at 69 BnMantripukhri, IOCL Depot Malom, ChilChil R Training Kangpokpi and at the Unit Headquarters Mantripukhri from 16.2.2016 to 23.3.2021. While working at 69 Bn, on 5.4.2021, he had submitted an application for voluntary retirement. 13. Rule 43 d (i) of the CRPF Rules provides that 'any member of the Force who has put in not less than 20 years of qualifying service may, by giving notice of not less than 3 months in writing to the appointing authority, retire from service voluntarily and unless the exigencies of service require otherwise, he shall be permitted to retire'. 14. 14. Rule 48-A(1) of the CCS (Pension) Rules, 1972 provides: '48-A. Retirement on completion of 20 years' qualifying service (1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service. Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is- (i) On assignments under the Indian Technical and Economic Cooperation (ITEC) Programme of the Ministry of External Affairs and other aid programmes. (ii) Posted abroad in foreign based offices of the Ministries Departments. (iii) On a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year.' 15. Highlighting Rule 48-A(1) of the CCS (Pension) Rules, the learned Government Advocate submitted that the petitioner has not fulfilled the condition stipulated and out of 20 years, 2 months and 8 days of total service up to 31.05.2021, the petitioner has 1 year, 8 months and 17 days of non-qualifying service, thus, he has not yet completed the 20 years of mandatory qualifying service. 16. The break-up aforesaid given by the respondents has been contested by the petitioner stating that on their own the respondents have calculated the period and, in fact, the petitioner has completed 20 years of service as on 24.3.2021 and that is why, on 5.4.2021, he has submitted an application for voluntary retirement on domestic grounds to the Commandant 69 Bn for forwarding the same for proceeding on VRS to the competent authority and for its acceptance. 17. The receipt of the voluntary application of the petitioner was not disputed by the respondents. However, the respondents in their affidavit-in-opposition stated that since the case for transfer of the petitioner to GC Ranchi was under process and also the status of his VQS was not known to 69 Bn, his application was forwarded to GC Ranchi for further course of action. 18. It appears that though the application of the petitioner was dated 5.4.2021, the same was forwarded by 69 Bn only on 3.7.2021 vide Letter No.P.I-1/2021-69-EC-IV. The delay in forwarding the application to the competent authority was not properly explained by the respondents. 18. It appears that though the application of the petitioner was dated 5.4.2021, the same was forwarded by 69 Bn only on 3.7.2021 vide Letter No.P.I-1/2021-69-EC-IV. The delay in forwarding the application to the competent authority was not properly explained by the respondents. When the forwarding of the application was dated 3.7.2021, how the Dy. Inspector General of Police, GC Ranchi could be able to give certificate for verification of qualifying service under Rule 32 of the CCS (Pension) Rules, 1972 on 25.5.2021. 19. When the respondent authorities have received the application for voluntary retirement of the petitioner, they ought to have passed a speaking order on it. In the instant case, admittedly, no order has been passed on the application dated 5.4.2021. As rightly argued by learned counsel for the petitioner, the respondents have failed to consider the application and communicate a decision thereon to the petitioner. The failure of the respondent authorities in not communicating the decision on the voluntary retirement application dated 5.4.2021 seriously affects the right of the petitioner. 20. Coming to the impugned transfer and movement orders, admittedly, the transfer signal dated 1.7.2021 and the movement signal were issued subsequent to the submission of the application for voluntary retirement dated 5.4.2021. Thus, on the ground of non-consideration of the application dated 5.4.2021 and non-communication of the decision thereon to the petitioner, the impugned transfer is unsustainable in law. Since the impugned transfer and the movement orders were issued pending the application for voluntary retirement and since the decision on it was not communicated to the petitioner, transferring the petitioner from 69 Bn to GC Ranchiis is not appropriate. 21. It is true that Courts should not interfere with a transfer order which is effected 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. 22. It is well settled that who should be transferred 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. 23. 22. It is well settled that who should be transferred 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. 23. Though 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 on hand, the impugned transfer was made without even considering the Standing Order No.7/2015. Therefore, the impugned orders are liable to be set aside, as the same were issued pending consideration of the voluntary retirement application dated 5.4.2021 and the communication thereon to the petitioner. For considering the petitioner's voluntary retirement application and pass orders on it, it would be appropriate to remand the matter back to the respondent authorities. No prejudice would be caused to either of the parties in remanding the matter for consideration of the application for voluntary retirement of the petitioner dated 5.4.2021 and pass orders thereon by setting aside the impugned transfer orders in the interest of justice. 24. In the result, a) the writ petition is allowed, b) while setting aside the impugned transfer orders dated 9.6.2020, 1.7.2021 in respect of the petitioner and the subsequent movement order, the matter is remanded back to the respondent authorities for consideration and communication of the decision thereon to the petitioner, c) the respondents are directed to consider the application for voluntary retirement of the petitioner dated 5.4.2021 in accordance with law and pass orders within a period of six weeks from the date of receipt of a copy of this order and communicate a decision thereon to the petitioner. No costs.