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2022 DIGILAW 175 (MAN)

S. Kamginpao Vaiphei v. Union of India

2022-09-06

M.V.MURALIDARAN

body2022
JUDGMENT 1. Heard Mr. M. Devananda, learned counsel for the petitioner and Mr. BR Sharma, learned Senior Central Government Standing Counsel for the respondents. 2. By consent, the main writ petition itself is taken up for disposal at the admission stage itself. 3. The challenge in this writ petition is to the transfer and posting order dated 15.7.2022 in respect of the petitioner, whose name finds place at S.No.8 of the list of incumbents. The petitioner seeks to set aside the same and allow the writ petition with a consequential direction to allow him to complete his sector tenure in Manipur based Units/Bns of the Central Sector as per Para 4(ix) of the Standing Order No.07/2015. 4. The facts in a nutshell are as under: The petitioner entered as CT/GD in the year 2003, pursuant to the order of appointment dated 28.6.2003. He completed his basic training from the Group Centre Langjing from 28.6.2003 to 28.2.2005, thereafter, he was transferred and posted to 27 Bn at J&K (Srinagar), Manipur (INungba) and Delhi (Bawana Camp CRPF) where he discharged duties from 28.2.2005 to 13.6.2012. Thereafter, he was transferred and posted to 165 Bn located at West Bengal (Tangasole Salua Kharagpur) from 13.6.2012 to 28.3.2017 and to 109 Bn located at Mongsangei, Senapati, Training Node ChilChil and Mao, Manipur from 28.3.2017 to till date. By the impugned order, the petitioner was transferred to GC-Neemuch. 5. The case of the petitioner as put forth by learned counsel for the petitioner is that he was transferred and posted to the 109 Bn located at Mongsangei, Senapati Training Node ChilChil and Mao, Manipur with effect from 28.3.2017 and 109 Bn even though geo graphically located in Manipur, it is under the Central Sector and the petitioner is yet to complete the Sector Tenure of 10 years under the M&N Sector as prescribed in Para 4(ix) of the Standing Order No.07/2015. The petitioner's case is squarely covered by Para 4(xvi)(ii), (vi) and (viii) of the Standing Order for relaxation/exemption of transfer for one year, but that was not done and he was arbitrarily and illegal transferred to GC Neemuch under the Madhya Pradesh Sector in violation of the stipulations laid down in the Standing Order. 6. The petitioner's case is squarely covered by Para 4(xvi)(ii), (vi) and (viii) of the Standing Order for relaxation/exemption of transfer for one year, but that was not done and he was arbitrarily and illegal transferred to GC Neemuch under the Madhya Pradesh Sector in violation of the stipulations laid down in the Standing Order. 6. It is stated that aggrieved by the same, the petitioner submitted a representation on 21.7.2022 to the Commandant, 109 Bn seeking for personal interview of the Inspector General (Pers) stating the genuine problems being faced by the petitioner and his critical medical conditions. The said representation of the petitioner was not considered till date. That apart, as per Para No.4(ix) of the aforesaid Standing Order, a person can serve in a particular Range/Sector for maximum 10 years and in a particular Zone for 14 years, but the petitioner has not put in such length of service and, therefore, considering his illness, he may be permitted to continue at the present place to enable him to continue his medical treatment at Psychiatry Department, RIMS, Imphal. However, ignoring the aforesaid Standing Order, the transfer order has been effected in the case on hand. 7. The next plank of the argument is that the impugned order has been issued directly by the office of the Directorate General of CRPF, New Delhi, in contravention of the Standing Order No.07/2015, which stipulates that inter-zone transfers will be monitored by a Committee comprising DIG Estt and DIsG (Adm) of all zones as members to ensure fair balance across zones. 8. The submission of learned counsel for the petitioner is that transfer of personnel are to be effect as per the provisions of Standing Order, but the respondent are illegally and arbitrarily transferred the personnel including the petitioner on the basis of the SANTOS guideline in contravention of the provision of the Standing Order. The SANTOS guideline cannot supersede or substitute the Standing Order as the Standing Order has not been modified/reviewed till date and that the rights of the petitioner under the provision of the Standing Order cannot be forfeited by the SANTOS guideline. 8. The SANTOS guideline cannot supersede or substitute the Standing Order as the Standing Order has not been modified/reviewed till date and that the rights of the petitioner under the provision of the Standing Order cannot be forfeited by the SANTOS guideline. 8. It is further submitted that by depriving the petitioner an opportunity to make a representation against the transfer and posting, the principles of natural justice have been violated and, moreover, in the SANTOS App, there is no provision to submit a representation objecting the transfer to the person of the cadre of the petitioner. The personnel was permitted to make representation only on 13.7.2022 and the right for submitting representations are available only to the officers starting from the rank of SI/ASI/HC/GD, but not to the constables/lower rank personnel. 9. He added that the impugned transfer of the petitioner to GC Neemuch effected through the SANTOS App is in violation of the provisions of the Standing Order and the right of the petitioner for extension of one year in the GC Imphal as per Para 4(xvi) (b)(ii), (vi) and (Viii) cannot be forfeited by the SANTOS guideline. 10. During the course of arguments, the learned counsel for the petitioner has produced the order of this Court dated 9.8.2022 passed in W.P.(C) No.589 of 2022 and the said writ petition was allowed by this Court on the ground that the respondents have ignored the mandate postulated in the Standing Order while considering the case of the petitioner for transfer. He submits that the said order of this Court is squarely applies to the case on hand, as the petitioner is similarly situated person. Thus, a prayer is made to set aside the impugned transfer and posting order in respect of the petitioner. 11. Mr. BR Sharma, learned Senior Central Government Standing Counsel on behalf of the respondents justified the transfer and posting order and submitted that transfer is a condition of service. A Government servant has no vested right to remain posted at the place of his choice. The transfer order does not violate legal right of a person holding transferable post, if he is transferred from one place to another in public interest. The order of transfer is an administrative order. The Hon'ble Apex Court in a catena of decisions held that the scope of judicial review in the matter of transfer is very limited. The transfer order does not violate legal right of a person holding transferable post, if he is transferred from one place to another in public interest. The order of transfer is an administrative order. The Hon'ble Apex Court in a catena of decisions held that the scope of judicial review in the matter of transfer is very limited. The Courts should not interfere with transfer order which is made for administrative reasons, unless an order of transfer is shown to be outcome of malafide exercise or stated to be in violation of statutory provision prohibiting any such transfer. 12. We have considered the rival submissions and perused the records. 13. Before adverting to the merits of the matter, it is apposite to refer to the relevant provisions of the Standing Order on which heavy reliance has been placed by learned counsel for the petitioner: 'Para 4(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 yars at least once in his full service. Para 4(xvi)(b)(ii) and (vi) and (viii): (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 :- (a) Sudden death of spouse or child. (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-neuron disease. vii. Infertility viii. Any other critical/serious disease if recommended by the board of medical officers/ Composite Hospitals. Para 5 (vii) Inter-Zonal transfers will be monitored by a Committee comprising DIG Estt as P.O. and DIsG (Adm)/Comdt of Zones as members. Proper balance/inout ratio should be ensured.' 14. The basis for challenge to the transfer and posting order is on medical grounds. It is the claim of the petitioner that at present he has dizziness on and off due to stroke (left) temporo parietal i.e. Haemorrhage and considering his illness, he has been categorized as P3(P). He needs continuous treatment under the supervision and care by his family members. 15. It is the claim of the petitioner that at present he has dizziness on and off due to stroke (left) temporo parietal i.e. Haemorrhage and considering his illness, he has been categorized as P3(P). He needs continuous treatment under the supervision and care by his family members. 15. It is not the case of the respondents that the transfer and posting order has been passed in public interest. Therefore, that angle need not be delved into. The order of transfer has been passed as a routine summer transfer. 16. A perusal of the service record of the petitioner shows that he had worked at various places like J&K, Manipur, Delhi, West Bengal before he was posted in present place. Medical records have been produced by the petitioner showing that while he was working in 109 Bn Mongsangei, he had a stroke and because of stroke, he was diagnosed as left temporo intracerebral haemorrhage and even his vision was blurred. According to the petitioner, the treatment of the petitioner is still continuing at RIMS, Imphal. 17. A perusal of the certificate dated 22.7.2022 issued by the Head of Department of Neurology, RIMS, it is seen that the petitioner was diagnosed intracranial haeomrrhag left fronto parelo termporal lobe with sensory seizure with phychosis. In the said certificate, it has also been stated that the petitioner needs help of his close relatives and needs regular check up by Neurology/Psychai. The said certificate has not been seriously disputed by the respondents. 18. It appears that the petitioner has completed his tenure of three years and, accordingly, based on routine summer transfer, a transfer and posting order was issued to him. As per Para 4(ix) of the Standing Order, a person can serve in a particular Range/Sector for maximum 10 years and in a particular Zone for 14 years. When such is the provision, the respondent authorities should have considered the request of the petitioner in the light of the said provision. It also appears that the petitioner is going to retire on 31.01.2023 and hardly 5 months service to be completed in the present place. 19. When such is the provision, the respondent authorities should have considered the request of the petitioner in the light of the said provision. It also appears that the petitioner is going to retire on 31.01.2023 and hardly 5 months service to be completed in the present place. 19. That apart, Para 4 (xvi) (b) ((ii), (vi) viii) mandates that the eligibility condition for transfer may be relaxed by one year in deserving cases and transfer on medical grounds may be considered on merits in case one's spouse or child is suffering from 'Paralytic Stroke', 'Coronary artery disease, Thalassaemia' and 'Any other critical/serious disease if recommended by the board of medical officers/ Composite Hospitals.' In the case on hand, the petitioner himself is suffering from intracranial haemorrhage left fronto parelo temporal lobe with sensory seizure with psychosis. The doctor's advice, referred supra, at this stage gains credence. Nothing has been produced on behalf of the respondents to show that the case of the petitioner was considered in the light of the advice given by the doctor. 20. This court, prima facie, is of the opinion that the respondents have ignored the mandate postulated in the Standing Order referred supra, while considering the case of the petitioner for transfer. The impugned transfer and posting order is hit by the aforesaid provisions of the Standing Order. 21. The other grounds raised by the petitioner are that the SANTOS Application which is used for effecting transfer does not provide an opportunity to make a choice. The said aspect can be looked into by the respondent authorities, to ensure that an opportunity is given to one and all working in CRPF to put forth their request. 22. The next ground urged was that the transfer and posting order was effected in contravention of the Standing Order by an officer, instead of it being by a Committee. 23. Inasmuch as this Court is, prima facie, satisfied that the impugned order is passed in contravention of Paras 4(ix) and Paragraph 4(xvi)(b)(ii) (vi)(viii) of the Standing Order, we do not propose to answer the competence of the officer who passed the impugned order, as this Court is remanding the matter to the respondent authorities for the reason that after issuance of the impugned transfer order, the petitioner has submitted a representation on 21.7.2022 and that has not been considered till date. Moreover, the impugned transfer order was not given effect to till date. Otherwise also, this is a fit case for interference in the transfer order of the petitioner on medical grounds. The case of the petitioner is also covered by the decision of this Court in W.P.(C) No.589 of 2022, decided on 9.8.2022 [Kiyam Sadananda Singh v. Union of India and others]. 24. For the foregoing reasons, the writ petition is allowed with the following directions: (i) the impugned order is set aside and matter is remitted to the competent authorities to consider the case of the petitioner and also in the light of the provisions quoted herein above from the Standing Order, more so, considering the doctor's advice qua the necessity of the petitioner's continuous treatment. The respondent authorities shall consider the case of the petitioner sympathetically, as he is having only 5 months to retire from service. (ii) The respondent authorities shall also consider the defect pointed out by the petitioner in the SANTOS Application and ensure that everyone working in CRPF is given an opportunity to express his choice. (iii) The case of transfer and posting shall be considered by the competent authority in terms of the Standing Order, i.e., the Committee comprising DIG Estt as P.O. and DIsG (Adm)/Comdt of Zones as members. (iv) There will be no order as to costs.