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2022 DIGILAW 215 (MAN)

Goutam Manna v. Union of India

2022-11-02

M.V.MURALIDARAN

body2022
JUDGMENT 1. This writ petition has been filed by the petitioner to quash the impugned transfer and posting order dated 21.7.2022 in respect of the petitioner and the order dated 10.8.2022, as it was issued in violation of the Standing Order No.03/2016 and in view of the judgments of this Court in W.P.(C) No.589 of 2022 dated 9.8.2022 and W.P.(C) No.687 of 2022 dated 6.9.2022 and to direct the respondents to allow the petitioner to be posted in any Kolkata or GC DPR, BBSR, SLG, AGT, JSR, CH BBSR, 106 RAF or any Bn deployed at WB, Tripura, Jharkhand in view of Para No.7(h) (ii) read with Para No.I (i) & 10 (d) of the Standing Order No.03/2016. 2. Heard Mr. K. Roshan, learned counsel for the petitioner and learned Mr. Boboy Potsangbam, learned C.G.S.C for the respondents. 3. The case of the petitioner is that by the impugned order dated 21.7.2022, the petitioner was transferred and posted to IG-Orissa and the petitioner was made to submit a list of total 28 choice of postings and IGOrissa was never given as a choice posting. None from amongst the battalions/units given as choice posting was allotted, but the petitioner was transferred and posted to IG-Orissa in violation of Standing Order No.3/2016. Aggrieved by the order dated 21.7.2022, the petitioner submitted a representation dated 22.7.2022 and the same has been rejected vide order dated 10.8.2022. On 10.8.2022, the petitioner also submitted a representation to IG (Pers), New Delhi. Since no reply was given, he made another representation on 8.9.2022 and the same has been rejected by the DIG (Org) vide order dated 15.9.2022. Challenging the impugned order dated 21.7.2022, the petitioner has filed the present writ petition. 4. The respondents filed affidavit-in-opposition stating that the petitioner has given Composite Hospital Bubaneshwar and GC Bhubaneshwar in his 4th and 6th choice while applying in SANTOS APP. His desired location at CH Bhubaneshwar/GC Bhubaneshwar are located in the same campus and is seen in the organisational setup paper where it can be reflected by the addresses. It is stated that the petitioner had requested for Bhubaneshwar and he has been transferred to Bhubaneshwar. 5. Assailing the impugned order, the learned counsel for the petitioner submitted that transfer and posting of the ministerial staff, including the petitioner are governed by the stipulations/guidelines as laid down in the Standing Order No.03/2016 dated 29.12.2016. It is stated that the petitioner had requested for Bhubaneshwar and he has been transferred to Bhubaneshwar. 5. Assailing the impugned order, the learned counsel for the petitioner submitted that transfer and posting of the ministerial staff, including the petitioner are governed by the stipulations/guidelines as laid down in the Standing Order No.03/2016 dated 29.12.2016. Though the normal tenure of posting in Directorate will be 3 years, extension may be given in exceptional cases to the officer whose services are considered essential based on the recommendation of IGP of the Branch. In any case, the total tenure at the Directorate should not be more than 5 years at a stretch. 6. The learned counsel would submit that since the petitioner is a resident of West Bengal, his posting in the State of Manipur, particularly in the GC Imphal and the office of the IG M&N Sector is a hard area posting. As per the stipulation laid down in the guideline No.4(a), the petitioner's tenure is to be 2 years, but was extended by another 2 years in the office of IG M&N Sector, thereby serving 4 years in the State of Manipur. 7. The learned counsel further submitted that in the early part of 2022, the petitioner came to know that his name has been included for Summer Chain Transfer 2022, as he had already completed 4 years of hard area posting against the prescribed tenure of 2 years. He submits that guideline No.7(h)(ii) laid down that officials posted in J&K, NE Region and LWE are will be considered for one choice out of 5 choices subject to administrative feasibility and tenure policy. However, officials completing tenure in LWE area will be given due preference. 8. The learned counsel added that the petitioner who has a hardship score of 384.55 and was made to submit a list of 28 choices through the SANTOS software. Surprisingly and much to the concentration, the DIG (Org) Dte, CRPF issued the impugned transfer order dated 21.7.2022 whereby the petitioner along with 5 incumbents were transferred and posted to different places of posting and the name of the petitioner appeared at Serial No.4. Earlier the petitioner was made to submit a list of total 28 choice postings and IG-Orissa was never given as a choice posting. Earlier the petitioner was made to submit a list of total 28 choice postings and IG-Orissa was never given as a choice posting. None from amongst the battallions given as choice posting was allotted, but the petitioner was transferred and posted to IG-Orissa in violation of the Standing Order 3/2016 without proper application of the mind. 9. The learned counsel submitted that aggrieved by the transfer and posting order, the petitioner submitted a representation dated 22.7.2022 raising objection to the posting to the IG-Orissa, as it was not within 28 choice posting submitted through the SAMBHAV App and for posting the petitioner to any offices/units located at Kolkatta. By the order dated 10.8.2022, the representation of the petitioner was rejected as devoid of merits. On 10.8.2022, the petitioner submitted a representation to the IG (Pers) DC, CRPF, New Delhi to implore for posting to any offices/units located at Kolkata. However, no reply was given till date. Again on 8.9.2022, the petitioner has submitted a representation to the DGP, CRPF, New Delhi and by the order dated 15.9.2022, the said representation was rejected. 10. It is the submission of the learned counsel for the petitioner that the impugned transfer and posting order made through SAMBHAV App are made in gross violation of the guidelines for transfer and posting. The petitioner is entitled for one choice posting as per Para 7(h)(ii) of the Standing Order. However, the respondents, in violation of the guidelines, made the petitioner to submit 28 pre-determined choices through the SAMBHAV App. The petitioner was transferred and posted to the IGOrissa, which was not within the 28 choices given to him, illegally and arbitrarily in violation of the stipulations laid down in Para 7(h)(ii) of the Standing Order. 11. The learned counsel urged that normally transfers are effected zone wise, then concerned zone decide for posting sector wise and then sector decides for final unit/Bn postings. But in the case of the petitioner this was not done and the petitioner was transferred and posted to IGOrissa through SAMBAV App directly in violation of Para No.7(b)(iii) of the Standing Order. There are vacancy in the West Bengal Sector and that the rights of the petitioner under the provisions of the Standing Order cannot be forfeited by SANTOS guidelines. There are vacancy in the West Bengal Sector and that the rights of the petitioner under the provisions of the Standing Order cannot be forfeited by SANTOS guidelines. Thus, a prayer is made to set aside the impugned transfer and posting order and to direct the respondents to allow the petitioner to be posted in Kolkata or any Bn deployed at WB, Tripura, Jharkhand. 12. On the other hand, Mr. Boboy Potsangbam, learned C.G.S.C for the respondents submitted that the petitioner has given Composite Hospital Bhubaneshwar and GC Bhubaneshwar in his 4th and 6th choice while applying in SANTOS App. His desired location at CH Bhubaneshwar/ GCBhubaneshwar are located in the same campus. He would submit that since the petitioner requested for Bhubaneshwar, he had been transferred to Bhubaneswhar. 13. The learned Standing Counsel further submitted there is no violation in issuing the impugned transfer and posting order in respect of the petitioner and only to avoid joining in the transferred place, the petitioner has filed the present writ petition vexatiously. Thus, a prayer is made to dismiss the writ petition. 14. This Court considered the rival submissions and also perused the materials available on record. 15. The grievance of the petitioner is that he has been transferred and posted to IG-Orissa Sector, Bhubaneswar although it was not within his 28 choices submitted through SAMBHAV App. His posting from M&N Sector, HQr., Imphal to Orissa Sector is not according to his choice even after completion of more than 4 years tenure at Imphal (Manipur, under NEZ), the same is adverse with reference to Para 7(C) h (ii) of Standing Order, wherein it has been stipulated that official posted in J&K NE Region and LWE will be considered for one choice posting out of 5. It is stated that the petitioner has not completed the prescribed zonal tenure of 18 years and sector tenure of 10 years and the impugned order was issued without proper application of mind. 16. The petitioner was posted at GC, Imphal and the office of the IG M&N Sector in the year 2018 and 2020 and has completed more than 4 years in hard area against the normal tenure of 2 years as laid down in Para No.4(a) of the Standing Order. 16. The petitioner was posted at GC, Imphal and the office of the IG M&N Sector in the year 2018 and 2020 and has completed more than 4 years in hard area against the normal tenure of 2 years as laid down in Para No.4(a) of the Standing Order. Since the petitioner has completed 2 years tenure in the GC Imphal and the office of the IG M&N Hqr and has completed totally 4 years in a hard area, his name was included in the Summer Chain Transfer 2022. 17. According to the petitioner, he is entitled for one choice posting as per Para No.7 (h) (ii) of the Standing Order. However, the respondents in violation of this guideline made the petitioner to submit 28 predetermined choices through the SAMBHAV App, but was transferred and posted to IG-Orissa, which was not within the 28 choices given to the petitioner. In support, the petitioner has failed to produce any materials. On the other hand, in the affidavit to the writ petition filed, the respondents stated that the 4th and 6th choice of the petitioner while applying in SANTOS APP is Composite Hospital Bhubaneshwar and GC Bhubaneshwar and those two located in the same campus. 18. Para 7 C, (h) (i), (ii), (iii) of the Standing Order provides: '7. TYPES OF TRANSFER. C. Other Transfers. h) Choice allotment/posting after hard area posting. i) While forwarding request for transfer/choice postings etc. to Directorate General, the officers/officials will submit their request on the prescribed proforma (attached as Appendix-'A' with this Standing Order) giving 5 choices spread over different cities (NCR/twin cities will be treated as one city) and 2 or more Sectors. Any request for specific posting to a particular office/GC/Unit or any region sent to Dte. General will not be entertained/accepted by the Directorate. ii) Officials posted in J&K, NE Region and LWE area will be considered for one choice out of 5 choices as above subject to administrative feasibility and tenure policy. However, officials completing tenure in LMW area will be give due preference. iii) Requests for officers/officials posted in soft area will be considered only subject to availability of vacancies and administrative feasibility after adjustment of requests received from officers/officials completing tenure in respective hard areas.' 19. However, officials completing tenure in LMW area will be give due preference. iii) Requests for officers/officials posted in soft area will be considered only subject to availability of vacancies and administrative feasibility after adjustment of requests received from officers/officials completing tenure in respective hard areas.' 19. Thus, Para 7C (h)(ii) stipulates that officials posted in J&K, NE Region and LWE area will be considered for one choice out of 5 choices subject to administrative feasibility and tenure policy. In view of the aforesaid clause, the petitioner as a matter of right cannot question the impugned transfer and posting order, as the respondent authorities are very much authorised to transfer the employees on administrative feasibility and tenure policy. It is admitted by the petitioner that he had already completed 4 years of hard area posting against the prescribed tenure of 2 years in a hard area as per the Standing Order. Since the petitioner had completed 4 years of hard area posting, he cannot now question the impugned transfer and posting order. 20. In paragraph 3 of the affidavit-in-opposition filed by the respondents, it has been as under: '3. That as per the order dated 23/09/2022, the respondents herein state that the current transfer to IG Orissa is located at Group Centre at Bhubaneshwar. The petitioner has given Composite Hospital Bhubaneshwar and GC Bhubaneshwar in his 4th and 6th choice while applying in SANTOS APP. His desired location at CH Bhubaneshwar/GC Bhubaneshwar are located in the same campus and is seen in the organisational setup paper where it can be reflected by the addresses. Furthermore, a satellite map of the same is annexed to clarify the same issue. That the petitioner had requested for Bhubaneshwar and he has been transferred to Bhubaneshwar.' 21. Since the petitioner himself requested for Bhubaneshwar, later on changing his mind, he cannot question the impugned transfer order by stating that the impugned transfer and posting in respect of the petitioner is in violation of Standing Order. When the petitioner has given Bhubaneshwar as his 4th and 6th choice, he cannot plead that his transfer to IG-Orissa is not within the 28 choice posting submitting through the SAMBHAV App. Only for the purpose of filing the writ petition, the petitioner has raised the said ground. When the petitioner has given Bhubaneshwar as his 4th and 6th choice, he cannot plead that his transfer to IG-Orissa is not within the 28 choice posting submitting through the SAMBHAV App. Only for the purpose of filing the writ petition, the petitioner has raised the said ground. In view of the above, this Court is of the view that the representations of the petitioner has been duly considered and passed orders by the respondent authorities. 22. 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 uniformed service, has to abide by the administrative orders, more specifically, of transfers. 23. 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. Central Reserve Police Force, being a 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 are instructions to be followed and no Standing Order prohibits the competent authority from issuing administrative transfer and posting. 24. 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. Violation of certain guidelines/instructions given in the form of circulars or orders, will not confer any legal right on the employees. In other words, the circulars and orders of the Government with regard to the guidelines issued for implementing transfers will not confer any right on the employees. Violation of certain guidelines/instructions given in the form of circulars or orders, will not confer any legal right on the employees. In other words, the circulars and orders of the Government with regard to the guidelines issued for implementing transfers will not confer any right on the employees. Certain concessions are provided in order to make the employees more accommodative and for effective functioning of the administration. Thus, it is for the competent authorities to consider all these aspects in respect of the personal grievances of the employees, while effecting transfers. Such being the legal principles on transfers, this Court is of the undoubted opinion that the administrative transfers or general transfers cannot be challenged by way of writ petition and this Court has to be conscious, while exercising the judicial review against the orders of administrative transfers or general transfers. 25. 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. 26. If Courts continue to interfere with the transfer orders issued by the Government and its sub-ordinate 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. 27. The Hon'ble Supreme Court in the case of S.C. Saxena v. Union of India and Others, (2006) 9 SCC 583 : 2006 Legal Eagle (SC) 123, has observed that Government servant in the matter of transfer should first report/join for work where he is transferred. 28. In the instant case, after issuance of the impugned transfer and posting order, the petitioner submitted a representation dated 8.9.2022 to the DGP, DG, CRPF, New Delhi requesting him for posting at Kolkata based offices/GC DPR/SLG/JSR/Ranchi/Agartala/106 RAF or any Bn deployed at West Bengal/Tripura/Jharkand on the ground of his daughter education. 28. In the instant case, after issuance of the impugned transfer and posting order, the petitioner submitted a representation dated 8.9.2022 to the DGP, DG, CRPF, New Delhi requesting him for posting at Kolkata based offices/GC DPR/SLG/JSR/Ranchi/Agartala/106 RAF or any Bn deployed at West Bengal/Tripura/Jharkand on the ground of his daughter education. Upon consideration of the representation of the petitioner, the DIG (Oranisation) has passed an order on 15.9.2022, rejecting the request of the petitioner holding that transfer issue of the petitioner has been examined on the basis of his previous posting particulars, transfer policy, vacancy position, ground of request and other aspects etc. The said order dated 15.9.2022 has not been challenged by the petitioner. The non-challenging of the order dated 15.9.2022 would clearly prove that the petitioner has satisfied with the rejection of the representation dated 8.9.2022. Since the representation dated 8.9.2022 and orders passed thereon are in relation to the impugned transfer order dated 21.7.2022 and the representation dated 8.9.2022 was rejected by the DIG (Organisation), the petitioner has no right to question the impugned transfer and posting order. In the facts and circumstances, the orders of this Court passed in W.P.(C) No.589 of 2022, dated 9.8.2022 W.P.(C) No.687 of 2022, dated 6.9.2022 relied on by the learned counsel for the petitioner are not applicable to the instant case. 29. 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 of the petitioner was made after considering the applicable Standing Order as also other material documents. Therefore, there is no merit in the writ petition and thus the same is liable to be dismissed. 30. In the result, the writ petition is dismissed. There will be no order as to costs.