Anil Kumar Shrivastava vs Union of India

Sujoy Paul, J.—This petition filed under Article 226 of the Constitution challenges the order Annexure P/1 dated 2nd June, 2014 whereby the petitioner is transferred from Tekanpur to Western Command (Gujrat).

Assailing this order, Shri Mishra submits that the normal tenure for the petitioner to remain at one place is four years. He joined at Tekanpur pursuant to order dated 14th May, 2010 (Annexure P/2). Before completion of normal tenure, he submitted an application for extension of one year. Said prayer was made on medical grounds. By taking this Court to recommendation Annexure P/5, it is urged that the Officer Commanding, BSF Tekanpur has strongly recommended the case of the petitioner for retention at Tekanpur for one year. Shri Vivek Mishra relied on the statutory rules namely Border Security Force (Tenure of Posting and Deputation) Rules 2000. It is submitted that as per Rule 12 of the said rules, it is only Director General of respondent organization who can decide the transfer/posting of the petitioner. It is urged that decision on petitioner''s retention needs to be taken by the said authority. Transfer order is also not passed by the said authority. In addition, he relied on policy dated 25th February, 2014 (Annexure P/8). By reading clause (g) of this policy, it is submitted that matter was required to be forwarded to the Director General and said authority alone was competent to take a decision on the prayer of retention.

Shri Vivek Mishra further submits that after recommendation (Annexure P/5), he preferred application seeking personal interview from DG, BSF. By communication dated 12th June, 2014 application seeking interview is rejected and therefore, it cannot be presumed that application seeking extension or representation against transfer order is rejected. He also relied on Annexure R/4 to bolster the aforesaid submission. In nutshell, it is submitted that transfer order runs contrary to the statutory rules aforesaid. Recommendation for retention is not considered by the Director General and therefore, the impugned order is bad in law.

Per Contra, Ms. Ruchy Mody, learned counsel for the respondents submits that the Rule 12 has no application in the facts and circumstances of this case. The said rule is applicable only "during move of Battalion". She submits that petitioner is transferred in administrative exigency and not during move of Battlion and hence, reliance on Rule 12 is totally misconceived. She submitted that a careful reading of Annexure R/3 makes it clear that petitioner''s representation is rejected by the competent authority/director and therefore, no case is made out for interference. She submits that petitioner has completed the normal tenure at Gwalior. There is no ingredient on which interference can be made by this Court. It is submitted that transfer is a condition of service and in absence of violation of Rules, no interference is warranted.

No other point is pressed by learned counsel for the parties.

I have heard learned counsel of the parties and perused the record.

I deem it proper to mention that scope of interference in transfer matter is limited. Transfer is a condition of service. Interference can be made if transfer order runs contrary to any statutory provision, changes service condition of an employee to his detriment, passed by an incompetent authority or proved to be malafide. Shri Vivek Mishra submits that in the present case transfer order is in violation of Rule 12 and it is passed by incompetent authority. This aspect needs consideration. Rule 12 reads as under:-

Posting during move of Battalion-A member of the Force posted to a Battalion which is under move within or out of Frontier shall not be transferred except under rules 10 and 11 and the powers to consider individual cases on medical grounds of the members of the Force or his family as certified by a Medical Board shall rest with the Director General.

(Emphasis supplied)

A simple reading of Rule 12 makes it clear that it deals with such postings which are made during move of Battalion. Rule in no uncertain terms makes it clear that it is applicable when a member of force posted to Battalion which is under move within or out of Frontier. Thus, application of this rule is restricted to such postings which are made during the move of Battalion. I find force in the argument of Ms. Ruchy Mody that this rule has no application in the facts and circumstances of the present case. Since the said rule is not applicable, the authority mentioned in it is also not competent authority for the purpose of present transfer order. Clause (g) of the policy shows that decision on the recommendation needs to be taken by Directorate of Frontier Head Quarter (FHQ). The question is whether requirement of clause (g) aforesaid is complied with. Clause (g) makes it clear that where the request is made on medical ground for retention, the case needs to be forwarded to concerned Directorates of FHQ along with specific recommendation of SDG for necessary consideration. The document Annexure P/5 (page 65) shows that Officer Commanding has highly recommended the case of the petitioner for retention. The contention of Ms. Mody is that the document Annexure R/3 shows that the competent authority as per the policy has turned down the representation.

In the opinion of this court, this letter is written on behalf of Director, BSF Academy, Tekanpur. It is addressed to FHQ, BSF, New Delhi. Para 2 of Annexure R/3 reads as under:-

It is further submitted that, individual appeared before the ADG/ Director BSF Academy on 11/06/2014 and requested for deferment of his posting order for one year, as above SO posted out during ATO-2014 to 116 Bn BSF and ''as per remarks endorsed by the ADG/Director that, the case for posting/transfer in r/o above SI (Min) doesn''t have merit, hence not recommended.

(Emphasis supplied)

A microscopic reading of this letter shows that the petitioner appeared before the Director, BSF Academy, Tekanpur and requested for his retention for one year. It is Director, BSF Academy Tekanpur who opined that the case for posting does not have any merit. For this reason, he found that case need not to be recommended. Clause (g) of the policy makes it clear that such requests are required to be forwarded to concerned Directorates of FHQ with specific recommendation of SDG. It is Directorate of FHQ which needs to take a decision. I am unable to hold that Annexure R/ 3 is a decision by the concerned Directorates of FHQ. On the contrary, this document shows that it is refusal of Director, BSF Tekanpur to recommend the case before the competent authority i.e. Directorate FHQ.

Considering the aforesaid, I deem it proper to direct the respondents No. 3 & 4 to send the request of the petitioner to concerned Directorates of FHQ as per clause (g) of the policy. The request of the petitioner be sent within seven days. In turn, respondent No. 2/concerned Directorate of FHQ is directed to take decision on the same expeditiously preferably within 03 weeks. Outcome of such consideration shall be communicated to the petitioner. Till decision is taken by the concerned Directorate, interim order passed by this Court shall remain in operation. It is made clear that this Court has not expressed any opinion on the merits of the case.

Petition is disposed of.