Hitesh Kumar vs The Union of India & Ors

This Writ Petition is directed against the impugned order passed by the second respondent viz., The Director General, Central Industrial

Security Force (CISF), New Delhi dated 04.09.2017, in and by which the second respondent, who is the competent authority, has approved the

posting of Constables (GD) and Constables/TM as mentioned in Appendix-""A"" attached to that order, transferring 113 personnel from one place

to another and the order dated 15.09.2017 passed by the third respondent viz., Inspector General (Western Headquarters), Kharghar, in and by

which the third respondent has issued posting order for the aforementioned 113 personnel and the consequential order dated 29.12.2017 passed

by the fifth respondent viz., The Commandant, CISF, Airport Security Group (Chennai), Chennai, relieving the petitioner from Chennai.

Mr.V.Raghavachari, learned counsel for the petitioner, while heavily assailing the impugned order, submitted that the petitioner was subjected to

departmental proceedings by issuing Charge Memo dated 30.08.2017 on the allegation that the petitioner has informed/requested his own group

of friends in WhatsApp not to sign the form of TPT allowance stating that the respondents are using old time tactics and therefore, they should go

through the contents of the form and then they should wait for some time till suitable order is obtained from the Court. The petitioner submitted his

explanation denying the charge on the ground that the abovementioned message given to his own group of friends will not amount to misconduct.

The respondents disallowing the petitioner''s explanation, proceeded further by appointing an Enquiry Officer and on completion of enquiry, the

petitioner was found guilty of the charges and thereupon, an order of punishment dated 29.12.2017 was issued against the petitioner, imposing

punishment of stoppage of increment for 2 years with cumulative effect and immediately, on the same day, the respondents have issued the

impugned transfer order, posting the petitioner in LWE (Left Wing Extremist) affected area, which is punitive in nature, hence, the transfer order

cannot be passed with punitive nature.

Again assailing the impugned order of transfer, the learned counsel for the petitioner further pleaded that the respondents cannot punish the

petitioner twice for the same charge and while the petitioner was imposed with punishment of stoppage of increment for 2 years with cumulative

effect, vide order dated 29.12.2017, posting the petitioner in LWE affected area again after completing two years clearly shows that the impugned

order was issued with malafide intention to harass the petitioner. The learned counsel for the petitioner drawing the attention of this Court to

Guidelines for Posting/Transfer of CISF Personnel in Circular No.22/2017 dated 25.09.2017 issued by the second respondent, more particularly

Clause 37(c) stated that the posting tenure in LWE affected units and Uri-I, Uri-II, PGCIL Wagoora, DHEP Dulhasti, 7th RB Kistwar, DHEP

Doyang would be 2 years and the tenure at proposed KGHPP deployment in Gurej Valley and Bandipora shall also be for 2 years and the tenure

of other units located in hard area will be 3 years. But in the present case, the petitioner has already completed the tenure of 2 years in hard area

and after imposing him the punishment of stoppage of increment for 2 years with cumulative effect, he cannot be again imposed with punishment by

way of transfer, more particularly to LWE affected area, which is meant for fresh personnel who have not served in LWE affected area.

Again the learned counsel for the petitioner also inviting the attention of this Court to Clause 37(f) of the Guidelines for Posting/Transfer stated

that posting of a person belonging to a State where Hard Area unit is located would be considered only one Hard Area posting notwithstanding

any number of tenures served by him in hard area, in his Home State, but in the case on hand, the petitioner has not completed 7 years of service

and therefore, reposting the petitioner again in LWE affected area is not only untenable but also contrary to the transfer guidelines. Concluding his

argument, the learned counsel for the petitioner argued by referring to Clause 39(xiii) of the Guidelines for Posting/Transfer which states that

personnel with punishment, bad behaviour, bad habits (drunkenness) etc., may not be posted to sensitive units and admittedly, the petitioner, on

the date of transfer is carrying the punishment of stoppage of increment for 2 years with cumulative effect, vide order dated 29.12.2017 and

therefore, even as per their own transfer guidelines, the respondents should not have posted the petitioner in sensitive unit, especially when he has

already served for more than 2 years in hard area.

Per contra, Mr.S.Arockiam, learned Central Government Standing Counsel for the respondents submitted that the impugned order of transfer

cannot be considered as double punishment for the reason that when the second respondent has passed en masse transfer order dated 04.09.2017

transferring 113 personnel from one place to another, the third respondent has issued consequential posting order dated 15.09.2017 and pursuant

to those two orders, the fifth respondent has issued the present relieving order dated 29.12.2017 and since the order of punishment dated

29.12.2017 and the relieving order are coincidental, the petitioner conveniently takes a ground against the respondents as if he has been imposed

with punishment twice, which is factually incorrect.

This Court also finds merit in the said submission of the learned Central Government Standing Counsel for the respondents for the reason that

the second respondent has chosen to effect en masse transfer, vide order dated 04.09.2017 transferring as many as 113 CISF personnel all over

the country to various places, in pursuant to the order passed by the competent authority. The third respondent has passed the posting order dated

15.09.2017 and consequently, the Commandant, CISF, Chennai/fifth respondent herein has relieved the petitioner from Chennai to BIOM

Kirandul, vide order dated 29.12.2017. Therefore, I do not find any punitive colour on this transfer order.

The second contention of the learned counsel for the petitioner is that as per Clause 37(c) of the Guidelines for Posting/Transfer of CISF

Personnel dated 25.09.2017, the posting tenure in LWE affected units would be two years. However, Clause 39(xx) of the very same transfer

guidelines says that notwithstanding the guidelines contained in this circular, any personnel may be posted anywhere at any stage by the competent

authority without assigning any reason and these guidelines shall not come in the way of such transfer/posting. In view of the Non Obstante Clause,

Clause 37(c) cannot come in the way of the transfer order. Besides, in the case on hand, while the second respondent took decision to transfer

113 personnel including the petitioner, the petitioner was facing departmental proceedings and the reliving order of the fifth respondent dated

29.12.2017 also clearly says that the petitioner will be relieved on posting on BIOM Kirandul from Chennai after completion of Departmental

Enquiry under Rule -36 of CISF Rules, 2001. Thus it makes it clear that even the third respondent was unaware of the result of departmental

proceedings initiated against the petitioner, hence it cannot be taken as an order passed with punitive nature.

This Court is not inclined to entertain this writ petition on the ground that the petitioner either cannot be posted in the LWE affected areas or he

should not be re-posted after completion of 2 years in LWE affected unit.

In the result, this Writ Petition fails and accordingly, it is dismissed. Needless to mention that the petitioner is granted two weeks from today to

report to the place where he has been transferred through the impugned order. No costs. Consequently, connected miscellaneous petitions are

dismissed.