Khekhomba Wangkhem vs Union Of India

[1] Heard Mr. I. Denning, learned counsel appearing for the petitioner and Mr. S. Vijayanand Sharma, learned Sr. PCCG appearing for the

respondents.

[2] In the present writ petition, the petitioner is challenging the order dated 18.10.2018 issued by the Assistant Inspector General (PERS) transferring

the petitioner from ASG, Imphal to ONGC, Nazira, Assam. The petitioner has challenged the said transferred order on the following grounds:-

(a) The impugned transfer order had been issued in violation of the guidelines for posting/transferring of gazetted officers in CISF issued by the

authorities under CISF Circular No. 14/2015;

(b) The petitioner had been subjected to frequent transfer;

(c) The impugned transfer order is punitive and stigmatic in nature;

(d) The transferred order had been issued malafide and in arbitrary manner or in colourable exercise of power; and

(e) The person who filed the counter affidavits on behalf of the respondents is neither a party in the present writ petition nor is he a competent or

authorised person to file the counter affidavits on behalf of the respondents. Accordingly, the averment/contention made in the counter affidavits filed

on behalf of the respondents cannot be taken into consideration while deciding the present writ petition and the averment made by the petitioner in his

pleadings should be taken as uncontroverted and the writ petition should be allowed.

[3] In connection with the first ground raised by the petitioner, it has been submitted that the office of the Director General, CISF (Ministry of Home

Affairs) issued a circular No. 14/2015 laying down guidelines for posting/transferring of gazetted officers in CISF.

In Para 2(ii) of the said circular, it is provided that annual transfer orders shall normally be issued by 1st of March. In Para 3(i) of the said Circular, it

is provided that one hard area posting of 2(two) years (extendable by one more year) during the first 8(eight) years of service as far as possible and

under Para 3(ii) of the said circular the hard areas for posting are given and as per the said circular all the Units of North East and J&K are identified

as hard areas. Under Para 3(iii) of the said circular it is provided that the normal period of posting at 1(one) station/Unit shall be for 3(three) years

extendable by another 1(one) year due to administrative/operational exigencies.

[4] The learned counsel for the petitioner submitted that the petitioner had been transferred and posted to his present place of posting i.e., ASG,

Imphal by an order dated 09.10.2017 and hardly after completion of 1(one) year in his posting at ASG, Imphal, the respondents have issued the

impugned transfer order dated 18.10.2018 transferring and posting the petitioner from ASG, Imphal to ONGC, Nazira, Assam before completion of

the period of posting of 3(three) years in complete violation of the tenure posting as contained in Para 3 (iii) of the aforesaid circular No. 14/2015. It is

therefore, contended on behalf of the petitioner that on this count alone, the impugned transfer order deserves to be quashed and set aside.

[5] In connection with the second ground raised by the petitioner, it has been submitted that in the last 7(seven) years of service, the petitioner has

been transferred and posted 5(five) times and that too without completion of tenure at every posting. It is accordingly submitted on behalf of the

petitioner that the petitioner has been subjected to frequent transferred and in arbitrary manner and accordingly, impugned order deserves to be

quashed and set aside on this count also.

[6] In connection with the third ground raised by the petitioner, is is submitted that under the impugned transfer order dated 18.10.2018, altogether

6(six) DC’s including the petitioner had been given transferred and posting. Except for the writ petitioner, all the other 5(five) persons had been

transferred and posted from airport to airport, while the petitioner was singled out and deny posting to another airport. According to the petitioner, such

form of transfer amounts to punishing the petitioner without any fault on his part and such transferred is clearly punitive in nature. It is also contended

on behalf of the petitioner that in the affidavits filed by the respondents such words like “undesirableâ€, “adverse confidential reportâ€,

“possible corruptionâ€, etc., are used as a reasons for issuing the impugned transfer order. According to the petitioner such used of words before

any enquiry being held and any finding being arrived at amounts to stigmatising the petitioner. Accordingly, it has been submitted that the impugned

transfer order deserves to be quashed and set aside on this count also.

[7] In connection with the fourth ground raised by the petitioner, it has been submitted that the petitioner was posted at Imphal Airport after the

authorities considered and accepted his request for posting at home state on the ground of health of the petitioner’s mother, demised of his father

and the petitioner’s marriage. It is vehemently submitted that the impugned transfer order has been issued without allowing the petitioner to

complete the full tenure of such request posting and that too without providing an opportunity of being heard or without considering the representation

dated 11.10.2018 and only to accommodate the respondent No. 4. Such action of the authorities, according to the petitioner, is illegal, arbitrary, bias,

malafide and unconstitutional.

[8] In connection with the last ground raised by the petitioner, it has been submitted that the deponent who filed the counter affidavits on behalf of the

respondents is neither a party in the present writ petition, nor is he a competent or authorised person to file the counter affidavits on behalf of the

respondents in connection with the present writ petition. Accordingly, it has been submitted that all the averments made by the said deponent in the

counter affidavits filed on behalf of the respondents cannot be taken into consideration and the averment made by the petitioner in his pleadings should

be taken as uncontroverted and accordingly, the writ petition should be allowed.

[9] In support of his contentions regarding malafide and the colourable exercise of power, the counsel for the petitioner had relied on the following

judgments reported in (1974) 4 SCC 3 “E.P. RoyappaVs State of Tamil Nadu &Anr. (Para 85),. (2009) 2 SCC 592 (Head Note C and Para 16

and 21), (2005) 4 GLT 371 (Para 15 to 18), (2001) 1 GLT 468 (“Head Noteâ€​) and (1998) 2 GLT 242 (Para 11 to 13).

[10] In support of his contentions regarding the transfer order being stigmatic and punitive in nature, the counsel for the petitioner had relied on the

following judgment reported in (2004) Supple in GLT 827 (Paras 38, 39, 41, 42) and (2004) 4 SCC 245 (Para 11, 12).

[11] In support of his contentions regarding consequence of non denial or uncontroverted facts by filing counter affidavits and consequence of filing

affidavits by a third person, the counsel for the petitioner had relied on the following judgment reported in (2011) 1 GLT (SC) 46 (Para 16 & 18),

(2012) 7 SCC 389 (Para 17 & 19) and (1998) 2 GLT 281 (Para 20).

[12] Lastly, the counsel for the petitioner submitted that the affidavits filed on behalf of the respondents are not properly verified and such affidavits

cannot be treated as an affidavits in the eye of law. In support of his contentions, the learned counsel had relied on the judgment reported in (1991) 2

GLR 231 (Para 10 & 11) and (1998) 2 GLT 193 (Para7).

[13] In answer to the first ground raised by the petitioner, it has been stated by the respondents in their counter affidavit that the impugned transfer

order had been issued transferring the petitioner from ASG, Imphal to ONGC, Nazira, Assam on the basis of adverse confidential report of a serious

nature made against the petitioner so as to enable the authorities to hold a preliminary enquiry to find out the truth or correctness of such allegations

made against the petitioner. It has also been contended that the petitioner being Unit Commander of CISF Units, ASG, Imphal and as all the proposed

witness are posted in Imphal under the petitioner’s command, the proposed preliminary enquiry against the petitioner would be greatly prejudiced

unless the petitioner is transferred out of Imphal, since an officer sub-ordinate to the petitioner would be hesitant to dispose against his senior officer in

all fairness. It is stated by the respondents that it was for this bonafide reason only that the decision for transfer of the petitioner was taken as per

rules.

It is pointed out by the counsel for the respondents that under Para 14(ii) of the Circular No. 14/2015, it is provided that the DG, CISF may transfer an

officer whenever felt necessary in public interest and on administrative/operational exigencies/requirements. It has been submitted that in exercise of

such power under Para 14(ii) of the said circular and only for enabling to hold a preliminary enquiry against the petitioner, the competent authorities

had issued the impugned transfer order and accordingly, there is no illegality or irregularity in issuing the impugned transfer order.

As prayed for by the counsel for the respondents, this Court has also perused the relevant officer files submitted by the respondents before this Court

under sealed cover and on perusal of the said file this Court is satisfied that the impugned transfer order had been issued on the basis of adverse

confidential report of a serious nature made against the petitioner and for the purpose of holding the preliminary enquiry to find out the truth or

correctness of the allegations made against the petitioner.

[14] In answer to the second ground raised by the petitioner, it has been stated by the respondents in their counter affidavit that the petitioner was

appointed in CISF on 02.09.2011 and after completion of basic training at NISA, Hydrabad, he was posted to CISF Unit BSL Bokaro from 17.12.2012

to 29.04.2015. Thereafter, he was posted to CISF Unit BIOM Kirandul complex during general transfer effected in 2015. It has also been stated that

the petitioner was conferred with local rank of Deputy Commandant and posted at the same Unit against the vacant post of AC/JAO by an order

dated 29.04.2016. Subsequently, the petitioner was transferred from BIOM Kirandul to BIOM Bacheli by an order dated 23.08.2016 since the said

vacant post of AC/JAO had been filled up. As there was no vacancy, the petitioner on promotion as regular DC/EXE was adjusted in the same

location as he did not complete the tenure of his hard posting tenure there. On completion of his tenure in hard area, the petitioner was posted to CISF,

ASG, Imphal, i.e., his home State by an order dated 09.10.2017 on the request made by the petitioner. Hence, it is contended that by the counsel for

the respondents that the contentions of the petitioner that he has been transferred frequently does not hold any ground.

On perusal of the records, this Court found that except for the transfer as explained by the respondent in their counter affidavits, the petitioner has not

been subjected to any frequent transfer and there is no ground or materials to support the contentions that the petitioner has been subjected to frequent

transfer.

[15] So far as the third and fourth ground raised by the petitioner is concerned, this Court do not find any materials on record to substantiate the

allegations made by the petitioner that the transferred order is punitive, stigmatic and it has been issued malafide and in colourable exercise of power.

As stated hereinabove, the transferred of the petitioner has been effected on the basis of serious allegations of confidential nature made against the

petitioner and with a view to hold a preliminary enquiry against the petitioner to find out the truth and correctness of such allegations. Holding of a

preliminary enquiry to ascertain the truth and correctness of an allegations made against the petitioner cannot be termed, by any stress of imagination

to be punitive or stigmatic. Transferring the petitioner on the basis of serious allegations made against him and to facilitate holding of a preliminary

enquiry against him cannot be termed as punitive, stigmatic or colourable exercise of power or malafide.

[16] With regard to the fifth ground raised by the petitioner, it has been pointed out by the counsel for the respondents that as per the gazette

notification published on 24.03.1990 under Para (ii)-Section 3-Sub-Section (i), the notification dated 14.02.1990 bearing G.S.R. 167 was published,

wherein the list of persons who are authorised to depose on behalf of the Union of India has been listed. The relevant portion of the said notification

are as Under:

“New Delhi, the 14th February 1990â€​

“G.S.R. 167- In the exercise of the power conferred by rule 1 of the order XXVII of the first schedule of the code of civil procedure 1908 (5 of

1908) and in suppression of the Notification of the Government of India in the Ministry of Law No. SRO 351 dated 25-1-1958 and 165 dated the 1st

September 1953, the central government hereby appoints:-

(i) The officers specified in the schedule annexed hereto as persons by whom the plaints and written statement in suits in any court of civil jurisdiction

or (in writ proceeding ) by or against the central Government shall signed;

(ii) Those of the officers referred to in sub-clause (i) who are acquainted with the facts of the case, as persons by whom such plaints and written

statements shall be verified.â€​

SCHEDULE

“I. GENERAL.

Any Secretary, Additional Secretary, Special Secretary, Joint Secretary, Deputy Secretary, Under Secretary to the Government of India or Desk

Officers/Section Officer.

II. ..

III. ............

XIX. MINISTRY OF HOME AFFAIRS

Central Intelligence Bureau 2. ..

..

Central Industrial Security Force Director General Inspector General Deputy Inspector General Central Industrial Security Force Assistant

Inspector General in the Headquarter Office.â€​

Subsequently, the Department of Legal Affairs, Ministry of Law and Justice, issued another notification dated 09.07.1992, making an amendment to

the 1990 notification with respect to “Schedule XIX†relating to Ministry of Home Affairs for sub heading “4. CISF†and entry relating

thereto and a Commandant was also included as a person who is authorised to deposed on behalf of the Union of India. The said amendment

notification dated 09.07.1992 was published in the official gazette notification dated 25.07.1992 and relevant portions are reproduced as under:

“New Delhi, the 9th July 1992â€​

“G.S.R. 332- In exercise of the powers conferred by rule 1 of Order XXVII of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908),

the Central Government hereby makes the following further amendment in the Schedule to No. S.R.O. 167 dated the 14th February relating to the

signing and verification of the plaints and written statements in the suits in any court of civil jurisdiction by or against the Central Government, namely:-

In the Schedule to the said notification, an item XIX relating to Ministry of Home Affairs for Sub-heading “4 Central Industrial Security Forceâ€

and entry thereto, the following shall be substituted namely:-

“4. Central Industrial Security Force: Director General Deputy Inspector-General Assistant Inspector-General Commandant/Principal, Central

Industrial Security force Recruits Training School/ Centreâ€​.

In view of the aforesaid notifications, this Court finds that the Commandant, CISF, who filed the counter affidavits on behalf of the respondent is a

competent person to represent and file counter affidavits on behalf of the respondents.

[17] This Court has also perused the authorities cited by the counsel for the petitioner and after careful perusal, this Court is of the considered view

that none of authorities relied on by the counsel for the petitioner is applicable to the facts and circumstances of the present case.

The simple issue to be decided in the present writ petition is whether transfer of the petitioner on the basis of serious allegations made against him and

with a view to facilitate a preliminary enquiry against the petitioner to find out the truth and correctness of such allegations can be said to be arbitrary

or illegal. On this question, the petitioner failed to point out any arbitrariness or illegality in effecting such transfer and this Court also did find any

ground for interfering with the impugned transfer order. In view of the above, this Court declines to interfere with the impugned transfer order and

accordingly the writ petition is dismissed as being devoid of merit.

Interim order passed earlier shall stands vacated. Parties are to bear their own costs.