Mizanur Rahman vs State Of Assam And 4 Ors

Heard Mr. H.R.A. Choudhury, the learned Senior Counsel assisted by Mr. A. Ahmed, the learned counsel for the writ petitioner. Also heard Mr.

K.K. Parasar, the learned CGC appearing for all the respondents.

This is the second time, the petitioner has come before this Court. The earlier round of this writ petition filed by the petitioner being WP(C) No.

2888/2017 was disposed of vide order dated 17.05.2017 at the motion stage by directing the petitioner to submit his representation to the respondent

authorities which in turn should be considered and disposed of by the respondent authorities concerned by way of a speaking order. It was further

observed that until such speaking order was passed, the impugned transfer order dated 27.04.2017 should not be given effect to.

As may be noticed, the petitioner is aggrieved with the Transfer Order dated 27.04.2017 by which, he is transferred from the 10th Battalion of the

Central Reserve Police Force (CRPF) which is stationed in Barpeta Howly to the 74th Battalion of the CRPF stationed at Dantewada, Chattisgarh.

As directed by this Court, the petitioner submitted his representation before the respondent authorities concerned on 25.05.2017 for cancellation of

his transfer to Chattisgarh on compassionate ground and for his further retention in 10th Battalion of the CRPF for another year. The respondent

authorities concerned thereafter, vide order dated 23.06.2017 rejected the representation of the petitioner for cancellation of his transfer order to

Chattisgarh.

Being aggrieved, the petitioner has approached this Court again through the present writ petition challenging the impugned order dated 23.06.2017

rejecting his representation and likewise, the Transfer Order 27.04.2017.

The learned Senior Counsel Mr. H.R.A. Choudhury submits that the transfer and posting of Paramedical Staff in the CRPF is governed by the

Standing Order No. 9 of 2015, which was issued by the Director General of the CRPF at New Delhi on 22.12.2015. Referring to paragraph 10 of the

Standing Order, the learned Senior Counsel submits that transfer on extreme ground will be considered on merit, if the official or his family member

are suffering from diseases mentioned in paragraph 10 (i) of the Standing Order. Amongst the diseases prescribed, CAD (Coronary artery

disease/Thalassaemia has also been mentioned. The learned Senior Counsel submits that the mother of the petitioner is an old aged lady 74 years and

she is suffering from Hypertension Coronary Heart decease and bilateral sensory neural deafness which is covered by paragraph 10 (i) of the

Standing Order. Therefore, on this ground alone, the respondent authority ought to have re-considered the transfer of the petitioner. He further

submits that the elder son of the petitioner is studying the Clause-X and due to face the Board Exam shortly and therefore, paragraph 17 (viii) is

further attracted. He submits that as per this clause, transfer to and from static institution and battalions should not be done in the middle of academic

session expect in case of promotions or exigencies of services or on the ground of operational need. He therefore submits that even on this count, as

there will be interruption in the academic session of the elder son of the petitioner, the respondent authority ought to have made favourable

consideration and modified the transfer order of the petitioner.

The learned Senior Counsel by referring to Annexure-A to D appended to the affidavit-in-reply filed by the petitioner on 10.09.2018 further

contends that there are instances in case of other Pharmacists under the respondent organization who have been posted in the State of Assam

continuously for more than 6 to 11 years. He submits that the Standing Order has not been equally or uniformly applied to all the paramedical staffs

under the respondent organization. Considering the fact that some Pharmacist have been continuing their posting in Assam to the last 11 (eleven)

years he submits that the respondent authorities ought to have considered the petitioner’s representation favourably. He thus submits that the

impugned Transfer Order dated 27.04.2017 in so far as the petitioner is concerned should be interfered with by this Court and the petitioner be

allowed to continue in his present place of posting.

Mr. K.K. Parasar, the learned CGC by referring to the affidavit-in-opposition filed by the respondents on 15.02.2017 submits that the petitioner has

served in the Northeast since 10.09.2005 and particularly in Assam, from 03.08.2009. When the impugned transfer order was issued on 27.04.2017,

the petitioner had already completed more than 9 (nine) years of his tenure in Assam. By referring to the Standing Order, the learned CGC submits

that the normal tenure of posting in a battalion amongst others is generally for 3 (three) years. The tenure can however be extended or shortened

depending upon administrative and strategic requirements. As can be seen, the petitioner by now has completed over 9 years tenure in the 10th

Battalion and therefore, he is more than due to be posted out.

The learned CGC further submits that the impugned Transfer Order dated 27.04.2017 is a Summer Chain Transfer of paramedical staffs under the

respondent organization and pursuant to transfer of the petitioner by the impugned order, one Jayanta Musahary, Assistant Sub-Inspector/Pharmacist

of 210 Cobra Battalion reported to the 10th Battalion CRPF on 19.06.2017. Therefore, the contention of the petitioner that he is only the Pharmacist

available in the 10th Battalion requiring reconsideration of the impugned Transfer Order is only misconceived. Thus, the impugned transfer order dated

27.04.2017 should not be interfered with by this Court.

In conclusion, the learned CGC submits that unless a transfer order is shown to be issued in violation of statutory provision or shown to be a

malafide exercise, the interference of the same by the Court is limited and to substantiate his submission in this regard, he relies upon the following

authorities:-

(1) Manu/SC/0147/199(SLP/7794/1999, Ms. Shilpi Bose Vs. State of Assam & Ors.

(2) State of U.P. & Ors. Vs. Siya Ram & Anr. (2004) 7 SCC 405.

I have heard the submissions advanced by the learned counsel for the rival parties and I have perused the materials available on record.

As may be noticed, the representation of the petitioner filed on 25.05.2017 was disposed of by the respondent authority vide order dated

23.06.2017. The grounds taken by the petitioner for cancellations of his transfer vide the impugned order dated 27.04.2017 was rejected. The question

therefore is as to whether this Court in exercise of its extraordinary powers conferred by Article 226 of the Constitution should interfere with the

impugned Transfer Order dated 27.04.2017. Reliance have been placed by the rival parties on the Standing Order dated 22.12.2015. The Standing

Order amongst others, provide for the grounds under which transfer can be considered. The grounds amongst others provides the consideration of

transfer on medical grounds. The plea taken by the petitioner that his old aged mother is suffering from hypertension and coronary heart decease

which therefore requires him to remain stationed in Howly, Assam was taken into account by the respondent authority and likewise, the academic

impediment due to his son studying in Howly was also taken into consideration. However, the grounds taken by the petitioner were not found to be

compelling reasons for not transferring him out of Howly and considering the fact that he has served more than 7(seven) years in Assam, his

representation was thus rejected.

The settled position in law is that transfer is not only an incident of service but a condition of service. The Apex Court the case of Ms. Shilpi Bose

& Ors. (supra) held that Courts should not interfere with a transfer order made in public interest and for administrative reasons unless, the transfer

order is made in violation of any mandatory statutory Rule or on the ground of malafide. The relevant portion of the said judgment may be reproduced

for ready perusal:-

“In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless the

transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide. A Government servant holding a transferable post

has no vested right to remain posted at on e place or the other, 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 rights. Even if a transfer Order is passed in violation of executive instructions or Orders, the Courts

ordinarily should not interfere with the Order instead affected party should approach the higher authorities in the Department. If the Courts continue to

interfere with day-to-day transfer Orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration

which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders.â€​

In the case of Siya Ram & Anr. (Supra), the Apex Court held that the High Court in exercise of its jurisdiction under Article 226 and 227 cannot

go into the question as to whether the transfer was made in the interest of public service as it would essentially require factual adjudication and

invariably depend upon peculiar facts and circumstances of the case concerned. No Government servant or employee of a public undertaking has any

legal right to be posted forever at any one particular place or place of his choice since transfer from one place to another is not only an incident of

service but a condition of service. Courts cannot substitute their own decision for that of the employer/management when the transfer order is passed

in the administrative exigencies of the service concerned.

As may be noticed, the petitioner since issuance of the impugned Transfer Order on 27.04.2017 has also remained in the 10th Battalion at Barpeta

Howly till date while his prayer was for him to remain there for another year. Therefore, under the facts and circumstances and after considering the

case in its entirety, I do not find merit in the writ petition and same is accordingly dismissed, the interim order passed earlier shall stand vacated.

Under the facts and circumstances, there shall be no order as to cost.