Nilendri Kumari Swain vs Union of India and others

L. Mohapatra, J.—The petitioner in this writ application has challenged the order of transfer dated 21-6-2000 wherein she has been transferred from Bhubaneswar to Durgapur.

The petitioner was appointed as Asst. Sub-Inspector (M) on 9-1-1997 and joined at Group Centre, C.R.P.F., Allahabad on the very same day. She served in Allahabad Group Centre from 9-1-97 to 11-9-98 and was transferred to Group Centre, C. R. P. F, Bhubaneswar as her father was serving as Head Constable at C. R. P. F., Bhubaneswar. While the petitioner was continuing at Bhubaneswar, her father was transferred on 5-1-1999 to 39 Battalion at Jammu and the petitioner had to shoulder the responsibility of four sisters, mother and grandmother, On 21-6-2000 the petitioner has been transferred from Bhubaneswar to Durgapur and the said order is under challenge in the writ application.

Learned counsel for the petitioner submits that Standing Order No. 3/99 lays down transfer policy of ministerial Staff. Under Clause 3(a) of the said policy the tenure of posting is 4 years and the petitioner has completed one year and nine months only. The other ground on which the order of transfer is challenged is that some other lady employees who have continued for more than four years or joined prior to the petitioner in Group Centre, Bhubaneswar have not been disturbed, whereas the petitioner who has completed only 1 year and 9 months has been deliberately disturbed.

Counter has been filed on behalf of the opposite parties wherein it is stated that as per transfer policy ladies staff should be posted in such a way that their number in one sector/ range/G. C. is not excessive. They should be posted within the sector/range in reasonably equal proportion. Therefore, the petitioner had to be transferred in order to rationalise the position of lady ministerial staff in terms of the transfer policy.

So far as the second contention of the petitioner is concerned, it is stated in the additional affidavit filed by the opposite parties that there is one lady employee who has completed more than four, years in the Group Centre at Bhubaneswar and she has not been transferred as her representation for transfer to Kerala is pending consideration before the Director-General, C. R. P. F. New Delhi. The other lady ministerial staff who joined in Bhubaneswar Group Centre prior to the petitioner has been retained because of their respective husbands are also posted at Bhubaneswar.

There is no dispute that the petitioner has been transferred from Bhubaneswar Group Centre to Durgapur Group Centre after working at Bhubaneswar for 1 year and 9 months. Clause 3(a) of the transfer policy runs as follows :

"The tenure of posting of all combatised and non-combatised staff in Directorate-General, Office of Is GP/D/s GP and GCs/Training Institutions/Base Hospitals/ Duty Battalions, other static offices located in the area other than North East region and Jammu and Kashmir shall be four years."

The above clause in the transfer policy indicates that normally an employee should not be disturbed unless he/she completed four years at a particular station. Clause 3(c) states that the crucial date for completion of tenure of posting will be 31st March. On contravention, of the policy the petitioner has been transferred after completing only 1 year and 9 months at Bhubaneswar that to in the month of June, 2000. Therefore there has been contravention of the both clauses of the transfer policy.

Learned counsel for the opposite parties relied upon Clause 6(e) of the transfer policy and submitted that since there should be rationalisation of lady ministerial staff indifferent Group Centres transfer of the petitioner was inevitable and should be treated as transfer under administrative exigency. From the additional affidavit filed by the opposite parties it appears that Inspector (PA) R. Shanti has been continuing at Bhubaneswar from 26-12-1995. Even though she has completed four years of service at Bhubaneswar she has not been transferred only on the ground that her representation before the D. G., C.R.P.F., New Delhi is pending consideration and she has sought for transfer to her home State, Kerala. A.S.I.(M) Santhya also joined prior to the petitioner i.e., on 4-9-1997 and has been allowed to continue at Bhubaneswar only on the ground that her husband is also serving in C.R.P.F. posted at Bhubaneswar. A. S. I. (M) Anzima Deimary who joined one month after the petitioner at Bhubaneswar has been retained at Bhubaneswar on the ground that her husband is serving in Bhubaneswar Group Centre.

In the counter-affidavit filed by the opposite parties in para-5, a specific averment had been made that no staff who has completed more than 4 years is continuing at the Group Centre, Bhubaneswar. The statement appears to be incorrect in view of the admission of the opposite parties in the additional affidavit that Inspector (PA), R. Shanti has been continuing at Bhubaneswar Group Centre since 26-12-1995. Further statements from the additional affidavit show that the Inspector (PA) R. Shanti is working as Personal Assistant to the Additional D. I. G. P. which is a specialised post arid the rank Of Personal Assistant is different from that of the petitioner (two ranks higher) is also of no consequence as principle on which transfers are made are that there should be rationalisation of lady ministerial employees in all the Group Centres and as far as practicable the number should be equal in all the Group Centres. The policy does not speak of post held by the lady ministerial staff. Further statement made in the additional affidavit that after completion of the tenure the said R. Shanti bad a personal interview by filing a representation on 9-2-2000 with Director-General, C.R.P.F., New Delhi for her posting to a Group Centre nearer to her home Town and for the aforesaid reason her transfer was not considered during rationalisation of lady ministerial staff, also does not appear to be correct.

Annexure-A to the said additional affidavit speaks of personnel who appeared before the D.G, and submitted their problems. So far as R. Shanti is concerned, it further appears that she requested for a posting to Avadi/Bangalore based offices on-domestic grounds and the note appended to the said Clause (iv) shows that she was reported to have completed four years at Bhubaneswar Group Centre and her case was directed to be considered on comparative merits and administrative expedience during next summer, chain postings. This noting was made on 21-2-2000. In spite of that she has been retained at Bhubaneswar against the policy, of rationalisation. It is further evident from Annexure-A to the counter affidavit that after receipt of the order of transfer the petitioner made representation for reconsideration of the order of transfer on 24-6-2000. In the said representation (Annexure-3) she had submitted that she is residing with her family consisting of mother, four sisters who are younger to her and that her father is serving in 39Bn C.R.P.F. posted in Jammu. She has also stated that her mother is suffering from acute and chronic Asthma and her four younger sisters are studying in Oriya Medium. She is the only senior member of the family to look after her mother and sisters and in absence of her father if she is transferred from Bhubaneswar her family will be in distress as none of them is capable to take care of her family in her absence. Considering the said problems of the petitioner, the Addl. D.I.G.P. in his letter addressed to Inspector General of Police dated 30-6-2000 has indicated that the petitioner sought for an interview with the D.I.G.P. on 30-6-2000 and after hearing her it was felt that the problems projected are genuine and therefore her application was forwarded to the I.G.P. for consideration. In Annexure-8 to the counter-affidavit said representation was rejected only on the ground that she has been transferred due to administrative exigencies. Problems of the petitioner which were considered and found to be genuine were not at all taken into consideration while rejecting her representation vide order under Annexure-B to the counter.

Under these circumstances, it is desirable that the authorities should reconsider the prayer of the petitioner as made in her representation in Annexure-3 and to look into the actual problems of the petitioner. Courts have limited jurisdiction in interfering the orders of transfer, but it cannot close its eyes when it appears that genuine difficulties of an employee on transfer accepted by one authority is not considered at all by higher authority.

I, therefore, dispose of the writ application directing the opposite party No. 3 to reconsider the representation of the petitioner taking the difficulties mentioned in her representation into consideration and pass necessary orders within a period of two months from the date of communication of this order. Till disposal of the said representation the petitioner shall be allowed to continue at Bhubaneswar.

Application dispose of.