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Judgment
Heard Mr. R. Mazumdar, learned counsel for the petitioners. Also heard Ms. A. Gayan, learned CGC appearing for the respondents.
By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the Signal dated 18.03.2019 (Annexure-1 to the
affidavit-in-opposition) issued by the Inspector General (North East Sector) Central Reserve Police Force (CRPF for short), thereby transferring the
petitioner to 112 Bn. CRPF as well as the Speaking order dated 05.08.2019 (Annexure-D to the writ petition) issued by the Director General, CRPF
thereby deferring the transfer of the petitioner from Group Centre, CRPF, Guwahati to 112 Bn. CRPF for a period of 1 (one) year i.e. up to
20.08.2020 on medical ground, further directing that the petitioner would be relieved on transfer to 112 Bn. CRPF on 21.08.2020. The petitioner has
also prayed for directing the respondent authorities to reconsider the order dated 18.03.2019.
The case of the petitioner, in brief, is that he is presently aged about 53 years and working as Havildar (General Duty) in CRPF. It is projected that
as provided in the Office Order dated 01.03.2018, a Havildar, General Duty below the age of 38 years old shall not be deployed in Special Operation
Zone and/or Hard Field Area. Accordingly, the learned counsel for the petitioner has submitted that the respondent authorities could not have
transferred the petitioner to 112 Bn., CRPF, which is located in Special Operation Zone. By referring to medical documents, the learned counsel for
the petitioner has submitted that the petitioner is required to be placed in Low Medical Category of P2(P) as he is suffering from cardiac problem and
that apart from undergoing open heart surgery previously, angioplasty has also been conducted on him on 24.05.2021. In order to show that the
petitioner was not liable to be transferred to the Special Operation Zone and/or Hard Field Area, the learned counsel for the petitioner has referred to
the Standing Order No. 4/2008 dated 15.12.2008, which relates to employability limits in P2 category is “fit for duties not requiring severe stressâ€.
It is submitted that Standing Orders issued by the CRPF are on the basis of authority which flows from Rule 4 of the CRPF Rules, 1955 and
accordingly, those Standing Orders are “statutory ordersâ€, which are issued to supplant the CRPF Rules, 1955.
Per contra, the learned CGC has referred to the affidavit-in-opposition filed by the respondents and she has also sent through email to the Court a
copy of Signal/Selo bearing no. J.II-1/2021-NES-ADM-I dated 26.07.2021 received by her from the DIG (Adm) NE Sector and addressed to the AC
(Legal) NES Guwahati. The said signal is quoted below:
“U/C(.) IA (Civil) No. 1141/2021 in r/o No. 3649/2020 filed by NO. 850820925 HC/GD Anup Kumr Khirali of CG CRPF Guwahati v/s
UOI & 4 Ors in the Hon’ble High Court Guwahati against allotment on transfer from GC CRPF Guwahati to 112 BN CRPF(.) Pse refer
your office signal No. J.II-34/2020-NES-PAIRVI dated 23/07/2021(.) Parawise remarks of your office signal under reference is produced
below:
Yes, Non-Gazetted personal are issued transfer as per standing order 07/2015.
No, as per Standing Order No.7/2014, transfer order of Gazetted Officers’ are issued.
No, 112 BN of CRPF does not come under special operation zone. It comes under LWE area (Left Wing Extremism effected districts)
where solders are deputed for ante naxal operations.
As per IG (Pers) Dte letter No.T.9/I-PERS dated 08/06/2017, 112 BN CRPF location is declared as High Risk and Hardship area.
(.) Therefore above matter is submitted for your perusal and further necessary action////-â€
It is also submitted that in the first round of litigation being WP(C) 4641/2019, the only grievance of the petitioner was that he may be excused from
transfer for a period of 1 (one) year and on such prayer, this Court by order dated 28.06.2019 had directed that the respondent no.2 shall
sympathetically consider the representation of the petitioner for deferring his posting for 1 year in terms of the policy and other relevant rules
governing the field by issuing a speaking order in this regard. It is submitted that accordingly, by virtue of order dated 05.08.2019 (Annexure-D to the
writ petition), the transfer of the petitioner was kept in abeyance for one year up to 20.08.2020 on medical ground. It is submitted that as per
communication under memo no. T.9/I-Pers dated 17.09.2019 (Annexure-5 to the affidavit-in-opposition), the allocation of 112 Bn. CRPF is not
categorized as Special Operation Zone Unit and in this regard, paragraph 8 of the said affidavit-in-opposition is referred to.
By referring to the affidavit-in-opposition, it is projected that the petitioner has already availed 18 (eighteen) years of static/peace posting, therefore,
there is no impediment for the petitioner to perform his duty in 112 Bn., which is not under the Special Operation Zone. Referring to the Signal/Selo
dated 26.07.2021, which was sent by email, the learned CGC has submitted that as per instruction at paragraph 3 thereof, the specific instruction
received is to the effect that 112 Bn. does not come under Special Operation Zone and it comes under LWE area (Left Wing Extremism effected
districts) where soldiers are deputed for ante (sic.) naxal operations.
On perusal of the stand taken by the respondents in their affidavit-in-opposition and the stand taken in the Signal/Selo dated 26.07.2021, it appears
that the respondents are taking a very contradictory and/or confusing stand. In paragraph 8 and 13 of the affidavit-in-opposition, categorical stand of
the respondents is that 112 Bn. does not come under Special Operation Zone. In the instruction no.3 of Signal/Selo dated 26.07.2021, it is stated that
112 Bn. of CRPF does not come under Special Operation Zone but it comes under LWE area (Left Wing Extremism effected districts) where
soldiers are deputed for anti-naxal operations. In instruction no.4 of the same signal/selo, it has been mentioned that “as per IG (Pers) Dte letter
No.T.9/I-PERS dated 08/06/2017, 112 Bn. CRPF location is declared as High Risk and Hardship area. The confusion created by three stand is further
aggravated from Annexure-5 of the affidavit-in-opposition, which is notification bearing memo no.T.9/I-Pers dated 17.09.2019. As per row no. 15 of
Appendix-D thereto, 112 Bn. is Category-B area i.e. Hard Field Area and is located at Chiyanki under Daltonganj district of Jharkhand. The said
notification dated 17.09.2019, however, bears reference to para-2(v) of the Standing Order no. 07/2014 regarding Transfer Policy for Gazetted
Officers (Executive and Medical Officers). There is nothing in the said Standing Order no. 7/2014, from which it can be inferred that the said
document would apply for petitioner, who is holding the post of Havildar, General Duty. The specific assertion of the learned counsel for the petitioner
that Havildar in CRPF is of a rank of “Non- Gazetted†personnel is accepted by the learned CGC. The learned counsel for the petitioner has
produced a copy of Standing Order No.7/2015 under Memo No.T.IX-1/2015-Estt of August, 2015 (date not mentioned therein), which is under subject
of “Transfer of Non-Gazetted (Executive/ Technical/ Tradesman) Force Personnel Including Mahila Personnel†and referring to the contents
thereof, it is submitted that the said standing order covers the petitioner and in this regard, paragraph 7 to 10 thereof is referred to. The correctness of
the stand of the learned counsel for the petitioner is affirmed from instructions no.1 of the Signal/Selo dated 26.07.2021, which states that “Yes,
Non-Gazetted personnel are issued transfer as per Standing Order 07/2015â€. At Sl. No.2, it is indicated that “No, as per Standing Order
No.7/2014, transfer order of Gazetted Officers’ are issuedâ€. Therefore, when the petitioner is neither a Gazetted Officer (Executive) nor a
Medical Officer, it is not understood for what purpose Annexure-5 has been appended to the affidavit-in-opposition, which contains reference to the
Standing Order No. 7/2014.
Thus, the stand of the respondents in para-8 of their affidavit- in-opposition, stating that as per Pers. Dte letter no. T.9/I-Pers dated 17.09.2019, 112
Bn. CRPF is not categorized as Special Operation Zone Unit, appears to be a false stand, not supported by any document material to the enquiry. As
already mentioned above, at the cost of repetition, it may be stated that as per Appendix-D of the aforesaid letter dated 17.09.2019, 112 Bn. located at
Chiyanki in Daltonganj District of Jharkhand is a Category-B (Hard Field Area). Therefore, the petitioner has been able to establish his stand that as
per Annexure-A to the writ petition, the age limit proposed to transfer and post Head Constable (General Duty) is 38 years.
The Court is conscious of the fact that transfer is an incidence of service and the employer has all freedom to post an employee as per its discretion
and the Courts should be slow to substitute its decision on the discretion exercised by the employer. In this regard, reference may be made to the
following cases, viz., (1) Union of India Vs. S.L. Abbas, (1993) 4 SCC 357, (2) Major General J.K. Bansal Vs. Union of India, (2005) 7 SSC 227, (3)
Union of India Vs. Deepak Niranjannath Pandit, Manu/SC/0149/ 2020: AIR 2020 SC 1492, (4) S.C. Saxena Vs. Union of India and others, (2006) 9
SCC 583, (5) State of Haryana Vs. Kashmir Singh (2016) 13 SCC 306. However, in the present case, the fact situation is distinguishable. In the
present case, the transfer and postings in the CRPF is made by virtue of Standing Orders. The power and authority to issue Standing Orders are
flowing from the provisions of Rule 4 of the CRPF Rules, 1955. Therefore, Standing Orders issued by competent authority of the CRPF are statutory
rules and notwithstanding that words like “guideline†may have been used in the Standing Orders, the fact remains that the Standing Orders are
statutory orders as envisaged under Rule 4 of the CRPF Rules, 1955. In the present case in hand, it has been held that transfer of the petitioner, a
CRPF personnel in the rank of Head Constable (General Duty) is covered by Standing Order no. 07/2015. As per Annexure-A to the writ petition,
which is a Office Order bearing no. T.IX-01/2018-Estt.D.A.1 dated 01.03.2018 issued by the D.I.G. (Establishment) with approval from the Director
General, CRPF, the age criteria of transfer to Special Operation Zone was made as it had come to their notice that there is no age party/ criteria for
transfer of NGOs (Executive) personnel to Special Operation Zones. Therefore, this present case is found to be distinguishable on facts and therefore,
the respondents are required to take a decision on transfer of the petitioner in accordance with the Standing Order No. 07/2015 read with Office
Order No. T.IX-01/2018-Estt.D.A.1 dated 01.03.2018 issued by the D.I.G. (Establishment).
Accordingly, the Court has no hesitation to set aside and quash the (i) Signal No. T.IX-03/2019-NES-Adm-I dated 18.03.2019, issued by the IG
NES CRPF, transferring the petitioner to 112 Bn. CRPF; and (ii) Order dated T-IX-17/2019 Estt-DA-4 dated 05.08.2019, by which the petitioner was
relieved on 21.08.2020 on transfer to 112 Bn. Accordingly, in light of the discussions above, if the competent authority of the CRPF is inclined to
transfer the petitioner, they would pass a fresh order of transfer in accordance with their Standing Orders and Officer Orders in force, after taking
into account the age and medical condition of the petitioner. Till such time, the petitioner shall remain attached to the present place of posting.
The Director General, CRPF (respondent no.2) shall enquire into and find out the reason why confusing and false stand was taken by the
respondents in their affidavit-in-opposition with unnecessary/ irrelevant document (specifically Annexure-5) was filed in connection with this case and
to take remedial measures so that correct stand is henceforth taken in proceedings before this Court.