Prasanta Karmakar vs Union Of India & Others

Heard the petitioner in person and Mr. G. Krishna Moorthy, the Law Officer, BSF. The petitioner is a Constable of the Border Security Force and at

present is posted at the Krishnagar Unit since September 30, 2014. The respondents have issued an order of transfer to the petitioner along with

others. The petitioner has been transferred to 36th Batallion in the district of Malda. The petitioner states that he was married in the year 2009 and till

now he has no issue. His wife is undergoing a treatment in Kolkata. He wants to stay in Krishnagar till the treatment of his wife is completed.

Mr. Krishna Moorthy submits that for a Constable attached to any unit of the Border Security Force the static formation is three years. The petitioner

has been retained in the present unit for more than three and a half years. The order of transfer that has been issued was routine one and the same

may not be interfered with on the ground of the wife’s treatment. It appears that the petitioner was posted to the Krishnagar Unit on his prayer. In

his representation to the authority he made out a case that the doctors advised him to continue his treatment upto eight months for better result and the

doctors also advised him to keep his wife with him till the completion of the treatment. This, however, does not appear from the medical certificate by

the treating doctors as annexed to the writ petition nor does it find place in the pleading of the petitioner.

Moreover, the petitioner and his wife are not residing at the same place even now. In paragraph 3 of the writ petition it has been admitted that the

petitioner is residing in Krishnagar and his wife is residing in the district of Purba Burdwan. The petitioner has also not been able to establish that the

treatment his wife is undergoing in Kolkata is not available in the district of Malda or in any of the hospitals of North Bengal. There is no averment to

that effect in the writ petition.

The petitioner submitted that from Krishnagar it may be more convenient for him to keep contact with his wife. The question of marginal convenience

and that too for keeping contact with the wife a little more frequently than what may be possible from Malda, is no ground for interfering with a

routine order of transfer. It is all the more so when the petitioner can definitely commute from Malda. An employee and that too of a disciplined force

cannot thwart an order of transfer on such a ground after completing the normal tenure of posting at a certain unit.

That apart, the submission of the petitioner that the doctors have advised continuous check-up of his wife is not borne by he medical prescriptions and

documents annexed to the petition. The frequency of the required visits to the concerned medical centre has neither been mentioned by the petitioner

nor does it transpire from the documents. In the absence of any such positive evidence it is difficult to accept the stand of the petitioner that the order

of transfer will affect the course of treatment. Admittedly the respondents have shown sufficient consideration for the petitioner by posting him to

Krishnagar on his own prayer which was about three and a half years before. It will be too much for the petitioner to ask for his retention in the said

unit till the treatment of his wife is over the timeframe for which has not been mentioned in the medical documents annexed to the writ petition.

The petitioner has alleged in the writ petition that the order of transfer is vindictive, arbitrary and has been made with a sinister motive. It has already

been mentioned that the order of transfer is a routine one by which as many as fifteen Constables have been directed to move from their respective

places of posting to different units of the Border Security Force. It is not a case that he has been singled out by the respondents in a bid to punish him.

It is a settled principle of law that an employee appointed on a transferable post must treat the order of transfer as a normal incidence of service. He

has no vested right to remain at a certain place of posting nor can he insist that he may be retained at his present place of posting for any length of

time. If a routine order of transfer is passed the Courts will be very slow to interfere unless of course the petitioner satisfies that the order has been

passed either malafide or against the statutory rules. In the exercise of the judicial review the Courts cannot disturb the usual administrative practice

followed by the respondents.

After all a Court is not an appellate forum to decide on the transfer of officers on administrative ground. In the case of State of Madhya Pradesh &

Another vs. S. S. Kourav & Others, reported in AIR 1995 SC 1056, the Supreme Court observed that the wheels of administration should be allowed

to run smoothly and the Courts are not expected to interdict the working of the administrative system by transferring officers to proper places. It is for

the administration to take appropriate decisions and such decisions shall stand unless they are vitiated by malafide or by extraneous consideration

without any factual foundation.

The same has also been the principle of law laid down in umpteen number of cases. In Union of India vs. S. L. Abbas, reported in AIR 1993 2444, the

Supreme Court had laid down the same principle of law that an employee cannot be heard to challenge an order of transfer unless it is vitiated by

malafide or passed in derogation of any provision of the service rules. The limit of the Court to interfere in respect of an order of transfer has been set

in SBI vs. Anjan Sanyal, reported in 2001 SC 1748 where the Supreme Court held that only if an order of transfer is malafide or passed by

incompetent authority or impermissible under the service rules a Court can interfere with the same.

In the present case the petitioner could not establish any of the criteria mentioned in the case of Anjan Sanyal (Supra) justifying an interference by the

Court. The purported reasons put forward by the petitioner for thwarting the order of transfer are neither borne by the medical records produced by

the petitioner nor do they appear to be convincing. I find nothing vindictive or arbitrary in the order of transfer as pleaded in the writ petition. The writ

petition does not merit any consideration and the same is dismissed. There will be no order as to costs. Urgent photostat certified copy of this order, if

applied for, be supplied to the parties on priority basis.