Premvir Singh vs Union Of India

[1] Heard Mr. M. Devananda, learned counsel appearing for the petitioner and Mr. S. Suresh, learned ASG appearing for the respondents.

[2] The present writ petition has been filed praying for quashing and setting aside the impugned transfer order dated 08.06.2018 and order dated

30.08.2019 rejecting the representation of the petitioner, coupled with a prayer for allowing the petitioner to continue in his posting at M&N Sector HQ

as DC (Law).

[3] The case of the petitioner is that he initially Joint Service as Sub Inspector, General Duty and posted in various places in hard and field area

including the LWE area from 31.03.2009 to 31.12.2012 for a period of 3 years tenure and thereafter he was posted for deputation to National

Investigation Agency from 31.12.2012 to 01.09.2016 for about 3 years and 8 months. While he was serving in the NIA on deputation, the petitioner

was promoted to the posts of Deputy Commandant and thereafter, he was repatriated from his deputation in NIA and then transfer to Manipur &

Nagaland Sector, HQ as Deputy Commandant (Law) and he reported to his new place of posting on 01.09.2016.

[4] When the petitioner was serving as Deputy Commandant (Law)atM&N Sector, Langjing, Manipur, he submitted a representation dated

02.08.2017 to the Inspector General of Police (IGP) (Pers), Central Reserve Police Force (CRPF), New Delhi, informing the authorities that the

petitioner’s wife was suffering from right axillary node BIRADS Category- 4 (breast cancer stage 4) and requesting for his transfer and posting

to any Delhi based units establishments so as to enable the petitioner in helping his wife to get proper treatment and care. In the said representation all

the relevant medical documents were also enclosed.

[5] The said representation of the petitioner was forwarded by the Inspector General of Police (IGP), M&N Sector, CRPF, Imphal to the concerned

authorities with a request for considering sympathetically on compassionate ground the petitioner’s request for his transfer to any Delhi based

units /offices. In the said forwarding letter, the IGP M & N Sector duly recommended the petitioner’s transfer but only against a suitable law

graduate (DC/AC) to the Sector HQ in place of the writ petitioner.

[6] After receiving and examining the representation submitted by the petitioner, the DIG (Pers) CRPF sent a wireless message dated 22.09.2017

informing that the request of the petitioner for his transfer to Delhi based units will be considered on merits during the Summer Chain Transfer-2018.

[7] Subsequent to the representation of the petitioner and wireless message dated 22.09.2017, the office of the DIG (Pers), CRPF, issued a transfer

order dated 25.04.2018 transferring one Shri Rakesh Choudhary, Deputy Commdt (IRLA-7635) to M & N Sector, HQ as DC (Law). Under the said

order, it was also mentioned that the posting of the writ petitioner was under consideration during Summer Chain Transfer-2018.

[8] After issuance of the aforesaid transfer order dated 25.04.2018 transferring Shri Rakesh Choudhari as DC (Law), the petitioner again submitted

another representation dated 26.04.2018 to the Director General of Police, CRPF, New Delhi, informing about the serious illness of the

petitioner’s wife and also about his earlier representation and recommendation made by the authorities and requesting again for his transfer to any

Delhi based unit so as to enable him to look after his seriously ailing wife.

The said second representation dated 26.04.2018 was forwarded by the IGP, M & N Sector, CRPF under his forwarding letter dated 28.04.2018 with

therecommendation that there was logical substance in the request made by the petitioner.

[9] It is the case of the petitioner that without at all considering his representations requesting for his transfer to any Delhi based Units so as to enable

him to look after his seriously ailing wife and also without at all considering the recommendations made by the competent authorities for considering

his request for transfer,the office of the DIG (Pers), CRPF issued the impugned transfer order dated 08.06.2018 effecting Summer Chain Transfer of

various Deputy Commandants including the writ petitioner. Under the said impugned transfer order, the name of the petitioner appears at serial No. 33

of Part 2 and he has been transfer from M&N Sector to Central Zone with the remark “For LWE unitâ€​

[10] Since his new place of posting is situated in Jammu & Kashmir and since such posting will not be of any assistance to the petitioner in helping the

treatment of his seriously ailing wife, the petitioner submitted another representation to the DG, CRPF requesting to allow the petitioner to continue in

his present place of posting, i.e., at M&N Sector till the completion of his normal tenure posting of 4 years.

[11] When the respondents failed to consider the representation submitted by the petitioner, the petitioner approached this Court byfiling W.P. (C) No.

550 of 2018 assailing the impugned transfer order dated 08.06.2018couple with the prayer for allowing the petitioner to continue in the M & N Sector,

HQ as DC (Law).

 [12] In the said writ petition, it was submitted on behalf of the respondents that as the request of the petitioner for his transfer to Delhi Zone was

not permissible, he was transfer and posted to a nearby place in Central Zone and it was also contended on behalf of the respondents that the normal

tenure period of 4 years is not compulsory and it depends upon the discretion of the authority according to the basis of exigency of the service in the

arm forces.

Rejecting the contention advance on behalf of the respondents, this Court observed that if the petitioner’s request for his transfer to any Delhi

based units on account of the serious illness of his wife was not feasible, the respondents ought to have rejected his request so as to enable the writ

petitioner to continue in his present place of posting.It wasfurther observed by this Court that if the impugned transfer order was affected on account

of Summer Transfer proceeding, the petitioner was then entitled to plead that his case should be considered in the light of the transfer policy.

Thereafter, this Honb’le Court dispose of the said writ petition by directing the petitioner to make a fresh representation within a period of 2

weeks and thereafter the authority shall consider such representation in the light of the transfer policy and exigency of service on its own merit, - vide

order dated 12.06.2019 passed by this Court in W.P.(C) No. 550 of 2018.

The Hon’ble Court also directed that till the representation is considered by the authority, the petitioner should be allowed to continue in his present

place of posting.

[13] In compliance with the order dated 12.06.2019 passed by this Court in W.P. (C) No. 550 of 2018, the petitioner again submitted a representation

dated 22.08.2019to the DGP, CRPF requesting to cancel the impugned transfer order dated 08.06.2018 and to allow him to complete his tenure

posting of 4 years at M & N Sector, HQ as Deputy Commandant (Law), on the grounds mentioned in the said representation.

[14] It is the case of the petitioner that without at all considering the representations submitted by the petitioner on its own merit as directed by this

Court, the respondents have issued the order dated 30.08.2019 rejecting the representation of the petitioner in a mechanical manner and without giving

any reason whatsoever.

Having been aggrieved, the petitioner filed the present writ petition assailing the impugned transfer order dated 08.06.2018 as well as the order dated

30.08.2019 rejecting the representation of the petitioner.

It will be relevant to mentioned herein that by virtue of the orders passed by this Court in the earlier writ petition viz, W.P. (C) No. 550 of 2018 and

interim orders passed in the present writ petition, the petitioner has been continuing in his present place of posting and he had already completed his

normal tenure posting of 4 years at M&N Sector.

[15] Mr. M. Devananda, learned counsel for the petitioner submitted that under the Standing order No. 07/2014 regarding transfer policy for GOs

(Executive) and Medical Officers, it is provided under Para 2 (i) that transfer policy should be followed strictly in letter and spirit in a transparent

manner without anybias. It is also pointed out by the learned counsel for the petitioner that under Para 2 (iii) of the said standing order, it is provided

that normal tenure of posting from Assistant Commandant to DIG would be 3 years and the tenure of Officers posted in Training Institution/

Intelligence Set-up/ Parliament Duty Group/Special Duty Group/ Signals/ Legal Cells and CoBRA would be 4 years.

[16] Mr. M. Devananda, learned counsel for the petitioner submitted that the petitioner Joinedin his present place of posting on 01.09.2016 and as per

the aforesaid transfer and posting policy, the normal tenure of the petitioner should be completed only in the month of September 2020. However,

before completion of his tenure period and due to the serious illness of the petitioner’s wife, who is suffering from breast cancer (stage 4), the

petitioner submitted the representations to the competent authorities requesting for his transfer to any Delhi based units so as to enable the petitioner in

arranging for the treatment of his wife.

[17] The learned counsel for the petitioner further submitted that without at all considering the request made by the petitioner and recommendations

made by the competent authorities, the respondents have issued the impugned transfer order in a most arbitrary manner and incomplete violation of the

standing orders regarding policy of transfer. The learned counsel also submitted that this Court has in the earlier occasion rejected the contentions

made by the respondents by observing that if the petitioner’s request for his transfer in connection with his wife’s illness was not feasible, the

respondents should have rejected it so as to enable the petitioner to continue in his present place of posting.

The learned counsel further submitted that this Hon’ble Court has in its order dated 12.06.2019passed in W.P. (C) No. 550 of 2018 had

categorically directed the authorities to consider the representations submitted by the petitioner afresh on its own merit in the light of the transfer

policy and exigency of service. However, the respondents have issued the impugned order dated 30.08.2019 rejecting the representations submitted by

the petitioner without assigning any reason and incomplete violation of this Court’s order and in a most arbitrary manner. It is also contended on

behalf of the petitioner that the respondents have also not given any reason for not allowing the petitioner to continue at his present place of posting till

completion of his normal tenure posting of 4 years.

In view of the above, the learned counsel strenuously submitted that the impugned ordersdeservesto be quash and set aside.

[18] Mr. S. Suresh, learned ASG appearing for the respondents submitted that under Para 2 (xii) of the standing order No. 07/2014 (transfer policy), it

is provided that cooling off period will be 6 years for posting to the previous place of posting. As the petitioner was repatriated from deputation (NIA,

Delhi) on 18.08.2016 and reported to M & N Sector HQ on 01.09.2016, he was not eligible for posting to Delhi/NCR. Accordingly, the request of the

petitioner for his transfer and posting to Delhi was not acceded to.

The learned counsel further submitted that under Para 2 (xiii) of the aforesaid standing order (transfer policy), it is provided that officer on promotion

and repatriation from deputation should be first posted to field area of category â€" “A†unit locations. In case there is no vacancy in category

“A†unit locations then to other categorized unit locations.It is submitted on behalf of the respondents that in terms of the standing order under

Para 2 (xiii), the petitioner has been transferred to Central Zone for further posting to LEW unit.

[19] The learned counsel for the respondents further submitted that under Para 6 of the said standing order (transfer policy), it is provided that the

Director General Reservesthe right to relax one or more of the above guidelines, at his discretion on administrative or operational grounds. Relying on

the said instructions as contained in Para 6 of the standing order (transfer policy), the learned counsel for the respondents submitted that even though

the petitioner has not completed his normal tenure of posting of 4 years in the present place of his posting, the competent authority have issued

impugned transfer order by exercising the power conferred under Para 6 of the said standing order in the exigency of service and in public interest.

[20] The learned counsel for the Respondents also cited the following authorities:-

(i) (1989) 3 SCC 445 “Union of India &Ors. v. H.N. Kirtanaâ€​.

(ii) 1991 Supp (2) SCC 659 “Mrs. Shilpi Bose &Ors. v. State of Bihar &Orsâ€​.

(iii) (1993) 4 SCC 357 “Union of India &Ors. v. S.L. Abbasâ€​.

(iv) (2001) 8 SCC 574 “National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwanâ€​.

(v) (2004) 11 SCC 402 “State of U.P. &Ors. v. Gobardhan Lalâ€​.

(vi) (2005) 7 SCC 227 “Major General J.K Bansal v. Union of India &Orsâ€​.

(vii) (2009) 15 SCC 178 “Rajendra Singh &Ors. v. State of Uttar Pradeshâ€​.

(viii) (2010) 13 SCC 306 “Rajendra Singh &Ors. v State of Uttar Pradeshâ€​.

(ix) (2004) 12 SCC 299 “Kendra Vidyalaya Sangathan. v Damodar Prasad Pandeyâ€​.

[21] By relying on the aforesaid Supreme Court Judgments, the learned counsel for the respondents submitted that transfer is an incidence of service

and the petitioner who is holding a transferable post is liable to be transferred from one place to another and that he hasno vested right to remain

posted at one place or other of his choice.

It is further submitted by the learned counsel that even if the impugned transfer order had been issued in violation of the aforesaid standing order

(transfer policy), the said standing order is a mere guidelines or instructions and they have no statutory force. Therefore, the said standing order does

not confer upon the petitioner any legally enforceable right.

[22] After hearing both the counsel appearing for the parties and after perusal of the records the following undisputed facts emerges:-

(a) After his deputation in the NIA the petitioner was transfer and posted to M & N Sector as DC (Law) and he joinedhis new place of posting on

01.09.2016;

(b) The normal tenure/ period of his posting is 4 years as per Para 2 (iii) of the standing order No. 07/2014 (transfer policy);

(c) Before completion of his normal tenure posting of 4 years, the petitioner submitted a representation dated 02.08.2017 to the competent authorities

requesting for his transfer and posting to any Delhi based unit/establishment in relation to the serious illness of his wife, who is suffering from breast

cancer (stage 4);

(d) The said representation of the petitioner was forwarded to the competent authorities of the CRPF by the concerned authorities with the

recommendation for considering the representation sympathetically on compassionate grounds as there waslogical substance in the request made by

the petitioner;

(e) As per the recommendations, one Shri Rakesh Choudhari, Deputy Commandant has been transfer and posted to M & N Sector, HQ as DC (Law)

to replace the writ petitioner and informing the petitioner that his request for transfer will be consider during the Summer Chain Transfer- 2018;

(f) Instead of rejecting the request made by the petitioner in his representations for his transfer to any Delhi based units due to non feasibility of such

transfer and allowing the petitioner to continue in his present place of posting till completion of the normal tenure posting of

4 years, the respondents have issued the impugned transfer order transferring the petitioner to Jammu Kashmir;

(g) In the order dated 12.06.2019 passed by this Court in W.P. (C) No. 550 of 2018, this Court had brushed aside the reasons given by the

respondents for issuing the impugned transfer order and directed the respondents to reconsider the transfer order in the light of the transfer policy and

the exigency of service on its own merits;

(h) In compliance with the order of this Court the petitioner submitted a fresh representation dated 22.08.2019, however, the said representation had

been rejected by the respondents by an order dated 30.08.2019. In the said order dated 30.08.2019 no reason has been given for rejecting the

petitioner’s request for allowing him to continue in his present place of posting till the completion of the normal tenure posting of 4 years.

[23] The simple plea taken by the petitioner is that if his request for his transfer to any Delhi based units in connection with the serious illness of his

wife was not feasible, his request may be rejected and he may be allowed to continue in his present place of posting till completion of his normal

tenure posting of 4 years. Instead the respondents have issued the impugned transfer order in a most unreasonable and arbitrary manner and in

violation of their transfer policy as contained in Para 2 (iii) of the standing order No. 07/2014.

[24] The ground of defense taken by the respondents in refusing the request made by the petitioner for his transfer to any Delhi based unit and for

issuance of the impugned transfer order is based solely on Para 2 (xii), Para 2

(xiii) and Para 6 of the standing order No. 07/2014 (transfer policy).

At the same time by relying on various Supreme Court Judgments, which have been quoted herein above, it has been submitted on behalf of the

respondents that the standing order No. 07/2014 (transfer policy) is a mere executive instructions which have no statutory force and such guidelines

does not confer upon the petitioner any legally enforceableright.

[25] In my considered view, the contentions advanced on behalf of the respondents are quite contradictory. On the one hand, the justifications given

by the respondents for refusing the request made by the petitioner for his transfer to any Delhi based units in connection with the serious illness of his

wife and issuance of the impugned transfer order are solely based on the transfer policy contained in Para 2 (xii) and (xiii) and Para 6 of the standing

order No. 07/2014 meaning thereby that they are acting and relying on their transfer policy and on the other hand, they are submitting that this standing

order is a mere executive instructions and this does not give any legally enforceable right to the writ petitioner. The respondents are blowing hot and

blowing cold at the same time, which is not permissible. In my consider view, no reason whatsoever has been given by the respondents in refusing to

allow the petitioner to continue in his present place of posting till completion of his tenure posting of 4 years.

[26] Be that as it may, since the petitioner’s normal tenure of 4 years posting in M & N Sector has already been completed, I am of the

considered view that the ends of justice will meet if the present writ petition is disposed of with the following directions:-

(a) The impugned transfer order dated 08.06.2018 as well as the impugned order dated 30.08.2019, so far as the petitioner is concerned, it is hereby

quashing and set aside.

(b) The respondents are at liberty to consider afresh for transfer and posting of the petitioner in the light of their transfer policy and in exigency of

service, if so adviced.

With the above directions the writ petition is disposed of. The parties are to bear their own cost.