Rubul Ali vs Union Of India And 7 Ors

Heard Mr. H. Bezbarua, learned counsel for the petitioner and Mr. K. M. Hasan, learned counsel appearing on behalf of Mr. D. C. Borah, learned

C.G.C.

By way of this writ petition, the petitioner has prayed for setting aside and quashing the impugned transfer order dated 09.03.2019, in so far as it

relates to the petitioner only, by which the petitioner has been transferred to 244 Battalion of the Central Reserve Police Force. The further prayer is

for a direction to be issued to the respondent to defer his transfer order dated 09.03.2019 for 1 (one) year, taking into account the health related issues

of his family members.

The petitioner had earlier been transferred from Guwahati to Chandauli in Uttar Pradesh vide order dated 04.07.2018. The same was challenged by

the petitioner in WP(C) No.7537/2018, on the ground that the petitioner’s mother being bed ridden and father having lost his eyesight, it was

necessary for him to look after his old parents. WP(C) No.7537/2018 was disposed of vide order dated 31.10.2018 with a direction to the respondents,

to examine the plea of the petitioner for retention of his posting at Guwahati, in the light of the difficulties faced by him and to take a sympathetic view

and pass appropriate orders for reviewing the transfer order.

The petitioner’s case was thereafter examined by the respondents and consequently, the earlier transfer order dated 04.07.2018 was cancelled

vide order dated 06.12.2018.

Subsequent to the above, the present impugned transfer order dated 28.02.2019 has been issued, by which the petitioner has been transferred from

Guwahati to 244 Battalion of CRPF. The petitioner has thus made a challenge to the second transfer order dated 28.02.2019, praying to defer his

transfer order for 1 (one) year only till the next summer chain transfer, 2020, taking into account the health related issues of his parents and his nine

month old baby who is under treatment.

The petitioner’s counsel submits that in terms of Clause 4 (xvi) (viii), Clause 5 (xx), Clause 7 (ix) and Clause 15 of the Standing Order No.7 of

2015 dated 04.08.2015 which is the Transfer Policy of the CRPF, the petitioner’s transfer can be relaxed for one year. He, accordingly, prays that

the transfer order dated 09.03.2019 should be set aside or the effect of the transfer order should be deferred for one year.

The counsel for the respondents, on the other hand, has taken me through paras 4, 6, 7, 19 and 20 of the affidavit-in-opposition to show that the

petitioner has remained posted in the State of Assam for more than six years. Also the petitioner has not availed of the alternative remedy available by

filing any representation with the respondents, before approaching this Court. The respondents’ counsel also submits that the petitioner, by

attempting to stay in Guwahati indefinitely, is taking away the legitimate rights of other service personnel, who would also have the benefit of being

posted in Guwahati and who also may be facing more problems than the petitioner is facing. He, accordingly, prays that the writ petition should be

dismissed.

I have heard the counsels for the parties. As can be seen from the submission made by the counsels for the parties and on perusal of the

documents on record, this Court vide order dated 31.10.2018 passed in WP(C) No.7537/2018, had set aside the earlier transfer order dated 04.07.2018

and directed the authorities to examine the plea of the petitioner for retention of his posting at Guwahati in the light of difficulties faced by the

petitioner.

Consequent to the above, the petitioner’s earlier transfer order dated 04.07.2018 was cancelled. However, vide the impugned transfer order

dated 28.02.2019, the petitioner has been transferred along with 1240 other CRPF personnel. The above clearly goes to show that the transfer of the

petitioner was done in a routine manner and made in the exigencies of service.

The affidavit-in-opposition filed by the respondents states that the petitioner had been posted in the State of Assam for more than six years, while

Clause 7 (ix) of the Standing Order No.7 of 2015 states that the normal tenure of posting in SDG/PDG is four years, extendable by one year.

Clause 4 (xvi) (viii) of the Standing Order states that the eligibility conditions for transfer of a CRPF personnel may be relaxed by one year in very

deserving cases by the Sector IGP involving critical/serious disease if recommended by a Board of Medical Officers/Composite Hospitals. Clause 5

(xx) of the Standing Order states that the Directorate General, CRPF can post personnel to any BN, GC or other office if deemed fit. Clause 15 of

the Standing Order/Transfer Policy states that any departure from the policy instructions shall be made with the approval of the Directorate General,

CRPF who may issue any order of transfer overriding the Transfer Policy due to operational/medical/administrative or any other exigency. However,

for certain difficult areas in LWE, the Directorate General may grant relaxation in Battalion tenure for less than three years keeping in mind

operational exigency.

From a perusal of the above Clauses of the Transfer Policy, it is quite clear that Clause 4 (xvi) (viii) applies to the serving CRPF personnel and not

to their family members. As such, this clause is not applicable to the petitioner’s case. Similarly, Clause 7 (ix) of the Transfer Policy provides for

normal tenure of posting of four years, which is extendable by one year. However, the petitioner has been in Guwahati for more than six years. The

provision relating to the power of the Directorate General, CRPF to issue orders for transfer overriding the Transfer Policy is a discretionary power

given to the Directorate General and no CRPF personnel can claim it as his right.

On considering the above issues, it is quite apparent that the attempt by the petitioner to continue to stay in Guwahati is without any legal right,

though there can be some understanding due to the health ground of his family members. However, the petitioner has to show in a writ proceeding

that he has an enforceable right and that right has been violated. The petitioner has not been able to show that the transfer has not been issued in

public interest or administrative exigency. It is also settled law that hardship, convenience or inconvenience cannot be a ground for interfering with a

transfer order.

In the case of S.C. Saxena vs. Union of India and Others, reported in (2006) 9 SCC 583, the Apex Court has held that a government servant

cannot disobey a transfer order by not reporting at the place of posting and then to go a court to ventilate his grievances. The Apex Court held that it

was the duty of the petitioner to first report for work where he is transferred and then make a representation as to what may be his personal problem.

The tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.

In the present case, the law laid down by the Apex Court in S. C. Saxena (supra) has not been followed and it is seen that the petitioner has not

submitted any representation to the authorities prior to approaching this Court by way of the present writ petition.

The above being said, one of the prayers of the petitioner is to defer the effect of the transfer order by one year. It is not understood as to why the

prayer for deferment of the transfer order should only be for one year and not for two or three years. Could it be due to the fact that the petitioner

knows that health issues that are being faced by his family would improve after one year or that he would still be able to look after his family even if

he is posted elsewhere, after a period of one year. The prayer of the petitioner for deferment of the transfer order for one year, in the opinion of this

Court does not stand to reason and takes the wind out of the sails of the petitioner’s case for not giving effect to the transfer order.

In view of the reasons stated above, this Court does not find any ground to allow the writ petition. The same is accordingly dismissed.