Allahabad High Court
Nishi Dobriyal And Anr. vs Director General, C.R.P.F. And Ors. on 15 March, 2002
Equivalent citations: 2002(2)AWC1321, (2002)3UPLBEC2113
Author: Ashok Bhushan
Bench: Ashok Bhushan
JUDGMENT Ashok Bhushan, J.
1. Heard Smt. Kamla Singh, counsel for the petitioner, and Sri S.K. Rai appearing for the respondents. Counter and rejoinder-affidavits have been exchanged and the writ petition is being finally disposed of according to Rules of the Court.
2. By this writ petition, the petitioners have prayed for quashing the order dated 5th February. 2002, passed by the Director General, Central Reserve Police Force refusing the prayer of the petitioners for cancellation of the transfer order and directing posting of the petitioners accordingly. A writ of mandamus has also been sought for directing the respondents not to Interfere in working of the petitioners in Group Centre. C.R.P.F.. Allahabad.
3. The facts of the case as given in the writ petition are : Petitioner No. 1 and petitioner No. 2 both are working in Central Reserve Police Force. Petitioner No. 1 is wife whereas petitioner No. 2 is husband. Both the petitioners had been posted at Group Centre, Central Reserve Police Force, Allahabad. It is stated that petitioners have one daughter of 11 months old. It is claimed that by office memorandum dated 3rd April, 1987, Government of India. Ministry of Home Affairs has Issued guidelines for posting husband and wife at the same station, By an order dated 9th July, 2001, it was directed that petitioner No. 1 is transferred from Group Centre, Allahabad to Battalion 135. The petitioner No. I filed an application for cancelling the aforesaid transfer order in view of the guidelines issued by the Central Government that husband and wife be posted at the same station. A Writ Petition No. 29143 of 2001, Nishi Dobriyal v. Director General Central Reserve Police Force, was filed by petitioner No. 1 challenging the transfer order dated 9th July. 2001. The said writ petition was dismissed with the observation and direction that petitioner may file a fresh comprehensive representation before the concerned authority who shall decide the same within three weeks on receipt of certified copy of the order. Copy of the said judgment of this Court dated 6th August, 2001, has been annexed as Annexure-3 to the writ petition. After the aforesaid order of this Court was submitted by the petitioner before the Director General, an order has been passed on 5th February. 2002, rejecting the request of the petitioner for cancellation of transfer order. The said order dated 5th February. 2002, has been challenged by the petitioners' in the present writ petition. By order dated 5th February, 2002. the husband of the petitioner was directed to be posted in Battalion No. 117 being his parent unit.
4. The counsel for the petitioner submitted that transfer order of the petitioner No. 1 as well as the order dated 5th February. 2002, is not a valid order. It has been submitted by the petitioners that according to various standing orders issued by the Director General, Central Reserve Police Force, husband and wife have to be considered for posting on same place/station. Reference has been made to standing order No. 3 of 1999. Standing Order No. 3 of 1999 contain following guidelines :
"(d) Husband and wife serving in the Force shall, as far as possible, be considered for posting on same place/ station. Administrative requirement/ exigencies of service will, however, prevail."
Almost to the same effects are the Standing Orders No. 10 of 2001 and 29 of 2001. The last Standing Order No. 29 of 2001 provides :
"(xii) Husband and wife serving in the Force shall, as far as possible, be considered for posting to same place/ station, and within the constraints of administrative and operational feasibilities."
The counsel for the petitioner has submitted that the transfer orders of the petitioners sending them to different stations is violative of aforesaid standing orders and hence illegal. The counsel for the petitioner has also placed reliance on judgment of the Apex Court in Home Secretary U. T. of Chandigarh and Anr. v. Darshjit Singh Grewal and Ors., 1993 (4) SCC 25 and Judgment of this Court in Smt. Deepa Vishtshtha v. State of Uttar Pradesh and Ors., 1996 (1) AWC 269 : 1996 (1) ESC 148 and Division Bench Judgment of this Court in Special Appeal No. 1087 of 2001 copy of which has been annexed as Annexure-R.A. 2 to the rejoinder-affidavit.
5. The counsel for the respondents refuting the submissions of counsel for the petitioner has submitted that the standing orders providing that husband and wife are to be posted at the same station is not statutory rules nor it gives right to husband and wife to claim posting always at a same place. He has submitted that aforesaid guidelines are subject to operational feasibilities. The counsel for the respondents submitted that both the petitioners being member of Force, i.e., Central Reserve Police Force, they cannot claim posting at the same place every time. It has been submitted by counsel for the respondents that both husband and wife have been posted together at Group Centre, Allahabad, for last more than three years. He has further submitted that in the order dated 5th February. 2002, which has been challenged in the writ petition, all aspects of the matter has been considered and cogent reasons have been given for transferring petitioner No. 1 to Mahila Battalion 135. Gandhi Nagar, Gujarat and petitioner No. 2 to his parent unit. i.e.. Battalion No. 117. The counsel for the respondents further submitted that petitioner No. 1 was also asked to give her consent for being posted in the same State of Assam where her husband is being transferred, however, petitioner No. 1 showed her unwillingness. It was stated by counsel for the respondents that petitioner No. 1 was proposed to be transferred to Group Centre. Central Reserve Police Force. Khatkhati.
6. After having heard counsel for the parties and after perusing the record, it is clear that only issue in the writ petition is as to what is the extent and measure of entitlement of husband and wife to be posted together in accordance with standing orders issued by the Central Reserve Police Force. With regard to posting of husband and wife at same station on basis of guidelines issued by Central Government, the Apex Court in Union of India and Ors. v. S. L. Abbas. 1993 (4) SCC 357, laid down in paragraphs 7 and 8 :
"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with It.
While ordering the transfer.
there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject.
Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline, however, does not confer upon the Government employee a legally enforceable right.
8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. This is evident from a perusal of Article 323A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323A. (We find it all the more surprising that the learned single member who passed the Impugned order is a former Judge of the High Court and is thus, aware of the norms and constraints of the writ jurisdiction). The Administrative Tribunal is not an appellate authority sitting in judgment over the orders of transfer. It cannot substitute Its own judgment for that of the authority competent to transfer. In this case, the Tribunal has clearly exceeded its Jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority)."
From the relevant standing order, as noted above, although it is desirable that husband and wife be posted at same station but the said desirability is subject to administrative requirement/exigencies of service and operational feasibilities. It has been stated in the counter-affidavit that almost 80% of the Force is deployed in hard area such as Jammu & Kashmir and North-eastern States. It has further been stated that due to exigencies of service and operation feasibilities, it is not possible to post husband and wife at the same station. It has been stated that both petitioners had been posted at Group Centre, Allahabad for more than a period of three years. It has been stated that petitioner No. 1, who had completed more than six years posting at Group Centre. Central Reserve Police Force, Allahabad is being posted at his parent unit, i.e., 117 Battalion near Group Centre, Central Reserve Police Force, Khatkhati. The order dated 5th February, 2002. further states that petitioner No. 1 was asked to give her willingness to be posted to Group Centre, Central Reserve Police Force, Khatkhati or Guwahati so that she can avail the static position to look after her family and husband. The order further states that petitioner No. 1 showed her unwillingness to accept her posting at Group Centre, Khatkhati. The order dated 5.2.2002 impugned in the writ petition clearly demonstrates that various contentions of petitioner No. 1 challenging her transfer order has been duly considered and cogent reasons have been given by the respondent for not giving posting to husband and wife at same station. The decisions cited by counsel for the petitioner in Darshjit Singh Grewal case (supra), is a case of transfer of students from one engineering college to another and in that context, the Apex Court had observed that policy guidelines are relatable to the executive power of the Chandigarh Administration. It is axiomatic that having enunciated a policy of general application and having communicated it to all concerned including the Chandigarh Engineering College, the Administration is bound by it. The proposition laid down by the Apex Court in the aforesaid case is well established. However, in the present case, the policy is not that husband and wife should always be posted at one centre. The posting of husband and wife at one centre is hedged by exigencies of service and operational feasibilities. The Standing Order No. 3 of 1999 relied by the petitioner itself says that consideration for posting of husband and wife at same place shall be subject to administrative requirement/exigencies of service which will prevail.
7. The second case relied by the counsel for the petitioner is Smt. Deepa Vishishtha's case (supra). In the aforesaid case, the Division Bench of this Court, in paragraph 21, held :
"In other words. In the garb of public interest or administrative exigencies, it is not at the whims of the authority to disturb the family by transferring one of the husband and wife to a different place since the guidelines are not in Imperative form or they have no force of law. If the administrative exigencies or public Interest requires, certainly husband and wife may be transferred to different places but only in exceptional cases, i.e., respect of rare cases, for which no illustration can be given."
In the aforesaid judgment, the Division Bench had quashed the transfer order and directed the authorities again to reconsider the matter. In the aforesaid decision, it has been clearly held that posting of husband and wife at one station is a normal rule but it was also stated in the Judgment that if the administrative exigencies or public interest so requires, certainly husband and wife may be transferred to different places. Thus, the aforesaid Division Bench judgment also did not lay down that posting of husband and wife at one place is inviolable rule. In the aforesaid Division Bench judgment, a direction was issued to the authorities to reconsider the matter. In the present case, impugned order has been passed after reconsidering the matter by the authorities.
8. The next case relied by counsel for the petitioner is a Division Bench judgment dated 2.11.2001 in Special Appeal No. 1087 of 2001. The Division Bench in the aforesaid case directed the authorities to consider for posting of husband and wife at the same station and also directed for consideration of representation afresh and the earlier transfer order was quashed. The direction in the aforesaid case was also to the effect that matter be considered afresh. As stated above, in the present case, this Court has earlier directed on 6th August, 2001 in Writ Petition No. 29143 of 2001 for considering the case of the petitioner which has been considered and Impugned order has been passed. The reasons given in the Impugned order dated 5.2.2002 has to be Judged in accordance with the guidelines pertaining to transfer,
9. From the facts as given in the counter-affidavit, it is clear that most of the Battalion of Central Reserve Police Force are in hard areas such as Jammu and Kashmir and Northeastern States. The posting at group centres and other places on which husband and wife can be accommodated has also to be adjusted with regard to all deserving members of the Force. However, at this juncture, one more fact is required to be noted. The relevant fact is that desirability of posting husband and wife according to standing order is normal rule which can be altered only due to operational feasibilities or other exigencies of service. Even if on particular point of time, it is not possible to post husband and wife at one station, that does not in, any view affect principal object of the guidelines for posting them to one place. As and when the opportunity arises with the authorities, they will do so permitting husband and wife to be posted at the same station. While doing every exercise of transfer, the object underlying the guidelines for posting husband and wife at one station should be taken into consideration and the husband and wife who are separately posted on particular point of time should be considered to be posted at the same station. In the present case, even though, as stated in the order dated 5th February, 2002, today it is not possible to post husband and wife at one station, their claim to be posted again at the same station has to be considered when the next transfer exercise takes place.
10. From the order impugned dated 5th February, 2002, it is clear that a posting in the State of Assam, i.e., Group Centre. Khatkhatl or Cuwahatl was offered to petitioner No. 1 which on account of unwillingness shown by petitioner No. 1 was not ordered. The aforesaid ' unwillingness shown at a particular point of time may not disentitle the petitioner No. 1 to accept a posting as offered by the respondents themselves in the same State or nearby Centre where her husband is posted. If the petitioner No. 1 shows her willingness at any point of time, the posting can be altered accordingly.
11. In view of the above discussions, this writ petition is disposed of with following directions :
(1) The prayer of the petitioners for quashing of the order dated 5.2.2002 is refused.
(2) If at any point of time, petitioner No. 1 shows her willingness to be posted in nearby Centre where the husband of the petitioner No. 1 is posted as offered by respondents themselves, the said prayer shall be considered by the competent authority and appropriate order for posting of petitioner No. 1 be passed accordingly.
(3) in next transfer exercise, the claim of petitioner Nos. 1 and 2 to be posted at one station be again considered in accordance with relevant standing orders applicable in the case of posting of husband and wife at same place.
12. The writ petition is disposed of with the aforesaid directions.