Manipur High Court
Abdul Rahman vs Union Of India Represented Through Its ... on 15 November, 2021
Author: Ahanthem Bimol Singh
Bench: Ahanthem Bimol Singh
IN THE HIGH COURT OF MANIPUR
KABORA Digitally signed AT IMPHAL
MBAM byKABORAMBAM
SAPANA SAPANA CHANU
Date: 2021.11.15 W.P.(C) No. 706 of 2019
CHANU 12:45:01 +05'30'
Abdul Rahman, aged about 56 years, S/O (L) Md. Abdul Hei, resident
of Village SantheiMakha Leikai, P.O. & P.S. Mayang Imphal, District
Kakching, Manipur at present posting at G.C. CRPF Langjing, P.O.
Langjing, P.S. Lamphel, Imphal West District, Manipur, PIN : 795113.
... Petitioner/s
-Versus -
1. Union of India represented through its Home Secretary (Ministry of
Home Affairs) North Block, New Delhi, Government of India, PIN
CODE : 110003.
2. The Director General of Police, CRPF, CGO Complex, Lodhi Road,
New Delhi - 03.
3. The IGP, Manipur and Nagaland Sector, Group Centre CRPF
Langjing, Manipur.
4. The IGP, NE Sector, CRPF, Shillong.
5. The Dy. Inspector General of Police, CRPF, GC, Imphal.
........Respondent/s
With WP(C) No. 707 of 2019 Thangjam Subhachandra Singh, aged about 56 years, S/O (L) Th. Leiren Singh, resident of Ukhongshang Mayai Leikai, B.P.O. Nongpok Sekmai, P.S. Nokpok Sekmai, District Thoubal, Manipur at present posting at G.C. CRPF Langjing, P.O. Langjing, P.S. Lamphel, Imphal West District, Manipur, PIN: 795113.
... Petitioner/s
-Versus -
1. Union of India represented through its Home Secretary (Ministry of Home Affairs) North Block, New Delhi, Government of India, PIN CODE : 110003.
2. The Director General of Police, CRPF, CGO Complex, Lodhi Road, New Delhi - 03.
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 1
3. The IGP, Manipur and Nagaland Sector, Group Centre CRPF Langjing, Manipur, P.O. Langjing, P.S. Lamphel, Imphal West District, Manipur, Pin : 795113.
4. The IGP, NEZ, CRPF, Shillong.
5. The Inspector General of Police (Pers), CRPF having its office at CGO Complex, Lodhi Road, New Delhi - 03.
........Respondent/s
B E F O R E
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the Petitioner : Mr. M. Devananda, Adv.
For the respondents : Mr.S. Suresh, ASG.
Date of Hearing : 25.08.2021.
Date of Judgment &Order : 15.11.2021
JUDGMENT & ORDER
(CAV)
[1] Heard Mr. M. Devananda, learned counsel appearing for the
petitioners and Mr. S. Suresh, learned ASG appearing for the respondents. [2] The petitioners in the present two writ petitions are personnels of the C.R.P.F and they have filed the present two writ petitions assailing the order dated 31.01.2019, signals dated 13.02.2019, 28.02.2019 and 11.03.2019 effecting their transfer and posting from Group Centre (G.C), CRPF Langjing, Imphal, Manipur (hereinafter referred to as G.C., Imphal for short) to 132 Bn. and 35Bn. respectively, which are located at Jammu & Kashmir.
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 2 As the question of facts and law involved in the present two writ petitions are similar, the same are being disposed of by this common judgment and order.
[3] Mr. M. Devananda, learned counsel for the petitioners raised the following three grounds in assailing the impugned orders and signals:-
(i) the impugned transfer order have been issued in violation of the transfer policy as contained in Para 4(ix) of the standing order No. 07/2015 dated 04.08.2015, inasmuch as, the petitioners have been subjected to zonal transfer, i.e., from North East Zone (NEZ) to Central Zone (CZ), before completion of the period of their posting tenure of 10 years in Manipur and Nagaland Sector ( M&N Sector ) and 14 years tenure in NE Zone;
(ii) the impugned transfer orders have been issued in violation of the transfer policy as contained in Para 4(viii) of the standing order No. 07/2015 dated 04.08.2015, inasmuch as, the petitioners have been subjected to transfer before completion of the period of their posting tenure of three years at Group Centre, Imphal ; and
(iii) the petitioners have been subjected to transfer at the verge of their retirement arbitrarily and discriminatorily without considering their request for choice posting as provided under Para 5(ix) of the standing order No. 07/2015 dated 04.08.2015.
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 3 [4] On the objection raised by Mr. S. Suresh that the secondground was never raised by the petitioners in their writ petitions, Mr. M. Devananda fairly conceded and submitted that he will not press the second ground. [5] In connection with the first ground, it has been submitted by Mr. M. Devananda that the petitioners have rendered more than 35 years service in the CRPF and out of the said 35 years, the petitioner in WP(C) No. 706/2019 had served for more than 28 years outside his home place Manipur and in most of the said 28 years, he was posted at very hard areas like Jammu & Kashmir and the petitioner had been allowed only about 6 years posting in his Home place Manipur in his whole service career. In respect of the petitioner in WP(C) No. 707/2019, out of 35 years service in CRPF, the petitioner had been posted for more than 27 years outside Manipur and most of the time he was posted in very hard areas like Punjab and Jammu & Kashmir and he had been posted only about 8 years in his home place in his whole service career.
[6] The petitioners have given specific details about their transfer and posting during their whole service career at Para No. 3 to 6 of their writ petitions and the averments made therein are not denied by the respondents in their counter affidavits. In fact, the respondents have also given specific details about the transfer and posting of the petitioners during their whole service career at Para 2.2 of their counter affidavits which are as under:-
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 4
(i) Petitioner in WP(C) No. 706 of 2019 NAME OF LOCATION/STATE FROM TO DURATION OFFICE/UNIT GC Imphal Imphal/Manipur 15-01-1984 14-07-1985 1 year 6 months 26 Bn ACP,PB,ASM,PB,J&K,JKD 14-07-1985 08-10-1998 13 years 3 months GC IMP Imphal/Manipur 08-10-1998 12-09-2002 3 years 11 months 27 BN ASM,DLI,J&K,DLI 12-09-2002 07-11-2012 12 years 2 months 188 BN CTG 07-11-2012 21-01-2015 2 years 2 months 226 BN CTG 21-01-2015 26-04-2016 1 year 3 months GC IMP Imphal/Manipur 26-04-2016 03-09-2019 3 years 5 months
(ii) Petitioner in WP(C) No. 707 of 2019 NAME OF LOCATION/STATE FROM TO DURATION OFFICE/UNIT GC Imphal Imphal/Manipur 01/04/1985 26/06/1986 1 year 2 months 44 BN PB,ASM,DLI,JK,PB,JK,MN 26/06/1986 12/06/2003 17 years P,ASM,MNP GC IMP Imphal, Manipur 12/06/2003 23/08/2008 5 years 2 months 44 BN UP,JK, 23/08/2008 23/12/2010 2 years 4 months 66 BN WB 23/12/2010 10/09/2015 4 years 9 months 87 BN Jiribam (Manipur) 10/09/2015 15/05/2018 2 years 8 months GC IMP Imphal/Manipur 15/05/2018 03/09/2019 1 year 4 months [7] By referring to the pleadings made by the petitioners at Para 3 to 6 of their writ petitions as well as at the chart given hereinabove, Mr. M. Devananda submitted that without counting the training periods of about one year in Tamil Nadu w.e.f. 15.01.1984 to 14.07.1985 in respect of the petitioner in WP(C) No. 706/2019 and from 01.04.1985 to 26.06.1986 in respect of the petitioner in WP(C) No. 707/2019, the petitioners have been posted at their home place in N.E. Zone/ M & N Sector only for about 7 years and 9 years respectively and during the remaining 28/26 years out of 35 years of their service, the petitioner have been posted outside their home place and in very hard areas.
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 5 [8] It has been submitted by Mr. M. Devananda that in the chart given by the respondents at Para 2.2 of their counter affidavits, the respondents have erroneously counted the period of posting of the petitioner in WP(C) No. 706/2019 at 26 Bn. and 27 Bn.(located at Delhi and Jammu & Kashmir) as posting in the N.E. Zone/ M & N Sector and in respect of the petitioner in WP(C) No. 707/2019, the respondents have also counted the period of posting at 44 Bn. as posting in the N.E. Zone/ M & N Sector. [9] The learned counsel for the petitioners further submitted that 26 Bn. and 44 Bn. were earlier under Central Zone and Jammu & Kashmir respectively. The said two Battalions were de-attached from Central Zone and Jammu & Kashmir Zone and re-affiliated to N.E. Zone only w.e.f. 01.10.2016 by an order bearing No. O-IV-23/2015-16-Org dated 05.07.2016 issued by the Director General of CRPF. As the period of posting of the petitioners at 26 Bn. and 44 Bn. were prior to 01.10.2016 before the re-affiliation took place, such period of posting of the petitioners cannot be counted as posting in the N.E. Zone/ M & N sector.
The learned counsel further submitted that even though the administrative control of the 27 Bn. was under the M & N Sector for some time, the said 27 Bn. is located at different Zones/States like Delhi and Jammu & Kashmir and the administrative control of the said Bn. was under
different jurisdictions at different point of time. Accordingly, it has been W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 6 submitted that the posting of the petitioner in WP(C) No. 706 of 2019 in the said Bn. cannot be counted as tenure posting under N.E. Zone. In view of the above, it has been submitted that the contentions of the respondents that the petitioners have already completed their tenure posting in the N.E. Zone is erroneous and without any basis. The learned counsel, therefore, submitted that the respondents have issued the impugned transfer and posting orders without application of mind and in complete violation of their transfer policy as contained in Para 4(ix) of their standing order No. 07/2015 and as such, the impugned orders deserved to be quashed and set aside.
[10] In connection with the third ground, Mr. M. Devananda submitted that under Rule 43(a) of the CRPF Rules, 1955, it is provided that the superannuation age of CRPF personnel from the rank of Commander and below is 57 years. Since the impugned transfer order is to be effective w.e.f. 01.04.2019 and as the petitioners were going to retire from service on attaining the age of superannuation of 57 years w.e.f. 31.03.2021 and 28.02.2021 respectively, both the petitioners submitted their representations dated 17.07.2019 and 27.06.2019 respectively to the concerned authorities of the CRPF requesting, inter alia, to allow them to remain posted and to complete their remaining service at Group Centre Imphal as provided under Para 5(ix) of the transfer policy contained in the standing order No. 07/2015. However, the representations of the petitioners W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 7 were rejected by the authorities without any application of mind and without assigning any reason.
[11] Mr. M. Devananda submitted that the petitioners are entitled to get their choice posting as provided under Para 5(ix) of the standing order No. 07/2015 as they have not availed any such choice posting earlier in their whole service career. Rejection of the petitioners representations by the respondents without any application of mind and without giving any reason is very much arbitrary, discriminatory and the same had been done in colourable exerciser of power. Such unreasonable actions of the respondents have deprived the petitioners of their valuable right guaranteed under Para 5(ix) of the standing order issued by the respondents themselves. Accordingly, it has been submitted that the impugned orders are liable to be quashed and set aside. [12] Controverting the arguments advanced by the counsel for the petitioners in connection with the first ground, Mr. S. Suresh, learned ASG submitted that under a letter dated 20.09.1968 of the Under Secretary to the Government of India, Ministry of Home Affairs, approval of the Government of India to the renaming of IRB (Maharashtra) as 44 CRPF Bn. consequent upon its embodiment in the CRPF w.e.f. 01.09.1968 was conveyed to the Director General of CRPF. In the said letter the Head W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 8 Quarters of the 44 Bn. was at Puna and placed under the control of DIG, CRPF, Puna.
[13] It has also been submitted by Mr. S. Suresh that by an order dated 09.02.1977 issued by the DG/CRPF, G.C, CRPF Puna has been shifted to Imphal. Thereafter, since 09.02.1977 till 03.08.2012, G.C, CRPF Puna was under Group Centre Imphal.
Under the order dated 03.08.2012 of the DG, CRPF, the 26 Bn. and 44 Bn. earlier attached to GC Imphal and deployed outside the NE Zone were de-attached from GC Imphal and affiliated to GC MKG under CZ and GC, JDR under JK Zone respectively. However, the learned counsel fairly submitted that the said order dated 09.02.1977 does not specifically mentioned about placing 26 Bn. and 44 Bn. under the N.E. Zone and that the respondents could not produce any specific order deploying 26 Bn. and 44 Bn. under the N.E. Zone.
[14] In connection with the third ground, Mr. S. Suresh, learned ASG submitted that under Rule 43(a) of the CRPF Rules, 1955, it is provided that the superannuation age of the CRPF personnel from the rank of Commander and below will be 57 years.
The said Rule 43(a) of the CRPF Rules, 1955 was struck down by the High Court of Delhi in its judgment dated 31.01.2019 passed in W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 9 WP(C) No. 1951/2012 and other batch of writ petitions. The operative portion of the said judgments are as under:-
"62. In view of the above conclusion of this Court that Rule 43 (a) of the CRPF Rules, 1955 as it presently stands is unconstitutional and liable to be struck down, correspondingly Rule 14 of the CRPF Group (A) General Duty Officers Recruitment Rules, 2001, Rule 8 (a) of the ITBP General Duty in Group 'A' Posts Rules and Rule 12 of the BSF (General Duty Officers) Recruitment Rules, 2001 to that extent are also held to be unconstitutional and liable to be struck down."
"68. The Court has in this judgment held the decision of the Respondents to prescribe a retirement age of 57 years for members of the three CAPFs i.e. the ITBP, the BSF and the CRPF of the rank of Commandant and below in terms of Rule 43 (a) of the CRPF Rules, the corresponding Rules applicable to the said three CAPFs, as against 60 years for Officers in those very CAPFs of the rank above that of Commandant to be discriminatory, violative of Articles 14 and 16 of the Constitution. Rule 43 (a) of the CRPF Rules, 1955, and correspondingly Rule 14 of the CRPF Group (A) General Duty Officers Recruitment Rules, 2001, Rule 8(a) of the ITBP General Duty in Group 'A' Posts Rules and Rule 12 of the BSF (General Duty Officers) Recruitment Rules, 2001 to the extent they too prescribe a retirement age of 57 years for members of those CAPFs of rank of Commandant and below have also been struck down."
"71. Accordingly a direction is hereby issued that within a period of four months from today the Respondents i.e. the MHA in consultation with the CAPFs concerned will take all consequential steps by way of implementation of this judgment. This will include arriving at a decision as regards the retirement age which will uniform for all members of the CAPFs irrespective of their rank thus bringing all of them, including the CISF and the AR, on par and fixing the date from which such changed retirement age will take effect."
[15] In compliance with the aforesaid judgment of the High Court of Delhi, the Ministry of Home Affairs, Government of India issued an order dated W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 10 19.08.2019 deciding that the age of retirement for all members of Central Arm Police Forces (CAPFs) including the personnel of the CRPF will be 60 years. It is also mentioned in the said order that the date of effect will be the date of issue of the order and all the forces were directed to amend the provisions of the rules as applicable in line with the said order. [16] Mr. S. Suresh, learned ASG submitted that after Rule 43(a) of the CRPF Rules had been struck down by the Delhi High Court and after the compliance order dated 19.08.2019 had been issued by the Government, enhancing the age of retirement to 60 years, the said Rule 43(a) is no longer in the statute book and the petitioners cannot claim that they are at the verge of retirements. Accordingly, the respondents have not committed any wrong in rejecting the representations submitted by the petitioners. [17] The learned counsel for the respondents lastly submitted that the law relating to the power and limitation of this Court to interfere with transfer and posting in exercise of its power of judicial review is well settled by the Hon'ble Supreme Court. In this regard, the learned counsel had cited the following cases :-
"(1) (1989) 3 SCC 445 Union of India &Ors. V. H.N. Kirtana Para 5. .... we do not find any valid justification for the High Court for entertaining a writ petition against the order of transfer made against the employee of the Central Government holding transferable post. ....... The respondent being a Central Government employee held a transferable post and he was liable to be transferred from W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 11 one place to another in the country, he has no legal right to insist for his posting at Calcutta or at any other place of his choice. We do not approve of the cavalier manner in which the impugned orders have been issued without considering the correct legal position. Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on the ground of mala fide. ......
"(2) 1991 Supp (2) SCC 659 Mrs. Shilpi Bose &Ors V. State of Bihar &Ors.
Para 3. .... Since they hold transferable posts they are liable to be transferred from one place to another. The transfer orders had been issued by the competent authority which did not violate any mandatory rule, therefore the High Court had no jurisdiction to interfere with the transfer order.
Para 4. In our opinion, the courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rules or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or other, he is liable to be transferred from one place to another. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order. ............If the courts continue to interferewith day-to-daytransfer orders issued by the government and its subordinate authorities, there will be complete chaos in the administration which would not be conducive to public interest. .....
"(3). (1993) 4 SCC 357 Union of India &Ors. V. S.L. Abbas Para 6. An order of transfer is an incident of Government service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that " the President may transfer a Government servant from one post to another". ....... He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 12 in the nature of guidelines. They do not have statutory force Para 7. Who should be transferred where, is a matter of the appropriate authority to decide. Unless the order of transfer is vitiated by mala fide or is made in violation of any statutory provisions, the court cannot interfere with it. ........................ The said guideline however does not confer upon the Government employee a legally enforceable right.
"(4). (2001) 8 SCC 574 National Hydroelectric Power Corpn. Ltd V. Shri Bhagwan Para. 5. ....... It is now well settled and often reiterated by this Court that no government servant or employee of public undertaking has any right to be posted forever at any one particular place since transfer of particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary to in public interest and efficiency in public administration. ........... the courts or tribunals cannot interfere with such orders as matter of routine, as though they are the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned. ......
"(5). (2004) 11 SCC 402 State of U.P. &Ors. V. Gobardhan Lal Para. 7. It is too late in the day for any government servant to content that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service.
Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violation of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 13 consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with as they do not confer any legally enforceable right. .......... Para 8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made much be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
"(6). (2005) 7 SCC 227 Major General J.K Bansal V. Union of India &Ors.
Para. 12. ....... The scope of interference by the courts in regards to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed forces should be posted. ............
"(7). (2009) 15 SCC 178 Rajendra Singh & Ors. V. State of Uttar Pradesh Para 8. A Government servant has no vested right to remain posted at a place of his choice nor can be insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to other. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. No Government can function if the government servant insists that once appointed or posted in a particular place or W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 14 position, he should continue in such place or position as long as he desires.
"(8). (2010) 13 SCC 306 State of Haryana &Ors. V. Kashmir Singh & Anr.
Para. 12. Transfer ordinarily is an incidence of service, and courts should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. In particular, we are of the opinion that transfer and postings of policemen must be left in the discretion of the State authorities concerned which are in the best position to assess the necessities of the administrative requirement of situation. ........
Para. 14. ......... Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. .........
"(9). (2004) 12 SCC 299 Kendra Vidyalaya Sangathan V. Damodar Prasad Pandey Para. 4. ....... Who should be transferred and posted where is a matter for the administrative authority to decide.
.........."
[18] In connection with the first ground, this Court, after hearing the submissions of the learned counsel appearing for the parties and after careful examination of the relevant records, finds that there is no dispute as regards the particulars of the posting tenures of the petitioners as reflected hereinabove, except for the dispute as to whether the posting tenure of the petitioners at 44 Bn. and 26 Bn. will be counted as posting tenure under the N.E. Zone or not and whether the petitioners have already enjoyed 14 years posting tenure in the N.E. Zone or not.
[19] It has been submitted by Mr. S. Suresh that 26 Bn. and 44 Bn. were shifted to Imphal by an order dated 09.02.1977 and till 03.08.2012, the said W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 15 26 Bn. and 44 Bn. were in the N.E. Zone. However, on the examination of the said orders dated 09.02.1977, this Courts finds that the order did not specifically mentioned about placing the 26 Bn. and 44 Bn. under the N.E. Zone. Moreover, on examination of the said order dated 03.08.2012 relied on by the learned ASG that the 26 Bn. and 44 Bn. located/deployed at Shri Nagar, Jammu & Kashmir had been de-attached from Group Centre Imphal and affiliated to MKG under Central Zone and Group Centre JDR under Jammu & Kashmir Zone respectively and the said order nowhere mentioned about placement of the 26 Bn. and 44 Bn. under N.E. Zone from 09.02.1977 till 02.08.2012. This factum has been fairly admitted by the learned ASG and also submitted that the respondents could not produce any order placing the 26 Bn. and 44 Bn. under the N.E. Zone.
On the other hand, order dated 05.07.2016 issued by the DG, CRPF and relied on by the petitioners clearly shows de-attachment of the 26 Bn. and 44 Bn. from Central Zone and Jammu & Kashmir Zone and re- affiliating to N.E. Zone.
[20] As the respondents have failed to produce any order showing deployment or attachment of the 26 Bn. and 44 Bn. to N.E. Zone prior to 03.08.2012, from which date the said two Battalions have been affiliated to Central Zone and Jammu & Kashmir Zone and in view of the order dated 05.07.2016 and de-attaching the said 26 Bn. and 44 Bn. from Central Zone W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 16 and Jammu & Kashmir and re-affiliated to N.E. Zone, this Court has no option but to reject the contention of the respondents that the said two Battalions were deployed or attached under the N.E. Zone since 1997 till 03.08.2012 and to accept the contentions of the petitioners that the said two Battalions were affiliated to N.E. Zone only w.e.f. 2016. In the result, this Court is of the considered view that the respondents have erroneously calculated the posting tenure of the petitioners in 26 Bn. and 44 Bn. as posting tenure under the N.E. Zone. Accordingly, it is to be held that the petitioners have not enjoyed 14 years posting tenure in the N.E. Zone. [21] So far as the rival contentions in respect of ground No. (iii) is concerned, the Hon'ble High Court of Delhi while striking down Rule 43(a) of the CRPS Rules, 1955 has given a directions at Para 71 of the judgment dated 31.01.2019, directing the respondents to take all the consequential steps within four months from the date of the judgment for arriving at a decision regarding the retirement age of all the members of the CAPFs irrespective of their ranks. The Government of India, Ministry of Home Affairs, implement the directions of the Hon'ble High Court by issuing an order dated 19.08.2019 fixing the date of retirement of all members of the CAPFs including the CRPF personnel at 60 years.
In view of the above, the petitioners, who submitted their representations well before the change of retirement age from 57 years to W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 17 60 years brought in by the order dated 19.08.2019, rightly claim for the posting of their choice as provided under Para 5(ix) of the standing order No. 07/2015. Accordingly, this Court is of the considered view that the respondents have rejected the representations of the writ petitioners without proper application of mind and without giving any reasons and this Court has no hesitation to hold that the action of the respondents are unreasonable and arbitrary.
[22] So far as the law laid down by the Hon'ble Apex Court in the cases cited by the learned counsel appearing for the respondents is concerned, this Court has no quarrel with the principle of law laid down by the Hon'ble Apex Court and this Court is bound by the law laid down therein. However, the only issue to be considered is whether the principle of law laid down by the Hon'ble Apex Court in the facts and circumstances of those cases are applicable in the facts and circumstances of the present case or not.
In the present case, the authorities have issued a detail transfer and posting policy for effecting transfer and posting of non- gazetted CRPF personnel under the standing order No. 07/2015 dated 04.08.2015. It is also an admitted and undeniable fact that all the transfer and posting of non-gazetted CRPF personnels have been effected in terms of the said transfer policy without any exception. In fact, the impugned transfer ordershave alsobeen issued effecting transfer and posting of a W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 18 number of CRPF personnels including the petitioners in terms of the transfer policy as contained in the said standing order No. 07/2015. [23] Only after the petitioners challenged their transfer and posting order by contending that their transfer and posting have been effected in violation of the transfer policy as contained in Para 4(ix) and Para 5(ix) of the standing order and only after the respondents failed to show that their actions in effecting the transfer and posting of the petitioners are in terms of the transfer policy under the standing order No. 07/2015, the respondents cannot turn around and contend that their transfer and posting policy under standing order No. 07/2015 is not binding to them and that the said standing order does not create any enforceable right to the petitioners. This Court respectfully refused to accept such contradictory stand of the respondents and this Court is also of the respectful view that the authorities relied on by the respondents are not applicable in the facts and circumstances of the present case, inasmuch as, in all those cases before the Hon'ble Apex Court, no transfer and posting policy as in the present case was not involved and the Hon'ble Apex Court has no occasion to consider the validity of any transfer order in terms of a well established transfer policy issued by the authorities as in the present case. [24] For the findings and reasons given hereinabove, the impugned transfer order dated 31.01.2019, impugned signal dated 13.02.2019, W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 19 impugned signal dated 28.02.2019 and impugned signal dated 11.03.2019, in respect of the present petitioners are hereby quashed and set aside. The respondents are directed to consider the request of the petitioners for allowing them to continue to serve at the Group Centre Imphal to the extent permissible under the transfer policy as contained in standing order No. 07/2015. The respondents are further directed to release the pay and allowances of the petitioners due payable to them as early as possible. [25] With the above directions, the present writ petitions are disposed of.
JUDGE FR/NFR Lhaineichong W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 20