Allahabad High Court
Satyendra Nath Rai vs Union Of India And 4 Others on 19 October, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - A No. - 15388 of 2019 Petitioner :- Satyendra Nath Rai Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Samarath Singh,Hritudhwaj Pratap Sahi,Sankalp Narain Counsel for Respondent :- A.S.G.I.,Prem Shanker Prasad Hon'ble Ashwani Kumar Mishra,J.
This writ petition is directed against an order of transfer dated 20th September, 2019, whereby petitioner has been sent from 18th Battalion I.T.B.P., Prayagraj to 49th Battalion, I.T.B.P., Basar, Arunanchal Pradesh. The order of transfer is assailed by the petitioner relying upon the guidelines issued by the I.T.B.P., as per which, all transfers are to be effected pursuant to the process initiated in November of the previous year. It is stated that there existed no justification for effecting the order of transfer after the cut-off, particularly, as under the circular of I.T.B.P. dated 5.10.2018, cut-off for calculating the tenure will be 30th June for all formalities. It is stated that no administrative exigency either exist or has been placed before the Court and, therefore, the order of transfer is bad in law. Reliance has been placed upon Clause 5(d) of the guidelines.
While entertaining the writ petition, this Court initially passed following orders on 1.10.2019:-
"Petitioner is aggrieved by an order of transfer dated 20.9.2019 whereby he has been sent from Allahabad to Arunanchal Pradesh. The order is assailed by relying upon the various circulars of the respondents by which annual transfer ought to be completed by 30.6.2019. It is stated that the petitioner's minor children are studying and it would be difficult for him to maintain two separate establishments. It is also stated that the petitioner has not over stayed the term. Attention of the Court is also invited to Clause-5 of the circular, as per which mid session transfer would not be permissible.
Sri Prem Shanker Prasad learned counsel for the respondents may obtain instructions in the matter.
Post as fresh, once again, on 14.10.2019."
After hearing the counsel for the parties, a subsequent order was passed on 15th October, 2019, which is reproduced hereinafter:-
"Pursuant to the orders passed on the previous occasion, Sri Prem Shanker Prasad, learned counsel for the respondents has obtained instructions, according to which there exists only one post of A.S.I. (CM) against which two persons were continuing and since the petitioner has been the one continuing from before as such he has been shifted by the order impugned.
Learned counsel for the petitioner states that in case petitioner's name is included in the transfer chain which would now be processed next, he would have no objection. It is submitted that on account of petitioner's transfer to Arunanchal Pradesh, irreparable injury would be caused to him as his minor son is admitted in School.
Before proceeding further, it would be appropriate to permit the respondents to take further instructions as to whether there would be any available vacancy in any nearby station where the petitioner could be adjusted.
Post as fresh on 19.10.2019."
Sri P.S. Prasad, learned counsel for the respondent has obtain instructions, according to which, there is no vacancy available in the nearby Battalion where the petitioner could be adjusted.
Learned counsel for the petitioner submits that there exists a vacancy at 29th Battalion, which is an extremely hard area at Madhya Pradesh, where the petitioner can be accommodated.
Learned counsel for the respondent on the other hand submits that I.T.B.P. is a Paramilitary Organisation and as the petitioner has already completed more than three years term at his present place of posting, there would be no justification for this Court to interfere with the order of transfer. It is stated that petitioner's son can be admitted at the place where the petitioner is transferred as adequate arrangement for schooling etc. exist and admissions are made on transfer.
Having considered the respective submissions advanced as also the fact that there exists no vacancy in an available nearby battalion, the Court is not inclined to interfere with the order of transfer. It is not in issue that petitioner holds a transferable post and transfer is an incidence of service. The petitioner has otherwise completed three years terms at Prayagraj, which is the normal tenure of stay. Merely because order of transfer has been passed a couple of months after the schedule date by which transfer is ordinarily to be completed would not give any right to the petitioner to continue for a further term nor the interference on such count with the order of transfer would be justified, particularly, in a paramilitary organization. Administrative exigency would otherwise not be evaluated, particularly, when there is no specific allegation of mala fide, etc. In such circumstances, this Court declines to interfere with the order of transfer. Consequently, the writ petition fails and is dismissed.
In the facts and circumstances, it is, however, provided that after the petitioner joins he shall be at liberty to make a representation for his adjustment to any other area, and if there exists administrative exigency and vacancy, the same shall be dealt with in accordance with law.
Order Date :- 19.10.2019 Ranjeet Sahu