Karnataka High Court
Anil Kumar Akarnia vs The Union Of India Ministry Of Home ... on 29 May, 2023
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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WP No. 102784 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 29TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 102784 OF 2023 (GM-RES)
BETWEEN:
ANIL KUMAR AKARNIA,
AGE: 51 YEARS,
OCC: COMMANDANT 44TH BN, ITBP,
R/O. 44TH BATTALION, ITBP,
HALBHAVI CAMP, P.O.- NEW VANTAMURI,
TQ: AND DIST: BEALGAVI-591156.
...PETITIONER
(BY SRI JAGADISH PATIL, ADVOCATE)
AND:
1. THE UNION OF INDIA,
MINISTRY OF HOME AFFAIRS,
THROUGH SECRETARY,
DEPARTMENT OF HOME AFFAIRS,
ROHAN
HADIMANI
BLOCK NO.2, CENTRAL OFFICE,
T LODHI ROAD, NEW DELHI-110003.
High Court
of
Karnataka,
Dharwad 2. DIRECTOR GENERAL,
OFFICE OF DIRECTORATE GENERAL,
INDO-TIBETAN BORDER POLICE,
BLOCK NO.2, C.G.O. COMPLEX,
LODHI ROAD, NEW DELHI-110003.
3. INSPECTOR GENERAL
(GRIEVANCE AND WELFARE )
OFFICE OF DIRECTORATE GENERAL,
INDO-TIBETAN BORDER POLICE,
BLOCK NO.2, C.G.O. COMPLEX,
LODHI ROAD, NEW DELHI-110003.
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WP No. 102784 of 2023
4. DEPUTY INSPECTOR GENERAL (PERSONNEL)
OFFICE OF DIRECTORATE GENERAL,
INDO- TIBETAN BORDER POLICE,
BLOCK NO. 2, C.G.O. COMPLEX,
LODHI ROAD, NEW DELHI-110003.
5. THE DY. INSPECTOR GENERAL,
SHQ (BENGALURU),
ANO ITB POLICE,
SUNDARA HALLI, BYARASANDRA,
TQ: SIDLAGHATTA, DIST: CHIKABALLAPURA.
...RESPONDENTS
(BY SRI VENKATESH M. KHARVI, DEPUTY SOLICITOR GENERAL
FOR R1 TO 5)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE
A WRIT IN NATURE OF CERTIORARI QUASHING THE ORDER
DATED ORDER DATED 18/04/2023 BEARING NO.1-
47011/03/2023/PRES-11633-732 PASSED BY THE
RESPONDENT NO.2 VIDE ANNEXURE-E PASSED BY THE 2ND
RESPONDENT IN TRANSFERRING THE PETITIONER FROM 44TH
BN TO HQ NE FTR AT SERIAL NO.20 WITH RESPECT TO THE
PETITIONER AND ISSUE A WRIT IN NATURE OF MANDAMUS
DIRECTING THE 2ND RESPONDENT TO CONSIDER THE
APPLICATION DATED 24/04/2023 BEARING
NO.ITBP/44/BN/TFR APPLICATION/2023-2212-16 MADE BY THE
PETITIONER TO 2ND RESPONDENT THROUGH 5TH RESPONDENT
VIDE ANNEXURE-H AND SUCH OTHER RELIEFS.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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WP No. 102784 of 2023
ORDER
Heard learned counsel Shri Jagadish Patil, for the petitioner and Shri Venkatesh M.Kharvi, learned Deputy Solicitor General, representing respondent Nos.1 to 5.
2. With consent of both parties matter is taken for final disposal as consideration of I.A.No.2/2023 is as good considering the main matter.
3. This petition is filed by the petitioner seeking writ of certiorari to quash the order dated 18.04.2023 passed by 2nd respondent vide Annexure-E transferring the petitioner from 44th Battalion to Headquarter, North-East frontier at serial No.20 of Annexure-E and for other consequential relief's.
4. It is the case of petitioner that he is posted in the 44th Battalion, Indo-Tibetan Border Police (hereinafter referred as 'ITBP' for brevity), Belagavi (ANO) (First Command) and that his deployment unit is Naxalite affected area Mohla-Manpur, Rajnandgaon (Chattisgarh). Learned counsel for the petitioner contends that family of petitioner is residing at New Delhi. It is stated that vide order dated 10.07.2019, the petitioner was transferred from SHQ (Bareilly) to 44th Battalion (ANO), ITBP and that he has completed 3 years in extreme hard area. It is -4- WP No. 102784 of 2023 further stated that due to his posting outside of New Delhi, he is unable to take care of his family and discharge his family duties. As such, he sought and requested for transfer to four preferred places/battalions, as mentioned in Annexure-B.
5. Petitioner had also made a representation on 17.11.2022 reiterating the earlier representation on 21.09.2022 requesting for transfer to the preferred places in order to facilitate him to take care of his family. This being the facts of the case, respondent No.2 passed an order on 18.04.2023 vide Annexure-E transferring the petitioner from 44th Battalion, ITBP, Belagavi (ANO) to Headquarters, North-East frontier, Itanagar (Arunachal Pradesh). Aggrieved by the order passed on 18.04.2023 by the 2nd respondent, petitioner is before this Court seeking for writ of certiorari to quash the said order and other consequential relief's.
6. It is the vehement contention of learned counsel for the petitioner that having completed three years 9 months of service in extreme hard area and the prescribed period of three years being a maximum posting of the petitioner in Chattisgarh, Anti Naxal Operation Area, petitioner is unable to perform his family duty as a dutiful husband and responsible -5- WP No. 102784 of 2023 father of his children. It is the contention of learned counsel for the petitioner that as per original order of transfer on 18.04.2023, petitioner was transferred and ordered to be relieved and join the new place of posting by 15.05.2023. Thereafter, vide order dated 20.04.2023, the Central Frontier Headquarters sent an E-mail to the petitioner to be relieved on 10.05.2023 and thereafter, respondent No.5 vide E-mail dated 22.04.2023 directed the petitioner to be relieved from duty by 23.04.2023 itself which is in complete violation of the transfer orders initially passed on 18.04.2023.
7. It is the vehement contention of learned counsel for the petitioner that there is serious violation of fundamental principles and the fundamental rights of the petitioner by not giving him reasonable time and opportunity and non consideration of his representation for considering posting of the petitioner to the preferred places as mentioned in Annexure-B. It is also contented by learned counsel for the petitioner that the orders passed vide Annexure-E is illegal, as the said order is passed by Deputy Inspector General (Pers) and thereafter, E-mail communications of immediate transfer has been passed by the Officer Commanding, RHQ, SHQ, -6- WP No. 102784 of 2023 (Bengaluru), ITBP and by Deputy Inspector General, SHQ (BGLR) ANO, ITB Police. On these grounds, petitioner has questioned the order of transfer passed by respondent No.2 and E-mail communications issued at Annexures-G and G1. Learned counsel further contends that pursuant to the representations made by petitioner due to non consideration of the same, petitioner approached this Court left with no other alternative. On 26.04.2023 and vide order dated 27.04.2023, this Court granted an interim order in favour of the petitioner, despite which, respondents have not bothered to adhere to the orders passed by this Court and in violation of the said order, the Incumbent Officer namely Shri Mukesh Kumar Dashmana, who is in Sl.No.24 of Annexure-E, in the very same transfer order dated 18.04.2023 was ordered to take charge of the 44th Battalion (ANO) has deliberately and forcefully tried to take charge of the post of the petitioner.
8. Learned counsel further contends that petitioner has not handed over the charge and he is still performing his duties as the commandant of the 44th Battalion. It is also contended by learned counsel that the Incumbent Officer namely Shri Mukesh Kumar Dashmana, Commandant has -7- WP No. 102784 of 2023 already started issuing letters despite an interim order passed by this Court, despite stay of operation of that order dated 18.04.2023 passed by this Court.
9. Per contra, learned Deputy Solicitor General of India representing the respondents has filed his detailed objections wherein, it is contended that the preliminary objections are raised with regard to maintainability of this writ petition on the ground that there is no jurisdiction of this Court to entertain the present writ petition for the reason that there is an alternative and efficacious remedy available to the petitioner, which the petitioner has not explored and that petitioner has suppressed the material facts as on 26.04.2023 and obtained an order from this Court by misrepresentation and suppression of material facts. Learned Deputy Solicitor General of India Shri V.M.Kharvi, further contends that as per the transfer order passed on 18.04.2023 vide Annexure-E, petitioner was ordered to be transferred to Headquarters, North-East frontier area and the Incumbent Officer at Sl.No.24 of Annexure-E namely Mukesh Kumar Dashmana is transferred to the place of the petitioner at 44th Battalion (ANO). -8- WP No. 102784 of 2023
10. It is further contended by the learned Deputy Solicitor General that the transfer orders are the prerogative of the executive and the petitioner does not have a fundamental right to chose the place of transfer of his choice and petitioner will have to follow the orders of transfer of the superior officers and the Head Quarters rather than approaching this Court and making reckless and frivolous allegations against the superior officers and transferring authority. It is further contended by the learned Deputy Solicitor General that the ITBP being the Paramilitary Force coming within the Central Armed Police Force is governed by the certain guidelines, rules and regulations in a disciplinary manner and any violation of the said orders issued by the superior officers and the transferring authorities would be viewed as violation of following the orders and serious charges could be leveled of indiscipline against the petitioner calling for further action disciplinary in nature as against the petitioner.
11. Learned Deputy Solicitor General Sri Venkatesh M. Kharvi further contends that instead of following the orders of transfer at Annexure-E, the petitioner has made reckless allegations trying to subvert the order of transfer making -9- WP No. 102784 of 2023 frivolous excuses and reasons and has in fact gone a step further by placing an affidavit before the Court and produced the medical OPD ticket/ From Unit/ SHQ/BH/Composite Hospital, dated 22.04.2023 stating that he was advised bed rest for four days, which is also stated on oath at paragraph No.5 of his affidavit. The said document of OPD ticket also been enclosed with the affidavit. Therefore, the learned Deputy Solicitor General contends that the petitioner has been trying to hoodwink this Court by producing a frivolous medical OPD ticket, which is neither signed nor authenticated by a Medical Officer who is alleged to have examined the petitioner. On these grounds, learned counsel for the respondent contends that the document produced itself is fraudulent and a concocted document to mislead this Court.
12. Learned counsel vehemently disputes the contents of the said medical OPD ticket by contending that there is no signature of the Doctor and that the said OPD ticket has been issued by an un-authorised person, which would not have any evidentiary value or even for persuasive value. On this ground he contends that the affidavit is frivolous and the petitioner would have to be dealt with iron hand so that others do not
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WP No. 102784 of 2023follow foot steps of the petitioner in the disciplined forces which is paramilitary force of Central Armed Police Force, which follows absolute and strict discipline and efficiency in its standard. Learned Deputy Solicitor General further contends that as on the date of the Incumbent Officer Sri Mukesh Kumar Dashman having taken charge, the petitioner admittedly was not in the office so therefore the question of petitioner's still continuing the carry on functions of the Commandant of the 44th Battalion is farfetched and imaginary. He also contends that these types of petitions should not be entertained by the Courts more so for the reason that the paramilitary forces and Central Armed Police Forces are examples of standard of efficiency and discipline of the forces of high order and such interference, if any made by the Court would act detrimental to the interest of the Armed Forces and Central Police Force and dent the enthusiasm and discipline of the personnel belonging to these forces. On these grounds he seeks to dismiss the writ petition by imposing exemplary costs and also seeks initiation of disciplinary action against the petitioner.
13. I have heard the learned counsel for the petitioner and learned Deputy Solicitor General of India for respondent.
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WP No. 102784 of 2023
14. To advert to the merits of this matter, it is necessary to understand the functions and operations of the ITBP force. The main object and reasons for establishment of this ITBP is for the purpose of regulating the Special Forces by a self contained statute for providing special needs especially the needs of efficiency and discipline. The ITBP force is charged with the policing of the northern borders and seeks to ensure the standards of efficiency and discipline of the forces of high order. It is also necessary to extract Section 5 of the ITBP Act, 1992 which reads as under :
"5. Control, direction, etc.- (1) The general superintendence, direction and control of the force shall, vest in, and be exercised by, the Central Government and subject thereto and to the provisions of this Act and the rules the command and supervision of the Force shall vest in an officer to be appointed by the Central Government as the Director-General of the Force.
(2) The Director-General shall, in the discharge of his duties under this Act, be assisted by such number of Additional Director-General, Inspectors-
General, Deputy Inspector-General, Additional Deputy Inspector-General, Commandants and other officers as may be appointed by the Central Government."
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WP No. 102784 of 2023
15. Section 7, 9, 14 and 15 of the ITBP Act, 1992 reads as under :
"7. Liability for service outside India.- Every member of the Force shall be liable to serve in any part of India as well as outside India.
9. Tenure of service under the Act.- Every person subject to this Act shall hold office during the pleasure of the President.
14. Remedy of aggrieved persons other than officer.-
(1) Any person subject to this Act other than an officer who deems himself wronged by any superior or other officer may complain to the officer under whose command he is serving.
(2) When the officer complained against is the officer to whom any complaint should under sub-
section (1), be preferred, the aggrieved person may complain to such officer's next superior officer.
(3) Every officer receiving any such complaint shall make as complete an investigation into it as may be possible for giving full redress, to the complainant, or when necessary, refer to complaint to a superior authority.
(4) The Director-General may revise any decision made under any of the foregoing sub-
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WP No. 102784 of 2023sections, but, subject thereto, such decision shall be final.
15. Remedy of aggrieved officers.- Any officer who deems himself wronged by his commanding officer or any other superior officer and who, on due application made to his commanding officer or such other superior officer, does not receive the redress to which he considers himself entitled, may complaint to the Director-General or the Central Government through proper channel, tools or equipment or misbehaves in such manner as to show cowardice; or"
16. The hierarchy of the officers of ITBP are mentioned in Chapter 11 Section 153(a) (i) to (ix), which reads as under :
"153. Rank structure.- The officers and other members of the Force shall be classified in accordance with their ranks in the following categories, namely:-
(a) Officers-
(i) Director General.
(ii) Additional Director-General.
(iii) Inspector-General.
(iv) Deputy Inspector-General.
(v) Additional Deputy Inspector-General.
(vi) Commandant.
(vii) Second-in-command.
(viii) Deputy Commandant.
(ix) Assistant Commandant."
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WP No. 102784 of 2023
17. It is also relevant to look at Standing Orders No.04/2023 passed by the Ministry of Home Affairs, Government of India dated 10.02.2023 produced at Annexure- R6 are the general guidelines with regard to transfer and postings of the Gazetted Officers. In compliance of Section 7 of the ITBP Act, 1992, the said standing order is brought about with an objective of standard operating procedure to streamline and bring about transferencey and uniformity in the transfer/postings of Gazetted Officers and this standing order is in super session of all previous guidelines of transfer/posting of Government Officers issued by the Directorate General. The said standing order defines transfer/posting as per Clause 2 sub clause-d which reads as under :
"2. DEFINITIONS
(d) Transfer/Posting - means the movement of a member of the Force from one headquarter station in which he/she is presently posted to another such station, either to take up the duties of a new post, or in consequence of a change of headquarters."
18. The standing order also stipulates the tenure of posting as per clause 4 of the Standing Order, which reads as under :
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4. TENURE
(a) The normal tenure of posting in the areas classified as Extreme Hard Area (EHA), Hard Area (HA) and Soft Area (SA) will be 03 (three) years, except for Units/Formations whose HQs are located at Leh, for which the tenure will be 02 (two) years.
(b) Tenure for Faculty Members posted to Training Centres:
i) The tenure of faculty members in
the Training Centres will be 03
(three) years only.
ii) Faculty members shall be drawn
from a panel of instructors.
ii) Officers having "AX" and "I" grading will be
drawn into the panel and posted to training centres as faculty, irrespective of their current posting category. On completion of the prescribed tenure, faculty members can submit 03 (three) choices for their next posting in EHA/HA units.
(c) Transfers/postings in Int and Vigilance set up:
as per separate guidelines.
(d) It will be mandatory for officers to serve in EHA/HA areas for two tenures during their first 05-06 (five-six) years of service, excluding the basic training period, before they are considered for postings to Soft Areas.
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WP No. 102784 of 2023
Note i In case of five years, the consideration will be two years in any of the Leh based units/formations+three years in other EHA/HA units/formations.
ii In case of six years, the consideration will be three years+three years in EHA/HA units/formations.
(e) All deputations will be treated as Soft Area (SA) postings. On repatriation from deputation, officers will be posted to Extreme Hard/Hard Areas, especially in Leh/NE/ANO based units/formations, irrespective of their previous postings. However, if any officer is repatriated within a period of 01 (one) year, he/she may be posted to his/her parent unit subject to the availability of vacancies in that unit/formation.
(f) The transfers/postings of Gazetted Officers will take into account the operational and administrative requirements of the Force and other aspects like the officer's previous postings and his/her suitability.
(g) The cut-off date for calculating the tenure shall be between April 01 and June 30. All officers under transfer are expected to be relieved by April 01 but not later than June 30 for the purpose of counting the period of next tenure. All
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WP No. 102784 of 2023cases of delayed joining (beyond June 30) will be taken up separately by a Board of Officers for appropriate posting orders. All HOOs of field formations/units and Officers in-charge of concerned branches at the Dte Genl shall be personally responsible for timely relieving of officers. Any deviation will be viewed seriously.
(h) Officers posted in EHA/HA may submit 03 choices for general, compassionate/medical and couple case transfers.
(i) On promotion, an officer may be posted at any location as per the availability of vacancies, irrespective of the tenure at his/her present location or previous postings.
(j) Mid-year transfers by the SEB will only be made due to promotions, deputations, resignations, retirements or other urgent administrative or operational exigencies of the Force.
(k) Since the ACs (GD) deployed in ANO are required to undergo specialized pre-induction training, the concerned units/formations shall ensure their relieving/reporting on transfer as per the timeline mentioned in the transfer orders.
(l) The permissible vacancies of officers in the Border/ANO units will be maintained as indicated below:
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Cadre Percentage of
Categorisation permissible
Vacancies
Border/ GD 5%
ANO cadre
Units Non-GD 10%
cadre
(m) POSTINGS OF GOs WORKING ON DESK JOBS AT DTE GENL
(i) Respective IsG at Dte Genl will ensure that substitutes of officers due for transfers are identified on the basis of their suitability well before the completion of their tenures and communicated to the SEB for consideration.
(ii) Cases for retention of any existing officer may be considered on the recommendations of the concerned IsG at Dte Genl, only on grounds of extreme exigencies of service.
n) SAFE CUSTODY OF RECORDS OF SPECIFIC TRANSFERS All records pertaining to transfers/postings ordered due to 'administrative reasons' shall be kept in sealed cover for future reference and shall be placed before the SEB at the time of next transfer."
19 Clause 6 of the Standing Order deals with disposal of the representations, which reads as under :
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"6. DISPOSAL OF REPRESENTATIONS
a) Representations relating to postings/transfers will be considered by a separate board of officers, constituted with the approval of DG, ITBP:
Addl. DG - Chairman
Inspector General - Member
Inspector General - Member
Dy Inspector General - Member
IG/DIG/ Senior most
officer of Concerned cadre - Co-opted Member
b) All representations relating to transfer/posting orders forwarded by the Units/Formations should reach the Dte Genl with specific comments of concerned Ftr IsG within 30 days from the date of issue of orders.
c) The timeline to deal with the representations shall be as follows.
S.No. Particular Timeline
i) Submission of Within 10 days
representations by GOs from the date of
issue of the
transfer order.
ii) Forwarding of Within 05 days
representations by units/
ormations to the next
higher formation i.e.
SHQrs.
iii) Forwarding of Within 05 days
representations by SHQrs
to Ftr HQrs.
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WP No. 102784 of 2023
iv) Forwarding of Within 05 days
representations by Ftr
HQrs to Command HQrs.
v) Forwarding of Within 05 days
representations by
Command HQrs to Pers
Directorate.
vi) Disposal of representations Within 30 days
by pers Directorate.
d) Appeal, if any, against the decision on the
representation may be submitted by the GO to the Dte Genl only after joining at the new place of posting. Such appeal shall be disposed of within a period of 30 days from the date of receipt. Transfer TA will be processed only after the disposal of the appeal.
e) No representation of any GO preferred within the given timeframe shall be withheld by the field formations.
f) No direct representation will be entertained at the Dte level.
g) Recommendation of the board shall be put up through proper channel with specific comments of IG (Pers) for final orders of DG, ITBP.
h) Representations of GOs finally disposed of by the Dte Genl shall be immediately conveyed to the concerned units/formations."
20. It is seen by the Clause 6 that representations relating to postings be considered by a separate board of
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WP No. 102784 of 2023officers and the timelines of dealing with such representations are mentioned in a table for disposal/ consideration of the said representations. It is also relevant to see that as per Clause 6(d), which deals with appeal provision states that the appeal, if any against the decision of representation made be submitted by the GO to the Directorate General only after joining at the new place of posting. Such appeal shall be disposed of within a period of 30 days from the date of receipt. It is also stated as per Clause 6(f) that no direct representation will be entertained at the Directorate level.
21. Clause 12 of the Standing Order deals with disciplinary action in case of non-compliance of transfer/posting orders, which reads as under :
"12. DISCIPLINARY ACTION IN CASE OF NON-
COMPLIANCE OF TRANSFER/POSTING
ORDERS.
a) If an officer relieved from a Unit does not join at the new place of posting, his/her disciplinary control shall vest with the unit of the new place of posting for issuance of absentee notices, taking disciplinary action and other related purposes. All the papers of the transferred officer should be sent to the new place of posting and his/her entry
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in e-HRMS shall also be upgraded to show the new status, within one month of relieving.
b) Officers under orders of transfer should not ordinarily be granted leave from the unit from where they are to be relieved.
Instead, they should be relieved to join their new place of posting within the given timeline."
22. Clause 13 of the Standard Order deals with the applicability of Rule 20 of CCS (Conduct) Rules 1964. This being the intention of the ITBP Act, 1992 and the Standing orders passed by the ITBP with the Ministry of Home Affairs, Government of India and the mechanism laid down in the self contained statute has prescribed certain rules and regulations, procedures for the Gazetted Officers belonging to the ITBP.
23. In the present case, learned counsel for the petitioner has relied on the judgment of Hon'ble Apex Court in the case of S.K.Nausad Rahaman & Others vs. Union of India and Others, reported in 2022 Live Law (SC) 266 and the learned Deputy Solicitor General relied on the following judgments in support of his case.
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WP No. 102784 of 2023
(a) Union of India and Others vs. S.L.Abbas, (1993) 4 SCC 357.
(b) Registrar General, High Court of Judicature of Madras vs. R. Perachi and Others, (2011) 12 SCC 137.
(c) Major General J.K. Bansal vs. Union of India and others, (2005) 7 SCC 227.
(d) Major Amod Kumar vs. Union of India and Anothers, (2018) 18 SCC 478.
(e) CPL Deepak Kumar vs. Union of India and Others, W.P.(C) 12085/2021 and CM Appeal.37784/2021, July 26, 2022 of High Court of Delhi.
24. Having gone through the said judgments relied by the learned counsel it would not take much time for this Court to advert to the situation on hand as the matter pertains to transfer of a Gazetted Officer from one place to another place and more so the transfer of an officer working in the Paramilitary Force or Central Armed Police Force governed by a self contained statute and standing order. Primarily it is well known principle of law that the transfer of any employee of the Government or Public Sector more so with regard to All India Services is an incident of services. The question of whether or where the employee should be transferred or posted from one
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WP No. 102784 of 2023place to the other are the prerogatives of the transferring authority or the superior officer of the concerned Ministry and it is well established with the catena of decisions of this Court and Hon'ble Apex Court that the transfer and postings are governed by exigencies of services. It is also no more res integra that an employee or an officer has no fundamental right or for that matter an inherent vested right to claim a transfer or posting of his or her choice. It is also no more res integra that the officer does not get an indefeasible right to challenge the order of posting or transfer on the sole ground of his personal convenience unless such order of transfer or posting is alleged to be tainted with malafides and illegality.
25. In my opinion, the Government servant or an officer from the Paramilitary Forces or the Central Armed Police Forces cannot disobey the transfer order or the posting order and thereafter approach the Court to ventilate their grievances.
26. In the present case on hand, admittedly, the petitioner is Governed by the ITBP Act, 1992, Standing Orders No.4/2023 dated 10.02.2023, which is a self contained code and mechanism by itself. As stated earlier, the mechanism is already provided with regard to challenge to any such transfer
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WP No. 102784 of 2023orders by making representation and time lines for disposal of such representations and also an appeal remedy is provided under Clause 6(d) of the Standing Order stated supra that any such appeal shall be made on the decisions of representation so submitted by the Gazetted Officer to the Director General only after joining to new place of posting. The above said clause also states that such appeal shall be disposed off within a period of 30 days from the date of receipt. The standing orders also deals with Clause 7, which states transfer / postings on compassionate / medical grounds, which further reads as under:
"7. TRANSFERS/POSTINGS ON COMPASSIONATE / MEDICAL GROUNDS
a) Transfers/postings on compassionate/medical grounds will be done in relaxation of the tenure norms on case-to-case basis.
b) All petitions in this regard shall be submitted through the concerned Units/Formations with specific recommendations duly supported with related documents."
27. In case the petitioner is aggrieved by the mechanism of transfer or for matter of representation not being considered
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WP No. 102784 of 2023in accordance with law, then the appeal remedy is provided. So also, if the petitioner is aggrieved on any medical grounds, Clause 7 of the said Standing Order deals with redressal of grievance with regard to transfer on medical grounds, wherein the transfers or postings could be relaxed on a case to case basis.
28. Learned counsel for the petitioner has relied on the Judgment of the Hon'ble Apex Court in the case of S.K.Nausad stated (supra) at paragraph No.51, wherein the Hon'ble Apex Court has emphasized with regard to consideration to importance of protecting family life as an element of the dignity of a person and a postulate of privacy.
29. It is no doubt true that the importance of protecting a family and an element of dignity of a person with regard to his privacy is an incident of Article 21 of the Constitution of India. However, the same cannot be read in isolation. The Hon'ble Apex Court in the very same Judgment has relied on the Judgment of Hon'ble Apex Court in the case of Union of India vs. S.I.Abbas, (1993) 4 SCC 357, wherein at paragraph No.7 of the said Judgment stated as under :
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"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."
30. Though the said case deals with transfer of an employee and the spouse to be posted in the same place, is not condition in the present case on hand.
31. The petitioner having been ordered to be transferred from the 44 Battalion to the Head Quarters, North East Frontier as on 18.04.2023 and thereafter by an e-mail 20.04.2023 to be relieved immediately on the same day ought to have reported to his new place of posting of the Head Quarters North-East frontier. Thereafter, could have raised the issue which he has
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WP No. 102784 of 2023raised before this Court alleging the family constrains and personal problems including the medical sickness, if any. But having not done so the petitioner has refrained from handing over the charge as stated by him in the writ petition which does not augur well with the post of Commandant of a paramilitary force of high discipline and efficiency to be setting an example for the others and juniors to follow. The petitioner as stated earlier ought to have reported to the new place of posting, having not done so and having indulged in approaching this Court by filing this writ petition has not followed the prescriptions in the statute and also the stipulations of standing order No.4/2023 dated 10.02.2023 this aspect of the matter should be curbed by the Courts. Having approached this Court by filing the affidavit on oath by producing the medical OPD ticket which is even not signed by a Medical Officer causes serious concerns/suspicion with regard to the petitioner having approached this Court with unclean hands. It is difficult for this Court to believe the medical OPD ticket which does not contain the signature of any Medical Officer/Doctor. It appears that it is a concocted document. However, this Court does not express any opinion on the same.
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WP No. 102784 of 2023
32. I am not inclined to accept the argument of learned counsel for the petitioner that the respondents are liable for action of contempt of Court for having violated the interim order passed by this Court. The petitioner again alleged ill will or disobedience of the order of Court when there is no such disobedience and when the petitioner himself has not come before the Court with clean hands by revealing factual aspects to the Court as such the said argument of learned counsel for the petitioner with regard to the violation of interim order is negatived. It is seen that despite the order having been passed on 18.04.2023 the petitioner has not joined the service of his place of new posting and ventured this into litigation, which prima facie does not reveal any malafides.
33. Petitioner has contended that the officer who has issued the e-mail message dated 23.04.2023 is not an authorized officer by itself would not attribute malafides against the respondents. Having adverted to points argued by learned counsel for both parties and having not found any valid and cogent reason or grounds to interference with the order of transfer, I do not find any valid grounds made out by the
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WP No. 102784 of 2023petitioner to interfere with the order of transfer made by respondents. Accordingly, I pass the following :
ORDER
(i) The petition stands dismissed.
(ii) Parties are left bear their own costs.
(iii) The learned counsel for the petitioner contends that he has not taken charge of new place of posting for the reason that this Court had granted an interim order in his favour. In view of this Court dismissing the petition of petitioner he shall report to his duty to new place of posting within one week time from today.
(iv) In view of disposal of the main matter, the pending interim application pales into insignificance.
SD/-
JUDGE AM/CKK Mck-ct