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Gauhati High Court

Hem Bahadur Newar vs The Union Of India & 5 Ors on 9 March, 2017

Author: Nelson Sailo

Bench: Nelson Sailo

                    IN THE GAUHATI HIGH COURT

(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                    Writ Petition (C) No.3950/2015

Sri Hem Bahadur Newar
Son of Late Kharka Bahadur Newar
Resident of Village Towbhanga, P.O.
Towghanga i, P.S. Jamugurihat,
Pin-784182 District-Sonitpur, Assam

                                             .......Petitioner

                -Versus-


1.Union of India
Represented by its Secretary
Ministry of Home Affairs
Govt. of INida, North Block
New Delhi-110001

2.The Directorate General of Sashastra
Seema Bal, East Block-V
R.K.Puram, New Delhi-110056

3.The Deputy Inspector General , Sector
Hqr. SSB, Tezpur, Districtr-Sonitpur
Assam, Pin-784001.
4.The Staff Officer, (Admin), SSB, Tezpur,
District-Sonitpur, Assam,
Pin-784001

5. The Inspector General, SSB,
Frontier Head Quarters, Guwahati,
Nikita Complex, House No. 345,
G.S.Road, Khanapar, Guwahati, Assam
Pin-781022

6. The Deputy Commandant, Offg.
Commandant, 38th BN, SSB, Tawang,
Arunachal Pradesh, Pin-790104
                                             ....... Respondents

BEFORE THE HON'BLE MR. JUSTICE NELSON SAILO For the Petitioner : Mr. G Rahul, Advocate.

For the Respondents                     : Mr. M Phukan, C.G.C.

Date of Hearing                         :09.03.2017

Date of Judgment                        :09.03.2017



                        JUDGMENT AND ORDER( ORAL)

Heard Mr. G Rahul, learned counsel for the writ petitioner and Mr. M Phukan, learned C.G.C. for all the respondents.

2. Since the issue revolves around a narrow compass, the case is taken up for disposal at the admission stage with the consent of the parties.

3. The case of the petitioner is that he was appointed as Assistant Sub-Inspector (Ministerial) vide office order dated 7.1.2013 and was posted at the Station Headquarters in Tezpur. Thereafter, vide office order dated 17.7.2014, petitioner was approved for temporary attachment with the 38 Bn SSB, Tawang. But on the same date, he submitted his representation to the respondent No. 3 showing his unwillingness for the said attachment. Considering his representation, the attachment order dated 17.7.2014 was cancelled by the authorities and he was advised to apply for leave for the medical treatment of himself and his family as represented by him on 17.7.2014.

4. Thereafter, vide order dated 31.3.2015, the petitioner was transferred again to the 38 Bn SSB, Tawang and following the said order, the petitioner was relieved from his duties vide order dated 20.5.2015 to enable him to join his place of posting in the 38 Bn SSB, Tawang. In terms of the said transfer order, the petitioner submitted his joining report at the 38 Bn SSB, Tawang on 25.5.2015. However, to the surprise of the petitioner, he was again released from the 38 Bn SSB, Tawang vide office order dated 27.5.2015 and directed to report to the 16 Bn SSB , Kokrajhar. The petitioner being aggrieved, served a legal notice to the respondent No. 5 on 14.6.2015 through his counsel but the said authority instead of considering the case of the petitioner approved the transfer of the petitioner to the 16 Bn SSB Kokrajhar vide office order dated 21.5.2015 and consequently vide order dated 22.5.2015 and memorandum dated 15.6.2015, he was asked to join the 16 Bn at Kokrajhar. The petitioner being aggrieved then filed the instant writ petition.

5. Against the writ petition, the respondents have filed their affidavit- in-opposition on 30.9.2015 whereby they have contended inter-alia that when the petitioner's transfer to 38 Bn SSB, Tawang was approved vide order dated 31.3.2015, he had submitted a representation to the respondent No. 5 on 8.4.2015 stating that due to his health condition and his children still being minor, his posting to 38 Bn SSB, Tawang may be re- considered. The authorities considering his representation therefore decided to post him in the 16 Battalion SSB Kokrajhar instead. The respondents also contend that such transfer was neither illegal, unreasonable nor with a malafide intention but rather it was bonafide and in the interest of public. In fact his posting to the 16 Bn , Kokrajhar was decided only after taking into consideration his medical status besides his family situation. Therefore the respondents maintained that no prejudice W.P( C) No.3950 Page 3 of 5 4 has been made against the petitioner but rather the orders were made in his favour according to his own request.

6. The learned counsel for the writ petitioner submits that the transfer policy of the organization is governed by the Standard Operating Procedure issued by the respondent No.2 from time to time. The relevant Standard Operating Procedure which provides transfer guidelines for the SSB personnel applicable to the petitioner is the one issued on 25.11.2014. Referring to the contents of the guidelines dated 25.11.2014, more particularly, Clause-5 of the guidelines, the learned counsel submits that the normal tenure of posting in high altitude area is for a period of two years. The petitioner joined the 38 Bn SSB, Tawang on 25.5.2015 and therefore before completion of two years, respondent authorities could not have issued the transfer order dated 27.5.2015. The impugned order dated 27.5.2015 is therefore clearly in violation of the transfer policy guidelines of the respondents themselves and therefore the learned counsel for the petitioner submits that the impugned orders dated 21.5.2015, 22.5.2015 and 15.6.2015 be interfered with by this Court.

7. I have carefully considered the rival submissions made by the learned counsels for the parties and perused the materials on record. The petitioner pursuant to the transfer order dated 25.5.2015 joined his place of posting in the 38 Bn SSB, Tawang by submitting his joining report on 25.5.2015. While the transfer policy guidelines dated 25.11.2014 provides that tenure of posting in high altitude is for a period of two years there is no material on record to show that the situation demanded that the petitioner be posted out again from the 38 Bn SSB, Tawang immediately after joining the said Battalion. However, without entering further into the controversy and having regard to the fact that the petitioner has almost completed two years at 38 Bn SSB, Tawang pursuant to the order passed by this Court on 3.7.2015, the writ petition is disposed of by directing the W.P( C) No.3950 Page 4 of 5 5 respondents to permit the petitioner to complete his posting tenure of two years as provided in the guidelines on transfer dated 25.11.2014. However, on completion of two years tenure by the petitioner, respondents will be at liberty to decide as to whether the petitioner's posting would continue in the present place or elsewhere as per the relevant policy guidelines and as per law.

8. It is ordered accordingly. Writ petition stands disposed of. No costs.

JUDGE Nivedita W.P( C) No.3950 Page 5 of 5