Manipur High Court
Part-Ii Leikai vs Union Of India Represented Through Its ... on 19 July, 2022
Author: M.V. Muralidaran
Bench: M.V. Muralidaran
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SHAMURAILATP
IN THE HIGH COURT OF MANIPUR
AM SUSHIL AT IMPHAL
SHARMA WP(C) No. 55 of 2022
Digitally signed by
SHAMURAILATPAM SUSHIL Shri N. Somorjit Singh, having CT/DVR. No. 55150206,
SHARMA aged about 38 years, S/O Smt. Memma Devi of Thongju
Date: 2022.07.20 11:35:30
Part-II Leikai, P.O. Manipur University & P.S. Singjamei,
+05'30'
Imphal East District, Manipur-795003.
... Petitioner
-Versus-
1. Union of India represented through its Home Secretary
(Ministry of Home Affairs), North Block, New Delhi,
Government of India.
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. Dy. COMDT.(ADM) GC, CRPF, Imphal, Langjing,
Manipur.
5. The Commandant 28 Bn, CRPF, Bemina, Srinagar
(J&K)-190001.
.... Respondents.
W.P.(C) No. 55 of 2022
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BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioner :: Mr. M. Devananda, Advocate
For the Respondents :: Mr. S. Vijayananda, Sr. PCCG
Date of Hearing and
Reserving Judgment & Order :: 15.06.2022
Date of Judgment & Order :: 19.07.2022
JUDGMENT AND ORDER
(CAV)
This writ petition has been filed by the petitioner to
quash the impugned transfer and posting order dated 10.1.2022
and the movement order dated 17.1.2022 and to allow the petitioner
to complete his tenure in the M&N Sector as per Para No.4(ix) of
the Standing Order dated 07/2015 and to defer the transfer and
posting to 28 Bn by invoking Para No.4(b)(xvi) (vi) of the Standing
Order.
2. The case of the petitioner is that he was appointed as
CT/DVR in the year 2005 and after completion of his basic training,
the petitioner was posted at 44 Bn from 26.4.2006 to 6.6.2006 at
Churachandpur, then Lucknow, Srinagar and Zainakote and then
he was posted at 26 Bn from 31.12.2012 till 9.3.2014 located at
Chas Bokaro. Again the petitioner was transferred and posted to
87 Bn in Jiribam from 9.3.2014 to 25.6.2018 and from then onward,
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he was transferred and posted to the present place of posting at
GC, Imphal from 25.6.2018 till the issuance of the order dated
31.1.2019 and 28.2.2019 respectively.
3. Further case of the petitioner is that while he was
serving in the GC, Imphal, an order dated 31.1.2019 was issued
thereby the petitioner and other incumbents were transferred to
different places of postings and the petitioner was allotted to Central
Zone. Consequent to the order dated 31.1.2019, an order dated
28.2.2019 was issued whereby the petitioner was transferred and
posted to 161 Bn under the Central Zone located. Aggrieved by the
signal dated 31.1.2019 and 28.2.2019, the petitioner submitted a
representation on 5.3.2019 to the IGP (Pers), New Delhi requesting
to complete his tenure at GC, Imphal and for cancellation of the
Zonal transfer. The representation of the petitioner was not
considered and disposed of till date, but in the case of similarly
situated incumbents, signal dated 10.5.2019 was issued whereby
their request was considered. Though the DIG (Adm)
recommended for cancellation of the petitioner's transfer, his
request was not acceded vide signal dated 29.7.2019 stating that
the petitioner has already availed home posting in 87 Bn and GC
Imphal for last 4.4 years.
W.P.(C) No. 55 of 2022
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4. Being aggrieved by the order of the respondents, the
petitioner filed W.P.(C) No.758 of 2019 seeking to quash the
transfer and posting order dated 16.9.2019. By the order dated
14.12.2021, this Court set aside the orders dated 31.1.2019,
28.2.2019 and 29.7.2019 in respect of the petitioner and observed
that it is open to the respondents to issue another order of transfer
in accordance with law. Consequence thereof, the respondents
issued the impugned transfer and posting order dated 10.1.2022,
thereby transferring and posting the petitioner at 28 Bn with
immediate effect by cancelling the earlier transfer and posting at
161 Bn. Accordingly, the movement order dated 17.1.2022 was
issued directing the petitioner to move to 28 Bn which is located at
Bemina, Srinagar, J&K falling under the Srinagar Sector.
Challenging the same, the present writ petition has been filed.
5. The respondents filed affidavit-in-opposition stating
that the petitioner who is a resident of Thongju Part-II Leikai, Imphal
East District was enlisted in CRPF on 3.1.2005 and consequent on
his transfer from 87 Bn (deployed at Jiribam, Manipur), he had
reported in GC, Imphal (Langjing, Manipur) on 25.6.2018. As a
matter of Annual Inter Zonal Transfer-2019 of NGOs, the DIG (Estt)
directed to forward list of personnel who have completed their Zonal
tenure as per the Standing Order 07/2015. Further, the IGP M&N
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vide signal dated 21.12.2018 had also asked to forward the left out
cases of IZT-2019. Accordingly, vide office signal dated
24.12.2018, left out cases of personnel who have
completed/completing their Zone tenure, but not completed the
present place of posting was forwarded to the IGP in which the
name of the petitioner was included at Serial No.24, who even
though had not completed the tenure at the present place of
posting, but completed his 14 years Zone tenure.
6. It is stated that the name of the petitioner was
forwarded to DIG (Estt) through the administrative authority of M&N
and subsequently, the petitioner was allotted from NEZ to CZ vide
order dated 31.1.2019. Further, the petitioner was sub-allotted to
Dehradun Sector vide order dated 13.2.2019 and finally posted to
161 Bn vide order dated 28.2.2019. Aggrieved by the allotment
against CZ, the petitioner has submitted a representation dated
5.3.2019 to the IGP (Pers) requesting to allow him at GC, Imphal till
the completion of his normal tenure due to the treatment of his
mother. The request of the petitioner was rejected on 29.7.2019.
Aggrieved by the rejection, the petitioner filed W.P.(C) No.758 of
2019 and the same was disposed of on 14.12.2021. Pursuant to
the direction passed by this Court in the said writ petition, the
impugned order dated 10.1.2022 came to be issued, thereby
W.P.(C) No. 55 of 2022
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transferring the petitioner to 28 Bn and he was relieved on
17.1.2022 Since the impugned transfer and posting order was
issued taking into consideration all the aspects, the respondents
pray for dismissal of the writ petition.
7. Assailing the impugned order, Mr. M. Devananda, the
learned counsel for the petitioner submitted that though the
petitioner was posted to M&N Sector since 2005, he was posted in
the GC, Imphal only in the year 2018 and that since the initial
appointment, the petitioner was posted to various Units/places
mostly in hard areas in Jharkhand, J&K and Chhattisgarh, but not
in any Sectors located under the North East Zone and the periods
spent by him in the units outside the NEZ cannot be said to have
been served under the NEWZ or under the M&N Sector.
8. The learned counsel further submitted that as per the
provision of the Standing Order, particularly Para 4(viii) and (ix), the
petitioner is supposed to be posted at GC, Imphal for a period of 4
years and in the M&N Sector, he has to serve for a period of
maximum 10 years and under the NEZ for a period of 14 years.
Since the petitioner was posted to the GC, Imphal only on
25.6.2018, he has to serve for a period of 4 years and in the M&N
Sector, he has to serve for a maximum 10 years and under the NEZ
for a period of 14 years. However, the transfer and posting orders
W.P.(C) No. 55 of 2022
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dated 3.1.2019 and 28.2.2019 were issued in violation of the
aforesaid provisions of the Standing Order.
9. The learned counsel further submitted that this Court
in the earlier writ petition being W.P.(C) No.758 of 2019 while
quashing the order dated 29.7.2019, observed that it is open to the
respondents to issue another order of transfer in accordance with
law. However, in violation of the Standing Order, the impugned
order came to be issued by the respondents transferring him to 28
Bn, which is located at Srinagar.
10. The learned counsel urged that the petitioner has not
completed his normal tenure of 14 years in the NEZ even though
his tenure in the GC, Imphal is complete and he has to be posted
to any Units under the M&N Sector so as to enable him to complete
the Sector tenure of 10 years. Thus, the impugned transfer is
against Para 4(ix) of the Standing Order. He would submit that the
petitioner's wife is undergoing treatment for secondary infertility
after several failed attempts and abortions. For this type of
treatment, the presence of the petitioner is very much required.
However, without considering these aspects and without affording
an opportunity of being heard, the impugned order was passed.
Para 4 b (xvi) (vii) of the Standing Order stipulates infertility as a
ground for relaxation of transfer by one year and that the case of
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the petitioner is very much covered by the aforesaid para. Arguing
so, the learned counsel prayed for setting aside the impugned
order.
11. Per contra, Mr. S. Vijayananda Sharma, the learned
Central Government counsel submitted that considering his
previous home State posting, the IGP, DD Sector has transferred
the petitioner to 161 Bn deployed at Dalgate, Srinagar vide order
dated 28.2.2019. He would submit that since the petitioner has also
completed his normal tenure of 3 years at GC Imphal i.e. the
present place of posting, the transfer of the petitioner from GC
Imphal to 28 Bn is justified and that the impugned transfer order
was issued by adhering to the guidelines/transfer policy envisaged
in the Standing Order 07/2015.
12. The learned Central Government counsel urged that
out of the total service period of 17 years, the petitioner has availed
the entire 17 years of posting in Units/GC under affiliation with the
NEZ/M&N Sector. Due to his prolonged tenure under affiliated
Units/GC of NEZ/M&N Sector as well as on completion of the
prescribed Zonal tenure of 14 years, his name was included during
IZT-2019 which is justified as per the Standing Order. Further, as
per Para 4(viii), the normal tenure in Hard Field Area/SOZ, Static
and peace stations is 3 years.
W.P.(C) No. 55 of 2022
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13. The learned counsel further submitted that since the
petitioner has completed more than 7 years 11 months of service in
his home State as on 31.1.2022 and more than 14 years service in
Unit/GDs of NEZ, the transfer of the petitioner from GC Imphal to
161 Bn issued earlier by the competent authority was also proper
as per the Standing Order. Since the petitioner had completed
more than 3 years at the present place of posting i.e. at GC, Imphal,
the impugned transfer order of the petitioner from GC Imphal to 28
Bn is proper and therefore, the writ petition is liable to be dismissed.
14. This Court considered the rival submissions and also
perused the materials available on record.
15. The challenge to the impugned transfer and posting
order of the petitioner has been made on two fold. Firstly, the
impugned transfer and posting of the petitioner to 28 Bn is in
violation of Para 4 (ix) of the Standing Order and secondly, the case
of the petitioner is covered by Para 4 b (xvi) (vii) of the Standing
Order.
16. By highlighting the aforesaid paragraphs, the learned
counsel for the petitioner argued that as the petitioner's wife is
undergoing treatment for secondary infertility, he could be posted
to any Units of the M&N Sector situated within the operational and
W.P.(C) No. 55 of 2022
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territorial jurisdiction of the M&N Sector as well as the NEZ and that
he has not completed his normal tenure of 14 years in the NEZ.
Even though his tenure in the GC, Imphal is complete, the petitioner
has to be posted to any Units under the M&N Sector so as to enable
to complete the Sector tenure of 10 years.
17. Paragraphs 4 (ix) and 4 (xvi) (vii) are relevant and
therefore, the same are extracted hereunder:
"O4. ELIGIBILITY FOR TRANSFER:
NGOs (Executive) personnel will be eligible for
static posting subject to vacancy and
administrative convenience as per the following
conditions:
(i) to (viii) .....
(ix) A person can serve in a particular
Range/Sector for maximum 10 years and in a
particular Zone for 14 years. It is compulsory for
a NGO to serve in a Zone other than his Home
Zone for a period of 14 years at least once in his
full service.
...
(xvi) However, the eligibility conditions as laid down above may be relaxed by one year in very deserving cases by Sector IGP in the following Circumstances:-
(a) ...W.P.(C) No. 55 of 2022
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(b) Transfer on medical grounds may be considered on merit in case one's spouse or child suffering from any of the following disease:-
i. to vi. .....
vii. Infertility"
18. The previous posting particulars of the petitioner has been stated by the respondents in their affidavit-in-opposition and the same is extracted hereunder for ready reference:
Name of Location/State From To Under
Office/Unit Zone/Sector
GC Imphal, 03/01/2005 26/04/2006 NEZ/M&N
Imphal Manipur
44 BN Loktak, 26/04/2006 06/06/2006 -do-
Manipur
44 BN Lucknow, UP 06/06/2006 07/03/2009 -do-
44 BN Srinagar, J&K 07/03/2009 10/10/2011 -do-
26 BN Bokaro, 10/10/2011 09/03/2014 -do-
Jharkhand
87 BN Jiribam, 09/03/2014 25/06/2018 -do-
Manipur
GC, Langjing, 25/06/2018 Till date -do-
Imphal Manipur
19. Thus, it is clear from the table that the petitioner has served under different Units of GC, Imphal under NEZ. Besides, before posting to GC, Imphal, he was also posted in his Home State at 87 Bn with effect from 9.3.2014 to 25.6.2018 i.e. for a period of more than 4 years and 3 months and then posted to GC, Imphal from 25.6.2018 to till date. Thus, as rightly contended by the respondents, the petitioner has completed his Zone tenure of 14 W.P.(C) No. 55 of 2022 P a g e | 12 years as well as availed more than 7 years 11 months Home posting in his Home State (Manipur) continuously since March, 2014.
20. At this juncture, the learned Central Government counsel submitted that out of total service period of 17 years, the petitioner availed the entire 17 years of posting in Units/GC under affiliation with NEZ/M&N Sector and due to his prolonged tenure under affiliated Units/GC of NEZ/M&N Sector as well as on completion of the prescribed Zonal tenure of 14 years, his name was included during IZT-2019, which is justified as per the Standing Order. Further, he pointed out that GC Imphal being a static location, tenure of GC Imphal is 3 years. Since the petitioner had completed more than 7 years 11 months of service in his Home State as on 31.1.2022 and more than 14 years of service in Unit/GDs of NEZ, the transfer of petitioner from GC Imphal to 161 Bn issued earlier was also proper. Further, the petitioner has completed more than 2 years at present place of posting i.e. GC Imphal. Thus, the impugned transfer order of the petitioner from GC Imphal to 28 Bn is proper and there is no violation of the Standing Order. We find some force in the submission of the learned Central Government counsel appearing for the respondents.
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21. Earlier, when the petitioner's request for cancellation of allotment to CZ was not considered by the competent authority, he filed W.P.(C) No.758 of 2019 before this Court. This Court, by the order dated 14.12.2021, after hearing both sides, passed the following order:
"When the matter is taken up for consideration, it has bene submitted by Shri S.Vijayanand Sharma, learned CGC appearing for the respondents that during the pendency of the writ petition, the term of the petitioner has expired and therefore, the writ petition has become infructuous.
On the other hand, it has been submitted by Shri M.Devananda, learned counsel appearing for the petitioner that the impugned orders when they were issued, it was not in accordance with law and therefore, the transfer orders will have to be set aside. After having heard the learned counsel appearing for the parties, the impugned orders dated 31.1.2019, 28.2.2019 and 29.7.2019 stand quashed and set aside in respect of the petitioner and it is open to the respondents to issue another order of transfer in accordance with law."
22. Pursuant to the order dated 14.12.2021, the Director General, CRPF issued the impugned order dated 10.1.2022. In W.P.(C) No. 55 of 2022 P a g e | 14 paragraph 4 and 5 of the impugned order, it has been stated as under:
"04. On examining Hon'ble High Court of Manipur order dated 14/12/2021 and Law Directorate views/legal opinon received vide signal No.J-II- 762/2021-L WP-II dated 24/12/2021 it is established that, after completion of more than 5 years of service in his home state as on 30/06/2019 and more than 14 years service in Units/GCs of North East Zone, the petitioner has been transferred from Group Centre, CRPF, Imphal to 161Bn, CRPF, Dalgate Srinagar by the IG Dehradun Sector vide signal 28/02/2019. But since the Hon'ble Court has quashed/set aside transfer order of the petitioner from Group Centre, CRPF, Imphal to CZ/DDS/161 Bn ordered vide this Dte order No.T.IX-01/2019-DA-09-Estt-Dte(IZT-19) dated 31/01/19 and IG Dehradun Sector HQr Signal No.T.IX-01/2019-(IZT)-DDS-Adm-I dated 28/02/2019, hence transfer of the petitioner to 161 Bn is liable to be cancelled.
05. In the light of the facts mentioned above, transfer of No.055150206 CT/DvrN.Somorjit Singh from Group Centre, CRPF, Imphal to CZ/DDS/161 Bn is hereby cancelled. Accordingly, above CT/Dvr is hereby transferred from Group Centre CRPF Imphal to 28 Bn with immediate effect."W.P.(C) No. 55 of 2022
P a g e | 15
23. Since the impugned order dated 10.1.2022 and the subsequent relieving order dated 17.1.2022 are issued pursuant to the order of this Court dated 14.12.2021 and after adhering the Standing Orders, the petitioner has no legal right to question the same. The allegation of the petitioner that not allowing one year retention at GC Imphal on the alleged treatment of his wife is also totally baseless and not tenable for the reason that the petitioner had completed 14 years service in NEZ and also completed his normal tenure at GC Imphal. Thus, the respondent authorities have justified the impugned transfer order. That apart, the petitioner himself averred in his writ petition that he may be posted to any Unit of M&N Sector which clearly proves that he is able to move keeping his family aside. Thus, the ground taken by the petitioner qua treatment of his wife is an afterthought and to avoid the movement.
24. It is pertinent to note that if a CRPF personnel kept on availing Home State posting again and again year after year, then certainly it will deprive the other eligible candidates who have served in hard/field areas, posted far from Home who also wants their Home posting, as they also have family as well as having their own personal family problems. Therefore, the transfer and posting of the petitioner to 28 Bn by way of the impugned order is just and reasonable and as per the Standing Order 7/2015. W.P.(C) No. 55 of 2022
P a g e | 16
25. It is well settled that only when an allegation of mala fides or violation of the mandatory statutory rule is made out, the High Court should entertain a writ petition. In the case on hand, the respondent authorities have acted bona fide as is evident from the materials produced by them, particularly the order impugned dated 10.01.2022.
26. In Shilpi Bose and others v. State of Bihar and others, AIR 1991 SC 532, the Hon'ble Supreme Court held:
"3. After hearing learned counsel for the parties and having considered the facts and circumstances of the case, we are of the opinion that the High Court committed serious error in interfering with the transfer orders of Primary School teachers. The High Court held that the District Education Establishment Committee had no jurisdiction to transfer the Primary School teachers on their request. We find no justification for this conclusion. There is no dispute that the District Education Establishment Committee is competent to transfer Primary School teachers from one place to the other but merely because such transfers were made on the request of teachers, the Committee is not divested of its jurisdiction. The Director of the Primary Education had issued directions that lady teachers posted in distant areas or rural areas may be accommodated to the place of their request to W.P.(C) No. 55 of 2022 P a g e | 17 avoid hardship to them. These directions are reasonable, and the District Education Establishment Committee followed the same principles in transferring the appellants on their requests to avoid hardship which was being caused to them. The respondents challenged the validity of the transfers before the High Court on another ground also that Primary School teachers posted in the urban areas were not liable to be transferred to rural areas though the State Government had issued circular on March 30, 1984 permitting transfers from urban areas to rural areas. The High Court did not interfere with the order of the transfer on this ground instead it held that the transfer orders were without jurisdiction as the same had been made on the appellants' request with a view to accommodate them. We fail to appreciate the reasoning recorded by the High Court. If the competent authority issued transfer orders with a view to accommodate a public servant to avoid hardship, the same cannot and should not be interfered by the court merely because the transfer orders were passed on the request of the employees concerned. The respondents have continued to be posted at their respective places for the last several years, they have no vested right to remain posted at one place. Since they hold transferable posts they are liable to be transferred from one place to the other. The transfer orders had been issued by the competent authority which did W.P.(C) No. 55 of 2022 P a g e | 18 not violate any mandatory rule, therefore the High Court had no jurisdiction to interfere with the transfer orders.
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 rule 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 the other, he is liable to be transferred from one place to the other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the department. If the courts continue to interfere with day-to-day transfer 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. The High Court overlooked these aspects in interfering with the transfer orders.
27. In S.C.Saxena v. Union of India, (2006) 9 SCC 583, the Hon'ble Supreme Court observed that a Government servant should first join the place where he is transferred. After joining the W.P.(C) No. 55 of 2022 P a g e | 19 transferred place, he may make a representation to the higher authority to ventilate his grievance.
28. Generally, whenever public interest demands that an officer should be transferred from his place of posting even before completion of three years in the place, proper justification and ground may be recorded in writing for the transfer. In the instant case, as stated supra, the respondent authorities have given proper justification and the ground on which the transfer order was issued. In view of the proper justification having been given by the respondent authorities, this Court finds no infirmity in the impugned transfer order.
29. A Government servant holding a transferable post has no vested right to remain posted at one place or other, he/she is liable to be transferred from one place to another.
30. It is reiterated that a NGO can serve in a particular Range/Sector for maximum 10 years and in a particular Zone for 14 years and it is compulsory for a NGO to serve in a Zone other than his Home Zone for a period of 14 years at least once in his full service. In the case on hand, as stated supra, the petitioner has been availing Home State (Manipur) posting since 9.3.2014 and completed his normal tenure of 3 years at GC Imphal as well as the W.P.(C) No. 55 of 2022 P a g e | 20 prescribed tenure of 14 years in NEZ. Therefore, he is eligible to be transferred out from NEZ as per Paragraphs 4(ix) and 4(xvi) of the Standing Order. Accordingly, after examining the past records of the petitioner, particularly, the posting particulars, the DIG (Estt) has issued the impugned order dated 10.1.2022 transferring him from GC Imphal to 28 Bn. Finding that the impugned transfer and posting order issued by the respondent authorities is in accordance with the Standing Order and also finding no merit in the writ petition, this Court is of the view that the writ petition is liable to be dismissed.
31. In the result,
a) the writ petition is dismissed.
b) the petitioner is directed to join the transferred place within a period of 15 days from today.
c) the interim order dated 27.1.2022 passed by this Court stands vacated.
d) No cost.
JUDGE FR/NFR Sushil W.P.(C) No. 55 of 2022