Gauhati High Court
Krishna Bora vs The Union Of India And 5 Ors on 14 August, 2025
Author: Soumitra Saikia
Bench: Soumitra Saikia
Page No.# 1/12
GAHC010267402024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6903/2024
KRISHNA BORA
S/O- LATE SARAT BORA, R/O- VILLAGE- BORBIL GAON NO-2,
P.O AND P.S- DIGBOI, DIST- TINSUKIA, ASSAM, PIN-786171
VERSUS
THE UNION OF INDIA AND 5 ORS.
REPRESENTED BY THE SECRETARY , TO THE GOVT. OF INDIA, MINISTRY
OF HOME AFFAIRS, NEW DELHI. PIN- 110001.
2:THE DIRECTOR GENERAL
SHASASTRA SEEMA BAL
5-6
VIVEKANANDA MARG
EAST BLOCK
R.K PURAM
NEW DELHI-66
3:THE INSPECTOR GENERAL
SHASASTRA SEEMA BAL
5-6
VIVEKANANDA MARG
EAST BLOCK
R.K PURAM
NEW DELHI-66
4:THE COMMANDANT (PERS-II)
FHQ
SHASASTRA SEEMA BAL
5-6
VIVEKANANDA MARG
EAST BLOCK-V
Page No.# 2/12
R.K PURAM
NEW DELHI-66
5:THE INSPECTOR GENERAL
FHQ
SSB
VILLAGE BORKHAT
P.OAND P.S- SONAPUR
ASSAM
PIN-782402
6:THE COMMANDANT (ADMIN)
FHQ
SSB
VILLAGE BORKHAT
P.OAND P.S- SONAPUR
ASSAM
PIN-78240
Advocate for the Petitioner : MR. L N DIHINGIA, A K GOGOI
Advocate for the Respondent : DY.S.G.I., MS. B SARMA (C.G.C)
BEFORE
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
ORDER
14.08.2025 Heard Mr. L.N. Dihingia, learned counsel for the petitioner. Also heard Ms. B. Sarma, learned CGC for the respondents.
2. This writ petition has been filed by the petitioner challenging the transfer order dated 12.04.2024 issued by the respondent authorities, whereby several Assistant Sub-Inspectors (GD) have been transferred to their respective units, as mentioned therein. The name of the petitioner appears at serial no. 919 of the said order. The petitioner is presently posted at the Frontier Headquarters Page No.# 3/12 (FTR Hqrs), SSB, Guwahati, and by the impugned order, he has been transferred to the 67th Battalion located at Lumla, Arunachal Pradesh.
3. The petitioner submits that due to an injury resulting in a fracture of the backbone, he represented before the authorities. Subsequently, the earlier transfer order was modified. By order dated 26.09.2024, the petitioner, along with others, was issued a modified transfer order, wherein the petitioner's name appears at serial no. 36 and he is shown to have been transferred to the 21st Battalion instead of the 67th Battalion.
4. The learned counsel for the petitioner submits that the 21st Battalion is presently posted at Bagaha in the State of Bihar. According to the learned counsel, due to the petitioner's fracture, he is unable to perform his duties or walk independently without the aid of a walking stick. The learned counsel has placed before this Court the opinion of the Review Medical Board dated 25.03.2025. Referring to the said medical report, the learned counsel submits that the petitioner has been found fit for duties not requiring severe stress and is subject to employability restrictions at high altitudes (above 2,700 meters/9,000 feet in hilly terrain and extreme cold areas).
5. The learned counsel for the petitioner submits that the place where the petitioner is presently sought to be transferred by the modified order is also a hard station, as reflected in the affidavit on record. It is specifically submitted that the place of posting, namely Bagaha in the State of Bihar, where the 21st Battalion of the SSB is currently stationed, is classified as a hard station.
6. The learned counsel for the petitioner also refers to the transfer policy followed by the SSB, as laid down in the Standard Operating Procedure (SOP) notified on 04.03.2024. Referring to the provisions regarding annual transfers Page No.# 4/12 specified therein, it is submitted that personnel are entitled to exercise five choices of posting through the e/TAS system. According to the petitioner, he submitted five choices of posting initially, considering his medical condition, when the earlier transfer order was issued. Subsequently, after the earlier transfer order was modified and he was sought to be transferred to Bagaha in the State of Bihar, he again submitted three choices of posting.
7. The learned counsel for the petitioner further submits that the petitioner is the father of a daughter who is currently studying in Class X, and that he is also suffering from certain medical ailments, including mental health issues. Therefore, the transfer of the petitioner out of the State of Assam to the present place of posting is not acceptable, as it violates the transfer policy as well as disregards the medical conditions suffered by both the petitioner and his daughter.
8. The learned counsel, thus, prays that the impugned transfer order be interfered with and set aside, and that the petitioner be permitted to continue in his present place of posting.
9. The submissions of the learned counsel for the petitioner is strongly disputed by Ms. B. Sharma, learned CGC. It is submitted on behalf of the respondents that there is no violation of the transfer policy notified by the Standard Operating Procedure dated 04.03.2024. Referring to the affidavit filed on behalf of the respondents, it is submitted that the petitioner has been posted in the State of Assam since 29.03.2018. Such prolonged posting in one State is contrary to the transfer policy. In terms of the transfer policy, the usual tenure of posting is three years. Since the petitioner has completed more than the stipulated period in Assam, it is warranted and appropriate to transfer him out, and there is no infirmity in the impugned transfer order. Further, it is submitted Page No.# 5/12 that the Review Medical Board has opined that the petitioner has employability restrictions concerning postings in hilly terrain and at altitudes above 2,700 meters. The present place of posting, namely Bagaha in the State of Bihar, is not situated in hilly terrain, and the petitioner will be entitled to avail all necessary medical benefits and physiotherapy care as required.
10. The contention of the learned counsel for the petitioner that Bagaha is a hard station causing hardship due to the petitioner's medical condition is countered by the fact that the petitioner, in his modified transfer application, had given three choices of posting, including the 68th Battalion, Debendranagar, district of Sonitpur, Assam, which is also classified as a hard station.
11. Thus, the petitioner's grievance that he should not be transferred out of the State of Assam is contrary to the transfer policy. In support of these contentions, reliance is placed on the judgment of the Apex Court in S.K. Nausad Rahman and others v. Union of India and others , reported in 2022 (12) SCC 1. Reference is specifically made to paragraphs 24, 25, 26, 28, and 29 of the judgment, wherein the Court laid down guidelines to be adhered to in respect of services requiring all-India postings. Since the petitioner is an employee of the Sashastra Seema Bal (SSB), which is an all-India service, he is required to be transferred in response to the call of duty and as per administrative exigencies across the country.
12. The learned counsel for the parties have been heard, and the pleadings on record have been carefully perused. It is not in dispute that the petitioner had suffered a fracture of the backbone. The Review Medical Board opinion dated 23.01.2025, placed before the Court by the petitioner, reflects the following under the heading "Specific Restrictions Regarding Employment": -
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10. Any specific restriction reg. employment? Fit for duties not requiring severe stress. May have restrictions in employability at high altitude (above 2,700 meters/9,000 feet in hilly terrain and extreme cold areas) Avoid forward bending, weight lifting, running, jumping, crawling, hill climbing and handling of weapon.
The medical report also reflects that the petitioner's medical condition has been categorized as S1H1A1P2 (T-24+24) E1, indicating a decline in his medical status. The report clearly reveals restrictions on the employability of the petitioner in locations situated at altitudes exceeding 2,700 meters/9,000 feet, particularly in hilly terrain and extreme cold areas. Medical advice includes avoidance of activities such as forward bending, weight lifting, running, jumping, crawling, hill climbing, and handling of weapons. The report further recommends continued treatment with regular follow-ups. The next date for the Review Medical Board was scheduled for 11.07.2025; however, it is informed to the Court that the Review Medical Board was not convened on that date, and the further date for the Board's meeting is currently not known to the learned counsel for the petitioner. The transfer guidelines enclosed in the pleadings have been carefully perused. These transfer guidelines are notified as a Standard Operating Procedure vide Memo No. 1/48/SSB/TRFR/Pers-V/Org/2018(35)/727-46 dated 04.03.2024. The said guidelines presently provide the parameters on which transfers, including annual transfers, are to be issued.
Clause 5 of the guidelines reflects that the tenure of postings is ordinarily for three years, except for those posted in high-altitude areas, where the tenure is two years. Upon completion of the tenure, personnel of a particular frontier unit are transferred to another frontier. In respect of Page No.# 7/12 annual transfers, personnel are provided an opportunity to furnish five choices regarding their places of posting.
13. The petitioner availed this choice in the first impugned transfer order, wherein he reflected five choices. Pursuant to a representation on the ground of medical condition, the earlier transfer order was modified to the present place of posting, namely Bagaha in the State of Bihar. Along with the said application, the petitioner submitted three choices of posting, including one at the 68th Battalion, Debendranagar in the district of Sonitpur, State of Assam. This fact is submitted by the respondents and is not disputed by the petitioner.
14. The petitioner further contends that, considering his medical condition, he ought not to have been posted outside the State of Assam, particularly to Bagaha in the State of Bihar, which is a hard posting. However, among the choices furnished by the petitioner in his representation seeking modification of the earlier transfer order, he had included the option of posting at the 68th Battalion, Debendranagar, district of Sonitpur, State of Assam. This place of posting is also reflected in the annexures to the transfer policy as a hard posting.
It is well established that transfer is an incident of service, and the employer is best suited to decide the place of posting of an employee depending on administrative exigencies and the requirements of the service to be rendered. Reference may be made to several judgments of the Apex Court, including S.K. Nausad Rahman and others v. Union of India and others , reported in 2022 (12) SCC 1, among others.
Ordinarily, unless the authority issuing the transfer order is incompetent, acts with mala fide intention, or the transfer order is contrary to Page No.# 8/12 notified policies, rules, or regulations, the writ court is normally not required to interfere with such transfer orders.
In S.K. Nausad Rahman (supra), the Apex Court clearly laid down guidelines concerning the transfer and posting of personnel under the All India Services. Although the present petitioner is not an employee under the All India Services but is employed under the Sashastra Seema Bal (SSB), which is a disciplined force entrusted with the responsibility of maintaining law and order as well as securing the frontiers of the country, it necessarily requires transfers and postings across various stations in the country in accordance with the needs and exigencies of duty.
However, the guidelines laid down by the Apex Court in the said case are applicable to the facts and circumstances of the present case. The relevant guidelines are extracted below: -
24. First and foremost, transfer in an All India Service is an incident of service. Whether, auf if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice
25. Second, executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration.
26. Third, policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are Page No.# 9/12 subject to the requirement of the administration. In this context, Justice J.S. Verma (as the learned Chief Justice then was) speaking for a three-judge Bench of this Court in Bank of India vs. Jagjit Singh Mehta, (1992) 1 scc 306, held:
"5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and Page No.# 10/12 avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. [.....] No doubt the guidelines require the two spouses to be posted at one place as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
27. The above principle was cited with approval in Union of India vs. S.L. Abbas, (1993) 4 sce 357, where the Court held that transfer is an incident of service:
"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."
28. Fourth, norms applicable to the recruitment and conditions of Page No.# 11/12 service of officers belonging to the civil services can be stipulated in:
(1) A law enacted by the competent legislature.
(ii) Rules made under the proviso to Article 309 of the Constitution.
(iii) Executive instructions issued under Article 73 of the Constitution, in the case of civil services under the Union and Article 162, in the case of civil services under the States.
Fifth, where there is a conflict between executive instructions and rules framed under Article 309, the rules must prevail, In the event of a conflict between the rules framed under Article 309 and a law made by the appropriate legislature, the law prevails. Where the rules are skeletal or in a situation when there is a gap in the rules, executive instructions can supplement what is stated in the rules. [Union of India and Others vs. Somasundaram Viswanath and Others, (1989) 1 scc 175]
29. Sixth, a policy decision taken in terms of the power conferred under Article 73 of the Constitution on the Union and Article 162 on the States is subservient to the recruitment rules that have been framed under a legislative enactment or the rules under the proviso to Article 309 of the Constitution. [State of Orissa and Others vs. Prasana Kumar Sahoo, (2007) 15 scc 129]
15. The Review Medical Board report has placed before the Court and has been carefully perused and duly noted. There are no averments made in the writ petition, nor any submissions before the Court, contesting the suitability of the place where the petitioner is sought to be posted, namely Bagaha in the State of Bihar under the 67th Battalion. It is not disputed at the Bar that the said Page No.# 12/12 place of posting is neither situated in hilly terrain, nor subjected to extreme cold conditions, nor located at an altitude exceeding 2,700 meters/9,000 feet.
Under such circumstances, this Court is of the view that the challenge made by the petitioner in respect of the transfer orders cannot be sustained and is therefore rejected.
The petitioner shall report to his place of posting as per the order dated 26.09.2024, which was subsequently modified. However, considering the fact that the Review Medical Board was scheduled on 11.07.2025, as reflected in the opinion dated 25.03.2025, did not examine the petitioner. We hereby direct the respondents to constitute a fresh Review Medical Board forthwith to examine the petitioner regarding his fitness for duty and employability.
16. The Review Medical Board shall thoroughly examine the petitioner, and if he is found fit for service in accordance with the earlier opinion dated 25.03.2025, the petitioner shall proceed to join his place of posting as per the said order.
The Review Medical Board shall be constituted within two (2) weeks and the examination of the petitioner by competent medical professionals shall be completed. The opinion of the Review Medical Board shall be served on the petitioner, and the entire exercise shall be completed within four (4) weeks from today.
The impugned transfer order shall not be given effect to in so far as the writ petitioner is concerned till 15.09.2025.
Writ petition stands disposed of.
JUDGE Comparing Assistant