Banwari Vishwakarma (Force ... vs Union Of India Thru Secy. And 3 ...
2014 Latest Caselaw 6261 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.											Reserved
 

 
Case :- WRIT - A No. - 37302 of 2014
 
Petitioner :- Banwari Vishwakarma (Force No.880924558)
 
Respondent :- Union Of India Thru Secy. And 3 Others
 
Counsel for Petitioner :- L.M. Singh
 
Counsel for Respondent :- A.S.G.I.,Ajit Kumar Singh
 

 
Hon'ble Manoj Kumar Gupta,J.

1. The petitioner is Sub Inspector (M) in Central Reserve Police Force (for short C.R.P.F.). He is aggrieved by order dated 14.6.2014, whereby, he has been transferred from 148 Battalion deployed at Chandauli to 161 Battalion deployed in Srinagar and the order dated 20.6.2014 passed by respondent no.3 rejecting his representation for cancelling the transfer order.

2. According to the petitioner, he was transferred to 148 Battalion Chandauli on 23.8.2011, which is a hard area posting. As per Standing Order No.2 of 2014 (for short 'Standing Order') issued by Ministry of Home Affairs, New Delhi relating to transfer policy of Ministerial/Stenographic/ Official Language Cadre, the petitioner having completed the stipulated tenure of two years in hard area, is entitled to be posted in a soft area, but has been illegally transferred to 161 Battalion, which is deployed at Srinagar, a hard area. It is urged that according to paragraph 6 of the Standing Order, he is entitled to be posted in a soft area and consequently, impugned order is illegal as well as the order rejecting his representation.

3. The respondents have filed a short counter affidavit, in which it is stated that out of 26 years of service, the petitioner had served only one year two months in hard area i.e. 95 Battalion Dimampur w.e.f. 5.5.1998 to 5.7.1999 before posting in 148 Battalion, Chandauli w.e.f. 8.10.2011. The petitioner had reported on transfer in Central Sector Headquarter, Lucknow U.P. on 31.5.2010 from G.C. Siliguri (West Bengal) and thereafter, made an application on 23.5.2011 for posting at 148 Battalion on the ground that his wife is undergoing treatment at Varanasi. The aforesaid request was accepted and the petitioner was transferred from the office of I.G.P. C/S Lucknow to 148 Battalion, Chandauli vide order dated 30.7.2011. In pursuance thereof, the petitioner joined at Chandauli on 8.10.2011. Thus, his posting at 148 Battalion was a "Choice Posting" being on his request. It is submitted that according to Standing Orders, the period spent during choice posting in hard area is not counted as hard area posting in view of definition of 'hard area posting' under paragraph 2 (h); as such, there is no breach of any Standing Order. It is further contended that out of 25 Battalions of C.R.P.F., 20 Battalions are deployed in LWE/J & K. area. Thus, all personnel could not be accommodated at their choice place. It has been further pointed out that while posting in 148 Battalion at Chandauli, the petitioner was stationed at Unit Headquarter of the Battalion, which is 13 kilometers from Mughalsarai Railway Station and 14 kilometers from Varanasi Cantt. Station. It is stated that only Companies of 148 Battalion are deployed in L.W.E. area and thus, the petitioner, who was posted at the Headquarter of the Unit, which was his choice posting, was virtually deployed in a soft area, consequently, no interference is called for.

4. I have heard learned counsel for the parties and perused the record.

5. Indisputably, Standing Order issued by the Ministry of Home Affairs, New Delhi regulates transfer and posting of the Ministerial/Stenographic/ Official Language Cadre. The petitioner, who is Sub Inspector (Ministerial) is thus governed by the aforesaid Standing Order. Under paragraph 7 of the Standing Order, transfer of officers/officials are broadly classified in three kinds viz. summer chain transfer, transfer on promotion and other administrative transfers. The summer chain transfers cover cases of officers, who have completed prescribed tenure in soft areas and hard areas. Apart from transfers, on certain grounds mentioned in the transfer policy, though the tenure has not been completed, paragraph 6 of the Standing Order provides that officers will be rotated on transfer in such a way that after every hard area posting, the next posting is in a soft area and vice versa. Paragraph 6, which is relevant for our purpose, is reproduced below:-

"6. ROTATION. All officer/official will be rotated on transfer in such a way that after every hard area positing, he/she should be posted to a soft area and vice versa as per tenure policy except in the case of ASI (ST) and isolated posts."

6. Under paragraph 4, it is provided that in case of Sub Inspector (Ministerial) soft area posting shall be of four years after which there will be rotation to hard area posting for two years.

7. Hard area posting and soft area posting are defined as under:-

" 2 (h) Hard area posting:- Continuous posting in the following areas which have been classified as hard areas (Except when it is given as choice/home posting. Personnel willing for hard areas can be rotated within the hard areas of the zone- but not continuously in home State/District.)

1) New GCs/Ranges/Other static Establishments under raising upto 5 years from the date of initial raising of such New GCs/Ranges/Other static Establishments.

2) Whole North Easter Region,

3) Whole J &K and

4) Static formations located located in Operation areas of.........

S.No.

State

Number of Distt/Cities

Name of Districts/Cities

Uttar Pradesh

Chandauli, Mirzapur and Sonebhadra

i) Soft area posting:- means the continuous tenure/posting in the places/areas/regions other than those classified as hard areas posting as per 2 (h) above."

8. The term tenure is defined as under:-

"2 (e) Tenure- means the period of continuous posting in a particular station/area/region/NCR (including Govt. duty/attachment etc. beyond 90 days). In case any official is on attachment/temporary duty from hard area to soft area or vice versa for more than 90 days, the period of such attachment/temporary duty will be counted towards tenure of that specific place where he is attached or on temporary duty."

9. Thus, transfer policy as per Standing Orders provides for rotation of officials in such a manner that after every hard area posting, he/she would get a soft area posting and vice versa. The petitioner, who is Sub Inspector (Ministerial) becomes entitled for soft area posting after two years of hard area posting. Thus, the question for consideration is whether the petitioner, after his present posting at Chandauli, is entitled to be posted in a soft area.

10. Indisputably, Chandauli is a posting in a hard area covered under serial no.8 of paragraph 2 (h) of the Standing Order. However, the contention of the respondents is that the tenure spent by the petitioner at Chandauli is liable to be excluded, as it was on his own request, being a 'choice posting'. On the other hand, learned counsel for the petitioner contends that during his posting at Chandauli, the petitioner was getting all the perks and allowances attached to a post in a hard area and, therefore, the respondents cannot be permitted to take a stand that his posting at Chandauli was not in a hard area.

11. It is abundantly clear from the definition of 'hard area posting' as given in paragraph 2 (h) that the period spent in hard areas as a choice/home posting is to be excluded, while reckoning the tenure for purposes of the transfer policy under the Standing Order. The respondents in their short counter affidavit have specifically come up with the plea that the petitioner after his transfer from G.C. Siliguri (West Bengal) reported in Central Sector Headquarter, Lucknow U.P. on 31.5.2010. He, thereafter, made a representation dated 23.5.2011 for being posted at 148 Battalion, as his wife was undergoing treatment at Varanasi, which is home district of the petitioner. The request of the petitioner was accepted and by order dated 30.7.2011, he was transferred to 148 Battalion, where he joined w.e.f. 23.8.2011. Thus, since 31.5.2010, the petitioner remained posted in Uttar Pradesh, which is his home town. His posting at Chandauli since 23.8.2011 is on his own request.

12. Paragraph 2 (o) defines 'home posting' as posting to the desired station/place falling within home State or nearby State. 'Choice posting' under paragraph 2 (r) means posting to the desired station/place. As already noted above, the posting if given as 'choice/home posting', is liable to be excluded while calculating the tenure under hard area posting. Accordingly, the posting of the petitioner at Chandauli, which is both covered by definition of 'home posting' and 'choice posting', is liable to be excluded while reckoning the period of hard area posting. It may be noted here that drawing of perks of hard area posting at Chandauli, is not material for calculating the tenure of posting in a hard area, for the purposes of the Standing Orders. Consequently, the respondents have rightly not treated the posting of the petitioner at Chandauli as a hard area posting for purposes of transfer policy. In view of the above discussion, I do not find any force in the contention of the petitioner that there is breach of Standing Order, which requires rotation of the officials between hard area and soft area.

13. The other factors are equally important in the instant case. The assertion made in paragraph 4 of the counter affidavit that out of 26 years of service, the petitioner had served only for one year and two months in hard area (i.e. 95 Battalion Dimapur w.e.f. 5.5.1998 to 5.7.1999), has not been denied in the rejoinder affidavit. It has also not been disputed that the transfer of the petitioner to 148 Battalion Chandauli was on his own application, which though is a summer chain transfer but is covered by paragraph 7 (A) (iii), whereunder, officials are transferred without completing the prescribed tenure in soft area and hard area on their own request on various grounds as defined in transfer policy. It has also not been disputed that out of total 25 Battalions, 20 Battalions of this Sector are deployed in L.W.E./ J & K area and thus, it is not possible for the respondents to accommodate all officials at their choice place. It has been held by the Apex Court in Major General J.K Bansal Vs. Union of India and others (2005) 7 SCC 227 that in the case member of Armed forces, the Court should be extremely loath in interfering with the transfer orders. In the said judgment, after taking notice of the law laid down by the Apex Court in the case of Shilpi Bose (Mrs.) and others vs. State of Bihar and others 1991 supp (2) SCC 659, Union of India Vs. S.L. Abbas (1993) 4 SCC 357 and National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan (2001) 8 SCC 574, all of which relates to the scope of interference in case of civilian employees or those working in public sector undertakings, it was held as under:-

"12. It will be noticed that these decisions have been rendered in the case of civilian employees or those who are working in public sector undertakings. The scope of interference by the courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed forces should be posted. The courts should be extremely slow in interfering with an order of transfer of such category of persons unless an exceptionally strong case is made out, no interference should be made."

14. Learned counsel for the petitioner has placed reliance on the judgment of Apex Court reported in (2011) 14 SCC 588 State of Punjab and others Vs. Jagdish Kaur and other connected matter, in which it is held that in absence of statutory rules, Government orders have binding force and judgment of learned Single Judge of this Court in the case of Akash Sharma Vs. State of U.P. and others 2007 (3) ESC 1730, in which it is held that the Government, which has framed the transfer policy should normally follow it and an unreported judgment of Madras High Court dated 7.8.2001 in the case of A. Nambirajan Vs. Inspector General of Police and another, wherein, it is held that a transfer order tainted with malafide or made in violation of Standing Order is liable to be set aside. There is no dispute about the proposition of law laid down in the aforesaid judgments but those principles of law are not attracted to the facts of the present case, as it has been found that the transfer of the petitioner is neither in breach of Standing Order nor is tainted with malafide.

15. In view of the foregoing discussion, I am of the firm opinion that there is neither breach of Standing Order, nor even otherwise, is it a fit case for interference under Article 226 of the Constitution of India.

16. Accordingly, writ petition lacks merit and is dismissed.

(Manoj Kumar Gupta, J.)

Order Date :-10.9.2014

SL