Arpit Singh vs U.O.I. Thru. Director General ...
2023 Latest Caselaw 20113 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:50978-DB
 
Court No. - 2
 
Case :- SPECIAL APPEAL No. - 390 of 2023
 
Appellant :- Arpit Singh
 
Respondent :- U.O.I. Thru. Director General Indo -Tibetan Border Police Thru. Ministry Home Affairs And Others
 
Counsel for Appellant :- Shashi Kant Tripathi,Manoj Kumar Mishra
 
Counsel for Respondent :- A.S.G.I.
 

 
Hon'ble Attau Rahman Masoodi,J.

Hon'ble Om Prakash Shukla,J.

(1) Heard Shri Manoj Kumar Mishra, learned Counsel representing the appellant and Shri S.B. Pandey, learned Senior Advocate/ Deputy Solicitor General of India assisted by Shri Varun Pandey, representing the respondents.

(2) This intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules has been filed by the appellant, Arpit Singh, challenging the judgment and order dated 26.07.2003 passed by the learned Single Judge, whereby Writ-A No. 5359 of 2023 filed by the appellant, seeking to quash the order dated 22.06.2023, by which he has been transferred from Lucknow to Kerala in the Indo-Tibetan Border Police (ITBP) Force as well as to quash the order dated 20.07.2023, by which his representation for being exempted from transfer was rejected, has been dismissed by the learned Single Judge.

(3) The record available before this Court in the instant special appeal would reveal that the appellant/writ petitioner is posted as Constable (J.D.) in Battalion No. 120411283, Headquarter Eastern Frontier, Indo-Tibetan Border Police Force, Lucknow. It has been argued that he is suffering from Hepatitis-B disease and his treatment is going on at King George Medical University, Lucknow. Vide order dated 25.01.2023. The appellant/writ petitioner was transferred from Lucknow to 27th Battalion, Indo-Tibetan Border Police Force, Kerala.

(4) Immediately thereafter, the appellant/writ petitioner had filed a representation, seeking to forestall his transfer on the medical ground. Taking into consideration the ailment of the writ petitioner/appellant, his transfer order dated 25.01.2023 stood cancelled vide order dated 23.02.2023. Subsequently, vide order dated 22.06.2023, the appellant/writ petitioner was again transferred from Lucknow to Kerala. This time again the appellant/writ petitioner preferred a representation, seeking to forestall his transfer on medical ground. However, the competent authority had considered the grievance of the writ petitioner/appellant and vide order dated 27.06.2023, the competent authority, while declining his request, directed the Eastern Front to relieve the appellant/writ petitioner by 28.06.2023 positively for Kerala Headquarter in terms of transfer order dated 22.06.2023.

(5) Apparently, the writ petitioner/appellant, being aggrieved by the aforesaid order of transfer dated 22.06.2023, preferred Writ-A No. 4754 of 2023 before this Court. The learned Single Judge, vide order dated 30.06.2023, while disposing of the writ petition, directed the Inspector General (Establishment), Indo-Tibetan Border Police Force, New Delhi to take decision on the representation of the writ petitioner/appellant and till then, it was directed that the writ petitioner/appellant may not be forced to join at the transferred place.

(6) In compliance of the aforesaid judgment and order dated 30.06.2023, the competent authority had again considered the grievance of the writ petitioner/appellant and rejected his representation vide order dated 20.07.2023.

(7) Dissatisfied with the order of transfer dated 22.06.2023 as well as the order dated 20.07.2023, appellant/writ petitioner preferred Writ-A No. 5359 of 2023 before this Court. The learned Single Judge, vide order dated 26.07.2023, dismissed the writ petition. It is this order dated 26.07.2023, which has been challenged in the instant special appeal.

(8) Learned counsel for the appellant submits that para-7 of the Standing Order No. 3 of 2023 dated 10.02.2023 stipulates that transfers/posts on compassionate/medical grounds will be done in relaxation of the tenure norms on a case to case basis. According to him, the appellant/writ petitioner is suffering from Hepatitis-B disease and his treatment is going on at KGMU, Lucknow, therefore, the order of the transfer is contrary to the aforesaid Standing Order. According to the learned Counsel, the learned Single Judge has lost sight of the aforesaid cogent facts and failed to consider and appreciate the serious ailment of the appellant/writ petitioner and his treatment at KGMU, Lucknow. Thus, the learned Counsel has prayed that the impugned order passed by the learned Single Judge is liable to be set-aside.

(9) Per contra, learned Senior Advocate/ Deputy Solicitor General of India representing the respondents has submitted that the medical facilities for the ailment of the appellant/writ petitioner is available at the place where the appellant/writ petitioner has been sought to be transferred i.e. at Kerala, where he can avail the medical facility. According to the learned Senior Counsel, the post on which writ petitioner/appellant is working, is a transferable post and earlier exemption from transfer was granted to the writ petitioner/appellant twice on the ground of medical and that the petitioner/appellant has been transferred to Kerala on grounds of administrative/operational necessity. Thus, he submitted that the learned Single Judge has rightly dismissed the writ petition vide impugned order and there is no illegality or infirmity in the impugned order.

(10) Having regard to the submissions advanced by the learned Counsels representing the parties and after perusal of the record available before this Court in the instant appeal, it is required to be noted that the writ petitioner/appellant has been posted at Eastern Frontier, Lucknow since 05.05.2017 as is evident from the order of transfer itself, meaning thereby the appellant/writ petitioner remained posted in a soft area for more than six years, whereas according to normal tenure in a soft area, the posting is only for three years.

(11) Appellant/writ petitioner has not denied the fact that there are adequate medical and educational facilities available at the transferred place of posting i.e. in Noornad at Kerala. The record reveals that it is neither the case of the writ petitioner/ appellant before the learned Single Judge nor before this Court that the treatment of the disease of which he is suffering, is only available at KGMU, Lucknow or that writ petitioner/appellant cannot be treated at the transferred place of posting. Furthermore, admittedly, on taking sympathetic view, earlier writ petitioner/appellant was exempted from transfer twice, which does not mean that the appellant would claim to continue for his entire service at one and the same place.

(12) Perusal of the Standing Order dated 10.02.2023 on which the writ petitioner/appellant placed reliance, reveals that it appears to be the nature of a guidance on a case to case basis and does not prohibit transfer of personnel having any medical problems, rather para-16 of the Standing Order indicates that the Director General may transfer a recruit, if it is considered necessary to do so on the grounds of administrative/operational necessity or exigency.

(13) In the instant case, the stand taken by the respondents in transferring the writ petitioner/appellant is that the writ petitioner/appellant has been transferred on the ground of administrative/operational necessity, which, in our view, is in consonance with the Standing Order dated 10.02.2023.

(14) Recently, the Hon'ble Supreme Court in Civil Appeal No. 1243 of 2002 " S.K. Naushad Rahaman & Ors V/s Union of India & Ors.", vide order dated 10th of March, 2022, has observed :-

" 24. First and foremost, that transfer in an All India Service is an incident of service. Whether, and 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."

(15) Admittedly, ITBP is an All India Service and on perusal of the impugned order passed by the learned Single Judge, what we find is that noting the aforesaid facts and also keeping in mind the fact that the writ petitioner/appellant is an officer in the Para-Military Force of Indo-Tibetan Border Police and transfer and posting in such Para Military Forces cannot be exempted on frivolous grounds otherwise it would set a bad precedent in a disciplined force, the learned Single Judge dismissed the writ petition vide impugned order.

(16) It is a trite law that transfer is a condition of service. A recruit of a discipline force like Indo-Tibetan Border Force has no vested right to remain posted at the place of his/her choice. The transfer order does not violate legal right of a person holding transferable post, if he is transferred from one place to another in administrative/operational necessity or exigency. The order of transfer is an administrative order. The Apex Court in a catena of decisions has held that the scope of judicial review in the matter of transfer is very limited. The Courts should not interfere with transfer order which is made in the public interest and for administrative reasons, unless an order of transfer is shown to be outcome of mala fide exercise or stated to be in violation of statutory provision prohibiting any such transfer.

(17) In the instant case, the learned Counsel for the appellant/writ petitioner has failed to show any mala fide against him and also failed to show any violation of statutory provision prohibiting any such transfer while passing the order of transfer by the Authority.

(18) For all the reasons mentioned above, we are in full agreement with the view taken by the learned Single Judge while declining to interfere in the matter vide impugned order. There is no illegality or irregularity in the impugned order and as such does not merits any interference.

(19) The special appeal is, accordingly, dismissed.

(Om Prakash Shukla, J.)       (Attau Rahman Masoodi, J.)
 
Order Date :- 2.8.2023
 
Ajit/-