Andhra Pradesh High Court - Amravati
N. Ramana Babu vs The Officer In Charge, on 5 February, 2021
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION No.16852 of 2020
ORDER:
This writ petition is filed under Article 226 of the Constitution
of India to issue a writ of Mandamus declaring the acts of the
respondents in not considering the case of the petitioner issuing
order of Re-Formulation of Block Transfer-2020 dated 26.06.2020
issued by respondent No.1 without considering representation dated
03.07.2020 made by the petitioner to the authorities directing the
petitioner to report on 16.09.2020 at office of Regional Operation
Centre, Kolkata 6th respondent declaring the same as illegal,
arbitrary, malafide, discriminatory, violation of provisions of Transfer
Rules Chapter-2 Transfer (Authority: CGO 03/2003) of the
respondents department as well as violation of Article 14, 16 and 21
of the Constitution of India and consequentially direct the
respondents to continue the petitioner in the present station till
completion of maximum station criteria of 5 years, as per the rules.
By the date of passing the impugned order, the petitioner is
working in Indian Coast Guard, Ministry of Defence presently
working at Vizag on Chetak Flight, Visakhapatnam as Adhikari (RO)
(Radio operator). As per the procedure the authorities shall issue
Block Transfers (BT) in the month of December, 2019. In the
circumstances prevailing during December 2019, Block Transfers
(BT) were issued on 01.12.2019, in which the petitioner was
transferred to Regional Operation Centre, Kolkata (for short "ROC"
(KOL)"), with date of reporting (DOR) as on 06.01.2020. However,
the authorities amended the date of reporting as 06-05-2020.
Subsequently, entire Block Transfers were kept in abeyance
due to Covid-19 on 23.04.2020. Thereafter, the respondents
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authorities have Re-Formulated Block Transfers, promulgated by
BUVIK on 26.06.2020 issued by respondent No.1 authority. Most of
the transfers Enrolled personnel (EP) were cancelled in view of
Covid-19, but the transfer of the petitioner is still effective to
report at Regional Operation Centre, Kolkata in short ROC (KOL),
by 31.08.2020.
The main grievance of the petitioner is that in view of
pandemic Covid-19, block transfers were reformulated. But the
transfer of the petitioner is effective despite rapid increase of
pandemic Covid-19, imposition of lockdown and its release by the
Government.
The petitioner was blessed with two children, aged 2 ½ and 7
½ years now and they are highly vulnerable to the deadly corona
virus. As per the guidelines of Ministry of Home Affairs,
Government of India, travelling with family along with small kids to
Kolkata is highly risky, further staying with family in civil area at
Kolkata is also considered unsafe because Kolkata is also one of
highly infected Corona Virus cities, with high death rates.
It is further contended that the Corona pandemic in Kolkata
along with other metros like Delhi, Mumbai, Chennai, Bangalore
and Hyderabad is increasing exponentially, ringing alaram bells for
extreme safety precautions by all citizens, it may take many more
months in the present circumstances to restore normalcy.
As per the guidelines issued by Ministry of Home Affairs,
Govt of India vide OM N0.40-3/2020-DM-1 (A) dated
29.06.2020 in the light of community spreading Covid-19 pandemic,
the concerned Coast Guard authority (BUVIK) issued re-formation
Block Transfer-2020 with 50% cancellation of Transfers and 50%
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amended DOR (in maximum cases as 31st August, 2020). In
other services like CISF, BSF, CRPF and in many Government
service transfers are cancelled till April 2021 to safe guard the
employees and their families from Covid Virus and also to save the
budget of India, in present situation. But, in utter disregard to those
guidelines, the transfer of petitioner is retained while cancelling
transfer of other employees.
Mother of the petitioner is aged 61 years and is completely
disturbed and under depression since the demise of his father in
2003. She needs constant supervision and support 24x7. So far,
his brothers were looking after their ailing mother as he was posted
away from Vizag for most of the time. However, due to Covid-19
pandemic, they lost their private employment and shifted with their
family to their in-laws village to do agriculture for their survival.
So, it is his moral responsibility to look after his mother. Therefore, it
is impossible for him to move from Visakhapatnam to Kolkata on
account of pandemic.
Yet, another ground urged by the petitioner is that his wife is
not keeping good health and she is undergoing homeopathy
treatment for her back pain since long time, as she has undergone
various surgeries in service hospitals i.e, Ectopic abortion in 2009
at INHS Sanjeevini and in 2011 she gave birth to a baby girl, and
the baby died in one month time due to TAPVC, after undergoing
surgery in MH pune. In 2007, she was infected with Tuberculosis
and undergone treatment at MH Chennai. On account of ill-health of
his wife, he was unable to move from Visakhapatnam.
Finally, it is contended that he owned 250 square yards of
vacant land at Visakhapatnam. As the price of the land is sky
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rocketing after the recent state Government's announcement of
shifting the Administrative Capital to Visakhapatnam, the
neighbours in the area are keeping an eye on the vacant land to grab
it at much lower price or encroach it unauthorizedly. Absence of his
brothers from Visakhapatnam will be a golden opportunity for
adversaries to grab the vacant land. Therefore, to protect his land,
the petitioner is required to be continued at Visakhapatnam.
It is further contended that the petitioner submitted voluntary
retirement as he completed 20 years of service as on 31.07.2020,
and the same is pending. The petitioner is working in the present
place since 19.06.2017 (3 years 2 months only), but as per the
rules, the petitioner is entitled to continue in the present station
up to 4 to 5 years till completion of maximum station criteria or till
covid situation comes under control. But, without considering these
difficulties of the petitioner, the respondents - authorities transferred
him to Kolkata, ordering to report at ROC, Kolkata on 16.09.2020,
the action of the respondents is illegal, arbitrary and violative of
Transfer Rules Chapter-2 (Authority CGO 03/2003) and also vioative
of Articles 14, 16 and 21 of the Constitution of India, consequently
direct the respondents to continue the petitioner in the present
station till completion of maximum station criteria of 5 years.
The respondents filed counter denying material allegations
while admitting the issue of impugned proceedings, however denied
the grounds raised by the petitioner in the petition.
The respondents transferred totally 1349 EPs to far flung areas
in reformulated BT -20 and all of them have complied with the
orders and reported to their next respective units. Out of 1349
EPs, 512 EPs having children aged less than 01 years have also
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complied with the transfer directive. The reason quoted by the
petitioner is not in consonance with the ethos of discipline and
operational requirements of service.
The petitioner is a uniformed member of ICG, an Armed
Force of the Union. All the COVID affected service personnel/family
dependents are being treated at Military hospitals. As per Section 7
of Coast Guard Act, 1978, "every member of the Coast Guard
shall be liable to serve in any part of India as well as outside
India". Transfer of an employee is the prerogative of the employer
and cannot be challenged in the Armed Forces as they are done in
accordance with specific service operational requirements. The
reasons offered by the petitioner bear no legitimacy.
It is specifically contended that during past 20 years of service,
the petitioner has served 12.4 years in Eastern region out of which
he has served 8.5 years in Andhra Pradesh, which is his native
State. The petitioner being trained in communication
equipment/procedures, having undergone computer networking/IT
Assistant courses and being experienced in ROS duties is required
to be transferred anywhere in India where his services could be
utilized as per his specialisation, in the implementation of Maritime
security of India. Considering the above service requirements, the
transfer of the petitioner to Kolkata was not cancelled.
It is further contended that post 26/11 Coastal Security has
become a vital requirement and the entire coastal states are
connected through a chain of static sensors. ROC (KOL) is being
activated as a hub for the sensitive North East Region Coast and is a
crucial operational requirement. The transfer of the petitioner was
considered to ROC (KOL) with date of reporting 06.01.20 as he is
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experienced SO in ROS duties and is required for setting up the
much needed operational unit. Previously, he has served at ROS,
Kochi and Vizag where he gained vast experience. His transfer
was deferred till 04.05.20 as per request submitted by the petitioner.
Due to the ongoing pandemic, the DOR was further deferred till
31.08.20 in reformulated BT.
It is brought to the notice of this Court that the petitioner is
guilty of misconduct and the action taken against the petitioner is
shown in the table hereunder.
Sl Punishment From To No. Of Authority Remarks
days
(aa) Mulcts of Pay 12.04.03 28.04.03 15 Vajra letter
and allowances 104 dated 02
May 03
(ab) Deprivation of 17.11.05 - - Vikram
GCB Genform
CG/0633/N
dated 17 Nov
(ac) Mulcts of Pay 01.10.07 - 60 ICGS (Chn) For
and allowances Genform improper
X/CG/020/N absence
dated 03 Dec from 02
07 Jul 07 to
27 Aug 07
(ad) Deprivation of 01.10.07 - - -do- -do-
GCB
(ae) Stoppage of 01.10.07 - 60 -do- -do-
Leave
(af) Deprivation of 18.06.09 - - INS Driving
GCB Venduruthy without
letter license
203/21/0434 quarrel
OR dated 31 with
Oct 09 civilian
(ag) Stoppage of 08.02.13 - 60 ICGS, Improper
Leave Kakinada absence
Genform from 18
X/CG/004/N Nov 12 to
dated 08 Feb 17 Jan 13
(ah) Deprivation of 08.02.13 - - -do- -do-
GCB
(aj) Admonition 08.02.13 - - -do- -do-
(ak) Mulcts of Pay 08.02.13 - 61 -do- -do-
and allowances
Total 256 days
The petitioner was summarily tried under Section 57 of the
Coast Guard Act. 1978 for being improperly absent from his duty
station on 05 occasions for which he was awarded punishments of
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(i) deprivation of Good Conduct Badge (GCB) 04 times and (ii)
Mulcts of pay and allowances for 256 days during Apr 2003 to Feb
2013. The details of punishments awarded are as follows:
Sl Run Unit Station Run Date Surrender No.of Days.
Date
(aa) Vajra - Old Visakhapatnam 11 Nov 01 29 Nov 01 19
(ab) Vajra - Old Visakhapatnam 16 Apr 03 28 Apr 03 13
(ac) Vajra - Old Visakhapatnam 07 Jun 04 27 Jul 04 51
(ad) DHQ-5 Chennai 02 Jul 07 27 Aug 07 57
(ae) ICGS, Kakinada Kakinada 18 Nov 12 17 Jan 13 61
Total 201 days
on 24.05.09 the petitioner was charged for disorderly
conduct in Thevera Bridge, Ernakulam and for driving without
license in an intoxicated state, causing damage to another
Government vehicle. Further, he also assaulted and injured a Naval
sailor (Senior Secondary Recruit) Umesh Saini. For the said offence,
he was awarded punishment of removal of his Good Conduct
Badge.
On 6th June 19, Coast Guard Regional Headquarters (West).
Murnbai vide letter 403/1 dated 06.06.19, intimated Coast
Guard Reqionat Headquarters (East), Chennai to initiate
disciplinary action under Section 57 of the Coast Guard Act 1978
for the petitioner's involvement in unauthorized and fraudulent
claim of HRA and A&N Island allowances.
As per the rules governing the services of Coast Guards, the
petitioner is a part of the Armed Forces of India who are supposed to
be always available for serving the Nation. All the corona affected
service personnel/family dependents are taken care of in all
situations by the extensive network of Service Hospitals and support
system available in the service. Moreover, total of 1349 EPs were
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transferred out of station in reformulated BT -20 and all of them
have complied with the orders to meet the service requirement.
In 2011, transfer of petitioner from Veraval to Kakinada was
considered as per his request and was recommended by CGRHQ
(NW) on medical grounds to his home state. At Kakinada, the
petitioner was addicted to alcohol due to which, within one year he
was downgraded to low medical category (Unfit for active Sea
Service) in view of Alcohol Dependence Syndrome. Respondent No. 1
had to transfer the Petitioner to ICGS, Kochi to an ashore billet
(Station with service hospital) in 2013. In BT-2017 the petitioner
had requested for transfer to Visakhapatnam stating that "after
three and half years court case my wife joined me on the basis
agreed in court will stay together at least one year in
Visakhapatnam. Both cases compromised. Since four years the
petitioner was away with his child and wife, please consider
at least for one year in Vizag". The transfer of the petitioner was
considered to Visakhapatnam in 2017 and he was retained there till
2020 even though he had requested for only one year.
Compassionate ground transfers are exceptional and are considered
only for one year as it affects the transfer cycle of other personnel.
Therefore, the question of retaining the petitioner at Visakhapatnam
does not arise.
The respondents also asserted that they intend to initiate
proceedings for misconduct of drawing HRA and A&N allowances
while staying in his ancestral house at Visakhapatnam.
The transfer details of the petitioner are as follows:
(a) The Petitioner was at Chennai from 28.02.05 till
11.01.09 and was transferred as per station criteria.
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During this time onboard ship, he was in Vizag where he
absconded from the place of duty/ship.
(b) The petitioner's transfer to ICGS Veraval was
considered to meet service requirements for activation of
new station. However, in Veraval he continued
complaining about his domestic requirements formally
and informally and finally as a welfare measure he
was transferred to Kakinada, near his home town;
before completion of his station criteria which is 03
years. In this regard he had no complaint whatsoever,
this being advantageous to him.
(c) Transfer from Veraval to Kakinada was considered as
per petitioner's request and recommended by
CGRHQ (NW) on medical grounds to his home state in
2011.
(d) The petitioner is diagnosed with Alcohol Dependency
Syndrome at Kakinada within one year, in 2013 he was
downgraded to low medical category Unfit for active duty
due to alcoholism and respondent No.1 had to transfer
him ICGS Kochi an ashore billet, which had a
service hospital. The petitioner's wife had filed a
criminal case of domestic violence and dowry demand
vide FIR no. 321/2012 dated 29.07.12 at Vizag.
Subsequently, the case was mutually settled and a
compromise was arrived at between the families.
The petitioner is not entitled to claim station criteria on the
ground that the transfer of the petitioner was affected in violation of
station criteria. On the contrary, even though he had requested
for only 01 year at Vizag, he has been retained at Vizag for
more than 03 years. Respondent No.1, being responsible for
transfer of EPs as per the manning plan and service requirements.
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Station criteria is a guideline for transfers and the service personnel
can be transferred if the requirement arises to meet the service
exigency. Respondent No.1 has transferred personnel many times to
meet the requirement before completion of station criteria. The
number of personnel transferred before completion of station criteria
in last three years are as follows.
Sl Year Total Outstation transfers
before station criteria
(i) 2017 - 2018 401
(ii) 2018 - 2019 291
(iii) 2019 - 2020 158
The petitioner has cited ill-health of his mother and wife only
after all else failed, post-transfer promulgated to Kolkata. It is
further stated that Command Hospital (Eastern Command) is
equipped to meet any medical requirements of his family.
The petitioner has made an attempt to mislead the Court.
During his past 20 years of service, the petitioner has served 12.4
years in Eastern region out of which he has served 8.5
years in Andhra Pradesh. The petitioner should have taken care of
all the property related issues during that period at Visakhapatnam.
The petitioner is not entitled to question the transfer in view of the
law laid down by the Apex Court in "Shilpi Bose v. State of
Bihar1" and "State of M.P. v. S.S.Kourav2". In view of the law laid
down by the Apex Court in the judgments (referred supra), and the
facts narrated above, the petitioner is disentitled to question the
transfer order and this Court cannot interfere with such transfer as
the services of the petitioner are essential at present station of
transfer i.e. at ROC, Kolkata.
AIR 1991 SC 532,
1995 (3) SCC 270
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The petitioner filed rejoinder to the counter filed by the
respondents raising different ground, more particularly, about
exhibiting vindictive attitude towards the petitioner while
contending that the allegation made against the petitioner that his
services are indispensable at Kolkata is false. The petitioner also
reiterated the grounds urged in the main petition.
Sri S.Sreenivasa Sarma, learned counsel for the petitioner,
mostly contended that on account of pandemic situation, it is
difficult for the petitioner to move from Visakhapatnam to Kolkata
along with his two children, aged about 7 ½ and 2 ½ years
respectively and his ailing mother, aged 61 years, ailing wife. He
further contended that the transfer of the petitioner is not in the
public interest and it is vindictive, thereby it is a malafide transfer.
He further contended that the ROC, at Kolkata is not in operation as
on date and the completion of the same may take another two years
time and the services of the petitioner can be effectively utilised only
after completion of ROC at Kolkata, requested to set aside the
impugned order and direct the respondents to continue the
petitioner in the present station till completion of maximum station
criteria of 5 years.
Sri N.Harinath, learned Assistant Solicitor General, opposed
the writ petition strongly on the ground that the transfer is
incidence of service; when the petitioner agreed for service
conditions, joined in the service is bound by the transfer on
periodical basis. More so, the petitioner is expert in Radio operation,
the department is in need of his service at ROC, Kolkata while
establishing station. Therefore, based on the requirement only, he is
transferred, which is not vindictive. In the absence of any allegation
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regarding malafide, mere employing word "arbitrary and malafide" in
the relief is not sufficient to declare the same as malafide in the
absence of malice either in fact or law and requested to dismiss the
writ petition relying on two judgments referred above.
Considering rival contentions, perusing the material available
on record, the points that arose for consideration are:
(1) Whether the transfer of the petitioner from
Visakhapatnam to Regional Operation Centre,
Kolkata by impugned proceedings is tainted by
malafide?
(2) Whether the transfer of the petitioner is contrary to
provisions of Transfer Rules Chapter-2 Transfer
(Authority:CGO 03/2003)?
(3) Whether this Court can interfere with the transfer of
employee in armed forces while exercising power
under Article 226 of the Constitution of India on the
grounds narrated in the petition? If so, whether the
impugned proceedings i.e. Re-formulation of Block
Transfer - 2020 dated 26.06.2020 be declared as
illegal, arbitrary, malafide, and violation of
provisions of Transfer Rules Chapter - 2 Transfer
(Authority:CGO 03/2003) of the respondents
department?
P O I N T No.1:
One of the contentions raised in the writ petition is that
transfer is malafide and it is vindictive as averred in the rejoinder
filed to the counter filed by the respondents. A bare look at the
allegations made in the affidavit filed along with the petition, the
petitioner did not disclose any details of malafide either factual or
legal. Mere employing the word in the relief claimed by the petitioner
or rejoinder filed to the counter that the impugned proceedings are
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malafide or vindictive is not sufficient to grant relief.
Malice is of two kinds. But in the present petition, the
petitioner did not disclose the details to constitute 'malice in fact' or
'malice in law'.
In the absence of details to constitute "malice", it is difficult to
accept the contention of the petitioner based on bald allegations
made in the petition and in the rejoinder filed to the counter.
The issue of "malus animus" was considered in "Tara Chand
Khatri v. Municipal Corporation of Delhi3", wherein the Supreme
Court has held that the High Court would be justified in refusing to
carry on investigation into the allegation of mala fides, if necessary
particulars of the charge making out a prima facie case are not
given in the writ petition and burden of establishing mala fide lies
very heavily on the person who alleges it and there must be
sufficient material to establish malus animus.
Similarly, in "E.P. Royappa v. State of Tamil Nadu4", the
Supreme Court held that a transfer is mala fide when it is made not
for professed purpose, such as normal course or in public or
administrative interest or in the exigencies of service but for other
purpose, that is to accommodate another person for undisclosed
reasons. The Court further observed as under:-
"Secondly, we must not also over-look that the burden of establishing
mala fides is very heavy on the person who alleges it.... The Court would,
therefore, be slow to draw dubious inferences from incomplete facts placed
before it by a party, particularly when the imputations are grave and they are
made against the holder of an office which has a high responsibility in the
administration. Such is the judicial perspective in evaluating charges of
unworthy conduct against ministers and other, not because of any special
status... but because otherwise, functioning effectively would become difficult
AIR 1977 SC 567
4 1974 SCR (2) 348
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in a democracy."
The Apex Court "Shivajirao Nilangekar Patil v. Dr. Mahesh
Madhav Gosavi5" has made similar observations.
In "M. Sankaranarayanan, IAS v. State of Karnataka6",
the Supreme Court observed that the Court may "draw a reasonable
inference of mala fide from the facts pleaded and established. But
such inference must be based on factual matrix and such factual
matrix cannot remain in the realm of intuition, surmise or
conjecture."
. In "Arvind Dattatraya Dhande v. State of Maharashtra7"
the Supreme Court held as under:-
"In view of the unimpeachable and eloquent testimony of the
performance of the duties, it will be obvious that the transfer is not in public
interest but is a case of victimisation of an honest officer at the behest of the
aggrieved complainants carrying on the business in liquor and toddy. Under
these circumstances, as stated earlier, the transfer of the appellant is
nothing but mala fide exercise of the power to demoralise honest officer who
would efficiently discharge the duties of public office."
There has to be very strong and convincing evidence to
establish the allegations of mala fides specifically alleged in the
petition as the same cannot merely be presumed. The presumption is
in favour of the bona fides of the order unless contradicted by
acceptable material. (Vide: Kiran Gupta v. State of U.P.8
and "Netai Bag v. State of West Bengal9".
5 1987 SCR (1) 458
AIR1993SC763
AIR 1997 SC 3067
AIR 2000 SC 3299
AIR 2000 SC 3313
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In "State of Punjab v. V.K. Khanna10", the Apex Court
examined the issue of bias and mala fide, observing as under:-
"Whereas fairness is synonymous with reasonableness- bias stands
included within the attributes and broader purview of the word 'malice'
which in common acceptation means and implies 'spite' or 'ill will'. One
redeeming feature in the matter of attributing bias or malice and is now well
settled that mere general statements will not be sufficient for the purposes of
indication of ill will. There must be cogent evidence available on record to
come to the conclusion as to whether in fact, there was existing a bias or a
mala fide move which results in the miscarriage of justice.... In almost all
legal inquiries, 'intention as distinguished from motive is the all-important
factor' and in common parlance a malicious act stands equated with an
intentional act without just cause or excuse."
In "Dr. Balkrishna Pandey v. State11" a Division Bench of
this Court has held that if an employee is at a station for a long time
and the transfer is made administratively only on that ground, it
cannot be a case of mala fide.
The Supreme Court in "Sarvesh Kumar Awasthi v. U.P. Jal
Nigam12" held as under:-
"In our view, transfer of officers is required to be effected on the basis of
set norms or guidelines. The power of transferring an officer cannot be
wielded arbitrarily, mala fide or an exercise against efficient and independent
officer or at the instance of politicians whose work is not done by the officer
concerned. For better administration, the officers concerned must have
freedom from fear of being harassed by repeated transfers or transfers
ordered at the instance of someone who has nothing to do with the business
of administration."
Transfer affected as a punitive measure is also not permissible.
Whether a transfer is punitive or not is a question of fact, as held by
the Supreme Court in "Radhey Shyam Gupta v. U.P. State Agro
AIR 2001 SC 343
1997 ACJ 1038
(2003) 11 SCC 740
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Industries Corporation Limited13". It was permissible for the Court
to go behind the order and find out if it was punitive in nature.
Unrebutted allegations made in the counter regarding transfer
of 1349 EPs to different places and their reporting duty is another
strong circumstance to conclude that the respondents had no malice
either in fact or in law in affecting transfer of the petitioner.
Therefore, the contention of the petitioner that there was malice in
vindictive transfer is liable to be rejected on this ground also.
Keeping in view the law declared by the Apex Court in catena
of perspective pronouncements, it is the duty of the petitioner to
provide all details to constitute malafide and "malus animus" and the
burden heavily lies on the employee/the petitioner herein who raised
such ground. When the petitioner is intended to raise such plea of
malafide and vindictive transfer, he has to disclose the details to
constitute such malafide so as to describe the transfer as vindictive,
in terms of Order VI Rule 4 of the Code of Civil Procedure (for short
"C.P.C."). According to Order VI Rule 4 of C.P.C. when such details
are furnished by the petitioner in discharge of his burden, the Court
can draw prima facie inference of malafide. In the present case, no
details are furnished as mandated under Order VI Rule 4 of C.P.C.,
which constitute either malice in fact or malice in law. In the
absence of such details, it is difficult to draw a reasonable inference
of prima facie malice on the part of the respondents. Therefore, the
petitioner miserably failed to plead and prove the malafide on the
part of the respondents in issuing impugned order of transfer from
Visakhapatnam to ROC, Kolkata. Therefore, on the ground of
AIR 1999 SC 609
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malafide describing the transfer as vindictive, the claim of the
petitioner is liable to be rejected. Accordingly, the point is held
against the petitioner and in favour of the respondents.
P O I N T No.2:
One of the contentions urged before this Court is that the
transfer of the petitioner is contrary to the transfer guidelines
Chapter-2, Transfer (Authority:CGO 03/2003). These guidelines were
adopted for transfer of the Coast guards from one place to another
place since Coast Guard ships/establishments are located in
different parts of country with varying facilities of married
accommodation, education, medical and other allied amenities. The
Bureau is responsible for providing manpower in these billets so as
to achieve a high standard of efficiency and also provide equal
opportunities to all enrolled personnel to serve in different Coast
Guard stations so as to enrich their knowledge and experience.
Therefore, the main object of adopting the said guidelines is to share
knowledge and experience in protecting the country being the coast
guards. The ROC at Kolkata is now under the process of completion.
The petitioner being a specialist in Radio Operating system
acquainted with computer networking/IT Assistant courses and
being experienced in ROS duties, his services are necessary for
completion of ROC at Kolkata.
In paragraph No.6 of the counter, it is specifically averred that
the petitioner has completed 20 years of service with Indian Coast
Guard after being trained in communication equipment. He has
undergone computer networking/IT assistant courses. Out of past
20 years of service, the petitioner has served 12 years 05 months in
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Eastern region, out of which he has served 8 years 07 months in
Andhra Pradesh, which is his Native state. As per Rule 13 (1) of the
Coast Guard (Conditions of Service) Rules, 1986, all enrolled
personnel are liable for transfer within the service. It is further
averred in paragraph No.8 of the counter that the transfer of the
petitioner to ROC, Kolkata was to be carried out on 06.01.20 as he is
an experienced Subordinate Officer ("SO") in Remote Operational
Station duties having served earlier at ROS, Kochi and Vizag. His
transfer was deferred till 04.05.20 at his request. Due to the
prevailing pandemic situation, his date of reporting was further
deferred till 31.08.20 in reformulated Block Transfer(BT). Thus, the
respondents wanted to utilise the services of the petitioner for proper
functioning of the ROC, Kolkata in view of his experience and
knowledge in computer networking, being experienced and expert in
ROS duties.
The petitioner in the rejoinder denied the same while raising
different contentions. Even assuming for a moment, that the
petitioner had not undergone the computer networking training, he
being an experienced member of the coast guard, having served for
20 years, he can share his experience while establishing ROC at
Kolkata. Therefore, the contention of the petitioner that the transfer
is in violation of rules cannot be accepted.
Chapter - 2, Transfer (Authority:CGO 03/2003) clause 0202 deals with
transfer of personnel in different circumstances, they are extracted
hereunder for better appreciation.
0202. Transfer of personnel is normally effected on one of the following
occasions:
(a) To meet the manning plan of ships/ establishments/ air squadrons
as promulgated by Coast Guard Headquarters from time to time.
(b) Affording sufficient opportunity to enrolled personnel to gain requisite
experience and to complete prescribed sea/ squadron time for promotion to
higher ranks.
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(C) To effect turnover of enrolled personnel on completion of prescribed
tenures in ships/ establishments.
(d) To provide adequate shore tenure with due consideration to shortages
in a particular cadre.
(e) To make up for shortages in a ship/ establishment due to cases of
release, marked run or low medical category.
(f) Extreme compassionate grounds requiring an enrolled personnel
presence at one station for a certain period.
Categories of transfers are also mentioned in clause 0203.
(a) Transfer on completion of initial training.
(b) To rotate enrolled personnel between ships and shore during Block transfer in view of
specified transfer criteria which is based on cumulative stay in a unit/station so as to
implement manning plan.
(c) Block Transfer promulgated every year in the month of December
(Authority: CGHQ letter NK/0375 dated 24 Nov 2009)
(d) Transfer to newly inducted ships/ activated CG establishments.
(e) Transfer from decommissioned ships.
(f) Transfer on compassionate, medical/ children education grounds.
(g) Resettlement transfers.
(h) Transfers on temporary duty, when it becomes necessary.
(i) Transfers for higher rank board/ courses,
(j) To complete mandatory sea time for consideration to the next rank.
(Authority: CGHQ letter NK/0337/DPC/02/2009 dated 08 Oct 2009 NK/0366 dated 11
Nov 2014)
In addition to the above guidelines, clause (b) - Station Criteria
fixed different tenure for different stations. For Visakhapatnam, the
tenure is 4 to 5 years as per table (i) non aviation.
The petitioner is a person working in non-aviation and he has
completed 3 ½ years at the present station as on date and more
than 3 years by the date of filing of the petition, his stay at
Visakhapatnam is only short of only 6 months for 4 years even
station criteria as per rules is accepted. In any view of the matter,
the rules permit the transfer of enrolled personnel to gain requisite
experience and to complete prescribed sea/squadron time for
promotion to higher rank as per clause 0202. Therefore, the
maximum prescribed in the station criteria and its violation is not a
ground to set aside the impugned order. However, as per Section 7 of
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the Indian Coast Guard Act, 1978 "Every member of the Coast Guard
shall be liable to serve in any part of India as well as outside India".
In ordinary course, the guidelines for transfer referred above have to
be adhered, in administrative exigencies; transfers can be affected in
deviation of guidelines. Apart from that, the petitioner has served
12.4 years in Eastern region, out of which he has served 8.5 years in
Andhra Pradesh, which is his native State. The petitioner having
served in native State, he is supposed to serve in other stations also
as the employment of the petitioner is transferrable service. The
petitioner was trained in different fields like communication,
networking and IT Assistant courses for the benefit of the country
and to discharge his duties effectively. Apart from that, the petitioner
is guilty of misconduct and penalty was imposed on various
occasions by the department for his indiscipline for his service. As
per Section 7 of the Coast Guard Act, the petitioner was deprived of
"good conduct badge" for 4 times, and mulcts of pay and allowance
for 256 days during April 2003 to February 2013 as detailed in
earlier paragraphs. Thus, the petitioner is guilty of misconduct.
However, the transfer is not a punitive, it is only due to
administrative exigency. When the transfer is not punitive, the Court
cannot normally interfere with such transfer. Transfer of an
employee is a prerogative of employer and the same cannot be
challenged in armed forces keeping in view of the operational
requirements. Therefore, the petitioner being an employee in armed
forces is not entitled to claim any special privilege since his transfer
was dependent upon administrative exigency and he completed 3
years 6 months as on date, at the present station.
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The issue of transfer is a prerogative of the employer and in
normal course; the Courts cannot interfere with such transfers. The
Apex Court discussed about the scope of interference of Courts and
settled the law in catena of decisions, held that it is entirely upon the
competent authority to decide when, where and at what point of time
a public servant is to be transferred from his present posting.
Transfer is not only an incident but an essential condition of service.
It does not affect the conditions of service in any manner. The
employee does not have any vested right to be posted at a particular
place. (Vide: "Ramadhar Pandey v. State of U.P.14" "State of U.P.
v. Dr. R.N. Prasad15" "Abani Kante Ray v. State of Orissa16"
An employee holding a transferable post cannot claim any
vested right to work at a particular place as the transfer order does
not affect any of his legal rights and the Court cannot interfere with
a transfer/posting which is made in public interest or on
administrative exigency. In "Gujarat Electricity Board v.
Atmaram Sungomal Poshani17" , the Supreme Court has observed
as under:-
"Transfer of a Government servant appointed to a particular cadre of
transferable posts from one place to the another is an incident of service. No
Government servant or employee of public undertaking has legal right for
being posted at any particular place. Transfer from one place to other is
generally a condition of service and the employee has no choice in the
matter. Transfer from one place to other is necessary in public interest and
efficiency in the public administration."
Transfer of a public servant made on administrative grounds
or in public interest should not be interfered with unless there are
strong and pressing grounds rendering the transfer order illegal on
1993 Supp. (3) SCC 35
1995 (Supp) 2 SCC 151
1995 (Supp) 4 SCC 169
1989 SCR (2) 357
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the ground of violation of statutory rules or on ground of malafide.
(Vide: Union of India v. H.N. Kirtania18)
In view of the law declared in the judgments (referred supra),
the Courts must be slow to interfere with transfer of an employee,
except such transfer is vindictive in nature or tainted by serious
malafides. But in the present case on hand, I have discussed earlier
about the malafides and failure of the petitioner to establish the
malafide either in fact or in law.
No doubt, there is a station criteria under the rules referred
above, but the guidelines for transfers are not statutory in nature.
When the rules are not statutory in nature and not framed under
Article 309 of the Constitution of India, for alleged violation, the
Courts cannot interfere with the transfer and posting orders of
employees.
In "Union of India v. S.L. Abbas19" the Apex Court has
observed that the Government instructions on transfer are mere
guidelines without any statutory force and the Court or Tribunal
cannot interfere with the order of transfer unless the said order is
alleged to have been passed by malice or where it is made in violation
of the statutory provisions.
Similar view has been reiterated by the Supreme Court,
in "Bank of India v. Jagjit Singh Mehta20" observing that the
terms incorporated in the transfer policy for posting of both the
spouses, if in service, at the same place, require to be considered by
the authorities "along with exigencies of administration" and
1989 SCR (3) 397
1993 SCR (3) 427
(1992) 1 SCC 306
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"without any detriment to the administrative need and claim of other
employees".
In "State Bank of India v. Anjan Sanyal21" the Apex Court
held as under:-
"4. An order of transfer of an employee is a part of the service conditions
and such order of transfer is not required to be interfered with lightly by a
court of law in exercise of its discretionary jurisdiction unless the court finds
that either the order is mala fide or that the service rules prohibit such
transfer or that the authorities, who issued the order, had not the
competence to pass the order.
(Emphasis supplied).
It is clear from the law declared by the Apex Court, the transfer
policy does not create any legal right in favour of the employee. It is
settled law that a writ petition under Article 226 of the Constitution
is maintainable for enforcing the statutory or legal right or when
there is a complaint by an employee that there is a breach of a
statutory duty on the part of the employer. Therefore, there must be
a judicially enforceable right for the enforcement of which the writ
jurisdiction can be resorted to. The Court can enforce the
performance of a statutory duty by public bodies through its writ
jurisdiction at the behest of a person, provided such person satisfies
the Court that he/ she has a legal right to insist on such
performance. The existence of the said right is a condition precedent
for invoking the writ jurisdiction. (Vide: Calcutta Gas Company
(Propriety) Ltd. v. State of West Bengal22 and "State of Kerala v.
K.G. Madhavan Pillai23").
AIR 2001 SC 1748
1962 SCR Supl. (3) 1
1988 SCR Supl. (3) 94
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As discussed above, the petitioner has no statutory or legal
right to continue at particular place till completion of station criteria
since the continuation at particular station is not a statutory or legal
right and that the rules or guidelines framed by the Coast Guards
Act are not statutory in nature and those rules are framed for
administrative convenience to affect the transfers of employees
without deviation from any corner and for better appreciation.
Therefore, the petitioner did not possess any statutory legal right, in
such case this Court while exercising power under Article 226 of the
Constitution of India cannot interfere with such transfers.
In view of my foregoing discussion, guidelines for transfers,
chapter - 2, transfer (Authority:CGO 03/2003) (referred above) are
not statutory in nature, thereby the petitioner has no statutory or
legal right to continue at particular station. Consequently, the
transfer of the petitioner to ROC, Kolkata cannot be interfered with
by this Court in view of the law declared by the Apex Court in
various judgments (referred supra). Accordingly, the point is
answered in favour of the respondents and against the petitioner.
P O I N T No.3:
One of the major contentions urged by the petitioner before
this Court is that due to Covid-19 pandamic, it is difficult for him to
shift his old-aged mother and ailing wife from Visakhapatnam to
Kolkata. He raised a specific plea of hardship. But the respondents
denied the same while contending that totally 1349 EPs were
transferred and all of them have complied with the orders and
reported to their next respective units, though some of them are
maintaining children of less than one year age, who are prone to
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serious disease on account of Virus. But the contention of the
petitioner is only hardship while disregarding the administrative
exigency and importance of the petitioner's position.
Even assuming for a moment that the mother and wife of the
petitioner are ailing due to various reasons, it is the duty of the
respondents to provide treatment in the military hospital and such
hospital is available at Kolkata. In those circumstances, at best, the
journey is the only problem for them. Now, the lockdown is lifted;
trains, buses and flights are in operation. Normalcy is restored
throughout the country as on date. Therefore, shifting of 61 years old
mother, who is allegedly ailing and wife of the petitioner is not a
difficult task for the petitioner from Visakhapatnam to Kolkata.
However, the hardship pleaded by the petitioner is not a ground to
cancel the transfer order.
The transfer order may cause great hardship as an employee
would be forced to have a second establishment at a far distant
place, education of his children may be adversely affected, may not
be able to manage his affairs and to look after his family. (Vide:
Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey (referred
supra)
This aspect was also considered by the Apex Court in "State
of Madya Pradesh v. S.S. Kaurav24", wherein it has been held that
it is not permissible for the Court to go into the relative hardship of
the employee. It is for the administration to consider the facts of a
given case and mitigate the real hardship in the interest of good and
efficient administration.
1995 SCC (3) 270
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Therefore, the relative hardship of the employee cannot be a
ground to interfere with the transfer orders passed by the armed
forces.
The Apex Court in "State of U.P. v. Gobardhan Lal25" the
Supreme Court held as under:-
"It is too late in the day for any government servant to contend that once
appointed or posted in a particular place or position, he should continue in
such place or position as long as he desires. Transfer of an employee is not
only an incident inherent in the terms of appointment but also implicit as an
essential condition of service in the absence of any specific indication to the
contra, in the law governing or conditions of service. Unless the order if
transfer is shown to be an outcome of a mala fide exercise of power or
violative of any statutory provision (an Act or rule) or passed by an authority
not competent to do so, an order of transfer cannot lightly be interfered with
as a matter of course or routine for any or every type of grievance sought to
be made. Even administrative guidelines for regulating transfers or
containing transfer policies at best may afford an opportunity to the officer or
servant concerned to approach their higher authorities for redress but
cannot have the consequence of depriving or denying the competent
authority to transfer a particular officer/servant to any place in public
interest and as is found necessitated by exigencies of service as long as the
official status is not affected adversely and there is no infraction of any
career prospects such as seniority, scale of pay and secured emoluments.
This Court has often reiterated that the order of transfer made even in
transgression of administrative guidelines cannot also be interfered with, as
they do not confer any legally enforceable rights, unless, as noticed supra,
shown to be vitiated by mala fides or is made in violation of any statutory
provision."
(Emphasis added).
In view of the law declared by the Apex Court in the judgment
(referred supra), hardship is not a ground to interfere with the
transfer orders.
AIR2004SC2165
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The other contention raised by the learned counsel for the
petitioner is that several employees, who are working at different
places were allowed to continue in the same station in violation of
station criteria and details of those employees who are continuing
after expiry of station criteria are shown in the petition in
paragraph 7 (e) of the petition and they are as follows:
Sl. Name, Rank, Remarks From To Tenure
No No
1 Sunil Kumar Place 09.03.09 21.04.13 4 years 16 years
U, ADH (SA) Vizhinjam 1 month still
04970-W Kerala serving
State: 11
years
2 Kochi 22.04.13 24.05.18 5 years
Kerala 1 month
Beypore 23.05.18 12.05.19 1 Year Served
kerala more
than
tenure in
units and
back to
back unit
Kochi 13.05.19 Still 5½
Kerala serving
2 Gerorge KG Mumbai 30.08.91 30.04.00 9 years 5 Region 15
Philip ADH Kochi ½ years ½ still
(RP) 02183-Q Kerala serving
Served
more
than
tenure in
units
3 Tribhuwan Chennai 13.06.11 13.08.17 6 years 2 Region:
P/ADH (SA), months 10 years
03183-P unit more
than
tenure.
4 B.Siva Kumar, Kochi 13.04.09 07.04.13 4 years Region 9
ADH (RO), 26.03.18 Still 2½ years still
04526-Q serving years. serving
2nd term
in same
station
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5 ABY Mathew, Kochi 13.05.11 06.03.16 5 years Region:
ADH (STD) Kerala 29.04.19 serving 14 years,
04061-L still
serving
2nd term
in same
station
6 KR Ajith Kochi 21.08.07 30.04.00 2 years Region:
Kumar, P/ADH Kerala 22.06.09 01.06.14 9 month 10 year
(RO), 03046-Y 06.05.19 still 5 years still
serving serving serving
3rd term
in same
station
7 P.Manickam Mumbai 17.04.87 31.10.92 5 year Region 15
P/ADH (RP), Mumbai 12.04.04 24.04.11 6 year year still
00732-R Chennai 25.04.11 16.04.17 6 year serving
more
than
tenure in
same
unit.
8 Ck.Sateesh, Beypore 06.04.09 22.04.12 3 years Region 10
P/ADH (WTR), Kerala years still
02644-P serving
10 years
in same
state
AZHEE 23.04.12 27.04.14 2 years
K AL
Kerala
Kochi 04.04.16 Still 4 ½ year
Kerala serving
Continuation of the said persons at single station for 4 years
or 5 years etc., is nothing but discrimination of similarly placed
employees. No doubt, some of the employees are working for more
than 5 years i.e. in excess of station criteria. But the rules permit to
continue them in view of the administrative exigency to share their
knowledge and experience in the office. Therefore, transfer of the
petitioner cannot be held to be discriminatory.
The Supreme Court in "Shilpi Bose v. State of Bihar"
(referred supra) observed as follows:
"In our opinion, the courts should not interfere with a transfer order
which are 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
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has no vested right to remain posted at one place or the other, he is liable to
be transferred from one place to 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 over looked
these aspects in interfering with the transfer orders."
As contended by the respondents, the transfer of the petitioner
is in the public interest and his services are required at ROC,
Kolkata. When such transfer is in the interest of public i.e. to protect
the country being a member of Coast Guard, more particularly while
working as Radio Operator having knowledge in computer
networking/IT Assistant courses, it is nothing but public interest or
administrative exigency, in such case, the Court cannot interfere
with such transfers in view of the law declared in "Shilpi Bose v.
State of Bihar" (referred supra).
In "Somesh Tiwari v. Union of India26", the Supreme Court
observed as follows:
"20. Indisputably an order of transfer is an administrative order. There
cannot be any doubt whatsoever that transfer, which is ordinarily an
incident of service should not be interfered with, save in cases where inter
alia malafide on the part of the authority is proved. Mala fide is of two kinds -
one malice in fact and the second malice in law."
Thus, unless the order is shown to be malafide and not in the
interest of public administration, the Court cannot interfere with
such transfer as held in "National Hydroelectric Power
Corporation Limited v. Shri Bhagwan27"
(2009) 2 SCC 592
2001 (8) SCC 574
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In view of the law declared by the Apex Court in the judgments
(referred supra), none of the difficulties or hardship pleaded by the
petitioner and the discriminatory treatment to similarly placed
persons is not a ground to interfere with the transfer orders passed
by the respondents.
The petitioner is working as coast guard and he is a radio
operator having gained knowledge in computer networking and IT
Assistant courses and the experience of the petitioner is vital. As
such, his services can be utilised by the coast guard department
wherever required depending upon the circumstances or
administrative exigency since the duty of the petitioner being a Coast
Guard is to protect the country and the people of the country. The
petitioner is transferred to Kolkata from Visakhapatnam to share his
knowledge and experience in establishing ROC at Kolkata, such
transfer can certainly be described as transfer in administrative
exigency for sharing his knowledge and experience in establishing
ROC at Kolkata. This is nothing but achieving one of the objectives in
framing guidelines i.e. transfer of employee for sharing knowledge
and experience.
There is a multi-tier arrangement for protection and maritime
security of the country involving the Indian Navy, Coast Guard and
Marine Police of the coastal States and Union Territories. The
surveillance on the high seas is carried out along the limits of
exclusive economic zone (EEZ) by the Navy and the Coast Guard. In
the territorial waters, the Coast Guards protect the Indian interests
with vessels and through aerial surveillance. Coastal patrolling close
to shallow waters is done by State Marine Police. The State's
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jurisdiction extends upto 12 nautical miles in the shallow territorial
waters.
One of the most significant achievements has been the
integration of all maritime stakeholders, including several State and
Central agencies into the new coastal security mechanism. Indian
Navy has established four Joint Operations Centres (JOC) at
Mumbai, Visakhapatnam, Kochi and Port Blair. As a result of
this, there is good coordination, synergy and understanding
between all agencies. All coastal security operations are now
coordinated from the Joint Operations Centre, which are manned
round the clock by Naval and Coast Guard teams. In addition, the
State Marine Police and other agencies such as Customs, Intelligence
Bureau and Ports etc. are also networked with these centres.
Government has initiated several measures to strengthen
Coastal Security, which include improving surveillance mechanism
and enhanced patrolling by following an integrated approach. Joint
operational exercises are conducted on regular basis among Navy,
Coast Guard, Coastal Police, Customs and others for security of
coastal areas including island territories. The intelligence mechanism
has also been streamlined through the creation of Joint Operation
Centers and multi-agency coordination mechanism. Installation of
radars covering the country's entire coastline and islands is also an
essential part of this process. 34 radars stations on the mainland
have been activated. Coast Guard Stations along the coastline are set
up considering the threat perception, vulnerability analysis and
presence of other stations in the vicinity.
Yet, the duty of the coast guard is sensitive and the person
who is working as radio operator has to maintain confidentiality and
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secrecy. When the services are proposed to be utilised in establishing
ROC, at Kolkata recognising his ability, knowledge, experience by the
department irrespective of the previous misconduct of the petitioner
as stated above can be said to be for better administration to meet
the administrative exigencies in the public interest. Therefore, such
transfers cannot be interfered with by this Court as discussed above.
In view of my foregoing discussion, I find that the petitioner
failed to plead and prove any malafide in reformulation of block
transfer and also failed to establish his vested statutory or legal right
and the minor violation in following the transfer guidelines, if any,
can be ignored in view of the public interest and administrative
exigencies. He is also disentitled to claim relief in the petition in view
of the hardship pleaded in the petition while highlighting the
discriminatory treatment. However, in view of Section 7 of the Coast
Guard Act, the service of the petitioner is transferrable and the
transfer is incidence of service. Hence, I find no ground to interfere
with the impugned proceedings. Consequently, the writ petition is
liable to be dismissed. Accordingly, the point is answered in favour of
the respondents and against the petitioner.
In the result, the writ petition is dismissed. No costs.
Consequently, miscellaneous applications pending if any, shall
also stand dismissed.
_________________________________________
JUSTICE M. SATYANARAYANA MURTHY
05.02.2021
Ksp
