Vijender Singh vs Union Of India Nd Ors.
2008 Latest Caselaw 1403 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI


+    WP (C) No. 20079/2005 & CM No.14803/2005


%                               Date of decision: 20.08.2008


VIJENDER SINGH                            ...PETITIONER

                      Through: Mr. Sanjoy Ghose, Advocate
                               With Ms. Pragnya, Advocate .


                           Versus


UNION OF INDIA & ORS.                     ...RESPONDENTS

                      Through: Ms. Preeti Dalal, Advocate
                      (Proxy) for Ms. Manisha Dhir, Advocate


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.   Whether the Reporters of local papers
     may be allowed to see the judgment?           NO

2.   To be referred to Reporter or not?            NO

3.   Whether the judgment should be                NO
     reported in the Digest?

SANJAY KISHAN KAUL, J. (ORAL)

1. The petitioner joined as a Constable in the Indo Tibet

Border Police (ITBP) on 20.08.1990 and as on date has

about 18 years of service. The service profile of the

petitioner shows that the petitioner was on deputation from

25.03.1994 to 11.07.2003 out of which most of the period

was with the Special Protection Group (SPG), Delhi. The

petitioner was posted back with the ITBP on 12.7.2003 and

after 12.08.2003 was posted to Leh where he continued to

serve till July, 2005. The Battalion of the petitioner under

the Unit Rotational Transfer was posted to Delhi in August,

2005 and the petitioner came back with his Battalion.

2. Upon reaching Delhi, the petitioner was soon served

with a transfer order to North-East dated 14.09.2005.

Simultaneously a memo was also issued to the petitioner on

disciplinary ground as he was alleged to have brought

pressure on the respondents for permission to go on

deputation to Intelligence Bureau (IB). It is the case of the

respondents that such deputation in the case of the

petitioner was not permissible as he had not completed the

cooling off period of three years and bringing of political

pressure was improper. The petitioner represented against

his transfer which was not considered favourably in terms

of a decision taken on 21.1.2006.

3. The petitioner, thereafter, filed the present writ

petition seeking quashing of transfer order on the ground

that there was no reason for transferring the petitioner

from Delhi within such a short span. Interim orders were

granted staying the transfer order on 7.10.2005. The

petitioner, thus, continued to serve at Delhi till interim

orders dated 7.10.2005 were vacated as the petitioner has

already served for a period over two years even at Delhi.

The petitioner has now been posted to North-East.

4. Learned counsel for the petitioner, however, insists

that the grievance of the petitioner and the relief sought

have not become infructuous as the petitioner can be

transferred back to Delhi or to any other posting in

accordance with the Transfer Policy of the respondent

annexed to writ petition as Annexure P-1 dated 29.12.2004.

The said transfer policy/guidelines is not in dispute.

5. The affidavits filed by the respondents show that the

same are like shifting stand where the respondents have

been giving different reasons for the transfer of the

petitioner. On the one hand, an affidavit was initially filed

affirmed on 25.10.2005 to the effect that the name of the

petitioner has been sent for selection to the IB erroneously

by overlooking the fact that the petitioner remained on

deputation in SPG, Delhi and has not completed the tenure

of three years as per the deputation policy in force and on

the same being deciphered, the nomination was cancelled.

The second affidavit affirmed on 2.12.2005 states that the

petitioner had tried to use political and outside influence to

go on deputation to IB inviting the provisions of Rule 20 of

the CCS(Conduct) Rules and, therefore, the petitioner was

transferred in terms of the transfer order dated 14.9.2005

and simultaneously a memo was also issued on the same

date. Thus the transfer is effected on punitive ground.

6. In the course of the hearing today as well, learned

counsel for the respondents is unable to state the real

reason as to why the petitioner was so transferred. It has

also not been brought on record nor any record has been

shown to us as to what is the nature of political and outside

influence brought by the petitioner to go on deputation to

IB, nor have any proceedings been held during the last

three years in pursuance to memo dated 14.09.2005. It,

thus, must be assumed that the said memo has been given a

burial.

7. The only question which arises for consideration is

that any further posting of petitioner at the present location

or at a subsequent destination must be in conformity with

the transfer guidelines dated 29.12.2004. In terms of the

said transfer guidelines, the area of deployment is divided

into three categories of extreme hardship, hard areas and

soft areas. The posting of the petitioner in Leh and the

present posting, if taken together, would be almost three

years in extreme hard area and thus the petitioner would be

liable to be posted to an area of a different category.

8. We thus deem it appropriate to direct that when the

next posting of the petitioner becomes due on completion of

the period of three years in extreme hard area, taking the

tenure of the petitioner at Leh and the present tenure into

consideration, the case of posting of the petitioner would be

examined as per the guidelines dated 29.10.2004

uninfluenced by the memo dated 14.09.2005.

9. Petition stands disposed of.

CM No. 14803/2005

The application does not survive for consideration and

is accordingly disposed of.

SANJAY KISHAN KAUL, J.

AUGUST 20, 2008                     MOOL CHAND GARG, J.
mv/dm