Dharam Pal Singh vs Union Of India & Ors.
2012 Latest Caselaw 3692 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Decision: 01.06.2012

+                       W.P.(C) No.3508/2012

Dharam Pal Singh                                ...      Petitioner

                               versus

Union of India & Ors.                           ...      Respondents

Advocates who appeared in this case:

For the Petitioner      :     Mr.Gyanendra Singh

For Respondents         :     Ms.Barkha Babbar

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA


ANIL KUMAR, J.

*

1. The petitioner has sought quashing of order dated 21st June,

2011 by which the petitioner has been transferred out of Northern

Sector to Eastern Zone and further to Tripura. The petitioner has also

sought quashing of order dated 26th September, 2011 relieving the

petitioner to IGP Tripura Sector Headquarter, CRPF. The petitioner

has also sought transfer to 06 Bn. Udhampur, 27 Bn. Delhi, 31 Bn.

Delhi, 151 Bn. Jammu and 187 Bn. Udhampur till the vacancy arises

in Jammu & Kashmir Zone.

2. The plea of the petitioner is that he was enlisted as an Assistant

Sub Inspector (Min), and he is holding the post of Sub Inspector (Min).

He sought transfer to Directorate/103 Bn. RAF/ and any affiliated

unit of Group Centre New Delhi as per procedure. The petitioner has

alleged that he has completed four years of service in the North

Sector. According to the petitioner, a person cannot be retained in the

same Sector for more than 12 years.

3. The petitioner contended that he is the only person who has

been posted out from North Sector to North East Zone Tripura, and he

has already been put in hard postings for more than eight years in

Tripura, Jammu & Kashmir and Naxalite affected area in Bihar.

4. The petitioner has relied on Standing Order No.02/2011.

Guidelines for transfer as contemplated in the Standing Order

No.02/2011 are as under:-

"6 . GU IDELINES FOR T RANSFER

a) Non will be eligible for a second posting to same station unless he/she has completed a cooling off period of six years.

b) The total period of posting in a sector shall not be more than 12 years excluding the choice posting, if any, during the last 2 years of service. Posting in Battalions will not be counted for this sector tenure calculation.

c) As far as possible, efforts should be made by the Zone/sectors/ Ranges to accommodate an official for al least one tenure each in a battalion and in a GC of the same sector.

d) The officials who are due to retire within two years may be considered for terminal posting of their choice as far as possible subject to availability of vacancies provided that the official had not served in that place in the preceding two years.

e) One choice posting will be given to every individual during the entire service period excluding the terminal choice posting. First choice posting may be considered subject to availability of vacancy and other exigencies or service on completion of minimum 7 years of service and at least one hard area posting. Entry regarding choice posting and mutual transfer shall specifically be made in the service book of the official.

f) Husband and wife serving in the Force shall, mandatorily be considered for posting to same place/ station in accordance with GOI, Ministry of personnel Grievances and pensions (DOPT) O.M. No. 28034/2009-Esst.(A) dated 30/09/2009 or at a place which may be covered by overnigh t train journey. Administrative requirement/ exigencies of service will however prevail, if the interest clashes. However , in all such cases wherein the administrative authority is unable to adjust husband and wife at the same station citing administrative grounds, the competent transferring authority should communicate specific reasons to the applicant as per para 5 of aforesaid OM.

g) Mahila personnel should be posted in such a way that their number in one sector/ range/GC is not excessive. They should be posted within the sector/ Range in reasonable equal proportion. The ratio of male and female personnel should be such that it is viable for functioning of administration.

h) To maintain national character of the force, it will be ensured that the percentage from local stable

in each sector/range/GC does not exceed 50% of the total posted strength.

i) The authority competent to issue transfer orders will also ensure that at all times a minimum 20% of Hindi speaking Ministerial staff is posted in the non- Hindi speaking areas and the same minimum percentage of non-Hindi speaking Ministerial staff is posted in the Hindi speaking areas.

j) The request for choice posting from the personnel who have completed tenure in NE region / J&K & LWE areas should be given due consideration, as far as possible.

k) Entry regarding period of attachment with other offices shall be specifically made in the posting particulars and services record of the personnel."

5. According to the petitioner, the provisions of Standing Order

were not followed in the case of the petitioner, and in violation of the

rules, the petitioner was prematurely transferred out of Sector.

6. The petitioner made representations to the concerned

authorities contending, inter-alia, that his son is studying in Class 10

in CRPF Public School, Rohini, New Delhi and his father is residing

with him, who is unable to move himself due to problem and on

account of his old age. He contended that due to domestic problem,

he has settled his family at two places at New Delhi and at Group

Centre Kadarpur (Haryana). At Group Centre Kadarpur, Haryana he

had been allotted a Government accommodation, where he is residing,

and his family resides in a rented accommodation in New Delhi. He

also contends that Group Centre Kadarpur, Haryana does not fall

within NCR as only the normal HRA of 10% and normal transport

allowances are paid to him.

7. According to the petitioner, he requested for posting at any

Range of Delhi but he has been posted to East Zone by the signal

dated 20th June, 2011, which was contrary to his earlier request.

According to the petitioner, the Standing Order No.02/2011

contemplates that an employee has to complete 12 years of service

before he is transferred whereas the petitioner has been transferred

after 4 years from a particular zone.

8. The plea and representation of the petitioner was considered

and was rejected by message dated 2nd August, 2011. The petitioner,

thereafter, made further representation, however, he has been

transferred from Gurgaon Range to the Tripura Sector Headquarter,

CRPF, Agarthala.

9. The main plea of the petitioner appears to be his interpretation

of Standing Order No.02/2011 that a person is not to be transferred

before 12 years from a particular sector as the petitioner has

contended that he has been transferred after four years from a

particular sector.

10. Perusal of the guidelines of the transfer, however, reflects that

there is no such embargo that an employee cannot be transferred

before expiry of 12 years from a particular sector. What is

contemplated under the said order is that the period of posting in a

Sector shall not be more than 12 years excluding the choice posting, if

any, during the last 2 years of service. The officials, who are due to

retire within two years may be considered for terminal posting of their

choice, as far as possible, subject to availability of vacancies provided

that the official has not served in that place in the preceding 2 years.

11. This is not disputed that the petitioner is not due to retire

within two years. The petitioner cannot contend that he cannot be

transfer out of Sector before expiry of 12 years as contended by the

petitioner.

12. This cannot be disputed that the transfer is an incident of

service. The Office Order only contemplates that an employee cannot

be in service in a particular Sector for more than 12 years, however,

reading the entire Standing Order does not lead to any such

inferences as sought to be drawn by the petitioner that a person has

to necessarily stay in a particular Sector for 12 years. Who should be

transferred where, is matter for the appropriate authority to decide.

13. The petitioner has not alleged any mala fide against anyone.

The order of transfer may be vitiated by mala fide or if it is made in

violation of any statutory provision. In the case of the petitioner,

neither any mala fide has been alleged, nor there is any violation of

any statutory provision. The representation filed by the petitioner was

considered and declined. The petitioner is not entitled to make the

representations repeatedly, nor can contend that his representations

had not been considered.

14. Learned counsel for the respondents, Ms.Barkha Babbar, who

appears on advance notice has emphatically contended that the

petitioner cannot insist that he should be transferred to the place of

his choice. As to who should be transferred where is a matter for the

appropriate authority to decide, unless the order of transfer is vitiated

by mala fide or made in violation of statutory provision.

15. On consideration of whether the transfer of the petitioner was

arbitrary, hostile and in mala fide exercise of power, inevitable

inference is that none of these grounds are made out in the case of

the petitioner. The transfer of the petitioner by the respondents, in the

facts and circumstances, is on account of exigency of public

administration and no grievance could be made out by the petitioner.

In any case, in such facts and circumstances, the High Court in

exercise of its jurisdiction under Article 226 of the Constitution of

India is not to interfere with the transfer.

16. In the totality of the facts and circumstances, the writ petition

is, without any merit, and it is, therefore, dismissed.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

JUNE 01, 2012 vk