Delhi High Court
Jayant H. Meshram vs The Director General, Indo ... on 13 July, 2020
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4059/2020
JAYANT H. MESHRAM ..... Petitioner
Through: Mr. Vipin Kumar Yadav, Advocate.
versus
THE DIRECTOR GENERAL, INDO-TIBETAN
BORDER POLICE FORCE & ANR. ..... Respondents
Through: Ms. Shiva Lakshmi, CGSC
% Date of Decision: 13th July, 2020
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
MANMOHAN, J: (Oral)
1. The petition has been heard by way of video conferencing.
2. Present writ petition has been filed seeking a direction to the
respondent not to transfer the petitioner before completion of his daughter's
10th standard exams or at least till the completion of statutory tenure of three
years of his current posting at Central Frontier, Bhopal.
3. Learned counsel for the petitioner states that petitioner's
representations dated 28th May, 2020 and 11th June, 2020 have been
arbitrarily rejected by an unreasoned order by the respondent no.4 in
violation of the Standing Order No. 02/2016 dated 14th September,
2016 - which regulates posting/transfer of Indo-Tibetan Border Police
Force (for short 'ITBP') personnel. He submits that the Standing Order No.
02/2016 dated 14th September, 2016 is mandatory and not directory in
nature.
4. Learned counsel for the petitioner further states that petitioner's
daughter is currently studying in 9th standard in a Bhopal school and setting
up her educational basis for 10th standard examination. He points out that
educational necessity of wards has been mentioned as one of the grounds for
deferment of transfer in 2016 Guidelines governing posting/transfer, more
specifically the wards studying in 9th and 11th standard at the time of
transfer.
5. He lastly submits that the petitioner has been treated differently than
other officers who are similarly situated. In this context, he refers to
the case of Mr. Bhola Nath Sonawan who still continues to be posted in
Northern Frontier, Dehradun against the post of Second-in-Command.
6. In pursuance to the notice issued by this Court, respondents have filed
a short affidavit in which they have stated that the reason for petitioner's
transfer-posting is due to abolition of the post held by the petitioner at the
moment, i.e. Second-in-Command (Telecom) at Bhopal pursuant to Cadre
Review vide order dated 17th May, 2019.
7. It has been clarified that while reshuffling existing and promoted
Second-in-Command (Telecom), the petitioner had been transferred to
Signal Training School, Shivpuri, Madhya Pradesh, which is also a soft area
in accordance with the policy mentioned in the Standing Order No.02/2016.
8. Learned counsel for respondents contends that the petitioner has
nowhere explained as to how his daughter's education will be disrupted
particularly when the Headquarter Central Frontier Bhopal has confirmed
that the petitioner has been allotted Government accommodation (Type-V)
at Bhopal and his wards are availing ITBP School bus to commute between
residence and school.
9. Having heard learned counsel for parties, this Court is of the view that
in accordance with Section 7 of the ITBPF Act, 1992 as well as in
accordance with Para 1(b) of Standing Order No.02/2016, a member of this
force is liable to serve at any place within and outside India.
10. In any event, transfer is an exigency of service. Further, the transfer in
the present case is on account of Cadre Review and abolition of the post
held by the petitioner at Bhopal. Consequently, there is no malice involved
in the present transfer.
11. Admittedly, both Bhopal and Shivpuri are soft areas in accordance
with the Standing Order No.02/2016.
12. As far as the instance of Mr. Bhola Nath Sonawan is concerned, this
Court is of the view that Article 14 of the Constitution is a positive concept
and cannot be enforced in a negative manner. Irregularity and illegality, if
any, cannot be perpetuated on the ground that illegal benefits have been
extended to others. [See Union of India v. M.K. Sarkar, (2010) 2 SCC 59
and Basawaraj and Another Vs. Special Land Acquisition Officer, (2013)
14 SCC 81].
13. Also in accordance with Para 7 of Standing Order No.02/2016, the
request for deferment of transfer on account of education of children is
generally not considered unless the officer is able to substantiate that the
transfer would disrupt the further continuance of studies.
14. In the present case, the respondents have allowed the petitioner to
continue to retain the Government accommodation in Bhopal and his
daughter is admittedly availing ITBP School bus to commute between
residence and school.
15. Consequently, this Court is of the view that on account of transfer of
the petitioner there shall be no disruption of education of his daughter.
16. Accordingly, the present writ petition, being bereft of merit, is
dismissed.
17. The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the learned counsel through e-mail.
MANMOHAN, J
SANJEEV NARULA, J
JULY 13, 2020
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