Delhi High Court
Praduman Kumar Singh vs Union Of India And Ors on 8 July, 2024
Author: Rekha Palli
Bench: Rekha Palli
$~100
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 08.07.2024
+ W.P.(C) 8975/2024
PRADUMAN KUMAR SINGH .....Petitioner
Through: Mr. M.M. Kashyap, Ms. Mona, Mr.
Rashid Imran, Mr. Yashvardhar
Sharma and Mr. Amanulla Irfan,
Advs.
versus
UNION OF INDIA AND ORS. .....Respondents
Through: Mr. Nitinjya Chaudhry, Mr. Gokul
Sharma, Mr. Rahul Mourya, Advs.
with SI Prahlad Devendra, SI A.
Mohan and SI Amit.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
REKHA PALLI, J (ORAL)
W.P.(C) 8975/2024 and CM APPL. 36645/2024--stay
1. The present writ petition under Article 226 of the Constitution of
India seeks to assail the order dated 20.05.2024 vide which the petitioner,
who is serving as a Head Constable in the Central Industrial Security Force
[CISF] has been transferred from ISP(B) Burnpur, West Bengal to ASG,
Chandigarh and has been directed to report at his new place of posting by
30.06.2024.
2. The primary submission of learned counsel for the petitioner is that
out of his 30 years of service, the petitioner has already served for 16 years
and 10 months in 'out of home sector' and is, therefore, as per the applicable
transfer policy, entitled to 'home sector' posting as his daughter and son are
of marriageable age being 28 and 26 years old respectively and, therefore,
he ought to be posted closer to his hometown to look for suitable matches.
He contends that once the respondents have themselves issued a Circular
dated 25.09.2017 laying down the transfer policy, they are bound to follow
the same.
3. By drawing our attention to para 12 of the Circular dated 25.09.2017,
he submits that CISF personnel are required to serve in the 'out of home
sector' for a maximum period of 13 years in their entire service career, with
7 years in the first tenure and 6 years in the third tenure, with the intervening
second tenure of 12 years in the 'home sector'. The petitioner having
already served in 'out of home sector' for an additional 3½ years than the
prescribed period of 13 years, he is entitled to be posted to his home sector.
4. On the other hand, Mr. Nitinjya Chaudhry, learned counsel for the
respondents opposes the petition by urging that even though the circular
dated 25.09.2017 lays down the guidelines to be generally followed for
transfer of personnel, the guidelines contained therein are not mandatory but
are in the nature of guiding factors to be taken into account while deciding
the postings. Even otherwise, the circular relied upon by the petitioner in
itself provides in para 10(c) and 39 (xix) and (xx) that notwithstanding the
guidelines contained therein, any personnel may be posted anywhere at any
stage by the competent authority without assigning any reason without these
guidelines coming in the way of such transfer/posting. In support of his plea
that the transfer policy was only directory in nature and no vested right is
created in favour of any personnel to claim posting on the basis of the said
circular, he places reliance on the decision of the Apex Court in Punjab and
Sind Bank & Ors. vs. Durgesh Kumar [(2020) 19 SCC 46].
5. Furthermore, being conscious of the transfer guidelines which provide
for home sector posting at regular intervals, the respondents made every
effort to accommodate the petitioner in his home sector but taking into
account the large number of personnel who were required to be
accommodated in their respective home sectors, it was found that the
petitioner was lower in merit based on the cumulative 'Net Out of Home
Sector Posting' period, which calculation was based on the Notes 1 and 2 to
para 12 of the policy. Consequently, due to service exigencies he was
posted to Chandigarh where all medical facilities for treatment of his father
is available. He, therefore, prays that the writ petition be dismissed.
6. Having considered the submissions of the learned counsel for the
parties, we find that the only submission of learned counsel for the petitioner
is that the petitioner's transfer to the 'out of home sector' was impermissible
at this stage being contrary to para 12 of the policy. His plea being that
since the petitioner has already completed both his tenures of 7 years and 6
years in the 'out of home sector', he is by way of his fourth tenure entitled to
'home sector' during the remaining period of his service. Per contra, learned
counsel for the respondents has urged that these guidelines are not
mandatory and in any event the petitioner was lower in the merit list for
which purpose reliance has been placed on the 'Notes 1 & 2' to para 12 of
the guidelines.
7. Thus, what emerges is that both sides have relied on the same Circular
and therefore, it would be apposite to note the relevant extracts of the
Circular dated 25.09.2017 which lays down the guidelines for
posting/transfer of CISF personnel. The same read as under:-
"10. (c) It is again clarified that these guidelines would only serve as broad
parameters for posting the personnel, but the final decision will rest with the
competent authorities in CISF and will be governed by the operational and
administrative necessities of the Force."
.... .... ....
12. TENURE OF POSTING
The Out of Home Sector(OHS) and Home Sector(HS) tenure for posting in
respect of NGOs are subject to availability of vacancies, operational and
administrative needs and new inductions. The details are as follows:
OUT OF HOME SECTOR/HOME SECTOR TENURE FOR CONSTABLEs,
HCs, ASIs, SIs & INSPECTORs OF ALL SECTORS EXCEPT FOR
EXCEPTIONS MENTIONED IN THIS CIRCULAR
BASIC TRAINING PERIOD: NEITHER TO BE COUNTED IN
HOMESECTOR NOR OUT OF HOME
SECTOR
a) 1st Tenure-07 Years in Units in Out of Home Sector
(excluding basic training)
b) 2nd Tenure- 12 Years in Units in Home Sector
c) 3rd Tenure- 06 years in Out of Home Sector
d) 4th Tenure (Remaining Service)- Home Sector"
.... .... ....
Note:
1. During the Inter Sector Transfer for 3rd tenure the Individuals shall be
asked their choice of Out of Home Sector(OHS) from among the existing OHSs
by giving their preference for the OHSs in the order of priority and efforts shall
be made to accommodate their Out of Home Sector(OHS) choices on merit
subject to availability of vacancies.
Explanation
(i) Merit shall be based on the duration of OHS (in months) already served.
(ii) In case of tie, preference would be given to those having higher age. If
there is still tie between two or more personnel, the preference will be given
to those who have joined CISF earlier (Date of joining).
2. Home Sector posting will be considered subject to vacancies in Home Sector
(Vacancies would be calculated availability of with stipulation that the Sector
should not have more than 60% of HS personnel). This shall be applicable for
both HS tenures (2nd and 4th tenures)
.... .... ....
39. GENERAL
.... .... ....
(xix) These are only broad guidelines for posting and transfer of CISF
personnel.
(xx) Notwithstanding the guidelines contained in this circular, any personnel
may be posted anywhere at any stage by the competent authority without
assigning any reason and these guidelines shall not come in the way of such
transfer/posting."
8. From a perusal of para 10(c) and para 39 (xix) and (xx) of the
Circular, it is evident that the Circular clearly prescribes that the guidelines
contained therein would serve only as broad parameters and the final
decision of posting will be governed by the operational and administrative
necessities of the force. It has also been made clear that despite the
guidelines prescribing for rotation of tenures between 'home sector' and 'out
of home sector', any personnel may be posted anywhere at any stage by the
competent authority without assigning any reasons. When the policy in
itself makes it clear that despite these guidelines, the force personnel may be
posted anywhere in operational and administrative necessities of the force,
we are unable to accept the petitioner's plea that merely on account of these
guidelines, he could not be posted to an 'out of home sector' posting after he
had already completed more than 13 years of 'out of home sector' postings.
9. Even otherwise, in our considered view, it is trite law that such
guidelines to regulate transfers are only in the nature of laying broad
parameters of the manner in which postings are to be directed. The same
cannot be treated as mandatory and cannot entitle any employee to claim
that he must be posted only in accordance with the tenures specified therein.
In this regard, reference may be made to the observations of the Apex Court
contained in para 17 of the decision in Punjab and Sind Bank & Ors.
(supra), the same read as under:-
"17. We must begin our analysis of the rival submissions by adverting to the
settled principle that transfer is an exigency of service. An employee cannot
have a choice of postings. Administrative circulars and guidelines are
indicators of the manner in which the transfer policy has to be implemented.
However, an administrative circular may not in itself confer a vested right
which can be enforceable by a writ of mandamus. Unless an order of
transfer is established to be mala fide or contrary to a statutory provision or
has been issued by an authority not competent to order transfer, the Court
in exercise of judicial review would not be inclined to interfere. These
principles emerge from the judgments which have been relied upon by the
appellants in support of their submissions and to which we have already
made a reference above. There can be no dispute about the position in law."
10. Furthermore, even though we are of the considered view that the
petitioner has no right to claim that he must be granted 'home sector
posting' merely on the basis of the tenures provided in the policy, we have
also considered the respondents' plea that upon application of the formula
mentioned in the 'Note' to para 12 of the Circular, the petitioner was found
to be lower in merit and therefore could not be adjusted in the 'home sector'.
Since it emerges that the respondents have, after considering all eligible
personnel for 'home sector posting', found that based on the tenure of his
'out of home sector' posting, the petitioner was lower in merit, we are of the
view that the respondents have acted fairly and therefore, there is no reason
for this Court to interfere with the administrative decision taken by the
respondents to transfer the petitioner to Chandigarh.
11. Before we conclude, we may also deal with the petitioner's
submission that on account of his daughter and son being of marriageable
age, he ought to be posted closer to his hometown to look for suitable
matches for them. We, however, find absolutely no merit in this plea. The
petitioner is being posted to Chandigarh and there is no reason as to why, if
he so desires, he cannot look for suitable matches for his adult children
while posted there. In any event this desire of the petitioner to be in his
hometown to look for suitable matches for his children cannot be a ground
to ignore the administrative exigencies of the force.
12. We, therefore, find no merit in the writ petition which is, accordingly,
alongwith the accompanying application, dismissed.
(REKHA PALLI)
JUDGE
(SHALINDER KAUR)
JUDGE
JULY 08, 2024
SU
