Ct/Gd Raju Gogoi vs The Union Of India And 5 Ors
2021 Latest Caselaw 1948 Gua

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GAHC010189822020




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/5732/2020

         CT/GD RAJU GOGOI , FORCE NO. 065137204
         S/O- BHUPEN GOGOI, PRESENTLY POSTED AT OFFICE OF THE DY.
         INSPECTOR GENERAL OF POLICE, GROUP CENTRE, GUWAHATI,
         AMERIGOG, KHANAPARA, GHY, KAMRUP (M), ASSAM, PIN- 781023



         VERSUS

         THE UNION OF INDIA AND 5 ORS
         REP. BY THE SECY., MINISTRY OF HOME AFFAIRS, NEW DELHI- 110003

         2:THE DIRECTOR GENERAL
          CENTRAL RESERVE POLICE FORCE
          CENTRAL GOVT. OFFICE COMPLEX
          NEW DLEHI- 110001

         3:THE SPECIAL DIRECTOR GENERAL
          NORTH EAST ZONE
          CENTRAL RESERVE POLICE FORCE
         AMERIGOG
          GHY-23

         4:THE INSPECTOR GENERAL OF POLICE
          NORTH EASTERN SECTOR CENTRAL RESERVE POLICE FORCE
          SHILLONG MEGHALAYA
          PIN- 793001

         5:THE DY. INSPECTOR GENERAL OF POLICE
          CENTRAL RESERVE POLICE FORCE
          GROUP CENTRE
         AMERIGOG
          GHY-23
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             6:THE COMMANDANT
              GROUP CENTRE
              GUWAHATI
              CENTRAL RESERVE POLICE FORCE
             AMERIGOG
              GHY
              KAMRUP (M)
             ASSAM
              PIN- 78102




                                              BEFORE
                     HON'BLE MR. JUSTICE KALYAN RAI SURANA

           For the petitioner    : Mr. R.K. Mazumdar.
           For the respondents   : Mr. K.K. Parasar.

           Date of hearing       : 18.08.2021.
           Date of judgment      : 24.08.2021.



                                     JUDGMENT AND ORDER
                                                  (C.A.V.)

Heard Mr. R. Mazumdar, learned counsel for the petitioner and Mr. K.K. Parashar, learned counsel for the respondents.

2) Aggrieved by the posting of the petitioner at 178 Battalion, Central Reserve Police Force (hereinafter referred to as "178 Bn. CRPF"), the petitioner has filed this writ petition under Article 226 of the Constitution of India.

3) In order to explain the administrative set-up of the CRPF, the learned counsel for the petitioner has submitted that the Country is divided into several Zones, and that each Zone is again sub-divided into various Sectors, and that each Sector is further sub-divided into several Ranges. It is submitted that Page No.# 3/11

for the purpose of transferring Non-Gazetted (Executive/ Technical/ Tradesmen) Force Personnel including Mahila Personnel, the CRPF follows Standing Order No. 07/2015 dated 04.08.2015, under No. T.IX-1/2015-Estt. It is further submitted that as per the said Standing Order, the competent authority to order transfer in respect of non-gazetted Executive personnel, (i) the Respective Range DIG are competent to issue transfer orders within Range; (ii) respective Sector IsGP are competent to issue transfer orders within Sector; (iii) Special DG/ ADG Zone are competent to issue transfer orders within Zone; and (iv) for Inter-Zone transfer, the Transfer Committee comprising of DIG (Estt.) and DIsGP (Adm) of all Zones will supervise and ensure fair balance across Zones.

4) The case of the petitioner, in brief, is that the petitioner had joined CRPF in the year 2006 and he had served in various locations since then. From 12.06.2006 to 10.11.2007, the petitioner was at Group Centre ("GC" for short), Guwahati located at Amerigog, Guwahati, which is categorized as "Static- Hard" location. From 10.11.2007 to 31.05.2008, he had served at 75 Bn., located at Aizawl, Mizoram, which is a "Field - Hard" location. From 31.05.2008 to 03.08.2014, the petitioner was posted at 75 Bn., located at Srinagar (J&K), which is a "Field - Hard" location. From 03.08.2014 to 12.12.2015, the petitioner was posted at 152 Bn., having attachment in Assam, but located at ITI Complex, Shastri Nagar, New Delhi, which is a "Field - Hard" location. From 12.12.2015 to 07.06.2016, the petitioner was posted at 149 Bn., located at Joysagar, Assam, which is a "Field - Static" location. From 07.06.2020 to 10.07.2020, the petitioner was posted at North East Zone, with attachment at Group Centre, Guwahati, which is a "Static- Hard" location. From 10.07.2020 till 12.12.2020, the petitioner was continued to be posted at North East Zone, with Page No.# 4/11

attachment at Group Centre, Guwahati.

5) The learned counsel for the petitioner has submitted that while he was on attachment at Guwahati Office of CRPF, NEZ, the competent authority of the respondent had recommended the petitioner to be posted either to Group Centre, Guwahati, or 119 Bn., CRPF vide Signal No. T.IX-09/2019-NEZ-DA- 1(Estt) dated 29.09.2019. In the said order, the name of the petitioner appears at serial no. 107. However, the authorities had not released the petitioner from his attachment duty. Thereafter, by the order dated 08.10.2020, impugned herein, the DIG (Adm), North East Sector had posted the petitioner to 178 Bn., CRPF, currently located at Kashmir. The name of the petitioner appears at serial no. 28. The petitioner had submitted his representation on 13.11.2020, praying for deferment of his transfer for 2 (two) years on the ground that he was the father of a girl child who was 6 (six) months old and that his wife is suffering from post delivery complications and that there was no other male member in his family. The learned counsel for the petitioner has submitted that for the last 14 years of service, the petitioner had never made any request for not transferring him at any place of posting and that he had served hard area posting during most of his service period.

6) As the representation of the petitioner was not considered by the authorities, the petitioner had approached this Court by filing W.P.(C) 5466/2020. However, the competent authority had rejected his representation and as such the petitioner withdrew his writ petition with liberty to approach again. Accordingly, this writ petition had been filed.

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7) It is further submitted that the petitioner had given an option to be posted at Group Centre, Guwahati/ 119 Bn. and accordingly, vide Signal/Selo No. T.IX-09/2019-NEZ-DA-1(Estt) dated 29.09.2019, approval was granted by the competent authority for Inter-Sector (within Zone) transfer of the petitioner to be posted at Group Centre, Guwahati/ 119 Bn. Accordingly, it is submitted that had the petitioner been transferred in terms of Signal/ Selo dated 29.09.2019, he would have remained in Guwahati. However, the DIG(Adm), NES, CRPF, instead of transferring and posting the petitioner as per Signal/Selo dated 29.09.2019, had shown as if he was transferred within North East Sector, but had actually transferred him to 178 Bn., CRPF, which though under North East Sector, is actually located at and operating in the State of Jammu & Kashmir.

8) Accordingly, the learned counsel for the petitioner has submitted that not necessarily all Battalions of one Sector would be operating in nearby areas. In this case, although 178 Bn. is placed under North East Sector, it is located at and operating in the State of Jammu & Kashmir. Therefore, by such transfer, the petitioner suffers double jeopardy, firstly, he is deemed to have exhausted his only one-time career opportunity with CRPF to have a choice posting, and secondly, he would never be getting home sector in his career.

9) Per Contra, the learned CGC has submitted that transfer is an incidence of service and that which personnel is to be transferred in which location was the sole prerogative of the competent authority of the employer. It is submitted that the CRPF is engaged in law and order duty throughout the Country and has facilities in majority of areas to take care of new-born child and Page No.# 6/11

to take care of family. It is submitted that as projected by the petitioner, in his fifteen years of service, the petitioner has served in North Eastern States for about 8 years and nine months, and he had served about 6 years and nine months outside the North East Zone. By producing the office note-sheet, it is submitted that the representation submitted by the petitioner was considered and rejected by the Inspector General of Police, CRPF, NEZ. It is submitted that CRPF, being a police force, the Court may not like to interfere with transfer orders if there is no violation of statutory rules.

10) Considered the writ petition, affidavit-in-opposition and two files produced by the learned CGC relating to transfer order and consideration of the representation submitted by the petitioner.

11) The Court is conscious of the various decisions of the Supreme Court of India, cautioning against grant of stay of transfer of employees including Armed Forces, Para-military forces and Police Force. In this regard, reference may be made to the following cases, viz., (1) Union of India & Ors. Vs. S.L. Abbas, (1993) 4 SCC 357, (2) Major General J.K. Bansal Vs. Union of India & Ors., (2005) 7 SCC 227, (3) Union of India & Anr. Vs. Deepak Niranjannath Pandit, Manu/SC/0149/ 2020: AIR 2020 SC 1492 , (4) S.C. Saxena Vs. Union of India and others, (2006) 9 SCC 583 , (5) State of Haryana Vs. Kashmir Singh (2016) 13 SCC 306.

12) It would be relevant to quote the observations of the Supreme Court of India in the case of S.L. Abbas (supra), which is as follows:-

7. Who should be transferred where, is a matter for the appropriate Page No.# 7/11

authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the Government employee a legally enforceable right.

8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Art. 226 of the Constitution of India in service matters. This is evident from a perusal of Art. 323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Art. 323-A. (We find it all the more surprising that the learned single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction). The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).

13) The herein before referred cases are distinguishable on facts and in law. In the said cases, the Courts/ Tribunals were appreciating the transfer in light of the guidelines, referred to. However, in the present case in hand, the petitioner is found to have been deprived of his right of home-State posting as well as choice posting in terms of the Standing Order No. 07/2015, which has statutory force as indicated herein before. Therefore, the Standing Orders of CRPF, which are/were issued by the competent authority of CRPF, are not mere guidelines.

14) It is not disputed in the affidavit-in-opposition that the petitioner Page No.# 8/11

had given an option to be posted at Group Centre, Guwahati/ 119 Bn. Therefore, by Signal/Selo No. T.IX-09/2019-NEZ-DA-1(Estt) dated 29.09.2019, approval was granted by the competent authority for Inter-Sector transfer of the petitioner to Group Centre, Guwahati/ 119 Bn. Thus, the learned counsel for the petitioner is correct in stating that had the petitioner been transferred in terms of the herein before referred Signal/ Selo dated 29.09.2019, the petitioner would have remained in Guwahati, in accordance with his choice posting. However, the competent authority had transferred and posted the petitioner to 178 Bn., CRPF, which though under North East Sector, is actually located at and operating in the State of Jammu & Kashmir. Thus, the petitioner is correct in asserting that by Signal/Selo dated 29.09.2019, it was projected as if he was transferred within North East Sector, but had actually transferred to location at Jammu and Kashmir.

15) The learned CGC has not produced any material to show that by his transfer to 178 Bn., CRPF, the petitioner is not deemed to have exhausted his only one-time career opportunity with CRPF to have a choice posting. The learned CGC has also not been able to show any material that by his transfer and posting at 178 Bn., CRPF, the petitioner would be entitled to home State posting in rest of his career with CRPF in his home sector.

16) In this case in hand, the petitioner has demonstrated that as per Order No. T.IX-09/2019-NEZ-DA-1(Estt) dated 29.09.2019, the competent authorities had indicated that the petitioner had made a request for place of posting at GC GTY/119 under NES (i.e. Group Centre Guwahati/ 119 Bn. CRPF. However, as per the contents thereof, it was also provided that further posting Page No.# 9/11

(wherever applicable) may be decided in accordance with SO-07/2015 at the earliest. Therefore, it was open to the competent authority to transfer the petitioner in any Battalion under North East Sector.

17) Thus, the only question that falls for consideration is whether by his transfer and posting at 178 Bn., the petitioner would stand to forfeit his option for a choice posting, which the petitioner claims that is available only one time in his career with CRPF, and the corollary question is whether by his posting at 178 Bn., CRPF, the petitioner would forfeit an opportunity to be posted in his home State in rest of his career with CRPF. The answer to this would be an emphatic "no". When in the set up of CRPF, a particular Sector may have its Battalion at various locations in the Country, when the petitioner had specifically opted for posting in GC GTY/119 under NES (i.e. Group Centre Guwahati/ 119 Bn. CRPF, this is with full knowledge and intention to serve in a particular area of operation and under such circumstances, when the respondents have taken a conscious decision to transfer and post him at 178 Bn. under NES, the CRPF administration and authorities are fully aware that though the petitioner is technically under North East Sector, he would be posted in Jammu and Kashmir. Under such circumstances, the Court is unable to accept that the petitioner would forfeit his option to serve in Home State and/or to have a choice posting at least once in his career in terms of the Standing Order No. 07/2015.

18) In the considered opinion of the Court, the Standing Orders issued by the competent authority of the CRPF have statutory force. The power and authority to issue Standing Order can be traced to the provisions of Rule 4 of Page No.# 10/11

the CRPF Rules, 1955 which provides as follows:-

"4. Powers of the Central Government and Certain Officers of the Force.-

(a) In all cases not specifically provided for in these rules, instructions issued from time to time by the Central Government or the Director General or under his directions by the Additional Director General or the Inspector General shall regulate working of the Force."

19) That while not interfering with the order of transfer of the petitioner to 178 Bn., CRPF, under the facts and circumstances of the case, the Court is inclined to mould reliefs in this writ petition and in view of the fact that the petitioner had opted for his transfer and to be posted at Group Centre, Guwahati/ 119 Bn., CRPF and not to 178 Bn., CRPF, the Court is inclined to issue mandamus upon the respondents, thereby directing the respondents to ensure that next time the petitioner is not deprived of his option to serve in Home State and/or to have a choice posting at least once in his career in terms of the Standing Order No. 07/2015. Considering that the petitioner has been wrongly deprived of home-State posting, in violation of the Standing Order No. 07/2015, the respondents are also jointly and severally directed to implement this order as and when orders are next passed for the transfer of the petitioner. The respondents are also directed to ensure that the petitioner is not made to suffer the mischief, as in the present case, where though the petitioner was transferred to NES, but posted in a location which is located in the State of Jammu & Kashmir, which is outside the territory of the State of Assam.

20) The respondent authorities shall provide at least one month's time to the petitioner from the date of this order to report at his place of posting without any adverse remarks whatsoever.

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21) This writ petition stands partly allowed to the extent as indicated above.

JUDGE

Comparing Assistant