Irla No. 11112396 Amrit Krishna ... vs The Union Of India And 4 Ors
2021 Latest Caselaw 2021 Gua

                                                                    Page No.# 1/5

GAHC010131042021




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

                          Case No. : WP(C)/4242/2021

         IRLA NO. 11112396 AMRIT KRISHNA SAIKIA
         ASSTT. COMMANDANT, S/O- INDRESWAR SAIKIA, R/O- MIRZAPUR,
         GANAKPARA, P.O. AND P.S. AZARA, DIST.- KAMRUP (M), ASSAM, PIN-
         781017



         VERSUS

         THE UNION OF INDIA AND 4 ORS
         REP. BY THE SECY. OF HOME AFFAIRS, NEW DELHI- 110001

         2:THE DIRECTOR GENERAL
          FHQ BSF
          BLOCK 10 CGO COMPLEX
          LODHI ROAD
          NEW DELHI- 110003

         3:THE INSPECTOR GENERAL
          BSF
         AIR WING
          FHQ BSF
          BLOCK 10 CGO COMPLEX
          LODHI ROAD
          NEW DELHI- 110003

         4:THE INSPECTOR GENERAL
          BSF
          GUWAHATI FRONTIER
          RANI PATGAON
          PIN- 781017

         5:THE COMMANDANT
          BSF
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             AIR WING
             FHQ BSF
             BLOCK 10 CGO COMPLEX
             LODHI ROAD
             NEW DELHI- 11000

Advocate for the Petitioner   : MR. D BORAH

Advocate for the Respondent : ASSTT.S.G.I.




                                   BEFORE
                   HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                             ORDER

Date : 01.09.2021

Heard Mr. D. Borah, learned counsel for the petitioner. Also heard Mr. U.K. Goswami, learned CGC appearing for the respondents.

2) The Petitioner is serving as Assistant Commandant, BSF and is posted at Air Base, Guwahati on 17.10.2017. Pursuant to communication dated 28.11.2020, the competent authority requested the petitioner to provide 4 choices for next place of transfer and posting, the petitioner had responded by providing four choices of posting at (i) Ftr HQ BSF, Guwahati, (ii) Ftr HQ BSF, Meghalaya, (iii) 182 Bn. BSF, Nagaland, and (iv) 113 Bn. BSF, Nagaland vide representation dated 14.12.2020. On 14.12.2020, the petitioner had also submitted a representation before the respondent no. 2 to grant him extension of 1 (one) year at Air Base Guwahati by citing the medical condition of his aged father and other family problems suffered by him. The petitioner had also submitted another representation dated 14.12.2020, for DG's open day interview. However, by the impugned Pers Signal No. R/3238 dated 01.06.2021, Page No.# 3/5

the respondent authorities had transferred and posted the petitioner to 146 Bn. BSF, located at Western Zone, Rajouri Sector, Jammu Frontier, Jammu & Kashmir. Accordingly, the petitioner was relieved on 20.06.2021, by the issuance of the order dated 21.06.2021. Thereafter, departure order dated 26.07.2021 was issued, however, by the said order, it was also informed that the petitioner was sanctioned 30 days EL on extreme compassionate ground.

3) The learned counsel for the petitioner has verbally submitted that the leave period was extended till date. It is also submitted that the petitioner had submitted a representation dated 16.08.2021, which had not been addressed. By referring to para 5(h) of the order dated 18.05.2010, it is submitted that cases requiring specialized medical care are to be considered/ recommended for posting at places having commensurate medical infrastructure/ facilities. It is also submitted that as per Order dated 05.09.2016, the respondent authorities were required to consider the case on medical ground. In this regard, it is further submitted that the aged father of the petitioner is suffering from severe anemia, gastro-intestinal bleeding under evaluation, hyperthyroidism, gout, cardio-vascular diseases, early features of dementia and emotional lability and the attending doctor had also advised that the petitioner's father needs support and care of family members. Accordingly, it is submitted that the petitioner has assailed the transfer order dated 01.06.2021 and subsequent orders dated 21.06.2021 and 26.06.2021 and he has also prayed for interim relief of staying the operation of the said transfer orders.

3) The projection by the petitioner is that despite 4 (four) choices given by the petitioner, he was posted in 146 Bn. BSF, located at Western Zone Page No.# 4/5

appears to the Court to be an issue which would require determination, as such, issue notice returnable on 27.09.2021. As all the respondents are represented, requisite extra copies of the writ petition be furnished to the learned CGC within 2 (two) days.

4) Considered the prayer for interim relief. 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 and 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 Vs. Deepak Niranjannath Pandit, 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.

5) 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 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 Page No.# 5/5

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).

5) Therefore, as transfer is an incidence of service, the Court is not inclined to stay the transfer and posting order in respect of the petitioner, who is the member of a disciplined force. There is no material on record from which it would appear that illness of aged parents is covered by guidelines issued by the BSF to be a factor which would dissuade the respondent authorities from transferring the petitioner. There is also no material on record to show that medical infrastructure/ facilities under Western Sector are not commensurate to the facilities available in this North Eastern India. Therefore, in light of the discussions above, the Court is not inclined to grant any ad interim relief to the petitioner at this stage.

6) List on 27.09.2021, on which date the respondents should promptly file their affidavit-in-opposition.

JUDGE

Comparing Assistant