Kerala High Court
Divyamol.R.S vs The Director General on 30 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Tuesday, the 30th day of November 2021 / 9th Agrahayana, 1943
WA NO. 1596 OF 2021
AGAINST JUDGMENT DATED 22.11.2021 IN WP(C) 18244/2021 OF THIS COURT.
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APPELLANT/PETITIONER:
DIVYAMOL R.S., ASSISTANT SUB INSPECTOR
(MINISTERIAL - 073260253), PRESENTLY RESIDING AT QUARTER NO.A-38,
FACT TOWNSHIP, ELOOR, UDYOGAMANDAL, ERNAKULAM,
KOCHI, PIN-683 501.
BY ADVS.M/S.T.SANJAY, G.SANIL KUMAR & MIDHUN R.
RESPONDENTS/RESPONDENTS:
1.THE DIRECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE,
CISF HEAD QUARTERS,13 CGO COMPLEX,LODHI ROAD,NEW DELHI-110 003.
2.THE INSPECTOR GENERAL (SOUTH SECTOR),
CENTRAL INDUSTRIAL SECURITY FORCE,
CHPT CAMPUS, CHENNAI, PIN-600 009.
3.THE DEPUTY INSPECTOR GENERAL (SOUTH ZONE),
CENTRAL INDUSTRIAL SECURITY FORCE, BASANT NAGAR,
CHENNAI, PIN-600 090.
4.THE GROUP COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE,
CISF GROUP HEAD QUARTERS COCHIN, BLOCK-C, KENDRIYA BHAVAN,
CSEZ P.O.,COCHIN,ERNAKULAM DISTRICT,KERALA,PIN-682 037.
5.THE DEPUTY COMMANDANT, CISF UNIT BPCL-KR, IRUMPANAM P.O.,
ERNAKULAM, KERALA, PIN-682 309.
P.T.O.
6.UNION OF INDIA,REPRESENTED BY THE SECRETARY
TO GOVERNMENT OF INDIA,MINISTRY OF HOME AFFAIRS,
NEW DELHI,PIN-110 003.
7.THE SECRETARY,MINISTRY OF PERSONNEL,
PUBLIC GRIEVANCES AND PENSIONS,GOVERNMENT OF INDIA,
NEW DELHI-110 001.
8.ANURAG SHARMA,ASSISTANT COMMANDANT,
CISF UNIT BPCL COCHIN,ERNAKULAM,
KERALA,PIN-682 309.
BY ASSISTANT SOLICITOR GENERAL OF INDIA SRI.S.MANU FOR R1 TO R7.
ADV.SRI.BENNY P.THOMAS FOR R8.
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the operation of the impugned judgment dated 22.11.2021 of the
Learned Single Judge in W.P.(C) No.18244/2021, pending final disposal of
the above Writ Appeal.
This Writ Appeal coming on for admission on 30/11/2021 upon perusing
the appeal memorandum, the court passed the following:
P.T.O.
EXT.P4 IN W.P.(C) NO.18244/2021:TRUE COPY OF CISF UNIT BPCL COCHIN
CHARGE MEMORANDUM BEARING NO (523) DATED 30.3.2021
ISSUED UNDER THE SIGNATURE OF THE 8TH RESPONDENT.
EXT.P5 IN W.P.(C) NO.18244/2021:TRUE COPY OF THE FINAL
ORDER NO.(654) DATED 21.4.2021 ISSUED UNDER THE
SIGNATURE OF THE 8TH RESPONDENT.
EXT.P6 IN W.P.(C) NO.18244/2021: TRUE COPY OF THE COMMUNICATION
NUMBER (5335) DATED 22.5.2021.
EXT.P14 IN W.P.(C) NO.18244/2021: TRUE COPY OF THE RECORD OF
COUNSELLING REGISTER REGARDING DETAILS OF COUNSELLING
HELD ON 2.8.2021 (SL NO.99) .
EXT.P16 IN W.P.(C) NO.18244/2021: TRUE COPY OF THE ORDER NO.87/21
DATED 3.9.2021 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT.
EXT.P18 IN W.P.(C) NO.18244/2021: TRUE COPY OF MOVEMENT
ORDER NO(4548) DATED 4.9.2021 ISSUED BY THE 5TH RESPONDENT.
EXT.P20 IN W.P.(C) NO.18244/2021:TRUE COPY OF THE DOPT OFFICE
MEMORANDUM DATED 30.9.2009.
EXT.P21 IN W.P.(C) NO.18244/2021:TRUE COPY OF CISF HEAD QUARTERS
NEW DELHI LETTER NO (1489) DATED 17.3.2021.
EXHIBIT R4(e) IN W.P.(C) NO.18244/2021:TRUE COPY OF JUDGMENT
DATED 05.07.2017 IN WP(C) NO.16682 OF 2017
OF THIS HON'BLE COURT.
EXT.P3 IN W.P.(C) NO.16682/2017:PHOTOCOPY OF THE TRANSFER ORDER
DATED 16/03/2017 ISSUED BY THE 3RD RESPONDENT.
P.T.O.
EXT.P4 IN W.P.(C) NO.16682/2017:TRUE COPY OF THE
OFFICE MEMORANDUM DATED 30.09.2009.
EXT.P5 IN W.P.(C) NO.16682/2017: TRUE COPY OF THE CERTIFICATE
DATED 07.03.2017 ISSUED BY THE FERTILIZERS AND CHEMICALS
TRAVANCORE LIMITED.
EXT.P6 IN W.P.(C) NO.16682/2017: TRUE COPY OF THE REPRESENTATION
DATED 18/03/2017 SUBMITTED BY THE PETITIONER.
EXT.P7 IN W.P.(C) NO.16682/2017:TRUE COPY OF THE JUDGMENT
IN WRIT PETITION 9392/2017 DATED 20.03.2017.
EXT.P8 IN W.P.(C) NO.16682/2017:TRUE COPY OF THE HANDWRITTEN REQUEST
DATED 17.04.2017 AS DIRECTED BY THE 1ST RESPONDENT.
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ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
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W.A.No.1596 of 2021
(Arising out of the judgment dated 22.11.2021
in W.P.(C) No.18244 of 2021)
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Dated this the 30th day of November, 2021
ORDER
Admit Writ Appeal.
2. Sri.S.Manu, learned Assistant Solicitor General of India, has
taken notice for official respondents 1 to 7 and Sri.Benny P.Thomas,
learned Advocate, has taken notice for contesting respondent No.8 in
the W.A. Service complete.
3. It is urged by Sri.T.Sanjay, learned counsel appearing for the
appellant in W.A./Writ Petitioner, that the impugned order of transfer
at Ext.P16 dated 3.9.2021 whereby the appellant has been ordered to be
transferred from the current station at Kochi, Kerala to the far away
CISF unit ONGC Narsapur in Telangana State, which is about 1500
kms. away, is illegal, improper and arbitrary and is malafide for reasons
more than one. Earlier the appellant had to face series of harassments
at the hands of R8, who was her immediate superior, that when a claim
for hard area allowance was made by R8, the appellant in her capacity
as the ministerial personnel had recommended to the superior
concerned that four more vital documents should necessarily be
produced by R8. That on account of this R8 had even issued Ext.P4
memo of charges raising allegations in which it is projected that he
himself is the alleged victim of the so called unlawful action said to have
been done by the appellant in demanding four more documents and R8
has even imposed penalty of fine on her as per Ext.P5. Later, the
Commandant, who is the superior, has found that as per Ext.P6 R8 is
not eligible for the hard area allowance inasmuch as he has not
produced those vital documents insisted by the appellant. Further that
the appellant has confided series of harassments meted out to her by R8
to the Deputy Commandant and Deputy Inspector General (DIG), (who
is the author of the impugned Ext.P16 transfer order as can be seen
from Ext.P14) and that it is on the basis of the letter of the DIG referred
to in Ext.P16 that now the appellant has been ordered to be transferred
from her current station at Kochi to far of station at Narsapur in
Telangana State which is more than 1500 kms. where there is no
residential quarters inside the campus and there is no Kendriya
Vidyalaya to cater to the educational needs of her children, etc. Further
it is also reliably learnt that the number of women officers in Narsapur
is relatively very low.
4. Further that on a previous occasion, this Court as per
Ext.R4(e) judgment dated 5.7.2017 in W.P.(C) No.16682 of 2017 filed by
the appellant herein had specifically ordered in paragraph 13 thereof
that her previous transfer order should be reconsidered and she should
be re-transferred as and when vacancies are available in Kochi unit after
accommodating the officers for awaiting transfers without completing
the three year tenure and that this is in view of the fact that the Union
Government has issued orders like Ext.P4 therein for protecting women
employees etc. Further that Ext.P4 in Ext.R4(e) writ proceedings is
Ext.P20 herein which is an office memorandum issued by the Union
Government in the Ministry of DOPT which guarantees certain
protective norms in favour of female employees like the writ appellant
etc. Further that by Ext.P21 proceedings, the Director General of the
respondent CISF has ordered that only those personnel who have
completed five years of unit tenure as on 31.3.2021 need alone be
considered for transfer in covid times and that the appellant has not
completed five years of unit tenure in the present station even though
she has completed 13 years in various stations of Kerala. Further that
the appellant was asserted in ground I in W.P.(C) that there are at least
more than seven personnel working in Kochi unit of the respondent
CISF who have completed more than five years of unit tenure and that
more than ten personnel who are senior to her who were still continuing
in Kochi and that the petitioner who is a lady employee is made to suffer
transfer to a station more than 1500 kms. away flouting the above said
norms as well as the directions issued by this Court in judgment as in
Ext.R4(e). Further that the appellant had filed an I.A. in the W.P.(C)
directing the respondents therein to produce a copy of the letter dated
18.8.2021 issued by the DIG which is shown as reference in the
impugned Ext.P16 transfer order and reference shown recital and that a
copy of the said letter dated 18.8.2021 issued by the DIG (who is the
author of the notice in Ext.P14) has not been made available till date.
5. Sri.S.Manu, learned Assistant SGI appearing for the official
respondents, has strongly denied the above said allegations of the
petitioner and would urge that this Court may not entertain this Writ
Appeal etc.
6. After hearing both sides, we are of the view that the
appellant has made out a strong prima facie case in the matter.
However, we are told by Sri.S.Manu, learned Assistant SGI appearing
for the official respondents that pursuant to the impugned Ext.P16
transfer order, the appellant has already been relieved from service as
per Ext.P18 and substitute has joined in her place. After hearing both
sides, we are of the view that sufficient interlocutory protection is
necessary in this case and so that the subject matter of the lis is
protected pending disposal of this appeal.
7. Accordingly, it is ordered that the operation and
enforcement of Ext.P16 transfer order shall be kept in abeyance.
However, it is made clear that the official respondents will be at liberty
to retain the petitioner at Kochi unit, but in case the official respondents
do not retain her at Kochi unit then there is no question of her being
compelled to join at Narsapur unit at Telangana State in pursuance of
the impugned Ext.P16 transfer order. Further it is also made clear that
in case the official respondents decides to keep the appellant off duty in
Kochi unit and ultimately it is found that in the appeal the matter would
require interdiction, then this Court may appropriately consider passing
of orders in the matter of claim for full pay and allowances to the
appellant during the period in question. Hence it is for the official
respondents to decide whether the appellant should be provisionally
retained at Cochin even though she has been relieved from the present
unit at Cochin.
8. The official respondents will immediately file an affidavit
dealing with various aspects borne out from Exts.P3 to P8 as also the
factual averments in ground I in W.P.(C) No.16682 of 2017 and a copy
of the letter dated 18.8.2021 issued by the DIG as referred to in the
recital in the impugned Ext.P16 transfer order should be made available
to this Court and also the entire files relating to the impugned Ext.P16
transfer order and Ext.P18 relieving order should be made available for
the perusal of this Court on the next posting date.
9. The Registry may permit the counsel for the appellant to
replace the synopsis, as there is no objection from the part of the
learned Assistant SGI for the same.
List the appeal in the admission list on 10.12.2021.
sd/-
ALEXANDER THOMAS
JUDGE
sd/-
VIJU ABRAHAM
JUDGE
csl
30-11-2021 /True Copy/ Assistant Registrar
