Manipur High Court
Shri Premvir Singh vs Union Of India Represented ... on 11 January, 2021
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
WP(C) No. 708 of 2019
Shri Premvir Singh, IRLA - 7346, aged about 49 years, S/O Rajpal Singh,
resident of Charora, P.O. Jahangirabad, P.S. Ahar, Bulandshahar, Uttar
Pradesh, Pin Code: 202394, now posted at M & N Sector CRPF Imphal,
P.O. & P.S. Lamphel. Pin. 795004.
.... Petitioner
- Versus -
1. Union of India represented through its Home Secretary (Ministry of Home
Affairs) North Block, New Delhi, Government of India, Delhi 110001.
2. The Director General of Plice, CRPF, CGO Complex, Lodhi Road, New
Delhi - 110003.
3. The IGP, Manipur and Nagaland Sector, Group Centre CRPF Langjing,
P.O. & P.S. Lamphel, Imphal West District, Manipur. Pin 795113.
4. Vikram Sahgal, IGP (Estt& Law) CRPF, CGP Complex, Lodhi Road, New
Delhi - 110003.
....Respondents
BEFORE
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the Petitioner : Mr. M. Devananda, Advocate
For the respondents : Mr. S. Suresh, ASG
Date of Hearing : 18.11.2020.
Date of Judgment & Order : 11.01.2021.
JUDGMENT & ORDER
(CAV)
Heard Mr. M. Devananda, learned counsel appearing for the petitioner
and Mr. S. Suresh, learned ASG appearing for the respondents.
[2] The present writ petition has been filed praying for quashing and
setting aside the impugned transfer order dated 08.06.2018 and order dated
30.08.2019 rejecting the representation of the petitioner, coupled with a prayer
WP(C) No. 708 of 2019 Page 1
for allowing the petitioner to continue in his posting at M&N Sector HQ as DC
(Law).
[3] The case of the petitioner is that he initially Joint Service as Sub
Inspector, General Duty and posted in various places in hard and field area
including the LWE area from 31.03.2009 to 31.12.2012 for a period of 3 years
tenure and thereafter he was posted for deputation to National Investigation
Agency from 31.12.2012 to 01.09.2016 for about 3 years and 8 months. While
he was serving in the NIA on deputation, the petitioner was promoted to the
posts of Deputy Commandant and thereafter, he was repatriated from his
deputation in NIA and then transfer to Manipur & Nagaland Sector, HQ as
Deputy Commandant (Law) and he reported to his new place of posting on
01.09.2016.
[4] When the petitioner was serving as Deputy Commandant (Law)atM&N
Sector, Langjing, Manipur, he submitted a representation dated 02.08.2017 to
the Inspector General of Police (IGP) (Pers), Central Reserve Police Force
(CRPF), New Delhi, informing the authorities that the petitioner's wife was
suffering from right axillary node BIRADS Category- 4 (breast cancer stage 4)
and requesting for his transfer and posting to any Delhi based units
/establishments so as to enable the petitioner in helping his wife to get proper
treatment and care. In the said representation all the relevant medical
documents were also enclosed.
[5] The said representation of the petitioner was forwarded by the
Inspector General of Police (IGP), M&N Sector, CRPF, Imphal to the
concerned authorities with a request for considering sympathetically on
WP(C) No. 708 of 2019 Page 2
compassionate ground the petitioner's request for his transfer to any Delhi
based units /offices. In the said forwarding letter, the IGP M & N Sector duly
recommended the petitioner's transfer but only against a suitable law graduate
(DC/AC) to the Sector HQ in place of the writ petitioner.
[6] After receiving and examining the representation submitted by the
petitioner, the DIG (Pers) CRPF sent a wireless message dated 22.09.2017
informing that the request of the petitioner for his transfer to Delhi based units
will be considered on merits during the Summer Chain Transfer-2018.
[7] Subsequent to the representation of the petitioner and wireless
message dated 22.09.2017, the office of the DIG (Pers), CRPF, issued a
transfer order dated 25.04.2018 transferring one Shri Rakesh Choudhary,
Deputy Commdt (IRLA-7635) to M & N Sector, HQ as DC (Law). Under the
said order, it was also mentioned that the posting of the writ petitioner was
under consideration during Summer Chain Transfer-2018.
[8] After issuance of the aforesaid transfer order dated 25.04.2018
transferring Shri Rakesh Choudhari as DC (Law), the petitioner again
submitted another representation dated 26.04.2018 to the Director General of
Police, CRPF, New Delhi, informing about the serious illness of the petitioner's
wife and also about his earlier representation and recommendation made by
the authorities and requesting again for his transfer to any Delhi based unit so
as to enable him to look after his seriously ailing wife.
The said second representation dated 26.04.2018 was forwarded by
the IGP, M & N Sector, CRPF under his forwarding letter dated 28.04.2018
WP(C) No. 708 of 2019 Page 3
with therecommendation that there was logical substance in the request made
by the petitioner.
[9] It is the case of the petitioner that without at all considering his
representations requesting for his transfer to any Delhi based Units so as to
enable him to look after his seriously ailing wife and also without at all
considering the recommendations made by the competent authorities for
considering his request for transfer,the office of the DIG (Pers), CRPF issued
the impugned transfer order dated 08.06.2018 effecting Summer Chain
Transfer of various Deputy Commandants including the writ petitioner. Under
the said impugned transfer order, the name of the petitioner appears at serial
No. 33 of Part 2 and he has been transfer from M&N Sector to Central Zone
with the remark "For LWE unit"
[10] Since his new place of posting is situated in Jammu & Kashmir and
since such posting will not be of any assistance to the petitioner in helping the
treatment of his seriously ailing wife, the petitioner submitted another
representation to the DG, CRPF requesting to allow the petitioner to continue
in his present place of posting, i.e., at M&N Sector till the completion of his
normal tenure posting of 4 years.
[11] When the respondents failed to consider the representation submitted
by the petitioner, the petitioner approached this Court byfiling W.P. (C) No.
550 of 2018 assailing the impugned transfer order dated 08.06.2018couple
with the prayer for allowing the petitioner to continue in the M & N Sector, HQ
as DC (Law).
WP(C) No. 708 of 2019 Page 4
[12] In the said writ petition, it was submitted on behalf of the respondents
that as the request of the petitioner for his transfer to Delhi Zone was not
permissible, he was transfer and posted to a nearby place in Central Zone and
it was also contended on behalf of the respondents that the normal tenure
period of 4 years is not compulsory and it depends upon the discretion of the
authority according to the basis of exigency of the service in the arm forces.
Rejecting the contention advance on behalf of the respondents, this
Court observed that if the petitioner's request for his transfer to any Delhi
based units on account of the serious illness of his wife was not feasible, the
respondents ought to have rejected his request so as to enable the writ
petitioner to continue in his present place of posting.It wasfurther observed by
this Court that if the impugned transfer order was affected on account of
Summer Transfer proceeding, the petitioner was then entitled to plead that his
case should be considered in the light of the transfer policy.
Thereafter, this Honb'le Court dispose of the said writ petition by
directing the petitioner to make a fresh representation within a period of 2
weeks and thereafter the authority shall consider such representation in the
light of the transfer policy and exigency of service on its own merit, - vide
order dated 12.06.2019 passed by this Court in W.P.(C) No. 550 of 2018.
The Hon'ble Court also directed that till the representation is
considered by the authority, the petitioner should be allowed to continue in his
present place of posting.
[13] In compliance with the order dated 12.06.2019 passed by this Court in
W.P. (C) No. 550 of 2018, the petitioner again submitted a representation
WP(C) No. 708 of 2019 Page 5
dated 22.08.2019to the DGP, CRPF requesting to cancel the impugned
transfer order dated 08.06.2018 and to allow him to complete his tenure
posting of 4 years at M & N Sector, HQ as Deputy Commandant (Law), on the
grounds mentioned in the said representation.
[14] It is the case of the petitioner that without at all considering the
representations submitted by the petitioner on its own merit as directed by this
Court, the respondents have issued the order dated 30.08.2019 rejecting the
representation of the petitioner in a mechanical manner and without giving any
reason whatsoever.
Having been aggrieved, the petitioner filed the present writ petition
assailing the impugned transfer order dated 08.06.2018 as well as the order
dated 30.08.2019 rejecting the representation of the petitioner.
It will be relevant to mentioned herein that by virtue of the orders
passed by this Court in the earlier writ petition viz, W.P. (C) No. 550 of 2018
and interim orders passed in the present writ petition, the petitioner has been
continuing in his present place of posting and he had already completed his
normal tenure posting of 4 years at M&N Sector.
[15] Mr. M. Devananda, learned counsel for the petitioner submitted that
under the Standing order No. 07/2014 regarding transfer policy for GOs
(Executive) and Medical Officers, it is provided under Para 2 (i) that transfer
policy should be followed strictly in letter and spirit in a transparent manner
without anybias. It is also pointed out by the learned counsel for the petitioner
that under Para 2 (iii) of the said standing order, it is provided that normal
tenure of posting from Assistant Commandant to DIG would be 3 years and
WP(C) No. 708 of 2019 Page 6
the tenure of Officers posted in Training Institution/ Intelligence Set-up/
Parliament Duty Group/Special Duty Group/ Signals/ Legal Cells and CoBRA
would be 4 years.
[16] Mr. M. Devananda, learned counsel for the petitioner submitted that
the petitioner Joinedin his present place of posting on 01.09.2016 and as per
the aforesaid transfer and posting policy, the normal tenure of the petitioner
should be completed only in the month of September 2020. However, before
completion of his tenure period and due to the serious illness of the
petitioner's wife, who is suffering from breast cancer (stage 4), the petitioner
submitted the representations to the competent authorities requesting for his
transfer to any Delhi based units so as to enable the petitioner in arranging for
the treatment of his wife.
[17] The learned counsel for the petitioner further submitted that without at
all considering the request made by the petitioner and recommendations
made by the competent authorities, the respondents have issued the
impugned transfer order in a most arbitrary manner and incomplete violation
of the standing orders regarding policy of transfer. The learned counsel also
submitted that this Court has in the earlier occasion rejected the contentions
made by the respondents by observing that if the petitioner's request for his
transfer in connection with his wife's illness was not feasible, the respondents
should have rejected it so as to enable the petitioner to continue in his present
place of posting.
` The learned counsel further submitted that this Hon'ble Court has in its
order dated 12.06.2019passed in W.P. (C) No. 550 of 2018 had categorically
WP(C) No. 708 of 2019 Page 7
directed the authorities to consider the representations submitted by the
petitioner afresh on its own merit in the light of the transfer policy and
exigency of service. However, the respondents have issued the impugned
order dated 30.08.2019 rejecting the representations submitted by the
petitioner without assigning any reason and incomplete violation of this Court's
order and in a most arbitrary manner. It is also contended on behalf of the
petitioner that the respondents have also not given any reason for not allowing
the petitioner to continue at his present place of posting till completion of his
normal tenure posting of 4 years.
In view of the above, the learned counsel strenuously submitted that
the impugned ordersdeservesto be quash and set aside.
[18] Mr. S. Suresh, learned ASG appearing for the respondents submitted
that under Para 2 (xii) of the standing order No. 07/2014 (transfer policy), it is
provided that cooling off period will be 6 years for posting to the previous
place of posting. As the petitioner was repatriated from deputation (NIA, Delhi)
on 18.08.2016 and reported to M & N Sector HQ on 01.09.2016, he was not
eligible for posting to Delhi/NCR. Accordingly, the request of the petitioner for
his transfer and posting to Delhi was not acceded to.
The learned counsel further submitted that under Para 2 (xiii) of the
aforesaid standing order (transfer policy), it is provided that officer on
promotion and repatriation from deputation should be first posted to field area
of category - "A" unit locations. In case there is no vacancy in category "A"
unit locations then to other categorized unit locations.It is submitted on behalf
WP(C) No. 708 of 2019 Page 8
of the respondents that in terms of the standing order under Para 2 (xiii), the
petitioner has been transferred to Central Zone for further posting to LEW unit.
[19] The learned counsel for the respondents further submitted that under
Para 6 of the said standing order (transfer policy), it is provided that the
Director General Reservesthe right to relax one or more of the above
guidelines, at his discretion on administrative or operational grounds. Relying
on the said instructions as contained in Para 6 of the standing order (transfer
policy), the learned counsel for the respondents submitted that even though
the petitioner has not completed his normal tenure of posting of 4 years in the
present place of his posting, the competent authority have issued impugned
transfer order by exercising the power conferred under Para 6 of the said
standing order in the exigency of service and in public interest.
[20] The learned counsel for the Respondents also cited the following
authorities:-
(i) (1989) 3 SCC 445 "Union of India &Ors. v. H.N. Kirtana".
(ii) 1991 Supp (2) SCC 659 "Mrs. Shilpi Bose &Ors. v. State of
Bihar &Ors".
(iii) (1993) 4 SCC 357 "Union of India &Ors. v. S.L. Abbas".
(iv) (2001) 8 SCC 574 "National Hydroelectric Power Corpn. Ltd. v.
Shri Bhagwan".
(v) (2004) 11 SCC 402 "State of U.P. &Ors. v. Gobardhan Lal".
(vi) (2005) 7 SCC 227 "Major General J.K Bansal v. Union of India
&Ors".
(vii) (2009) 15 SCC 178 "Rajendra Singh &Ors. v. State of Uttar
Pradesh".
(viii) (2010) 13 SCC 306 "Rajendra Singh &Ors. v State of Uttar
Pradesh".
(ix) (2004) 12 SCC 299 "Kendra Vidyalaya Sangathan. v Damodar
Prasad Pandey".
[21] By relying on the aforesaid Supreme Court Judgments, the learned
counsel for the respondents submitted that transfer is an incidence of service
WP(C) No. 708 of 2019 Page 9
and the petitioner who is holding a transferable post is liable to be transferred
from one place to another and that he hasno vested right to remain posted at
one place or other of his choice.
It is further submitted by the learned counsel that even if the impugned
transfer order had been issued in violation of the aforesaid standing order
(transfer policy), the said standing order is a mere guidelines or instructions
and they have no statutory force. Therefore, the said standing order does not
confer upon the petitioner any legally enforceable right.
[22] After hearing both the counsel appearing for the parties and after
perusal of the records the following undisputed facts emerges:-
(a) After his deputation in the NIA the petitioner was transfer and posted
to M & N Sector as DC (Law) and he joinedhis new place of posting on
01.09.2016;
(b) The normal tenure/ period of his posting is 4 years as per Para 2 (iii) of
the standing order No. 07/2014 (transfer policy);
(c) Before completion of his normal tenure posting of 4 years, the
petitioner submitted a representation dated 02.08.2017 to the
competent authorities requesting for his transfer and posting to any
Delhi based unit/establishment in relation to the serious illness of his
wife, who is suffering from breast cancer (stage 4);
(d) The said representation of the petitioner was forwarded to the
competent authorities of the CRPF by the concerned authorities with
the recommendation for considering the representation
WP(C) No. 708 of 2019 Page 10
sympathetically on compassionate grounds as there waslogical
substance in the request made by the petitioner;
(e) As per the recommendations, one Shri Rakesh Choudhari, Deputy
Commandant has been transfer and posted to M & N Sector, HQ as
DC (Law) to replace the writ petitioner and informing the petitioner that
his request for transfer will be consider during the Summer Chain
Transfer- 2018;
(f) Instead of rejecting the request made by the petitioner in his
representations for his transfer to any Delhi based units due to non
feasibility of such transfer and allowing the petitioner to continue in his
present place of posting till completion of the normal tenure posting of
4 years, the respondents have issued the impugned transfer order
transferring the petitioner to Jammu Kashmir;
(g) In the order dated 12.06.2019 passed by this Court in W.P. (C) No.
550 of 2018, this Court had brushed aside the reasons given by the
respondents for issuing the impugned transfer order and directed the
respondents to reconsider the transfer order in the light of the transfer
policy and the exigency of service on its own merits;
(h) In compliance with the order of this Court the petitioner submitted a
fresh representation dated 22.08.2019, however, the said
representation had been rejected by the respondents by an order
dated 30.08.2019. In the said order dated 30.08.2019 no reason has
been given for rejecting the petitioner's request for allowing him to
WP(C) No. 708 of 2019 Page 11
continue in his present place of posting till the completion of the
normal tenure posting of 4 years.
[23] The simple plea taken by the petitioner is that if his request for his
transfer to any Delhi based units in connection with the serious illness of his
wife was not feasible, his request may be rejected and he may be allowed to
continue in his present place of posting till completion of his normal tenure
posting of 4 years. Instead the respondents have issued the impugned
transfer order in a most unreasonable and arbitrary manner and in violation of
their transfer policy as contained in Para 2 (iii) of the standing order No.
07/2014.
[24] The ground of defense taken by the respondents in refusing the
request made by the petitioner for his transfer to any Delhi based unit and for
issuance of the impugned transfer order is based solely on Para 2 (xii), Para 2
(xiii) and Para 6 of the standing order No. 07/2014 (transfer policy).
At the same time by relying on various Supreme Court Judgments,
which have been quoted herein above, it has been submitted on behalf of the
respondents that the standing order No. 07/2014 (transfer policy) is a mere
executive instructions which have no statutory force and such guidelines does
not confer upon the petitioner any legally enforceableright.
[25] In my considered view, the contentions advanced on behalf of the
respondents are quite contradictory. On the one hand, the justifications given
by the respondents for refusing the request made by the petitioner for his
transfer to any Delhi based units in connection with the serious illness of his
wife and issuance of the impugned transfer order are solely based on the
WP(C) No. 708 of 2019 Page 12
transfer policy contained in Para 2 (xii) and (xiii) and Para 6 of the standing
order No. 07/2014 meaning thereby that they are acting and relying on their
transfer policy and on the other hand, they are submitting that this standing
order is a mere executive instructions and this does not give any legally
enforceable right to the writ petitioner. The respondents are blowing hot and
blowing cold at the same time, which is not permissible. In my consider view,
no reason whatsoever has been given by the respondents in refusing to allow
the petitioner to continue in his present place of posting till completion of his
tenure posting of 4 years.
[26] Be that as it may, since the petitioner's normal tenure of 4 years
posting in M & N Sector has already been completed, I am of the considered
view that the ends of justice will meet if the present writ petition is disposed of
with the following directions:-
(a) The impugned transfer order dated 08.06.2018 as well as the
impugned order dated 30.08.2019, so far as the petitioner is
concerned, it is hereby quashing and set aside.
(b) The respondents are at liberty to consider afresh for transfer and
posting of the petitioner in the light of their transfer policy and in
exigency of service, if so adviced.
With the above directions the writ petition is disposed of. The parties are to
bear their own cost.
Digitally JUDGE
Yumk signed
Yumkham
by
ham Rother
Date:
FR/NFR
2021.01.11
Rother 14:20:31 Sapana
+05'30'
WP(C) No. 708 of 2019 Page 13
