Manipur High Court
Abdul Rahman vs Union Of India Represented ... on 15 November, 2021
IN THE HIGH COURT OF MANIPUR
KABORA Digitally signed AT IMPHAL
MBAM byKABORAMBAM
SAPANA SAPANA CHANU
Date: 2021.11.15 W.P.(C) No. 706 of 2019
CHANU 12:45:01 +05'30'
Abdul Rahman, aged about 56 years, S/O (L) Md. Abdul Hei, resident
of Village SantheiMakha Leikai, P.O. & P.S. Mayang Imphal, District
Kakching, Manipur at present posting at G.C. CRPF Langjing, P.O.
Langjing, P.S. Lamphel, Imphal West District, Manipur, PIN : 795113.
... Petitioner/s
-Versus -
1. Union of India represented through its Home Secretary (Ministry of
Home Affairs) North Block, New Delhi, Government of India, PIN
CODE : 110003.
2. The Director General of Police, CRPF, CGO Complex, Lodhi Road,
New Delhi - 03.
3. The IGP, Manipur and Nagaland Sector, Group Centre CRPF
Langjing, Manipur.
4. The IGP, NE Sector, CRPF, Shillong.
5. The Dy. Inspector General of Police, CRPF, GC, Imphal.
........Respondent/s
With
WP(C) No. 707 of 2019
Thangjam Subhachandra Singh, aged about 56 years, S/O (L) Th.
Leiren Singh, resident of Ukhongshang Mayai Leikai, B.P.O. Nongpok
Sekmai, P.S. Nokpok Sekmai, District Thoubal, Manipur at present
posting at G.C. CRPF Langjing, P.O. Langjing, P.S. Lamphel, Imphal
West District, Manipur, PIN: 795113.
... Petitioner/s
-Versus -
1. Union of India represented through its Home Secretary (Ministry of
Home Affairs) North Block, New Delhi, Government of India, PIN
CODE : 110003.
2. The Director General of Police, CRPF, CGO Complex, Lodhi Road,
New Delhi - 03.
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 1
3. The IGP, Manipur and Nagaland Sector, Group Centre CRPF
Langjing, Manipur, P.O. Langjing, P.S. Lamphel, Imphal West
District, Manipur, Pin : 795113.
4. The IGP, NEZ, CRPF, Shillong.
5. The Inspector General of Police (Pers), CRPF having its office at
CGO Complex, Lodhi Road, New Delhi - 03.
........Respondent/s
B E F O R E
HON'BLE MR. JUSTICE AHANTHEM BIMOL SINGH
For the Petitioner : Mr. M. Devananda, Adv.
For the respondents : Mr.S. Suresh, ASG.
Date of Hearing : 25.08.2021.
Date of Judgment &Order : 15.11.2021
JUDGMENT & ORDER
(CAV)
[1] Heard Mr. M. Devananda, learned counsel appearing for the
petitioners and Mr. S. Suresh, learned ASG appearing for the respondents.
[2] The petitioners in the present two writ petitions are personnels of the
C.R.P.F and they have filed the present two writ petitions assailing the
order dated 31.01.2019, signals dated 13.02.2019, 28.02.2019 and
11.03.2019 effecting their transfer and posting from Group Centre (G.C),
CRPF Langjing, Imphal, Manipur (hereinafter referred to as G.C., Imphal
for short) to 132 Bn. and 35Bn. respectively, which are located at Jammu &
Kashmir.
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 2
As the question of facts and law involved in the present two
writ petitions are similar, the same are being disposed of by this common
judgment and order.
[3] Mr. M. Devananda, learned counsel for the petitioners raised the
following three grounds in assailing the impugned orders and signals:-
(i) the impugned transfer order have been issued in
violation of the transfer policy as contained in Para 4(ix) of the standing
order No. 07/2015 dated 04.08.2015, inasmuch as, the petitioners have
been subjected to zonal transfer, i.e., from North East Zone (NEZ) to
Central Zone (CZ), before completion of the period of their posting tenure
of 10 years in Manipur and Nagaland Sector ( M&N Sector ) and 14 years
tenure in NE Zone;
(ii) the impugned transfer orders have been issued in
violation of the transfer policy as contained in Para 4(viii) of the standing
order No. 07/2015 dated 04.08.2015, inasmuch as, the petitioners have
been subjected to transfer before completion of the period of their posting
tenure of three years at Group Centre, Imphal ; and
(iii) the petitioners have been subjected to transfer at the
verge of their retirement arbitrarily and discriminatorily without considering
their request for choice posting as provided under Para 5(ix) of the
standing order No. 07/2015 dated 04.08.2015.
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 3
[4] On the objection raised by Mr. S. Suresh that the secondground was
never raised by the petitioners in their writ petitions, Mr. M. Devananda
fairly conceded and submitted that he will not press the second ground.
[5] In connection with the first ground, it has been submitted by Mr. M.
Devananda that the petitioners have rendered more than 35 years service
in the CRPF and out of the said 35 years, the petitioner in WP(C) No.
706/2019 had served for more than 28 years outside his home place
Manipur and in most of the said 28 years, he was posted at very hard
areas like Jammu & Kashmir and the petitioner had been allowed only
about 6 years posting in his Home place Manipur in his whole service
career. In respect of the petitioner in WP(C) No. 707/2019, out of 35 years
service in CRPF, the petitioner had been posted for more than 27 years
outside Manipur and most of the time he was posted in very hard areas like
Punjab and Jammu & Kashmir and he had been posted only about 8 years
in his home place in his whole service career.
[6] The petitioners have given specific details about their transfer and
posting during their whole service career at Para No. 3 to 6 of their writ
petitions and the averments made therein are not denied by the
respondents in their counter affidavits. In fact, the respondents have also
given specific details about the transfer and posting of the petitioners
during their whole service career at Para 2.2 of their counter affidavits
which are as under:-
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 4
(i) Petitioner in WP(C) No. 706 of 2019
NAME OF LOCATION/STATE FROM TO DURATION
OFFICE/UNIT
GC Imphal Imphal/Manipur 15-01-1984 14-07-1985 1 year 6 months
26 Bn ACP,PB,ASM,PB,J&K,JKD 14-07-1985 08-10-1998 13 years 3 months
GC IMP Imphal/Manipur 08-10-1998 12-09-2002 3 years 11 months
27 BN ASM,DLI,J&K,DLI 12-09-2002 07-11-2012 12 years 2 months
188 BN CTG 07-11-2012 21-01-2015 2 years 2 months
226 BN CTG 21-01-2015 26-04-2016 1 year 3 months
GC IMP Imphal/Manipur 26-04-2016 03-09-2019 3 years 5 months
(ii) Petitioner in WP(C) No. 707 of 2019
NAME OF LOCATION/STATE FROM TO DURATION
OFFICE/UNIT
GC Imphal Imphal/Manipur 01/04/1985 26/06/1986 1 year 2 months
44 BN PB,ASM,DLI,JK,PB,JK,MN 26/06/1986 12/06/2003 17 years
P,ASM,MNP
GC IMP Imphal, Manipur 12/06/2003 23/08/2008 5 years 2 months
44 BN UP,JK, 23/08/2008 23/12/2010 2 years 4 months
66 BN WB 23/12/2010 10/09/2015 4 years 9 months
87 BN Jiribam (Manipur) 10/09/2015 15/05/2018 2 years 8 months
GC IMP Imphal/Manipur 15/05/2018 03/09/2019 1 year 4 months
[7] By referring to the pleadings made by the petitioners at Para 3 to 6 of
their writ petitions as well as at the chart given hereinabove, Mr. M.
Devananda submitted that without counting the training periods of about
one year in Tamil Nadu w.e.f. 15.01.1984 to 14.07.1985 in respect of the
petitioner in WP(C) No. 706/2019 and from 01.04.1985 to 26.06.1986 in
respect of the petitioner in WP(C) No. 707/2019, the petitioners have been
posted at their home place in N.E. Zone/ M & N Sector only for about 7
years and 9 years respectively and during the remaining 28/26 years out of
35 years of their service, the petitioner have been posted outside their
home place and in very hard areas.
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 5
[8] It has been submitted by Mr. M. Devananda that in the chart given by
the respondents at Para 2.2 of their counter affidavits, the respondents
have erroneously counted the period of posting of the petitioner in WP(C)
No. 706/2019 at 26 Bn. and 27 Bn.(located at Delhi and Jammu & Kashmir)
as posting in the N.E. Zone/ M & N Sector and in respect of the petitioner in
WP(C) No. 707/2019, the respondents have also counted the period of
posting at 44 Bn. as posting in the N.E. Zone/ M & N Sector.
[9] The learned counsel for the petitioners further submitted that 26 Bn.
and 44 Bn. were earlier under Central Zone and Jammu & Kashmir
respectively. The said two Battalions were de-attached from Central Zone
and Jammu & Kashmir Zone and re-affiliated to N.E. Zone only w.e.f.
01.10.2016 by an order bearing No. O-IV-23/2015-16-Org dated
05.07.2016 issued by the Director General of CRPF. As the period of
posting of the petitioners at 26 Bn. and 44 Bn. were prior to 01.10.2016
before the re-affiliation took place, such period of posting of the petitioners
cannot be counted as posting in the N.E. Zone/ M & N sector.
The learned counsel further submitted that even though the
administrative control of the 27 Bn. was under the M & N Sector for some
time, the said 27 Bn. is located at different Zones/States like Delhi and
Jammu & Kashmir and the administrative control of the said Bn. was under
different jurisdictions at different point of time. Accordingly, it has been
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 6
submitted that the posting of the petitioner in WP(C) No. 706 of 2019 in the
said Bn. cannot be counted as tenure posting under N.E. Zone. In view of
the above, it has been submitted that the contentions of the respondents
that the petitioners have already completed their tenure posting in the N.E.
Zone is erroneous and without any basis. The learned counsel, therefore,
submitted that the respondents have issued the impugned transfer and
posting orders without application of mind and in complete violation of their
transfer policy as contained in Para 4(ix) of their standing order No.
07/2015 and as such, the impugned orders deserved to be quashed and
set aside.
[10] In connection with the third ground, Mr. M. Devananda submitted
that under Rule 43(a) of the CRPF Rules, 1955, it is provided that the
superannuation age of CRPF personnel from the rank of Commander and
below is 57 years. Since the impugned transfer order is to be effective
w.e.f. 01.04.2019 and as the petitioners were going to retire from service on
attaining the age of superannuation of 57 years w.e.f. 31.03.2021 and
28.02.2021 respectively, both the petitioners submitted their
representations dated 17.07.2019 and 27.06.2019 respectively to the
concerned authorities of the CRPF requesting, inter alia, to allow them to
remain posted and to complete their remaining service at Group Centre
Imphal as provided under Para 5(ix) of the transfer policy contained in the
standing order No. 07/2015. However, the representations of the petitioners
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 7
were rejected by the authorities without any application of mind and without
assigning any reason.
[11] Mr. M. Devananda submitted that the petitioners are entitled to get
their choice posting as provided under Para 5(ix) of the standing order No.
07/2015 as they have not availed any such choice posting earlier in their
whole service career. Rejection of the petitioners representations by the
respondents without any application of mind and without giving any reason
is very much arbitrary, discriminatory and the same had been done in
colourable exerciser of power. Such unreasonable actions of the
respondents have deprived the petitioners of their valuable right
guaranteed under Para 5(ix) of the standing order issued by the
respondents themselves. Accordingly, it has been submitted that the
impugned orders are liable to be quashed and set aside.
[12] Controverting the arguments advanced by the counsel for the
petitioners in connection with the first ground, Mr. S. Suresh, learned ASG
submitted that under a letter dated 20.09.1968 of the Under Secretary to
the Government of India, Ministry of Home Affairs, approval of the
Government of India to the renaming of IRB (Maharashtra) as 44 CRPF Bn.
consequent upon its embodiment in the CRPF w.e.f. 01.09.1968 was
conveyed to the Director General of CRPF. In the said letter the Head
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 8
Quarters of the 44 Bn. was at Puna and placed under the control of DIG,
CRPF, Puna.
[13] It has also been submitted by Mr. S. Suresh that by an order dated
09.02.1977 issued by the DG/CRPF, G.C, CRPF Puna has been shifted to
Imphal. Thereafter, since 09.02.1977 till 03.08.2012, G.C, CRPF Puna was
under Group Centre Imphal.
Under the order dated 03.08.2012 of the DG, CRPF, the 26
Bn. and 44 Bn. earlier attached to GC Imphal and deployed outside the NE
Zone were de-attached from GC Imphal and affiliated to GC MKG under CZ
and GC, JDR under JK Zone respectively. However, the learned counsel
fairly submitted that the said order dated 09.02.1977 does not specifically
mentioned about placing 26 Bn. and 44 Bn. under the N.E. Zone and that
the respondents could not produce any specific order deploying 26 Bn. and
44 Bn. under the N.E. Zone.
[14] In connection with the third ground, Mr. S. Suresh, learned ASG
submitted that under Rule 43(a) of the CRPF Rules, 1955, it is provided
that the superannuation age of the CRPF personnel from the rank of
Commander and below will be 57 years.
The said Rule 43(a) of the CRPF Rules, 1955 was struck
down by the High Court of Delhi in its judgment dated 31.01.2019 passed in
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 9
WP(C) No. 1951/2012 and other batch of writ petitions. The operative
portion of the said judgments are as under:-
"62. In view of the above conclusion of this Court that Rule
43 (a) of the CRPF Rules, 1955 as it presently stands is
unconstitutional and liable to be struck down,
correspondingly Rule 14 of the CRPF Group (A) General
Duty Officers Recruitment Rules, 2001, Rule 8 (a) of the
ITBP General Duty in Group 'A' Posts Rules and Rule 12 of
the BSF (General Duty Officers) Recruitment Rules, 2001 to
that extent are also held to be unconstitutional and liable to
be struck down."
"68. The Court has in this judgment held the decision of
the Respondents to prescribe a retirement age of 57 years
for members of the three CAPFs i.e. the ITBP, the BSF and
the CRPF of the rank of Commandant and below in terms of
Rule 43 (a) of the CRPF Rules, the corresponding Rules
applicable to the said three CAPFs, as against 60 years for
Officers in those very CAPFs of the rank above that of
Commandant to be discriminatory, violative of Articles 14
and 16 of the Constitution. Rule 43 (a) of the CRPF Rules,
1955, and correspondingly Rule 14 of the CRPF Group (A)
General Duty Officers Recruitment Rules, 2001, Rule 8(a) of
the ITBP General Duty in Group 'A' Posts Rules and Rule 12
of the BSF (General Duty Officers) Recruitment Rules, 2001
to the extent they too prescribe a retirement age of 57 years
for members of those CAPFs of rank of Commandant and
below have also been struck down."
"71. Accordingly a direction is hereby issued that within a
period of four months from today the Respondents i.e. the
MHA in consultation with the CAPFs concerned will take all
consequential steps by way of implementation of this
judgment. This will include arriving at a decision as regards
the retirement age which will uniform for all members of the
CAPFs irrespective of their rank thus bringing all of them,
including the CISF and the AR, on par and fixing the date
from which such changed retirement age will take effect."
[15] In compliance with the aforesaid judgment of the High Court of Delhi,
the Ministry of Home Affairs, Government of India issued an order dated
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 10
19.08.2019 deciding that the age of retirement for all members of Central
Arm Police Forces (CAPFs) including the personnel of the CRPF will be 60
years. It is also mentioned in the said order that the date of effect will be the
date of issue of the order and all the forces were directed to amend the
provisions of the rules as applicable in line with the said order.
[16] Mr. S. Suresh, learned ASG submitted that after Rule 43(a) of the
CRPF Rules had been struck down by the Delhi High Court and after the
compliance order dated 19.08.2019 had been issued by the Government,
enhancing the age of retirement to 60 years, the said Rule 43(a) is no
longer in the statute book and the petitioners cannot claim that they are at
the verge of retirements. Accordingly, the respondents have not committed
any wrong in rejecting the representations submitted by the petitioners.
[17] The learned counsel for the respondents lastly submitted that the law
relating to the power and limitation of this Court to interfere with transfer
and posting in exercise of its power of judicial review is well settled by the
Hon'ble Supreme Court. In this regard, the learned counsel had cited the
following cases :-
"(1) (1989) 3 SCC 445
Union of India &Ors. V. H.N. Kirtana
Para 5. .... we do not find any valid justification for
the High Court for entertaining a writ petition against the
order of transfer made against the employee of the Central
Government holding transferable post. ....... The
respondent being a Central Government employee held a
transferable post and he was liable to be transferred from
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 11
one place to another in the country, he has no legal right
to insist for his posting at Calcutta or at any other
place of his choice. We do not approve of the cavalier
manner in which the impugned orders have been issued
without considering the correct legal position. Transfer of
a public servant made on administrative grounds or in
public interest should not be interfered with unless
there are strong and pressing grounds rendering the
transfer order illegal on the ground of violation of
statutory rules or on the ground of mala fide. ......
"(2) 1991 Supp (2) SCC 659
Mrs. Shilpi Bose &Ors V. State of Bihar &Ors.
Para 3. .... Since they hold transferable posts
they are liable to be transferred from one place to
another. The transfer orders had been issued by the
competent authority which did not violate any mandatory
rule, therefore the High Court had no jurisdiction to
interfere with the transfer order.
Para 4. In our opinion, the courts should not
interfere with a transfer order which is made in public
interest and for administrative reasons unless the transfer
orders are made in violation of any mandatory statutory
rules or on the ground of mala fide. A Government
servant holding a transferable post has no vested right
to remain posted at one place or other, he is liable to
be transferred from one place to another. Even if a
transfer order is passed in violation of executive
instructions or orders, the courts ordinarily should not
interfere with the order. ............If the courts continue to
interferewith day-to-daytransfer orders issued by the
government and its subordinate authorities, there will be
complete chaos in the administration which would not be
conducive to public interest. .....
"(3). (1993) 4 SCC 357
Union of India &Ors. V. S.L. Abbas
Para 6. An order of transfer is an incident of
Government service. Fundamental Rule 11 says that "the
whole time of a Government servant is at the disposal of
the Government which pays him and he may be employed
in any manner required by proper authority". Fundamental
Rule 15 says that " the President may transfer a
Government servant from one post to another". ....... He
relies upon certain executive instructions issued by
the Government in that behalf. Those instructions are
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 12
in the nature of guidelines. They do not have statutory
force
Para 7. Who should be transferred where, is a
matter of the appropriate authority to decide. Unless the
order of transfer is vitiated by mala fide or is made in
violation of any statutory provisions, the court cannot
interfere with it. ........................ The said guideline
however does not confer upon the Government
employee a legally enforceable right.
"(4). (2001) 8 SCC 574
National Hydroelectric Power Corpn. Ltd V. Shri Bhagwan
Para. 5. ....... It is now well settled and often
reiterated by this Court that no government servant or
employee of public undertaking has any right to be
posted forever at any one particular place since
transfer of particular employee appointed to the class
or category of transferable posts from one place to
another is not only an incident, but a condition of
service, necessary to in public interest and efficiency
in public administration. ........... the courts or tribunals
cannot interfere with such orders as matter of routine, as
though they are the appellate authorities substituting their
own decision for that of the management, as against such
orders passed in the interest of administrative exigencies
of the service concerned. ......
"(5). (2004) 11 SCC 402
State of U.P. &Ors. V. Gobardhan Lal
Para. 7. It is too late in the day for any government
servant to content that once appointed or posted in a
particular place or position, he should continue in such
place or position as long as he desires. Transfer of an
employee is not only an incident inherent in the terms of
appointment but also implicit as an essential condition of
service in the absence of any specific indication to the
contra, in the law governing or conditions of service.
Unless the order of transfer is shown to be an outcome of
a mala fide exercise of power or violation of any statutory
provision (an Act or rule) or passed by an authority not
competent to do so, an order of transfer cannot lightly be
interfered with as a matter of course or routine for any or
every type of grievance sought to be made. Even
administrative guidelines for regulating transfers or
containing transfer policies at best may afford an
opportunity to the officer or servant concerned to approach
their higher authorities for redress but cannot have the
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 13
consequence of depriving or denying the competent
authority to transfer a particular officer/servant to any place
in public interest and as is found necessitated by
exigencies of service as long as the official status is not
affected adversely and there is no infraction of any
prospects such as seniority, scale of pay and secured
emoluments. This Court has often reiterated that the order
of transfer made even in transgression of administrative
guidelines cannot also be interfered with as they do not
confer any legally enforceable right. ..........
Para 8. A challenge to an order of transfer should
normally be eschewed and should not be countenanced by
the courts or tribunals as though they are Appellate
Authorities over such orders, which could assess the
niceties of the administrative needs and requirements of
the situation concerned. This is for the reason that courts
or tribunals cannot substitute their own decisions in the
matter of transfer for that of competent authorities of the
State and even allegations of mala fides when made much
be such as to inspire confidence in the court or are based
on concrete materials and ought not to be entertained on
the mere making of it or on consideration borne out of
conjectures or surmises and except for strong and
convincing reasons, no interference could ordinarily be
made with an order of transfer.
"(6). (2005) 7 SCC 227
Major General J.K Bansal V. Union of India &Ors.
Para. 12. ....... The scope of interference by the
courts in regards to members of armed forces is far
more limited and narrow. It is for the higher authorities
to decide when and where a member of the armed
forces should be posted. ............
"(7). (2009) 15 SCC 178
Rajendra Singh & Ors. V. State of Uttar Pradesh
Para 8. A Government servant has no vested right
to remain posted at a place of his choice nor can be insist
that he must be posted at one place or the other. He is
liable to be transferred in the administrative exigencies
from one place to other. Transfer of an employee is not
only an incident inherent in the terms of appointment but
also implicit as an essential condition of service in the
absence of any specific indication to the contrary. No
Government can function if the government servant insists
that once appointed or posted in a particular place or
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 14
position, he should continue in such place or position as
long as he desires.
"(8). (2010) 13 SCC 306
State of Haryana &Ors. V. Kashmir Singh & Anr.
Para. 12. Transfer ordinarily is an incidence of
service, and courts should be very reluctant to interfere in
transfer orders as long as they are not clearly illegal. In
particular, we are of the opinion that transfer and postings
of policemen must be left in the discretion of the State
authorities concerned which are in the best position to
assess the necessities of the administrative requirement of
situation. ........
Para. 14. ......... Courts should not, in our opinion,
interfere with purely administrative matters except where
absolutely necessary on account of violation of any
fundamental or other legal right of the citizen. .........
"(9). (2004) 12 SCC 299
Kendra Vidyalaya Sangathan V. Damodar Prasad Pandey
Para. 4. ....... Who should be transferred and posted
where is a matter for the administrative authority to decide.
.........."
[18] In connection with the first ground, this Court, after hearing the
submissions of the learned counsel appearing for the parties and after
careful examination of the relevant records, finds that there is no dispute as
regards the particulars of the posting tenures of the petitioners as reflected
hereinabove, except for the dispute as to whether the posting tenure of the
petitioners at 44 Bn. and 26 Bn. will be counted as posting tenure under the
N.E. Zone or not and whether the petitioners have already enjoyed 14
years posting tenure in the N.E. Zone or not.
[19] It has been submitted by Mr. S. Suresh that 26 Bn. and 44 Bn. were
shifted to Imphal by an order dated 09.02.1977 and till 03.08.2012, the said
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 15
26 Bn. and 44 Bn. were in the N.E. Zone. However, on the examination of
the said orders dated 09.02.1977, this Courts finds that the order did not
specifically mentioned about placing the 26 Bn. and 44 Bn. under the N.E.
Zone. Moreover, on examination of the said order dated 03.08.2012 relied
on by the learned ASG that the 26 Bn. and 44 Bn. located/deployed at Shri
Nagar, Jammu & Kashmir had been de-attached from Group Centre Imphal
and affiliated to MKG under Central Zone and Group Centre JDR under
Jammu & Kashmir Zone respectively and the said order nowhere
mentioned about placement of the 26 Bn. and 44 Bn. under N.E. Zone from
09.02.1977 till 02.08.2012. This factum has been fairly admitted by the
learned ASG and also submitted that the respondents could not produce
any order placing the 26 Bn. and 44 Bn. under the N.E. Zone.
On the other hand, order dated 05.07.2016 issued by the DG,
CRPF and relied on by the petitioners clearly shows de-attachment of the
26 Bn. and 44 Bn. from Central Zone and Jammu & Kashmir Zone and re-
affiliating to N.E. Zone.
[20] As the respondents have failed to produce any order showing
deployment or attachment of the 26 Bn. and 44 Bn. to N.E. Zone prior to
03.08.2012, from which date the said two Battalions have been affiliated to
Central Zone and Jammu & Kashmir Zone and in view of the order dated
05.07.2016 and de-attaching the said 26 Bn. and 44 Bn. from Central Zone
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 16
and Jammu & Kashmir and re-affiliated to N.E. Zone, this Court has no
option but to reject the contention of the respondents that the said two
Battalions were deployed or attached under the N.E. Zone since 1997 till
03.08.2012 and to accept the contentions of the petitioners that the said
two Battalions were affiliated to N.E. Zone only w.e.f. 2016. In the result,
this Court is of the considered view that the respondents have erroneously
calculated the posting tenure of the petitioners in 26 Bn. and 44 Bn. as
posting tenure under the N.E. Zone. Accordingly, it is to be held that the
petitioners have not enjoyed 14 years posting tenure in the N.E. Zone.
[21] So far as the rival contentions in respect of ground No. (iii) is
concerned, the Hon'ble High Court of Delhi while striking down Rule 43(a)
of the CRPS Rules, 1955 has given a directions at Para 71 of the judgment
dated 31.01.2019, directing the respondents to take all the consequential
steps within four months from the date of the judgment for arriving at a
decision regarding the retirement age of all the members of the CAPFs
irrespective of their ranks. The Government of India, Ministry of Home
Affairs, implement the directions of the Hon'ble High Court by issuing an
order dated 19.08.2019 fixing the date of retirement of all members of the
CAPFs including the CRPF personnel at 60 years.
In view of the above, the petitioners, who submitted their
representations well before the change of retirement age from 57 years to
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 17
60 years brought in by the order dated 19.08.2019, rightly claim for the
posting of their choice as provided under Para 5(ix) of the standing order
No. 07/2015. Accordingly, this Court is of the considered view that the
respondents have rejected the representations of the writ petitioners
without proper application of mind and without giving any reasons and this
Court has no hesitation to hold that the action of the respondents are
unreasonable and arbitrary.
[22] So far as the law laid down by the Hon'ble Apex Court in the cases
cited by the learned counsel appearing for the respondents is concerned,
this Court has no quarrel with the principle of law laid down by the Hon'ble
Apex Court and this Court is bound by the law laid down therein. However,
the only issue to be considered is whether the principle of law laid down by
the Hon'ble Apex Court in the facts and circumstances of those cases are
applicable in the facts and circumstances of the present case or not.
In the present case, the authorities have issued a detail
transfer and posting policy for effecting transfer and posting of non-
gazetted CRPF personnel under the standing order No. 07/2015 dated
04.08.2015. It is also an admitted and undeniable fact that all the transfer
and posting of non-gazetted CRPF personnels have been effected in terms
of the said transfer policy without any exception. In fact, the impugned
transfer ordershave alsobeen issued effecting transfer and posting of a
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 18
number of CRPF personnels including the petitioners in terms of the
transfer policy as contained in the said standing order No. 07/2015.
[23] Only after the petitioners challenged their transfer and posting order
by contending that their transfer and posting have been effected in violation
of the transfer policy as contained in Para 4(ix) and Para 5(ix) of the
standing order and only after the respondents failed to show that their
actions in effecting the transfer and posting of the petitioners are in terms of
the transfer policy under the standing order No. 07/2015, the respondents
cannot turn around and contend that their transfer and posting policy under
standing order No. 07/2015 is not binding to them and that the said
standing order does not create any enforceable right to the petitioners. This
Court respectfully refused to accept such contradictory stand of the
respondents and this Court is also of the respectful view that the authorities
relied on by the respondents are not applicable in the facts and
circumstances of the present case, inasmuch as, in all those cases before
the Hon'ble Apex Court, no transfer and posting policy as in the present
case was not involved and the Hon'ble Apex Court has no occasion to
consider the validity of any transfer order in terms of a well established
transfer policy issued by the authorities as in the present case.
[24] For the findings and reasons given hereinabove, the impugned
transfer order dated 31.01.2019, impugned signal dated 13.02.2019,
W.P. (C) No. 706 of 2019 With WP(C) No. 707 of 2019 Page 19
impugned signal dated 28.02.2019 and impugned signal dated 11.03.2019,
in respect of the present petitioners are hereby quashed and set aside. The
respondents are directed to consider the request of the petitioners for
allowing them to continue to serve at the Group Centre Imphal to the extent
permissible under the transfer policy as contained in standing order No.
07/2015. The respondents are further directed to release the pay and
allowances of the petitioners due payable to them as early as possible.
[25] With the above directions, the present writ petitions are disposed of.
JUDGE
FR/NFR
Lhaineichong
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