Manipur High Court

Digitally Signed By vs The Union Of India Represented ... on 9 August, 2022

                                                                              Page |1

SHAMURAILA
TPAM SUSHIL                            IN THE HIGH COURT OF MANIPUR
                                                 AT IMPHAL

SHARMA                                          WP(C) No. 615 of 2021
Digitally signed by
SHAMURAILATPAM            Shri E. Sushil Singh, aged about 39 years, S/O E. Mema
SUSHIL SHARMA
                          Devi of Naharup Makhapat, P.O. & P.S. Porompat, District
Date: 2022.08.10
                          Imphal East, at present posting at 69 Bn, CRPF as CT/GD
13:57:20 +05'30'
                          having IRLA No.015150412.

                                                                    ... Petitioner

                                                  -Versus-

                          1.    The Union of India represented through its Home
                                Secretary (Ministry of Home Affairs), North Block,
                                Government of India-110001.

                          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-795113.

                          4.    The Dy. Commdt. Group Centre CRPF Gurugram-
                                122001.

                          5.    The DC-ADM-GC CRPF Ranchi-834004.

                          6.    The Commandant 69 Bn, CRPF, Mantripukhri-
                                795002.

                                                                .... Respondents.

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BEFORE HON'BLE MR. JUSTICE M.V. MURALIDARAN

For the Petitioner :: Mr. M. Devananda, Advocate

For the Respondents :: Mr. S. Vijayanand Sharma, Sr.PCCG

Date of Hearing and Reserving Judgment & Order :: 06.07.2022

Date of Judgment & Order :: 09.08.2022

JUDGMENT AND ORDER (CAV)

This writ petition has been filed to issue a writ of

certiorarified mandamus to quash the orders dated 9.6.2020 and

1.7.2021 and the undated movement order and to allow the

petitioner to proceed on voluntary retirement as per Rule 43 d(1)

& (vi) of the CRPF Rules, 1955 from 69 Bn by accepting the

application dated 5.4.2021.

2. The case of the petitioner is that in the year 2020

when he was under attachment to the Central Swimming Team at

the GC Gurugram, the impugned order dated 9.6.2020 was

issued, thereby proposing to transfer and post him at GC Ranchi.

Despite the petitioner having problems of his mother suffering

from heart disease associated with old age and his child suffering

PRETERM/VLBW/Neonatal sepsis (Candida non

albicans)/Anaemia of prematurity/NNJ, the petitioner was

W.P.(C) No. 615 of 2021 Page |3

sincerely attending his duties. According to the petitioner, he was

eligible for proceeding on voluntary retirement on completion of

20 years of service as per Rule 43 (d) (1) of the CRPF Rules and,

in fact, on 5.4.2021, he had submitted an application to the

Commandant 69 Bn CRPF requesting to forward the same for

proceeding on VRS to the competent authority and for its

acceptance. According to the petitioner, no action was taken on

the said representation till date, instead, by the order dated

1.7.2021, the petitioner was transferred to GC Ranchi by striking

from the strength of 69 Bn with effect from 25.6.2021. A

communication dated 5.8.2021 was also sent to the Digcent GC

Gurugram to relieve the petitioner and consequently, an undated

movement order was issued by the Deputy Commandant GC,

Gurugram directing the petitioner to move to GC Ranchi.

Challenging the same, the petitioner has filed the present petition.

3. The respondents filed affidavit-in-opposition stating

that after completion of the normal tenure in 69 Bn, the petitioner

was transferred to GC Ranchi as per IG, CRPF Jharkhand Sector

Signal dated 9.6.2020 during Summer Chain Transfer 2020.

Since the petitioner was attached with Central Swimming Team at

GC Gurugram and was not likely to report to 69 Bn for further relief

on transfer to GC Ranchi, the case was taken up with IG, CRPF,

W.P.(C) No. 615 of 2021 Page |4

Jharkhand Sector to relive him on paper strength. Accordingly,

IG, CRPF, Jharkhand Sector vide order dated 25.6.2021

permitted 69 Bn to relieve him on paper strength and the petitioner

was relieved with effect from 25.6.2021 to GC Ranchi vide order

dated 1.7.2021.

4. It is stated that in the meantime, an application for

VRS was received from the petitioner. Since the case of transfer

of the petitioner to GC Ranchi was under process and also status

of his verification of qualifying service was not known to 69 Bn, his

application along with the connected documents were forwarded

to GC Ranchi. After verification, GC Ranchi issued an order

stating that the petitioner had completed only 18 years 5 months

and 21 days qualifying service upto 31.5.2021. Further, out of 20

years, 2 months and 8 days of the total service upto 31.5.2021,

the petitioner has 1 years, 8 month and 17 days of non-qualifying

service due to regularization of overstay from his leave for as

many as 7 times. Thus, he has not yet completed the 20 years of

mandatory qualifying service and not eligible for proceeding on

voluntary retirement as stipulated in Rule 48(A) (a) of CCS

(Pension) Rules, 1972. Hence, prayed for dismissal of the writ

petition.

W.P.(C) No. 615 of 2021 Page |5

5. Assailing the impugned orders, Mr. M. Devananda,

the learned counsel for the petitioner submitted that in the year

2017 petitioner's wife gave birth to their son prematurely and the

child was diagnosed as PRETERM/VLBW/Neonatal sepsis

(Candida non albicans)/Anaemia of prematurity/NNJ and is taking

treatment for the said ailment. Even after many years the health

of the child does not improve and requires constant medical

treatment. Further, the petitioner's mother is also suffering from

heart disease and despite having problems which requires his

personal attendance, the petitioner has been attending his duties

efficiently and sincerely.

6. The learned counsel further submitted that on

5.4.2021, the petitioner has submitted an application for voluntary

retirement to the Commandant, 69 Bn for onward forwarding to

the competent authority. Though the respondents are duty bound

to accept the request for proceeding on voluntary retirement as

per Rule 43 d (vi) of the CRPF Rules, they have failed to accept

the application and no reasons are given for failing to do so.

However, surprisingly, the petitioner was issued with the transfer

order dated 1.7.2021.

W.P.(C) No. 615 of 2021 Page |6

7. The learned counsel urged that the petitioner had

completed 20 years of an uninterrupted service in the CRPF and

has become very much eligible for proceeding on voluntary

retirement as per Rule 43 d (i) of the CRPF Rules. He submitted

that a similarly situated person approached this Court by filing

W.P.(C) No.401 of 2019, wherein this Court, by the order dated

30.5.2019, directed the petitioner therein to file a fresh

representation within a period of 15 days specifying the date on

which the petitioner seeks voluntary retirement and thereafter, on

receipt of the representation to be filed, the competent authority

shall consider the case. In the said case, pursuant to the order of

this Court aforesaid, an order dated 24.10.2019 was issued

allowing the petitioner therein to proceed on voluntary retirement.

The petitioner is similarly situated person and therefore, the said

benefit be extended to the case of the petitioner.

8. The learned counsel further submitted that the

petitioner is aggrieved by the fact that the mandatory notice period

of three months prescribed in Rule 43 d(i) of the CRPF Rules had

lapsed by more than 3 months till the filing of the writ petition.But

the respondents have failed to make any communication as to

why he was not allowed to proceed on voluntary retirement as per

Rule 43 d(i). Thus, the impugned orders have been issued in

W.P.(C) No. 615 of 2021 Page |7

violation of Rule 43 d(i) and (vi) of the CRPF Rules. Therefore, a

prayer is made to allow the writ petition.

9. This Court considered the rival submissions and also

perused the materials available on record.

10. The grievance of the petitioner is that due to

domestic problems, he has submitted a voluntary retirement

application on 5.4.2021, However, without considering the

application, the respondent authorities arbitrarily issued the

impugned transfer and movement orders transferring him from 69

Bn to GC Ranchi. According to the petitioner, he is eligible for

proceeding on voluntary retirement as per Rule 43 d(i) of the

CRPF Rules, 1955.

11. On the other hand, the respondents contended that

the petitioner has 1 year 8 months and 17 days of non-qualifying

service and, thus, he has not completed 20 years of mandatory

qualifying service. Hence, the petitioner is not eligible for

proceeding on voluntary retirement as per Rule 48(A)(1) of CCS

(Pension) Rules, 1972.

12. There is no dispute that the petitioner joined the

service as General Duty Constable (CT/GD) in the CRPF on

W.P.(C) No. 615 of 2021 Page |8

24.3.2021 and he was initially posted in GC Imphal, where he had

worked till 13.5.2022, during which time, the petitioner had

completed his basic training in GC Khatkhati. After completing

the training, the petitioner was posted at 69 Bn located at Tinsukia

from 13.5.2002 to 5.5.2003, Pulwama from 5.5.2003 to 20.7.2006,

Kolkata from 20.7.2006 to 16.3.2009, Mantripukhri from

16.3.2009 to 16.2.2016. From Mantripukhri, the petitioner was

again posted at 26 Bn located at Chas Bokoro on 16.12.2016 and

again was posted at 69 BnMantripukhri, IOCL Depot Malom,

ChilChil R Training Kangpokpi and at the Unit Headquarters

Mantripukhri from 16.2.2016 to 23.3.2021. While working at 69

Bn, on 5.4.2021, he had submitted an application for voluntary

retirement.

13. Rule 43 d (i) of the CRPF Rules provides that "any

member of the Force who has put in not less than 20 years of

qualifying service may, by giving notice of not less than 3 months

in writing to the appointing authority, retire from service voluntarily

and unless the exigencies of service require otherwise, he shall

be permitted to retire".

14. Rule 48-A(1) of the CCS (Pension) Rules, 1972

provides:

W.P.(C) No. 615 of 2021 Page |9

"48-A. Retirement on completion of 20 years' qualifying service

(1) At any time after a Government servant has completed twenty years qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service.

Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is-

                          (i)     On assignments under the Indian
                                  Technical    and       Economic     Co-
                                  operation (ITEC) Programme of the
                                  Ministry of External Affairs and other
                                  aid programmes.
                          (ii)    Posted abroad in foreign based

offices of the Ministries Departments.

(iii) On a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year."

15. Highlighting Rule 48-A(1) of the CCS (Pension)

Rules, the learned Government Advocate submitted that the

petitioner has not fulfilled the condition stipulated and out of 20

W.P.(C) No. 615 of 2021 P a g e | 10

years, 2 months and 8 days of total service up to 31.05.2021, the

petitioner has 1 year, 8 months and 17 days of non-qualifying

service, thus, he has not yet completed the 20 years of mandatory

qualifying service.

16. The break-up aforesaid given by the respondents

has been contested by the petitioner stating that on their own the

respondents have calculated the period and, in fact, the petitioner

has completed 20 years of service as on 24.3.2021 and that is

why, on 5.4.2021, he has submitted an application for voluntary

retirement on domestic grounds to the Commandant 69 Bn for

forwarding the same for proceeding on VRS to the competent

authority and for its acceptance.

17. The receipt of the voluntary application of the

petitioner was not disputed by the respondents. However, the

respondents in their affidavit-in-opposition stated that since the

case for transfer of the petitioner to GC Ranchi was under process

and also the status of his VQS was not known to 69 Bn, his

application was forwarded to GC Ranchi for further course of

action.

18. It appears that though the application of the

petitioner was dated 5.4.2021, the same was forwarded by 69 Bn

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only on 3.7.2021 vide Letter No.P.I-1/2021-69-EC-IV. The delay

in forwarding the application to the competent authority was not

properly explained by the respondents. When the forwarding of

the application was dated 3.7.2021, how the Dy. Inspector

General of Police, GC Ranchi could be able to give certificate for

verification of qualifying service under Rule 32 of the CCS

(Pension) Rules, 1972 on 25.5.2021.

19. When the respondent authorities have received the

application for voluntary retirement of the petitioner, they ought to

have passed a speaking order on it. In the instant case,

admittedly, no order has been passed on the application dated

5.4.2021. As rightly argued by learned counsel for the petitioner,

the respondents have failed to consider the application and

communicate a decision thereon to the petitioner. The failure of

the respondent authorities in not communicating the decision on

the voluntary retirement application dated 5.4.2021 seriously

affects the right of the petitioner.

20. Coming to the impugned transfer and movement

orders, admittedly, the transfer signal dated 1.7.2021 and the

movement signal were issued subsequent to the submission of

the application for voluntary retirement dated 5.4.2021. Thus, on

W.P.(C) No. 615 of 2021 P a g e | 12

the ground of non-consideration of the application dated 5.4.2021

and non-communication of the decision thereon to the petitioner,

the impugned transfer is unsustainable in law. Since the

impugned transfer and the movement orders were issued pending

the application for voluntary retirement and since the decision on

it was not communicated to the petitioner, transferring the

petitioner from 69 Bn to GC Ranchiis is not appropriate.

21. It is true that Courts should not interfere with a

transfer order which is effected 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.

22. It is well settled that who should be transferred where

is a matter for 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.

23. Though the scope of interference by this Court in

regard to members of Armed Forces is far more limited and

narrow, considering the facts and circumstances of the case on

W.P.(C) No. 615 of 2021 P a g e | 13

hand, the impugned transfer was made without even considering

the Standing Order No.7/2015. Therefore, the impugned orders

are liable to be set aside, as the same were issued pending

consideration of the voluntary retirement application dated

5.4.2021 and the communication thereon to the petitioner. For

considering the petitioner's voluntary retirement application and

pass orders on it, it would be appropriate to remand the matter

back to the respondent authorities. No prejudice would be caused

to either of the parties in remanding the matter for consideration

of the application for voluntary retirement of the petitioner dated

5.4.2021 and pass orders thereon by setting aside the impugned

transfer orders in the interest of justice.


24.            In the result,


               a)         the writ petition is allowed,


               b)         while setting aside the impugned transfer

orders dated 9.6.2020, 1.7.2021 in respect

of the petitioner and the subsequent

movement order, the matter is remanded

back to the respondent authorities for

consideration and communication of the

decision thereon to the petitioner,

W.P.(C) No. 615 of 2021 P a g e | 14

c) the respondents are directed to consider the

application for voluntary retirement of the

petitioner dated 5.4.2021 in accordance

with law and pass orders within a period of

six weeks from the date of receipt of a copy