Manipur High Court
Shri S. Kamginpao Vaiphei vs The Union Of India Represented ... on 6 September, 2022
1
JOHN Digitally signed
by JOHN TELEN
KOM
TELEN Date:
2022.09.07
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
KOM 13:51:54
+05'30'
WP(C)No.687 of 2022
Shri S. Kamginpao Vaiphei, aged about 45 years, s/o Shri
Henzakhup Vaiphei of Kamutampak, PO & PS Yairipok, District-
Senapati, Manipur- 795149, at present posting at 109 Bn
Mongsangei as CT/GD having F/No.035153969
....... Petitioner
- Versus -
1. The Union of India represented through its Home
Secretary(Ministry of Home Affairs) North Block, New Delhi,
Government of India-11001.
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 DIGP,(Estt) Dte CRPF, CGO Complex, Lodhi Road, New
Delhi-03.
5. The Commandant 109 Bn CRPF, Mongsangei, Imphal West
District, Manipur-795001.
WP(C) No. 687 of 2022 Page 1
2
.... Respondents
BEFORE
HON'BLE MR. JUSTICE M.V. MURALIDARAN
For the Petitioner : Mr. M. Devananda, Adv.
For the Respondents : Mr. BR Sharma, Sr.PCCG.
Date of reserved : 24.08.2022
Date of order : 06.09.2022
JUDGMENT & ORDER
(CAV)
[1] Heard Mr. M. Devananda, learned counsel for the petitioner
and Mr. BR Sharma, learned Senior Central Government Standing
Counsel for the respondents.
[2] By consent, the main writ petition itself is taken up for disposal
at the admission stage itself.
[3] The challenge in this writ petition is to the transfer and posting
order dated 15.7.2022 in respect of the petitioner, whose name finds place
at S.No.8 of the list of incumbents. The petitioner seeks to set aside the
same and allow the writ petition with a consequential direction to allow him
WP(C) No. 687 of 2022 Page 2
to complete his sector tenure in Manipur based Units/Bns of the Central
Sector as per Para 4(ix) of the Standing Order No.07/2015.
[4] The facts in a nutshell are as under: The petitioner entered as
CT/GD in the year 2003, pursuant to the order of appointment dated
28.6.2003. He completed his basic training from the Group Centre Langjing
from 28.6.2003 to 28.2.2005, thereafter, he was transferred and posted to
27 Bn at J&K (Srinagar), Manipur (INungba) and Delhi (Bawana Camp
CRPF) where he discharged duties from 28.2.2005 to 13.6.2012.
Thereafter, he was transferred and posted to 165 Bn located at West
Bengal (Tangasole Salua Kharagpur) from 13.6.2012 to 28.3.2017 and to
109 Bn located at Mongsangei, Senapati, Training Node ChilChil and Mao,
Manipur from 28.3.2017 to till date. By the impugned order, the petitioner
was transferred to GC-Neemuch.
[5] The case of the petitioner as put forth by learned counsel for
the petitioner is that he was transferred and posted to the 109 Bn located
at Mongsangei, Senapati Training Node ChilChil and Mao, Manipur with
effect from 28.3.2017 and 109 Bn even though geo graphically located in
Manipur, it is under the Central Sector and the petitioner is yet to complete
the Sector Tenure of 10 years under the M&N Sector as prescribed in Para
WP(C) No. 687 of 2022 Page 3
4(ix) of the Standing Order No.07/2015. The petitioner's case is squarely
covered by Para 4(xvi)(ii), (vi) and (viii) of the Standing Order for
relaxation/exemption of transfer for one year, but that was not done and he
was arbitrarily and illegal transferred to GC Neemuch under the Madhya
Pradesh Sector in violation of the stipulations laid down in the Standing
Order.
[6] It is stated that aggrieved by the same, the petitioner
submitted a representation on 21.7.2022 to the Commandant, 109 Bn
seeking for personal interview of the Inspector General (Pers) stating the
genuine problems being faced by the petitioner and his critical medical
conditions. The said representation of the petitioner was not considered till
date. That apart, as per Para No.4(ix) of the aforesaid Standing Order, a
person can serve in a particular Range/Sector for maximum 10 years and
in a particular Zone for 14 years, but the petitioner has not put in such length
of service and, therefore, considering his illness, he may be permitted to
continue at the present place to enable him to continue his medical
treatment at Psychiatry Department, RIMS, Imphal. However, ignoring the
aforesaid Standing Order, the transfer order has been effected in the case
on hand.
WP(C) No. 687 of 2022 Page 4
[7] The next plank of the argument is that the impugned order has
been issued directly by the office of the Directorate General of CRPF, New
Delhi, in contravention of the Standing Order No.07/2015, which stipulates
that inter-zone transfers will be monitored by a Committee comprising DIG
Estt and DIsG (Adm) of all zones as members to ensure fair balance across
zones.
[8] The submission of learned counsel for the petitioner is that
transfer of personnel are to be effect as per the provisions of Standing
Order, but the respondent are illegally and arbitrarily transferred the
personnel including the petitioner on the basis of the SANTOS guideline in
contravention of the provision of the Standing Order. The SANTOS
guideline cannot supersede or substitute the Standing Order as the
Standing Order has not been modified/reviewed till date and that the rights
of the petitioner under the provision of the Standing Order cannot be
forfeited by the SANTOS guideline.
[8] It is further submitted that by depriving the petitioner an
opportunity to make a representation against the transfer and posting, the
principles of natural justice have been violated and, moreover, in the
SANTOS App, there is no provision to submit a representation objecting the
WP(C) No. 687 of 2022 Page 5
transfer to the person of the cadre of the petitioner. The personnel was
permitted to make representation only on 13.7.2022 and the right for
submitting representations are available only to the officers starting from
the rank of SI/ASI/HC/GD, but not to the constables/lower rank personnel.
He added that the impugned transfer of the petitioner to GC Neemuch
effected through the SANTOS App is in violation of the provisions of the
Standing Order and the right of the petitioner for extension of one year in
the GC Imphal as per Para 4(xvi) (b)(ii), (vi) and (Viii) cannot be forfeited by
the SANTOS guideline.
[10] During the course of arguments, the learned counsel for the
petitioner has produced the order of this Court dated 9.8.2022 passed in
W.P.(C) No.589 of 2022 and the said writ petition was allowed by this Court
on the ground that the respondents have ignored the mandate postulated
in the Standing Order while considering the case of the petitioner for
transfer. He submits that the said order of this Court is squarely applies to
the case on hand, as the petitioner is similarly situated person. Thus, a
prayer is made to set aside the impugned transfer and posting order in
respect of the petitioner.
WP(C) No. 687 of 2022 Page 6
[11] Mr. BR Sharma, learned Senior Central Government Standing
Counsel on behalf of the respondents justified the transfer and posting
order and submitted that transfer is a condition of service. A Government
servant has no vested right to remain posted at the place of his choice. The
transfer order does not violate legal right of a person holding transferable
post, if he is transferred from one place to another in public interest. The
order of transfer is an administrative order. The Hon'ble Apex Court in a
catena of decisions held that the scope of judicial review in the matter of
transfer is very limited. The Courts should not interfere with transfer order
which is made for administrative reasons, unless an order of transfer is
shown to be outcome of malafide exercise or stated to be in violation of
statutory provision prohibiting any such transfer.
[12] We have considered the rival submissions and perused the
records.
[13] Before adverting to the merits of the matter, it is apposite to
refer to the relevant provisions of the Standing Order on which heavy
reliance has been placed by learned counsel for the petitioner:
"Para 4(ix): A person can serve in a particular
Range/Sector for maximum 10 years and in a particular
Zone for 14 years. It is compulsory for a NGO to serve in
WP(C) No. 687 of 2022 Page 7
a Zone other than his Home Zone for a period of 14 yars
at least once in his full service.
Para 4(xvi)(b)(ii) and (vi) and (viii):
(xvi) However, the eligibility conditions as laid down above
may be relaxed by one year in very deserving cases by
Sector IGP in the following Circumstances :-
(a) Sudden death of spouse or child.
(b) Transfer on medical grounds may be considered on
merit in case one's spouse or child suffering from any of
the following disease:-
i. Cancer
ii. Paralytic Stroke
iii. Renal failure
iv. Coronary artery disease, Thalassaemia
v. Parkinson's disease
vi. Motor-neuron disease.
vii. Infertility
viii. Any other critical/serious disease if recommended by
the board of medical officers/ Composite Hospitals.
Para 5 (vii) Inter-Zonal transfers will be monitored by a
Committee comprising DIG Estt as P.O. and DIsG
(Adm)/Comdt of Zones as members. Proper balance/in-
out ratio should be ensured."
WP(C) No. 687 of 2022 Page 8
[14] The basis for challenge to the transfer and posting order is on
medical grounds. It is the claim of the petitioner that at present he has
dizziness on and off due to stroke (left) temporo parietal i.e. Haemorrhage
and considering his illness, he has been categorized as P3(P). He needs
continuous treatment under the supervision and care by his family
members.
[15] It is not the case of the respondents that the transfer and
posting order has been passed in public interest. Therefore, that angle need
not be delved into. The order of transfer has been passed as a routine
summer transfer.
[16] A perusal of the service record of the petitioner shows that he
had worked at various places like J&K, Manipur, Delhi, West Bengal before
he was posted in present place. Medical records have been produced by
the petitioner showing that while he was working in 109 Bn Mongsangei, he
had a stroke and because of stroke, he was diagnosed as left temporo
intracerebral haemorrhage and even his vision was blurred. According to
the petitioner, the treatment of the petitioner is still continuing at RIMS,
Imphal.
WP(C) No. 687 of 2022 Page 9
[17] A perusal of the certificate dated 22.7.2022 issued by the
Head of Department of Neurology, RIMS, it is seen that the petitioner was
diagnosed intracranial haeomrrhag left fronto parelo termporal lobe with
sensory seizure with phychosis. In the said certificate, it has also been
stated that the petitioner needs help of his close relatives and needs regular
check up by Neurology/Psychai. The said certificate has not been seriously
disputed by the respondents.
[18] It appears that the petitioner has completed his tenure of three
years and, accordingly, based on routine summer transfer, a transfer and
posting order was issued to him. As per Para 4(ix) of the Standing Order, a
person can serve in a particular Range/Sector for maximum 10 years and
in a particular Zone for 14 years. When such is the provision, the
respondent authorities should have considered the request of the petitioner
in the light of the said provision. It also appears that the petitioner is going
to retire on 31.01.2023 and hardly 5 months service to be completed in the
present place.
[19] That apart, Para 4 (xvi) (b) ((ii), (vi) viii) mandates that the
eligibility condition for transfer may be relaxed by one year in deserving
cases and transfer on medical grounds may be considered on merits in
WP(C) No. 687 of 2022 Page 10
case one's spouse or child is suffering from "Paralytic Stroke", "Coronary
artery disease, Thalassaemia" and "Any other critical/serious disease if
recommended by the board of medical officers/ Composite Hospitals." In
the case on hand, the petitioner himself is suffering from intracranial
haemorrhage left fronto parelo temporal lobe with sensory seizure with
psychosis. The doctor's advice, referred supra, at this stage gains
credence. Nothing has been produced on behalf of the respondents to show
that the case of the petitioner was considered in the light of the advice given
by the doctor.
[20] This court, prima facie, is of the opinion that the respondents
have ignored the mandate postulated in the Standing Order referred supra,
while considering the case of the petitioner for transfer. The impugned
transfer and posting order is hit by the aforesaid provisions of the Standing
Order.
[21] The other grounds raised by the petitioner are that the
SANTOS Application which is used for effecting transfer does not provide
an opportunity to make a choice. The said aspect can be looked into by the
respondent authorities, to ensure that an opportunity is given to one and all
working in CRPF to put forth their request.
WP(C) No. 687 of 2022 Page 11
[22] The next ground urged was that the transfer and posting order
was effected in contravention of the Standing Order by an officer, instead
of it being by a Committee.
[23] Inasmuch as this Court is, prima facie, satisfied that the
impugned order is passed in contravention of Paras 4(ix) and Paragraph
4(xvi)(b)(ii) (vi)(viii) of the Standing Order, we do not propose to answer the
competence of the officer who passed the impugned order, as this Court is
remanding the matter to the respondent authorities for the reason that after
issuance of the impugned transfer order, the petitioner has submitted a
representation on 21.7.2022 and that has not been considered till date.
Moreover, the impugned transfer order was not given effect to till date.
Otherwise also, this is a fit case for interference in the transfer order of the
petitioner on medical grounds. The case of the petitioner is also covered
by the decision of this Court in W.P.(C) No.589 of 2022, decided on
9.8.2022 [Kiyam Sadananda Singh v. Union of India and others].
[24] For the foregoing reasons, the writ petition is allowed with the
following directions:
(i) the impugned order is set aside and matter is remitted to
the competent authorities to consider the case of the petitioner
WP(C) No. 687 of 2022 Page 12
and also in the light of the provisions quoted herein above from
the Standing Order, more so, considering the doctor's advice
qua the necessity of the petitioner's continuous treatment. The
respondent authorities shall consider the case of the petitioner
sympathetically, as he is having only 5 months to retire from
service.
(ii) The respondent authorities shall also consider the defect
pointed out by the petitioner in the SANTOS Application and
ensure that everyone working in CRPF is given an opportunity
to express his choice.
(iii) The case of transfer and posting shall be considered by
the competent authority in terms of the Standing Order, i.e., the
Committee comprising DIG Estt as P.O. and DIsG
(Adm)/Comdt of Zones as members.
(iv) There will be no order as to costs.
JUDGE
FR/NFR
John Kom
WP(C) No. 687 of 2022 Page 13
