Bijeta Chettri vs Union Of India & Ors

Amrita Sinha, J

The petitioner has challenged the order of detailment dated 30th July, 2019 issued by the Assistant Commandant, CISF Unit, Haldia Dock Complex, Haldia. By the said order the petitioner being a female member along with two other male members have been detailed for Internal Security, Delhi at CISF Unit of the Delhi Metropolitan Railway Corporation (DMRC). The said order of detailment was issued after obtaining the approval of the competent authority.

According to the petitioner the said order of detailment has been passed in violation of the communication dated 20th June, 2019 made to the Inspector General, CISF, SES, Headquarter, Ranchi and the message dated 21st June, 2019 written to all the Unit Commanders under the CIS, SEZ Headquarter, Kolkata with regard to exemption from deployment of lady constable at CISF Unit, DMRC, Delhi. The competent authority at the field headquarter approved to maintain status quo as manpower has been sanctioned to CISF Unit, DMRC on regular basis and likely to be posted. It was intimated that the strength deployed of IS duty pattern in DMRC will be withdrawn in total.

The petitioner alleges that the order of detailment is a transfer in disguise. The movement order has been issued to the petitioner without issuing an order of transfer. The same has been made with a view to punish the petitioner without initiating any departmental proceedings.

The petitioner submits that the Assistant Commander is not the competent authority to issue an order of transfer. The said order of transfer is liable to be set aside as the same has been issued by a person who lacks the competence to issue the same.

The petitioner relies upon an order passed by a coordinate Bench of this court on 22nd February, 2016 in WP no. 2998 (W) of 2016 (Srikanta Saha -vs- Union of India) reported in (2016)3 Cal LT 184 in support of her case.

The petitioner prays for setting aside the impugned order of detailment dated 30th July, 2019 issued to her.

The respondent opposes the prayer of the petitioner. It has been argued that the detailment of the lady constable for internal security duty is temporary in nature and generally for a period not exceeding six months time period. During such temporary duty the constable will get travelling allowance/DA on tour in addition to her regular salary and during such period of temporary internal security duty the constable remains on the posted strength of the unit.

It has been submitted that at the time of joining CISF personnel are required to given an undertaking that they accept the liability to serve anywhere in India.

Upon getting the notice of detailment dated 30th July, 2019 the petitioner immediately absented herself from duties and did not accept her release order on 1st August, 2019 and submitted a certificate declaring medical unfitness and resumed duty on 10th August, 2019. The movement order was issued to the petitioner on 10th August, 2019. The petitioner made a general diary at the Unit Control Room for G.D. no. 1221 dated 11th August, 2019 for proceeding on internal security duty to the CISF Unit, DMRC, Delhi but failed to report thereat.

The respondents have denied that the order of detailment is an order of transfer in disguise. It has been submitted that the detailment is temporary in nature and several other lady constables posted at the CISF Unit at Haldia have already served the internal security duty at DMRC, Delhi on rotation basis. The detailment has been made purely in the interest of security duty. It is a routine process and there is no illegal motive behind the order of detailment.

It has been submitted that the petitioner being a member of a disciplined Force deliberately and intentionally failed to comply the order of the senior officers and remained on unauthorized leave. The same is an act of insubordination. As the detailment does not relate to posting of a member at a particular place accordingly no transfer order is required to be issued prior to or after an order of detailment. The personnel being detailed for internal security duty are rotated on regular intervals and the petitioner will also be rotated on completion of her tenure.

With regard to the communication dated 20th June, 2019 and 21st June, 2019 which has been heavily relied upon by the petitioner it has been submitted that the order of maintaining status quo of manpower on regular basis is no way connected and /or related with the order of detailment. No direction has been passed by the competent authority not to issue order of detailment in favour of lady constables.

It has been denied that the order of detailment has been passed by an incompetent authority. It has further been denied that the order of detailment has been passed in violation of the orders passed by the superior authority.

When the matter was taken up for consideration on 30th September, 2019 the court was prima facie of the opinion that the petitioner had been detailed at DMRC as a temporary measure and being a CISF personnel she is bound to act in accordance with the direction passed by the superior authority. It was made clear that in the event the petitioner chooses to join her place of detailment she may make a representation before the appropriate authority praying for exemption of duty for internal security at DMRC, Delhi. The joining of the petitioner would be without prejudice to her rights and contention available to her in the pending writ petition. No appeal being preferred the said order attained finality.

At the time of final hearing of the writ petition the court holds on to the view expressed earlier that the order of detailment is not an order of transfer. The order of detailment is no way related with the order of posting and accordingly the same is not required to be preceded with by a formal order of transfer.

The communications dated 20th June 2019 and 21st June 2019 does not mention that the order of detailment for internal security duty at DMRC cannot be passed in respect of lady constables, nor was the order of detailment revoked or withdrawn. Similar orders of detailment were passed and duly acted upon by other lady constables. There does not appear to be any illegality in issuance of the order of detailment. The same also does not appear to be in conflict with the communications dated 20th June 2019 and 21st June 2019 as the communications are meant for an absolutely different purpose, not related to detailment of members.

The decision relied upon by the petitioner in the case of Srikanta Saha (supra) deals with the order of transfer. The same does not relate to detailment orders. As the court has come to considered opinion that the order of detailment is not an order of transfer accordingly the principle laid down in the case of Srikanta Saha (supra) will not be applicable in the facts and circumstances of the instant case.

The petitioner being a member of a disciplined Force and having undertaken to 'serve anywhere' in India is bound by her undertaking. Serving anywhere does not necessarily mean that the member has to be posted there for a continuous period. The Force may also require temporary service for a short span of time. The place of posting does not change when a member performs duty on detailment. Disobeying the order of superior officers is not a very healthy practice and should be deprecated otherwise it will not be possible to maintain strict discipline as required in the Force.

There may be instances of genuine grievance of the members which is required to be resolved in a disciplined manner and not by disobeying and flouting the instructions of the superior officers.

The representation made by the learned advocate on behalf of the petitioner against the order of detailment on 31st July, 2019 mentions that it will not be possible for the petitioner to perform the internal security duty at DMRC Unit, Delhi as her son was ill and studying at school. It is not unusual for a member of the Force to maintain a family. The same does not mean that the member will not perform her duties allotted to her. The petitioner was all along aware that according to her service condition she is liable to serve in any part of the country and the duties and responsibilities of the family ought not to stand in the way of performance of her duties.

Duties are allotted to the members according to the administrative exigencies and requirement. A member can always raise a grievance and the authority will certainly consider the same in accordance with the relevant rules and regulations.

In the instant case I am of the considered opinion that the order of detailment has been passed in usual course of administration of duties and the same cannot and ought not to be confused with an order of transfer.

The writ petition does not call for any interference.

W.P No. 16784 (W) of 2019 is dismissed.

Urgent photostat certified copy of this order, if applied for, shall be given to the parties as expeditiously as possible on compliance of all necessary formalities.