Letkhopao Lhoujem And Others vs Union Of India And Others

M.V. Muralidaran, J

In these writ petitions, the petitioners are seeking to quash the inter-sector transfer order and to consequently direct the respondents to complete their tenure as per the Standing Order No.07/2015.

Since the order under challenge and the issue involved are one and the same, all the writ petitioners were taken up together and disposed of by this common order.

The petitioners in W.P.(C) Nos.540,551,552,553 of 2017 were working as Group Centre CRPF, Imphal and they were transferred to Tripura (TPA) Sector. Likewise, the petitioner in W.P.(C) No.539 of 2017 who was working as Group Centre, CRPF, Imphal which is under the North East Zone was transferred to the Central zone by the impugned inter-sector transfer orders. Vide interim orders dated 26.07.2017, the impugned transfer orders were suspended and the interim orders continue to be in operation as on today.

The case of the petitioners is that they have not completed their tenure in GC, CRPF, Imphal which is under the North East zone and they have been transferred and posted to Tripura sector. According to the petitioners, the transfer orders were issued illegally and arbitrarily and in violation of the standing order No.07/2015. Therefore, the transfer order is liable to be quashed and they should be permitted to remain at their place.

The respondents fired affidavit-in-opposition stating that the petitioner in W.P.(C) No.540 of 2017 has completed more than 12 years in Zone and also more than 12 years in Manipur and Nagaland sector and has availed 7 years and 8 months of home posting in 69 Battalion and GC CRPF, Imphal. It is stated that the petitioner in W.P.(C) No.551 of 2017 has completed more than 13 years in Manipur and Nagaland Sector and has availed more than 7 years as home posting. It is also stated that the petitioner in W.P.(C) No.552 of 2017 has completed more than 14 years in Manipur and Nagaland Sector and has availed more than 14 years as home posting during his entire service carrier of 21 years. It is further stated that the petitioner in W.P.(C) No.553 of 2017 has completed more than 12 years in Manipur and Nagaland sector and has enjoyed more than 16 years as home posting during his entire service. It is also stated that the petitioner in W.P.(C) No.539 of 2017 has completed more than 22 years in Manipur and Nagaland and has completed his tenure in the home sector as well as North East Zone.

According to the respondents, due to the above reasons, the petitioners Sector has been changed as Tripura Sector in the same zone and therefore, there is no violation in the transfer orders and prayed for dismissal of the writ petitions.

The learned counsel for the petitioners submitted that the impugned transfer order is contrary to the transfer policy, more particularly Para No.4(viii), (ix), (xiv) and para No.5(xvii) of the Standing order No.07/2015. He would submit that the petitioners in W.P.(C) Nos.540,551 to 553 of 2017 were posted in the M&N Sector, which is under the North East Zone only on 18.08.2016, however, the respondent authorities have issued the impugned transfer and posting orders.

On the other hand, the learned Assistant Solicitor General submitted that since the petitioner in W.P.(C) No.540 of 2017 has already availed 7 years and 8 months of home posting in 69 Battalion and GC CRPF, Imphal with effect from 31.10.2009 to 21.07.2017 against the prescribed tenure of static posting of 3 years and also completed normal sector tenure of 10 years since 44 and 69 Battalions CRPF, he was allotted to Tripura sector within North East Zone.

As far as petitioner in W.P.(C) No.551 of 2017 is concerned, the learned Assistant Solicitor General submitted that he had completed sector tenure of 13 years of service in Manipur and Nagaland against the prescribed normal Sector tenure of 10 years. He would submit that the petitioner in W.P.(C) No.552 of 2017 was allotted to Tripura Sector within North East Zone and has been posted to 9 Battalion vide order dated 20.06.2017. Similarly, the petitioner in W.P.(C) No.553 of 2017 was allotted to Tripura Sector within North East Zone and posted to 189 Battalion vide order dated 20.06.2017.

The learned Assistant Solicitor General next submitted that pursuant to the order of the DIGP (Estt.), Directorate General, CRPF, the petitioner in W.P.(C) No.539 of 2Ot7 has been relieved on transfer to 238 Battalion with effect from 21.07.2017 vide impugned Movement Order.

The learned Assistant Solicitor General then submitted that the petitioners who have been appointed to a transferable post are liable to be transferred, as a condition of service, from one place to another and they have no legal right to be posted forever at any one particular place and that there is no arbitrariness in the impugned transfer.

I have considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record.

The grievance of the petitioners is that the Directorate General, CRPF issued the standing order No.07/2015 for transfer of Non-Gazetted (Executive, Technical/Tradesman) Force Personnel including Mahila personnel. In the standing Order, it has been stated that normal tenure in field station is of 4 years and the hard field area/SOZ/Static and peace stations is 3 years. According to the petitioners, the standing order stipulates that a person can serve in a particular Range/sector for maximum 10 years and in a particular Zone for 14 years. Thus, it is compulsory for a NGO to serve in a Zone more than his Home Zone for a period of 14 years at least once in his full service. The further grievance of the petitioners is that they should not be transferred prematurely and hence they should be allowed to complete their tenure taking into consideration their grievances expressed in the representations.

There is no quarrel that the petitioners were appointed to a transferable post and are liable to be transferred, as a condition of service, from one place to another in the administration of the Force, but, the same should not be in a prejudicial manner.

In the present cases, aggrieved by the impugned Signal bearing No.T.IX-9/2017-NEZ.ADM.II dated 07.05.2017 transferring 168 personnel, in which the petitioners names were also found, they have submitted representations to the Inspector General of Police, Manipur and Nagaland Sector, Imphal, Manipur, through proper channel and the said representations were forwarded to the Deputy Inspector General of police, GC, CRPC for further needful action. However, by the Movement orders dated 21.07.2017, the petitioners were directed to proceed Tripura Sector.

It is pertinent to note that while issuing the impugned Movement Orders, the Deputy Commandant (Adm.) has not stated anything about the representations submitted by the petitioners. When the petitioners have submitted representations to the impugned Signal dated 07.05.2017, before issuing Movement orders, it is the duty of the respondent authorities to state about the representations whether they have been considered or not. Admittedly, in the cases on hand, the same has not been done.

According to the petitioners, the respondent authorities ought to have counted or taken into account only the period/tenure in a particular post/sector/range, but they have calculated the aggregate of all the periods spent in the post/sector/range contrary to the Standing Order. It is the say of the petitioners that the method adopted by the respondent authorities for transferring and posting the petitioners is illegal, as the petitioners were transferred and posted to GC Imphal only very recently and at the time of filing the present writ petitions, they have not completed even one year. It is the further say of the petitioners that they should have been allowed to complete their normal tenure in the GC Imphal in compliance of the Standing Order No. 07/2015, but that has not been done and subjected the petitioners to frequent transfer and postings illegally and arbitrarily. This court finds some force in the submissions made by the learned counsel for the petitioners while issuing the impugned transfer/movement orders, the respondent authorities have failed to look into the same.

Placing reliance upon the order of this court dated 12.06.2019 passed in W.P.(C) No.550 of 2018 (Shri Premvir Singh v. union of India and others), the learned counsel for the petitioners submitted that in similar circumstances, the Hon'ble Chief Justice of this court directed the petitioner therein to make a fresh representation and the authority was directed to consider such representation and also till such consideration of the representation, the interim order granted earlier shall continue and therefore in the case on hand too such order may be passed.

This court perused the order of this court dated 12.06.2019 passed in W.P.(C) No.550 of 2018. In the said case challenge was made to the order of transfer issued by the respondents therein and to permit the petitioner therein to work in M&N Sector HQ as DC (Law). Upon consideration of the submissions made by the learned counsel appearing on either side, the Hon'ble Chief Justice has passed the following order:

"9, In this view of the above, the respondents shall reconsider the transfer order in the light of the transfer policy and the exigency of service on its own merits. The authority will consider the issue afresh on the claim of the petitioner.

In this regard, Mr.S.Suresh, learned ASG pointed out that the petitioner should make a fresh representation within two weeks.

Mr.M.Devananda, learned counsel appearing for the petitioner has agreed to make such representation within two weeks from the date of receipt of a copy of this order in this regard.

In this view of the matter, writ petition is disposed of by directing the petitioner to make a fresh representation within a period of 2 (two) weeks from the date of receipt of a copy of this order. The authority shall consider such representation on or before 29.08.2019 thereafter. Till the representation is considered by the authority as above, the interim order granted earlier shall continue. If no such representation is made as per time prescribed, then Department may proceed as per law.

Writ petition is disposed of as above."

The learned Assistant Solicitor General submitted that since the impugned transfer is inter-sector, the petitioners cannot challenge the same. The aforesaid submission of the learned Assistant Solicitor General cannot be countenanced. Whether it is inter-sector transfer or transfer outside, it should be in consonance with the transfer policy and also in accordance with the Rules. Nothing has been produced by the respondents to show that the impugned inter-sector transfer was made after due deliberations. In the impugned Signal, no such discussions and/or deliberations is reflected and there is no reason whatsoever assigned.

Objecting the impugned signal dated 07.05.2017, the petitioners have submitted representations expressing their grievances. Admittedly, the said representations have not been considered by the respondent authorities. However, the Deputy Commandant (Adm.) issued the impugned Movement Orders directing the petitioners to report before the transferred posts.

Transfer is a condition of service and it does not hinge upon the status of an employee. An employee has no vested right to remain posted only at a particular place. It is within the domain of the employer to determine as to where the services of an employee are best required and where he could be best utilised. It is settled law that the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer order is in violation of any mandatory statutory rules or mala fide, or has been passed by an authority not competent to transfer. 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.

Though the Scope of interference by this Court with regard to service conditions of the members of Armed Forces is limited and narrow, considering the given facts and circumstances of the case, this Court finds that the impugned inter-sector transfer was made without looking into the clauses contained in the standing order No.07/2015. Further, the impugned Movement orders also do not contain consideration of the representations made by the petitioners. In such view of the matter, this court feels that it would be appropriate to follow the earlier order of this Court dated 12.06.2019 passed in W.P.(C) No.550 of 2018. Following the order passed in W.P.(C) No. 550 of 2018, if this court directs the petitioners to submit fresh representations and directs consideration of the same by the respondent authorities, no prejudice would be caused to them. During the course of arguments, the learned counsel appearing for the petitioners has agreed to such recourse and make representations within two weeks from the date of receipt of a copy of this order.

In this view of the matter,

a) the writ petitions are disposed of by directing the petitioners to make fresh representations to the respondent authorities within a period of two weeks from the date of receipt of a copy of this order,

b) The respondent authorities shall consider such representations within a period of two months thereafter, after affording a reasonable opportunity to the petitioners,

c) Till the representations are considered by the respondent authorities as stated above, the interim order granted earlier shall continue. If no representation is made as per the time