Ajith Kumar S.K. v. Union of India & others

W.P.(C).No.24316/2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 16[TH] DAY OF AUGUST 2022 / 25TH SRAVANA, 1944** ## **WP(C) NO. 24316 OF 2022** ## **PETITIONER:** AJITH KUMAR S.K. AGED 40 YEARS CISF NO. 004340429, CONSTABLE/GENERAL DUTY CISF UNIT FACT UDL, ERNAKULAM, RESIDING AT QUARTER NO. 547/10, FACT CD TOWNSHIP, AMBALAMEDU, AMBALAMEDU.P.O., ERNAKULAM, KERALA, PIN-682303. BY ADVS. T.SANJAY SANIL KUMAR G. ## **RESPONDENTS:** 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110001. 2 THE DIRECTOR GENERAL/CENTRAL INDUSTRIAL SECURITY FORCE CISF HQ, CGO COMPLEX, LODHI ROAD NEW DELHI, PIN110003. 3 THE INSPECTOR GENERAL /CISF SOUTH SECTOR HEAD QUARTERS, CHPT CAMPUS, CHENNAI, PIN-600013. 4 THE DEPUTY INSPECTOR GENERAL/CISF, CISF SOUTH ZONE HEAD QUARTERS, RAJAJI BHAVAN, BASANT NAGAR, CHENNAI, PIN-600090. W.P.(C).No.24316/2022 2 5 THE SENIOR COMMANDANT CISF UNIT FACT UDL, UDYOGAMANDAL, ELOOR, ERNAKULAM, KERALA-683501. 6 DEPARTMENT OF PERSONNEL AND TRAINING MINISTRY OF PERSONNEL, PUBLIC GRIEVANCE AND TRAINING, REPRESENTED BY ITS SECRETARY, NORTH BLOCK, NEW DELHI (NCT) -110001. BY ADV S.MANU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 1.08.2022, THE COURT ON 16.08.2022 DELIVERED THE FOLLOWING: W.P.(C).No.24316/2022 3 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** **W.P.(C).No.24316 of 2022** **= = = = = = = = = = = = = = = = Dated this the 16[th] day of August, 2022** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers:- “ to declare that the petitioner is eligible to continue in the present station in the light of Ext P-6 Disability Certificate of the mother of the petitioner and Ext.P-7 Office Memorandum issued by DoPT; ll. to Issue a writ of Certiorari or any other appropriate writ or direction quashing Ext P-3 order of transfer Issued by the 24 respondent in respect of the petitioner; ill, to issue to issue a writ of Certiorari or any other appropriate writ or direction quashing Ext P-9 Order , and Ext P-10 Movement Order issued in violation of Ext P-7 Office Memorandum and Ext P-4 judgment of this Hon’ble High Court; iv. to direct the 2 respondent to re-consider and pass orders on Ext P-4 representation in the light of Ext P-6 Medical Board disability certificate, Ext P-7 Office Memorandum, Ext P-11, Ext 12 and P-13 certificates issued by the concerned authorities certifying that the petitioner is the main care giver of his disabled mother.“ ## 2.Heard the learned counsel for the petitioner and the learned ASGI appearing for the respondents. W.P.(C).No.24316/2022 4 3.It is submitted by the learned counsel for the petitioner that the petitioner is a Constable/General Duty presently working in the CISF Unit at FACT Udyogamandal under the 5[th] respondent. By Exhibit P1 order dated 28.03.2022, he was transferred to CISF unit Gua Ore Mines, Jharkhand. He submitted Exhibit P2 representation and preferred W.P. (C).No.13372/2022. The petitioner was informed that Exhibit P2 representation stands rejected and a speaking order was issued as Exhibit P3. W.P.(C).No.13372/2022 was disposed of by Exhibit P4 judgment directing consideration of the representation and to pass a reasoned order after referring to the documents produced by the petitioner, including medical records of petitioner's mother.. The petitioner submits that he produced all the relevant documents before the respondents, but Exhibit P9 order was passed again rejecting the claim of the petitioner for retention on the ground that the CISF transfer norms provided protection from routine transfers only to CISF personnel who have children with serious medical problems. The learned counsel for the petitioner submits that the specific grounds raised by the petitioner have not been W.P.(C).No.24316/2022 5 considered and that the refusal to consider Exhibit P7 DoPT Office Memorandum which provide protection from routine transfers to parents or children of physically or mentally disabled persons also was not taken into account while passing the impugned order. Relying on a decision of the Allahabad High Court in Neeraj Chaturvedi v. Central Bank of India and others (W.A.No.3793/2022), it is contended that the DoPT guidelines dated 8.10.2018 have been considered and it was held that rotational transfers are intended for a person who has not been protected by any compassionate or beneficial policy and where an employee is protected by such policy, the same cannot be ignored and such protection is liable to be granted. 4.Relying on the statements in the website of the Department of Personnel and Training, it is contended that the said DOPT is the formulator of policy with regard to regulation of service conditions, postings, transfers, deputation and other related issues in all Ministries/Departments. It is therefore contended that Exhibit P7 guidelines have overriding effect over any 6 W.P.(C).No.24316/2022 specific transfer guidelines issued for the CISF and that the petitioner's request for retention ought to have been considered. 5.The learned ASGI appearing for the respondents submits that all aspects of the matter, including the applicability of the DoPT guidelines have been specifically examined in Exhibit P9 speaking order. It is stated that the petitioner was never the principle care-giver in respect of his mother, who is residing in Neyyattinkara in Thiruvananthapuram district. It is submitted that the contention that the petitioner's mother is a mentally disabled person is only relied on by the petitioner to obtain a protection from transfer and that the petitioner is not entitled to any of the protections, since he admittedly has another sibling and has never been residing with the mother in her usual place of residence. It is further contended that it is only where there is no specific service condition prescribed for CISF personnel that the question of applicability of the DoPT guidelines arises and since the CISF guidelines governing transfer specifically provide for protection for parents of W.P.(C).No.24316/2022 7 disabled children, the petitioner would not be entitled to any further protection relying on Exhibit P7. It is submitted that the CISF is a uniformed service and the petitioner cannot seek protection from transfer lightly. Relying on a decision of a learned single Judge in **Sreekumar S v.Union of India and others** [ 2014(4) KHC 621], it is contended that an order of transfer invites interference only if it is passed by an incompetent authority or is made in violation of any binding statutory provision. It is submitted that violation of guidelines by itself would not render an order of transfer bad in law or void since an employee cannot have immunity from transfer or any indefeasible right to continue in a particular station. It is submitted that the petitioner had been continuing in the home sector for 14 years and he is due for the second out of home sector posting as he had completed 13 years and five months in the home sector as on the cut of date of inter sector transfer, 2022. 6.I have considered the contentions advanced. The petitioner is admittedly a member of a uniformed service, who is liable to W.P.(C).No.24316/2022 8 be transferred out in accordance with the transfer policies applicable to the members of the force. The contention that the CISF guidelines provides protection from rotational transfers only to parents of children having disabilities is also not specifically denied by the petitioner. The only contention of the petitioner is that Exhibit P7 guidelines provides for protection even when the disabled person is a parent. Even if that be so, the protection can be available only in case of the primary care-giver of the parent concerned. Though the petitioner has produced disability certificate in respect of his mother, the certificates produced by the petitioner would not disclose that he is the primary caretaker or that the mother was staying along with the petitioner at any point in time. Exhibit P7 considers the contention of the petitioner and comes to the conclusion that the petitioner is not entitled to the protection from the rotational transfer in the facts and circumstances of the case. In view of the fact that the only contention of the petitioner is that Exhibit P7 guidelines stands violated, I am of the opinion that the Exhibit P9 order is not liable to be set aside on the ground that the petitioner has W.P.(C).No.24316/2022 9 not been granted the protection from rotational transfer on the basis of Exhibit P7. Transfer being an incident of service and the petitioner being a member of a uniformed service, I am of the opinion that the petitioner can rely on a provision for protection from rotational transfer only if the CISF guidelines specifically provide for the same. The contentions raised therefore cannot be accepted. The writ petition fails and the same is accordingly dismissed. **==> picture [25 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.24316/2022 10 ## PETITIONER'S EXHIBITS |EXHIBIT P-1|TRUE COPY OF RELEVANT PAGES OF THE<br>CISF HEAD QUARTERS SERVICE ORDER NO211/2022<br>DATED 28.03.2022.| |---|---| |EXHIBIT P-2|: TRUE COPY OF THE REPRESENTATION<br>DATED 31.03.2022 SUBMITTED BY THE PETITIONER<br>ADDRESSED TO THE 2ndRESPONDENT.| |EXHIBIT P-3|TRUE COPY OF THE ORDER BEARING<br>NO.(750) DATED 17.05.2022 ISSUED BY THE 5th<br>RES ONDENT| |EXHIBIT P-4|CERTIFIED COPY OF THE JUDGEMENT DATED<br>25.05.2022 OF THIS HON'BLE HIGH COURT IN WP<br>NO.13372 2022| |EXHIBIT P-5|TRUE COPY OF THE TREATMENT CERTIFICATE DATED<br>25.03.2022 IN RESPECT OF THE MOTHER OF THE<br>PETITIONER| |EXHIBIT P-6|TRUE COPY OF THE DISABILITY CERTIFICATE DATED<br>06.05.2022 ISSUED BY THE MEDICAL BOARD IN<br>RESPECT OF THE MOTHER OF THE ETITIONER.| |EXHIBIT P-7|TRUE COPY OF THE OFFICE MEMORANDUM BEARING NO.<br>F. NO. 42011/3/2014 ESTT. RES DATED THE 8th<br>OCTOBER 2018.| |EXHIBIT P-8|TRUE COPY OF THE LETTER DATED 01.06.2022 SENT<br>BY THE PETITIONER ADDRESSED TO 3<br>THE 2ND RESPONDENT.| |EXHIBIT P9|TRUE COPY OF HE ORDER BEARING NO.3104 DATED<br>18.7.2022 ISSUED BY R2| |EXHIBIT P10|TRUE COPY OF MOVEMENT ORDER BEARING NO.504<br>DATED 19.7.2022| |EXHIBIT P11|TRUE COPY OF CERTIFICATE DATED 7.5.2022 ISSUED<br>BY THE PANCHAYAT PRESIDENT OF KUNNATHUKAL GRAMA<br>PANCHAYAT| |EXHIBIT P12|TRUE COPY OF CERTIFICATE DATED 23.7.2022 ISSUED<br>BY THE VILLAGE OFFICER ANAVOOR VILLAGE<br>THRIVANANTHAPURAM DISTRICT| W.P.(C).No.24316/2022 11 |EXHIBIT P13|TRUE COPY OF THE MEDICAL CERTIFICATE DATED<br>237.2022 ISSUED BY THE MEDICAL OFFICER, MEDICAL<br>COLLEGE UNIT, MENTAL HEALTH CENTRE,<br>THIRUVANANTHAPURAM.| |---|---| TRUE COPY **==> picture [432 x 59] intentionally omitted <==** PS TO JUDGE