Divyamol R.S v. Director General, Central Industrial Security Force, & Ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 5TH DAY OF JULY 2017/14TH ASHADHA, 1939 WP(C).No. 16682 of 2017 (I) ---------------------------PETITIONER: ----------DIVYAMOL R.S, ASSISTANT SUB INSPECTOR (MINISTERIAL - 073260253), PRESENTLY RESIDING AT QUARTER NO.A - 38, FACT TOWNSHIP, ELOOR, UDYOGAMANDAL, ERNAKULAM, KOCHI, PIN - 683 501. BY ADVS.SRI.T.SANJAY SRI.M.PREMCHAND RESPONDENTS: -----------1. DIRECTOR GENERAL, CENTRAL INDUSTRIAL SECURITY FORCE, CISF HEAD QUARTERS, 13 CGO COMPLEX, LODHI ROAD, NEW DELHI - 110 003. 2. THE INSPECTOR GENERAL (SOUTH SECTOR) CENTRAL INDUSTRIAL SECURITY FORCE, CHENNAI, PIN - 600 009. 3. THE DEPUTY INSPECTOR GENERAL (SOUTH ZONE) CENTRAL INDUSTRIAL SECURITY FORCE, BASANT NAGAR, CHENNAI, PIN - 600 090. 4. THE SENIOR COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE, COCHIN PORT TRUST, PIN - 682 009. 5. UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI, PIN - 110 003. 6. THE SECRETARY, MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS, GOVERNMENT OF INDIA, NEW DELHI - 100 001. R1 -R 6 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16682 of 2017 (I) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT-P1: TRUE COPY OF THE NOTIFICATION ISSUED BY THE PRESIDENT'S SECRETARIAT DATED 21.07.1997. EXHIBIT-P2: PHOTOCOPY OF THE ORDER DATED 07/07/2015 CANCELLING THE TRANSFER ORDER TO VISHAKAPATTANAM. EXHIBIT-P3: PHOTOCOPY OF THE TRANSFER ORDER DATED 16/03/2017 ISSUED BY THE 3RD RESPONDENT. EXHIBIT-P4: TRUE COPY OF THE OFFICE MEMORANDUM DATED 30.09.2009. EXHIBIT-P5: TRUE COPY OF THE CERTIFICATE DATED 07.03.2017 ISSUED BY THE FERTILIZERS AND CHEMICALS TRAVANCORE LIMITED. EXHIBIT-P6: TRUE COPY OF THE REPRESENTATION DATED 18/03/2017 SUBMITTED BY THE PETITIONER. EXHIBIT-P7: TRUE COPY OF THE JUDGMENT IN WRIT PETITION 9392/2017 DATED 20.03.2017. EXHIBIT-P8: TRUE COPY OF THE HANDWRITTEN REQUEST DATED 17.04.2017 AS DIRECTED BY THE 1ST RESPONDENT. EXHIBIT-P9: TRUE COPY OF THE ORDER DATED 11.05.2017 ISSUED BY THE 1ST RESPONDENT. EXHIBIT-P10: TRUE COPY OF THE OFFICE MEMORANDUM DATED 24.12.2014 ISSUED BY GOVT. EXHIBIT-P11: TRUE COPY OF INTERIM ORDER IN WPC.16682/2017 DT.22.5.2017. EXHIBIT-P12: TRUE COPY OF ORDER ISSUED BY AIG Estt.II DATED 15.6.2017. RESPONDENT(S)' EXHIBITS ----------------------- NIL. /TRUE COPY/ P.S TO JUDGE ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.16682 of 2017-I ------------------------------------------- _Dated this the 5[th] day of July, 2017_ ## _**JUDGMENT**_ The petitioner, who is an Assistant Sub Inspector (Ministerial) in CISF, has filed this writ petition aggrieved by the order Ext.P3 transferring her from Cochin unit to CISF Unit NTPC, Kudgi **,** in Karnataka and also by the orders Ext.P9 and P11 issued by the 1[st] respondent rejecting her request to retain her in the Cochin unit for one more year. 2. The petitioner was appointed on compassionate grounds. Her father late P.Sudarsanan laid down his life for the nation, in an encounter with the outloaded militants when he was working as Naik in CISF unit DHEP in Nagaland. She commenced her service in the year 2007 in the CISF Unit FACT, Udyogmandal. In the year 2013 she was posted in the CISF Unit at Cochin Port Trust. In the year 2015 she was transferred and posted at Vishakhapatnam Steel Plant as per order dt.17.6.2015. However, on a reconsideration based on her request, the respondents cancelled that transfer, as per Ext.P2 order dt.7.7.15. Ext.P3 order was issued thereafter on 16.3.2017 posting her at Kudgi Unit in Karnataka on induction of CISF at 2 W.P(C) No.16682 of 2017-I Kudgi Super Thermal Power Project (NTPC). 3. Petitioner's husband is employed in FACT, Udyogamandal, in a non-transferable post. There is no unit for that Public Sector Undertaking (PSU) outside the State. She has two girl children, the younger one is only one year old. Pointing out the difficulties faced by her on account of the transfer, the petitioner submitted a representation Ext.P6 before the 1[st] respondent requesting to permit her to continue in Cochin Unit, in the light of Ext P4 office memorandum. She pointed out that she is the sole female among the 98 officers who are posted in the CISF Unit NTPC Kudgi unit, as per Ext P3. The office memorandum Ext.P4 (especially clause iv, v and vi), provides for accommodating the spouses in the same station. Aggrieved by the transfer ordered as per Ext.P3, the petitioner had approached this Court and as per Ext.P7 judgment dt.27.3.2017 in W.P.(C) No.9392 of 2017, this Court directed the 1[st] respondent to consider and pass orders on her representation Ext.P6, while keeping in abeyance the order of transfer. Thereafter petitioner was granted an opportunity of hearing on 17.4.2017. However, Ext.P9 order was issued thereafter on 11.5.2017 rejecting her request. The petitioner challenges the order Ext.P9 filing this writ petition. As the representation was rejected pointing out that the petitioner did not W.P(C) No.16682 of 2017-I 3 submit the choice stations within the zone, this Court passed an interim order on 22.5.2017 directing the 1[st] respondent to consider Ext.P8 representation in which she had requested to retain her for one more year in the Cochin unit. Ext.P12 order produced along with I.A.9617/2017 was issued on 5.6.2017, rejecting her request, stating that the petitioner has continued in Cochin unit itself for the last 3 years and 7 months and she is serving in Kerala since January, 2008. Ext.P12 order is issued by the Asst.Inspector General saying that her representation was considered and regretted by the 1[st] respondent. The petitioner is therefore challenging the orders of transfer Ext.P3 as well as the orders of rejection Exts.P9 and P11. 4. Heard the learned counsel for the petitioner as well as the learned ASGI. 5. The petitioner sought for retention in Cochin Unit on the ground that her husband is working in a Central Public Sector Undertaking which does not have any unit outside the State and relying on Ext.P4 office memorandum issued by the Government of India. The learned counsel for the petitioner submitted that Ext.P4 order is having the force of statutory rules, in the absence of any statute which governs the transfers and postings of Government employees. Ext.P4 order was issued on 30.09.2009 4 W.P(C) No.16682 of 2017-I ## specifically regarding the posting of spouses at the same station. Clause v ## and vi of para.4 of Ext.P4 office memorandum read as follows: v) Where one spouse belongs to an All India Service and the other spouse belongs to a Public Sector Undertaking: The spouse employed under the Public Sector Undertaking may apply to the competent authority and said authority may post the said officer to the station, or if there is no post under the PSU in that station, to the State where the other spouse is posted. (vi) Where one spouse belongs to a Central Service and the other spouse belongs to a PSU:- The spouse employed under the PSU may apply to the competent authority and the said authority may post the officer to the station or if there is no post under the PSU in that station, to the station nearest to the station where the other spouse is posted. If, however, the request cannot be granted because the PSU has no post in the said station, then the spouse belonging to the Central Service may apply to the appropriate cadre controlling authority and the said authority may post the said officer to the station or if there is no post in that station, to the station nearest to the station where the spouse employed under PSU is posted.” The petitioner points out that the 1[st] respondent did not consider the request of the petitioner, in the light of Ext.P4 office memorandum and did not take any action to accommodate the petitioner near her spouse, when the very purpose for which the office memorandum is issued is “in view of the utmost importance attached to the enhancement of women status in all vows of life and to enable them to lead a normal family life as also to ensure the educational welfare of the children.” The petitioner points out that there are several vacancies of Asst.Sub Inspector (Ministerial) available in Ernakulam district itself including in her present unit. She also points out that she alone is picked up for a posting at Kudgi along with 97 male officers. The W.P(C) No.16682 of 2017-I 5 learned counsel for the petitioner argued that the Ext.P4 office memorandum is having the force of law and the respondents are bound to follow the same. 6. On the other hand, the learned ASGI argued that the 1[st] respondent has passed the order after considering all the aspects. The petitioner belongs to a disciplined force. Since her appointment is on compassionate grounds, she cannot be transferred outside the home zone. At the same time, there are several officers who are awaiting transfers to her place and her request was considered in the light of the guidelines which are available and applicable to the CISF. Pointing out para.4 of the order Ext.P9, the learned ASGI argued that the 1[st] respondent considered the case of the petitioner in the light of the guidelines for the CISF officers and he has found that the Government of India's policy on the subject shall be followed subject to the availability of vacancies and without disturbing the tenure of other personnel, apart from the administrative/operational exigencies of service. The 1[st] respondent found that the petitioner has completed 9 years and 3 months in Kerala since January, 2008 out of which 3 years and 5 months was in CPT unit. The transfer ordered is to a unit within her home zone. Whenever there is operational exigency, women 6 W.P(C) No.16682 of 2017-I personnel are also required to be posted anywhere in the country. In Ext.P9 the 1[st] respondent stated that the petitioner was afforded an opportunity to give 3 choice of the units outside Cochin station so that it can be considered sympathetically. But she insisted for posting in Cochin based unit. The 1[st] respondent found that all CISF personnel are required to be rotated on transfer in accordance with posting policy issued by CISF so that other CISF personnel of south sector can also get an opportunity to serve in their home zone/cochin based units. Since the petitioner insisted for a posting in cochin based unit itself, the 1[st] respondent did not find any ground for cancelling a transfer. It was thereafter that this Court passed an interim order directing the 1[st] respondent to pass orders on the representation Ext.P8 of the petitioner and it was again rejected as per Ext.P11 order, seeing that she has already completed 3 years and 7 months in CISF unit CPT Cochin against the normal tenure of 3 years. 7. The contention of the petitioner is that the respondents had already issued orders transferring the petitioner once, which was cancelled as per Ext.P2 order on 7.7.2015. Therefore, her tenure is liable to be reckoned only from the date of cancellation, i.e w.e.f 7.7.2015 and going by that order, she is entitled to continue for one more year. 7 W.P(C) No.16682 of 2017-I 8. The learned Standing Counsel, relying on the judgments of the Apex Court in **Bank of India v. Jagjit Singh Mehta [AIR 1992 SC 519]** and **Union of India and Ors. v. S.L.Abbas [AIR 1993 SC 2444]** argued that guidelines relating to transfer are not enforceable and the orders of transfer are not liable to be interfered with, in the absence of any malafides. On the other hand, the learned counsel for the petitioner relied on the Full Bench decision of this Court reported in **Ramachandran.N and Ors. v. S.Madhu & Ors.** [ **2012 2 KHC 51]** and argued that the orders impugned in the writ petition are violative of the directions contained in Ext.P4. According to him, when the rules are framed on a particular point, Government can issue executive orders and such orders would have the statutory force and therefore the order of transfer as well as Exts.P9 and P11 are to be set aside on that ground itself. The judgment in **Union of India and Ors. v. Sh. Somasundaram Viswanath and others [(1989) 1 SCC 175]** was also relied on in support of the contention that the directions in the office memorandum Ext.P4 are binding on all concerned. In that case, the Apex Court was considering the question regarding the selection for promotion by the departmental promotion committee and the applicability of the instructions contained in the office memorandum. The judgment in 8 W.P(C) No.16682 of 2017-I **Swapna Sukumar & Ors. v. State of Kerala and Ors. [2013 (2) KHC 869]** was also relied on, where this Court held that the notification issued by the PSC cannot go contrary to the Government orders prescribing qualification and that in the absence of statutory rules, executive orders of Government would govern. The judgment in **Devarajan and Ors. v. Union of India and Ors.** [ILR 2001 2 Ker.441] which was rendered in a case relating to the lowering of retirement age was also relied on, while asserting that the respondents are duty bound to implement the policy of the Government in Ext.P4. 9. Petitioner's contention that several posts are lying vacant for the past several years and she can be accommodated without disturbing others, is disputed by the respondents saying that several others are waiting for a posting in Cochin unit which is their home zone after completing their tenure outside. In these circumstances, this Court will not be justified in directing the respondents to retain the petitioner at Cochin Unit. It is well settled that scope of judicial review in the matter of transfers and posting is very limited and it is only when there is violation of statutory rules or proved malafides or absence of jurisdiction, that interference is called for. There is no such circumstance in this case. 9 W.P(C) No.16682 of 2017-I 10. Moreover, the petitioner belongs to a disciplined force. She has been accommodated in the home zone as her appointment is under compassionate ground. The petitioner has been continuing in Kerala for the last more than 8 years and in the Cochin unit itself for more than 3 years and 8 months. Her contention that the present tenure can be reckoned only from the date of cancellation of the last transfer in May 2015, is without any basis. 11. The judgments relied on by the petitioner in support of the contention that Ext.P4 is liable to be treated to have statutory force also do not help the petitioner, as none of those judgments relate to transfer and it is well settled that guidelines relating to transfer and posting do not have statutory force. Moreover, a member of CISF is liable to serve anywhere in the country. That provision is in no way diluted by any of the guidelines. The directions in Ext.P4 are to be considered in tune with the administrative exigencies within the CISF, which is within the exclusive domain of the respondents, as held by the Apex Court in the judgments relied on by the learned ASGI. 12. Therefore, I do not find any reason to interfere with the order of transfer or the orders rejecting the representations of the petitioner. 10 W.P(C) No.16682 of 2017-I 13. However, the respondents shall take steps to accommodate her in a station where there are other female officers and consider her case for a retransfer as and when there are vacancies available in Cochin unit after accommodating the officers who are awaiting transfers, without waiting for completing the three year tenure, in view of the fact the Government has been issuing orders like Ext.P4 for protecting the female employees. The writ petition is disposed of accordingly. **Sd/-** _**(P.V.ASHA, JUDGE)**_ _rtr/_