SREEKUMAR S. v. UNION OF INDIA and OTHERS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 16TH DAY OF OCTOBER 2014/24TH ASWINA, 1936 WP(C).No. 8427 of 2013 (C) --------------------------- PETITIONER: -------------- SREEKUMAR S. (NO.811170267), AGED 52 YEARS SUBEDAR MAJOR/MINISTERIAL (SM/M) GROUP CENTER (GC) CENTRAL RESERVE POLICE FORCE(CRPF), PALLIPPURAM THIRUVANANTHAPURAM, S/O.M.V.SIVASANKARA PILLAI RESIDING AT 'SHIVASREE', KAIRALI NAGAR, KUNNUMPURAM PEYAD.P.O., TVM-695 573. BY ADVS.SRI.C.R.RAMESH SMT.M.KABANI DINESH RESPONDENTS: ----------------- 1. UNION OF INDIA - REPRESENTED BY ITS SECRETARY MINISTRY OF HOME AFFAIRS, SOUTH BLOCK NEW DELHI. PIN-110 001. 2. THE DIRECTORATE GENERAL CENTRAL RESERVE POLICE FORCE, CGO COMPLEX, LODHI ROAD, NEW DELHI-110 003. 3. INSPECTOR GENERAL (PERSONAL) CENTRAL RESERVE POLICE FORCE, CGO COMPLEX, LODHI ROAD NEW DELHI-110 003. 4. THE DEPUTY INSPECTOR GENERAL GROUP CENTER CRPF, PALLIPPURAM THIRUVANANTHAPURAM-695 316. 5. THE DEPUTY INSPECTOR GENERAL (P) RANGE HEAD QUARTERS, PALLIPPURAM THIRUVANANTHAPURAM-695 316. BY ADV. SRI.T.SANJAY, CGC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8427 of 2013 (C) --------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS --------------------------- EXHIBIT P1- TRUE COPY OF THE SIGNAL/SELO MESSAGE NO.T.IX.41/2011-MIN DTD. 10.10.2011 OF THE DIGCENT (ORG) DTE. EXHIBIT P2- TRUE COPY OF THE SIGNAL NO.P.VII-10/2012-C (8) DTD. 27.4.2012 PROMOTING THE PETITIONER TO SM/M. - EXHIBIT P3- TRUE COPY OF THE SIGNAL MESSAGE NO.P.VII-3/12-MIN DTD. 25.6.2012 OF DIGCENT (ORG). EXHIBIT P4- TRUE COPY OF THE SIGNAL NO.T.IX.18/2013-MIN DTD. 25.2.2013 OF THE DIGCENT (ORG) DTE. EXHIBIT P5- TRUE COPY OF THE REQUEST DTD. 25.2.2013 OF GC PPM. EXHIBIT P6- TRUE COPY OF THE REPLY DTD. 11.3.2013 OF THE 2ND RESPONDENT DIGCENT (ORG) DTE. EXHIBIT P7- TRUE COPY OF THE TRANSFER POLICY OF THE MINISTERIAL STAFF STANDING ORDER NO.2/2011. EXHIBIT P8- TRUE COPY OF THE ORDER DTD. 17.6.2008 IN WRIT PETITION NO.18090 OF 2007 OF THE ANDHRA HIGH COURT. EXHIBIT P9- TRUE COPY OF THE LETTER NO.T.IX-1/2012-13 DTD. 23/8/2013 OF THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS ----------------------------- EXT.R1(a): TRUE COPY OF THE SIGNAL DATED 27.9.2012. EXT.R1(b): TRUE COPY OF THE SIGNAL DATED 24.1.2013. EXT.R1(c): TRUE COPY OF THE SIGNAL DATED 26.9.2012. EXT.R1(d): TRUE COPY OF THE SIGNAL DATED 18.10.2011. // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ------------------------------ W.P.(C)No.8427 of 2013 ------------------------------Dated 16[th] October, 2014 ## **JUDGMENT** The petitioner is working as Subedar Major (Ministerial) in Group Center, Central Reserve Police Force (CRPF), Pallippuram. This writ petition has been filed challenging Ext.P4 to the extent it orders transfer of the petitioner to Central Zone. The further prayer of the petitioner is for issuance of a writ of mandamus commanding the respondents to retain the petitioner in the post of Subedar Major (Ministerial) in the present station itself till the completion of the permissible period of stay as per Ext.P7 guidelines for transfer. The main contention of the petitioner is that Ext.P4 order of transfer is violative of Ext.P7 transfer guidelines inasmuch as Ext.P7, under normal circumstances, permits a normal stay of 4 years to a transferee and that the petitioner stood transferred to the present station and joined there only on 27.12.2011 pursuant to Ext.P3. According to him, the request for cancellation of Ext.P4 transfer order ought not to have been rejected as per Ext.P6. It is the further contention of the petitioner that he has been in the service of the respondents for about 30 years and it is only subsequent to Ext.P3 that he got an opportunity to work in his WP(C).No.8427/2013 2 native State. That apart, it is contended that even after granting him promotion the said order to the extent it pertained to the posting was modified as per Ext.P3 taking into account solely of the fact that he had no home station service up to that time. A counter affidavit has been filed in this writ petition on behalf of the respondents. It is admitted that normal tenure as per Ext.P7 is 4 years. However, the case of the respondents is that such matters are also dependent on the policy decisions taken from time to time. Earlier, certain complaints were received to the effect that certain officials are availing continuously static/soft posting for more than two tenures and thereby depriving opportunity to other needy/eligible persons to work in such places and on finding substance in the said complaint a policy decision was taken as is obvious from Exts.R1(a) and R1(b). It was decided to transfer out such officials in order to rationalize the rotation of the ministerial staff to provide equal opportunity to every official to avail posting of their choice during summer chain transfer 2013. In essence, the contention of the respondents is that the petitioner has been transferred out from the south zone as per the impugned order in view of such policy decision. It is contended that the petitioner has been working under the south zone for about 15 years. The particulars of the posting of the petitioner are given in a tabulated form in paragraph 8 of the counter affidavit. Based on such particulars given thereunder it is contended by the respondents WP(C).No.8427/2013 3 that out of the total service of 27 years and 9 months the petitioner had served in the harder area only for a short period of 4-6 years. The petitioner has been working in a static/peace area in the south zone. Relying on the decisions of the Hon'ble Apex Court in **Shilpi Bose** v. **State of Bihar** ( **AIR 1991 SC 532** ), **Gujarat Electricity Board** v. **Atmaram** ( **AIR 1989 SC 1433** ) and **State of Madhya Pradesh** v. **S.S.Kourav** ( **AIR 1995 SC 1056** ) it is contended that the impugned order is not liable to be interfered with. 2. I have heard the learned counsel for the petitioner and also the learned Central Government Counsel. 3. The petitioner is aggrieved by Ext.P4 order of transfer as also Ext.P6 by which his request for cancellation of Ext.P4 order was rejected. Though the petitioner has taken up the contention that Ext.P4 order is vitiated by _mala fides_ no averments to establish the said allegation of _mala fides_ have been made in the writ petition. There cannot be any doubt with respect to the position that a vague allegation of _mala fides_ in the matter of transfer calls for no consideration. The identity of the person against whom the petitioner attributes _mala fides_ is not discernible from the pleadings in this writ petition and even if it can be said that the person can be identified without such person in the array WP(C).No.8427/2013 4 of parties such contentions cannot be gone into. In the said circumstances, the attack against the impugned orders on the ground that they are tainted with _mala fides_ cannot be gone into. 4. Obviously, the core contention of the petitioner is that Ext.P4 order of transfer was issued without giving due regard to the transfer policy enunciated under Ext.P7 guidelines. It is the contention of the petitioner that going by Ext.P7, under normal circumstances, a transferee to a particular station would be getting a normal stay of 4 years in the transferred place. It is his contention that since he was posted to Pallippuram only as per Ext.P3 order and joined at the said station only on 27.12.2011 he is entitled to continue there for a period of four years. Essentially, such a claim is founded on the provisions in Ext.P7 guidelines. Going by the settled position of law transfer guidelines do not confer upon an employee any enforceable right and they are issued for the sake of guidance (See **Biju Patnaik University of Technology** v. **C.V.Raman College of Engineering (AIR 2012 ORISSA 185 = 2012 KHC 3042)** and **Rajendran Nair P.** v. **K.Pavithran and Others (2008 KHC 6947)** ). In **Babu** v. **State of Kerala (1988 92) KLT 248 (DB))** a Division Bench of this Court held as follows:- WP(C).No.8427/2013 5 “The norms enunciated by Government for the guidance of its officers in the matter of regulating transfers are more in the exigencies of administration than visiting of any immunity from transfer in the Government servant.” An order of transfer issued by a competent authority could not be lightly interfered with as, essentially, the right to distribute the man power available with a particular department is vested with the authority competent and it has to be exercised having regard to the exigencies of administration. In the said circumstances, normally, an order of transfer invites interference if it is passed by an incompetent authority or is made in violation of any statutory provision. The petitioner has not brought to my notice violation of any statutory provision. The grievance of the petitioner is that he came to Pallippuram, the present station, only on 27.12.2011 and therefore, going by Ext.P7 he could have a normal stay of 4 years viz., up to 26.12.2015. Though the petitioner places reliance on Ext.P8 judgment of the High court of Andhra Pradesh in Writ Petition No.18090 of 2007 in view of the decisions of this Court as also of the Hon'ble Apex Court referred to hereinbefore I do not propose to rely on the same to uphold the claim of the petitioner for continuance till 26.12.2015 in the present station. The respondents have specifically stated in the counter affidavit that the petitioner has been working in the south zone for more than 15 years. WP(C).No.8427/2013 6 ## 5. In **National Power Corporation Ltd.** v. **Shri. Bhagwan** **& Ors. ((2001) 8 SCC 374)** the Hon'ble Apex Court held that no Government servant or employee of public undertaking has any right to be posted for ever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service which is necessary, in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of _mala fide_ exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the appellate authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned. In the said circumstances, the petitioner cannot claim that he is having immunity from transfer or any indefeasible right to continue in a particular station for a prescribed period merely on the strength of Ext.P7 guidelines. A scanning of the contentions raised by the respondents in the counter affidavit would reveal the circumstances that constrained them to effect transfer of the petitioner who had worked for a considerable long period in the south zone to Central zone. South zone is considered to be a WP(C).No.8427/2013 7 static/peace area. In the said circumstances, according to the respondents, they are having a duty to see that the other personnel are also getting opportunity to work in static/peace area after having worked in harder areas for a considerable long period. Transfers effected by the respondents taking into account such aspects can only be in the exigencies of administration and in the interest of administration and therefore, the mere allegation of violation of guidelines could not and would not make the petitioner entitled to continue in the present station till the completion of the period of 4 years. In view of the discussion as above I do not find any merit in the challenge made by the petitioner against Exts.P4 and P6. This writ petition is, therefore, liable to fail. Having regard to the fact that the petitioner has been continuing in the present station on the strength of interim orders passed by this Court the respondents shall grant two weeks' time from the date of receipt of copy of this judgment to the petitioner to join at the transferred place. Subject to the above this writ petition is dismissed. Sd/C.T.RAVIKUMAR Judge TKS