tet' EN THE MGH COURT OF JIJDICATURE AT BIIASPUB CHHATTISGARH WRTT PETmON N0. rt,rie>\ /2004 K.M. Kabir, No. 914521346 Constable, S/o- Late K.M. Mohammed, Aged about 35 years, Presently Working as Constable ,CISF Unit Bhilai Steet Plant, Bhflai, Distt. Durg, Chhattisgarb. PETITJONER ^A^ 2. ^^ <A"^r^ AS,'t ^,^'^S. '"'" ,-^~ . -' ^' [^^^•••fiv . r&y' .^ K^'-1 ^" ^ VERSUS 1. Union oflndia, Through- Directorate General, ^ ..•••"'•x'^ Central Industrial Security Force, \o^\..--''c^> Ministry ofHome Affairs, ^^ ....••^^y ...••"' BIock No. 13, CGO's Complex, ^'^..^L-O^a^' Lodhi Road, New Delhi-03. Inspector General(NS) CISF,Camp,Saket, .cp<8'' wDelhi. Commandant/Oy. Commandant, CISF Unit, Bhilai Steel PIaflt, Bhilai, Distt. Durg, Chhattisgarfa. 4. Assistant CommandanVJAO, CISF Unit, Bhilai Steel Plant, Bhilai,Distt.Durg, Chhattisgarh. RESPONDENTS WRFT PETITION insiDER ARTICLE 226/227 OFTHE CONSTITUTION QF INDIA FOR ISSUANCE OF APPROPRIATE WMT IN THE NATURE OF MANDAMUS, CERTIQRARLETC, yA K.M. Kabir f 1 1::1 iii. Uaion of India and ofhers Postfor 01.08.2001 '",\ yi¥^ 'll.(»: Sd/- Sunil Kumar Sinha Judge iS HIGH CQURT OF CHHATTISOARH, BILASPUR W.P. No.3294/2004 K.M. Kabir Vs. Union of India and ofhers Shri Pankaj Shrivastava, counsel for the petitioner. Shri S.K. Beriwal, counsel for the respondents. ORDER (01.8.2005) Sunil Kumar Sinha, J, By way of fhis writ petition, fhe petitioner has chatlenged the legality of his transfer order dated 17.7.2004 and has also chatlenged the order of disinissal of his representation dated 30.8.2004, (2( The petitioner is a constable ia Cenfa~al Industrial Security Force (C.I.S.F). He joined the service on 318t Jaiiuaryl991. He belongs to Kerala (South Zone) and is continuously workutg in. C.I.S.F. Unit Bhilai Steel Plant, Bhilai, Distt Durg (C.G) since 1991. Durmg this period, for one year froia 1998 to 1999 he was posted ia Chandrapur. By impugned order dated 17.7.2004 the petitioner has been transferred from C.S.I.F. Unit Bhilai to 8th Res. Batallion, Kisthward, Jamm.u & Kashinir. The wife of the petitioner namely Smt.Prabha Kabir P.No.151507 is workmg as Junior StafF Assistaat in Central Accounts Section of Fiaance & Accounts Department of Bhilai Steel Plant for the last 1 1 years. In this inaaner, the husbaad aad wife were posted at one place. (3) The petitioner has chaUenged the validity of transfer on fhe ground fhat as per soine circular of fhe OfSce of the Director ',- fr' General, C.I.S.F. dated 30th of June 1994, gtiidelmes bave been issued and according to fhose guidelmes soine periods have been speci&ed for postmg of the constable aad inspectors in their Hoine Zone aad out ofhoine zoue. The details bave been inentioned ia Para 5.3 ofthe petition. The petitioner conteuds that fhe aforesaid ta-aasfer order is against the said guideluies and the same caa be interfered by this court. He has also chaUenged fhe order on the basis of soine ofher guidelines which, according to the petitioner, prescribes that as far as possible, fhe husband aad wife should be posted at the saoie station to enable them. to lead nonnal fanuly life. Besides the above, he has also challenged tbis order on accouiit of iUness of his wife who is facing soine G^ecological problem siace 2001 and is also a patient of high blood pressure. So far as chaUenge to fhe order of rejection of representation is conceraed, it is stated that the same is erroneous aad it has aot been decided oa the guideltaes ofthe departinent. (4( The retura on behaM" of the respondents has been filed. The respondents have contended fhat as per service records the petitioner belongs to Kerala state (south zone). He was posted in. Bhilai 6om 15.10.1991 to 31.5.1998 aad thereafter from 02.9.1999 to 21.9.2004. In between this period he also served at Chaadrapur from 01.6.1998 to 01.9.1999. Tbey have further conteuded fhat the Circular No. 16 of 1994 annexed as Aiuiexure P- 2 by fhe petitioner has been superseded by Circular No. Estt. II, 01/97 dated 03/21-7-1997. It is submitted that the petitioaer was appointed as Constable ia C.I.S.F-which is Group (C ) post. As provided in section 21 ofC.I.S.F. Amendment Act 2001 and Rule 72 ofC.I.S.F. Ainendinent Rules 2001, the semces ofthe uienibers of the Force are traiisferable at aay place withia India for which sonie agreement is also executed while recruiting the personnel ia C.S.I.F. According tq the respondents, as per the present posting guideUnes Annexure R-1 referred to above, fhe petitioner is eUgible for 3 years posting only at one station/uiiit. The petitioner has already completed niore thaa 11 % years of service at Bhilai, therefore, his postiBig froin Bhilai to Kistwar, Jammu & Kashmir, is accordiag to the present posting policy in the force. The petitioner beiag the ineinber of armed force of the Union has no ground to chatlenge the order of posting. (S) I have heard leamed counsel for the parties at length and have also perused the records ofthe writ petition. ^ (6( The law in relation to the traasfer is now weU settled. Now it is clear fhat the order of ta-ansfer, which is an incidence of service, caa oiily be interfered wifh if the same is shown to be arbifa-ary or inala&de or passed in ui&action of any prescribed uorms of pnaciples goveruiag the transfers. If the traasfer is neither inala&de nor arbitrary and it does not infiinge aay right of einployee the same cannot be iaterfered by the Courts ia routine. The case would have been differently govemed when the eiaployee claims that he was working on a non-traasferable post aad the transferwas not an incidence ofhis service. ^r (7) Referring to various earlier pronounceinents, fhe Apex Court, has observed in para 4 of the judgment rendered ia the niatter of Kendriya ViAyn Seuuihatan. -vs- Danwdqr Praseid. Pand.es (2004A SCWpg.SS63^ aa foUows:- Transfer which is aa iacidence of service is not to be iaterfered wifh by the Courts unless it is sbown to be clearly arbitraiy or visited by inala&de or mfraftinn of any prescribed norms of principles govemiag the traasfer (See Ambani Kanfa Ray -Vs- State ofOrissa, 1995 (Suppl) -f SCC 169). Unless the order of transfer is vitiated by inala fide or is niade i& violation of operative guidelmes, tlie Court cacmot interfere with it (See Uhion oflndia -Vs- S.L. Abbas, AIR 1993 SC 244-?). Who should be transferred aad posted where is a inatter for the adinirustFati.ve authority to decide. Unless the order of transfer is vitiated by mala fide or is inade ia violation of operative any guidelines or rules fhe Courts should not ordiaarily interfere with it In Union oflndia -Vs- Jcmardan Debanath & anr. (2004) -f SCC 245 it was observed as foUows: -•^t— 1-. "No Govemineiit servant or eniployee ofa public undertakuig Iias auy legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or categoiy of transferable posts from one place to aaofher is not only an iacident, but a coadition of service, necessaiy too iu pubUc iuterest aad efficiency in fhe public adiainistration. Uiiless an order of traasfer is shown to be an outeoiae of inala fide exercise or stated to be in violation of statutoiy provisions prohibiting any such trausfer, fhe Courts or ttie Tribunals nonnally cannot interfere with sucli orders as a matter ofroutme, as fhough fhey were fhe appellate authorities substituting their own decision for that bf the eiaployer/ laaaagenient, as against such orders passed ia fhe interest of adiiuoistrative exigencies of ftie service coiicemed. This positioa was highlighted by this Court ia Natioual Hydroelectric Power Corpn. Ltd., -Vs- Shri Bbagwan, (2001) 8 SCC 574". (8) If we examine the case of the petitioner ia light of the aforesaid enunciation of the Apex Court, it would appear that the petitioner has aot claimed for caaceUation of his traasfer either on the ground of mala fide or on the ground of arbitraruiess or on any other iacidental grounds Uke extraaeous consideration and exceptional cases etc. No pleadiags ia relation to laalafide or arbitraruiess or ittfnngenient ofaay statutory rule have been raade by fhe petitioner. The petitioner has also not pleaded that he is working on a uon-transferable post. Ifthe petition itselfis lacking on fhese grounds, certamly fhe iaterference ofthe Coui-t would not be caUed for aad fhe petition is Uable to be dismissed on fhis count alone. (9j So far as the groiuids ofpersonal difHculties ofthe petitioner Uke posting of husbaad aad wife at one place aad health condition of fhe wife etc., are concerued, this Court is of fhe opinion that they could hardly be a ground for interference with the orders of transfer by a courtoflaw. These are the fields of considerations of fhe einployer for his eniployee. The einployer has to work on fhe luie of welfare of his eiiiployee aad if fhe eiuployee faces soine personal difEculties it is always open for him to go to the einployer and subnut his difi&culties aad if the law permits, fhe einployer would look iato those difficulties of the einployee and as far as possible it should be reduce to non so as to keep the einployee ia a coiafortable position for reiidering aa exceUent service in favour of the einployer. These are not fhe grounds for consideration in a court oflaw. '^ (10) So far as fhe guidelmes are concemed, counsel for the petitioner could not point out as to how the transfer is vitiated according to the said guidelines. The subsequeut guideluies were issued after suppression of the earUer Circular in fhe year 1997. The petitioner has based his claim on the earUer Circular of 1994 for which fhe respondents have stated on oath that fhe said circular has been superseded and fhe new Circular vide Annexure R-1 has been. brought iato force. It is iinportant to nieution fhat no rejoinder to the said retum of the respondents has been filed by the petitioner to controvert this situation. More over, as has been held in the matter of Unlon. of India -Vs- S.L. Abbas AJS 1993 S.C. Pfl. 2444, the guidelines issued by the Goveminent do not confer upon au euiployee legaUy eitforceable right and fhe order of transfer inade wifhout foUowing the guideltaes caaaot be interfered wifh by the Court unless it is vitiated by mala&des or is uiade in violation of statutory provisions. The petitioner cannot take advaatage of the circular of 1994 and the arguinents of counsel for the petitioner on fhis grouiid caoiiot be accepted. (11( The pei-sons workiiig ui the force, Uke C.I.S.F. ia this case, carry inore responsibility thaa the persons workiag ia general civil services. Their postings are inade in accordance wifh the security oriented necessity of the departiaent. Their cases of posting cannot be viewed with a geneial eye. In the opiaion of this Court, no case for interference is ruade ia favour ofthe petitioner either to r' '-''fiao quash fhe traasfer order 'or to quash fhe order passed on representation. The petition has no inerit aad is accorduigly disinissed. No order as to cost 1 ' Sunil Kumar Sinha Judse J ./ -'-\ U.«t