High Court · 2012

Judgment

1. -2011 passed by the learned Single Judge in W.P.(C) No.3458/2010 dismissing the writ petition filed by the appellant against his transfer from 25 Sector to 33 A ssam Rifles.

2. Case of the appellant as projected in the writ petition is that he was appointed as Naib Subedar (B&R) Engineering Branch of Assam Rifles on 19- 11-1988. On 01-03-2004, he was promoted to the post of Subedar (B&R), Assam Rifl es. At the relevant point of time, he was serving at HQ 25 Sect. Assam Rifles, L ekhapani, Assam, where he was posted on 18-07-2008.

3. The Directorate General of Assam Rifles issued an order dated 03 -05-2010 transferring amongst others the appellant from HQ 25 Sect. Assam Rifles , Lekhapani to 33 Assam Rifles at Bishenpur, Manipur.

4. Appellant challenged the said transfer order on the ground that his transfer was ordered before completion of three years of service at a statio n, which is not justified. The further ground of challenge is that after the Re- structuring of Peace Establishment of Assam Rifles as per Government of India, M inistry of Home Affairs’ Notification dated 26-08-2003, the concerned establishm ents in the Head Quarters are headed by Subedars, who are superior to Naib Subed ars whereas in Battalions, it is headed by Naib Subedars. Thus, when posted at 3 3 Assam Rifles, which is a Battalion, he would have to report to a Naib Subedar, who is junior in rank of him. The writ petition was resisted by the respondents by filing coun 5. ter affidavit. It was contended that as per Rule 3 of the Assam Rifles Rules, 19 85, the Director General of Assam Rifles has framed Standing Operating Procedure (SOP) dated 11-09-2009 regarding posting of centrally controlled category. The respondents have stated that the appellant was serving in the HQ 25 Sect., Assam Rifles since 17-07-2008. He was liable to be transferred from one station to an other by the competent authority in the exigency of service as per the SOP dated 11-09-2009. According to the respondents, 70% of Assam Rifles personnel are dep loyed in the State of Manipur in the national interest. Consequently, appellant was also posted to 33 Assam Rifles located at Bishenpur, Manipur in the exigency of service. It is further stated that while at the time of his entry in the Ass am Rifles, appellant had given an undertaken that he would abide by all lawful o rders issued by the competent authority, appellant has now made a volte-face to avoid duty at 33 Assam Rifles, which is considered to be a hard station. Referri ng to the SOP dated 11-09-2009, respondents have stated that Junior Commissioner Officers (B&R) like the appellant are liable to be posted to different battalio ns or units with the approval of the Director General in the exigency of service though the rank, status and pay-scales of the officers concerned would not be a ffected by such posting. Contention of the appellant that the battalions like 33 Assam Rifles is not an authorized place of posting of Subedar (B&R) is thus den ied by the respondents.

6. ngs and hearing the parties, dismissed the writ petition. The learned Single Judge after consideration of the rival pleadi

8. Aggrieved, petitioner has filed the present appeal. Mr. M.H. Ahmed, learned Counsel for the appellant submits that t he respondents couldnot give any convincing reply to the contention of the appel lant that the transfer order impugned would lead to an anomalous situation where by the appellant holding the rank of Subedar would have to report to a person ho lding the subordinate rank of Naib Subedar, thereby jeopardizing his rank and st atus as Subedar. He therefore calls for interference with the decision of the le arned Single Judge. Learned Central Government Counsel on the other hand supports th 9. e order of the learned Single Judge and submits that the appellant being a membe r of a disciplined force like the Assam Rifles is expected to maintain the highe st standard of discipline and obey lawful orders of the authority. He therefore prays for dismissal of the writ appeal.

10. The submissions made have been considered.

11. From a perusal of the grounds taken in the memo of appeal, it is seen that those are mere repetition of the grounds argued in the writ petition which were gone into by the learned Single Judge. On due consideration of the su bmissions advanced on behalf of the petitioner/appellant, learned Single Judge h eld as follows :- (cid:28) As regards the plea of the petitioner for tenure posting of three years, the i mpugned order being of 03-05-2010, he has already completed three years in the p resent place of posting. That apart, a personnel serving in the disciplined forc e, can be transferred even before completion of three years of tenure posting in the exigencies of service. Be that as it may, this aspect of the matter need no t detain us as the petitioner has already completed three years of posting in th e present place on the strength of the interim order passed by this Court. As regards the second plea of the petitioner that if the impugned order of trans fer of posting is to be carried out, he will have to work under his subordinates , the said apprehension has been repelled by the respondents in their counter af fidavit. It has been stated that as per the SOP dated 11-09-2009 an Engineer JCO (B&R) is liable to be posted to Battalions and Formation irrespective of their rank of Subedar or Naib Subedar in the exigencies of service. It has also been s tated that out of total number of 12 Subedar (B&R) serving in the force at prese nt, 5 are posted and are serving in different battalions namely, 5AR, 6AR, 20AR and 26 AR as per the posting orders issued from time to time. It has also been s tated in the affidavit that the rank, status and pay scale of officers are not a ffected by such posting, as has been contended by the petitioner. By the aforesaid re-structuring of Peace Establishment, Assam Rifles, the creati on, redeployment and abolition of posts was conveyed. By the said re-structuring , the sanction for re-structuring the battalions of Assam Rifles as indicated in the letter dated 19-08-2003 addressed to the Director General, Assam Rifles was also conveyed. As per the SOP (Standing Operating Procedure) posting of Enginee rs, JCOs and SKTs are on station basis and it is the Director General, who is em powered to post the Engineers JCOs and SKTs on station basis and the said person nel are to move from one station to another. In the instant case, it is not only the petitioner, who has been transferred, but there are other personnel, who ha ve also been transferred. In the writ petition, there is no allegation of any malafide and/or colourable e xercise of power. There is also no plea of violation of any statutory rules. On perusal of the materials, what has transpired, is that the petitioner alongwith others has been transferred in the exigencies of service and the pleas raised in the writ petition, in my view, are not sustainable in law. In view of the above, the writ petition is dismissed. The interim order operatin g in the writ petition, stands vacated. (cid:29) We see no reason to take a different view of the matter. Writ ap 12. pellate proceeding, though an intra Court appeal, is not intended to re-open and re-hear a concluded writ petition afresh which has been disposed of by the lear ned Single Judge on due consideration.

13. dingly dismissed. However, parties to bear their own cost. In view of above, we find no merit in the appeal, which is accor