KABORAMBAM SAPANA CHANU v. The Union of India

HON’BLE THE CHIEF JUSTICE MR. SANJAY KUMAR HON’BLEMR. JUSTICE MV MURALIDARAN BEFORE For the Appellants : Mr. S. Samarjeet, Sr. PCCG For the Respondent : Mr. M. Devananda, Adv. Date of Order : 01.09.2022. Sanjay Kumar (C.J.): ORDER (ORAL) [1] The Union of India and the authorities of the Central Reserve Police Force (CRPF) are in appeal against the judgment and order dated 07.12.2021 passed by a learned Judge of this Court in WP (C) No. 332 of 2021. The said writ petition was filed by the respondent herein assailing the transfer order dated

24.03.2021, whereby he was transferred to 129 Bn. CRPF, Kokrajhar, Assam. WA No. 36 of 2022 By the judgment and order under appeal, the learned Judge allowed the writ petition and directed the authorities to consider the case of the writ petitioner in terms of Office Memorandum dated 30.09.2009, keeping in mind subsequent events as mentioned in the body of the order, and issue an order afresh within a time frame in relation to transfer of the writ petitioner to 155 Bn. or 173 Bn. Till then, the writ petitioner was directed not to be disturbed from his existing place of posting. [2] Heard Mr. S. Samarjeet, learned Senior PCCG, appearing for the appellants; and Mr. M. Devananda, learned counsel for the respondent. [3] The main ground on which the respondent sought posting at either 155 Bn. or 173 Bn. was that his wife is a Central Government employee, presently positioned as a Joint Commissioner, Income Tax, at Dimapur, Nagaland, and he would be just a few hours journey away from her. [4] On the other hand, it was the stand of the CRPF authorities that the respondent, being a uniformed employee of the CRPF, could not insist upon a particular place of posting as transfer is an incidence of service.

They further contended that the respondent had served for 23 years 7 months in the North East Zone against the prescribed 18 years of zonal tenure. They asserted that he was not eligible to remain in the North East Zone, but considering the fact that his wife was working in the Income Tax Department at Dimapur and taking into account the instructions contained in Standing Order No. 03 of 2016 and the Office Memorandum dated 30.09.2009 of the Department of Personnel and Training, Government of India, a lenient view was taken and he was posted at WA No. 36 of 2022 129 Bn. CRPF, Kokrajhar. They stated that this location was just an overnight journey away from Dimapur, where the respondent’s wife was working. [5] Additional affidavit dated 31.08.2022 filed by the DIG, Manipur & Nagaland Sector, CRPF, furnished the full details of the services of the respondent since January, 1992, when he was first enlisted as an ASI/M in the CRPF. The tabular statement furnished therein manifests that the respondent was actually posted in the North East Administrative Zone for 21 years 9 months out of the total service of 25 years 8 months rendered by him.

Earlier, when he was transferred and posted at 182 Bn. in Jammu & Kashmir, he filed WP (C) No. 299 of 2018 before this Court. The said writ petition was disposed of on 25.08.2020, directing the authorities to sympathetically consider and dispose of the representation submitted by the respondent. Pursuant thereto, order dated

24.03.2021 was passed by the Inspector General of Police, CRPF, MP Sector, noting that there was no vacancy available at 155 Bn. in the rank of Inspector (Ministerial) but, keeping in view the instructions contained in the Office Memorandum dated 30.09.2009 of the Department of Personnel and Training, Government of India, and the transfer policy in Standing Order No. 03 of 2016, the Inspector General cancelled the earlier transfer order issued to the respondent and he was posted to 129 Bn. CRPF, Kokrajhar in Assam. It is against this order that the respondent filed the subject W.P. (C) No. 332 of 2021. [6] It is conceded by the CRPF authorities that one vacancy is available in the sanctioned post of Inspector (Ministerial) in 155 Bn. CRPF as on date. It is also clear from the order dated 24.03.2021 issued by the Inspector General of Police, CRPF, M.P. Sector, that not only the Standing Order No.

3 of 2016 but also WA No. 36 of 2022 the Office Memorandum dated 30.09.2009 issued by the Department of Personnel and Training (DOPT), Government of India, have relevance while deciding the posting of employees within the CRPF. [7] The Office Memorandum dated 30.09.2009 specifically deals with the posting of a husband and wife at the same station. It was issued in view of the utmost importance attached by the Government of India to the enhancement of women’s status in all walks of life and to enable them to lead a normal family life and also ensure education and welfare of their children. The Office Memorandum was issued upon reviewing the existing instructions in that regard, as it had been decided that when both spouses were in the same Central Service or working in the same Department and posts were available, they should mandatorily be posted at the same station. It was also found necessary to make provision for accommodating spouses working in separate Departments also.

In this regard, Clause 4 (iv) therein states as follows:

Where the spouse belongs to one Central Service and the other spouse belongs to another Central Service:- The spouse with the longer service at a station may apply to his/her 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 nearest station where the post exists. In case that authority, after consideration of the post exists. In case that authority, after consideration of the request, is not in a position of accede to the request, on the basis of non-availability of vacant post, the spouse will lesser service may apply to the appropriate cadre authority accordingly, and that authority will consider such requests for posting the said officer to the station or if there is no post in that station to the nearest station where the post exists.

[8] It is therefore clear that an endeavour has to be made to accommodate working spouses at the nearest stations possible.

Standing Order No. 03/2016 dated 29.12.2016 issued by the Directorate General, CRPF, New WA No. 36 of 2022 Delhi, lays down the transfer policy of Ministerial/Stenographic/Official Language Cadre within the CRPF. Clause 7 therein deals with various types of transfer and Clause 7(C)(f) deals with posting of a husband and wife & mahila officers/ officials. Sub clause (i) therein states that requests from a husband and wife, if they are in the same Department, shall be considered for posting at the same place/station/region in accordance with GOI, Ministry of Personnel Grievances and Pensions (DOPT), O.M. dated 30.09.2009, or at a place which may be covered by overnight train journey. It further provides that if, administrative exigencies do not permit so, the authority concerned must communicate specific reasons to the applicant for such posting. [9] It may be noted that no employee has a vested right to claim posting at a particular location even on spousal grounds.

The authorities concerned are however required to be sensitive to this aspect while effecting transfers and postings, and an endeavour should be made, as far as possible, to accommodate the spouses at least at the nearest stations if not at the same location, in terms of the policy adumbrated by the Central Government under its Office Memorandum dated 30.09.2009. [10] No mention has been made in any of the affidavits filed by the CRPF authorities that the respondent is found ineligible or unsuitable for posting at 155 Bn., where there is admittedly a vacancy available as on date. However, it is for the authorities concerned to exercise discretion in this regard and take an informed decision as to whether the respondent should be accommodated in the said vacancy. It is not for this Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution, to decide the possible location at which an WA No.

36 of 2022 employee should be posted. That discretion would invariably be with the authorities concerned, who would have to take multiple factors into consideration, including administrative exigencies, while effecting transfers and postings. [11] As the transfer order dated 24.03.2021, impugned in the writ petition, proceeded on the factual premise that there was no vacancy available in the post of Inspector (Ministerial) at 155 Bn., but that is not the situation obtaining as on date, it is for the authorities concerned to consider the said aspect also and thereafter dispose of the petitioner’s representation, seeking posting at the said Battalion. However, the restriction imposed by the learned Judge in the judgment and order under appeal that the authorities’ reconsideration of the issue would be limited to transferring the respondent to either 155 Bn. or 173 Bn. cannot be sustained, as this Court would not enter into the administrative domain of the CRPF and decide such issue. [12] The writ appeal is accordingly allowed to the extent of modifying the judgment and order dated 07.12.2021 passed in W.P. (C) No.

(C) No. 332 of 2021, by deleting this restriction and permitting the authorities of the CRPF to reconsider the case of the respondent herein sympathetically, in terms of the Office Memorandum dated 30.09.2009 and the factum of a vacancy being available as on date in the post of Inspector (Ministerial) in 155 Bn. In the circumstances, there shall be no order as to costs. Sapana JUDGE CHIEF JUSTICE WA No. 36 of 2022