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IN THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Devashis Baruah, J.
GS-192254k Sri Borase Pradeep Vikram S/O. Sri Vikram Rajaram Patil – Petitioner
Versus
The Union of India Rep. By Joint Secretary (Br), Ministry of Defence (Earlier Designated As Secretary (BRDB)), Room No.418, (B) Wing 4th Floor Sena Bhawan, New Delhi and Ors. – Respondents
WP(C)/454 of 2022
Decided On : 08-12-2022
Constitution of India, 1950 - Article 226, 14 - Seeking transfer on deputation - Petitioner have challenged policy decision and consequential action by which petitioner’s application seeking transfer on deputation being rejected – Held, Reasons assigned in opinion of Court are justifiable reasons and cannot under any circumstances be said to be unreasonable, irrational or having no nexus to objects sought to be achieved - More so, when individuals posted at High Altitude Areas, form a class on its own - Under such circumstances, question of interference in respect to Para 2(c) of policy which have been impugned in instant proceedings do not arise in facts and circumstances of instant case - Consequently, order which have been passed on basis of Para 2(c) of policy cannot also be interfered with - From a perusal of impugned order, it transpires that reasons assigned for rejection of petitioner’s application have been only on account of Para 2(c) of policy - However, in affidavit, further reasons have been supplemented in terms with Para 2(l) of policy - Petition disposes of.
JUDGMENT :
Heard Mr. D. Borah, the learned counsel appearing on behalf of the petitioner and Mr. C. K. S. Baruah, Asstt. S.G.I. appearing on behalf of the respondent Nos. 1 to 5.
2. By way of the instant writ petition, the petitioner have challenged the policy decision included in the Office Memorandum bearing No.12279/POL Deput/DGBR/52/EG2 dated 10.01.2018 (for short the “Policy of 2018”) and the consequential action by which the petitioner’s application seeking transfer on deputation dated 31.12.2021 being rejected.
3. The brief facts of the instant case as could be seen from a perusal of the pleadings on record is that the petitioner was enrolled in the General Reserve Engineer Force (GREF)/Border Roads Organization (BRO) which is an integral part of the armed forces on 05.09.2009 in the post of Lower Division Clerk (LDC). Thereupon, the petitioner was promoted to the rank of Upper Division Clerk (UDC) in Level-4 of the 7th CPC w.e.f. 15.04.2021 vide HQ 763 BRTF (P) Vartak Assumption report No.1640/DPC/129/E1 Camp dated 17.04.2021. The petitioner is presently holding the rank of UDC since 15.04.2021 and is serving with HQ 763 BRTF (P) Vartak since 02.02.2021.
4. The respondent No.5 issued an advertisement published in employment News for the week ended 18-24 December, 2021 for the post of “Senior Secretariat Assistant” a Central Government Service, Group “C” (Non-gazetted) (Ministerial) on Transfer or Transfer on deputation (including short term contract) basis in the Level-4 of 7th CPC.
5. The petitioner submitted an application for the post of “Senior Secretariat Assistant” in Anthropological Survey of India to Commander HQ 763 BRTF and requested to accord permission for sending the application to them through proper channel vide his application dated 29.12.2021. The said application was however rejected vide the Office Letter bearing No.1632/29/E1 Camp dated 31.12.2021 by the Offg Adm Officer on the ground that the petitioner was not eligible for applying for transfer or transfer on deputation basis till completion of his normal tenure in HAA and in that regard, referred to the Policy of 2018 and more particularly to Para 2(c) therein. The petitioner therefore being aggrieved has approached this Court under Article 226 of the Constitution of India challenging the Policy of 2018 and more particularly Para 2(c) as well as the impugned order dated 31.12.2021.
6. This Court vide an order dated 01.02.2022 issued notice making it returnable by 11.03.2022 and further directed the respondent No.4 as an interim measure to forward the application of the petitioner to the respondent No.5, so as to reach the concerned office on or before 15.02.2022. It has also been mentioned in the said order that the respondent No.5 shall allow the petitioner to provisionally take part in the selection process awaiting further order of this Court.
7. It further appears on the records that the respondent Nos. 1 to 4 have filed a joint affidavit-in-opposition. In the said affidavit-in-opposition it has been mentioned that in view of the Policy of 2018 certain restrictions have been imposed while sending applications for deputation/inter departmental transfer/permanent absorption. Reference was made to Clauses 2 (c) and 2(l) which for the sake of relevance are quoted herein below.
(l) Individuals should be sponsored for higher post/post carrying higher pay scale only.”
8. It has further been mentioned that the Border Roads Organization is undertaking construction of number of strategically important roads including Indo China Border Roads (ICBRs) in the remote and inhospitable areas of the nation. It has been further been mentioned that the works are of high priority and the work is being done on war footing. The restrictions imposed by the Policy o
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