MURUGA DAS Vs. REGIONAL COMMANDER

JUDGEMENT

(1.) The issues involved in these two writ petitions, filed by the same petitioner, are closely interlinked. The petitioner who was originally working as 'Pradhan Naik' under the respondents, was denied promotion to the post of 'Adh (SA)' The denial of promotion to the petitioner was quite contrary to the actual facts and figures and the relevant provisions of law, virtually defeating the rights and interest of the petitioner, which made him to approach this Court by filing W.P. (C) No. 23711/2011, which is stated as still pending. After approaching this Court, the petitioner was however given promotion as 'Adh (SA)'; but subsequently he came to be transferred to Kavaratti as per Ext. P6 order dated 12.01.2011, which transfer is under challenge in W.P. (C) No. 6074/2011. The petitioner, by virtue of the personal reasons, was not in a position to move out; particularly in view of the surgery undergone by his wife who was taking rest; the ailments of his child, the illness of his father-in-law and brother-in-law who were also residing with the petitioner and such other frustrating factors. It was in the said circumstance, that the petitioner submitted Ext. P8 request before the Concerned authorities, to retain the petitioner for a further period of 'three months' without implementing the transfer and this was duly recommended by the higher officials as borne by Ext. P9. Simultaneously, the petitioner also filed Ext. P10 application for voluntary retirement on 18.02.2011 and thereafter approached this Court by filing W.P. (C) No. 6074/2011 challenging the transfer (Ext. P6), which was admitted on 25.02.2011 also granting interim stay.

(2.) The respondents filed I.A. No. 6364/2011 to vacate the interim order, but it was rejected and the interim order was not intercepted in any manner, as borne by the proceedings dated 02.06.2011. The respondents have filed a detailed counter affidavit, also producing copies of the relevant documents as Ext. R1(a) to R1(d). The case of the petitioner is that, the transfer of the petitioner ordered as per Ext. P6 is nothing but an instance of malafides, particularly in view of the fact that the petitioner had earlier approached this Court by filing a writ petition seeking for promotion. It is the case of the petitioner that, he was compelled to withdraw the said writ petition, which was not acceded to; which was to the chagrin of the respondents concerned, and hence the animosity, leading to the transfer order. On considering the pleadings and proceedings, this Court finds that, the plea of malafides is not specific and the same has not been substantiated by the petitioner. So also, it is settled law, that if 'malafides' is to be established, the person against whom the plea of malafides is raised, has to be necessarily impleaded in the party array in his personal capacity; which has not been done in the instant case. As such this, Court does not find any merit in this regard.

(3.) Coming to the scope of challenge against transfer, it is stated by the respondents that it has been ordered only in view of administrative exigency; which arose as a result of the requirement to widen the sea shore and check the high rated piracy that is going on. Considering the nature of the duty that is being performed by the respondents and the onus upon the members of the disciplined force, it was very much obligatory for the petitioner to have moved out, on passing of Ext. P6 order. It is also brought to the notice of this Court that the petitioner had requested to keep the transfer order in abeyance only for a period of three months, mainly referring to the ailments of his wife, who had undergone a surgery. This Court finds that the request made by the petitioner as per Ext. P8 was very specific, as given in paragraph 2 of the request to differ the transfer, which reads as follows: