'Court Can't Substitute Its Discretion In Place Of Employer's': Karnataka High Court Refuses To Quash BSF Transfer Order

A division bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde while deciding on an intra-court appeal filed by the Ministry of Home Affairs, set aside the single judge bench order of May 25, by which the movement order issued to PS Venkatesh was quashed.

"The question as to which officer has to be posted at which place has to be decided by the employer and this court cannot substitute its discretion in place of employer's discretion," it observed.

Background

The Respondent-inspector joined the services in the year 1984 as a constable. He was supposed to superannuate in October 2020 and thus in accordance with Rule 10 of BSF (Tenure of Posting and Deputation) Rules, 2000, he was posted at his hometown, Bangalore, in 2018.

As per Rule 10, such members of the force having good record of service and free from disciplinary / vigilance angle, may be given posting near their home town, two years before attaining the age of superannuation.

Interestingly, the age of superannuation was extended by a period of three years and accordingly, the Respondent is supposed to retire in 2023.

In the above background, a movement order was issued by which the respondent was required to report to BSF, Odisha for temporary duty.

This came to be challenged by him before a single bench of the High Court, which allowed his petition. It was held that there are no extraordinary circumstances warranting transfer of respondent from Bangalore to Odisha at the fag end of his career.

Hence, the present appeal.

Arguments

Additional Solicitor General MB Nargund submitted that out of a total span of 36 years of service rendered by the respondent in BSF, he had served 15 years at Bangalore. In accordance with Rule 10 of the rules, he was posted at Bangalore, which is his hometown and his tenure of 2 years at Bangalore as contemplated by Rule 10 of the Rules stands already concluded.

The inspector opposed the appeal saying that the movement order has been passed in violation of Rule 10 of the Rules. It was further submitted that there is no concept of temporary posting in BSF and he is an injured soldier. Moreover, only 1 year 5 months is left for his superannuation.

Findings:

The court noted that,

"It is trite law that transfer is an incident of service and cannot be interfered with by this court until and unless the same is shown to be mala fide or is in violation of the norms or principles governing the transfer."

Referring to Rule 10, the court noted that the Respondent was posted in Bangalore and he has already completed two years of posting as prescribed.

"Rule 10 of the rules is an enabling provision, which has been complied with in the case of the respondent. The aforesaid provision has not been violated in any manner while issuing the movement order dated 08.02.2021," the Division Bench ruled.

Further, it observed that the appellant requires the Respondent's services for antinaxalite operations in the State of Odisha, the Respondent being a decorated and experienced officer of the disciplined force, having worked in very extreme areas of service in the country.

"Therefore, in view of the aforesaid stand taken by the appellants in the statement of objections, it cannot be held that no material exists on the record for transferring the respondent to Bhubaneshwar," the Court concluded.

Accordingly, it quashed the single judge order and directed the competent authority to consider the representation given by the respondent sympathetically within a period of six weeks.

Case Title: The Secretary Ministry of Home Affairs v. P S Venkatesh

Case No: WA 655/2021

Date of Order: November 25, 2021.

Appearance: ASG M B Nargund a/w Advocate Rajashekhar S, for appellant; Advocate H Sunil Kumar, for respondent.

Click Here To Read/Download Judgment