Dismissed

Siby Jose v. the Deputy Inspector General of Police

Kerala HC3 Oct 2012WP(C)/11515/2012

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed two writ petitions. It declined to interfere with a transfer order (Pallipuram to Manipur) citing tenure expiry and administrative exigency. It dismissed a challenge to the rejection of voluntary retirement because the underlying service record issue had already been settled by the authorities cancelling the disputed tenure.

What did the court decide?

Transfer was intercepted during interim but final interference declined; application for voluntary retirement rejected; writs dismissed.

Siby Jose Vs the Deputy Inspector General of… — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934`

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WP(C).No. 11515 of 2012 (L)

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PETITIONER(S):

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SIBY JOSE, ASSISTANT COMMANDANT, CENTRAL RESERVE POLICE FORCE, GROUP CNETRE, PALLIPPURAM, THIRUVANANTHAPURAM - 695 316.

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BY ADV. SRI.S.VISHNU

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RESPONDENT(S):

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1. THE DEPUTY INSPECTOR GENERAL OF POLICE, GROUP CENTRE, CENTRAL RESERVE POLICE FORCE, PALLIPURAM, THIRUVANANTHAPURAM - 695 316.

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2. THE INSPECTOR GENERAL,

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SOUTHERN SECTOR, CENTRAL RESERVE POLICE FORCE, ROAD NO 10C, NEW MP/ MLA COLONY, GAYATHRI HILLS, HYDERABAD 500 033.

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3. THE DIRECTOR GENERAL, CENTRAL RESERVE POLICE FORCE, CGO COMPLEX, LODHI ROAD, NEW DELHI - 110 003.

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BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA BY ADV. SRI.T.SANJAY, CGC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-10-2012 ALONG WITH WPC.NO.15812 OF 2012,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.11515/2012 L

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1:	TRUE COPY OF THE REQUEST DATED 14.11.2009 TO THE 2ND RESPONDENT.
EXHIBIT P2:	TRUE COPY OF THE OFFICE ORDER NO.T.IX-6/2010-ESTT-8 DATED 5/10 ISSUED BY THE 1ST RESPONDENT (RELEVANT PORTION).
EXHIBIT P3:	TRUE COPY OF THE MESSAGE DATED 4.5.2011 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P4:	TRUE COPY OF REQUEST DATED 25.4.2012 TO THE 2ND RESPONDENT.
EXHIBIT P5:	TRUE COPY OF SIGNAL NO.T.IX-23/12-ESTT.I DATED 18.5.2012 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P6:	TRUE COPY OF THE REPRESENTATION DATED 19.5.2012 TO THE 3RD RESPONDENT.
EXHIBIT P7:	TRUE COPY OF THE CERTIFICATE ISSUED BY DISTRICT MEDICAL BOARD, IDUKKI.
EXHIBIT P8:	TRUE COPY OF THE MEDICAL RECORDS RELATING TO THE PETITIONER'S PARENT.
EXHIBIT P9:	TRUE COPY OF NOTICE FOR VOLUNTARY RETIREMENT DATED 20.5.2012 SUBMITTED TO THE DIRECTOR GENERAL.

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RESPONDENTS' EXHIBITS:

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R1(A): COPY OF THE STANDING ORDER DATED 04/06/2001. R1(B): COPY OF THE ORDER DATED 30/03/2010. R1(C): COPY OF THE ORDER DATED 04/05/2011. R1(D): COPY OF THE ORDER DATED 22/06/2012. R1(E): COPY OF THE ORDER DATED 27/06/2012. R1(F): COPY OF THE PROCEEDINGS OF PHYSICAL CHECKING OF FAMILY QUARTERS.

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R1(G): COPY OF THE ORDER DATED 14/01/2012.

/TRUE COPY/

P.A.TO JUDGE

Kss

P.R.RAMACHANDRA MENON, J.

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W.P.(C) NO.11515 of 2012 (L) &

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W.P.(C) NO.15812 of 2012 (B)

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Dated this the 3^rd day of October, 2012

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JUDGMENT

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Two issues are involved in these writ petitions, preferred by the very same writ petitioner. The first one is whether the petitioner is entitled to be retained at the station at Pallipuram

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and whether Ext.P5 transfer order in the first case is liable to be intercepted. The second issue is whether the petitioner is entitled to go on voluntary retirement as a matter of right, with effect from 15.09.2012, which claim stands rejected as per Ext.P8 order dated 12.06.2012 produced in the second case, which according to the petitioner, came to be passed without reckoning the regularized service of the petitioner as given in Ext.P9 order (enabling him to complete the qualifying service of '20 years' for proceeding on voluntary retirement with effect from 15.09.2012).

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The sequence of events is as follows. The petitioner was appointed as a Sub Inspector and later was continuing as Assistant Commandant elsewhere. After considering his request

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W.P.(C) NO.11515 of 2012 (L) & W.P.(C) NO.15812 of 2012 (B)

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to have a home posting, he was given a transfer and posted at the station at Pallipuram in Thiruvananthapuram. On completing two years of service at Pallipuram, the petitioner was sought to be transferred out by Ext.P5, shifting him to the field station, Manipur; which came to be challenged by him by filing W.P.(C) No.11515/2012. When the matter came up for consideration before this Court on 21.05.2012, taking note of the submission that the petitioner had already submitted Ext.P9 application for voluntary retirement with effect from 16.09.2012, an interim stay of further proceedings pursuant to Ext.P5 transfer was granted, till the appropriate authority took a decision on Ext.P9.

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While so, the competent authority considered the application preferred by the petitioner for granting permission to go on voluntary retirement and it was rejected as per Ext.P8 order dated 12.06.2012 (in W.P.(C) No.15812/12) observing that the petitioner will be completing the minimum qualifying service to proceed on voluntary retirement only by February 2013; which in turn has been challenged in W.P.(C) No.15812/2012. The respondents have filed a detailed counter

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W.P.(C) NO.11515 of 2012 (L) & W.P.(C) NO.15812 of 2012 (B)

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affidavit in W.P.(C) 11515/2012 and a statement in the other writ petition. The learned Central Government Counsel for the respondents submits that a counter affidavit almost in similar lines as in the other case has been caused to be filed in W.P.(C) No.15812/2012 as well (which however is still to form part of the records).

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The learned standing counsel for the respondents submits that, there is absolutely no merit or bonafides with regard to the challenge raised against transfer, as the enabling order whereby the petitioner was brought to Pallipuram was on compassionate ground, for just one year, vide Ext.R1(b), taking note of the request made by the petitioner referring the ailments of his child who is stated as suffering from 'Down Syndrome'. Then the petitioner filed an application for extension of time, to be retained at Pallipuram, which was also considered favourably enabling the petitioner to continue for one more year, vide Ext.R1 (c) order dated 04.05.2011. It was thereafter that, the petitioner was sought to be shifted in view of the organizational requirements vide Ext.P5, which hence is not assailable under

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W.P.(C) NO.11515 of 2012 (L) & W.P.(C) NO.15812 of 2012 (B)

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any circumstance, submits the learned counsel. It is also brought to the notice of this Court that, the hardships and exigency projected by the petitioner have become stale, in so far as the wife and child have left the station and are now residing in Ireland. The petitioner is occupying the quarters, without the family therein, which in fact has necessarily to be alloted to other deserving persons for residing with the family. That apart, the petitioner does not have any vested right to continue at Pallipuram and more so when, the transfer given to the petitioner was clear and categoric, specifying the 'tenure'; which is not under challenge.

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With regard to the challenge against Ext.P8 order dated 12.06.2012 in W.P.(C) 15812/2012, the case of the petitioner is that, the said order came to be passed without reckoning Ext.P9 service of the petitioner (to an extent of 151 days which stands regularised as per Ext.P9 order dated 28.10.2011) and if the same is also reckoned, the petitioner will complete the qualifying service of 20 years on 15.09.2012, thus enabling him to proceed on voluntary retirement from the next

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W.P.(C) NO.11515 of 2012 (L) & W.P.(C) NO.15812 of 2012 (B)

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day and hence is under challenge. In response to the above submission, the learned Central Government counsel submits that, the petitioner was the custodian of the records and Ext.P9 order came to be procured by the petitioner in a clandestine manner which led to an enquiry. After the enquiry, the higher authority i.e., the Inspector General came to the conclusion that Ext.P9 order was not procured properly and in the said circumstance, the said order is stated as set aside/cancelled. The learned counsel submits that, the disputed period is not liable to be reckoned for the purpose of fixation of minimum qualifying service and that the petitioner will be completing the same only by February 2013. This being the position, the application preferred by the petitioner for voluntary retirement was rightly rejected and is not liable to be assailed.

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After hearing both the sides, this Court finds that, the interim order came to be passed by this Court in the particular circumstance, when it was stated that the petitioner was entitled to proceed on 'voluntary retirement' with effect from 16.09.2012 and that necessary application has already been preferred in this

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W.P.(C) NO.11515 of 2012 (L) & W.P.(C) NO.15812 of 2012 (B)

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regard. It was accordingly that, the transfer was intercepted till a final decision was taken by the competent authority on the said application. It remains a fact that, the concerned authority considered the same and passed an order rejecting the application for voluntary retirement. If the petitioner is aggrieved of the said order in any manner, it is for the petitioner to have it challenged by filing separate proceedings. In the above circumstance, this Court finds that the challenge raised by the petitioner against Ext.P5 order in W.P.(C) No.11515/2012 with regard to the transfer from Pallipuram to Manipur is not liable to be entertained by this Court as the posting given to Pallipuram was a tenure posting which is already over and also in view of the administrative exigency/organisational interest highlighted from the part of the respondents. Accordingly, interference is declined and W.P.(C) No.11515/2012 is dismissed. Similarly, with regard to the grievance projected in W.P.(C) No.15812/12 Ext.P9 order, no more exists, the same having already been cancelled and as such, there cannot be any interception with regard to Ext.P8 order. Accordingly, W.P.(C)

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W.P.(C) NO.11515 of 2012 (L) & W.P.(C) NO.15812 of 2012 (B)

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No.15812/2012 is also dismissed; however making it clear that, this will not bar the way of the petitioner in challenging the order cancelling Ext.P9, by way of appropriate proceedings.

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sd/- P.R.RAMACHANDRA MENON, JUDGE

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AMV

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W.P.(C) NO.11515 of 2012 (L) & W.P.(C) NO.15812 of 2012 (B)

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Siby Jose v. the Deputy Inspector General of Police

Case brief

What is this about?

What did the court decide?

Siby Jose v. the Deputy Inspector General of Police

Case brief

What is this about?

What did the court decide?

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