Decided on April 08,2021



S.Talapatra, J. - (1.) These appeals are clubbed together for disposal by a common judgment in as much as by means of those appeals the common judgment dated 05.03.2020 delivered in W.P(C) No.868 of 2019, W.P(C) No.869 of 2019, W.P(C) No.870 of 2019 and W.P(c) No. 871 of 2019 has been challenged. The respondents filed the writ petitions being W.P(C) No.868 of 2019, W.P(C) No.869 of 2019, W.P(C) No.870 of 2019 and WP(C) No.871 of 2019, challenging the order dated 21.12.2019 issued by the Director General of Police through Asstt. Inspector General of Police (TSR), Annexure-R/4 to the memorandum of appeal. By this order, the respondents were transferred to the post of Naib-Subedar (General Duty) and posted in the battalion as shown against them in the said order. According to the appellants for such transfer, the respondent will have more promotional avenues as per rules in order of their original seniority in the General Duty trade. Their prospect shall not be affected for the reason that they had served in the motor transport platoon as Naib-Subedar (MTO). In the very order darted 21.12.2019, the purpose of such restoration has been provided. The purpose as espoused is for providing the respondents more promotional avenues beyond the post of Naib- Subedar (MTO). For opening up the prospects of promotion, the respondents had filed writ petitions in this High Court for directing the appellants for creation of the promotional avenues for them in the motor transport cadre and beyond.
(2.) Mr. Mangal Debbarma, learned Additional Govt. Advocate has submitted that the learned Single Judge has given a narrow meaning of the word 'transfer'. When someone is transferred to a post, the appointing authority reserves the right to call back him to the earlier post or to any other post in the same level. Even intra-battalion transfer can be made. Thus, there is no infirmity in the order dated 21.12.2019. True it is that learned Single Judge has observed that the re-transfer of the respondents is not justified. The appellants ventured to address the grievance of the respondents to open up more promotional avenues to the higher post. From the post of Naib- Subedar(MTO), there exist no promotional avenue. The said transfer by restoring the position of the respondents as the Naib- Subedar(General Duty) opens according to the appellants better avenues for promotion. Mr. Debbarma, learned Addl G.A has at this juncture stated that both the Naib-Subedar(MTO) and Naib- Subedar(General Duty) are borne in the same pay scale. However, he has referred to the Rule 33 of the Tripura State Rifles (Recruitment) Rules, 1984. By the said rule, it has been provided that the post of Naib-Subedar(MTO) shall be filled up by transfer of General Duty Naib Subedars having ability for the management of motor transport fleet, possessing flair for work relating to driving and maintenance of the motor vehicles and having qualification relating to Motor transport officers or from the equivalent course conducted by any army or Border Security Forces or Central Reserved Police Force or any other recognised institution. Since the respondents (the writ petitioners) were borne on the General Duty Naib Subedar and having the requisite qualifications they were recruited in the post of Naib Subedar (MTO) by the order dated 24.04.2012, Annexure-6 to the memorandum of appeal. In para-4 of the said order dated 24.04.2012, it has been clearly observed that the Naib Subedar including the respondents were transferred to the post of Naib Subedar(MTO) with effect from 04.03.2011 (date of holding the second DPC) against the available vacancies, their posting has been shown in the said very order. By virtue of that order dated 24.04.2012, the respondents have been continuing as the Naib Subedar(MTO). When the order dated 21.12.2019 was published, the respondents challenged the validity of the said order by filing the writ petitions. There is no dispute that all those writ petitions including the additional two other writ petitions were clubbed together and disposed of, by the judgment and order dated 05.03.2020 by a learned Single Judge of this Court. The learned Single Judge had observed that the writ petitioners (the respondents herein) had clearly indicated their preference for being continued in the post of Naib Subedar(MTO). Even in the order dated 21.12.2019, it has not been referred that at any point of time any respondent had opted to go back to the cadre of Naib Subedar (General Duty). Learned Single Judge has observed in para-11 of the said judgment, inter alia, as follows: '11. *******, the post of Naib Subedar (MTO) is to be filled by transfer of General Duty Naib Subedar, failing which from amongst Havildars (Auto Technician), failing which from amongst Havildars (Driver) who should have certain minimum educational and experience qualifications. Thus, the post of Naib Subedar (MTO) is to be filled, by way of first preference by transfer of Naib Subedar (GD). Only if this source fails, the second option can be exercised namely by way of promotion from the post of Havildar (Auto Technician). When the petitioners were already appointed on the post of Naib Subedar (MTO) way back in the year 2011, discharging their duties satisfactorily and are still willing to continue to do so, it cannot be stated that the first source for filling up of the said post has dried up.' Having observed thus, the learned Single Judge had answered the question stating that as and when such promotional post is created, the same shall be made available only to the Naib Subedar(MTO) who are appointed from the post of Havildar, Auto Technician . The writ petitions were disposed of. Now, in these appeals, the questions that we perceive to have been raised is that whether the word 'transfer' thus means a full recruitment by severing the link with the post from where the respondents were recruited by transfer to the post of Naib Subedar (MTO).
(3.) Mr. Debarma, learned Addl. G.A has strenuously argued before us that this is a transfer simpliciter and the word 'transfer' in the present context should only mean their transfer to the post without any recruitment therein and as such, at any point of time they can be called back to the post of Naib Subedar(General Duty). According to him, the entire Rule 33 has been restructured by way of amendment as carried out in 2013 by Tripura State Rifles (Recruitment) (Amendment) Rules, 2013. Even though, these Rules have been referred to show that the change that has taken place with effect from 07.09.2013 when the amendment rules were notified, but he has failed to persuade us. How a subsequent change in the rule can affect the recruitment of the respondents in the post of Naib Subedar(MTO)? In the notification dated 07.09.2013 by which, the amendment rules was notified. Those rules shall come into force on and from the date of the publication in the official gazette. Therefore, as is evidently clear that those rules were not given a retrospective operation. Mr. Debbarma, learned Additional G. A has brought to our notice meaning of the transfer or its applicability by reference to Rule 15 of Tripura State Rifles (Discipline, Control Service Condition, etc.) Rules, 1986. Rule 15 in the said Rules provides as follows: '15. Transfer. (1) All transfer within a Battalion/establishment shall be ordered by Commandant. (2) Inter-Battalion/Establishment transfers shall be ordered by the Deputy Inspector-General. Provided that for such transfers of Subedars prior approval of the Inspector-General Shall be necessary. (3) If a member of the Rifles of and below the rank of a Havildar of a Specialist Cadre (Like Signal, Clerical, Armourers, Band, Medical and Motor transport) is found unfit for his cadre, he may be transferred to a corresponding General Duty rank, irrespective of whether he has obtained requisite rank qualification for that rank or not and in such case rank qualification shall also not be required for the confirmation of the person concerned in corresponding general duty rank.' Emphasis added Mr. Debbarma, learned Additiona G.A has placed adequate emphasis on Sub-Rule 3 of Rule 15 as reproduced above. According to him, it shows that someone can be transferred back to the general duty rank. ;

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