Shri Parmal Singh And Another vs Union Of India And Others
2001 Latest Caselaw 787 Del

ORDER

Dr. Mukundakam Sharma, J.

1. The main grievance of the petitioners as raised in the present writ petition is against the order of transfer dated 19.2.1999 which is annexed to the writ petition as annexure 12 (page 71 of the paper book) issued by the Divisional Security Commissioner, transferring both the petitioners on administrative grounds. In the said order a request was also made by the Divisional Security Commissioner seeking for according post facto approval to the aforesaid order of transfer from the Chief Security Commissioner. By the said order the petitioner No.1 was transferred from Ghaziabad to Muzaffarnagar whereas the petitioner No.2 was transferred from Ghaziabad to Tapri. The petitioners in the writ petition have also incidently challenged the orders dated 14.12.1998 and 22.12.1998 whereby the respondent No.6 was reinstated and de novo enquiry was ordered and also order dated 11.6.1998 whereby respondent No.5 was posted as Divisional Security Commissioner, RPF, New Delhi.

2. Counsel appearing for the petitioners while advancing her arguments on the challenge to the legality of the aforesaid orders submitted that the aforesaid order of transfer was issued without the approval of the competent authority and that the said order was passed before expiry of the mandatory tenure attached to a particular post and therefore, the said order of transfer is illegal and invalid. It was also submitted by her that the posting of both the respondents 5 & 6 at the Prosecution Branch of Delhi Division who had recommended and passed the order of transfer against the petitioners were illegal and without jurisdiction and consequently, they had no jurisdiction to pass an order of transfer in respect of the petitioners and therefore, the order is required to be set aside. The counsel further submitted that the order of transfer was actuated by malafide and therefore, the same is required to be set aside.

3. Learned Additional Solicitor General appearing for the respondents however, submitted that according to Rule 90 of the Railway Protection Force Rules, 1987 the petitioners have an all India transfer liability, and since the aforesaid order of transfer was made in exercise of the aforesaid powers in the exigencies of service and for administrative reasons and to avoid local entanglements no grievance could be made by the petitioners as against the aforesaid order of transfer. he also submitted that in respect of the aforesaid order of transfer post facto approval was given by the Chief Security Commissioner and therefore, the said order was passed by the Competent Authority and the order cannot be said to be without jurisdiction. He also submitted that the respondents 5 & 6 were given the orders of posting in accordance with the provisions of the Rules and therefore, they have jurisdiction to issue an order of transfer of the petitioners to which also post facto approval was given by the competent authority. It was submitted that the petitioners could not have challenged the posting orders of respondents 5 & 6 in the writ petition as the petitioners couldn't be stated to be aggrieved persons as against the said posting orders of the respondents No. 5 & 6.

4. In the light of the aforesaid submissions of the counsel appearing for the parties I have perused the records placed before me and looked into the provisions of law and decisions relied upon by the parties hereto.

In exercise of the powers conferred by section 21 of the Railway Protection Force Act the Central Government has made a set of rules called the Railway Protection Force Rules. Rule 28 thereof provides that the Director General may from time to time, issue such directions in the form of directives relating to the enforcement and furtherance of the provisions of the Act and the rules, as he may think necessary and the superior officers and enrolled members of the Force shall be governed by such "Directives" in the performance and discharge of their duties. Reference was also made to the provisions of Rule 90 of the Rules which deals with the general rules of transfer. it provides that the transfer of members of the force may be ordered from one place to any other place in India in the exigencies of service or for administrative reasons or to avoid local entanglements of such members or for any such other consideration.

5. Counsel appearing for the petitioners laid emphasis on the provisions of Rules 93.2, 93.4 & 93.9 and therefore, the said provisions are extracted below:-

93.2 Ordinarily, no member of the Force shall be transferred from the one station to another unless he has been at that station for the normal prescribed tenure nor he shall be allowed to remain at that station for more than one year thereafter without the specific approval of the Chief Security Commissioner concerned in respect of enrolled members of the Force and of the Director General in respect of superior officers;

Provided that the members of the Force posted to bad climate areas or out of the way places may be transferred after they have served in such area or place for about two years.

93.4 Members of the Force who have been transferred out of a particular place or division on complaint of corruption or misconduct shall not be posted back to that post or place or division even if they so request.

93.9 Any members of the Force facing departmental proceedings and who is due for periodical transfer on completion of normal tenure may not ordinarily be transferred unless such transfer is in public interest or where such transfer is in the interest of expeditious finalisation of disciplinary proceedings.

6. Counsel appearing for the petitioners also placed reliance on the Standing Order No.15 dated 24.7.1996. The said Standing Order lays down the period of tenure of posting for various ranks. So far superior officers are concerned their tenure of posting was 4 years at one post, whereas Inspectors holding independent charge of a post was also 4 years at one post and for other enrolled members of the Force the tenure of posting was 5 years at one post. It is also provided therein that stations like Delhi, Calcutta, madras, Bombay etc. where there are number of posts and concentration of staff, members of the Force may be allowed to continue at such stations maximum up to two tenures by CSC concerned. Counsel for the petitioners submitted that the aforesaid standing order was in the nature of directive in terms of rule 28 of the rules which were binding on the respondents. It was also submitted that none of the petitioners completed his tenure of posting as prescribed in the said Standing Order but they only completed about 9 months in their posting when the impugned order of transfer was issued. It was also submitted by her that the order of transfer was passed by respondent No.6 without on the recommendation of the respondent No.5 without jurisdiction as they could not have been brought back and posted at their respective postings at Prosecution Bench of the Delhi Division in terms of the provisions of Rules.

7. The aforesaid order of transfer dated 19.2.1999 was issued on 1.3.1999 and the same was challenged through the present writ petition filed on 1.3.1999. While issuing notice, this court restrained the respondents from transferring the petitioners from the Prosecution Branch of Delhi Division at Ghaziabad until further orders. By virtue of the aforesaid interim order passed by this court on 1.3.1999 the petitioners are continuing in the same posting at the Prosecution Branch of Delhi Division at Ghaziabad till date. A bare reading of the said order indicates that the Divisional Security Commissioner by issuing the said order transferring the petitioners as aforesaid requested the Chief Security Commissioner to accord his post facto approval to the order of transfer. The Chief Security Commissioner gave his approval to the aforesaid order of transfer on 3.3.1999, but as interim order was passed by this Court staying the operation of the impugned order of transfer, the petitioners continued to remain in the same posting for the last three years even in spite of receipt of approval of the competent authority to the order of transfer.

8. The contention that the order of transfer was passed by a subordinate officer without any prior approval of the competent authority and, therefore, violative of the provisions of rule 93.2 is required to be considered at this stage. The said rule provides that ordinarily, no member of the Force shall be transferred from one station to another unless he has been at that station for the normal prescribed tenure nor he shall be allowed to remain at that station for more than one year thereafter without the specific approval of the Chief Security Commissioner concerned in respect of the enrolled members of the Force and of the Director General in respect of superior officers. However, an exception is provided to the aforesaid general rule, by providing a proviso which however, has no relevance to the facts of the present case and therefore, the same is neither required to be mentioned nor considered.

9. The provision of Rule 93.2 opens with the expression 'ordinarily' which itself indicates that the provisions is directory and not mandatory. There is no mandate in the said rule that a person cannot be transferred from one posting to the other even before completion of the prescribed normal tenure period. The said position is clear and apparent when the same is read Along with rule 90 which provides that a transfer cold be made of member of the Force from one place to any other place in India in the exigencies of service. In this connection reference may also be made to the statement made in the counter affidavit where in it is stated that the petitioners were transferred out to Muzaffarnagar and Tapri as it was felt that their continuance at Ghaziabad Prosecution Branch would seriously hamper the working of the Prosecution Branch and would also adversely affect its output. It is stated that in view of the aforesaid position the petitioners were ordered to be transferred in terms of the provisions of rule 90 of the Railway Protection Force Rules. Reasons for transferring out the petitioners have been cited in the counter affidavit and that orders of transfer have been passed in accordance with the provisions of Rule 90 in terms of which the petitioners could be transferred from one place to another place in India in the exigencies of service as also for administrative reasons and also to avoid local entanglements. The reasons cited in the counter affidavit for explaining the circumstances under which the petitioners were transferred out are fair and reasonable. The petitioners by virtue of the interim order of this Court continued to work at the Prosecution Branch in the Delhi Division for all these years and therefore, as of now they are also almost completing their normal period of tenure of five years. Therefore, reliance on Rule 93.2 and the directives is misplaced and the same does not in any manner advance the cause of the petitioners.

To the aforesaid order of transfer post facto approval has been granted by the Chief Security Commissioner on 3.3.1999 to which there is no dispute. But the grievance was that such approval should have been prior and not post facto. The said contention however, cannot be accepted as a post facto approval given by the competent authority would make the order of transfer still valid, particularly, when the order of transfer still valid, particularly, when the order of transfer was not given effect to prior to receipt of approval of the competent authority.The approval was granted by the Chief Security Commissioner on 3.3.1999 but even as of date the petitioners are working in the same posts. Therefore, the contention that there is no approval of the competent authority to the order of transfer and the order of transfer was made by a subordinate officer stands negatived in view of the fact that as of date the said order is valid, the same having been approved by the Competent Authority.

10. Counsel appearing for the petitioners during the course of arguments relied upon a decision of the Calcutta High Court in S.V. Singh Vs. Union of India, reported in 1988 (2) SLR 545. In the said decision it was held by the Single Judge of the Calcutta High court that the managerial function to transfer cannot and ought not to be regarded as a prerogative without any just cause. It was held that if the transfer order is tainted with malice or is violative of well-accepted norms or is penal in nature, the writ court shall be within its jurisdiction to enquire into the charge of malice and if found substantiated, can set right the wrong. Reliance was also sought to be placed by the counsel appearing for the petitioner in the case of Shamrao Chandrappa Kamble Vs. Deputy Engineer (B&C), Panchayat Samiti, Miraj, Sangli, and others, reported in 1998(2) SLR 418 wherein reference is made to the aforesaid decision of the Calcutta High Court.

11. Counsel appearing for the respondent however, relied upon the decision of the Supreme Court in K.B. Shukla Vs. Union of India, . In the said decision it was held that the formation of the Government of India's opinion as to the existence of 'exigencies of service' requiring appointment of the respondent officers to DANICS by transfer from their parent State Services rested on goods grounds; and is also not vitiated by malafide and the said order of transfer was upheld.

12. In the decision of Union of India Vs. S.L. Abbas, , it was held by the Supreme Court that an order of transfer is an incident of government service and that who is to be transferred and where, is a matter for the authority to decide. It was further held that unless the order is vitiated by malafide or is made in violation of the statutory provisions that court cannot interfere with it. It was also held in the said decision that the executive instructions are in the nature of guidelines and that they do not have any statutory force.

13. Let me, therefore, examine the order of transfer on the touchstone of the aforesaid decisions relied upon by both the parties. Transfer is an incidence of service even in the case of Railway Protection Force and a member of the Force has an all India transfer liability. Therefore, no challenge cold be made to such an order of transfer unless it could be shown that there is any statutory violation or that it is malafide. Reliance on Rule 93.2 also does not held the petitioners as the order of transfer cannot be said to be in violation of the said Rule, as delineated above. During the course of her submissions, counsel appearing for the petitioners made certain allegations abut the conduct of respondents No.5 & 6 and in that connection reference was also made by her to the pleadings in the case. It was submitted by her that the said two offices had no jurisdiction to pass an order of transfer in respect of the petitioners. All the aforementioned discussion clearly indicates and also establishes that there is no statutory violation in the said order of transfer.

14. It is already held by me that in the instant case approval to the order of transfer was also given by the Chief Security Commissioner on 3.3.1999 and therefore, the aforesaid plea that the order of transfer is also without jurisdiction is baseless. As stated above, the petitioners sought to make out a case of malafide by making reference to the conduct and dealings of respondents No.5 & 6 and in support of the same she also referred to various statements made in the writ petition. Reference was also made to certain pending criminal cases in respect of which replies have also been submitted by respondent No.5 as also by respondent No.4. It is settled in the counter affidavit filed by respondent No.4 that the pleas of the petitioner in respect of respondents 5 & 6 are irrelevant and unconcerned issues in the present writ petition and the criminal cases to which reference is also made in the writ petition are irrelevant so far the order of transfer is concerned. Upon perusal of the pleadings of the parties I am of the considered opinion that the order of transfer in the present case in not vitiated by any act of malafide, for in the present cases the order of transfer was issued with the approval of the Chief Security Commissioner as against whom there is no allegation of malafide in the petition. Since the order is approved by him the said order cannot be said to be actuated by malafide at all. The present place of posting of the petitioner are Ghaziabad and they have been transferred respectively to Muzaffarnagar and Tapri which are said to be about 50 to 60 Kms. from Ghaziabad. The impugned order is passed in the administrative exigencies of service and the petitioner cannot have any grievance as against the aforesaid order to transfer. So far the tenure of posting is concerned the same is in the nature of guidelines which cannot supersede the provisions of rule 90 of the CRPF Rules. Besides by now the petitioners have worked for about three years in the same post. Under the aforesaid circumstances, I find no infirmity in the order of transfer and the same in upheld.

15. The petitioner have also challenged the legality of the orders of posting of the respondents No.5 and 6 at the Prosecution Branch of Delhi Division. The petitioners are subordinate to the respondents NO. 5 and 6 and they cannot challenge their posting orders as they cannot be said to be aggrieved persons as against such posting orders. The order of transfer stands approved by the Chief Security Commissioner and the order is of the Competent authority. Under such circumstances, the allegations and grievances against the respondents No.5 and 6 require no consideration.

16. In the result there is no merit in the writ petition and the same is dismissed. However, there will be no order as to costs.