Neeraj Dhar vs Union Of India And Others
2021 Latest Caselaw 277 j&K

                                       =h475




              HIGH COURT OF JAMMU AND KASHMIR
                         AT JAMMU

                                               Reserved on : 05.03.2021
                                               Pronounced on: 10.03.2021

                                      WP(C) No.2504/2019
                                      CM Nos. 5021/2019& 9588/2019


Neeraj Dhar                                                 ...Petitioner(s)
                             Through:- Mr. Vinod Kotwal, Advocate
      V/s

Union of India and others                                       ...Respondent(s)
                            Through:- Mr. P.S.Chandel, Advocate

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE

                                  JUDGMENT

1. The petitioner is an Assistant Sub Inspector in the Railway

Protection Special Force (RPSF) and is aggrieved of order dated

08.06.2019 issued by the Railway Board vide its No.2019/PCSC/RPSF/

Conf.(IVG), whereby the petitioner has been transferred from 15th Bn

stationed at Udhampur to 5th Bn located in Trichy, Tamil Nadu and seeks a

direction to the respondents to allow him to perform his duties in the 15th

Bn.

2. The short grievance of the petitioner, as projected in this

petition, is that in terms of Clause 2(viii) of the Directive No.32 (Revised)

dated 28.12.2017, inter-Battalion transfer is permissible only after

completion of tenure of ten years in a particular Battalion. It is the case of

the petitioner that he came to be transferred and posted in 15th Bn on

26.04.2017 after he had rendered 15 years service in the 6 th Battalion and,

therefore, his transfer from 15th Bn to 5th Bn located in Trichy Tamil Nadu

within a span of two years is violative of the statutory guidelines issued by

the respondents.

3. The respondents have filed their objections and have assailed

the maintainability of the petition on the ground that, as held by Hon'ble

the Supreme Court in the case of Union of India and others v. S.L.Abbas,

(1993) 4 SCC 357, the transfer is an exigency of service and not a

condition of service. Therefore, an employee is obliged to serve anywhere

in the cadre wherever he is required in the interest of administration. It is

submitted that the petitioner, after completion of initial training was

appointed as Constable on 31.03.1995 and was posted in 7 th Bn at

Secunderabad (A.P.) now Telgangana. It is stated that the petitioner while

his posting in 7th Bn was attached in the 6th Bn situated at Dayabasti in

New Delhi for a period of six months and thereafter he was granted

extensions from time to time. He remained performing his duties at Delhi

upto 04.09.2001. Thereafter the petitioner was transferred from 7h Bn and

was posted in 6th Bn of RPSF New Delhi vide Railway Board order dated

31.08.2001. It is where the petitioner came to be promoted to the rank of

Head Constable on 31.12.2004 and Assistant Sub Inspector on 01.04.2017.

On promotion, the petitioner vide Railway Board order dated 19.04.2017

was transferred to 15th Bn at Udhampur on administrative grounds. It is the

further case of the respondents that as per the guidelines issued by

respondent No.2 vide Directive No.32 (Revised) dated 28.01.2017, a

member of the Force has been allowed posting for a maximum period of

ten years at a stretch and 15 years broken spells subject to availability of

vacancy.

4. While reviewing the transfer cases, it came to light that the

petitioner had completed more than 21 years at Delhi including his

attachment period while he was posted in 7th Bn situated at Secunderabad

and accordingly, the petitioner was transferred from Northern region to

Southern region i.e. to 5th Bn located at Trichy, Tamil Nadu vide order

impugned and the transfer was in the interest of administration.

5. Heard learned counsel for the parties and perused the record.

6. The recruitment and service conditions of the petitioner are

governed by the Railway Protection Force Act, 1957 ["the Act"] and the

Rules framed thereunder. The Director General, RPF in the exercise of

powers conferred by Rule 28 of the RPF Rules, 1987 read with section 8 of

the Railway Protection Force Act,1957 and in supersession of all earlier

instructions, has issued guidelines in the form of Directive No.32 (Revised

) to regulate the transfer of members of the Force. As per clause 2(viii) of

the guidelines, all enrolled male members of the Railway Protection

Special Force are transferable from one Battalion to another after

completion of ten years. It is this stipulation in the guidelines, the petitioner

is strongly banking upon. It is submitted that the petitioner has yet not

completed the tenure in the 15th Bn stationed at Udhampur and, therefore,

cannot be transferrered to another Bn.

7. Before appreciating the contentions of learned counsel for the

parties, it is necessary to take note of few provisions governing the transfer

of members of the Force. Section 15 of the RPFC Act provides thus:-

"15. Officers and members of the Force to be considered always on duty and liable to be employed in any part of the railways.

(1) Every member of the Force shall, for the purposes of this Act, be considered to be always on duty, and shall, at any time, be liable to be employed at any place within India.

(2) No member of the Force shall engage himself in any employment or office other than his duties under this Act."

8. The aforesaid provision in the Act is wide in its amplitude and

quite drastic. It clearly proclaims that every member of the Force shall be

considered to be always on duty for the purposes of the Act and shall be

liable to be employed at any place within India. To the similar effect is

Rule 90 of the Railway Protection Force Rules, 1987, which for facility of

reference is reproduced hereunder:-

"90. General: 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."

9. Rule 90, therefore, only reiterates the position as proclaimed in

Section 15 of the Act. Rule 28, however, cloths the Director General of the

Force with power to issue 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 the enrolled

members of the Force shall be governed by such Directives in the

performance and discharge of their duties. It is in the exercise of this power

vested in the Director General of the Force, Directive No.32 (Revised)

dated 28.12.2017 has been issued.

10. When we interpret para 2(viii) in the context of the provisions

of the Act and the Rules, taken note of herein above, it becomes evident

that an enrolled male members of the Force is not entitled to claim his

transfer from one Battalion to another unless he has completed a tenure of

five years but he will not be retained in the Battalion after he completes a

tenure of ten years. This, however, does not mean that the competent

authority cannot effect his premature transfer, if exigency of service so

requires. The provision of ten years' tenure for inter-Batallion transfer,

provided by the Director General of the Force in terms of the Directives

issued under Rule 28, would mean that a person shall not be retained in one

Battalion for a period of more than ten years and would be liable to be

transferred to another Battalion on completion of the tenure of ten years.

He may, however, claim his transfer from one Battalion to another on

request but such request shall be entertained only once he completes five

years tenure in the Battalion concerned.

11. Viewed thus, I am of the view that this prescription in the

Directive No.32 (Revised) does not have and cannot have overriding effect

on the statutory provisions of Section 15 and Rule 90, therefore, must be

understood to mean and convey that the directives issued by the Director

General of the Force may be binding on the Director General of the Force

and the subordinate officers but shall not override the powers of the

Railway Board.

12. In the instant case, the Railway Board shall be deemed to have

acted under the general powers of transfer vested by virtue of Section 15 of

the Act and Rule 90 of the Rules framed thereunder.

13. Viewed thus, I do not find any illegality or lack of jurisdiction

in issuing the order impugned by the Railway Board. It is interesting to

note that the petitioner has not even arrayed the Railway Board as party

respondent, though the order impugned has been issued by the Railway

Board. This petition is, therefore, found to be without merit, hence

dismissed. No order as to costs.

(Sanjeev Kumar) Judge JAMMU.

10.03.2021 Vinod.

Whether the order is speaking : Yes Whether the order is reportable: Yes

VINOD KUMAR 2021.03.10 16:35 I attest to the accuracy and integrity of this document