Sanjata Kumar Harichandan vs Director General
2023 Latest Caselaw 10260 Ori

                HIGH COURT OF ORISSA: CUTTACK

                         W.P.(C) No.22177 of 2023
    In the matter of an application under Articles 226 and 227 of the
    Constitution of India.


                                    -----------

Sanjata Kumar Harichandan ... Petitioner

- Versus -

Director General, Railway Protection Force, Headquarter Railway Board, New Delhi and others ... Opposite parties

For Petitioner ... M/s. Gyana Ranjan Sethi & B.K. Pattanaik.

For Opposite Parties ... Mr. P.K. Parhi, D.S.G.I. & Mr. J. Nayak, C.G.C.

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PRESENT:

THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA

Date of hearing : 08.08.2023 : Date of judgment : 29.08.2023

A.K. Mohapatra, J. The above named Petitioner has approached

this Court by filing the present writ petition with a prayer to

quash the order dated 12.07.2023 under Annexure-2 to the // 2 //

writ petition, so far as the same relates to the Petitioner, and

further for a direction to Opposite Parties to allow the

Petitioner to continue at his present place of posting. In

essence the Petitioner seeks to challenge the mid academic

transfer on the ground that the same is dehors the guidelines

prepared under the provisions of the Railway Protection

Force Act, 1957.

2. The factual backdrop of the Petitioner's case, in a

narrow compass, is that the Petitioner after being duly

selected was appointed as a Constable on 15.4.2000 in the

Railway Protection Force and was initially posted at Raipur in

the district of Chhatishgarh. In the year 2003, the Petitioner

was transferred to Sambalpur Division. Thereafter, he was

again transferred to Khurda Division in March, 2009. While

working as such, the Petitioner was promoted to the rank of

Head Constable in the year 2021 and was posted at RPF post,

Puri. As a disciplined member of the RPF, the Petitioner has

been discharging his duties to the utmost satisfaction of his // 3 //

higher authorities and, as such, he has a unblemished service

career so far.

3. The Railway Protection Force Rules, 1987 which has

been framed under the Railway Protection Act, 1957 provides

for the contingencies in which the members of the force are to

be transferred from one place to the other. Rule-90 of the RPF

Rules, 1987 further provides that members of the force can be

transferred from one place to the other in India in the

exigency of service based on administrative views. Similarly,

Rule-92 thereof speaks of the periodical transfer. Rule-92.2

thereof provides that transfers of the enrolled members of the

Force may be ordered by the Principal Chief Security

Commissioner concerned and other officers specified in

Schedule-II. As such, the Principal Chief Security

Commissioner is the competent authority to transfer the

Petitioner.

// 4 //

4. Rule-93 of the RPF Rules, 1987 lays down the general

principle for effecting periodical transfer. Such rule provides

that no member of the force shall be transferred from one

station to the other unless he has been at that station for the

normal prescribed period nor he shall be allowed to remain at

that station more than one year thereafter without the specific

approval of the competent authority. Further, in view of Rule-

93.1 of the RPF Rules, 1987, the tenure of RPF/RPSF

personnel has been fixed vide Standing Order No.102 dated

29.03.2010. As per the said Standing Order, the tenure of a

Head Constable in a particular station is 5 years. Moreover, as

per the said Standing Order, all members of the force shall be

transferred on completion of their prescribed tenure. Standing

Order No.110 was issued constituting establishment board to

recommend transfer of RPF personnel keeping in view the

requirement to maintain fairness and transparency in the

transfer.

// 5 //

5. While this was the position, the Ministry of Railway,

Government of India, issued a directive for transfer of

members of the RPF on 10.3.2023 which is otherwise known

as Directive No.58. The said Directive No.58 was framed and

circulated by the D.G., RPF in exercise of his power under

Rule-28 of the RPF Rules, 1987. Further, the said Directive

No.58 has been issued in supersession of all earlier orders.

The said directive contains a set of guidelines to streamline

the transfer of the members of the force keeping in view the

requirement of Rules 92 and 93 of the RPF Rules, 1987. The

aforesaid directive defines the word 'transfer' which means

and includes posting of a member of a force from one unit to

the other. Mere change of working unit in the same office or

at the same place/station shall not be construed as transfer. So

far the tenure of a member of the force is concerned, at a

particular place of posting, the aforesaid Directive No.58

provides that the same shall mean as has been provided under

Rule-93.1. Thus, every member of the force shall be // 6 //

transferred after completion of the prescribed tenure, unless

given an extension by the competent authority in writing.

6. The writ petition further reveals that the transfer of the

enrolled members of the force shall be given effect to through

an ICT application which has been designed, developed and

implemented for the aforesaid purpose. Moreover, there shall

be no manual transfer except with the prior approval of D.G.,

RPF. Under the new Directive No. 58, the RPF personnel

shall be asked to submit their option in the event they have

completed their tenure at the present place of posting within a

time schedule which shall be considered by the authorities.

However, such exercise of option shall not confer any right

on such personnel to be transferred to a place of his choice.

The new place of posting shall be assigned objectively and

basing on the administrative requirements, vacancy position,

previous postings and the length of service etc. under the

guidelines. Such guidelines also lay down the manner in // 7 //

which preference is to be given to eligible staff while

transferring their service.

7. Referring to Clause-C(xix) of the Directive No.58, it

has been stated in the writ petition that all annual periodical

transfer shall be processed in the month of January in every

calendar year and shall be completed on or before 15th

March, or before end of the local Academic sessions,

whichever is earlier. This has been provided in the guidelines

keeping in view the fact that the RPF personnel who are

likely to be affected by the transfer shall get sufficient time to

plan for settlement of their families and prepare for admission

of their wards in a new school at the new place of posting.

Similarly, Clause-C(xxix) provides that the entire process of

periodical transfer including the joining pursuant thereto shall

invariably be completed on or before 31st March of every

calendar year.

// 8 //

8. Additionally, the aforesaid guideline under Annexure-1

provides that the tenure of Constables/Head Constables at a

particular place of posting shall be 5 years. In the context of

present case, it has been stated in the writ petition that

although the entire process is required to be completed by

31.03.2023, however, options were called for from the

Petitioner only on 7.7.2023. The Petitioner anticipating that

such options are being called for the next calendar year has

exercised his option. However, all of a sudden transfer orders

have been issued on 12.07.2023 thereby disbursing the

Petitioner and his family members in the mid academic

session and in violation of the guidelines under Annexure-1.

9. Although it has been stated that the aforesaid transfer is

pursuant to Directive No.58, the same is in fact in violation of

Directive No.58 as the said directive prescribes that all

transfers are to be processed by 31st March of the calendar

year. In addition to the above, it has also been contended in

the writ petition that the Petitioner has not completed his // 9 //

tenure of 5 years at the current place of posting before the

impugned transfer order was passed. The Petitioner has also

challenged the impugned transfer on the ground that the

children of the Petitioner are prosecuting their studies at the

moment and, as such, the current mid academic session

transfer would put them into lot of inconvenience.

10. A counter affidavit has been filed on behalf of the

Opposite Party No.3. In the said counter affidavit, it has been

stated that in view of Section-3 of RPF Act, 1985, the RPF is

an armed force of the Union of India. Moreover, in view of

Section 15 of the said Act, officers and the members of the

force are to be considered always on duty and, as such, they

are liable to be employed at any place within India.

11. Further, referring to Rule-19 of the Rules, 1987, it has

been stated in the counter affidavit that transfer of members

of the force may be ordered in the exigencies of service or for

administrative reasons or to avoid local entanglements of

such members. Similarly, Rule-92 of the Rules, 1987 has // 10 //

been referred in the context of transfer of enrolled members

of the force. Similarly, Rule-92.2 of the Rules, 1987 has also

been referred to in the context of general principle for

effective periodical transfer as laid down in Rule-93 of the

Rules, 1987.

12. Referring to the Rule-11 of the Fundamental Rules, it

has been stated in the counter affidavit that whole time of a

Government servant is at the disposal of the Government and

he may be employed in any manner required by the

authorities keeping in view the aforesaid principle the

members of the RPF are being transferred and posted at

different place.

13. In the counter affidavit, it has been contended that no

member of the force can claim to be posted at a particular

place as per his choice and he cannot claim such posting as a

matter of right. Accordingly, a guideline was prepared in the

form of Directive No.58 under Rule-28 of the Rules, 1987

read with Section-8 of the Act, 1957 and circulated vide letter // 11 //

dated 13.3.2023. Further, referring to such Directive No.58, it

has been stated that all transfers of the members of the force

shall be governed by the provisions laid down in Rules-90 to

93 of the RPF Rules, 1987.

14. The counter affidavit filed by the Opposite Parties

further reveals that in view of Section-3 of the Railway Board

Act, 1905, any notice, determination, direction, appointment,

expression of opinion, approval or sanction issued by the

Railway Board is to be treated as a statutory order and shall

be binding on all. Further, referring to a catena of judgments

of the Hon'ble Supreme Court, it has been stated in the

counter affidavit that transfer is an exigency and incidence of

service. Therefore, the executive has unfettered power to

transfer his employee from one place to the other place.

15. Moreover, in the counter affidavit, the scope of judicial

review of this Court under Article 226 has also been

questioned by the Opposite Parties in the matter involving

transfer of an employee. However, the Opposite Parties have // 12 //

admitted in their counter affidavit that transfers have been

carried out pursuant to the guideline under Directive No.58

through a mechanism of Transfer Management Module

(TMM) and, accordingly, 202 members of the East Coast

Railway were transferred during annual periodical transfer

2023. Since these transfers were effected through the TMM

without any human intervention, therefore, the same cannot

be termed as illegal or tainted with mala fide.

16. So far the present Petitioner is concerned, it has been

stated in the counter affidavit that he has completed his

tenure of 5 year at the Khurda Road Station and, as such, he

has been transferred by following the Directive No.58 and

vide order dated 12.07.2023.

17. Heard Ms. B.K. Pattanaik, learned counsel appearing

for the Petitioner as well as Mr. P.K. Parhi, learned Deputy

Solicitor General of India along with Mr. J. Nayak, learned

Central Government Counsel appearing for the Opposite // 13 //

Parties. Perused the pleadings as well as the materials on

record.

18. On a careful analysis of the factual background of the

present writ petition, this Court found that the Petitioner has

approached this Court by challenging the impugned order of

transfer dated 12.07.2023 under Annexue-2 to the writ

petition. The principal ground of challenge of the Petitioner is

that the order dated 12.07.2023 under Annexure-2

transferring the Petitioner from his present place of posting to

a new place is not in accordance with the statutory rules as

well as the Directive No.58 which provides for guidelines to

be followed in case of transfer of the members of the force.

Thus, this Court while testing the validity of order dated

12.07.2023 is required to examine the statutory provisions

contained in the rules as well as in the Directive No.58 under

Annexure-1 to the writ petition.

19. Before proceeding further in the matter, this Court

would like to refer to a few judgments to ascertain the scope // 14 //

of interference of this Court in exercise of power of judicial

review under Article 226 of the Constitution of India. No

doubt, the scope of judicial interference in the matter of

transfer of Government employee is very restricted, however,

it cannot be said that this Court is completely devoid of

power to exercise the power of judicial review in a case

where it is found that the order of transfer is arbitrary, mala

fide and the same is dehors the rules governing the field.

20. Mr. P.K. Parhi, learned Deputy Solicitor General of

India appearing for the Opposite Parties in course of his

argument referred to the judgments of the Hon'ble Supreme

Court in B. Varadha Rao v. State of Karnataka, reported in

(1986) 4 SCC 131; Shilpi Bose v. State of Bihar, reported in

AIR 1991 SC 532; Union of India v. S.L. Abbas, reported in

(1993) 4 SCC 357; State of M.P. v. S.S. Kourav, reported in

(1995) 3 SCC 270; Arvind Duttatraya Dhande v. State of

Maharashtra, reported in (1997) 6 SCC 1961; Maysore

Paper Mills Limited, Bangalore v. Mysore Paper Mills // 15 //

Officers Association, Bhadravati, reported in (1999) 6 SLR

77; National Hydroelectric Power Kendriya Vidyalaya

Sangathan v. Damodar Prasad Pandey, reported in (2004)

12 SCC 299; Airports Authority of India v. Rajeev Ratan

Pandey, reported in JT 2009 (10) SC 472; and Somesh

Tiwari v. Union of India, reported in (2009) 2 SCC 592.

Referring to all the aforesaid judgments, learned Deputy

Solicitor General of India appearing for the Opposite Parties

tried to impress upon this Court that scope of judicial

interference in an order of transfer of an employee is very

limited. Moreover, the Hon'ble Supreme Court has observed

that the administration cannot function with its hands tied by

judiciary behind its back and, therefore, there must be some

free play of the joints provided to the executive authorities.

While making the aforesaid submission, the learned Deputy

Solicitor General of India did not dispute the applicability of

Directive No.58 under Annexure-1 to the writ petition.

// 16 //

21. Learned counsel for the Petitioner, on the other hand,

submitted that the judgments relied upon by the learned

Deputy Solicitor General of India does not restrict the power

of this Court completely. However, in a given case if the

transfer order has been passed in an arbitrary and mala fide

manner by violating the statutory rules, then this Court has

every scope and authority to interfere with such order in

exercise of its power of judicial review. He further contended

that law in this regard is fairly well settled by a catena of

judgments of the Hon'ble Supreme Court.

22. Learned counsel for the Petitioner referring to the

Directive No.58 emphatically submitted before this Court

that the transfer order under Annexure-2 has been issued

dehors the guidelines, i.e., Directive No.58 under

Annexure-1 to the writ petition. She also contended that the

aforesaid Directive No.58 is very clear with regard to calling

for option before transfer and the timeline prescribed for such

transfer.

// 17 //

23. Learned counsel for the Petitioner also contended that

the Petitioner is well aware of his right and position. She

further contended that the transfer is an exigency and

incidence of service and, therefore, the Petitioner is bound by

such orders in an ordinary course of employment provided

the same is issued within the timeline prescribed in the

guideline. In the present case, the transfer orders having been

passed well beyond the time prescribed in the guidelines

under Annexure-1, such transfer order shall cause irreparable

injury and inconvenience to the Petitioner as well as to his

entire family including his children.

24. Keeping in view the submissions made by the learned

counsel for the Petitioner and to examine the main ground of

challenge that the order of transfer has been passed in

violation of the statutory rules, this Court is required to

examine the Directive No.58 under Annexure-1 to the writ

petition which was circulated vide letter dated 13.03.2023.

On perusal of the said Directive No.58, it appears that such a // 18 //

directive has been issued by the D.G., R.P.F. in exercise of

his power under Rule-28 of the R.P.F. Rules, 1987.

Moreover, the same also provides that such a directive shall

be supplemental in nature to the Rules-90 to 93 of the R.P.F.

Rules, 1987. Thus, it cannot be concluded that the Directive

under Annexure-1 does not have a statutory flavour and, as

such, the same will not be binding on the parties. Thus, the

Directive No.58 is equally binding both in the Petitioner as

well as the Opposite Parties.

25. On examination of the guidelines under Annexue-1, this

Court observes that under Clause-C of the guideline, a

procedure has been prescribed for giving effect to periodical

transfers. The relevant sub-clauses have been quoted herein

below:-

(ii) All transfers of the enrolled members of the force shall be caused & carried out through an ICT application designed, developed and implemented as per the provisions contained herein. There shall be no manual transfers except with prior approval of the DG/RPF. However, transfer to/from specialized units may be continued to be done // 19 //

manually till a suitable IT module is developed for the purpose.

(iii) Ordinarily, all members of the Force after completion of Two consecutive Tenures in any Division, Smaller Railways (SR) or Production Units (PU) including attachments or deputations, if any, shall be transferred to some other Division, preferably where he has not worked earlier. If he/she has worked in all divisions, smaller Railways and Production Units of the Zone, then he/she shall be posted preferably at a division, smaller Railway or unit where he/she has served the least, subject to availability of vacancies. (xviii) All Officers & Staff shall be required to fill up their choices of postings within One month (or less with approval of DG RPF) of freezing & posting of such data for their perusal. After the expiry of such period, no further modifications would be permitted. The Tech Cell/RPF shall make necessary configurations in the TMM application and mobile App in accordance with the provisions mentioned above.

(xix) The process of annual transfers: All annual periodical transfers shall be processed in the month of January every calendar year and completed on or before 15th of March or before end of the local academic sessions, whichever is earlier; so as the Officers & Staff so affected could get sufficient time to plan for setting of their families and admissions of their wards, as the case may be.

(xx) Before commencing of the process in the month of January next year, all the service particulars of all the Officers & Staff, shall be // 20 //

updated by the controlling officer, verified and confirmed by the officer next to him and finally frozen by the PCSC concerned duly certifying the 'Data Integrity' online; latest by 30th November of the preceding calendar year. There shall not be any further change in the Staff data so frozen by the PCSC, till completion of the annual transfers; except with approval of the DG/RPF essentially in administrative interest recorded in writing." On a careful scrutiny of the Clauses in the guideline

which is statutory in nature, this Court found that in sub-

clause (xix), it has been specifically provided that all annual

periodical transfers shall be processed in the month of

January of every calendar year and completed on or before

15th March or before end of the local Academic session,

whichever is earlier. Such a provision has been included in

the guideline keeping in view the inconvenience likely to be

caused to the officers and staff of R.P.F. in course of transfer

and to provide them sufficient time to their resettlement with

their family along with admission of their wards at the new

place of posting. Therefore, the provisions referred to

hereinabove have been incorporated through the guideline // 21 //

with a definite purpose. Therefore, such a provision cannot be

termed as arbitrary or redundant or having no nexus with the

object sought to be achieved. Moreover, while interpreting a

provision which is statutory in nature, an attempt should

always be made by this Court to give meaning to each and

every word expressed in the rules/guidelines. Not a single

letter/word used in the Rules/guidelines would be construed

as a dead letter in the Rule Book.

26. The new Directive No.58 was introduced in March,

2023. On a careful scrutiny, it appears that pursuant to the

Directive No.58, choices were invited for transfer from RPF

personnel like the Petitioner some time in the month of July,

2023. Thereafter the transfer order under Annexure-2 has

been passed abruptly on 12.07.2023. The question now arises

is as to whether a guideline which was issued in March, 2023

could have been made applicable for the calendar year 2023

itself. On going through the various provisions of the

guideline, this Court is of the considered view that the // 22 //

guideline could be effectively implemented from the next

calendar year, i.e., 2024 without violating any of the

provision contained therein. Therefore, the contention of

learned counsel for the Petitioner that the choices which were

invited in the month of July, 2023 were considered to be for

the year 2024 by the Petitioner cannot simply be brushed

aside and taken lightly.

27. This Court on a careful scrutiny of the provisions

contained in Rule-90 to 93 of the RPF Rules, 1987 found that

there is nothing in the guidelines which is contrary to the

aforesaid rules rather the guideline under Annexure-1 in the

shape of Directive No.58 which has been framed and

circulated is in exercise of power under Rule-28 of the RPF

Rules, 1987. Thus, so far periodical transfers are concerned,

the guidelines under Annexure-1 is to be read along with

Rule-93 of the RPF Rules, 1987. It is also admitted by Mr.

P.K. Parhi, learned D.S.G.I. that the impugned order was

passed under Directive No.58.

// 23 //

28. Reverting back to the Clause-(xix) in the guideline, this

Court is of the considered view that while giving effect to a

periodical transfer that too in a chain, the Opposite Parties are

bound to follow the guidelines prepared by them. The sub-

clause-(xix) in the guideline under Annexue-1 has been

incorporated in the guidelines with a definite purpose as has

been mentioned hereinabove. Therefore, this Court is of the

considered view that the transfer order under Annexure-2

being a transfer simpliciter, i.e., a transfer in a routine manner

consisting of several RPF personnel is definitely not on any

administrative exigency. Therefore, the Opposite Parties are

under legal obligation to follow guideline under Annexue-1

while giving effect to the transfer of the members of RPF

force.

29. Since the aforesaid provision provides that all

periodical transfers shall be processed before 15th of March

of the calendar year, the Opposite Parties should have taken

steps to conclude the same by the timeline prescribed in the // 24 //

guideline. Moreover, this Court also observed that the use of

the word "shall be" in clause-(xix) makes it mandatory for

the Opposite Parties to act within the time schedule

prescribed. Thus, the violation of clause-(xix) while passing

the transfer order under Annexure-2 is to be viewed

seriously, particularly keeping in view the inconvenience that

is likely to be caused to the Petitioner and his family

members by virtue of the aforesaid mid academic session

transfer.

30. Additionally, this Court would like to observe that the

Railway Protection Force being a disciplined force and the

same having been construed to be an armed force in view of

Section-3 of the Act, this Court has absolutely no doubt in its

mind that the R.P.F. is a disciplined force and, accordingly,

the officers as well as the personnel are required to show a

certain degree of discipline in their conduct both on filed as

well as in administrative matters. Moreover, it is not that the

personnel engaged by the force are only to obey and follow // 25 //

the discipline of the force, such discipline is also equally

applicable to the higher authorities of the force. When this

Court is not interfering in orders passed by the authorities on

the ground that they are the member of a disciplined force in

a case of violation of any orders by any member of the force,

it would be unfair and unjust if this Court comes to a

conclusion that such discipline does not apply to the higher

authorities while dealing with the personnel of RPF force. In

other words, the higher authorities are also required to exhibit

certain degree of discipline while dealing with the issues

pertaining to the members of the force.

31. In the present case, when the guideline stipulates the

procedure of transfer is to be completed by 15th March of

every calendar year, then the Opposite Parties should have

followed such timeline prescribed in the guideline, which is

statutory in nature. The Opposite Parties cannot merely

escape by saying that there was a mere technical delay in

implementing the guidelines. The authorities on the other // 26 //

hand must understand that they are dealing with human issues

while passing orders. Further, they must keep in mind that for

them the issue involved in the present case may be a case of a

mere technical delay in passing the transfer order, however,

the same has a far reaching adverse consequence on the

members of the force as well as their entire family members.

Therefore, this Court is of the considered view that the

officers in high position of the force while expecting

discipline from the members of the force are at the same time

also expected to follow and maintain discipline while

following the guidelines and rule of the law.

32. In view of the aforesaid analysis of law as well as the

factual background of the present case and keeping in view

the fact that the order under Annexure-2 has been passed

while effecting a routine transfer of the officers, this Court is

of the considered view that the Opposite Parties are bound by

the guidelines under Annexue-1 and, accordingly, they

should have concluded the entire process by 15th March, 2023 // 27 //

as has been provided in the guidelines under

Annexure-1 to the writ petition. On further analysis of law

applicable to transfer, this Court is of the view that this Court

has scope and authority to interfere in an order of transfer

while exercising the power of a judicial review under Article

226 of the Constitution of India in a case of transfer of an

employee when it is found that the transfer has been given

effect to dehors the statutory rules prescribed in the

guidelines. Accordingly, this Court has no hesitation in

quashing the impugned transfer order dated 12.07.2023 under

Annexue-2 and, accordingly, the same is hereby quashed.

33. Further, it is directed that it would be open to the

Opposite Parties to apply the guidelines under Annexure-1 as

well as the provisions of the rules, i.e., under Rules-90 to 93

of the RPF Rules, 1987 in the next year in the manner as has

been prescribed in the guideline and within the time

stipulation fixed in Directive No.58 under Annexure-1 to the

writ petition. This Court further makes it clear that while // 28 //

delivering this judgment, this Court has not considered the

individual ground taken by the Petitioner while assailing the

impugned transfer order. Rather, this Court has considered

the validity of the transfer order in the light of the guideline

under Annexure-1 to the writ petition.

34. With the aforesaid observation and direction the writ

petition is allowed. However, there shall be no order as to

cost.

(A.K. Mohapatra) Judge

Orissa High Court, Cuttack The 29th August, 2023/D. Aech, Secretary.

Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC CUTTACK Date: 29-Aug-2023 16:52:40