Ajit Kumar Singh vs Union Of India & Ors

Amrita Sinha, J

The petitioner is an enrolled member of the Railway Protection Force (RPF). A complaint was lodged against him. Pursuant to the said complaint, the petitioner was issued an order of transfer on 18th January, 2019 whereby the petitioner was transferred from the RPF Post/Bondamunda of the Chakradharpur Division to Chief Security Commissioner/Kharagpur of the Kharagpur Division. The said order of transfer was passed by the Inspector General cum Principal Chief Security Commissioner with the approval of the Director General. It was mentioned that the transfer was in the interest of administration with immediate effect.

The petitioner joined his transferred place of posting on 27th March 2019.

By another order dated 6th August, 2019 the Director General/RPF has transferred the petitioner from the Kharagpur Division under the South Eastern Railway to Southern Railway. It has been mentioned that the transfer order was passed on administration ground.

The petitioner is aggrieved by the said order of transfer and has filed the instant writ petition challenging the same.

It is the specific case of the petitioner that the last transfer was made on January 2019 and within a very short span of time, the petitioner has again been transferred in August 2019. No reason whatsoever is mentioned in the impugned order of premature transfer which required such urgent transfer.

The petitioner refers to Directive No. 32 (Revised) dated 28th December, 2017 wherein the tenure of posting for various ranks is prescribed. In respect of the Inspector and Sub-Inspector the period of tenure is mentioned as three years.

The petitioner submits that he has been transferred within a period of five months only and no reason whatsoever has been disclosed in the impugned order of transfer.

The petitioner further submits that according to Rule 91.2 of the Railway Protection Force Rules, 1987 all inter-zonal railway transfers of the enrolled members of the Force shall be ordered by the Principal Chief Security Commissioner concerned after obtaining the concurrence of the Director General.

It has been submitted that in the instant case the order of transfer was passed by the Director General himself. The same is not permissible as the Rules have prescribed a particular authority for passing the said order of transfer. The Director General is the concurring authority. He ought not to pass the order of transfer bypassing the Principal Chief Security Commissioner.

He further refers to Rule 92.2 of the said Rules which says that transfer of the enrolled members of the Force may be ordered by the Principal Chief Security Commissioner concerned.

The petitioner has also raised the issue of bias and mala fide. It has been pleaded that on receipt of the earlier complaint, the Director General with a closed and biased mind set has passed the order of transfer in respect of the petitioner.

It has further been submitted that as the order of transfer was a premature one and being penal in nature the same is vitiated with malice and is liable to be set aside.

The petitioner relies upon the judgement delivered by this Court in the matter of Srikanta Saha -vs- Union of India reported in 2016(3) CLJ (Cal) 184 paragraphs 7, 14 and 15 wherein the Court held that when there are guidelines pertaining to the tenure of posting, the premature posting must indicate some modicum for reasons in addition to mere lip service to jargons like "exigencies of service" or "administrative reasons". When an exception to a rule is carved out, the employee is entitled to know what situation prompted the exception or why that particular employee has been singled out for the exception.

The court further observed that in judicial review as far as the order of transfers are concerned the court scarcely sits in judgement over the administrative reasons. However, when there are guidelines which are laid down providing a particular tenure and the guidelines are made subject to exceptions, the existence of an exceptional situation has prima facie to be asserted before the order of transfer can be accepted. A line or a sentence by way of an explanation should always be furnished in such exceptional cases rather than paying mere lip service to the grounds of exception indicated in the guidelines without an attempt to satisfy such grounds. The court was pleased to set aside the impugned order of transfer and disposed of the writ petition with costs in favour of the petitioner.

The said order of the Ld. Single Judge was carried in Appeal by the respondents and the Hon'ble Division Bench affirmed the said order passed by the learned Single Judge. The Hon'ble Division Bench observed that the provision of Rule 90 of the RPF Rules, 1987 empowers transfer of members of the RPF from one post to another on the basis of "exigency of service" or "for administrative reasons" or to avoid legal entanglements" or "for any other consideration". It is obvious that the general power of transfer detailed in Rule 90 of the RPF Rule, 1987 cannot be exercised when the transfer has been made as a punitive measure. The aforesaid order of the Hon'ble Division Bench was passed in the matter of Union of India & Ors. -vs- Srikanta Saha reported in 2016 (3) CHN (Cal.) 481 paragraph 7.

The petitioner further refers to a judgement delivered by the Hon'ble Division Bench of this court in the matter of Shyam Behari Pandey & Ors. -vs- Director General, Railway Protection Force & Ors. reported in 2007 (2) CLJ (Cal) 694 paras 9 and 10 in a case of premature transfer where the impugned order of transfer was passed by the Chief Security Commissioner himself.

As per law the Chief Security Commissioner was the approving authority of the said transfer. An issue was raised - can the approving authority be the original authority? The court answered in the negative and held that when a Standing Order and/or Regulation identifies one approving authority for the purpose of premature transfer it will always be deemed and it should be construed that the premature transfer order should be issued by any officer sub-ordinate to the approving authority. The court held that the premature transfer order issued by the Chief Security Commissioner who was the approving authority, was contrary to the statutory provision, as once there is identification of an approving authority by a statute, naturally the law suggest that another original authority should issue such transfer order and who must be the holder of the rank lower than the Chief Security Commissioner. The court was pleased to set aside the impugned order of transfer.

The petitioner also relies upon the judgment delivered by the Hon'ble Supreme Court of India in the matter of Somesh Tiwari - vs- Union of India & Ors. reported in 2009 (3) SLR 506 paragraphs 19 and 20 - wherein the court held that indisputably the order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. The order in question would then attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and was based on an irrelevant ground i.e. on the allegation made against the appellant in the anonymous complaint. It is one thing that the employer is entitled to pass an order of transfer in administrative exigencies, but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment the same is liable to be set aside being wholly illegal.

The learned advocate also relies upon the decision delivered by the Hon'ble Supreme Court of India in the matter of Ramadhar Pandey -vs- State of U.P. & Ors. reported in 1993 Supp. (3) SCC 35 paragraph 16 wherein the court held that transfer is a necessary concomitance in every service, but if such a transfer could be effected only on certain condition, it is necessary to adhere to those conditions. In the absence of any public interest the impugned order of transfer cannot be supported.

The petitioner prays for setting aside the impugned order of transfer.

The learned advocate appearing on behalf of the respondents submits that the petitioner was initially posted at Bondamunda. On receipt of a complaint against the petitioner regarding his involvement in certain criminal activities, the petitioner was transferred to Kharagpur. In spite of his being transferred to Kharagpur, he retained his Railway Quarter at Bondamunda and the same is reflected from the address as mentioned in the cause title of the writ petition.

He further submits that even after transfer, his local entanglement remained active and complaints of his unnecessary interference in the day-to-day activities of the RPF Bondamunda post continued. As per intelligence inputs, the petitioner frequently visited his Railway Quarter at Bondamunda and he continued to have nexus with the outlaws operating in the Bondamunda Post.

Having no other alternate recourse, the petitioner has been transferred to the Southern Railway, in an entirely different division. The aim of the transfer was to give another opportunity to the petitioner to start his service afresh without any past baggage and the order of transfer was no way a punishment to him. It has further been submitted that the transfer order was made under administrative exigency and in public interest without any mala fide intention against the petitioner.

It has been submitted that a superior officer is always entitled to pass any order which a junior officer can pass. As per the Rules, the Director General also has the authority to pass transfer order in respect of any enrolled member of the force.

After hearing the submissions made on behalf of both the parties it is absolutely clear that the petitioner has been transferred by way of a penal measure. Apart from mentioning that the transfer order has been made because of administrative exigencies, no reason whatsoever has been disclosed in the order of transfer for transferring the petitioner within a period of five months from the date of his previous transfer.

When a specific tenure has been categorically laid down regarding the period of posting of Inspectors, then in order to deviate from the prescribed period of posting the Railway Authorities were under an obligation to mention the reason for transferring the petitioner within such a short span of time.

This court in the matter of Srikanta Saha (supra) categorically held that the authorities are required to put in a line or a sentence by way of an explanation for such pre mature transfer rather than paying mere lip service to the grounds of administrative exigencies. The order of the Learned Single Judge in the aforesaid case was affirmed by the Hon'ble Division Bench which held that it is difficult to ascertain what is meant by the expression 'administrative reason' or 'exigency of service' and the same also gives untrammelled power with the RPF to transfer a member of the force from one place to the other.

In the instant case also the petitioner was issued a premature order of transfer without assigning any reasons for the same.

The Hon'ble Supreme Court of India in the matter of Somesh Tiwari (supra) held that when an order of transfer is passed in lieu of punishment the same is liable to be set aside being wholly illegal. In the case at hand, the respondents have categorically admitted that the petitioner was transferred pursuant to a complaint lodged against him.

It is admitted that no disciplinary and/or departmental proceeding was initiated against the petitioner. In the absence of any such proceeding, the respondent authorities, solely relying upon the complaint that was filed against the petitioner, passed the impugned order of transfer. The same is wholly illegal and is liable to be set aside.

The Hon'ble Division Bench in the matter of Shyam Behari Pandey (supra) held that when the premature order of transfer is issued by an authority, which is the approving authority, contrary to the statutory provision, then the same is not legally sustainable.

In the present case, the petitioner being an enrolled member of the force, the appropriate authority for issuing the order of transfer is the Principal Chief Security Commissioner. The impugned order of transfer was passed by the Director General being the approving authority. In view of the decision of Shyam Behari Pandey (supra) the said order of transfer is legally not sustainable.

The petitioner has pleaded bias and mala fide on the part of the Director General in passing the impugned order of transfer. The same is clearly visible from the submissions made on behalf of the respondent authorities. Though it was mentioned in the order of transfer that the same was passed on administrative ground but the order is undoubtedly a punitive one. The same is not legally sustainable.

The respondents submitted that to permit the petitioner to start a fresh stint of service without any past baggage the transfer order was made. It appears that the respondents have taken up the task of reforming the petitioner, and in the process have ignored the provisions of law guiding such transfers. The authority ought to be reminded of the oft quoted proverb- bad habits die hard. No matter where an errant member is transferred he will certainly find out a way of reviving his old acts and activities. Instead of acting as a reformer the authority ought to take steps for eliminating such dishonest elements with a view to discipline the force. All steps are to be taken strictly in accordance with the Act and the corresponding Rules. Any act, in violation thereof, is bad in law and liable to be set aside.

In view of the above, the impugned order of transfer dated 6th August 2019 is set aside and quashed.

However, setting aside the transfer order will not stand in the way of the respondent authorities from initiating any disciplinary proceeding, against the petitioner, in accordance with law.

W.P No. 15782 (W) of 2019 is disposed of.

Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible.