Madras High Court
G. Perumal, K. Ramu, M. Kannan, M. ... vs Union Of India (Uoi), Rep. By Director ... on 27 March, 2002
Author: D. Murugesan
Bench: D. Murugesan
ORDER D. Murugesan, J.
1. The petitioners in W.P.No.18096 of 1999 are working as Sub-Inspectors in the Fire Service Branch of Railway Protection Force (RPF). The petitioners in W.P.No.19280 of 1999 are the constables working in the Fire Service Branch in RPF. The petitioners in W.P.Nos.18139, 18140, 1002 and 1003 are working as Inspectors in the same Fire Service Branch in RPF.
2. The petitioners have challenged in all these writ petitions their respective orders of transfers, transferring them from the Fire Service Branch of RPF to Railway Protection Special Force (RPSF) instead of the Executive Branch of Railway Protection Force. They have also prayed for consequential directions to the respondents to post all the petitioners in the Executive Branch of the Railway Protection Force.
3. Since the issues involved in all the writ petitions are identical and same, the writ petitions are taken up together for disposal by this common order.
4. The factual matrix leading to the filing of the above writ petitions are as follows:-
The Railway Board in Ministry of Railways, Government of India, by order dated 18.09.1992 communicated its decision to close both the statis fire stations and mobile fire stations of railway force to all General Managers of All India Railways. The fire stations are being maintained by the RPF Unit to protect the railway property from the days when the Civil / Municipal Fire Services were not sufficiently developed to meet the requirements of railways. The Civil / Municipal Fire Services have been upgraded in almost all the cities and towns and since it is obligatory on their part to attend to the fire incidents occurring in railway premises, it was decided that operating fire services exclusively by the railways to protect its property was no longer necessary. By the said decision, it was decided to close immediately 35 statis fire stations within the month from the date of the order. Insofar as other 95 mobile fire stations, which were situated in stations where there are Civil / Municipal services, it was decided to initiate dialogues with the Civil / Municipal Fire Brigades, indicating the intention to close down the fire stations in a phased programme within three months. Pursuant to the said decision, the Deputy Director / Security, Railway Board in his letter dated 16.09.1993 directed absorption of fire branch staff rendered surplus due to the closure of fire branch of RPF in the corresponding ranks in the Executive Branch. As per the above decision, some of the junior most personnel belonging to fire service branch of Railway Protection Force were absorbed in the Executive Branch by retaining senior most Constables, Sub-Inspectors, Inspectors in the fire branch of RPF itself. The petitioners who are seniors to those personnel of fire branch who were not absorbed in executive branch, were eagerly waiting for their absorption in the executive branch. However, by the impugned orders, they were transferred to railway protection special force. The grievance of the petitioners is that such a transfer is contrary to the decision of the Railway Board as communicated in its orders dated 18.02.1992 and 16.09.1993 to absorb the fire branch staff rendered surplus due to the closure of fire branch of RPF in the executive branch.
5. Mr. S.Sundar, learned Senior Counsel appearing for the petitioners submitted that the petitioners who were working in the Fire Service Branch of Railways Protection Force cannot be posted to Railway Special Protection Force and the petitioners are entitled to be posted in the same rank in the executive branch of the Railway Protection Force. By the impugned orders of transfer, the petitioners' seniority will be affected. Such orders of transfers are contrary to the decision of the Railway Board as indicated by the Director General of RPF in his letter dated 18.09.1992, wherein it is specifically stated that the fire brigade staff rendered surplus should be adjusted in the Executive Branch of RPF and put to necessary training. In the subsequent communication of the Deputy Director / Security, Railway Board dated 16.09.1993, it is specifically directed that the seniority of the fire branch staff would be protected. In fact, the petitioners were sent for training to be absorbed in the Executive Branch. However, contrary to the decision of the Railway Board, the petitioners were transferred to Railway Protection Special Force. The learned Senior Counsel also submitted that neither in the Act nor in the Rules, provision for effecting transfers of personnel belonging to one cadre to another cadre is contemplated. In the absence of such power, the respondents cannot effect transfers of the petitioners from Fire Service Branch to Railway Protection Special Force, which is a separate cadre. The learned Senior Counsel would further submit that, in any case, the respondents have acted in unfair manner in absorbing juniors first, leaving the seniors to face with orders of transfers to a different cadre which would amount to arbitrary exercise of powers.
6. Per contra, Mr. R.Thiyagarajan, learned Senior Counsel appearing for the respondents would submit that the decision of the Railway Board taken during the year 1992 was for a partial closure of Fire Branch. Initially, 35 statis fire stations only were closed and the remaining 95 mobile fire stations were sought to be closed in a phased manner. In order to implement the said decision, some of the junior fire personnel from Mobile fire stations were absorbed in the Executive Branch of the Railway Force and in the absence of further vacancies and in order to avoid retrenchment, the petitioners were transferred to Railway Special Protection Force. Learned Senior Counsel submitted that in fact, such a policy decision was taken to transfer the remaining fire service personnel to Railway Protection Special Force by the Government as communicated by the Joint Director of Railway Protection Force, Railway Board in his letter dated 10.06.1999. Only on the basis of the said policy decision, the petitioners were transferred to Railway Protection Special Force. The learned Senior Counsel would further submit that as per Section 2(1)(a) of "the Act", "force" means and include all units of the Force and hence, transfer of personnel belonging to one cadre to another cadre could be made under Rule 16 of "the Rules".
7. Learned Senior Counsel would submit that by the impugned transfer orders, the seniority of the petitioners would not be affected. In support of the said submission, learned Senior Counsel relied upon paragraph 9 of the counter affidavit filed in W.P.No. 19280 of 1999, wherein it is stated that all the petitioners are entitled for the same seniority, emoluments and other benefits. Their posting in RPSF was ordered only in the Administrative interest of the Force and there was no malafide intention behind it. Learned Senior Counsel would also submit that the petitioners have not challenged the transfer of junior most personnel made pursuant to the decision of the Railway Board in the year 1992 and having allowed the said order has become final, the petitioners come up by way of writ petitions only in the year 1999. The learned Senior Counsel further contended that the juniors in Fire Service Branch were initially absorbed by giving effect to the policy decision and the seniors were retained till such time they are absorbed as the Railway administration to continue the Fire Service Branch till it was closed permanently. Only when it was found that there were no vacancies in the Executive Branch, the petitioners were transferred to Railway Protection Special Force to avoid retrenchment. Hence, learned Senior Counsel submits that there was no discrimination in absorption of juniors in preference to the seniors in the Fire Service Branch.
8. On the above factual background, I have considered the rival submissions of the respective learned Senior Counsel.
9. In order to give effective disposal of the writ petitions, some of the provisions of The Railway Protection Force Act, 1957 (hereinafter referred to as "the Act") and Rules of The Railway Protection Force Rules, 1987(hereinafter referred to as "the Rules") are extracted hereunder:-
"Section 2(1)(a) :- "Force" means the Railway Protection Force constituted under Section 3.
Section 3. Constitution of the Force:-
(1) There shall be constituted and maintained by the Central Government an armed force of the Union to be called the Railway Protection Force for the better protection and security of railway property.
(2) The Force shall be constituted in such manner, shall consist of such number of superior officers, subordinate officers, under officers and other enrolled members of the Force and shall receive such pay and other remuneration, as may be prescribed.
Rule 7. Railway Protection Special Force:-
(1) The Force shall have a specially trained unit called the Railway Protection Special Force to be raised as reserve Force on the battalion pattern.
(2) The number of battalions as also their strength and composition shall be such as may be determined by the Director General.
(3) Each battalion shall function as a division and shall have at its head an officer not below the rank of Commandant who shall be known as Commanding Officer.
(4) A Commanding Officer shall be assisted by such number of other superior officers and enrolled members of the Force as may be appointed from time to time.
(5) Enrolled members of the Force who constitute the Railway Protection Special Force shall form a separate cadre for the purposes of fixation of seniority.
Rule 16 Branches of the Force of a Zonal Railway:-
(1) Force deployed on each zonal railway shall consist of the following three branches, namely:-
(i) Executive Branch,
(ii) Prosecution Branch, and
(iii) Fire Service Branch.
(2) These branches shall consist of such number of superior officers and other enrolled members of the Force as may be determined by the Chief Security Commissioner with the approval of the Director General.
(3) The enrolled members in the respective branches of the Force, who are under the administrative control of the Chief Security Commissioner shall form a separate cadre in each such branch for the purpose of fixation of seniority.
(4) No enrolled member of the Force shall be eligible for transfer from one branch to another except for filling up of vacancies of and below the rank of Assistant Sub-Inspector in the Prosecution Branch:
Provided that if it is intended to transfer an enrolled member permanently from one branch to another, the approval of the Director General shall invariably be obtained.
10. Placing reliance on Rules 7(5) and 16 of "the Rules", learned Senior Counsel for the petitioners would submit that enrolled members of the Force who constitute the Railway Protection Special Force shall form a separate cadre for the purpose of fixation of seniority and no enrolled member of the force shall be eligible for transfer from one branch to another except for filling up of vacancies of and below the rank of Assistant Sub-Inspector in the Prosecution Branch, provided that if it is intended to transfer an enrolled member permanently from one branch to another, the approval of the Director General shall invariably be obtained. Learned Senior Counsel submitted that the petitioners, admittedly belonging to Fire Service Branch are liable to be absorbed only in the Executive Branch as per the policy decision of the Railway Board and they cannot be transferred to the Railway Protection Special Force as could be seen from Rule 7(5) of "the Rules" as the members of Railway Protection Special Force shall form a separate cadre by themselves. Hence, learned Senior Counsel would attack the orders of transfer of the petitioners.
11. As per Section 2(1)(a) of "the Act" the word "Force" shall mean the force constituted and maintained by the Central Government for better protection and security of Railway property. The said definition of Force shall mean and include the Railway Protection Special Force as well as the branches of force, namely Executive Branch and Fire Service Branch. As per Rule 7 of "the Rules", Railway Protection Special Force is a separate wing and enrolled members of the Railway Protection Special Force shall form a separate cadre for the purpose of fixation of seniority. Rule 16(3) of "the Rules" speaks about the formation of a separate cadre by the enrolled members of the respective branches of the force namely Executive Branch, Prosecution Branch for the purpose of fixation of seniority. Both the above rules relate to fixation of seniority of the members of the respective force within their cadre. Rule 16(4) of "the Rules" speaks about the restriction of an enrolled member of the force for his eligibility for transfer from one unit to another except for filling up of vacancies of and below the rank of Assistant Sub-Inspector in the Prosecution Branch. By the said rule, no power of transfer is provided empowering the Board to transfer personnel of Fire Service Branch to Railway Protection Special Force. Rule 16(4) of "the Rules" only empowers the Railway Board to transfer an enrolled member permanently from one branch to another branch with the approval of the Director General.
12. Learned Senior Counsel would rely upon a judgment of a Division Bench of the Andhra Pradesh High Court in Writ Appeal Nos.1357 of 2000, 1080 of 2001 etc., dated 08.03.2001 wherein a Division Bench of the High Court, while confirming the order of the learned Single Judge made in the writ petition, ultimately held that absorption from fire wing to executive wing in a phased manner cannot be held to be bad in the eye of law. However, on the question of the power of the Railway Board for effecting the transfer, the Division Bench held that the provisions of Railway Protection Force rules do not contemplate a transfer from one cadre to another cadre and Rule 16(4) of "the Rules" must be given effect to as it is well settled in law that in the absence of any statutory rule, no person can be transferred from one cadre to another cadre without his consent. Finding so, the Division Bench held that the orders of transfer of such personnel to Railway Protection Special Force were bad in law. Placing heavy reliance on the above judgment, learned Senior Counsel for the petitioners submitted that the impugned orders of transfer is bad in the eye of law. I find every force in the said submission of the learned Senior Counsel for the petitioners.
13. However, it is vehemently contended by the learned Senior Counsel for the respondents that it is only administrative transfer and the discretion to make transfers should be left with the authorities. In support of the above, learned Senior Counsel relied upon the judgment of the Supreme Court reported in N.K.SINGH ..VS.. UNION OF INDIA AND OTHERS , wherein the Supreme Court held as follows:-
"Assessment of worth must be left to the bona fide decision of the superiors in service and their honest assessment accepted as a part of service discipline. Transfer of a Government servant in a transferable service is necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by mala fides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government departments. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated".
14. There cannot be two opinion as to the law laid down by the Supreme Court in the above judgment on the power of this Court to interfere in the matters of transfer. However, what is challenged before this Court is very of the power of Board to effect the transfers of staff belonging to one cadre to another cadre in the absence of any Rules in this regard. The rules which have been extracted above do not indicate any power on the Railway Board to make any further transfers. In the absence of such power, the impugned orders of transfer cannot be sustained in the eye of law. The submission of the learned Senior Counsel for the respondents that in view of the subsequent Policy decision of the Government dated 10.06.1999 to transfer the Fire Service Personnel to the Railway Protection Special Force, the impugned orders of transfers have been made and such a policy decision cannot be subject matter of challenge in the proceedings. The said submission is also liable to be rejected since as per the policy decision of the year 1992, the petitioners are entitled to be absorbed in Executive Branch. Having implemented the policy decision by absorbing the juniors in the Executive Branch, the seniors who have better right for absorption earlier to the absorption of their juniors cannot be subjected to "forced transfers".
15. Here again, the power of the Railway Board to effect transfer of personnel belonging to one cadre to another cadre comes in the way of the Railway Board. When there is no power on the Railway Board to effect the transfers as has been done, merely because a policy decision has been taken to transfer these personnel, the Railway Board cannot sustain the impugned orders. In view of the above finding that the impugned orders of transfers are bad in the eye of law as they do not have the sanction of an authority of law, those are liable to be set aside and accordingly they are set aside. In view of the said finding, I am not inclined to go into the other questions as to the discrimination on the part of the respondent in absorbing the juniors in the executive branch of Railway Protection Force.
16. Coming to the relief to which the petitioners are entitled to, it is to be seen that as per the Policy decision made in the year 1992 to close the fire service branch in a phased manner and absorb all the fire service branch staff rendered surplus in the executive branch and also in view of the admitted fact in the counter affidavit that subsequent to the above decision, the respondent Board has also recruited personnel in the executive branch directly, indicating the vacancies in the executive branch, the petitioners are entitled to absorption in the executive branch of the Railway Force, maintaining the seniority in the Fire Service Branch including the juniors who were absorbed earlier in the Executive Branch.
17. Accordingly, there will be a direction to the Respondent / Railway Board to give effect their policy decision made during the year 1992 by absorbing the petitioners in the executive branch of the railway force without affecting their seniority as assured in letter dated 16.09.1993.
18. With the above direction, all the writ petitions are allowed. No costs. In view of the order passed in the main writ petitions, the connected W.M.Ps are closed.