Central Administrative Tribunal - Ahmedabad
Sunil Jashanmal Golani vs Union Of India (Uoi) And Ors. on 28 March, 2005
Equivalent citations: 2006(1)SLJ170(CAT)
JUDGMENT Shankar Prasad, Member (A)
1. Aggrieved by the order dated 12.3.2004 transferring him from Baroda Division to Bhavnagar Division and the rejection of his representation against the said transfer, the applicant has preferred the present O. A. He has sought for the quashing of both these transfer orders.
2. The facts lie in a narrow compass. The applicant was placed under suspension w.e.f. 18.8.2002 as a criminal case was under investigation and the applicant had been detained under custody for more than 48 hours. He was granted bail in the said criminal case vide order dated 09th September, 2002. The CBI had registered RC 27(A)/2002 and had submitted chargesheet in 2003. The applicant has been served with a major penalty chargesheet dated 03.2.2004 in respect of this very incident.
The applicant has been charged with leaking of question paper of Probationary ASM examination to be conducted by RRB and having been caught while doing so in association with other persons. The said examination had to be cancelled. All the expenses incurred till that date were rendered infructuous. The suspension was vacated vide order dated 13.2.2004 and he has been posted vide order dated 17.2.2004. The Zonal Office issued an order dated 20.2.2004 transferring him to Bhavnagar Division. Pursuant to this, the order dated 12.3.2004 was issued. The said order was challenged by applicant and one more person vide O.A. 152/2004. The said O.A. was disposed of vide order dated 22.3.2004. The Tribunal held:
Initially, it is for the appropriate authority to redress the grievance of the applicants and to consider their representation and pass an appropriate order. Only thereafter, if an employee has any grievance, it is open to him to approach the Tribunal. In this case, the applicants have not sent any representation to the appropriate authority. Consequently, the O.A. is decided with a direction to the applicant to submit a representation within a period of one week from the date of receipt of a copy of this order to the appropriate authority. The appropriate authority shall consider the same and pass a suitable order. The order so passed shall be communicated to the applicant. In case, the representation is made within the aforesaid period of one week, the impugned order in respect of the two applicants shall remained stayed till their representation is decided, communicated and for a week, thereafter. In case, however, no representation is filed by any of the two applicants, the stay shall not be operative. The O.A. stands decided accordingly. Direct service to respondent No. 2 permitted. Costs easy.
The applicant thereafter submitted his representation dated 26.3.2004 highlighting the following:
(a) Neither the GM' sletter dated 20.2.2004 nor the DSTE letter dated 16.2.2004 has been made available with the result that reasons of transfer are not known. It has been issued without waiting for the out come of criminal case/ disciplinary enquiry.
(b) Paras 226/227 bars such an inter divisional transfer. Such a transfer is also barred by Railway Board Circular quoted below Rule 2 of Rail way Servants (Discipline and Appeal) Rules. This circular has the force of law.
(c) Investigation has been completed in the criminal case and the same is pending in Ahmedabad Court. Charges in CBI case and disciplinary enquiry are identical. The applicant has to attend departmental enquiry in Baroda. The transfer order is penal in nature.
(d) My wife is working in Baroda Office.
(e) It is a mid term transfer.
(f) He will lose his seniority.
(g) Employees like Shri Mukesh Gandhi, Shri S.R. Patil and Shri M.B. Parekh, who were involved in more serious offences, have not been transferred. His order is accordingly discriminatory.
The said representation has been rejected vide the order dated 06.09.2004 giving rise to the present O.A.
3. The further case of the applicant is that the order rejecting the representation is a non-speaking order. The SDGM's note referred to in order dated 20.2.2004 transferring the applicant outside the Baroda Division has not been produced nor the GM's order dated 20.2.2004 is made available. The applicant was accordingly handicapped in making his representation.
Once the DRM, Baroda has exercised the delegated powers of transfer within the Baroda Division it was not open to the General Manager to issue a fresh transfer order.
Nothing adverse against the conduct of the applicant has been noticed after the submission of chargesheet in Criminal case and therefore, he could have been transferred anywhere in Baroda Division including the far off places.
4. The respondents in their reply have stated that General Manager is competent to order an inter divisional transfer. The order dated 20.2.2004 is an internal correspondence while the letter dated 16.2.2004 of Sr. DSTE Baroda is a confidential letter. The applicant is not entitled to them.
The respondents have denied that the order is punitive. That the wife of the applicant is a Government employee is not relevant for this purpose. It is not a mid year transfer. The applicant has been transferred out of division in the interest of administration. It was not considered desirable to continue the applicant at the same station as he could have tampered with the evidence. Orders quoted below Rule 2 of Railway Servant (Discipline and Appeal) Rules are directory and not mandatory. AH the actions have been properly taken.
5. Rejoinder has been filed. Sur-rejoinder which was in part-C has been taken on record.
6. The learned Counsel for both the parties have been heard.
7. Mr. Shah has contended that reply has been filed by the DPO, who is not competent to file the reply. The Central Government have framed the Govt. of India (Authorisation of Officers for Verification of pleading and other documents to be filed in CAT) Rules, 1992 in this regard. Nothing has brought on record to suggest that the officer is not competent to file reply as per these rules.
8. It is first noted that Sr. DSTE's letter dated 16.2.2004, which is mentioned to at Serial No. 3 of reference has been referred to in order of the Shri Mahendra M. Vyas. Shri Vyas was repatriated back to parent department vide this order. Senior DSTE's letter therefore does not relate to applicant.
The learned Counsel for the applicant has also been permitted to peruse the letter dated 20.2.2004.
9. Mr. Shah, learned Counsel for the applicant has contended that by not making available this letter earlier and not producing the SDGM's note the applicant has been prejudiced in making an effective representation.
It is to be noted in this connection that the said criminal case was instituted by Chief Vigilance Inspector, Western Railway. The said complaint is a relied upon document in the departmental enquiry and the said CVI is a prosecution witness in the said enquiry. The applicant has referred to both the criminal case and disciplinary enquiry in his representation. He is aware of these developments.
10. The Apex Court in Vice Chairman, KVS v. Girdhari Lal Yadav C.A. 2785/2000, has held :
It is also a well-settled principle of law that the principles of natural justice should not be stretched too far and the same cannot be put in a strait-jacket formula. in Bar Council of India v. High Court of Kerala Writ Petition (C) No. 52 of 2002] disposed of yesterday, 27th April, 2004, this Court has noticed that:
The principles of natural justice, it is well-settled, cannot be put into a strait-jacket formula. Its application will depend upon the facts and circumstances of each case. It is also well-settled that if a party after having proper notice chose not to appear, he at later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lal Gupta (Dead) through Lrs. and Ors. v. Asha Devi Gupta (Smt) and Ors. , of which two of us (V.K. Khare, CJI and Sinha, J.) are parties wherein upon noticing a large number of decisions it was held :
29. The principles of natural justice, it is trite, cannot be put in a strait jacket formula. In a given case, the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby' The principles of natural justice, it is well-settled must not be stretched too far.
[See also Mardia Chemicals Ltd. etc. etc. v. Union of India and Ors. etc. (2004) 4 SCALE 338 and Canara Bank and Ors. v. Debasis Das and Ors. ].
In Union of India and Anr. v. Tulsiram Patel , whereupon reliance has been placed by Mr. Reddy, this Court held :
97. Though the two rules of natural justice, namely nemo judex in cause sua and audi alteram partem, have now a definite meaning and connotation in law and their contents and implication are well understood and firmly established, they are nonetheless not statutory rules. Each of these rules yields to and changes with the exigencies of different situations. They do not apply in the same manner to situations which are not alike. These rules are not cast in a rigid mould nor can they be put in a legal strait-jacket. They are not immutable but flexible. These rules can be adapted and modified by statutes and statutory rules and also by the constitution of the Tribunal which has to decide a particular matter and the rules by which such Tribunal is governed....
11. The decision indicates that principles of natural justice apply having regard to facts and circumstances of each case and they are not a strait-jacket formula.
Even though the SDGM's note is not produced, it has been indicated in Para-6 of the reply that presence of the applicant may endanger the evidence and he might tamper with evidence.
The applicant in his rejoinder has stated as follows:
It is denied that the applicant is involved in a serious vigilance case offence. It can be an allegation and charge but unless it is proved. The statement of respondents is clearly indicating that the transfer is ordered because of their stand about involvement of vigilance case and not in the interest of administration. The files of transfer, Disciplinary case and Vigilance file are to be called for to examine the root and truth of the transfer order.
12. In view of the above discussion, it is felt that not making available the GM's order earlier or non-production of SDGM's file has not hampered the submission of effective reply.
13. The learned Counsel for the applicant has cited a number of judgments regarding judicial review of transfer orders as also malafide exercise of power/malice in law in case of transfer.
The Apex Court in UOI v. S.L Abbas was considering the transfer of a Garden Curator from Shillong to Pauri (Uttar Pradesh) in Botanical Survey of India. It held that Tribunal does not sit as an Appellate Authority, while exercising powers of judicial review. It also held :
An order of transfer is an incident of Government service. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is not doubt, the authority most keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The same guideline however does not confer upon the Government employee a legally enforceable right. Executive instructions are in the nature of guidelines. They do not have statutory force.
The Apex Court in Rajendra Roy v. UOI (1993) 1 SCC 248 was considering the appeal from an order of CAT rejecting his case against the transfer. It held :
The order of transfer often causes a lot of difficulties and dislocation in the family set-up of the concerned employees but on that score the order of transfer is not liable to be struck down. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. Unless such order is passed malafide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer.
It may not be always possible to establish malice in fact in a straight-cut manner. In an appropriate case, it is possible to draw reasonable inference of mala action from the pleadings and antecedent facts and circumstances. But for such inference there must be firm foundation of facts pleaded and established. Such inference cannot be drawn on the basis of institution and vague suggestions.
The decision of the Apex Court in Arvind Dattatraya Dhande v. State of Maharastra . The Apex Court allowed the appeal. It held:
In view of the unimpeachable and eloquent testimony of the performance of the duties, it will be obvious that the transfer is not in public interest but is a case of victimisation of an honest officer at the behest of the aggrieved complainants carrying on the business in liquor and toddy. Under these circumstances, as stated earlier, the transfer of the appellant is nothing but mala fide exercise of the power to demoralise honest officers who would efficiently discharge the duties of a public office.
The decision of Apex Court in M. Shankamarayanan v. State of Karnataka AIR 1988 SC 763. The Apex Court had held :
It is an admitted position that the Chief Secretary and the Chief Minister had differences of opinion on a number of sensitive matters. If on that score, the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary and to post a very senior officer of their confidence to the post of Chief Secretary, it cannot be held that such decision is per se illegal or beyond the Administrative Authority.
The decision of Apex Court in State of Punjab v. Gurdial Singh, . It held:
Bad faith which invalidates the exercise of power--sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions - is the attainment of ends beyond the sanctioned purposes of power of simulation or pretension of gaining a legitimate goal. If the use of the power is for the fulfillment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous consideration, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested the Court calls it a colourable exercise and is undeceived by illusion.
It would appears from the aforesaid decision that an order of transfer can be challenged only on the ground that the same is against statutory rules or professed norms or principles governing such transfer or that the transfer is vitiated by mala fide. The foundations for malafide have to be set out in the pleadings itself. The Apex Court in State of Uttar Pradesh v. Dr. Rajendra Prasad 1995 Suppl. (2) SCC 151 had held that nature of evidence in case of mala fide has to be strong and convincing. The veil can also be lifted in appropriate cases.
14. Rule 226/227 of Indian Railway Establishment Code is as under :
226. Transfers: Ordinarily, a Railway servant shall be employed throughout his service on the Railway or Railway establishment to which he is posted on first appointment and shall have no claim as of right for transfer to another Railway or another establishment. In the exigencies of service, however, it shall be open to the President to transfer the Railway servant to any other department or Railway establishment including a project in or out of India. In regard to Group C and Group D Railway servant, the power of the President under this rule in respect of transfer, within India, may be exercised by the General Manager or by a lower authority to whom the power may be re-delegated.
227. (a) A Competent Authority may transfer a Railway servant from one post to another; provided that, except:
(1) on account of inefficiency or misbehaviour, or (2) on his written request, a Railway servant shall not be transferred substantively to or, except in a case of dual charge, appointed to officiate in a post carrying pay than the pay of the permanent post on which he holds a lien, or would hold a lien had his lien not been suspended under Rule 241 (FR 14).
(b) Nothing contained in Clause (a) of this rule or in Clause 28 of Rule 103 shall operate to prevent the retransfer of a Railway servant to the post on which he would hold a lien, had it not been suspended.
15. Shri K.P. Sharma in his Railways' Establishment Rules and Labour Laws, 2002 published by Bahri Brothers has quoted following instructions issued by the Railway Board with regard to transfer at the instance of the Vigilance Organisation and Malpractices and Corruption in mass contact areas:
Instance of Vigilance Organisation/SPE:
Certain transfers are ordered at the instance of the Vigilance Organisation/Special Police Establishment, to facilitate proper inquiries being made. In order to ensure that there is no harassment and/or victimisation on this account, the DRM in respect of Divisionally controlled staff and the CPO in respect of Headquarters controlled staff may hear representations of genuine grievance, if any made, before a final decision is taken to effect the transfer (Letter dt. 06.2.78 and 27.5.78).
Inter-divisional transfer of staff repeatedly figuring in Vigilance cases :
In a Conference of Malpractices and Corruption in mass contact areas organised by the Ministry of Railways on 10.7.98. It has been decided that the cases, of staff who have repeatedly figured in substantiated vigilance case and where penalties have been imposed, should be reviewed at appropriate level and such staff transferred on inter-divisional basis (250/98, dt. 30.10.98).
Inter-divisional transfer of ticket checking staff and other staff in mass contact area:
In a Conference of Malpractices and Corruption in mass contact areas organised by the Ministry of Railways on 10.7.98.
Pursuant to the above discussion on 10.7.98, it has been decided that while the existing policy of inter-divisional/inter-Railway transfer to ticket checking staff detected to be indulging in malpractices shall continue, other staff in mass contact areas detected to be indulging in malpractices should also be transferred on intet-divisional basis (251/98, dt. 2.11.98).
16. The transfer order dated 22.2.2004 is an inter-division transfer and had been issued by the General Manager of Zonal Railway. This order refers to SDGM's note dated 10.1.2004, but does not refer to DST's order referred to 16.2.2004.
17. The Apex Court in Union of India and Ors. v. Janardhan Debanath and Anr, 2004 SCC (L&S) 631 : 2004(2) SLJ 446 (SC) was considering the matter relating the inter-divisional transfer of an employee of Post and Telegraph Department. The contentions advanced before the Apex Court was as follows:
(a) The inter-divisional transfer were in violation of Rule 37 read with letter dated 23.8.90.
(b) It was violative of F.R. 15.
The transfer could have taken place only after the some preliminary enquiry into the incident.
(c) The inter-divisional transfer would affect seniority and promotion prospects. The Apex Court held :
The manner, nature and extent of exercise to be undertaken by Courts/Tribunal in a case to adjudge whether the use of the words 'undesirable' casts a stigma or constitutes a punishment would depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions--status, service prospects financially--and the same yardstick, norms or standards cannot be applied to all categories of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigence to ensure smooth functioning of the administration.
The questions of any loss of seniority or promotional prospects are the aspects which can be gone into in an appropriate proceedings.
The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceedings. For the purpose of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee in unnecessary and what is needed is a prima facie satisfaction of the authority concerned on the Contemporary reports about the occurrence complained of and if the requirement, as submitted by the respondents, of holding an elaborate enquiry is to be insisted upon, the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated.
The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for the Supreme Court to direct one way or the other.
18. Mr. K.K. Shah, the learned Counsel for the applicant has stated that the said decision stands on different footing and therefore, the same does not apply to the facts and circumstance of this case.
19. We find in the present case that Rule 226 permits inter-divisional transfer. The circulars of the Railway Board referred to in Para 15 also lists the circumstance in which inter-divisional transfer is permissible. This case actually stands on a stronger footing in the sense that statutory rules provide for inter-divisional transfer and there are instructions for inter-divisional transfer.
We also find that the chargesheet has already been submitted in the criminal case and major penalty chargesheet have also been issued.
20. In view of this, the above Supreme Court judgment applies to the fact of this case also.
21. As far as the question of seniority is concerned, we find that the order dated 20.2.2004 itself indicates that transfer have been made in the public interest and necessary consequences will follows.
22. Mr. K.K. Shah, learned Counsel for the applicant has contended that the transfer is in interest of administration and the same is not the same thing as public interest. He has relied on the decision of Apex Court in Pratap Singh v. State of Punjab . The majority judgment also held :
As we said earlier, the two grounds of ultra vires and mala fide are thus most often inextricably mixed. Treating it as a question of ultra vires, the question is what is the nature of the power which has been granted to achieve a definite object in which case, it would be conditioned by the purpose for which it is vested. Taking the present case of the power vested in Government to pass the impugned orders, it could not be doubted that it is vested in Government for accomplishing a defined public purpose viz., to ensure probity and purity in public services by enabling disciplinary panel action against the members of the service suspected to be guilty of misconduct. The nature of the power thus discloses it purpose. In the context the use of that power for achieving an alien purpose--wreaking the ministers vengeance on the officer would be mala fide and a colourable exercise of that power and would therefore be stuck down by the Courts. In this connection, we might cite a dictum of Lord Lindley in General Assembly of Free Church of Scotland v. Overtoun 1904 AC 515 when the learned Lord said at page 695:
I take it to be clear that there is a condition implied in this as well as in other instruments which create powers, namely that the power shall be used bonafide for the purposes for which they are conferred.
The Apex Court in Onkar Lai Bajaj v. Union of India and Anr. has held as under:
35. The expression 'public interest' or 'probity in governance' cannot be put in a strait-jacket. 'Public interest' takes into its fold several factors. There cannot be any hard-and-fast rule to determine what is public interest. The circumstances in each case would determine whether Government action was taken in public interest or was taken to uphold probity in governance.
36. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motived on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has to be taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate.
It would thus be clear from the above that end result of exercise of power shall have to be seen. Public interest can also include interest of administration.
23. Mr. Shah, learned Counsel for the applicant has also relied on the Railway Board circular quoted at Note-1 below rule, Rule 2. He has stated that these orders have statutory force as per the decision of Apex Court in UOI v. M. Bhaskar . The relevant part of the said circular is as follows:
1. The Ministry of Railways have, therefore, decided that non-gazetted staff against whom a disciplinary case is pending or is about the start, should not normally be transferred from one Railway/Division to another Railway/ Division till after the finalisation if the departmental or criminal proceedings, irrespective of whether the charges merit imposition of a major or an minor penalty.
2. Cases may occur here a Railway servant commits an of fence while working on one Railway Administration, but which come to light only after his transfer to another Railway Administration or another division and it become necessary to take disciplinary action against him for the offence. The following courses of action are open in such cases :
(i) either action should be taken by the Railway/Division on which the person concerned might be working at the time of taking disciplinary action, in consultation with the Railway/Division where the offence was committed;
(ii) the Railway servant concerned should be transferred to Railway/Division where the offence was committed and that Railway/Division should initiate and finalise the disciplinary action.
4. Resort to the procedure outlined in Para 2(ii) above should rarely be necessary as in cases where essential records and witnesses are located in other Railway/Division, the enquiry can be entrusted to a committee of officers of that Railway/Division and conducted at the place considered most suitable by the committee. The enquiry committee in such cases will, of course, have to be appointed by the Railway/Division where the employee is working in consultation with the Railway/Division on which the offence was committed.
6. Broadly speaking, the consultation with the Railway/Division on which the offence was committed would be necessary for obtaining the following material from the Railway/Division on which the offence on which the accused person is working:
(i) Details of facts relating to the case
(ii) Relevant documents relating to the case,
(iii) List of witnesses to be examined in support of the charges,
(iv) Material for framing the charges and the statement of allegations,
(v) Clarifications in respect of doubtful points, if any, arising out of the accused employee's defence at various stages.
It may be stressed that the authorities on the Railway/Division where the offence was committed are to be consulted only for obtaining the relevant information/ records which may be required for processing the disciplinary action and whatever the question of exercising discretion arises in matters like (i) issue of chargesheet for a major or a minor penalty (ii) whether the inquiry should be held by a single officer or a Committee of Officer (iii) quantum and nature of penalty to be imposed, this has to be done by the Disciplinary Authority itself without consulting anybody else.
24. We find that in the instant case the chargesheet has already issued.
25. We first note that Rule 226 of IREC, framed in exercise of powers conferred under proviso to Article 309 of the Constitution provides for inter-divisional transfer Rule 123 empowers of Railway Board to issue circulars of general applicability in respect of Group 'C and 'D' staff. Such circulars have to be consistent with other provisions of the IREC and not in derogation of it. The language itself suggests that normally there should not a transfer. Subsequent circulars have also been issued by Railway Board for inter-divisional transfer. The Apex Court decision in Jayant Debnath case also refers. This contention has also to be rejected.
26. Reliance has also been placed on Railway Board circular that as far as possible, husband and wife may be posted at the same place. This circular cannot stand in the way of an inter-divisional transfer in the exigencies of administration.
27. The other grounds is mid term transfer. We are now at the close of financial year 2004-05. Hence, the position has changed
28. It has been contended that as General Manager has delegated the power of transfer to DRM and the same has been exercised by DRM, the General Manager could not have issued the transfer order. He has relied on the decision of the Apex Court in Scientific Adviser to the Ministry of Defence and Anr. v. S. Daniel and Ors. and Mannu Lal v. UOI and Ors. 1991 SCC (L&S) 355 : 1991(3) SLJ 29 (SC). The Apex Court in that case was seized with the interpretation of Appointing Authority on a joint reading of Rule 2 (a) (i) and Rule 9 of CCS (CCA) Rules and similar provisions of Railway Servants, (Discipline and Appeal) Rules. It held :
We think on a proper and harmonious reading of Rule 2(a) and Rule 9 that Sub-rule (a) of Rule 2 only envisages the authority to whom the power of appointment has been delegated under Rule 9 and not both the delegator and delegatee.
It has to be first noted that these decisions have been given in the context of CCS (CCA) Rules. The Apex Court in Para 14 has observed that position regarding exercise of power by both the delegator and delegatee after the delegation of power is not quite clear and may need detailed consideration in an appropriate case.
We find that in the instant case, the compendium produced is the schedule of powers delegated by General Manager to Heads of Department and other officials. DRM can transfer only within the division or allow mutual inter-divisional transfer or transfer staff from one division to another with the consent of another DRM to the extent, they have the power to fill up the posts. These inter-divisional transfers shall be on seniority as per rules and in case of departure, General Manager's order have to be obtained.
The power of inter-divisional transfer continues to be with the General Manager only.
We further note that in the instant case, the order relating to revocation of suspension/ posting on revocation of suspension are only a few days before the inter-divisional transfer dated 20.2.2004 on SDGM's note of January, 2004 have been issued.
Hence, this contention has to be rejected.
29. It has also been contended that other persons involved in graver offences were not transferred. Apex Court in Chandigarh Administration v. Jagatjit Singh that one must have enforceable legal right. The Full Bench in B.L. Somayajulu v. The Telecom Commission 1994-96 ATF BJ 189 has held that jurisdiction in, equity does not inhere. The non-exercise of statutory power in one case cannot guide the exercise of statutory power in another case. This contention has also to be rejected.
30. Coming to the facts of this case, we find that Rule 226 permits inter-divisional transfer. The Railway Board Circular quoted in Para 15 provide for inter-divisional transfer at the instance of Vigilance. These circulars refers to giving an opportunity of hearing in appropriate cases and also of staff indulging in malpractices in mass-contact area. The Railway Board circular cited by the applicant has to be read in harmony with Rule 226. The objective of said circular is expeditious competition of Disciplinary enquiry. The applicant has been chargesheeted under P.C. Act also. As per the decision of the Apex Court in KVS v. T. Srinivas 2004 AIR SCW 4558, these cases can be construed as an exception to the genera! rules in M Paul Anthony's case for staying the disciplinary enquiry for some time. The respondents have taken the plea that his continued presence in Baroda may endanger the evidence or he may tamper with the evidence. The defence taken is that till charges are proved, it is merely an allegation. The present position of criminal case is not indicated. The departmental enquiry has perhaps also not proceed. The Apex Court in Janardhan Debanath's case has delinked the question of transfer from preliminary enquiry. This exercise of power cannot be said to be malafide exercise of power.
It has also to be noted that while exercising powers of judicial review, we cannot exercise the powers of Appellate Authority.
31. In view of what has been discussed above, the O. A. is devoid of merit and the same deserves to be dismissed. The same is dismissed. No order as to costs. M.A. 773/2004 also stands disposed off.