Calcutta High Court (Appellete Side)
Karuna Ranjan Neogi & Ors vs Union Of India & Ors on 26 September, 2008
Author: Dipankar Datta
Bench: Surinder Singh Nijjar, Dipankar Datta
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
F.M.A. No.599 of 2008
KARUNA RANJAN NEOGI & ORS.
Versus
UNION OF INDIA & ORS.
For the Appellants : Mr. L.K.Chatterjee
Mr. Kamalendu Ghosh
For the Respondents : Mr. R.C. Ghosh
Mr. Dilip Kumar Chatterjee Ms. Amrita Ghosh Heard on : 28.08.2008 Judgment on : 26.09.2008 Present :
The Hon'ble Justice Surinder Singh Nijjar, Chief Justice And The Hon'ble Justice Dipankar Datta Dipankar Datta, J:
Challenge in this appeal is to a judgment dated 16.7.07 passed by a learned Judge of this Court whereby the writ petition [W.P. No.13945 (W) of 2007] preferred by the 82 appellants was dismissed.
The appellants are members of the Railway Protection Force (hereafter the Force). They had challenged orders of transfer issued by the Chief Security Commissioner, all dated 8.6.07. The appellants are either Constables or Head Constables who, upon completion of three tenures and above in a particular division, were transferred and posted to other divisions in the interest of administration with immediate effect.
The learned Judge observed that the appellants being members of the Force were liable to be transferred in terms of their conditions of service and since there was no violation of statutory rules in ordering their transfer and that they had not alleged malafide as the foundation of the transfer orders, interference was not merited.
Mr. Chatterjee, learned Counsel appearing for the appellants contended that they had been prematurely transferred and in terms of Standing Order No.70 dated 27.9.04 (hereafter the Standing Order) issued by the Government of India, Ministry of Railway (Railway Board), the Chief Security Commissioner has no power to order premature transfer but that if a premature transfer is considered necessary due to any reason for officers below the rank of Sub-Inspector, the Chief Security Commissioner would be the approving authority. In other words, the Chief Security Commissioner in the present case instead of acting in the capacity of an approving authority had acted as the original authority and such action of the Chief Security Commissioner was in the teeth of the Division Bench judgment of this Court in MAT No.863/07 (Shyam Behari Pandey & ors. Vs. Director General, Railway Protection Force & ors.), since reported in (2007) 3 CHN 350 (HC). He invited the attention of the Court to the judgment and placed the following passage:
"****As such, we have no hesitation to hold that it is a pre-mature transfer under Clause 23. Under Clause 23 of the Standing Order it provides for pre-mature transfer prior approval of Chief Security Commissioner would be necessary in terms of Clause 23(A), which is applicable in respect of the petitioners' case. But from the impugned transfer order it appears that it was issued by the Chief Security Commissioner himself. Here lies the legal question. Can the approving authority be the original authority? The answer is clearly 'no'. Once any standing order and/or regulation identifies one approving authority for the purpose of pre-mature transfer it will always to be deemed and it would be construed that the pre-mature transfer order should be issued by any officer sub-ordinate to the approving officer namely, the Chief Security Commissioner.****"
He further contended that although the aforesaid judgment was placed before the learned Judge, the same was not considered in the proper perspective. He further relied on the ruling of the Apex Court in P. Venugopal vs Union of India, reported in (2008) 5 SCC 1 to lay emphasis on the word 'tenure'. According to him, since the petitioners had not completed their tenure in their present places of posting, in terms of the said ruling they could not have been transferred other than transfer by an order of the Additional/Deputy Security Commissioner, having the approval of the Chief Security Commissioner. He, accordingly, prayed for setting aside of the judgment under appeal as well as the impugned orders of transfer.
Per contra, Mr. Ghosh, learned Counsel appearing for the respondents contended that it is not a case of premature transfer of the appellants but an inter-divisional transfer upon completion of three tenures. He referred to the contents of paragraph 4(b) of the respondents' affidavit-in-opposition to the stay petition filed in connection with the present appeal, which reads as under:
"The writ petitioners intentionally gave false statements to have the favourable order from this Hon'ble Court and thereby committed the act of perjury. They knew very well that each of them was serving in the respective division continuously for more than three tenures and was not served with premature order of transfer by the Chief Security Commissioner, Railway Protection Force, South Eastern Railway."
as well as the reply of the petitioners thereto as contained in paragraph 9 of the affidavit-in-reply:
"The statements made in paragraph 4(b) are not correct since no perjury has been committed and as such are denied and disputed. The writ petitioners made out a case of premature transfer for the reasons explained in the writ petition and detailed particulars thereof are given in the annexures annexed to the said petition. It is pertinent to note that instead of dealing with the said facts and annexures stated that the respondents have misconceived the allegations of premature transfer as complained of by the writ petitioners. Save and except the above and save what is born out of records statements made in the said affidavit are denied and disputed."
and contended that the appellants have no legal right to question the orders of transfer. He placed before us an unreported judgment of a Division Bench of this Court in M.A.T. No. 2595 of 2007 decided on 5.9.07 and contended that in similar circumstances, the orders of transfer were upheld and following the same, the appeal ought to be dismissed.
Having heard learned Counsel for the parties, we are of the considered opinion that the conclusion reached by the learned Judge that the orders of transfer do not merit interference ought to be upheld.
Section 15 of the Railway Protection Force Act (hereafter the Act) ordains that every member of the Force shall, inter alia, be liable to be employed at any place within India. Rule 25 of the Railway Protection Force Rules (hereafter the Rules) lays down general powers and responsibilities of the superior officers with special reference to exercise of administrative powers over the members of the force placed under their command as specified in Schedule II. Rule 90 contemplates transfer of members of the Force from one place to any other place in India in the exigencies of service or for administrative reasons or to avoid local entanglements of such members or for any other consideration. Under Clause 5(3) of Schedule II appended to the Rules, transfer of any member of a Force from one division to the other division of the same railway or from one battalion to the other can be ordered by the Director General and the Chief Security Commissioner. The Additional/Deputy Chief Security Commissioner and Principal, RPF Academy can also order such inter-divisional transfer for all enrolled members of the Force below the rank of Inspector. A perusal of the Standing Order shows that the same contains instructions intending to supplement provisions contained in the Rules. Paragraph 3 of the Standing Order provides the tenure of officers/staff. The note appended thereto reads as follows :
"Note : Tenure of posting indicated above is in the nature of guidelines and does not preclude the administration from transferring staff at any time before completion of the tenure in exigencies of service or for administrative reasons as envisaged in Rule 90 of RPF Rules, 1987."
From the impugned transfer orders it is clear that the same are inter-divisional transfer orders, in respect of Constables/Head constables who have completed three tenures and above in a particular division, issued in the interest of administration. It is not in dispute that in terms of the Standing Order, presently tenure of a Constable/Head Constable would mean a tenure of 4 years. It is also not disputed by the appellants that they have been posted in one particular division for more than 12 years. Regard being had to the same, the contention of the appellants that they have been prematurely transferred is misconceived since the Chief Security Commissioner in terms of Schedule II of the Rules has the power to order inter-divisional transfer in respect of any member of the Force, and such inter-divisional transfer is permissible even in terms of the Standing Order for administrative reasons notwithstanding 'tenure' as indicated in paragraph 3 thereof. By ordering transfer of the appellants from one division to another after 12 years of posting in one division in the interest of the administration, it appears that the Chief Security Commissioner did not violate any binding rule.
The judgment of the Division Bench in Shyam Behari Pandey (supra) does not assist the appellants in any manner. From the discussion, it does not appear that the transfers were ordered in the interest of the administration as in the present case. In that case, specific finding was reached that the impugned orders of transfer were pre-mature. In such circumstances, the Division Bench held that the Chief Security Commissioner being the approving authority ought not to have passed the order of transfer as the original authority. That the Chief Security Commissioner has the authority to order inter-divisional transfer was also accepted by the Division Bench as is found from the following extract of its judgment:
"****Under Serial No. 5.3 of the said list of Schedule II, it appears that three officers are empowered to issue the transfer order in respect of the 'writ petitioners' postings namely, the Director General, Chief Security Commissioner and Additional/Deputy Security Commissioner/Principal, RPF Academy."
In the present case there is no reason for us to conclude that the appellants are sought to be prematurely transferred. They have been serving in one division for more than 12 years and being enrolled members of the Force, are liable to be employed anywhere in the country. The provision in the Standing Order requiring approval of the Chief Security Commissioner in case a pre-mature transfer is called for is intended to act as a check on arbitrary exercise of power by the other subordinate officer who enjoys the power to direct pre-mature transfer. It can never be the object thereof to denude the power conferred by the statutory rules on the Chief Security Commissioner to direct inter-divisional transfer for administrative reasons or for any other consideration. It is settled law that an executive instruction cannot override a statutory provision and as such we are unable to accept the contention of Mr. Chatterjee that the Chief Security Commissioner acted illegally in directing the impugned transfers. Assuming that there has been non-compliance of the Standing Order, the appellants can have no legitimate ground to complain for those are in the nature of guidelines issued by the Government which do no confer on them a legally enforceable right. Reference in this connection may be made to the decision reported in Union of India vs S.L. Abbas, reported in AIR 1993 SC 2444. In our further considered view, the decision in P. Venugopal (supra) does not advance the claims of the petitioners. The Apex Court was dealing with a case under Article 32 of the Constitution where the petitioner had been appointed to a tenure post and a challenge had been laid to the constitutional validity of an enactment by operation of which his tenure of appointment was sought to be curtailed. The appellants not having been appointed to any tenure post, the principle of law on which the cited case was decided would have no application in the facts of the present case.
Since no statutory Rule has been violated, there is no force in the contention of the learned Counsel appearing for the appellants.
The appeal stands dismissed without any order as to costs. Urgent photostat certified copy of this order, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor. I agree.
(SURINDER SINGH NIJJAR, C.J.) (DIPANKAR DATTA, J.)