Patna High Court - Orders
Pankaj Kumar vs The Union Of India & Ors on 19 October, 2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4138 of 2012
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Pankaj Kumar, son of Sri Ravindra Nath Thakur, resident of Village and
Post-Rahikpur Thela Mohan, Police Station-Renugaon Simraha, District-
Araria. Presently posted as Inspector In Charge, Railway Protection Force
Post, Kiul Railway Junction and District-Lakhisarai.
.... .... Petitioner
Versus
1. The Union of India through the Director, Ministry of Railway, Railway
Board, Rail Bhawan, New Delhi.
2. The Director, Ministry of Railway, Railway Board, Rail Bhawan, New
Delhi.
3. The Deputy Director, Security (Establishment) Ministry of Railway,
Railway Board, Rail Bhawan, New Delhi.
4. The Director General, Railway Protection Force, Rail Bhawan, New
Delhi.
5. The Inspector General-Cum-Chief Security Commissioner/Railway
Protection Force, East Central Railway, Hajipur.
.... .... Respondents
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For the Petitioner : Mr. Satish Kumar Singh, Advocate.
For the Respondents : Mr. Mahesh Prasad, Advocate.
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P R E S E N T : HONOURABLE MR. JUSTICE S.N. HUSSAIN
ORDER
15 19-10-2012I.A. No.2596 of 2012 had been filed by one Shahid Khan for being impleaded in this writ petition as party respondent stating that while the petitioner Pankaj Kumar was transferred from Kiul to Danapur, the applicant Shahid Khan was transferred from Koderma to Kiul in petitioner‟s place, whereas one B.K. Tiwari was transferred to Koderma in place of the applicant and hence it was a chain transfer by the impugned order dated 21.02.2012. He further submitted that the applicant was posted at Kiul, whereas B.K. Tiwari was posted at Koderma, hence if the claim of the petitioner was allowed the Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-2012 2 entire chain of transfer would be disturbed. After considering the averments made by learned counsel for the applicant, it is quite apparent that he has no locus standi as this writ petition has been filed by the petitioner only against the action of the respondents. Furthermore the applicant has nowhere stated in his interlocutory application that he had been relieved from Koderma or B.K. Tiwari had already joined at Koderma. In any view of the matter, this writ petition is properly contested by the authorities of the Railways and hence there is no occasion for impleading the applicant as party respondent to this writ petition. Accordingly, I.A. No.2596 of 2012 is rejected.
2. This writ petition has been filed by the petitioner against his transfer vide Force Order no.24/2012 dated 21.02.2012 (Annexure-3) issued by Inspector General-cum- Chief Security Commissioner, RPF, East Central Railway, Hajipur (respondent no.5) by which petitioner has been transferred from Kiul Railway Junction to DI Cell Danapur.
3. Learned counsel for the petitioner stated that he was appointed as Sub-Inspector under Railway Protection Force in the year 1992, whereafter he was promoted to the post of Inspector in the year 2004. It was also stated that he was posted in Special Intelligence Branch, Headquarter Hajipur on the post of Inspector-In-charge from October 2007 to March 2011, Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-2012 3 whereafter he was transferred by Force Order dated 30.03.2011 issued by the Chief Security Commissioner, RPF, East Central Railway, Hajipur (respondent no.5) to the RPF Post Kiul Railway Junction and the petitioner joined there on 14.04.2011.
4. Learned counsel for the petitioner submitted that after joining at Kiul the petitioner got his children, namely Pritam Kumar, Punya Kumari and Prerna Kumari admitted in local D.A.V. School, Lakhisarai, but he was prematurely sought to be transferred by order dated 21.02.2012 (Annexure-3) from RPF Post Kiul to DI Cell Danapur, against which he filed the instant writ petition on 29.02.2012, whereafter this court vide order dated 01.03.2012 stayed operation of the aforesaid impugned order of transfer during the pendency of this writ petition.
5. Learned counsel for the petitioner claimed that the impugned transfer within ten months was clearly a premature transfer affecting the studies of his children, who had been admitted in the local school. Learned counsel for the petitioner further claimed that his son was appearing in 10th Board Examination in March 2012, whereas two daughters of the petitioner were studying in Classes-V and VI and they were disturbed in the mid-term of the sessions of the school. In this regard he relied upon a decision of the Apex Court in case of Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-2012 4 Director of School Education, Madras and others vs. O. Karuppa Thevan and another, reported in 1994 Supp (2) Supreme Court Cases 666.
6. Learned counsel for the petitioner averred that there was a clear malafide of the authorities against the petitioner as he had been earlier suspended from service vide order dated 06.05.2012 (Annexure-7) which had been stayed by this court vide order dated 18.06.2012 (Annexure-8) passed in an earlier writ petition bearing CWJC No.9783 of 2012.
7. It was also averred that again on 06.07.2012 the Senior Divisional Security Commissioner, East Central, Danapur suspended the petitioner under Rule 9 (1) (i)/ (ii) read with Rule 133 of the Railway Protection Force Rules, 1987 but when the petitioner challenged it vide CWJC No.12485 of 2012 the authorities recalled the said order on 17.07.2012 and in those circumstances the aforesaid writ petition was disposed of vide order dated 24.07.2012 (Annexure-12). Hence for the aforesaid reasons the authorities became biased and got the petitioner transferred by way of punishment for approaching this Court.
8. Learned counsel for the petitioner claimed that respondent no.5 in his counter affidavit dated 07.03.2012 had annexed the order of Assistant Security Commissioner dated 21.02.2012 as Annexure-D directing that "RPF Kiul has Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-2012 5 definitely failed to discharge his duties. Senior DSC/DNR should take proper action against the erring staff and initiate steps to check the crime". This order was absolutely frivolous as Railway Protection Force is meant only to protect railway properties, but the charge in the said letter against the petitioner was only with regard to hawkers and in spite of that the petitioner had to submit his charge sheet and was subsequently exonerated by the authorities vide order dated 30.08.2012.
9. Learned counsel for the petitioner asserted that the impugned transfer of the petitioner was not a transfer simplicitor, rather it was one in sequence of the malafide acts committed against the petitioner in the impugned transfer order and no administrative ground had been mentioned for transferring the petitioner within ten months.
10. Learned counsel for the petitioner argued that section 4 of the Railway Protection Force Act, 1957 provided powers of superior officers to take such steps in this connection and the petitioner being under Senior Divisional Commissioner, Danapur, he should have been transferred by his Superior Officer and the said order of transfer required approval of the Director General of RPF before its implementation as required in Standing Order No.102/29-36 of March 2012 and Rule 93.2 of the Railway Protection Force Rules, 1987.
Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-20126
11. Learned counsel for the petitioner also relied upon section 8 of the Railway Protection Force Act, 1957 and Rule 21 of the Railway Protection Force Rules, 1987. In this connection he relied upon three decisions of the Apex Court in case of N.K. Singh vs. Union of India and others, reported in (1994) 6 Supreme Court Cases 98; in case of Somesh Tiwari vs. Union of India and others, reported in (2009) 2 Supreme Court Cases 592 and in case of Kendriya Vidyalaya Sangathan vs. Damodar Prasad Pandey and others (2004) 12 Supreme Court Cases 299.
12. On the other hand, learned counsel for the respondents-Railway Protection Force and its authorities as well as learned counsel for the Union of India and its authorities contested the claim of the petitioner and stated that the impugned order of transfer dated 21.02.2012 had been issued by Inspector General-cum-Chief Security Commissioner, RPF, East Central Railway, Hajipur, who had requisite powers under the law and was fully authorized to pass such orders of transfer, hence there was no illegality in the impugned order.
13. Learned counsel for the respondents submitted that the transfer of petitioner was normally on administrative grounds as along with him five other persons had been transferred and hence there can be no institutional bias of the Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-2012 7 authorities in passing the said order. Furthermore, there was no malice in law also as exercise of power was according to law and in any view of the matter no malafide is even alleged in the writ petition.
14. Learned counsel for the respondents argued that petitioner‟s transfer was purely on the administrative ground and it was not punitive in nature which would be apparent from the fact that when the authorities found any order against the petitioner to be wrong, they themselves withdrew that order, hence it is quite apparent that the authorities concerned were throughout acting in accordance with law.
15. Considering the averments made by learned counsel for the parties and the materials on record, it is quite apparent that premature transfer is clearly provided in Standing Order No.102 dated 29.03. 2010, in pargraph-7 (a) and (c) of which it has been provided as follows:-
(a) If a premature transfer of Inspectors is considered necessary, due to any reason, prior approval of Director General, RPF should be obtained,
(c) As per Rule 93.2 of RPF Rules, 1987, ordinarily, no enrolled members of the Force shall be transferred from one station to another unless he/she has been at that station for the normal prescribed tenure, without the specific approval of the CSC concerned.
16. As mentioned in the aforesaid Standing Order Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-2012 8 the matter of premature transfer has also been prescribed in Rule 93.2 of the Railway Protection Force Rules, 1987 which provides as follows:-
"Ordinarily, no member of the Force shall be transferred from one station to another unless he has been transferred at that station for the normal prescribed tenure nor he shall be allowed to remain at that station for more than one year thereafter without the specific approval of the Chief Security Commissioner concerned in respect of enrolled members of the Force and of the Director General in respect of superior officers."
17. In view of the aforesaid provisions of law, premature transfer can be made and it required prior approval of the Chief Security commissioner concerned, but in the instant case the impugned order has been passed by the Chief Security Commissioner himself and as such there cannot be any illegality in the said order on that issue.
18. So far the question of studies of the children of the petitioner is concerned, admittedly his son was appearing in 10th Board Examination in March 2012 and in those circumstances the interim order dated 01.03.2012 was passed by this court to enable the said son of the petitioner to appear in the examination and that exigency is not present now. The remaining two children of the petitioner are his daughters studying in Classes-V and VI and term of those classes must Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-2012 9 have ended in March or April 2012, hence there was no question of mid term disturbance in their studies by the transfer of petitioner, hence the said plea of the petitioner also fails. In this regard the decision of Apex Court in case of Director of School Education, Madras (supra) does not come to the help of petitioner as by the said order it was only directed that the transfer should not be affected till the end of current academic year.
19. So far the questions of allegations levelled against the petitioner and his suspension are concerned, those matters are completely different and they do not affect the instant writ petition, specially when the order of suspension had been recalled by the authorities themselves due to which earlier writ petition filed by the petitioner was also disposed of.
20. Under Rule 4 of the Railway Protection Force Rules, 1987 Schedule-I and II have been provided enumerating the Superior Officers and the Subordinate Officers and a bare perusal of the same shows that the post of Inspector comes within the Subordinate Officer. Furthermore, section 2 (ba) defines „enrolled member‟ of Force as subordinate officer, under officer or any other member of the Force of a rank lower than that of under officer.
Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-201210
21. Rule 25 of the aforesaid Rules provided general powers and responsibilities of superior officers which included administrative and disciplinary power over the members of Force placed under their command as specified in Schedule-II to IV, whereas Rule 90 of the Rules provided that transfer of members of the Force may be ordered 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. In the said circumstances the Chief Security Commissioner had full power and authority to transfer the petitioner in such administrative exigencies and exercising his powers given by the statute he had passed the impugned order, which thus cannot be held to be illegal.
22. So far Standing Order No.102 dated 29.03.2010 is concerned, it was modified by Standing Order dated 27.06.2011 with respect to the Chief Security Commissioner, Zonal Railways and RPSF because the earlier provision in the Standing Order was in contravention with Rule 93.2 of the Railway Protection Force Rules, 1987. Furthermore, the note at the bottom of Clause-1 of Standing Order No.102 provided that tenure of posting indicated therein was in the nature of Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-2012 11 guidelines and did not preclude the administration from transferring members of the Force at any time before completion of the tenure in exigencies of service or for administrative reasons as envisaged in Rule 90 of the Railway Protection Force Rules, 1987.
23. From the facts and circumstances of the case it also becomes clear that neither there was any institutional bias nor there was any malice in law in the impugned order of transfer of petitioner as the exercise of power by the authorities was according to law and the allegations levelled by the petitioner are absolutely frivolous and baseless.
24. So far reliance of learned counsel for the petitioner on the decision of Supreme Court in case of N.K. Singh (supra) is concerned, it does not at all help the petitioner as it has been held therein that transfer of a government servant in a transferable service is a necessary incident of the service career and assessment of worth must be left to the bonafide decision of the superiors in service and their honest assessment accepted as a part of service discipline unless the decision is vitiated by malafides or infraction of any professed norm or principle governing the transfer. In the instant case the petitioner has failed to show that there was any malafide or infraction of Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-2012 12 professed norm or principle governing the transfer.
25. So far reliance of learned counsel for the petitioner on the decision of Apex Court in case of Kendriya Vidyalaya Sangathan (supra) is concerned, it has been held therein that the transfer which is an incidence of service is not to be interfered with by courts unless it is shown to be clearly arbitrary or visited by malafide or infraction of any prescribed norms of principles governing the transfer. In the instant case the petitioner has completely failed to show that the transfer is vitiated by malafide or is made in violation of any operative guidelines and hence there is no occasion for any interference.
26. So for reliance of learned counsel for the petitioner on the decision of Apex Court in case of Somesh Tiwari is concerned, it has been held therein that indisputably an order of transfer is an administrative order and 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 malafide on the part of the authority is proved. However, in the instant case the petitioner has completely failed to show that any malice in fact or malice in law affected the impugned order of petitioner‟s transfer. Thus the aforesaid case law is also not applicable to the facts and circumstances of this Patna High Court CWJC No.4138 of 2012 (15) dt.19-10-2012 13 case.
27. Considering the entirety of the matter and the materials on record as well as the specific provisions of law and the case laws relied upon by learned counsel for the parties, this court does not find any merit in the claim of the petitioner and in the submissions of his learned counsel, nor does it find any illegality in the impugned order of transfer of the petitioner. Accordingly, this writ petition is dismissed.
Harish/- (S.N. Hussain, J)