Guruprosad Mazumdar v. Railway Board — 1972 DIGILAW 211 (CAL)

JUDGMENT 1. THIS appeal is directed against a judgment and order dated March 15, 1972. The appellants claim to be members of the Eastern railway Protection' Force Association, which was registered on August 14, 1970. They also claim to be office-bearers of the Association. According to them, they tried to get the Association recognised by the Railway administration, who, however, did not give the recognition. It is alleged that although the Association had been formed under rule 33 of the Railway Protection Force rules, 1959, the Railway administration had withheld recognition of the Association malafide without assigning any reason. 2. ON June 11, 1971, the appellants moved this Court under Art. 226 of the constitution, when an order was made directing the Chief Security Officer, eastern Railway, to appear before the court at the hearing of the application. On June 14, 1971, an order was made by which all the appellants were transferred to different Zonal Railways with immediate effect A Rule Nisi was issued, but this Rule was discharged by the judgment and. order mentioned above. This appeal is directed against the order discharging the Rule. The first point argued by Mr. Noni Coomar Chakravarti, appearing for the appellants was that the order of transfer was made malafide. He argued that the order was made because the appellants moved the writ petition demanding recognition of the association of which they were office-bearers and because in that application, an order was made directing the Chief Security officer, Eastern Railway, to appear before this Court when the application came up for hearing. The allegations regarding malafide have been made in paragraphs 10 and 14 of the petition, in which it has been alleged, firstly, that the order was made because the writ petition was moved demanding recognition of the Association and secondly, because the object of the transfer was to make the said application infructuous. 3. THE second point urged by Mr. Chakravarti was that transfer of an employee was a condition of service, and under S. 21 (1) of the Railway Protection force Act, 1957, the Central Government had the power to make rules for carrying out the purposes of the Act and in particular, under S. 21 (2) (a)the Central Government could, make rules regarding condition of service of the Force. It was argued that although the Central Government had framed rules in exercise of the powers under s. 21, no Rule had been framed regarding transfer of members of the Force. Rule 32 of the Railway Protection Force rules, 1959, empowers the Inspector-General of the Force, to frame and issue Regulations with the approval of the Central Government for the superior officers and members of the Force. In exercise of the power to frame Regulations, the Inspector-General has framed railway Protection Force Regulations, and Regulation 14 provides that although the Force has been organised on all India basis the members shall ordinarily be employed throughout service on the Railway Establishment to which they are posted on first appointment. It further provides that in the interest of administration, it shall be open to the inspector-General to transfer the members of the Force from one Railway to another. It was argued that the Regulation 11, dealing with the transfer of the members of the Force, is ultra vires the Act, as the Central Government alone could make Rules relating to condition of service, and transfer of members was such a condition of service. This point has not been taken in the petition. There is no challenge by the appellants to the vires of Regulation 14, nor has this point been urged before the trial Court. 4. IN elaborating the above point mr. Chakravarti argued that Parliament had delegated the power to make Rules regarding condition of service for members of the Force to the Central government. The Central Government could therefore make the Rules in exercise of such power. But, it was argued, the Central Government had no authority or jurisdiction to delegate the power to make Regulations to the Inspector-General of the Force dealing with transfer of members of the Force, as transfer was a condition of service. Turning to the allegations regarding malafides, it is to be noticed that they have been denied in the affidavit-in-opposition affirmed by Bhupendra chandra Mazumdar on January 28, 1972. In paragraph 7 of this affidavit, it in alleged that the order of transfer was issued purely in the interest of administration after the consideration. Turning to the allegations regarding malafides, it is to be noticed that they have been denied in the affidavit-in-opposition affirmed by Bhupendra chandra Mazumdar on January 28, 1972. In paragraph 7 of this affidavit, it in alleged that the order of transfer was issued purely in the interest of administration after the consideration. In paragraph 11 of this affidavit, it is alleged that the order of transfer was issued on the basis of the order of the inspector-General of Railway Protection force (Respondent No. 2) dated June 3, 1971, in accordance with the standing procedure, and that the order dated June 14, 1971, made by the respondent not 3 is a reproduction of he order made by the respondent No. 2. It is further alleged that the question of recognition of the Association, formed by the appellants is an entirely different issue, having no connection, whatsoever, with the transfer of the appellants. The allegation of malafides is further sought to be repelled on the ground that as many as 66 Officers of different Railways were transferred under the order of: the respondent No. 2 dated June 3, 1971, and the large majority of the officers transferred were, in no way, connected with the Association formed by the appellants. It is further alleged that all the Office-bearers excepting the appellants Nos. 2 and 3, including the president of the Association, have not been transferred, and therefore the pending proceedings in this Court will, in no way, be affected. 5. IT seams to us that so far as the allegations regarding malafide are concerned, they have no basis in fact. The order of transfer has been made with regard to Officers in service throughout India, end is not directed against the appellants only. The service is an all India service, and the order has been made by the topmost Officer in the service, namely, the Inspector-General, railway Protection Force. There can be no point in transferring Officers in other Railways, if it was intended to victimize the appellants, for their formation of the Association and for their moving a writ petition in this Court. In these facts, we cannot uphold the contention on behalf of the appellants that the order of transfer is bad, on the ground of malafide. Nor can we hold that it is bad as it is vague, and daces not specify the place where the transferees were posted. In these facts, we cannot uphold the contention on behalf of the appellants that the order of transfer is bad, on the ground of malafide. Nor can we hold that it is bad as it is vague, and daces not specify the place where the transferees were posted. We do not find any force in this contention either. The appellants are all posted in the Eastern railway, and they are working under the Chief Security Officer of that Railway. They have been transferred either to the South Eastern Railway or North eastern Railway. It is not for the respondent No. 2 to make the order of posting at different stations in each of these Railways. The actual posting will necessarily be made by the Chief Security Officer of the particular railway to which they have been transferred 6. I now turn to the contention of mr. Chakravarti that under S. 21 (2) of the Act, the Central Government alone had the power to make Rules regarding conditions of service of members of the Force, and that transfer in the service is one of the conditions of service, and since no such Rules have been framed by the Central Government, the respondent No. 2 could not frame Regulations relating to such transfer of service. Apart from the fact that this point has not been taken in the petition and was not argued in the trial Court, it seems to us that there is hardly any force in this contention. Normal and ordinary transfer of a public servant, holding a post which is transferable, cannot be said to be a condition, of sense. Appointment to such a post or office, involves the liability and the obligation, to be transferred from one place to another. Transfer in public service is a normal and ordinary incidence of the service itself, and is, by no means, a condition of service. It may be that in a particular case, it is stipulated that the Officers will not be transferred from a particular place or office or from a particular grade to a different grade. It is only in such cases that the transfer becomes a condition of service as the ordinary incidence of transfer is excluded by the contract of employment. Such is not the case here. It is only in such cases that the transfer becomes a condition of service as the ordinary incidence of transfer is excluded by the contract of employment. Such is not the case here. It is not the appellants' case that they were appointed to the Railway protection Force, on a term or condition. that they were not liable to be transferred. On the other hand, there is a specific provision in S. 15 (1) of the Act itself, imposing an obligation upon members of the Force to be employed in any part of the Railways throughout India. That being so, there is no merit in the contention of Mr. Chakravarti that Regulation 14 which enables the inspector-General to transfer members of the Force from one Railway to another is ultra vires the Act itself. We cannot but hold that the provision in regulation 14, regarding transfer from one Railway to another, is entirely in conformity with S. 15 (l) of the Act itself. Nor can we accept the contention on behalf of the appellants that since transfer is a condition of service, the Central Government alone was competent to make Rules under S. 21 (1)and S. 21 (2) of the Act, and since no such Rules have been framed, but transfer has been provided for by regulation 14 of the Regulations, such Regulation is void and ultra vires the Act. It is also to be noticed that Rule 32 of the Rules framed by the Central government in exercise of the power under S. 21 of the Act specifically provides that the Inspector-General may frame Regulations and superior officers and members of the Force shall, as a condition of their service, be governed by such Regulations in the discharge of their duties. Mr. Chakravarti argued that though S. 15 (1) of the Act provided that members of the force would be liable to be employed in any part of the Railways throughout India "railways" in this sub-section should be construed to mean a Zonal railway. In support of his contention, he relied upon the definition of "railway" in S. 3 (4) of the Indian Railways act, 1890, where it is stated that "railway'' means a Railway or any portion of a Railway for the public carriage of passengers, animals or goods etc. In support of his contention, he relied upon the definition of "railway" in S. 3 (4) of the Indian Railways act, 1890, where it is stated that "railway'' means a Railway or any portion of a Railway for the public carriage of passengers, animals or goods etc. The term "railway" has not been defined in the Railway Protection Force act, with which we are concerned in this appeal, and though it is not the correct approach to take the definition of a term in one Statute for the purpose of that Statute, as a correct definition for the purpose of a different Statute, yet the definition of the term "railway" in the Indian Railways Act does not support Mr. Chakravarti's contention that "railway" in the Railway Protection Force Act should be construed to mean a Zonal Railway. It is to be noticed that S. 15 (1) of the Act clearly provides that members of the Force shall be employed in any part of the railways throughout India. There is nothing in this sub-section, or in any other provision in the Act, to enable us to draw the conclusion that employment in a Railway means employment in Zonal Railway On the other hand, on a plain reading of the Section itself, it cannot but be held that members of the force are liable to serve in any Railways owned by the State throughout India. To read the sub-section to mean that obligation to serve is restricted to a Zonal Railway would be opposed to all ordinary canons of construction of a statute. Although the word "transfer" has not been used in S. 15 (1) of the act, the obligation created for every member of the Force to be employed in any part of Railways throughout India, plainly implies, a liability or obligation to be transferred from one railway system to another within India. 7. THE next contention of Mr. Chakravarti was that the Rules framed by the Central Government under s. 21 (1) of the Act, were required to be laid for not less than thirty days before both Houses of Parliament as soon as possible, after they are made, by Section 21 (3) of the Act. It was argued that the Rules were not in fact laid before the Houses of Parliament, as required by the Statute, and therefore they were invalid. It was argued that the Rules were not in fact laid before the Houses of Parliament, as required by the Statute, and therefore they were invalid. It was submitted that since the Rules were invalid, the Inspector-General of the Force could not make the Regulations under rule 32 of the Rules, and therefore the order of transfer of the appellants must be held to be invalid. Mr. Banerjee appearing for the respondents stated that rules have in fact been laid before the houses of Parliament and the validity of the Rules could not, therefore be assailed on that ground. Our attention was drawn by Mr. Chakravarti to an un-reported decision of the Delhi High court (1) Gurubakhash Singh Gill v. General Manager, Northern Railway and ors. Civil Writ No. 872 of 1971, in which the same order of transfer of the petitioner in that case, was challenged. It appears from the judgment that the rules were in fact laid before the houses of Parliament. We are, therefore, unable to accept Mr. Chakravarti's contention that the Rules should be held to be invalid for non-compliance with S. 21 (3) of the Act. 8. I will now briefly refer to the decision of the Delhi High Court mentioned above, on which Mr. Chakravarti relied. That was a writ petition, challenging the order of transfer of the petitioner from Northern Railway to eastern Railway Rangaranjan J. appears to have come to the conclusion that transfer is a condition of service, and since the Regulations dealt with the question of transfer, the same, in order to be valid and enforceable, must be laid before the Houses of Parliament. We are unable to agree with this view. Transfer of a public servant, who under the provisions of the Statute itself, is bound to serve in any part of the Railways in India is an ordinary incidence of service and can, by no means, be held to be a condition of service. Nor, in our view, it can be said that the Regulations framed by the Inspector-General in exercise of the powers under Rule 32, must be laid before the Houses of parliament and if not so laid, the Regulations should be held to be invalid. There is nothing in the Act which requires such Regulations to be laid before the Houses of Parliament in the same manner as the Rules framed by the central Government. There is nothing in the Act which requires such Regulations to be laid before the Houses of Parliament in the same manner as the Rules framed by the central Government. In our view, it can not be held that Regulation 14, under which the transfer order was made, is invalid as the Regulations had not been laid before the Houses of Parliament. Mr. Banerjee, on the other land, drew our attention to Rule 146 of the rules in the Railway Establishment code Vol. 1 (1971) which provides that ordinarily a Railway servant shall be employed on the Railway to which he is posted on first appointment but in the exigencies of service, it shall be open to the President to transfer the Railway servant to any other department of railway or Railway Establishment It further provides that in regard to non-gazetted Railway servants, the power of the President under this Rule in respect of transfer within India, may be exercised by the agent or by a lower authority to whom the agent may re-delegate his power Mr. Banerjee also drew our attention to a notification whereby the power of transfer was re-delegated by the General Manager under Rule 146 to, amongst others the Chief Security officer. He contended that quite apart from the provision in Regulation 14, the chief Security Officer had the power to make the impugned order of transfer of the appellants by virtue of Regulation 146 read with the notification mentioned above. It seems to us that there is good deal of force in this contention on behalf of the respondents. Mr. Banerjee also invited our attention to an unreported decision of the Andhra pradesh High Court, dealing with the same order of transfer. This judgment is included in the Paper Book and is to be found at p. 31. In that case, the writ petitions were dismissed on the ground that the order of transfer could not be validly challenged by the petitioners. 9. THE next contention of Mr. Chakravarti was that the transfer was purported to have been made in the interest of administration and that, even though, the appellants had challenged the existence of reasons for such transfer, no such reasons had been disclosed. 9. THE next contention of Mr. Chakravarti was that the transfer was purported to have been made in the interest of administration and that, even though, the appellants had challenged the existence of reasons for such transfer, no such reasons had been disclosed. It was argued that just as in the case of a public purpose under the Land Acquisition Act, 1894 where there is a challenge to the existence of administrative reasons, such reasons should have been disclosed. We are unable to accept this contention on behalf of the appellants. The requirement of law that acquisition of a land for public purpose, if challenged on the ground that there was no public purpose, such public purpose should be disclosed to satisfy the Court about the existence of the same, cannot be equated with a Rule or Regulation authorising transfer for administrative reasons. Nor can it be held that where there is a challenge to an order of transfer on the ground that there are no administrative reasons, such reasons must be disclosed. Orders of transfer are purely administrative orders and transfer, in our view, unless there is anything contrary in any statutory provision is an ordinary incidence of service, and no public servant has a right to demand a disclosure of the reason of transfer, unless such transfer has been made malafide or made contrary to the Statutory provisions, 10. IT was also argued by Mr. Chakravarti that the appellants would lose their seniority and promotion due to them in their present position, and they will suffer loss of remuneration. These allegations have been made in paragraph 20 of the petition. Beyond vague allegations of loss of seniority promotion and loss of remuneration, no particulars have been given. Furthermore, the allegations make it plain that these are mere apprehensions on the part of the appellants and there has neither been any invasion of any or their vested rights, nor is there any threat of such invasion. On the other hand, it appears from paragraph 16 of the affidavit-in-opposition that the appellants will get their original seniority in the respective grade based on the date of promotion, and the date of appointment to that grade. The contention regarding apprehended loss of seniority, remuneration and chances of promotion cannot be up-held, more particularly, because these allegations have been controverter on behalf of the respondents. The contention regarding apprehended loss of seniority, remuneration and chances of promotion cannot be up-held, more particularly, because these allegations have been controverter on behalf of the respondents. All in all, it seems to us that on a plain reading of the provisions in the act itself, the Rules framed by the central Government there under, and the regulations framed by the Inspector-General under the Rules, we cannot but hold that Regulation 14 dealing with the question of transfer of members of the force is valid and binding on such members and the Inspector-General of the Force is quite competent to frame the Regulations, and such Regulations are conditions of service of the members of the Force. We must also hold that the transfer of public servants. unless there is anything to the contrary in the contract of service, or in any statutory provision, is not a condition of service of a public servant. Such transfers are normal incidence of the service itself and can, by no means, be said to be a condition of service. Keeping in view the provision in S. 15 (1)of the Act, the conclusion that members of the Force are liable to be transferred in any part of the Railways throughout India is inescapable. Rules framed by the Central Government under the Act and Regulations framed by the Inspector-General of the Force under, the Rules must be in conformity with the mandate of the Statute. Neither Rules nor regulations can be framed so as to abridge or curtail the obligation of the members of the Force to serve in any part of the Railways throughout India as imposed by S. 15 (1) of the Act. This conclusion is also irresistible, having regard to the provisions in S. 15 and S. 21 of the Act and Rule 32 of the Rules. The posts which the appellants are holding are posts in the railway Protection Force all members of which are liable to be transferred in any part of the railways in India. This conclusion is also irresistible, having regard to the provisions in S. 15 and S. 21 of the Act and Rule 32 of the Rules. The posts which the appellants are holding are posts in the railway Protection Force all members of which are liable to be transferred in any part of the railways in India. Rules framed by the Central Government in exercise of the statutory powers enable the Inspector-General to frame regulations which are part of the conditions of service of the members of the Force The Inspector-General, in exercise of the power to make Regulations, has made a Regulation relating to the transfer of the members of the Force from one Railway to another in conformity with the provisions in the Statute itself. This, together with Rule 146 of the Rules in the Railway Establishment Code, to which i have referred earlier, make the transfer order, which was the subject-matter of challenge in the writ petition, valid and binding on the appellants. 11. IN our opinion, no grounds have been made out by the appellants for interfering with the judgment and order of the trial Court. The appeal therefore fails and is dismissed. There will be no order as to costs. As preyed for, let operation of this order remain stayed for a period of four weeks from date.