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1982 DIGILAW 929 (ALL)

Arnar Singh v. Union of India

1982-08-11

K.C.AGARWAL, SATISH CHANDRA

body1982
JUDGMENT K. C. Agarwal, J. - These six petitions raise common questions of law and are, therefore, being decided by a single judgment. 2. The petitioners have challenged their transfer orders made by the Chief Commercial Superintendent, Northern Railway, Baroda House, New Delhi, transferring them to the Divisions indicated against their names in the Chart given below : Name From Division To Division 1. Amar Singh Tundla Bikaner 2. Mahendra Singh Tundla Moradabad 3. S. P. Shukla Kanpur Jodhpur 4. Kalbe Abbas Jafri Tundla Moradabad 5. Ravindra Nath Jain Tundla Firozptir 6. Kapoori Lal 7. P.C. Arora Jhansi Sholapur 3. As for deciding the points, it is not necessary to refer the facts of all the six cases, we would state the facts of Writ No. 9835 of 1981, Amar Singh v. Purshottam Dass Goswami and other,only. The petitioner Amar Singh was appointed as a Ticket Collector in Northern Railway, Allahahad Division, by the General Manager, Northern Railway, New Delhi, on Sept. 8, 1961. His initial posting was at Tundla Railway Station. He was transferred on 2nd May, 1981, from Tundla to Bikaner, by an order communicated by Divisional Railway Manager (P), Allahahad, in the same capacity in which he was working at Tundla. The petitioner has challenged his transfer order on a variety of grounds. The first ground was that the transfer order was violative of R. 146 of the Indian Railway Establishment Code, Volume I, as the said order had not been passed in the exigencies of service. The second ground was that it has not been passed by the Competent Authority and, therefore, was illegal. The third ground was about mala fides. 4. A counter affidavit has been filed on behalf of the Northern Railway, and the allegations made in the writ petition have been denied. In justification, the respondents have pleaded that the transfer was made in public interest and on administrative ground, hence was not invalid. The allegations of mala fides have been denied as incorrect. 5. The first point urged before us was that transfer of the petitioner could not he made under R. 146 of the Indian Railway Establishment Code, hence was invalid. The allegations of mala fides have been denied as incorrect. 5. The first point urged before us was that transfer of the petitioner could not he made under R. 146 of the Indian Railway Establishment Code, hence was invalid. Counsel contended that R. 146, under which the transfer order has been passed, does not confer power to transfer a railway employee from one Division to another and, therefore, the impugned order transferring the petitioner from Tundla to Bikaner was invalid. Secondly, 'this R. 146 could be utilised when exigencies of service required to make such an order. According to the counsel, the use of the expression "exigencies of service" indicated that there should he extraordinary situation for passing a transfer order and as there was no extraordinary condition in existence, the order made was invalid. We would have not agreed with the argument of the petitioners' learned counsel that the exigencies require the presence of an extraordinary condition for passing a transfer order. To us, it appears that administrative grounds and exigencies of service are inter-changeable expressions. The expression "exigencies of service" accommodates a variety of factors which may weigh with the authority making the transfer order. But, since the learned counsel for the Railways also has not supported the transfer order under R. 146, we do not consider it necessary to express our concluded opinion on the various arguments raised before us about the interpretation of the said Rule. 6. Counsel for the Railways justified the transfer order under R. 2011 of the Indian Railway Establishment Code, Volume II. This rule reads as under : "2011. (F. R. 15) Transfer of Railway Servants.-(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 covered by Rule 2038 (F. R. 49) appointed to officiate in a post carrying less 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 2008 (F. R. 14). (b) Nothing contained in clause (a) of this Rule or in clause (14) of Rule 2003 (F. R. 9 (13) shall operate to prevent the transfer of a railway servant to the post on which he would hold a lien, had it not been suspended in accordance with the provisions of clause (a) of Rule 2008 (F. R. 14)." 7. Under this Rule, the power has been conferred on a competent authority to transfer a railway servant from one post to another. The expression "railway" here would include all the divisions of the same railway. Under this rule, therefore, a competent 'authority can re transfer a railway servant from one post to another. Rr. 2003 (5) and 2202 (5) give the definition of the expression "competent authority". The earlier provision provides : "Competent Authority', in relation to the exercise of any power under these rules, means the President or any authority to which such power is delegated in Appendix XXXII (See also Rule 2282 and 2283)". Whereas the latter provision giving the definition of the said expression says : "Competent authority, in relation to the exercise of any power, under these rules, means the President or any authority to which such power is delegated in Appendix XXXVIII." 8. Serial No. 5 of Schedule XXXII, which has been framed under R. 2003(5) lays down the delegations made by the President. Serial No. 5 is as under.: 5. 2011 Power to transfer a railway servant form one post to another (1) All heads of Departments Full Power Appendix XXXVIII, framed under 2202 (9), gives the list of officers declared to be the Heads of Department. Item No. 4 mentions Chief Commercial Superintendents as the Head. 9. It was common ground that Chief Commercial Superintendent is the Head of Department in which the petitioner was employed. Reading the aforesaid two provisions together, it appears to us that the transfer could be made by the Chief Commercial Superintendent from one Division to another of the petitioner Amar Singh and petitioners of the other writ petitions. In Civil Writ Petition. No. 1250 of 1981, Surjit Singh v. Union of India, decided on 2nd December, 1981, 1981 WLN (UC) 332 the Rajasthan High Court considered a similar case and found that the transfer of an employee from one Division to another in the same railway was permissible under Rule 2011 of the Indian Railway Establihi.lent Code. In Civil Writ Petition. No. 1250 of 1981, Surjit Singh v. Union of India, decided on 2nd December, 1981, 1981 WLN (UC) 332 the Rajasthan High Court considered a similar case and found that the transfer of an employee from one Division to another in the same railway was permissible under Rule 2011 of the Indian Railway Establihi.lent Code. The Rajasthan High Court took the same view in another case Dinesh Bhatnagar v. Union of India, Civil Writ No. 1023 of 1981, decided on June 30, 1981. Both of these two decisions support the view taken by us. 10. The language of R. 2011 is very wide empowering the competent authority to transfer a railway servant from one post to another. The only limitation placed on the exercise of the said power is that a railway servant could not be transferred to a post carrying lesser pay than the pay of the permanent post on which he held lien, except when his transfer is on the ground of inefficiency or misbehaviour, or on the written request of the employee himself. 11. The next submission made by the learned counsel Sri Birendra Dixit was that the service of a Ticket Collector or Travelling Ticket Examiner since is division-wise and his services are controlled by the Divisional Superintendent himself, he could not be transferred beyond the division. His further contention was that although there was no specific provision conferring the power of transfer of such an employee from one station to an other within the same division, but such a power is implied and in exercise of that em plied power, the transfer could also be made within the division We do not find merit in this submission. The position of law on this aspect is that if there are specific provisions in an Act or the Rules regulating a certain matter, there would be no occasion in that case to find out the implied power and to justify the exercise of that power on that basis. The power contained in R. 2011 dealing with this matter is specific. As R. 2011 is a specific excite and definite provision dealing with a particular matter, there is no occasion for resorting to the implied power and to hold that the specific provision would be overridden by the implied. The power contained in R. 2011 dealing with this matter is specific. As R. 2011 is a specific excite and definite provision dealing with a particular matter, there is no occasion for resorting to the implied power and to hold that the specific provision would be overridden by the implied. Rather, the law is that it is the specific provision that governs the right of the parties. 12. The next argument of the petitioners' learned counsel was that as the transfer order was mala fide, having been passed to punish the petitioners hence the same was invalid. In that connection, the petitioners drew our attention to the writ petition where allegations have been made to the effect that on 11th of March, 1981, T. S Saxena, TTE., was assaulted by Mr. Thappar, Deputy Director, Railway Board, when he was on duty. Upon being beaten, T. S. Saxena and other checking staff protested on the spot and thereafter made a demonstration at Lucknow on 13th March, 1981. They also went on strike protesting against Mr. Thappar. Mr. M. S. Gujral, who was the Chairman of the Railway Board, heard the deputationists on 13th March, 1981, and thereafter assured them for doing the needful, instead he issued a direction to all the Railways for transferring the Ticket Checking Examiners and Ticket Collectors. The petitioner alleged that he and other members of the checking staff had been transferred as a sequence " of the aforesaid order. According to the petitioner, the transfer order made in his case and other connected cases was mala fide, having been passed to victimise them. The counter- affidavit has denied the allegations, and the motive suggested for passing of the transfer orders has been refuted. 13. Having considered the affidavits, we find no merit in this submission. It is undeniable that a transfer order is liable to be quashed if it is motivated to give vent to the feelings which the officer was harbouring against the employee or employees. In such a matter, the Court would be competent to find out the real intention of the transfer and to quash the same if exercise of power was with bad faith or Irrelevant consideration. There does not appear much of substance in the assertion of the petitioner and others that the orders were made to victimise them. In such a matter, the Court would be competent to find out the real intention of the transfer and to quash the same if exercise of power was with bad faith or Irrelevant consideration. There does not appear much of substance in the assertion of the petitioner and others that the orders were made to victimise them. It has come in evidence that similar orders of transfer were passed in other Railways as well. It is, therefore, not correct to say that it was on account of the demonstration that the petitioner and others had been transferred. 14. Having found that ticket less travel was indulged in connivance with the unscrupulous ticket checking staff, the Railway Board decided as policy to send all staff detected indulging in malpractices on inter- divisional transfer. This was aimed at to delink the ticket checking staff with those in connivance with whom this was being done. The transfer orders made in pursuance of the policy evolved by the Railway Board was in public interest. It would help the bona fide passengers and also save the Railways from losing its legitimate dues. This was likely to help the railway 'administration in rooting out the corruption. Counsel for the petitioner, however, suggested that who was corrupt in one division was not likely to change himself and, therefore, the purpose of rooting out the corruption and providing purety in administration could not he achieved by the transfers. On the basis of this argument we cannot hold the transferees to be invalid. We are only required to find out whether the transfers were made in public interest. The relevant portion of the Board's order dated March 25, 1981 is quoted below: "All staff detected indulging in malpractices should invariably he send on inter-divisional transfer as a matter of policy. Disciplinary action can follow at the station of his now posting. Such transfers will not be taken to mean a punishment as it is a campaign against the rampant social evil. We just cannot afford to allow the guilty to continue to work in the same area." 15. Counsel for the petitioner contended that transfer of the ticket checking staff having, been made on the ground of lacking in integrity would have the effect of converting it into a penal transfer. We do not accept this submission. We just cannot afford to allow the guilty to continue to work in the same area." 15. Counsel for the petitioner contended that transfer of the ticket checking staff having, been made on the ground of lacking in integrity would have the effect of converting it into a penal transfer. We do not accept this submission. A very important aspect of this matter which should be emphasised here is that the service of the petitioner was transferable and if transfer has been made from one place to another, the same cannot be categorised as penal. The expression ,"penalty" in Service Law has a definite meaning, which includes, amongst others, loss of pay or allowances or loss of seniority. In E.P. Royappa v. State of Tamil Nadu (AIR 1)74 SC 55) the Supreme Court dealing with the amplitude of the powers of transfer has said (Para 88) : "The Government has in the circumstances to make the best possible choice it can, keeping in view the larger interests of the administration. When, in exercise of this choice, the Government transfers an officer from one post to another, the officer may feel unhappy because the new post does not give him the same amplitude of powers which he had while holding the old post. But that does not make the transfer arbitrary. So long as the transfer is made on account of the exigencies of administration and is not from a higher post to a lower post with discriminatory preference of a junior for the higher post, it would be valid and not open to attack under Articles 14 and 16." 16. Counsel for the petitioner contended that in transferring the ticket checking stall' the Railways have acted arbitrarily and discriminately. In the writ petition, no allegations of arbitrary exercise of power have been made on the ground stated above The discrimination has been alleged on a different ground which has already been repelled by us. Since the transfers are based on relevant principles applicable alike to all similarly situate and were not guided by any extraneous or irrelevant consideration, we cannot uphold the contention of the petitioners. Only when the operative reason of transfer would have been extraneous and outside the area of permissible considerations, it could be held to be mala fide exercise of power. Such a thing does not exist in the instant case. 17. Only when the operative reason of transfer would have been extraneous and outside the area of permissible considerations, it could be held to be mala fide exercise of power. Such a thing does not exist in the instant case. 17. In matters of transfer, the Court has a limited jurisdiction. In E. P. Royappa v. State of Tamil Nadu (supra), the Supreme Court dealing with the power of the High Court under Article 226 of Constitution to interfere has stated (Para 91) : "It is not within our province to embark on a far flung enquiry into acts of commission and omission charged against the second respondent in the administration of the affairs of Tamil Nadu ...............The only question before us is whether the action taken by the respondents includes any component of mala fides, where hostility and malus animus against the petitioner were the operational cause of transfer of the petitioner from the post of Chief Secretary." 18. Counsel for the petitioner next urged that the petitioners were likely to lose their seniority and also chances of promotion, hence the order of transfer was invalid. Both of these grounds have not been established. The petitioners will not lose their seniority as the same in method would he adopted in determining it on the basis of which their seniority had been determined earlier. They would be getting the seniority on the basis of their date of joining the service. 19. So far as the promotion is concerned, we may refer to a decision of the Supreme Court reported in State of Maharashtra v. Chandra Kant AIR 1981 Supreme Court 1990, where the Supreme Court has observed (Para 16): "Mere Chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not." 20. Moreover, in the instant case, we have not been supplied the facts and figures on the basis of which we could determine that the petitioners were not likely to be promoted for a long time to come. One cannot rule out the possibility of the petitioners getting promotion even earlier than at a time when they would have got the same in the divisions where they were posted. One cannot rule out the possibility of the petitioners getting promotion even earlier than at a time when they would have got the same in the divisions where they were posted. Being a matter in the realm of speculation, we cannot find this as a ground sufficient to invalidate the transfer orders. Even if the petitioners suffer great inconveniences and feel punished, that would not vitiate their transfer orders, if the bona fide purpose was public interest, and it would not convert it into transfer by way of punishment. What has to be seen is whether the petitioners are getting the equivalent "posts to the transferred places or not. Each one of the petitioners is going on equivalent post which enjoys the same status and responsibility. We, therefore, do not find any merit in this submission. 21. In this petition, our attention further was invited to the Circulars issued by the Northern Railway and by the North Eastern Railway that transfer orders could not be made by way of punishment. No transfer order can he upheld if it is by way of punishment. We have given our finding to the contrary and, therefore, elaborate discussion of .the B. Os. (G.Os. ?) referred to by the learned counsel for the petitioner is not required to be made. 22. In Writ Nos. 9835 of 1981 and 11198 of 1981 supplementary affidavits have been flied showing that the petitioners of these two cases were charge-sheeted and were subsequently punished for not having finished full and complete account of the passengers who were travelling in the trains of which they were the Travelling Ticket Examiners. Counsel urged that the fact that they were charge-sheeted indicated that action as against them was penal. We do not agree with this submission. We have upheld the ground on which transfer orders were made, hence this argument is not required to be separately dealt with. Simply because that the petitioners were charge-sheeted and punished, that did not mean that the transfer orders were by way of punishment. Admittedly, the petitioners had been imposed different penalties after the charge had been proved. The transfer orders have nothing to do with penalties imposed upon them. Moreover, the petitioners had been transferred much before the imposition of punishment. Hence, the two things are unconnected and do not lead to the conclusion that the transfers were by way of punishment. Admittedly, the petitioners had been imposed different penalties after the charge had been proved. The transfer orders have nothing to do with penalties imposed upon them. Moreover, the petitioners had been transferred much before the imposition of punishment. Hence, the two things are unconnected and do not lead to the conclusion that the transfers were by way of punishment. The most important thing, to our mind, is that as the service was transferable and the order was made on administrative ground and not on extraneous consideration, transfers have to be held as valid. 23. Writ Petition No. 12621 of 1981, M. K. Saxena v. Union of India, decided on 30-11-1981, filed against a similar order of transfer was dismissed. For the view taken, reliance had been placed on a decision of the Supreme Court in Shanti Kwnari v. Regional Deputy Director of Health Services, Patna Division Patna ( AIR 1981 SC 1577 ). In this case, an appeal was taken to the Supreme Court against the judgment of the Patna High Court dismissing the writ petition In limine preferred against the transfer order. The Supreme Court held that the High Court rightly declined to interfere with the transfer order. 24. For the reasons given above, all the writ petitions are dismissed. No order as to costs. The stay orders passed in all the writ petitions shall stand discharged.