JUDGMENT Satya Brata Sinha, J. All these four appeals arising out of the common judgment dated 3.4.98 passed by a learned single Judge of this court in Writ petition No. 6875(W) of 1998 and writ petition No. 6876(W) of 1998 were taken up for hearing together and are being disposed of by this common judgment. 2. Writ petition No. 6876(W) of 1998 was filed by one Dudheswar Tewari who is appellant in M.A.T. No. 1334/98. Writ petition No. 6875(W) of 1998 was filed by one Gopal Chandra Dam & 29 Others. In the said writ application the petitioners questioned the order of transfer passed by the Assistant Security Commissioner, Railway Protection Force, inter alia, on the ground that the same was in violation of the mandatory provision of the Railway Protection Force Rules as also on the ground that the same was mala fide. 3. All the writ petitioners are members of the Railway Protection Force and were posted in Shalimar Division. Allegedly for the purpose of transfer of the personnel belonging to Railway Protection Force from Shalimar to Waltier (which was being newly opened), an option was sought for. The petitioners did not opt to be transferred. Allegedly some members of the Force submitted their option. It appears that for the aforementioned purpose a circular was issued on 25th February, 1998 and options were sought for on the ground that a new Broad-Gauge line at Koraput-Raigarah under Waltier Division was likely to be introduced. 4. The impugned orders of transfer were passed on 19th March, 1998 by the Assistant Security Commissioner to the effect that the same was issued under the approval of the Chief Security Commissioner and in terms of Force Order No. 75/98 issued by the later authority. 5. According to the petitioners the actions on the part of the concerned authorities in transferring the writ petitioners were in violation of the provision of Railway Protection Force Rules, mala fide and arbitrary. In the aforementioned situation, the said two writ applications were filed claiming inter alia, the following reliefs : "(a) A writ in the nature of Mandamus do issue commanding the respondents and each one of them specifically the respondent Nos. In the aforementioned situation, the said two writ applications were filed claiming inter alia, the following reliefs : "(a) A writ in the nature of Mandamus do issue commanding the respondents and each one of them specifically the respondent Nos. 1 and 3 to cancel, rescind and withdraw and/or revoke the D.O. No. 129/98 dated 18 March, 1998 issued by the respondent No. 3 and also the order No. SHM/E 19-74/2088 dated 18th March, 1988 issued to the Officer-in-Charge, Shalimar, R.P.F. post and not to give any effect or further effect and not to proceed in any manner pursuant to the same. (b) A direction do issue directing the respondent authorities specifically the respondent No. 1 to invite options from the willing staff of both Shalimar Division and Kharagpur Division with reasonable time and to send the persons to join such Koraput-Raigarah lines under Waltier Division from amongst those willing persons who would exercise their option. (c) A Writ in the nature of Certiorari do issue directing the respondents and each one of them to certify and transmit before this Hon'ble Court all papers relating to D.O. No. 129/98 dated 18th March, 1998 so that consionable justice may herein be administered by quashing the same." 6. The learned trial Judge in his impugned judgment, inter alia, held; (1) In passing the said orders of transfer, Rule 91.2 of the Railway Protection Force Rule have been violated; (2) the orders of transfer having been passed in the exigency of service and not being in the nature of periodical transfer, the rule of tenure need not be strictly complied with; (3) the orders of transfer having been passed by the Assistant Security Commissioner is bad in law as in terms of Rule 91.2 orders relating to inter zonal Railway transfer must be passed by the Chief Security Commissioner after obtaining the concurrence of the Director General; (4) as the impugned orders do not have the concurrence of the Director General, the same are bad in law. 7. The learned judge, however, while setting aside the said orders of transfer granted leave to the Director General to consider as to whether any or all persons exercised their option for transfer can be transferred along with other transferees as may be approved for the said purpose by the Director General. 8. 7. The learned judge, however, while setting aside the said orders of transfer granted leave to the Director General to consider as to whether any or all persons exercised their option for transfer can be transferred along with other transferees as may be approved for the said purpose by the Director General. 8. The Chief Security Commissioner and Union of India have preferred two appeals being M.A.T. No. 1333 of 1998 and M.A.T. No. 1334 of 1998 against the said order; whereas the writ petitioners filed other two appeals being M.A.T. No. 1466 of 1998 and M.A.T. No. 1467 of 1998 against that portion of order whereby liberty had been granted to the Director General to pass an order of transfer. 9. Mr. Kazi Mohammad Ali, the learned counsel, appearing on behalf of the Railway Administration, inter alia, submitted that the learned trial Judge committed a grave error in applying Rule 91.2 of the Railway Protection Force Rules inasmuch as both the Shalimar Division and Waltier Division fall within the same zone. The learned counsel submits that in that view of the matter, Rule 92.2 of the said Rules shall apply. 10. It was further submitted that, the provision of Rule 90.2 of the said Rules is not mandatory in nature as has also been held by the learned trial Judge. 11. Mr. Ali learned counsel, appearing for the appellant has produced before us certain documents to show that the impugned order has been passed by the Chief Security Commissioner. The learned counsel has also placed before this court a guide-line of transfer and submitted that even a perusal thereof would show that the same is not mandatory in nature and the Writ court is not to act as a court of appeal and except on the ground of mala fide or violation of the mandatory provision of statute or statutory Rule, the jurisdiction of the court under Article 226 of the Constitution of India should no be exercised. Reference in this connection may be made to AIR 1993 SC 1236 (Rajendra Roy vs. Union of India) and AIR 1993 SC 1608 (D.S. Dalal vs. State Bank of India) as also AIR 1993 SC 2444 (Union of India vs. S.L. Abbas). 12. Mr. Reference in this connection may be made to AIR 1993 SC 1236 (Rajendra Roy vs. Union of India) and AIR 1993 SC 1608 (D.S. Dalal vs. State Bank of India) as also AIR 1993 SC 2444 (Union of India vs. S.L. Abbas). 12. Mr. Jayanta Kumar Mitra, learned counsel appearing on behalf of the respondents in M.A.T. No. 1334 of 1998 and M.A.T. No. 1334 of 1998 however conceded that it is not the case where the transfer is inter zonal but the transfer is inter zonal and thus the learned trial Judge has proceeded on a wrong premises Mr. Mitra, leaned counsel contended that in the instant case Rule 90 shall apply. The learned counsel, however submits that there has been a flagrant violation of Rule 93 of the said Rules. The learned counsel however submits that although Rule 93.2 of the said Rules would be directory in nature in view of the Division Bench decision of this court in M.A.T. No. 1578 of 1997 (Sri Surendra Sharma vs. Union of India) disposed of on 3.4.1998 but the leaned counsel contended that the requirement of the said rule has not been complied with. According to the learned counsel, as there had been a violation of the said rules, the impugned order of transfer should be set aside. 13. The learned counsel in this connection has relied upon a decision reported in AIR 1965 Kerala, 75 (A.M. Patroni vs. E.C. Kesavan). Our attention has also been drawn to the Division Bench decision of this court in the case reported in 1989 Lab. I.C. 678 (Amritlal vs. State of W.B.) and 1977(1) SCC 606 (Union of India & Ors. vs. Majji Jangamayya). 14. Mr. Mitra, learned counsel, contends that it was obligatory upon the respondents to make out an exception case and they had not stated as to how the petitioner were entitled to be transferred to the said Shalimar Division for a period of 5 years in terms of the circular letter dated 30.7.1996 as would appear from annexure “A” to the supplementary affidavit filed by the writ petitioners. The learned counsel contends that the transferring authority has exercised the power in a wrongful manner and thus in the instant case, Article 14 of the Constitution of India has been attracted. The learned counsel contends that the transferring authority has exercised the power in a wrongful manner and thus in the instant case, Article 14 of the Constitution of India has been attracted. In this context, the learned counsel has also relied upon a Division Bench decision in the case reported in 1989 Lab. I.C. 678. 15. Before we consider the respective contentions of the learned counsel for the parties, we may notice that the impugned judgment has been passed without giving any direction upon the respondents to file affidavit-in-opposition. It is stated at the Bar that the leaned trial Judge directed the appellants to produce the record of the case and upon hearing the learned counsel for the parties, the impugned judgment has been passed. The learned Judge, in our opinion, his correctly laid down the parameter of the jurisdiction of this court in a transfer matter in the following words:- “Transfer is an incidence of service and an order of transfer not resulting in alteration of service to the disadvantage of the employee is not open to challenge. Guidelines regarding transfer unless they are statutory in nature do not confer legally enforceable right unless it is shown that their violation resulting in arbitrariness or unreasonableness. However, where transfer orders are made in violation of mandatory rule or on ground on mala fide, the court could be justified in interfering with such orders for the reason that if a transfer could be affected only on certain conditions it is necessary to adhere to the same. It is also needless to state that Government employer is the best judge how to distribute its manpower and utilize the services”. 16. The learned judge however proceeded on the basis that the order of transfer is violative of Rule 91.2 which governs enrolled members of the Force. The learned Judge however has refused to accept the contention put forward on behalf of the appellant, which was that about 10 members of the RPF opted to be transferred to Waltier Division but they were not considered as all the optees were Telegu speaking people holding that the said submission is not prima facie acceptable as there is no bar for posting people to States of their origin nor any rule or guideline has been placed before this court whereby such posting/transfer is not permissible. 17. 17. The fact that the petitioners are enrolled members of the Force is neither in doubt nor in dispute. Section 15 of the Railway Protection Force Act, 1957 provides that every member of the Force shall, for the purposes of the said Act, be considered to be always on duty, and shall, at any time, be liable to be employed at any place within India. The Central Government framed a Rule in exercise of its power conferred upon it under Section 21 of the said Act known as Railway Protection Force Rules 1987. The matter relating to transfer is governed by Rules 90 to 93.3. For the purpose of disposal of the case, the relevant rules are noticed hereinafter : "90. General : 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 of any such other consideration. 91. Inter-zonal transfer : 91.1. Superior officers of the Force.-The Director-General on the recommendations of the Chief Security Commissioner concerned or otherwise may transfer any superior officer from one zonal railway to another zonal railway or form Railway Protection Special Force to a zonal railway or vice versa in the interest of administration of the Force. 91.2. Enrolled members of the Force.-All inter-zonal railway transfers of the enrolled members of the Force shall be ordered by the Chief Security Commissioner concerned after obtaining the concurrence of the Director-General. 92. Periodical transfers : 92.1. Transfer of superior officers with the zonal railway.-Transfer of superior officer within the zonal railway may be made by the concerned Chief Security Commissioner with the concurrence of the Director-General : Provided that nothing contained in this sub-rule shall restrict the power of the Director-General to order transfer of any superior officer suo moto within a zonal railway. 92.2: Transfer of enrolled members of the Force.- Transfer of enrolled members of the Force may be ordered by the Chief Security Commissioner concerned and other officers specified in Sch. II. 93: General principles of effecting periodical transfers : 93.1. In the interest of continuity of command discipline and accountability, the Director-General may prescribe a tenure of posting for various ranks in various places. II. 93: General principles of effecting periodical transfers : 93.1. In the interest of continuity of command discipline and accountability, the Director-General may prescribe a tenure of posting for various ranks in various places. 93.2: Ordinarily, no member of the Force shall be transferred from one station to another unless he has been 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 : Provided that the members of the Force posted to bad climate areas or out of the way places may be transferred after they have served in such area or place for about two years. 93.3: No one shall ordinarily be so posted that his home town falls within 100 kms. of railhead of his posting nor to a place where he holds or acquires immovable property nor he be posted back in the same capacity unless it is considered essential in public interest". 18. In the instant case, rule 91.2 has no application. Now it stands accepted as has been conceded that the transfer is intra zonal and not inter zonal. The learned trial Judge admittedly has proceeded on a wrong premise. 19. This court in the case of Surendra Sharma (supra) upon taking into consideration large number of decisions has held that rule 93.2 of the said rules is directory in nature. This court in no uncertain terms has clearly held that the High Court may interfere with an order of transfer in exercise of its writ jurisdiction only when such an order has been passed mala fide or in violation of the mandatory provision of the Rules. Rules 93.1 and 93.2 are not mandatory in nature. 20. The submission of Mr. Mitra, learned counsel, to the effect that while passing the order of transfer there had been a gross violation of the said rules, must be considered in the backdrop of admitted events. Shalimar Division is sought to be closed and a new Division at Waltier is being created. For the purpose of filling up the newly created posts in Waltier Division, transfers of some of the officers are necessary. Shalimar Division is sought to be closed and a new Division at Waltier is being created. For the purpose of filling up the newly created posts in Waltier Division, transfers of some of the officers are necessary. Such transfer, therefore, ex facie is in the interest of administration as also in the interest of public service. It is true that some members exercised option for transfer to the said newly created Division but it appears from the impugned judgment itself that those persons who had given such option were Telegu speaking people. The attention of the learned trial Judge has not been drawn to Rule 93.3 of the RPF Rules which clearly states that no one shall ordinarily be so posted that his home town falls within 100 kms. of railhead of his posting nor to a place where he holds or acquires immovable property nor he be posted back in the same capacity unless it is considered essential in public interest. The persons who had given option for transfer fall within the purview of rule 93.3 of the said rules and thus if they were not selected for transfer, no exception thereto can be taken. Ordinarily the matter relating to transfer should be considered on the basis of affidavit but in the instant case as noticed hereinbefore no such opportunity was granted to the respondent to file affidavit. In fact, no case of malice in law has been made out by the petitioner. 21. Let us now consider the decisions relied upon by Mr. Mitra, learned counsel for the respondent. In the case of Sahoo Bala Jambhalee vs. Narayanshastri, reported in AIR 1931 Bombay, 284 a learned single Judge of the Bombay High Court was considering the meaning of the word ‘ordinarily’ in the context of Agriculturists’ Relief Act. In terms of the said provision where an agriculturist woman, who has lands of her own and who ordinarily engages herself in agricultural labour finds that labour does not occupy the whole of her day and supplements it usefully by the sale of milk, even if the income from sale of milk exceed her income from her own lands or what she might or might not obtain by her personal labour, she falls within the definition of agriculturist under section 2(1). 22. The learned trial Judge had held that the word ‘ordinarily’ means solely. 22. The learned trial Judge had held that the word ‘ordinarily’ means solely. Explaining such legal position the High Court held that such a restricted meaning could not be given. Such is not the position here. In the case of Nanjamma vs. Better Gowda, reported in AIR 1957 Mysore, 57m a Division Bench of the Mysore High Court was again dealing with the Mysore Agriculturists’ Relief Act and considering the meaning of the word ‘ordinarily’ and other principles laid down by the Bombay High Court in the case reported in AIR 1931 Bombay, 284 (Shaoo vs. Narayanshastri). 23. In the case of A.M. Patroni vs. E.C. Kesavan, reported in AIR 1965 Kerala, 75 a Full Bench of the Kerala High Court was considering the meaning of the word ‘ordinarily’ in rule 44 of the Kerala Education Rules which deals with the matter relating to appointment of a headmaster. In that context, it was held that as in terms of rule 44 of the said rules, seniority was to prevail, and the word ‘ordinarily’ should be given a certain amount of elasticity to that rule. 24. The said decision has therefore, no application in the fact of the present case. In the case of Union of India vs. Majji Jangamayya, reported in 1977(1) SCC 606 the Apex court was considering the matter of promotion. The Apex court observed : “36. The expression ‘ordinarily’ in the requirement of 10 years’ experience shows that there can be a deviation from the requirement and such deviation can be justified by reasons. Administrative instructions if not carried into effect for good confer a right.” 25. The ratio in the said decision runs counter to the submission of Mr. Mitra, learned counsel. Transfer is merely an incidence of service. The matter relating to transfer may or may not be governed by the statutory rules. Even if the same is governed by the provision of statutory rules, such rules have to be read in the context of the provision of the Act. No rule can be read in such a manner which would prevail over provision contained in the Act. Harmonious construction of the provision of the Act and the Rule is the best method to avoid such a situation. 26. No rule can be read in such a manner which would prevail over provision contained in the Act. Harmonious construction of the provision of the Act and the Rule is the best method to avoid such a situation. 26. We are, therefore, of the view that rule 93.2 must be read in the context of Section 15 of the Act as also keeping in view the fact that the same deals with the transfer. 27. In the case of Amritlal vs. State of West Bengal, reported in 1989 Lab.IC 678, a Division Bench of this court was considering the provision of Bengal Police Regulations 834 and various Police Orders which postulated that where a midterm transfer is made on account of administrative reasons, the same have to be recorded in writing. Such a condition does not exist in rule 93.2 of the RPF Rules. 28. In this view of the matter, we are of the opinion that the aforementioned decision has no application in the instant case. Furthermore the case of the petitioner is clearly covered by the decision of this Bench in the case of Surendra Sharma (supra) where all the aspect of the matter and a large number of Supreme Court decisions have been taken into consideration. 29. The order question which remains for consideration is as to whether the impugned order of transfer has been passed by the Assistant Security Commissioner, RPF or not. 30. From the order dated 18.3.98 as contending annexure “D” to the writ application it appears that although the said order has been passed by the Assistant Security Commissioner, RPF, the same had received approval of the Chief Security Commissioner. It has not been disputed before us that in terms of the provisions of the Second Schedule appended to the Railway Protection Force Rules, the Chief Security Commissioner is the appropriate authority. It appears that a note-sheet has been placed before the Chief Security Commissioner on 11.3.98. The said authority had approved the proposal made in said note-sheet. From the said document itself it appears that the order of transfer was directed to the issued pursuant to the order of the CSC/GRC vide NSP-1 and attention of the concerned authority was drawn to page 6/2 and a draft for transfer order was placed which has already been approved by the appropriate authority. From the said document itself it appears that the order of transfer was directed to the issued pursuant to the order of the CSC/GRC vide NSP-1 and attention of the concerned authority was drawn to page 6/2 and a draft for transfer order was placed which has already been approved by the appropriate authority. Having considered the materials, we are of the opinion that the requirement of rule has been satisfied. 31. Before parting with the case, however, we may record that Mr. Jayanta Kumar Mitra, learned counsel appearing of behalf of the writ petitioner/respondents submits that the petitioners have not been paid their salaries for a period of four months. We fail to understand as to how and under what circumstances legitimate dues of the employees can be withheld. 32. The petitioners have a right to approach this court. They had been continuing in Shalimar Division pursuant to the order passed by this court and in this situation we direct that all due salaries should be paid to the writ petitioners. We may however, record that at the time of hearing the stay application we directed that the writ petitioner/ respondents shall be paid one month’s salaries by the appellant which according to Mr. Ali, learned counsel for the appellant, has been paid after the same was brought from Waltier Division. 33. We, therefore, direct that as soon as the petitioners join the service, such salary may be paid to them at Waltier Division. 34. For the reason aforementioned, we are of the considered view that the learned trial Judge has committed an error in allowing the writ applications. 35. Both the appeals being MAT No. 1333 of 1998 and MAT No. 1334 of 1998 are, therefore, allowed. The impugned order is set aside. The appeals being MAT No. 1466 of 1998 and MAT No. 1467 of 1998 are dismissed. 36. There will be no order as to costs. Dibyendu Bhusan Dutta. J: I agree. Appeals being M.A.T. No. 1333 of 1998 and M.A.T. No. 1334 of 1998 allowed. Appeals being M.A.T. No. 1466 of 1998 and M.A.T. No. 1467 dismissed.