Dismissed

Arvind Kumar Yadav v. the Union of India and 3 Ors.

Bombay HC29 Oct 2012WP/2268/2011

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a transfer order from the Railway Protection Force to the Railway Protection Special Force. The court held the transfer was lawful under Rule 27.1 of the Railway Protection Force Rules with the Director General's approval and rejected claims of malafide or impropriety.

What did the court decide?

None. Petition dismissed.

Arvind Kumar Yadav Vs the Union of India and 3 Ors. — Service and Employment | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J.

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WRIT PETITION NO.2268 OF 2011

Arvind Kumar Yadav

... Petitioner

Vs.

The Union of India & Ors. .... Respondents

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Mr.Rahul Walia for the Petitioner Mr.T.J. Pandian for the Respondents

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CORAM: A.M. KHANWILKAR & R.Y. GANOO, JJ.

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DATED: 29.10.2012

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P.C.:

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This Petition takes exception to the transfer order dated 5.8.2011 issued under the signature of Joint Director / Sec (E), Railway Board. Broadly, three points have been raised before us. The first contention is that the petitioner was appointed in Railway Protection Force on the basis of merits. However, the impugned transfer order purports to transfer the petitioner from Railway Protection Force (RPF) to Railway Protection Special Force (RPSF), which is impermissible. Inasmuch as, RPSF is a separate cadre and has separate seniority list as envisaged by Rule 7.5 of the Railway Protection Force Rules, 1987.

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The second ground urged is that the impugned transfer order purports to transfer the petitioner which has the effect of inter zonal transfer. Even this is impermissible. The third contention is that the impugned

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transfer is the product of malafide exercise of power by the Authorities because of the background referred to in communication dated 1.4.2010.

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Reverting to the first argument, we find force in the submission of the respondents that the expression 'Force' has been defined by the Railway Protection Force Act, 1957 as the Railway Protection Force constituted u/s 3, as per section 2(a) of the Act. Section 3 of the Act reads thus:

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“3. Constitution of the Force. - (1) There shall be constituted and maintained by the Central Government an armed force of the Union to be called the Railway Protection Force for the better protection and security of railway property.

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(2) The Force shall be constituted in such manner, shall consist of such number of superior officers, subordinate officers, under officers and other enrolled members of the Force and shall receive such pay and other remuneration as may prescribed.”

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This provision makes no distinction between the RPF and RPSF as such. The question is whether it is permissible to transfer the staff of the RPF to RPSF. It is not in dispute that after the petitioner was suspended and the suspension order was recalled, he was reinstated to the post of Inspector, RPSF. That order has been accepted by the petitioner. The impugned order purports to transfer the petitioner to RPSF, New Jalpaiguri in administrative interest. The respondent has justly relied on Rule 27.1 which explicitly delineates administrative power to be exercised by the Director General. Clause (c) of Rule 27.1

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refers to order posting, transfer including inter-zonal railway transfers and training of all superior officers and enrolled members of the Force. In the present case, the transfer of the petitioner, it is stated by the respondents, is with the approval of the Director General. In that case, the power to transfer vests in the Director General by virtue of Rule 27.1 (c). It is not a case of no authority to transfer the staff of the RPF to RPSF, as is contended.

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The second contention is that the transfer of the petitioner would have the inevitable effect of inter-zonal transfer. The petitioner has placed reliance on the decision of the Delhi High Court to buttress his argument that such transfer is impermissible – in the case of B.L. Bishnoi & Ors. vs. Union of India & Ors. , Writ Petition No.4476 of 2007 decided on 22.10.2008 . This argument has been countered by the respondents by relying on Standing Order 102 issued in March, 2010. The decision of the Delhi High Court is founded on the Standing Order No.70 which stands superseded by the Standing Order 102. The definition of the Standing order 102 provides for inter zonal transfer of RPF and RPSF staff. Suffice it to observe that the decision of the Delhi High Court will be of no avail to the petitioner.

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The third contention is that the petitioner has been discriminated as out of six officers referred to in communication dated 1.4.2010, the

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petitioner alone has been transferred to North Frontier Region. This has been done to wreck vengeance against the petitioner and moreso, notwithstanding the observations of the Director General / RPF that the officers mentioned in the said communication be transferred to nonsensitive places out of Mumbai Division of Central Railway. We are not impressed by this submission. In the first place, the petitioner has not named any officer, who is responsible or has acted with bias against the petitioner. Merely because the petitioner has been transferred to North Frontier Region does not mean that the Court can assume that the order is replete with malafides. The factum of malafide exercise of power has to be pleaded and substantiated. Further, the argument clearly overlooks that the transfer of the petitioner is on the basis of the approval granted by the Director General, as is noted in the impugned order itself that the same is passed on the basis of the order issued by the Competent Authority. The respondents have also placed reliance on paragraph 5 of the affidavit dated 2.12.2011, which reinforces this submission.

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In our opinion, no interference is warranted.

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Petition is dismissed.

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(R.Y. GANOO, J.) (A.M. KHANWILKAR,J.)

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Arvind Kumar Yadav v. the Union of India and 3 Ors.

Case brief

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Arvind Kumar Yadav v. the Union of India and 3 Ors.

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