IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.534 of 2008 SATYENDRA KUMAR SINGH Versus THE STATE OF BIHAR & ORS ----------- For the appellant : Mr.Ajay Kumar Ambastha, Advocate Ms. Archana Palkar Khopdi, Advocate For the respondents : Mr. A. Amanullah, Standing Counsel-XVII Mr. A.K.Prasad, Junior Counsel to Standing Counsel-XVII ------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----- Dated, the 19th August, 2008 Breft of unnecessary details, the relevant facts necessary for consideration of this appeal are as follows: Vide order dated 17th September, 2006, the appellant (hereinafter to be referred as the ‘petitioner’) was transferred from District (Rail), Katihar Police to Muzaffarpur District, ( Rail) Police. The said order was not implemented for quite some time and by an order dated 31st October, 2007, the petitioner was transferred from Rail Police Station Thana Bihpur to G.R.P.S.(Rail) Katihar as Officer Incharge of the said police station. The petitioner claims to have assumed charge as Officer Incharge, G.R.P.S. (Rail) Katihar on 02nd 2 of November, 2007. By an order dated 09th March, 2008, the petitioner has been transferred from Katihar District, ( Rail) Police to Muzaffarpur District, ( Rail Police). The petitioner has challenged the said order of transfer on diverse grounds including malice on the part of respondent no.7 and that the said order is violative of the directive issued by the Supreme court in the case of Prakash singh & Ors. Vs. Union of India & Ors, reported in 2006(4) PLJR 186(SC) and the Bihar Police Act, 2007, particularly Section 10 thereof. 2. The Single Judge has dismissed the writ petition by his order dated 24th June, 2008. It is from this order that the present appeal has been preferred. 3. On 30th July, 2008, when the matter came up before us, we passed the following order: “ It is necessary to know the reasons because of which the order of transfer dated 17th September, 2006 was not implemented for 17 months. Let an affidavit of Inspector General of Police ( Rail), Bihar, Patna be filed in this regard. 2. The Superintendent of Police ( Rail), Katihar-respondent no.5 shall also file his affidavit indicating therein the reasons for transfer of the appellant to Katihar Police Station and making him Station House Officer vide order dated 31st October, 2007. 3. As prayed for by the Government Counsel, time of two weeks is granted for filing the affidavits as directed above.” 4. In pursuance thereof, two affidavits have been filed; one affidavit is on behalf of respondent no.3 by A.D.G of Police Railways, 3 Bihar, Patna and the other by respondent no.5. 5. The respondent no.3 in his affidavit has stated that it was for the D.I.G to get the order of transfer dated 17th September, 2006 implemented. The petitioner did not approach him to get his order of transfer implemented and managed to continue at Katihar. A public petition was received with regard to subject matter and on that basis an order was sent to the Superintendent of Railway Police, Katihar on 05th February, 2008 to relieve the petitioner. The petitioner applied for stay of transfer order for a few months and ultimately the order dated 09th March, 2008 came to be issued. It is submitted that Inspector General of Police (Railways), Bihar is required to look into the matters concerning the whole State G.R.P and does not take personal interest in any individual subordinate officer unless some special matter/ complaint comes to his notice. 6. Along with this affidavit, the application made by the petitioner has been placed on record. In his application, the petitioner stated that the transfer order dated 17th September, 2006 was not implemented for quite sometime, and if the order of transfer was not stayed for about nine months, he would suffer great difficulty inasmuch as his wife’s mental condition was not good and she has been under treatment. His father was also not keeping well, and if he was transferred to Muzaffarpur District (Rail) Police, he would face many 4 difficulties. 7. In the affidavit filed by the Superintendent of Police (Rail), Katihar, (respondent no.5) on the basis of comments received from the then S.R.P. Katihar, it is stated that the then S.R.P. Katihar was unaware of the transfer order dated 17.09.2006 because he had joined as S.R.P. Katihar in April, 2007 and the petitioner was not relieved by the then Superintendent of Railway Police. By promotion and transfer of Sub-Inspector Arbind Jha, the post of S.H.O. Katihar fell vacant and the petitioner who was serving as S.H.O. Bihpur was made S.H.O. Katihar. There was dearth of direct officers in Katihar Rail District and the post of Katihar G.R.P. being an important post, the petitioner’s posting was made and upon receiving the order dated 09th March, 2008, the petitioner has been relieved for joining at Muzaffarpur District, (Rail) Police. 8. From the application made by the petitioner on 13th February, 2008 to the Inspector General of Police, Railway, Bihar, Patna, one thing is clear that the order of transfer cannot be said to be actuated by ulterior motive, nor it suffers from vice of any malice. Had there been an iota of malice in the transfer order ( 17th September, 2006), the petitioner would have asserted this fact in his application dated 13th February, 2008 which he has not. That falsifies the plea of malice set up in the writ petition. As a matter of fact, the petitioner 5 sought mercy for deferment of the transfer order on the ground of illness of his wife and father. The application dated 13th February, 2008 was not acceded to, obviously for the reason that the petitioner had already taken advantage of non-implementation of the transfer dated 17th September, 2006 for more than one and half years. The authority did not deem fit to further defer the transfer order. 9. Transfer is an incident of service and not its condition. The order of transfer is not amenable to judicial review save and except in the circumstances where such order is in contravention of law or suffers from vice of malice. Having seen the entire material, we find that neither the order of transfer dated 17th September, 2006, nor the subsequent order dated 09th March, 2008 is in contravention of law. 10. In so far as the plea of malice set up in the writ petition is concerned, for the reasons we have already noticed, we find that this plea is dishonest. As per his own application dated 13th February, 2008, the petitioner wanted deferment of transfer order by further period of nine months. If his request was not acceded to by the concerned authority he ought to have joined his duty at the transferred place, but he did not do that. He has already marked time of five months and still not joined his duty at the transferred placed. His conduct disentitles him any sympathy from the court. 11. We, accordingly, find no justification to entertain this 6 appeal. It is dismissed in limine. We observe that if the petitioner does not join his duty within fifteen days from today, he may expose himself to the disciplinary action by the competent authority. R. M. Lodha, CJ Kishore K. Mandal, J. Sunil