IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE NINTH DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 2836 of 2009 Between: S.Venkateswara Rao S/o.Late S.Rama Rao R/o.Guntakal Village and Mandal, Anantapur District. ..... PETITIONER AND 1 The Railway Board, Rail Bhavan, New Delhi, represented by its Chairman. 2 The South Central Railway, Rail Nilayam, Secunderabad, rep. by its Chief Security Commissioner/ RPF/SC. 3 The Divisional Security Commissioner, R P F, Guntakal, Anantapur District. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ in the nature of Writ of Mandamus or any other appropriate writ or writs, order or direction, declaring the Force Order No.18/2009 dt. 7.2.2009 in No.X/P. 676/CT/Misc./2009 on the file of the 2nd Respondent, as illegal, arbitrary and without jurisdiction; Award costs, Counsel for the Petitioner: MR.N.SRIDHAR REDDY Counsel for the Respondents.: MR.R.S.MURTHY The Court made the following : O R D E R: Petitioner-S.Venkateswara Rao joined in service in South Central Railway-2nd respondent as Sub-Inspector in the year 1988. He was promoted as Inspector and served as such at Poorna and Nanded (Maharashtra) and Sanathnagar (Hyderabad). He was posted as Inspector of Prosecutions, Secunderabad and there after he was transferred to Guntakal in December, 2008. He has been working at Guntakal since December, 2008. While so, R2 transferred him from Guntakal to 5th Battalion, RPF which is at Tiruchinapally in Tamilnadu State. He filed the writ petition challenging the transfer proceedings bearing No.18/2009, dated 7.2.2009 on the ground that it is contrary to Standing Order No.70. For better understanding of the grievance of the petitioner I deem it appropriate to refer para 3 and 4 of the affidavit filed in support of the writ petition, which reads as under: “ 3. I submit that the impugned order transferring me to tiruchinapalli i.e. 4th batallion within a period of two and half months is illegal and arbitrary. The Government of India, Ministry of Railways has issued Standing Orders for the employees of Railway Department. S.O.No.70 dt.27.9.2004 deals with the subject of transfers of RPF/RPSF personnel. I am in the cadre of Inspector in RPF/RPSF. As per paras 8 and 9 of the said order, a person shall not be transferred before completion of tenure. Even if so, it shall be done after completion of his tenure after 31st March of the said year. The tenure is defined as 5 years in the case of petitioner herein. Thereafter, there has been an amendment to the said Standing Order on 5.4.2007 wherein the tenure of Inspectors is reduced by one year. Hence, the petitioner can be transferred only after completion of his tenure i.e. 4 years. But in the present case, he is transferred within two and half months after taking charge in Guntakal. 4. I submit that I have an ailing wife who is suffering from several ailments and 3 children who are studying B.Tech, Intermediate and 10th class. I submit that the purport of Standing Order is only to see to it that children’s education is not disrupted. Para 9 of S.O. also says that even if a transfer is to be made, the respondents shall see to it that the transfer is made to a station in same linguistic zone with a view to avoid disturbance in the education of children. In the present case, I am sought to be transferred from South Central Railway to Southern Railway at Tiruchinapalli in Tamilnadu state, which is totally a different railway. As such the impugned order is totally contrary to Standing orders. No reasons are assigned for transferring me within less than a period of two and half months. The Transfer Order dated 7.2.2009 is communicated to the third respondent who is my superior officer on 9.2.2009 from which date I am on leave. At any moment, the transfer order may be given effect to and I would be directed to be relieved. As on date, nobody is posted in my place and if the operation of the impugned order is not suspended, I would suffer irreparable loss and injury.” 2. Notice before admission came to be ordered on 13.2.2009. The proceedings impugned in the writ petition came to be suspended on the even date for a period of two weeks. Subsequently interim order has been extended from time to time. In response to the notice, respondents entered appearance and filed vacate stay petition. It is stated in the counter affidavit filed along with the vacate stay petition that the petitioner is liable to be transferred to any place within India and he is governed by the Railway Protection Force Act, 1987 and Railway Protection Force Rules, 1987. The transfer came to be effected in order to avoid local entanglements. The competent authority in exercise of the power conferred by law and in public interest has effected transfer of the petitioner. The petitioner has been relieved on 9.2.2009 with instruction to join at 5th battalion, Tiruchinapalli. The petitioner filed the writ petition suppressing the fact of R3 relieving him on 9.2.2009 AN. 3. When the vacate stay petition came up for consideration with the consent of learned counsel for the parties, writ petition itself is taken up for final disposal. 4. Heard Sri N.Sreedhar Reddy, learned counsel appearing for the petitioner and Sri.R.S.Murthy, learned Standing Counsel appearing for respondents/Railways. 5. Learned counsel appearing for the petitioner submits that the transfer of the petitioner is contrary to Standing Order No.70 issued by Government of India, Ministry of Railways (Railway Board) on 27.9.2004. He laid much emphasis on paras 8 and 9 of the Standing Order No.70, which reads as under: “ 8. Officers and staff who complete their tenure on 31st March should be transferred in the same year and those who complete their tenure after 31st March should be transferred during the next general transfer. Tenure should be counted from the date of assumption at the place of posting on last transfer. Periodical transfer on completion of the prescribed tenure shall be done in such a way that the movement of officers on transfer shall be completed before the new academic session begins so that dislocation of children’s education is minimal. 9. Enrolled members, as far as possible shall not be allowed to remain posted in a particular station for more than one tenure and in a particular division, at different stations, for more than three tenures. On completion of three tenures in a particular Division, inter Divisional transfers of the enrolled members, shall be made to stations within the same linguistic zones/State with a view to avoid disturbances in education of their children.” 6. Learned counsel would further contend that the transfer order is contrary to Rules 87 and 93 of the Railway Protection Force Rules, 1987 (for short, ‘the RPF Rules’). Chapter VII of the RPF Rules deals with distribution and transfer of members of the force. Rules 87 to 93 fall within Chapter VII. Under Rule 87 the enrolled members of the force shall ordinarily be employed throughout service on the zonal railway or the Railway Protection Special Force to which they are distributed on first appointment under these rules and shall have no claim as of right for transfer to another zonal railway or to the Railway Protection Special force formations and vice versa. Rule 93 deals with general principles for effecting periodical transfers. Learned counsel by referring to these rules contends that the petitioner’s usual tenure at Guntakal is four years and any transfer before completion of four years tenure is premature and thus the proceedings impugned in the writ petition are liable to be quashed. 7. Learned Standing Counsel appearing for the respondents submits that under Rule 90 of the RPF Rules, every member of force is liable to be transferred 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 or for any other consideration and in the instant case transfer of the petitioner came to be effected to avoid local entanglement. In elaborating his arguments, it is contended that Director-General, RPF has ordered for inter-zonal transfer of RPF personnel to RPSF since they are facing criminal prosecution in the zones, where they are presently working. He would also contend that it is not only the petitioner, but all 34 employees, who are facing criminal prosecution, have been transferred to out side zones to avoid their local entanglements. He would also contend that Rule 91.1 of the RPF Rules empowers the Director-General on the recommendations of the Chief Security Commissioner concerned to transfer any superior officer from one zonal railway to another zonal railway or from Railway Protection Special Force to a zonal railway or vice versa in the interest of administration of the Force. 8. Indisputably, about 34 RPF personnel working in various zones have been transferred by the Director-General, RPF and the petitioner is one among them. It is also not in dispute that the petitioner is facing prosecution before a criminal court. The charges for which the petitioner is being prosecuted are not required to be detailed. 9. It is settled law that a transfer, which is an incident of service, is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer – vide decision of the Supreme Court in N.K.Singh v. Union of India[1]. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao v. Union of India[2]; National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan[3]; State Bank of India v. Anjan Sanyal[4]. The principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders. 10. As per Rule 90 of the RPF Rules, every member of force is liable to be transferred 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 or for any other consideration. Rule 91.1 of the RPF Rules empowers the Director-General on the recommendations of the Chief Security Commissioner concerned to transfer any superior officer from one zonal railway to another zonal railway or from Railway Protection Special Force to a zonal railway or vice versa in the interest of administration of the Force. 11. The proceeding dated 05.02.2009 indicates that the Director- General, RPF, has ordered for inter-zonal transfers and transfers from RPF to RPSF in the administrative interest. There cannot be any dispute that the Director-General is competent to effect inter-zonal transfers. Therefore, the transfer order impugned in the writ petition is in accordance with the R.P.F. Rules. No mala fides have been attributed to the respondents by the petitioner in effecting his transfer from Guntakal to 5th Battalion/RPF which is at Tiruchinapalli in Tamil Nadu State. The conduct of the petitioner in proceeding on leave on coming to know of the transfer order cannot be appreciated. If the petitioner has any difficulty in moving out from the present place, he is at liberty to make a representation to the authorities and invite orders thereon. 12. In the counter-affidavit, it is specifically pleaded by the respondents that the 3rd respondent relieved the petitioner on the afternoon of 09.02.2009 with instructions to join at 5th Battalion/RPF which is at Tiruchinapalli in Tamil Nadu State after availing the transfer benefits. The petitioner suppressed the fact of relieving proceedings issued by the 3rd respondent and approached this Court assailing the order of transfer and moved W.P.M.P.No.3641 of 2009 seeking interim suspension. Since the affidavit filed in support of the petition does not speak of the 3rd respondent relieving him, an interim order came to be passed by this Court on 13.02.2009. In that view of the matter, I am in no doubt to conclude that the petitioner has not approached this Court with clean hands. 13. Accordingly, the writ petition is dismissed with costs of Rs.1,000/-. The interim order grated on 13.02.2009 stands vacated. However, this order does not preclude the petitioner to make a representation to the respondents for his re-transfer to the present place of work, in which event, the respondents have to consider the same and pass appropriate orders keeping in view the reasons assigned in his application. ______________________ B.SESHASAYANA REDDY, J. Date:09th April, 2009. Note: Issue C.C. within 3 (three) days. B/O Tnb/cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{KURR} [1] AIR 1995 SC 423 [2] (1993) 1 SCC 148 [3] (2001) 8 SCC 574 [4] (2001) 5 SCC 508