S. SURESH Vs. UNION OF INDIA AND OTHERS

JUDGEMENT

(1.) The petitioner, who is a Constable in the Railway Protection Force is challenging his transfer ordered as per Ext. P1 on 8.8.2016 from Chengannur to Tiruchirapilly.

(2.) The petitioner joined Railway Protection Special Force on 12.09.2005. His first posting was in West Bengal. In 2008 he was transferred to Thirichirappally. In the year 2013 he was transferred from RPSF to RPF, on the basis of his request and he was posted to Chennai. While working there, he requested for a transfer to Thiruvananthapuram division pointing out that he has to look after his mentally retarded sister aged 26, having 62% permanent disability. Based on his request, he was granted out of turn transfer to Thiruvananthapuram division and he joined there on 6.8.2015. According to the petitioner, the officials working in Thiruvananthapuram division were not happy with his out of turn transfer and they were cooking up various allegations as a result of which 2 FIRs were lodged against him, in the Railway Police Station, Thiruvananthapuram on 31.08.2015 and 03.09.2015. Consequently, he had to remain in judicial custody for the period from 1.9.2015 to 26.10.2015. A memo of charge was issued on 29.09.2015 covering the very same allegations as in the criminal complaint and the respondents commenced enquiry even by conducting the first sitting when the petitioner was in judicial custody. In the meanwhile, he was shifted to Chengannur and he was directed to sign the register at the Headquarters at Kottayam twice daily on all days including holidays. In the meanwhile, the petitioner was placed under suspension under Section 9(1)(i) of RPF Act, 1957 as per Ext. P8 order dated 1.09.2015, consequent to the investigation now pending against the petitioner. The petitioner submits that he challenged the departmental proceedings in W.P (c) No. 36523 of 2015, in which this court has stayed the disciplinary proceedings. The petitioner filed W.P (c) No. 9323 of 2016 challenging the suspension, since the respondents were not taking any action to review the order. The writ petition was disposed of directing the respondents to consider the request for review as per judgment dated 3.6.2016. Thereafter, the 6th respondent issued Ext. P10 order dated 28.06.2016 revoking the suspension and he was posted at Chengannur. But immediately he was relieved to Thiruchirappally in order to undergo belly reduction course. When he joined back after the training, the petitioner was relieved to Vijayawada on 8.8.2016 for bundobust duty in connection with Krishna Pushkaram - 2016. Petitioner, submits that bundobust duty was over on 26.8.2016 and he arrived at Chengannur on 26.8.2016. But since he was sick, he was admitted in the railway hospital at Thiruvananthapuram from where he was referred to Medical College Hospital, Thiruvananthapuram. According to the petitioner, when he contacted the control room in order to report about the sickness and his requirement of medical leave, he was informed that he was already relieved from Chengannur RPF outpost by a GD entry. It was under the above circumstance that he came to know about Ext. P1 order of transfer which was passed on 8.8.2016 subsequent to which he was sent for duty to Vijayawada. This writ petition was filed at that stage pointing out that the order of transfer is contrary to the statutory rules; his mentally retarded sister was admitted in the Vocational Rehabilitation Centre for Handicapped, Thiruvananthapuram and therefore his presence was necessary in Thiruvananthapuram division and that transfer was punitive.

(3.) According to the petitioner, the order of transfer is actuated by mala fides. Apart from that, it is in violation of Rules 93-93.10, Railway Protection Force Rules. According to the petitioner, no member of the Force shall be transferred from one station before the normal prescribed tenure as per Rule 93.2 of the RPF Rules. As per Rule 93.1 it is for the Director General to prescribe a tenure of posting for various ranks in various places. It is further stated that as per Ext. P3 order dated 31.08.2015 of the Railway Board, transfer of RPF/RPSF personnel will be in terms of Railway Board Standing Order No. 102 and 110 issued by DG/RPF, according to which, total stay at a stretch at a particular station should not be more than 10 years. As per the Railway Standing order No. 102 (Ext. P4) referred to in Ext. P3 order, the tenure prescribed by the Director General, for Constables is 5 years. As per paragraph 7 of Ext. P4, premature transfer is permissible only in extraordinary circumstances. It is therefore contended that the petitioner's transfer at a time when he had not completed even one year, from Chengannur to Tiruchirappally was contrary to the statutory provisions, particularly, Rule 93.2 of the Railway Protection Force Rules ('RPF Rules' for short). It is his further contention that if at all the transfer was necessary under extraordinary circumstances, such transfer orders could have been issued only by the senior DSC/DSC who has control over the post in their respective divisions. It is therefore contended that a transfer from one division to another could not have been made under para 7 of Ext. P4 and, at any rate, detailed reasons should have been recorded in such transfers. According to the petitioner, there is no extraordinary circumstance except the fact that the departmental proceedings were stayed by this court. It is stated that final reports were already filed in the criminal case against him and it is only to prevent the petitioner from effectively defending the case that he has been transferred. It is his further case that transfers in terms of Ext. P5 can be made only on recommendations of the Board mentioned therein and the Board has to adopt the criteria mentioned in Ext. P5. But in the case of the petitioner the Board has not considered his case, at any rate, on the basis of any relevant material. Therefore, it is stated that there is no reason to invoke Rule 90A contrary to Rules 92 to 93.10. The petitioner also submits that his transfer as per Ext. P1 is against a higher post of Head constable, which is not permissible under Rules.