PRAMOD KUMAR OJHA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner, a Constable in the Railway Protection Force, challenges his order of transfer as contained.in Memo No. 6 of 2008. dated 25.1.2008 at Annexure -1. The impugned order transfers him from the East Central Railway at Danapur to the Southern Railway at Chennai.

(2.) LEARNED Senior Counsel, Mr. V.K. Kanth assailing the order of transfer submitted that the petitioner was posted at Danapur under the East Central Railway, which was a zone different from Southern Railway at Chennai in terms of Rule 2(t) of the Railway Protection Force Rules, 1987 (hereinafter referred to as 'the R.P.F. Rules ') framed under the Railway Protection Force Act (hereinafter called as 'the R.P.F. Act '). Under Rule 16.4 of the R.P.F. Rules, the petitioner who was in the executive branch of the Zonal Railway could not be transferred to another branch in another zone without approval of the Director General. Under Rule 16.3 of the Railway Protection Force Rules enrolled members [which includes persons tike the petitioner as defined under Section 2 (ba) of the R.P.F. Act] form a separate cadre under the Chief Security Commissioner, who is the head of the force in a zonal Railway under Rule 2(d) of the R.P.F. Rules. Since the cadre of the petitioner was in the East Central Railway Zone, he could not be transferred to another zone outside his cadre. Under Rule 89.2 the recruits in the Railway Protection Force were to be posted by the Chief Security Commissioner. Under Rule 90 of the R.P.F. Rules a member of the force could be transferred from one place to any other place in India in the exigencies of service or for administrative reasons but such inter -zonal transfer of enrolled members of the force could be ordered by the Chief Security Commissioner after obtaining concurrence of the Director General. That order of transfer of the petitioner had not been passed by the Chief Security Commissioner but by the Divisional Security Commissioner, East Central Railway Danapur, who was not competent to do so. The order of transfer had originated from the Director General and not the Chief Security Commissioner. In any event, the counter affidavit did not bring on record any order of concurrence of the Director Kanti Devi Versus Bank Of Baroda General. The last submission was that if the Court was not in -lined to interfere with the order of transfer, the petitioner may be sent to any Hindi speaking State posting and not to Chennai as he would face language problem. Mr. Ahsanuddin Amanullah, learned counsel appearing.on behalf of the Respondents submitted from the counter affidavit filed on their behalf that the order of transfer had been passed on administrative grounds by the Director General as communicated to the Chief Security Commissioner on 21.1.2008 which in turn was forwarded to the concerned Divisional Security Commissioner on 25.1.2008. Though the petitioner in his submissions has emphasized that there was no order issued by the Director General of concurrence, there is no pleading to that effect in the writ petition or in the reply to the counter affidavit. The counter affidavit specifically asserts the concurrence of the Director General. He lastly referred to Rule 99.1 to submit that the issue of seniority of the petitioner was adequately protected in inter -zonal transfer also. The rules themselves therefore visualize a transfer from one zone to another, keeping in mind the seniority interest of the employee, even if it be accepted that each zone constituted a separate cadre. That there was no separate zonal cadre but only an all India cadre.

(3.) IN his rejoinder, learned Senior Counsel, Mr. Kanth acknowledged the absence of any pleading of statutory violation in the order of transfer and absence of any denial in the rejoinder notwithstanding the specific assertion of the Respondents in their counter affidavit that statutory provisions stood fully complied. The fact that a memo of charge dated 15.1.2008 had already been served on the petitioner, the very same day, but does not find mention in the writ petition affirmed on 1.2.2008 was sought to be urged as an inadvertent omission.