# Ram Niwas Pandey (constable no. 5796) and others / v. Union of India and others

- **Citation:** (2006) 1 ILRA 404
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-29
- **Case number:** Special Appeal No. 769 of 2005
- **Bench:** S.Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-niwas-pandey-constable-no-5796-and-others-v-union-of-india-and-others-40861
- **Pages:** 5

## Headnote

Railway protection force Rules 1987Rule
93.5-Transfer/posting
on
Non
sensitive post-it prohibit only these
tainted members of service-otherwise
large number of sensitive post remained
vacant-rule 93.5 has no application

Held: Para 7

In our view, the manner in which the
appellant is trying to read Rule 93.5 and
is applying the same, in the present case,
is also incorrect inasmuch a simple
reading of Rule 93.5 would show that it
only
prohibits
tainted
members
of
service from being posted on sensitive
post but converse is not true. It does not
say that even if a person has no such
adverse entry or poor reputation, yet he
also cannot be posted on non-sensitive
post. There may be several occasions
when the number of persons having bad
service record or reputation ma be less
than the number of non-sensitive posts.
If the contention of the appellant is
accepted, it may result in a large number
of sensitive post remained vacant since
they are to be filled in only by tainted
officers and none else. Neither rule say
so nor there is any other reason to
warrant such interpretation. Therefore,
the aforesaid submission of the appellant
is clearly incorrect in so far as it submits
that the impugned order of transfer is by
way of punishment taking support of
Rule
93.5.
The
said
rule
has
no
application in the present case at all.
Case law discussed:
AIR 1974 SC-555
1986(4) SCC-131
AIR 1991 SC-532
AIR 1993 SC-2444
2001(91) ELR-259
AIR 2004 SC-2165
2005 (107) FIR-37

## Text

404 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
APPELLATE JURISDICION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2005

BEFORE
THE HON'BLE S.RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. 769 of 2005

Ram Niwas Pandey (constable no. 5796)
and others
...Appellants/ Petitioners
Versus
Union of India and others

 ...Defendants/Respondents

Counsel for the Appellants:
Sri Shashi Nandan
Sri A.A. Khan

Counsel for the Respondents:
Sri Govind Saran

Railway protection force Rules 1987Rule
93.5-Transfer/posting
on
Non
sensitive post-it prohibit only these
tainted members of service-otherwise
large number of sensitive post remained
vacant-rule 93.5 has no application

Held: Para 7

In our view, the manner in which the
appellant is trying to read Rule 93.5 and
is applying the same, in the present case,
is also incorrect inasmuch a simple
reading of Rule 93.5 would show that it
only
prohibits
tainted
members
of
service from being posted on sensitive
post but converse is not true. It does not
say that even if a person has no such
adverse entry or poor reputation, yet he
also cannot be posted on non-sensitive
post. There may be several occasions
when the number of persons having bad
service record or reputation ma be less
than the number of non-sensitive posts.
If the contention of the appellant is
accepted, it may result in a large number
of sensitive post remained vacant since
they are to be filled in only by tainted
officers and none else. Neither rule say
so nor there is any other reason to
warrant such interpretation. Therefore,
the aforesaid submission of the appellant
is clearly incorrect in so far as it submits
that the impugned order of transfer is by
way of punishment taking support of
Rule
93.5.
The
said
rule
has
no
application in the present case at all.
Case law discussed:
AIR 1974 SC-555
1986(4) SCC-131
AIR 1991 SC-532
AIR 1993 SC-2444
2001(91) ELR-259
AIR 2004 SC-2165
2005 (107) FIR-37

(Delivered by Hon'ble S. Rafat Alam, J.)

1. This special appeals is preferred
against the order of the Hon'ble Single
Judge dated 1.6.2005 dismissing writ
petition no. 44362 of 2005 the appellant
filed against the order of transfer dated
27.5.2005.

2. Heard Shri Shashi Nandan,
learned Senior Counsel appearing for the
appellant and perused the aforesaid order
of the Hon'ble Single Judge.

3. Learned counsel for the appellant
submitted that the impugned order of
transfer has been passed by way of
punishment inasmuch as it has been
passed on administrative grounds posting
the appellant on non-sensitive post. He
further relied upon Rule 93.5 of the
Railway Protection Force Rules, 1987,
which reads as under:-

"93.5 Members of the Force who
have got adverse entries or enjoy poor
reputation shall not be posted to sensitive
posts till they get good entries for three
consecutive years."
1 All] Ram Niwas Pandey and others V. Union of India and others
405
4. The appellant submits that since
the
aforesaid
provisions
bars
such
members of force, who have got adverse
entry or enjoy poor reputation, from being
posted on sensitive post, therefore, the
appellant, being equated with such tainted
officers, by means of the impugned order
and as a measure of punishment, has also
been posted on non-sensitive post.

5. We do not find the aforesaid
contention of the appellant tenable. Under
1987 rules subject of transfer has been
dealt with from Rule 90 to 93.10 under
Chapter 7. Rule 90 empowers transfer of
any members of force. For ready
reference Rule 90, which is relevant for
the purposes of present case, is quoted as
under:-

"90. General: Transfer of members
of the Force may be ordered 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."

6. A perusal of the aforesaid
provision shows that a member of force
may be transferred from one place to
another throughout India in the exigencies
of service or for administrative reasons
or to avoid local entanglements or for
any other consideration. Obviously, the
impugned order of transfer, in the present
appeal, has been passed on administrative
reasons and is referable to Rule 90 of the
aforesaid rules.

7. In our view, the manner in which
the appellant is trying to read Rule 93.5
and is applying the same, in the present
case, is also incorrect inasmuch a simple
reading of Rule 93.5 would show that it
only prohibits tainted members of service
from being posted on sensitive post but
converse is not true. It does not say that
even if a person has no such adverse entry
or poor reputation, yet he also cannot be
posted on non-sensitive post. There may
be several occasions when the number of
persons having bad service record or
reputation ma be less than the number of
non-sensitive posts. If the contention of
the appellant is accepted, it may result in
a large number of sensitive post remained
vacant since they are to be filled in only
by tainted officers and none else. Neither
rule say so nor there is any other reason to
warrant such interpretation. Therefore, the
aforesaid submission of the appellant is
clearly incorrect in so far as it submits
that the impugned order of transfer is by
way of punishment taking support of Rule
93.5. The said rule has no application in
the present case at all.

8. Besides that the employee cannot
claim, as a matter of right, that he should
be given a particular posting against a
sensitive post or non-sensitive post. It is
the prerogative of the employer to choose
as to which employee is posted where,
according to the exigency of service and
in administrative exigency.

9. In the case of E.P. Royappa
Versus State of Tamil Nadu, AIR 1974
SC 555 the Hon'ble Apex Court held as
under

"It is an accepted principle that in
public service transfer is an incident of
service. It is also an implied condition of
service and appointing authority has a
wide discretion in the matter. The
government is the best judge to decide
how to distribute and utilize the services
of its employees. However, this power
406 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
must be exercised honestly, bona fide and
reasonably."

In 1986 (4) SCC 131 the Hon'ble
Apex Court in the case of B. Varadha
Rao Versus State of Karnataka and
others held as under: -

"It is well understood that transfer of
a government servant who is appointed to
a particular cadre of transferable posts
from one place to another is an ordinary
incident of service and therefore does not
result in any alteration of any of the
conditions of service to his disadvantage.
That a government servant is liable to be
transferred to a similar post in the same
cadre is a normal feature and incident of
government service and no government
servant can claim to remain in a particular
place or in a particular post unless, of
course, his appointment itself is to a
specified, non-transferable post." (Para5).

In Mrs. Shilpi Bose and others
Versus state of Bihar & others, AIR 1991
SC 532 the Hon'ble Apex Court held as
under: -

"A Government servant holding a
transferable post has no vested right to
remain posted at one place or the other, he
is liable to be transferred from one place
to the other. Transfer orders issued by the
competent authority do not violate any of
his legal rights. Even if a transfer order is
passed
in
violation
of
executive
instructions
or
orders,
the
Courts
ordinarily should not interfere with the
order instead affected party should
approach the higher authorities in the
Department. If the courts continue to
interfere
with
day-to-day
transfer
orders issued by the Government and
its subordinate authorities, there will be
complete chaos in the Administration,
which would not be conducive to public
interest. The High Court over looked
these aspects in interfering with the
transfer orders."
(Para-5)

Reiterating the aforesaid view, in the
case of Union of India and others Versus
S.L. Abbas, AIR 1993 SC 2444 the
Hon'ble Apex Court held that the transfer
is an incident of service and in para-7
their Lordship held as under: -

"Who should be transferred where, is
a matter for the appropriate authority to
decide. Unless the order of transfer is
vitiated by mala fides or is made in
violation of any statutory provisions, the
Court cannot interfere with it."

In National Hydro-Electric Power
Corporation Ltd. Versus Shri Bhagwan
and another, 2001 (91) FLR 259 the
Hon'ble Apex Court held as under : -

"It is by now well settled and often
reiterated
by
this
Court
that
no
Government servant of employee of
public undertaking has any legal right to
be posted forever at any one particular
place since transfer of a particular
employee appointed to the class or
category of transferable posts from one
place to other is not only an incident, but
a condition of service, necessary too in
public interest and efficiency in the public
administration. Unless an order of
transfer is shown to be an outcome of
mala fide exercise of poser or stated to
be in violation of statutory provisions
prohibiting any such transfer, the
courts or the tribunals cannot interfere
with such orders, as a matter of routine
1 All] Ram Niwas Pandey and others V. Union of India and others
407
as through they are the appellate
authorities substituting their own decision
for that of the management, as against
such orders, passed in the interest of
administrative exigencies of the service
concerned."

In the case of State of U.P. Versus
Gobardhan Lal, AIR 2004 SC 2165 the
Hon'ble Apex Court held as Under:-

"It is too late in the day for any
government servant to contend that once
appointed or posted in a particular place
or position, he should continue in such
place or position as long as he desires.
Transfer of an employee is not only an
incident
inherent
in
the
terms
of
appointment but also implicit as an
essential condition of service in the
absence of any specific indication to the
contra, in the law governing or conditions
of service. Unless the order if transfer is
shown to be an outcome of a mala fide
exercise of power or violative of any
statutory provision (an Act or rule) or
passed by an authority not competent to
do so, an order or transfer cannot lightly
be interfered with as a mater of course or
routine for any or every type of grievance
sought to be made. Even administrative
guidelines for regulating transfers or
containing transfer policies at best may
afford an opportunity to the office or
servant concerned to approach their
higher authorities for redress but cannot
have the consequence of depriving or
denying the competent authority to
transfer a particular officer/servant to any
place in public interest and is found
necessitated by exigencies of service as
long as the official status is not affected
adversely and there is no infraction of
any career prospects such an seniority,
scale of pay and secured emoluments.
This court has reiterated that the order of
transfer made even in transgression of
administrative guidelines cannot also
be interfered with, as they do not confer
any legally enforceable rights, unless, as
noticed supra, shown to be vitiated by
mala fides or is made in violation of any
statutory provision."
(Emphasis added).

10. Instead of burdening this
judgment referring catena of decisions on
this aspect, it would be fruitful to refer a
very recent three judges judgments of the
Hon'ble Apex Court in the case of Major
General J.K. Bansal Versus Union of
India and others reported in 2005 (107)
FLR 37 wherein in order to appreciate the
scope of interference in a writ jurisdiction
under Article 226 of the Constitution of
India assailing the order of transfer the
Hon'ble Apex Court referred to the earlier
law laid down in the case of Mrs. Shilpi
Bose and others Versus State of Bihar
& others (Supra) and National HydroElectric
Power
Corporation
Ltd.
Versus Shri Bhagwan and another
(Supra), and held in para-12 as follows :-
"It will be noticed that these
decisions have been rendered in the case
of civilian employees or those who are
working in Public Sector Undertaking.
The scope of interference by Courts in
regard to members of armed forces is far
more limited and narrow. It is for the
higher authorities to decide when and
where a member of the armed forces
should be posted. The Courts should be
extremely slow in interfering with an
order of transfer of such category of
persons and unless an exceptionally
strong case is made out, no interference
should be made."
408 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
11. This Court has also reiterated the
same view in Special Appeal No. 1293 of
2005, Gulzar Singh vs. State of U.P.
and others decided on 7.11.2005.

12. In the aforesaid circumstances,
we do not find any reason to interfere
with the order of the Hon'ble Single
Judge. Therefore, the special appeal,
being without merit, is dismissed. No
order as to costs.
 Appeal dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.03.2006

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 43128 of 2003

Ram Pratap Shukla

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ramanuj Pandey

Counsel for the Respondents:
S.C.

Fundamental
Rules-Rule
56
(e)
Constitution of India, Art. 226-readwith
Civil
Services
Regulation-Regulation
361-grant of Pension-petitioner initially
appointed as helper on 20.12.76 on work
charge basis-by notice dated 30.7.02
information given to retire on 31.7.0224.4.03 application for payment of post
retrial
benefit-rejected
as
he
was
regularized 1993 hence the period from
20.12.76 to 93 shall not be counted-held
in view of G.O. 1.7.89 after completing
10 years service be treated regular in
nature-26 years continuous workingentitled for pension.

Held: Para 17 and 18

The Government Order dated 1.7.1989
meant ten years government servant
should be regular in nature meaning
thereby
that
if
the
temporary
government servant has performed his
duties irregularly i.e. with gaps of years,
his services may not be treated to be
regular. Thus, the contention of the
learned Standing Counsel that the words
''regular service' used in the Government
Order means substantive service or
service rendered by an employee in
regular capacity cannot be accepted. The
petitioner admittedly, rendered 26 years
under the respondent. From the record,
it is clear that the petitioner has
continuous worked from 20.12.1976 and
was permitted to retire at the age of
superannuation on 31.6.2002 and from
1976 to 2002, he has continuously
worked. From the foregoing discussions
it is clear that as the petitioner has
rendered considerable period of service,
he was entitled for the benefit of the
Government Order dated 1.7.1989 and if
the interpretation as given by the
respondent
is
accepted,
that
the
government
order
excluded
the
temporary government servants, who
has retired after 26 years of service and
is not entitled for pension the said
Government Order will become bad on
account of unreasonable and arbitrary
classification put by the respondent.
Furthermore,
as
observed
the
fundamental Rule 56 sub clause (e)
mandade grant of retiring pension to the
temporary Government Servants. The
Government Order dated 1.7.1989 has to
be read subject to the Fundament Rules
56 (e). The similar controversy came up
for consideration before this Court in
case of Dr. Hari Shankar Asopa Vs. State
of U.P. and others reported in 1989, ACJ
337, (Supra). After referring to the
fundamental
Rule,
56,
and
various
provisions contained in Civil Service
Regulations, this Court has observed as
under-

"Clause (e) of Rule 56 unequivocally
recognizes,
declares
and
guarantees
retiring pension to every Government