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Judgment
Sanjeev Kumar, J
Both these intra Court appeals arise out of judgment dated 27.08.2019 passed by the Writ Court in SWP No. 825/2019 and WP (C) No. 2204/2019,
whereby the Writ Court has dismissed both the writ petitions along with other clubbed matters. The writ petitioners in the aforesaid writ petitions are
aggrieved and have filed these two separate Latter Patent Appeals.
Before we advert to the grounds of challenge, we feel it appropriate to notice few material facts.
The appellants (hereinafter to be referred as “the writ petitionersâ€) are employees of Ministry of Railways, Government of India and are
posted in Banihal to Baramulla Sector of the Jammu and Kashmir Rail project. It may be noted that the Ministry of Railways, in the year 2000,
announced connecting of the than State of Jammu and Kashmir with the rest of India through Railways and as a consequence thereof, formulated and
announced a Railway Project, namely, Udhampur-Srinagar-Baramulla Railway Line Project. With a view to facilitate the completion of the project, a
large scale land acquisition took place and, in order to rehabilitate the land owners who lost substantial portion of their land in the acquisition, the
respondents came up with a policy known as “ land loser policyâ€. The policy made a provision for grant of employment to one of the family
members of the land holders who would lose more than 70% of their land by acquisition for establishment of the Railway project. The writ petitioners
are all beneficiaries of the aforesaid policy and have been appointed as Signal Khalasi in Group-D Category of the Indian Railway Services.
They claim that, since their appointment is under a policy i.e. land losers policy and in a particular Sector, as such, they cannot be transferred from
their initial place of posting given on appointment. The respondents, however, vide Notice bearing No. 293-E/34/Sig/TRF/K.velly/P-3 dated
22.02.2019, have transferred the writ petitioners from their initial places of postings to the places outside the Valley. Feeling aggrieved, the writ
petitioners filed SWP No. 349/2019 and challenged their transfer. The writ petition was disposed of by a learned Single Judge of this Court on
26.02.2019 with a direction to the writ petitioners to file a detailed representation before the respondents, who were directed to decide the same within
one month. It is relevant to notice that at the time of consideration of the writ petition, SWP No;. 349/2019, the learned counsel representing the Indian
Railways informed the learned Single Judge that the respondents have framed a policy vide Order No. 698E/311/HC/SINA/18 dated 18.01.2019 and
as a consequence thereof, the petitioners have been transferred and posted outside the Valley as they had served at their present place of postings for
more than four years. The writ petitioners claim that this is how, for the first time, they came to know about the impugned transfer policy. The writ
petitioners, feeling aggrieved of the impugned transfer policy challenged the same in SWP No. 825/2019 and WP (C) No. 2204/2019. Both the writ
petitions along with few other writ petitions have been dismissed by the Writ Court in terms of the impugned order and judgment.
The writ petitioners are aggrieved and have challenged the impugned judgment inter alia on the following grounds:-
(i) That respondent No.4 has no competence or authority to notify the impugned rotational transfer policy and it is only respondent No.2, who, in law,
is competent to notify the policy for effecting transfers of the employees borne on the Railway establishment;
(ii) That the impugned transfer policy as also the transfer of the writ petitioners from Udhampur-Srinagar-Baramulla Sector to places outside the
Sector is not permissible in case of Group-D Railway employees, which the writ petitioners are.
(iii) That the transfer of the writ petitioners is not in the interest of administration but is only to accommodate the Group-D employees belonging to the
Valley who are serving in Firozpur Division but outside the UT of Jammu and Kashmir.
Having heard learned counsel for the parties and perused the record, we are of the considered view that the impugned transfer policy notified by
respondent No.4 on behalf of respondent No.3 is without jurisdiction.
Indisputably, a comprehensive transfer policy has been framed and notified by the Railway Board and, therefore, no authority subordinate to the
Railway Board, unless it has been specifically delegated such power, is competent to modify or lay down a policy inconsistent with the policy laid
down by the Railway Board. The impugned rotational policy notified by respondent No.4, for and on behalf of the Divisional Railway Manager,
Firozpur Division, is thus without jurisdiction. .
Mr. S. A. Naik, learned counsel representing the official respondents could not bring to our notice any Order or Circular of the Railway Board
delegating the power to frame Transfer Policy to the respondent Nos. 3 and 4. This aspect has not been considered by the Writ Court and the writ
petitions have been dismissed primarily on the ground that transfer is an exigency of service and not a condition of service and unless the transfer is
actuated by malice, same cannot be interfered with by the Court in exercise of its extra ordinary writ jurisdiction under Article 226 of the Constitution
of India. The Writ Court has not dealt with the important aspect of the case of the writ petitioners that respondent No. 3 and 4 are not competent in
law to frame a policy, which authority clearly vests in the Railway Board.
It is true that some of the employees similarly situated with the writ petitioners who were working out of Kashmir Valley filed SWP No. 2246/2015
and SWP No. 2841/2015 in this Court, seeking inter alia a direction to the respondents to transfer and post them in Banihal-Srinagar-Baramulla Sector
of J&K Railway Project. They also sought a direction to the respondents to give them similar treatment as was given to the employees in the similar
category appointed under the same scheme i.e. Land Losers Quota and posted in Kashmir Division only. The aforesaid writ petitions came to be
disposed of by the Writ Court vide order dated 03.06.2016 directing the official respondents herein to consider the claim of the writ petitioners therein
for their posting/adjustment in Banihal- Qazigund Sector in accordance with the policy and government orders occupying the field. The official
respondents claim that framing of rotational policy was necessitated to comply with the aforesaid direction and provide equitable treatment to the writ
petitioners in the aforesaid writ petitions.
While we have no reason to doubt the intent behind issuance of the Rotational Policy and the same obviously has been notified to provide equitable
treatment to the employees similarly situated with the writ petitioners who came to be posted outside Kashmir Valley due to non-availability of posts to
adjust some of the land losers, however, we find that such policy, if at all required, could have been framed only by the Railway Board, which, as per
the Railway Establishment Rules, is the competent authority to lay down a policy guidelines governing the transfers of the employees borne on the
Railway establishment. We will not go in detail to the Rule position governing the transfers of employees of the Indian Railways, including Group-C
and Group-D employees and would like to leave it to the Competent Authority to ensure that the Transfer Policy/Rules and guidelines are followed by
all subordinate officers in letter and spirit.
Having found the impugned transfer policy beyond the jurisdiction of respondent Nos.3 and 4, we leave it to the Railway Board to subject the writ
petitioners to transfers strictly as per the policy in vogue framed by the Railway Board. The writ petitioners have placed on record a copy of the
Railway Establishment Rules and Labour Laws. The Chapter „General Conditions of Service‟ inter alia deals with transfer and posting of the
employees working in different Railway establishments. Plain reading of these provisions makes it abundantly clear that a Railway servant is entitled
to remain posted throughout his career in the Railway or Railway establishment to which he is posted on his appointment. He can, however, be
transferred from one Railway to another Railway, from one department of Railways to another department of Railways or from one Railway
establishment to other in the exigencies of service and such power may be exercised by the General manager or by any other lower authority to whom
such power is delegated. It is, however, not clear as to what does the terms, „one Railway to another‟, „one Railway establishment to other
establishment‟ really mean. In the absence of any clarity with regard to the actual meaning of these terms, we would not like to venture to express
our opinion.
For the foregoing reasons, we are of the considered view that the writ petitioners have made out a case to assail the impugned rotational transfer
policy issued by respondent No.4. These appeals are, accordingly, allowed and the judgment of the Writ Court set aside. The impugned transfer policy
is held to be without jurisdiction having been issued by an authority not competent to do so. The writ petitioners, however, shall be governed by the
transfer policy notified by the Railway Board or any other authority to whom power is specifically delegated by the Board and would be subjected to
transfers, if necessary, strictly as per the said transfer policy. We, however, leave it to the Competent Authority in the Railways to effect the transfer
of the writ petitioners, if that is required in the exigency of service, strictly as per the provisions with regard to transfer and posting contained in the
Railway Establishment Rules, amended from time to time.
In view of the fact that we have held the impugned rotational transfer policy without jurisdiction, we direct the respondent No.3 to re-consider the
transfer of the writ petitioners only in the light of provisions of Transfer and Posting contained in the Railway Establishment Rules and Circulars,
guidelines, if any, issued by the Railway Board on the subject from time to time. Let a decision in this regard be taken by respondent No.3 within a
period of four weeks from the date a copy of this judgment is served upon him.