Transfer of an employee before the expiry of his normal tenure of posting on grounds of administrative interest, if it has serious consequences, must be preceded by an opportunity of hearing to the employee, as it would amount to a penal transfer.

Jyotirmay Bhattacharya, J.

( 1 ) THE petitioner is an Inspector of Railway Protection Force. In February 2003, the petitioner was posted at the Railway Protection Force Post, Dankuni on being transferred from Railway Protection Force Post, Chittaranjan. On 27th May, 2005, the petitionerwas again transferred from Dankuni to Clothing store/howrah-ll at Burdwan.

( 2 ) THE said order of transfer of the petitioner from the present place of posting at Dankuni to Clothing Store/howrah-ll at Burdwan vide Annexure 'p-4' to this writ petition at page 37, has been challenged in this writ petition on the following grounds :- (i) Transfer order was issued in violation of Rules 93. 1 and 93. 2 of the Railway Protection Force Rules, 1987 (hereinafter referred to as the said Rules ). (ii) Transfer order was issued in violation of the Standing Order no. 70 dated 27th September, 2004. (iii) Transfer order was issued in violation of sub-rule (4) of Rule 53 of the said Rules. (iv) Transfer order was issued in violation of Rule 153. 4 of the said Rules.

( 3 ) THE normal tenure of posting forthe Inspectors is four years as per the Standing Order No. 70. The note appended to Clause 3 of the said Standing order No. 70 provides that "tenure of posting indicated above is in the nature of guidelines and does not preclude the administration from transferring staff at any time before completion of the tenure in exigencies of service or for administrative reasons as envisaged in Rule 90 of Railway Protection Force rules, 1987".

( 4 ) MR. Basu, learned Senior Advocate, appearing for the petitioner, submitted that no doubt it is true that the note appended to Clause 3 of the said Standing Order authorises the concerned authority to transfer any member of the Force before the expiry of the normal tenure of posting for administrative reasons and/or in exigencies of service, but such premature transfer should not be done unless there are some grave reasons. Mr. Basu submitted that the transfer order itself does not disclose any grave reason under which the petitioner was transferred before expiry of tenure of posting.

( 5 ) BY relying upon an unreported decision of this Court in W. P. No. 11174 (W) of 2002 (Kali Kant Jha v. Union of India and Ors.), Mr. Basu submitted that this Court after taking into consideration of the provision contained in rules 93. 1 and 93. 2 of the said Rules has held that in the absence of any grave reason, premature transfer is not permissible.

( 6 ) MR. Basu further pointed out that the petitioner was suspended in contemplation of a disciplinary proceeding with effect from 29th April, 2005. The disciplinary proceeding which was subsequently initiated against the petitioner, is still pending. During the continuation of the disciplinary proceeding, the suspension order was revoked with effect from 27th June, 2005 and simultaneously the impugned order of transfer was issued on 27th june, 2005. Mr. Basu submitted that in view of the provision as contained in rule 153. 4 of the said Rules an enrolled member of the Force against whom an enquiry is pending, cannot be transferred without the order of the disciplinary authority. Mr. Basu submitted that no permission has been obtained from the disciplinary authority before issuance of the said order of transfer. As such, such transfer having been issued in violation of the provision of the said Rules, cannot be sustained.

( 7 ) MRS. Mukherjee, learned Advocate, appearing for the respondents submitted that the petitioner is an inspector of the Railway Protection Force. Transfer is not only the incidence of his service, but also it is a condition of his service. As such, the transfer in the administrative interest of the employer cannot be opposed, as the petitioner has no right to stay at a particular place of posting for any period of his choice.

( 8 ) MRS. Mukherjee further submitted that the note appended to Cfause 3 of the said Standing Order makes it clear that in case of exigencies

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