R.K.Saxena, Member - (1.) This O.A. has been filed by Shri S.N. Singh, L.P. Singh arid U.S Srivastava who are Senior Cashiers in Northern Railway, Allahabad challenging the impugned order of transfer (Annexure-1) passed on 20-7-1995. The contention of the applicants is that they are working as Senior Cashiers at Allahabad which are declared sensitive posts in accordance with the circular (Annexure-II) and the holders of sensitive post are required to be transferred every four years. The impugned order was passed in violation of this circular issued by the Railway Board and, therefore, the order of transfer is contended to be illegal. The applicants, therefore, seek quashment of the said order of transfer.
(2.) The notices of the O.A. were served on the respondents in response to which objection about maintainability of the applicants and the respondents were heard at the point of maintainability of this O.A.
(3.) The contention of the learned counsel for the applicants is that the order of transfer has been challenged only on the ground that the instructions which were issued and which form part of rule by the Railway Board, have not been complied with and, therefore, the order of transfer is illegal and liable to be quashed. In this connection my attention has been drawn to para 123 of Indian Railway Establishment Code, Volume I where it is mentioned that the Railway Board have full powers to make rules of general application to Groups C and D Railway servants under their control. It has been urged on behalf of the applicants that the Circular (Annexure-II) was issued in exercise of the powers conferred on the Railway Board and thereby the Circular takes the shape of rule. In support of it, the Judgment of the Hon'ble Supreme Court in the case of State of Gujarat v. Akhilesh C. Bhargawa and others, AIR 1987 SCC 2135 has been relied upon, in the said case the Circular of Home Ministry with reference to the I. P. S. (Piobation) Rules was under consideration and it was held that the instructions which did not run counter to the rules in existence, the validity of the instructions cannot be disputed. The reliance is also placed on the case Babu Lal Shuklo v. Secretary-cum-General Manager and others, (1993) 3 UPLBEC. 2110 in which the order passed by the Registrar under Section 120 of the Act prescribing the qualification was under challenge ; and it was held that the order passed by the Registrar, could be in exercise of the powers of framing regulations. Besides it, the reliance has also been placed on the decision in the case of Railway Board and others v. P. R. Subramaniyam and others, 1978 (I) LLJ 208 in which it was held that the circular of Railway Board issued in terms of Rule 157 of the Code bad the force of rule. It has been pointed out on behalf of the applicant that Rule 157 of the Code has now been made Rule 123. Thus, the crux of the matter is whether this circular (Annexure-2) should be held taking shape of rule and whether any departure therefrom was possible or not. The rule making power as is pointed out, is only with respect to the service conditions of the employees. Their Lordships in the case of Rajendra Rai v. Union of India, 1993 (1) SLR 126 and State Bank of India v. R. P. Khurana, 1994 (1) SLR 588 held that the transfer is an incidence of service. A person holding a transferable post, has no legal right to remain posted at one place or the another, it was further held that no interference by the Court/Tribunal should be made, unless the transfer orders are made in violation of any mandatory or the statutory rule or on the ground of mala fide. In another case of Union of India v. S.L. Abbas, 1994 SCC (L & S) 230 it was further held that unless the order of transfer is mala fide or is made in violation of statutory provisions, the Court/Tribunal cannot interfere. It was further observed in the same case that not following any instructions/guidelines made in this respect, would not be sufficient to quash the order as being mala fide. The contention of the learned counsel that Annexure-2 takes the shape of rule, cannot be upheld because it is not either a term or a condition of service in general. The transfer is an incidence and it cannot be attached as a basic condition of service. At the most, it can be treated as instruction or guideline. The learned counsel for the applicant has fairly conceded that this case has not been filed, alleging any mala fide, Only point, involved is that the transfer was made against the instructions and according to him that instruction amounted rule I have already expressed my view and that to in the light of latest decisions of the Hon'ble Supreme Court referred to above that the instructions contained in Annexure-2 cannot be placed in the category of rule. As such no violation of mandatory rule could be established. The 0.A. is therefore, dismissed at the stage of admission itself. Application dismissed.;