Madhya Pradesh High Court
S. N. Pathak vs The State Of Madhya Pradesh on 12 April, 2019
Equivalent citations: AIRONLINE 2019 MP 475
1 Writ Petition No.4461/2019
HIGH COURT OF MADHYA PRADESH
Writ Petition No.4461/2019
(S. N. Pathak Vs. & State of M.P. & Others)
Jabalpur, Dated : 12.04.2019
Shri Prashant Singh, Senior Advocate with Shri Shivendra
Pandey and Shri Anshul Tiwari, counsel for the petitioner.
Shri Paritosh Gupta, Government Advocate for the
respondents No. 1 to 3/State.
Shri D.K. Dixit, learned counsel for the respondent No.4. Since the pleadings are complete, parties made request for hearing the matter finally, accordingly, with the consent of the parties, the matter is heard finally.
2. By the instant petition, the petitioner has questioned the legality and validity of the order dated 26.02.2019 (Annexure-P/1) whereby, the petitioner has been directed to be transferred from the post of SDO(P), Patan, Jabalpur to Deputy Superintendent of Police, AJAK, Jabalpur. The order has been assailed mainly on the ground that the same has been passed in contravention of the directions issued by the Supreme Court in the case of Prakash Singh & Others Vs. Union of India & Others [(2006) 8 SCC 1]. It is also assailed on the ground that the order of transfer of the petitioner is illegal as the petitioner has been transferred twice within a period of almost 1½ years and at the present place of posting he has hardly completed six months. The order has also been assailed on the ground that it is contrary to the provisions of the 2 Writ Petition No.4461/2019 transfer policy framed by the State Government on 14.02.2007 in pursuance to the directions issued by the Supreme Court in the case of Prakash Singh (supra). The petitioner has also relied upon the decision of Prakash Singh (supra) and also the orders passed by this Court in W.P. No.8019 of 2016 [Manoj Kumar Singh Vs. State of M.P. & Others]; W.P. No. 3287 of 2019 [Dr. Kripa Shankar Dwivedi Vs. State of M.P. & Others]; and W.P. No. 3911/2019 [Sudhakar Baraskar Vs. State of M.P. & Others].
3. Per contra, the learned counsel appearing for the respondents No.1 to 3/State, relying upon the reply filed by the State, has contended that the order impugned in respect of transfer of the petitioner is in accordance with the provisions of the policy dated 14.02.2007 and that has been done in pursuance to the recommendation made by the Police Establishment Board as constituted by the State Government pursuant to the directions given by the Supreme Court in the case of Prakash Singh (supra). The learned counsel for the respondents/State further submits that the shifting of the petitioner though within the period of two years, infact, cannot be considered to be a transfer but it is a shifting within the District and, therefore, the bar as provided under the directions of the Apex Court in the case of Prakash Singh (supra) and also in the Policy dated 14.02.2007 is not applicable. The learned State counsel has also relied upon the orders passed by this Court in W.P. No.6347 of 2012 [Prateek Roy Vs. Secretary, State of M.P. & Others]; and W.P. No.3640 of 2019 [Ashok Kumar Pandey Vs. State of M.P. & Others].
3 Writ Petition No.4461/2019
4. Shri D.K. Dixit, learned counsel appearing for the respondent No.4 opposes the contention of the learned counsel for the petitioner and submits that the respondent No. 4 who has been brought in place of the petitioner has also been frequently transferred and he has complied with all the orders of his transfer and also in pursuance to the order impugned, he has been relieved from his present place of posting and he has submitted his joining as SDO(P) at Patan. He further submits that the order impugned relating to the petitioner and the respondent No.4 is not in contravention of the directions issued by the Supreme Court in the case of Prakash Singh (supra) as in the said case, no observation is made about the post. He has further contended that the policy framed by the State Government on 14.02.2007 is not in consonance with the directions of the Supreme Court as the Supreme Court in its order has not made any observation in respect of the post of CSP/SDO(P) whereas, the State Government in its policy has included the said post and, therefore, the order of transfer of the petitioner, in any manner, cannot be said to be contrary to the directions of the Supreme Court. He has also supported the stand taken by the State that shifting of the petitioner from one place to another that too within the District, in any manner, cannot be considered to be a transfer. He has also contended that the Writ Court in the case of Dr. Kripa Shankar Dwivedi (supra) has wrongly interpreted the directions of the Apex Court as given in the case of Prakash Singh (supra) as in the latter case, there was no reference of the post which is occupied by the petitioner as well as by the respondent No.4. He has further submitted that there is no change of Headquarters of the petitioner and, therefore, he cannot be 4 Writ Petition No.4461/2019 said to be transferred from one place to another and as such, the directions given by the Apex Court in the case of Prakash Singh (supra) are not applicable in his case. He further submits that it is a settled principle of law that the transfer policies do not have any statutory force and if any order of transfer is issued in violation of the provisions of transfer policy that cannot be subjected to judicial review and interference in such matters by the Court is not permissible.
5. As per the petitioner, he is at present holding the post of SDO(P) and is posted at Patan, Jabalpur. Vide order dated 12.10.2017, he was transferred from SDO(P) Mandla to SDO(P) Seoni and thereafter, vide order dated 07.08.2018, he was transferred to SDO(P), Patan, Jabalpur from Seoni. On 20.08.2018, he took the charge of SDO(P), Patan and thereafter, vide order impugned dated 26.02.2019 (Annexure- P/1), he has been directed to be transferred to Deputy Superintendent of Police, AJAK, Jabalpur. As per the learned counsel for the petitioner, the transfer of the petitioner at the present place of posting is only within a period of six months and as per the directions given by the Supreme Court in the case of Prakash Singh (supra), the petitioner has not completed the minimum tenure of two years at the present place of posting. In view of the order dated 14.02.2007 issued by the State Government pursuant to the direction of the Supreme Court given in the case of Prakash Singh (supra), the guidelines have been issued forming mandatory requirement for transferring police officers. As per the learned senior counsel, such requirement has not been followed which clearly provides a minimum tenure for a police officer at one place of posting is two years and if at all he is required to be 5 Writ Petition No.4461/2019 transferred under the exceptional circumstances then reasons must be assigned in the order itself or in the recommendation by the Police Establishment Board. He further submits that the order impugned is silent about any of the exceptional circumstances under which the petitioner could be transferred cutting down his normal tenure of two years and, therefore, the order impugned is illegal.
6. The learned counsel for the State submits that though the recommendation of the transfer Board is there and on the basis of the same, transfer order has been passed but he also submits that the normal tenure of two years as mentioned in the order of Supreme Court in the case of Prakash Singh (supra) as also in the Policy framed by the State Government would mean that the said tenure is for a District but not in respect of a particular posting. The learned counsel for the State further submits that it is a shifting within the District and accordingly, it cannot be considered to be a transfer.
7. The learned counsel for the respondent No.4 has also supported the stand taken by the State and has submitted that the respondent No.4 has already complied with the order of his transfer and has submitted his joining as SDO(P) at Patan. He further submits that the order/policy issued by the State Government on 14.02.2007 is not in consonance with the directions given by the Apex Court in the case of Prakash Singh (supra), therefore, the transfer of the petitioner cannot be said to be in contravention to any directions of the Apex Court. It is also submitted that the transfer policy has no statutory force and if it is violated, the order cannot be said to be illegal and interference under 6 Writ Petition No.4461/2019 writ jurisdiction is not permissible.
8. Arguments heard. Record perused.
9. As per the order impugned dated 26.02.2019 (Annexure- P/1), the petitioner has been directed to be transferred from the post of SDO(P), Patan, Jabalpur to Deputy Superintendent of Police, AJAK, Jabalpur and by the same order, the respondent No.4 has also been directed to be transferred from AJAK, Jabalpur to SDO(P), Patan, meaning thereby, the transfer of the petitioner and the respondent No.4 is inter-changeable. Admittedly, the petitioner came to Patan by virtue of order dated 07.08.2018 (Annexure-P/3) and he joined at Patan on 20.08.2018. Thus, there is no dispute that the petitioner has not completed a minimum tenure of two years' period as SDO(P) at Patan. The contention as raised by the petitioner that the Supreme Court in the case of Prakash Singh (supra) has clearly laid down that the minimum tenure of police officers at one place of posting should be of two years unless it is found necessary to remove them prematurely following the disciplinary proceedings against them or their conviction in a criminal offence or in a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities. The Supreme Court has further observed that there shall be a Police Establishment Board in each State which shall decide all the transfers, posting, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. It is also observed that the State Government may interfere with the transfer made by the Board in exceptional cases only after recording its reasons for doing so. In pursuance to the 7 Writ Petition No.4461/2019 directions of the Supreme Court, the State Government has passed an order on 14.02.2007 taking a decision for constitution of the Police Establishment Board comprising of the Director General of Police and four senior police officers of the Department and also formed guidelines in which the transfer of police officers can be made. The said order dated 14.02.2007 very categorically contains that the Sub-Divisional Officer (Police)/City Superintendent of Police has a normal tenure of two years at one place of posting but they can be transferred within the said period under special circumstances. The petitioner is admittedly transferred within a normal tenure of two years and as such, his transfer order has been assailed stating that the same is contrary to the statutory provisions and is therefore, illegal.
The learned counsel for the petitioner has drawn the attention of this Court to the impugned order and has submitted that the order impugned does not assign any reasons as to why the petitioner has been transferred within the normal tenure of two years. He has further drawn the attention of this Court towards the documents filed by the respondents, i.e., the minutes of the meeting of the Police Establishment Board held on 26.02.2019 and contended that even the Police Establishment Board has not disclosed any exceptional reasons as to why the petitioner has been transferred and in absence of any such reasons specified in the Board proceedings, it is clear that the respondents have violated the order dated 14.02.2007 and also the directions issued by the Apex Court in the case of Prakash Singh (supra).
8 Writ Petition No.4461/2019
10. The core issue in this case, which reflects from the arguments advanced by the learned counsel for the parties is whether the order impugned issued in respect of the petitioner is in contravention of the directions issued by the Supreme Court and also in contravention of the order passed by the State Government on 14.02.2007 framing guidelines in respect of transfer of the police officers. It is also the question before this Court whether the order dated 14.02.2007 has a statutory force or it should be treated as an executive instructions/routine transfer policy as is framed in respect of the employees of the State Government.
11. The contention put-forth by the learned counsel for the respondent No.4 that the order dated 14.02.2007 is in contravention of the directions issued by Hon'ble the Supreme Court in the case of Prakash Singh (supra) in Paragraph-31 under the heading of 'Minimum tenure of IG of police and other officers', no post of SDO(P)/CSP has been mentioned and, therefore, the State Government has committed an error by including the post of SDO(P)/CSP in its order dated 14.02.2007. However, I am not convinced with this contention for the reason that the Supreme Court in the case of Prakash Singh (supra) has referred to the post of Deputy Superintendent, the relevant paragraphs are as under :-
"31. (1) xxx xxx xxx (2) xxx xx xxx (3) xxx xxx xxx (4) Separation of investigation- The investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people. It must, however, be 9 Writ Petition No.4461/2019 ensured that there is full coordination between the two wings. The separation, to start with, may be effected in towns/urban areas which have a population of ten lakhs or more, and gradually extended to smaller towns/urban areas also.
(5) Police Establishment Board- There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with the decision of the Board in exceptional cases only after recording its reasons for doing so. The Board shall also be authorised to make appropriate recommendations to the State Government regarding the postings and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotions/transfers/disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State."
From the aforesaid, it is clear that the post of Deputy Superintendent of Police referred here is equivalent to the post of SDO(P) and belongs to the same cadre. Even otherwise, the State Government very categorically in its order dated 14.02.2007 has referred 10 Writ Petition No.4461/2019 the post of SDO(P)/CSP and has specified, their minimum tenure is two years. The order dated 14.02.2007, very categorically contains that the same has been passed pursuant to the directions of the Supreme Court in the case of Prakash Singh (supra). In the present case, the order dated 14.02.2007 is not under challenge and it is for the State Government to form a policy in respect of its officers and if the post of SDO(P) and CSP is included then it is not proper to say that the State Government has misinterpreted the directions of the Supreme Court and it is equally not proper to say that in the present case, the order dated 14.02.2007 is not applicable for the reason that in the case of Prakash Singh (supra), there was no reference of the post of SDO(P)/CSP or Deputy Superintendent of Police. Not only this, but also on earlier occasion, the cases relating to the post of SDO(P)/CSP has been dealt with by this Court in pursuance to the directions of the Apex Court in the case of Prakash Singh (supra) and also taken note of the order dated 14.02.2007 issued by the State Government and in the consistent view of this Court, the order dated 14.02.2007 has a statutory force, the guidelines contained therein cannot be considered to be the provisions mentioned in routine transfer policy as is issued by the State Government in respect of the transfer of its employees. The learned counsel for the petitioner has placed reliance in the case of Manoj Kumar Singh (supra) in which this Court has dealt with the transfer of a Police Officer holding the post of SDO(P) and has observed that in the case of Prakash Singh (supra) so as to in the order dated 14.02.2007, it is clearly mentioned that the said policy is not a routine policy of transfer or guidelines but it has a binding effect. It is further observed 11 Writ Petition No.4461/2019 that the policy dated 14.02.2007 relates to posting and transfer both. The Writ Court has also observed that the minimum tenure of a Police Officer is two years at a particular station/place which can be curtailed in the circumstances mentioned in Clause- (ii) to (vi) of the policy dated 14.02.2007. The relevant portion of Manoj Kumar Singh (supra) case are reproduced herein under :-
"8. A combined reading of aforesaid Paras of judgment of Prakash Singh (supra) and order of government dated 14.02.2007 makes it clear that the judgment and order aforesaid are applicable in cases of transfers and postings both. The order (Annexure-P/8) passed by the government is based on the judgment of Supreme Court. Thus, it is not merely a policy guidelines. It has a binding effect because the order is issued in consonance with the judgment of Supreme Court. Thus, the normal principle applicable to transfer matters in relation to policy will not be applicable in the present case.
9. The basic purpose of Constitution of Police Establishment Board is to ensure that transfers, postings are made on objective considerations. Extraneous or political consideration should not be a reason to shift the police officers before completion of normal tenure. The reproduced portion of order dated 14.02.2007, in no uncertain terms makes it clear that minimum tenure of an officer is two years at a particular station/place which can be curtailed in the circumstances mentioned in Clause (ii) to (vi). This is not the stand of the respondents that such conditions were attracted in the present case. Thus, there is no scintilla of doubt that impugned posting/transfer runs contrary to the law laid down by the Apex Court in 12 Writ Petition No.4461/2019 Prakash Singh (supra) and government's order dated 14.02.2007 (Annexure-P/8)."
I have no hesitation to say that the order dated 14.02.2007 has been given approval by this Court treating the same as a policy having a statutory force and the guidelines contained therein having a binding effect. Further, in the case of Dr. Kripa Shankar Dwivedi (supra), this Court has very categorically dealt with the transfer of a Deputy Superintendent of Police and the SDO(P) and has also specified that these police officers are also on operational duties in the field. It is also observed by the Writ Court in the said case that the directions issued by the Apex Court in the case of Prakash Singh (supra) are squarely applicable for the post of SDO(P) and has also observed that this post also has a minimum normal tenure of two years at one place. The relevant paragraph of the said case is reproduced herein below :-
"21. The other contention of the Ld. Additional Advocate General that the petitioner being a Dy. SP was not "In-charge" either of a zone, range, district or of a police station which, according to the Ld. Additional Advocate General, is a condition precedent to be satisfied before the protection of two years continuous service at the place of posting can be accorded to the Petitioner. According to the Ld. Additional Advocate General, the Petitioner being a Dy. SP, his position is in between a Station House Officer and the Superintendent of Police of a district and, therefore, he does not occupy a post where he is In-charge of any field operational duties. Yet again, with great respect, this court begs to differ. Direction No.3 commences with the words "police officers on 13 Writ Petition No.4461/2019 operational duties in the field" even in the position of a Dy. SP, the Petitioner was on operational duties in the field and this stand is established by the document filed by the State itself in its reply, which is Annexure R/3 at page 12, which is a list of fourteen cases in which notices have been given to the Petitioner. All those cases relate to the conduct of the investigation in criminal cases by the Petitioner. Investigation falls in the category of operational duties in the field as it is not purely administrative. Therefore, even though the Deputy Superintendent of Police and the SDO(P) have been omitted, by necessary implication they were also police officers on operational duties in the field."
12. As has been held by this Court consistently that the minimum tenure of a Police Officer including SDO(P) at one place is two years and as such, the present case in which the petitioner has been transferred is in violation of the order of the State Government passed on 14.02.2007 and also in contravention of the directions issued by the Apex Court in the case of Prakash Singh (supra), I do not find any substance in the contention raised by the State Government that it is a shifting within the District and, therefore, the said shifting cannot be considered to be a transfer and as such, the minimum tenure of two years would not apply for SDO(P) at a place where he is posted but it applies to a particular District within which he holds the posting. I am also not convinced with the said contention of the respondents because the order impugned clearly contains that the same has been issued in respect of the police officers finding name therein for their transfer and posting. Not only this, but the case of the petitioner as well as the respondent No.4 since placed before the Police Establishment Board 14 Writ Petition No.4461/2019 indicates that the same has been done to follow the directions of the Supreme Court and to follow the Policy dated 14.02.2007 which clearly makes it mandatory to seek recommendation from the Police Establishment Board. When part of the directions is complied with by the State Government then they are under obligation to comply and to follow the other part of the directions as well.
It is noteworthy to mention here that the transfer has been defined in the rules known as the M.P. Civil Services (Joining Time) Rules, 1982 under Rule 2(b) :-
"2. Definitions.- In these rules, unless the context otherwise requires :-
(a) xxx xxx xxx
(b) "Transfer" means the movement of a Government servant from one post to another either within the same station or to another station to take up duties of a new post or in consequence of change of his headquarters."
Similarly, in the Fundamental Rules 9(17), transfer has been defined as :-
"F.R. 9(17).- Transfer means the movement of a Government servant from one headquarter station in which he is employed to another such station either (a) to take up the duties of a new post, or (b) in consequence of a change of his headquarters."
Thus, it is clear that in the present case, the shifting of the petitioner from the post of SDO(P), Patan to the post of CSP, AJAK, Jabalpur falls within the definition of transfer and accordingly, I do not find any force and substance in the contention of the respondents.
13. As in the case of Prateek Roy (supra) on which the learned State counsel has placed reliance stating that the same clearly provides 15 Writ Petition No.4461/2019 that the normal tenure of two years relates to the posting in a District but not at a particular station and place. However, the said contention has also been raised on earlier occasion and this Court has decided the case of Sudhakar Baraskar (supra) in which the case of Prateek Roy (supra) has been considered, rejecting the said contention explaining the intention of Court and holding that the facts in case of Prateek Roy (supra) were different. Accordingly, I am not convinced with the stand taken by the respondents/State. The learned counsel for the State has also placed reliance upon a decision of this Court in the case of Ashok Kumar Pandey (supra). The said case is in relation to the police officers holding the post of Station House Officer. However, the facts of the said case are not applicable and similar to the facts of the present case for the reason that the petitioner in the said case had completed two years period in District Satna and in pursuance to the circular dated 25.1.2019 issued by the Inspector General of Police stating that the Police Officer who has completed the period of three years at one place has to be transferred and the petitioner in the said case was posted at Satna on 19.03.2016 and completed his three years period as per the circular dated 25.01.2019 on the cut-off date and his transfer was held to be valid and further observed that the case of Prakash Singh (supra) is not applicable. However, in the present case, it is nobody's case that the transfer of the petitioner has been done pursuant to the circular dated 25.01.2019. Accordingly, the case of Ashok Kumar Pandey (supra) has no application in the case at hand. Further the order/Policy dated 14.02.2007 very categorically contains the exceptional circumstances under which the Police Officer can be transferred by curtailing his 16 Writ Petition No.4461/2019 normal tenure. However, the State Government, in its reply, has not disclosed any such exigency transferring the petitioner and not only this, but also in the minutes of meeting of the Police Establishment Board, there was no such reason assigned and, therefore, it cannot be considered that the petitioner has been transferred under any such exigency. The Supreme Court, in the case of Mohinder Singh Gill & Another Vs. Chief Election Commissioner, New Delhi & Others [(1978) 1 SCC 405], has very categorically observed that the order is adjudged for the reasons assigned therein but not on the basis of the reason which is supplemented by any affidavit or by any oral submissions. Shri Dixit submits that there is no requirement to assign reason by an affidavit or by an oral submission under which transfer order is made. Undoubtedly, the order dated 14.02.2007 does not say so but when the validity of the order of transfer is questioned, the same would be adjudged on the basis of the reason assigned in the order as per the law laid down by the Supreme Court in the case of Mohinder Singh Gill (supra). However, it is incumbent upon the authority to assign reason when the transfer of a police officer is made under exceptional category otherwise it will be presumed that the order of transfer has been made in a routine manner. It is further pertinent to mention here that when the order of transfer is put for judicial scrutiny before the Court specially under Article 226 of the Constitution of India, the Court has to see as to on what ground employee has been transferred, when such an issue is involved that transfer of a police officer has not been made under the exceptional category curtailing his normal tenure of posting, therefore, I am also not convinced with the contention raised by 17 Writ Petition No.4461/2019 the learned counsel for the respondent No.4. It is for the State to disclose such reason and even in the recommendation made by the Police Establishment Board such reason ought to have been assigned.
14. In view of the above and in consistent view of this Court as has been laid down in the case of Manoj Kumar Singh (supra), Dr. Kripa Shankar Dwivedi (supra) and Sudhakar Baraskar (supra), I am of the view that the order impugned in respect of the transfer of the petitioner is in contravention of the directions of the Apex Court in the case of Prakash Singh (supra) and also in contravention of the Policy framed by the State Government dated 14.02.2007 and as such, the order impugned is not sustainable and is hereby quashed.
At this juncture, the learned counsel for the petitioner has submitted that the petitioner has not handed over the charge and is on sick leave but on the contrary the respondent No.4 has submitted his joining pursuant to the order of his transfer, therefore, in pursuance to the observations made herein above, the respondents are directed to allow the petitioner to perform his duties at his present place of posting, i.e., at Patan, Jabalpur on the post of SDO(P) and order inter-se with respondent No.4, the respondents are therefore, directed to allow the respondent No.4 to work as City Superintendent of Police, AJAK, Jabalpur.
15. The petition is accordingly allowed. Parties shall bear their own costs.
(SANJAY DWIVEDI) JUDGE Priya.P Priyanka Digitally signed by Priyanka Pithawe DN: c=IN, o=High Court of Madhya Pradesh, ou=ALL, postalCode=482002, st=MADHYA PRADESH, Pithawe serialNumber=74e4e39d1c040fc71204b21f2 3bfef429fde37d003f974c3a62be699711217 be, cn=Priyanka Pithawe Date: 2019.04.16 15:34:26 +05'30'