Central Administrative Tribunal - Mumbai
Shekhar Balasaheb Genbhau vs Home Affairs on 4 March, 2024
1 OA No.111/2024 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAI. ORIGINAL APPLICATION No, 111/2024 Dated this Monday, the 04" day of March, 2024 CORAM : JUSTICE SHRI M.G.SEWLIKAR, MEMBER (J) SHRI RAJINDER KASHYAP, MEMBER (A) Shekhar Balasaheb Genbhau, (Son of Shekhar Genbhau Ganpat), Age 59 years, Working as Special .G.P. Nashik Range, Group 'A' post in the office of Director General of Police, Mantralaya (Home), R/at Godavari Sada, Gadkari Chowk, Nashik 422 001. State of Maharashtra, Cell No.9823814717, Email id : bgshekhar1 [email protected]. ~ Applicant (By Advocate Shri R.G. Walia along with Shri Vishwajeet Mobhite) . VERSUS 1. Union of India, through the Secretary, Ministry of Home Affairs, Government of India, North Block, New Delhi 110 001, 2. The State of Maharashtra, Through the Chief Secretary, Mantralaya, Mumbai 400 032. 3. The Additional Chief Secretary, Through Home Department, Mantralaya, Mumbai 400 032. 4, Shri Dattatraya Karale, Joint Commissioner of Police, Office of the Commissioner of Police, Thane District, Thane 400 601. | - Respondents (By Advocates Dr. V.S. Masurkar for official respondents Nos.2 & 3 and Shri R.R.Shetty along with Ms, Divya Shetty for private respondent No.4) Order reserved on 13.02.2024 Order pronounced on 04.03.2024 © 2 OA No.111/2024 ORDER Per: Justice M.G. Sewlikar, Member (J)
With the consent of all the parties, OA is taken up for final hearing at the stage of admission. _
2. Applicant in this OA under section 19 of the Administrative Tribunals Act is challenging his transfer dated 315 J anuary, 2024,
3. Facts in nutshell are that the applicant has been working as Special I.G. Nashik Range. He has four months to retire from service. The applicant was promoted as Special I.G. by order dated 20" April; 2022 and, therefore, his normal tenure will complete in April, 2024. However, applicant came to be transferred by the order dated 31% January, 2024. In the order of transfer, the place where the applicant is transferred is not mentioned. The only remark is that his posting is awaited. He contends that the impugned transfer order is in violation of the judgment of the Hon'ble Supreme in the case of T.S.R. Subramanian & Ors. Vs. Union of India & Ors., AIR 2014 SC
263. It is his contention that the applicant's case was never presented before the Police Establishment Board. The impugned action of the respondents is also in violation of Section 22(N) of the Maharashtra Police Act as applicant's tenure is of two years from the date of his promotion. Nashik is not applicant's Home town nor his Home M6 o) 3 OA No.111/2024 district. There was no reason for respondents to allow him to continue till his superannuation. Till the filing of the OA, the transfer was not given effect to, Therefore, the applicant filed this OA for setting aside the transfer order with a direction to continue the applicant at Nashik till the date of his retirement.
4. Respondent No.4 who is a private respondent filed his affidavit. He contends that the applicant has been transferred but his posting is awaited. This is a normal phenomenon in Government service. He has given instances of two officials S/Shri Bacchan Singh and Sharvan Datt. They are also awaiting their posting. Subsequently, they have been given the posting. He contends that the applicant was first posted at Nashik as DIG Nashik Range by downgrading the post on 23" August, 2021. It was downgraded only for the purpose of accommodating the applicant. On 20% April, 2022 when the applicant was promoted to the post of Special Inspector General, the very same post at Nashik came to be upgraded as per the AIS Cadre Rules. The applicant continued in the same place of posting and place. The applicant has therefore, suppressed the fact that he was first posted at Nashik on 23" August, 2021. The applicant has thus completed 2(two) years and S(five) months in the said post and therefore in terms of Section 22(N) of Maharashtra Police Act, the applicant is liable to 4 OA No.111/2024 be transferred. Respondent No.4 has already taken the charge of the post of Special Inspector General, Nashik Range on 02" February, 2024 at 09.45 am and has also forwarded Charge Taking Report duly signed by him. He contended that transfer order can be challenged only after it is implemented. He, therefore, prayed for dismissal of the OA.
5. Respondents No.2 & 3 filed their reply. The respondents contend that the applicant has been posted as Special Inspector General Motor Vehicle at Pune vide order dated 024 F ebruary, 2024, This order is available on the official website of the Government of Maharashtra. The applicant has been transferred from Nashik to Pune. Respondent No.4 has joined at Nashik. They contend in the reply that vide Circular dated 21% December, 2023 certain instructions have been given as regards Transfers/Postings of Government officers directly connected with the conduct of General Election to Lok Sabha 2024. Consequent to that, Respondent No.4 came to be transferred as SIG Nashik Range and the applicant came to be transferred from the post of SIG, Nashik Range to Pune. This order was issued after giving due weightage to the recommendation of Police Establishment Board and with the approval of the competent authority specified in Section 22(N) of the Maharashtra Police Act. The applicant has completed 2 5 OA No.111/2024 oy years of service at Nashik. The matters relating to transfer/posting of police officers are regulated by Maharashtra Police Act. He, therefore, prays for dismissal of the application.
6. After filing the reply, the applicant amended the application and challenged the order dated 02" April, 2024 whereby the applicant has been posted as Special Inspector General of Police, Motor Transport, Maharashtra State, Pune.
7. Learned counsel for the applicant filed rejoinder but thereafter did not press for the same and, therefore, it is not taken on record.
8. We have heard learned counsel for the applicant and the learned counsel for the respondents Nos.2 & 3 and learned counsel for the respondent No.4. Respondent No.1 is a formal party.
9. Learned counsel for the applicant submitted that the applicant has fixed tenure in terms of Section 22(N) of the Maharashtra Police Act (in short 'Police Act'). In terms of the directions of the Supreme Court in the case of TSR Subramaniam, AIR 2014 SC 263, Police Establishment Board (in short 'PEB') for consideration of eligible candidates for transfer under Section 22(N) of Police Act came to be established. Before transferring the applicant, his case was not referred to PEB. Unless the PEB approves, the transfer cannot be considered to be legal. In terms of Section 22(N) of the Police Act, (6 @ 6 OA No.111/2024 the te tenure of the applicant is two years, the applicant was promoted on 20" April, 2022, therefore, he will complete his tenure of two years only in April, 2024. He contended that though the applicant was posted in Nashik Range in August, 2021, period of two years has to be reckoned from the date he was promoted on 20" April, 2022 and, therefore, the applicant has not completed two years in Nashik District, his transfer, therefore, is illegal. The tenure in terms of Section 22(N) of the Police Act is post based and not station. based, He further submitted that in terms of Section 6(1B) of the Police Act once the Director General and Inspector General of Police is appointed, he shall have a tenure of atleast two years subject to the age of superannuation. He further submitted that "post" has been defined in Section 2(11B) of the Police Act. He submitted that the "post" denotes either to station someone at a place or to assign someone to a post i.e. a position or a job especially one to which a person is appointed. For this purpose, he placed reliance on the case of State of Assam Vs. Ranga Muhammad and others, AIR 1967 SC 903. He further contended that the transfer of the applicant is a mid term transfer. General transfer has been defined as posting a personnel from one post, office or department to another post, office or department in the month of April and May of every year after completion of normal tenure as mentioned in Sub Section 1 of Section 7 OA No.111/2024 Nake, 22(N). Mid term transfer has been defined as a transfer other than general transfer. He contended that the applicant has been transferred on 31" January, 2024. General transfer has to be effected only in the month of April and May. Since the transfer was effected in the month of January, it is a mid term transfer and for mid term transfer, the respondents have to give some reasons to justify the transfer. He contended that merely mentioning the administrative exigency is not sufficient for making mid term transfer. Some reason has to be assigned for making mid term transfer. He further contended that the applicant is due for retirement on 31° May, 2024. As per circular of the Election Commission dated June, 2023, employees who are due for retirement within six months cannot be transferred. He submitted that the respondents have transferred the applicant at the behest of some political leaders.
10. Learned counsel for the applicant further submitted that the transfer order is in clear violation of Section 3(1)(A) of Maharashtra Government Services Regulation of Transfer and Prevention of Delay in Discharging Official Duties Act, 2005 (in short 'the Act'). He contended that in terms of Section 3(1) of the Act for All India Service Officers normal tenure in a post shall be three years and, therefore, the applicant's normal tenure would be three years. He further Say t @) 8 OA No.111/2024 submitted that in terms of Section 5(1) of the Act, the tenure of the Government servant may be extended in exceptional cases when the concerned employee has less than one year for retirement. He contended that even if the tenure of the applicant is considered of two years from 23" August, 2021, his tenure gets extended by this provision by one more year and, therefore, the applicant was entitled to be considered for extension of one year. The record of the applicant has been unblemished, He contended that the applicant was transferred because of the Circular of the Election Commission dated June, 2023. He further contended that the transfer order itself js illegal because it does not mention the place where the applicant has been transferred, it only mentions that the applicant's posting is awaited. He placed reliance on the following cases -
"1. Shri Santosh Macchindra Thite Vs. The State of Maharashtra & Ors., 2019 (4) ALL MR 681.
2, T.S.R. Subramaniam and Others Vs. Union of India and others, (2013) 15 SCC 732.
3. Jyoti Kadam Vs. State of Maharashtra and Others, in Writ Petition No.13638/2016 dated 07.02.2017.
4. Shri Sachin Ashok Patil Vs. The State of Maharashtra & Others in OA No.601/2021 dated 28.09.2021 passed by the Single Bench of this Tribunal.
5. Shreedharan Kallat Vs. Union of India and Others, 1995 SCC (L&S) 960.
6. Ram Swaroop Meena Vs. Union of India & Another in OA No.2533/2012 passed by the Principal Bench of CAT on 22.03.2013.
ol 9 OAN6.111/2024 7 State of Assam Vs. Ranga Muhammad and others, AIR 1967 SC 903.
8. Smt. Dr. Pushpa Mehta Vs. Rajasthan Civil Services Appellate Tribunal and others, 2000 (2) LLN 830.
9, Shri Kiran Vishnu Patil Vs. The State of Maharashtra, in OA No.39/2019 dated 23.09.2019 passed by the Maharashtra Administrative Tribunal, Mumbai.
10. State of Maharashtra Vs. Kiran Vishnu Patil, 2019 SCC Online Bom 9820.
11. Hanuman Sahai Gurjar Vs. Bharat Sanchar Nigam Limited in OA No.167/2019 decided by Jaipur Bench of this Tribunal on 08.05.2019.
11. Learned counsel for the respondent No.4 submitted that the applicant was posted in Nashik District on the post of Deputy Inspector General, Nashik Range by downgrading the post by the order dated 23 August, 2021. He further submitted that the post was again upgraded and the applicant was posted as Special Inspector General by the order dated 20" April, 2022, He submitted that upgradation of post is not the promotion and, therefore, the applicant . cannot contend that his date of promotion be taken as a starting point for computing period of two years in terms of Section 22(N) of the . Police Act. He further submitted that it is not unknown in the department not to give posting to the employee who is transferred. He has given instances of Police Officers who were transferred but their postings were awaited. He contended that only on this ground, the transfer order cannot be said to be illegal. He has cited examples of @ 10 OA No.111/2024 two officers by the name of Shri Bacchan Singh and Shri Sharvan Datt. Though they were transferred, they were not assigned any other post. He contended that the Act is not applicable to the Police Officers under the Maharashtra Police Act. Proviso of Section 3 of the Act clearly excludes the IPS Officers from the operation of the Act. He contended that even if it is accepted for the sake of argument that the Act is applicable to the Police Officers, the tenure of the Police Officers shall be regulated in accordance with the Section 22(N) of the Police Act. For a Government servant for regulating this tenure of two years cannot be made applicable. The applicant has been transferred possibly because of the election process, the protection offered by the Election Commission of India to an officer cannot create an actionable right in favour of the applicant to seek interference in the order of transfer. The said protection is meant for an officer who belongs to a cadre which has several posts in the same District and not to an officer in the rank of Special IG which is a single post covering the Districts of Nashik (Rural), Ahmednagar, Jalgaon, Dhule and Nandurbar. The tenure of the Police Officers was originally fixed for three years, it has been reduced to two years in consonance with the law laid down by the Supreme Court in the case of Prakash Singh and Others Vs. Union of India and Others, 2006 (8) SCC 1. The transfer order can be challenged only after the officer 14 OA No.111/2024 joins the duty at the transferred place. The applicant has not joined at the transferred place. He placed reliance on the following cases :
"1. Public Services Tribunal Bar Association Vs. State of U.P. And Another, (2003) 4 SCC 104.
2. Prakash Singh and Others Vs. Union of India and others, (2006) 8 SCC 1.
3. State Bank of India Vs. Anjan Sanyal and Others, . (2001) 5 SCC 508. |
4. State of UP and Others Vs. Gobardhan Lal with D.B.Singh Vs. D.K.Shukla and Others, (2004) 11 SCC 40?,
5. Kendriya Vidyalaya Sangathan Vs. Damodar Prasad _ Pandey and Others, (2004) 12 SCC 299,
6. S.C.Saxena Vs. Union of India and others, (2006) 9 SCC 583.
7. The State of Maharashtra Vs. Vinay Mohan Lal & others, in Writ Petition (Lodging) No.1636/2005 dated . 04.07.2005 (Bombay High Court)."
12. Learned counsel for the respondent No.4 submitted that in terms of Section 22(N)(1)(a) of Maharashtra Police Act, the tenure of a Government servant has to be of two years. The applicant was posted as Deputy General Inspector of Police, Nashik Range by order dated 23 Aueust, 2021. Therefore, on the date of transfer ie. 31° J anuary, 2024, the applicant had completed two years and four months at one place of posting i.e. Nashik City. He contended that the Act is not applicable to the transfer of Police Officers. He contended that the @ 2 OA No.111/2024 applicant has made representation. Once the representation is made, the applicant cannot file OA within a period of six months. The applicant has concealed the fact that he was posted in August, 2021 and, therefore, he is not coming with clean hands, He contended that simply because posting is not given to the applicant, it cannot be said that a transfer order is illegal. Several transfer orders of this nature have been passed. Therefore, the transfer cannot said to be illegal on this ground alone. The applicant has alleged malice against the Competent Authority. However, the Competent Authority has not been made a party. Since the applicant has completed two years at Nashik, the respondents were within their right to transfer the applicant.
13. We have given thoughtful consideration to the submissions made by the learned counsel for the applicant and to the learned counsel for the respondents,
14. It is the contention of the learned counsel for the applicant that the transfer order is in violation of the provisions of the Act. Reliance was placed on Section 3 of the Act, it reads thus:-
"3. (1) For All India Service Officers and all Groups A, B and C State Government Servants or employees, the normal tenure in a post shall be three years -
Provided that, when such employee is from the non- secretariat services, in Group C, such employee shall be 13 OA No.111/2024 transferred from the post held, on his completion of two full fenures at that office or department, to another office or Department :
Provided further that, when such employee belongs to secretariat services, such employee shali not be continued in the same post for more than three years and shall not be continued in the same Department for more than two consecutive tenures.
(2) Employees in Group D shall normally not be subjected to fixed tenure. They shall not be transferred out from the station where they are serving except on request when a clear vacancy exists at the station where posting is sought, or on mutual transfer, or when a substantiated complaint of serious nature is received against them."
15. Section 3 states that for All India Services Officers and for all Group A, B and C, State Government servants or employees in normal tenure in a post shall be three years. Reliance was also placed on Section 5 of the Act which states that an employee who is due to retire in less than a year, his tenure as mentioned in Section 3 can be extended.
16. Learned counsels for the respondents submitted that this Act does not apply to employees of the Police Force constituted under Section 3 of the Police Act including Indian Police Service Officers of the Maharashtra Cadre. For dealing with these submissions, we deem it appropriate to quote Section 1 Sub Section (iii). It reads thus:
(iii) It shall apply to all Government servants in the State services including the All India Service Officers of the Maharashtra Cadre :
Provided that, Chapter IT shall not apply to the employees 14 OA No.111/2024 appointed on non-transferable posts in isolated cadres [employees on the Police Force constituted under section 3 of the Maharashtra Police Act including the Indian Police Service Officers of the Maharashtra cadre] and to the employees under the administrative control of the Judiciary."
17. This Section, thus, says that the Act Shall apply to all government servants in the State services including the All India Service Officers of the Maharashtra cadre. Proviso states that Chapter Il shall not apply to employees appointed on non-transferable post in isolated cadres. Employees on the Police Force constituted under Section 3 of the Maharashtra Police Act including the Indian Police Service Officers of the Maharashtra Cadre. The words "employees on the Police Force constituted under Section 3 of the Maharashtra . Police Act including the Indian Police Service Officers of the Maharashtra Cadre" have been inserted by Maharashtra 16 of 2014. These words extracted above clearly indicate that it shall not apply to Indian Police Service Officers of Maharashtra Cadre. Sub Section (f) of Section 2 make this position more clear. Sub Section (f) defines "Government servant" means a Government servant or employee as defined in rule 2 (b) of the Maharashtra Civil Services (Conduct) Rules, 1979, and shall include the All India Service Officers and employees (other than the judicial officers) under the administrative control of the Judiciary [but does not include the employees in the Police Force constituted under section 3 of the Maharashtra Police Act 45 OA No,111/2024 and the Indian Police Service Officers of the Maharashtra Cadre so far as the application of the provisions of Chapter II are concerned].
18. This definition completely excludes the employees in the Police Force constituted under Section 3 of the Police Act and in the Indian Police Service Officers of the Maharashtra Cadre, Undisputedly, the applicant is a member of Indian Police Service Officers of the Maharashtra Cadre. In terms of Sub Section (f) of the Act, the Indian Police Service Officers of the Maharashtra Cadre are excluded from. the ambit of the definition Government Servant. Therefore, the provisions of the Act so far as Chapter II is concerned shall not apply to the Indian Police Service Officers of the Maharashtra Cadre. Chapter II deals with tenure of posting, transfer and Transferring | Authority. Sections 3 to 7 are included in Chapter II. Therefore, the submission of the learned counsel that the normal tenure of a government servant shall be three years cannot be made applicable to the applicant as the provisions of the Act do not apply to the applicant who is Member of Indian Police Service Officers of the Maharashtra Cadre. Therefore, the authorities relied upon by him in the case of Shri Santosh Macchindra Thite Vs. The State of Maharashtra & Ors. and in the case of Jyoti Kadam Vs. State of Maharashtra and Others are not applicable to the facts of the case at hand.
19. years of service at Nashik Range. In terms of Section 22(N) of the Police Act, his tenure is two years at one place of posting. Section The contention of the applicant is that he has not completed two 22(N)(1) reads thus:
20. superannuation indicate that on promotion his tenure shall be counted from the date of his promotion. According to him, the tenure in terms of Section 22(N)(1)(a) is a post based tenure and not station based tenure. In the case of Ranga Muhammad (supra), Supreme Court "S.22(N)(1) Police officers in the Police Force shali have a normal tenure of two years on one post or office subject to the promotion or superannuation:
(a). for Police Personnel of and above the rank of Deputy Superintendent of Police or Assistant Commissioner of Police a normal tenure shail be of two years at one place of posting."
It is the contention that the words subject to the promotion on has held thus :-
"9, In its ordinary dictionary meaning the word 'to post' may denote either (a) to station some one at a place, or (b) to assign someone to a post, 1.e. a position or a Job, especially one to which a person is appointed. See Webster's New Word Dictionary (1962). The dispute in this case has arisen because the State Government applies the first of the two meanings and the High Court the second. In Art. 233 the word 'posting' clearly bears the second meaning. This word occurs in association with the words 'appointment! and 'Promotion' and takes its colour from them.
These words indicate the stage when a person first gets a position or job and 'posting' by association means the assignment of an appointee or promotee to a position in the cadre of district Judges. That a special meaning may be given to a word because of the collocation of words in which it figures, is a well- recognised canon of construction. Maxwell ("On Interpretation of Statutes" 11th Edn. p. 321 and the following pages) gives 16 OA No.111/2024 FD?
() 17 OA No.111/2024humerous examples of the application of this principle, from which one may be given here. The words places of public resort' assume a very different meaning when coupled with 'roads and streets' from that which the same words would have if they were coupled with 'houses'. In the same way the word 'posting' cannot be understood in the sense of 'transfer' when the idea of appointment and promotion is involved in the combination. In fact this meaning is quite out of place because 'transfer' operates at a stage beyond appointment and promotion. If 'Posting' was intended to mean 'transfer' the draftsman would have hardly chosen to place it between "appointment" and "promotion" and could have easily used the word 'transfer' itself. It follows, therefore, that under Art. 233, the Governor is only concerned with the appointment, promotion and posting to the cadre of district Judges but not with the transfer of district Judges already appointed or promoted and posted to the cadre. The latter is obviously a matter of control of district Judges which is vested in the High Court. This meaning of the word 'posting' is made all the more clear when one reads the provisions of Arts. 234 and
235. By the first of these articles the question of appointment is considered separately but by the second of these articles posting and promotion of persons belonging to the judicial service of the State and holding any post inferior to the post of a district Judge is also vested in the High Court. The word 'post' used twice in the article clearly means the position or job and not the station or place and 'posting' must obviously mean the assignment to a position or job and not placing in-charge of a station or Court. The association of words in Art. 235 is much clearer but as the word 'posting' in the earlier article deals with the same subject- matter, it was most certainly used in the same sense and this conclusion is thus quite apparent."
21. We do not find any substance in his contention. In this decision of Supreme Court, the observations have been made while interpreting Article 233 and 235 of the Constitution. In the case at hand, we are concerned with the interpretation of words one place of posting. These words mean a particular town or city where an employee is posted. It does not include transfers within the same station because that is an arrangement of the administration. There are two judgments 18 OA No.111/2024 of Bombay High Court on this issue. In the case of Ashok Vs. State of Maharashtra, it has been held that in the case of transfers at the Same station or in the same office such internal transfer in the same office or within the same Headquarter should not be treated as transfer in anormal meaning. In Writ Petition No.5320/2018 decided on 224 December, 2018, it has been held thus :
"16. For one more Feason, we are not inclined to interfere with the impugned order. Admittedly, the petitioner had been serving at Aurangabad since 2008 to the date of his transfer ie. 31° May, 2017. The petitioner, thus, had been serving at Aurangabad for little over eight years. For constabulary, a normal tenure is of five years at one place of posting. The term "place of posting"
has not been defined in the Act. True, if the terms "place" and "post" defined in the Act are taken in conjunction and interpreted with reference to the term "General Transfer", it may cover the transfer from one post, office or Department to another post, office or Department at same Station. If such an interpretation is resorted to, it may lead to absurd results, as has happened in the case in hand. The petitioner was first transferred to Aurangabad (Rural) Police Force in the year 2008. In 2014, he was promoted as Head Constable in the very office. On his request, he was transferred to the Traffic branch, Aurangabad in June, 2016. With reference to the aforesaid interpretation, the petitioner wanted to contend that his five year tenure envisaged under Section 22N( I)(b) would commence from the day he joined his duties with the Traffic Branch in June, 2016, meaning thereby, he would have become due for transfer in June, 2021. If the submission advanced by the learned counsel for the petitioner is accepted, it would stymie desire of other police personnel serving in Moffusil, to come to the district headquarters on transfer. The place of posting has, therefore, to mean that a particular town or city, whereat an incumbent is posted irrespective of the fact of he having served with very many branches of the same department at various places in the Same town or city.
17. The Division Bench of this Court in the case of Shri Rajendra Shankar Kalal Vs. The State of Maharashtra and others (Writ Petition No.8898 of 2010, decided on 36"
a, Sant Bh, 19 OA No,111/2024 oa py tenia Sr sy MS Seen November, 20] 0), observed that in case of transfers at the same Station or in the same office, the Court has already held that such internal transfers within the same office or at the same Headquarter should not be treated as transfers in the normal meaning and these are only internal postings for convenience of the Administration. What has been guaranteed to a Government officer is a minimum tenure at a particular station/ Headquarter, The Court has suggested to the State Government to examine the issue of amending the Act."
22. In another case in State of Maharashtra Vs. Anuradha Subhash Dhumal, Writ Petition No.9984 & Others of 2019 (Bombay High Court) same decision has been rendered. Para 13 & 14 of the said judgment is quoted hereunder for facility of reference :
"13. As can be seen from the extract of section 22N supra, sub- section (1)(b) of the 1951 Act ordains that for the police constabulary, which includes constables, a normal tenure shall] be five years at one place of posting (emphasis supplied).
"General Transfer", in section 2(6A), emphasizes posting of police personnel in the Police Force from One post, office or Department to another post, office or Department after completion of normal tenure as mentioned in sub-section (1) of section 22N (emphasis supplied). Such provisions, as of necessity, need to be juxtaposed with the relevant provisions of the 2005 Act, viz. sections (3)(1) and (4)(1), and read to gather the legislative intent. So read, what was intended by the legislature by the words "at one place of posting"
would clearly be evident. Section 3(1) of the 2005 Act ordains that for all groups of State Government servants or employees, viz. Groups A, B, C and D, the normal tenure in a post (emphasis supplied) shall be three years, with section 2(g) defining "post" as "the job or seat of duty to which a Government servant is assigned or posted". While in the 2005 Act the legislature has used the words "in a post", i.e., the job assigned or the seat of duty, Significantly, while incorporating amendments in the 1951 Act, the expression used is "at one place of posting". Such expression, quite obviously, was used to carve out a 20 OA No.111/2024 distinction between police personnel serving under a Police Commissionerate, which necessarily would exercise jurisdiction over a specified "place" as defined in section 2(8), and those who are posted beyond a Police Commissionerate area but is part of the State Police Force. While, ordinarily, the place of employment of a police constable attached to a Police Commissionerate is not likely to change even with change of posting, a change of posting for a member of the State Police Force could entail a change of place of posting. The expression "place of posting", therefore, assumes importance in the present context. The legislature while amending the 1951 Act and incorporating amendment in section 22N therein in 2015 has designedly not ordained normal tenure of five years on one post bearing in mind police personnel attached to Police Commnissionerate area. Therefore, the distinction between normal tenure of five years at one place of posting [as in section 22N(1)(b)] and the normal tenure in a post shall be three years as in section 3(1) of the 2005 Act has to be borne in mind, which leaves no manner of doubt that the original applicants do not have semblance of any right to claim that once posted at the Crime Branch, they cannot be moved or shifted until they complete the normal tenure of five years. "Post" has been defined in section 2 (11B) of the 1951 Act. Such definition is not similar to the definition of "post" in the 2005 Act. Thus, posting of the original applicants at the Crime Branch is neither a job assigned nor a seat of duty so as to provide a protective umbrella from transfer prior to the normal tenure. Had the constables like the original petitioners been governed by an enactment having similar provisions such as the 2005 Act, the legal position would have been different and they could claim protection from transfer. Notably, the jurisdiction of the Police Commissionerate, Pune, extends to the whole of the city of Pune, which would be the "place" of "posting" referred to in section 22N(1)(b) of the 195] Act. Therefore, so long as a police constable is not shifted out of Pune, he cannot derive any assistance from section 22N(1)(b) to contend that if he is posted on a particular seat of duty or a job is assigned to him, he cannot be transferred. However, we may not be misunderstood to have laid down the law by our interpretative exercise of the relevant -- statutory Fest e, Fi Z iA Fa et 3 Sa twee 21 OA No.111/2024 arty Bona, ra) = provision that a member of the police constabulary could be made to discharge duties from different posts in the city of Pune by subjecting him to frequent transfers. If a constable is so subjected, any alleged arbitrary decision resulting in frequent transfers could be made the subject matter of challenge on available grounds of judicial review.
14. Our interpretation of section 22N(1)(b) of the 1951 Act accords with the co-ordinate Bench decision of this Court reported in 2019 (3) Mh.L.J. 851 [Ashok S/o Rangnath Barde Vs. State of Maharashtra & Ors.], decided by the Aurangabad Bench. It has been held there as follows: -
"16. *** The place of posting has, therefore, to mean that a particular town or city, whereat an incumbent is posted irrespective of the fact of he having served with very many branches of the same department at various places in the same town or city."
23. From these two judgments, it is clear that when a transfer is ot the same station or in the same office whether on promotion or not shall not be treated as transfer. The place of posting, therefore, must mean the particular town or city where at incumbent is posted irrespective of the fact of he having served with vary many branches of the same department and various places in the same town or City. In the case of Ashok (supra) also, he was promoted as a Constable in the very office.
24. In this view of the matter, the submission of the learned counsel cannot be countenanced.
25. Learned counsel for the applicant further submitted that as per Section 22(N), Police Officers in the police force shall have a normal] (e 22 OA No.111/2024 tenure of two years in terms of Section 22(N)(1)(a). We have quoted Section 22(N)(1). He contended that the words "Police Officers in the Police Force shall have a normal tenure of two years subject to the promotion or superannuation". He submitted that the words subject to the promotion or superannuation clearly indicate that the Police Officers will get two years of tenure from the date of promotion. We cannot accept the interpretation which learned counsel is trying to place. It nowhere indicates that on getting promotion, the Police Officer will get a fresh tenure of two years from the date of promotion. According to us, the interpretation of these words is to the effect that in case of promotion, the Police Officers tenure can be "= Ae curtailed and {can be transferred from the present posting before completion of two years' tenure. If the interpretation placed by the learned counsel for the applicant is accepted, it will lead to absurd results. For instance, if an officer gets promotion at the end of tenure of two years, he will get fresh tenure of two years. If he gets another promotion in between then he will get another period of two years, which means he can be at one station for more than six to eight years. This certainly cannot be the intention of the legislature. Therefore, the contention of the learned counsel cannot be accepted.
26. Learned counsels for the respondents submitted that the post was initially downgraded and the applicant was posted as Deputy 23 OA. No.111/2024 Inspector General on 23" August, 2021. The posts were subsequently upgraded and the applicant was posted as Special Inspector General. Upgradation cannot be called a promotion. We cannot subscribe to his argument. From his argument, it reveals that initially the post was of Special Inspector General. Since the applicant was holding the rank of Deputy Inspector General and the post was also downgraded to the post of Deputy Inspector General, he would not have exercised the powers of Special Inspector General. Once the applicant was promoted at the level of Special Inspector General, the post . downgraded to the Deputy Inspector General level was again upgraded and the applicant was posted as Special Inspector General Nashik Zone. Therefore, for the applicant, it was promotion. © Therefore, it cannot be said that it was an upgradation and not promotion. Reliance was also placed on Section 6(1)(b) of the Police Act. Section 6(1)(b) states that once appointed, the Director General and Inspector General of Police shall have minimum tenure of atleast two years subject to his age of superannuation. This provision is not meant for Special Inspector General but it is for Director General and Inspector General of Police, who is head of Police Force (HOPF), 'Section 6(1) states that the State Government shall appoint a Director General and Inspector General of Police. Section 6(1){a) states that the Director General and Inspector General of Police shall be selected
--., 24 OA No.111/2024 by the State Government from amongst the four senior most Police Officers from the cadre. Section 6(1)(b) states that once appointed the Director General and Inspector General of Police shall have minimum tenure of atleast two years subject to his age of superannuation. This clearly indicates that Section 6(1)(a) and 6(1)(b) deals only with Director General and Inspector General of Police. It does not deal with Special or Deputy General of Police. Therefore, this submission of the learned counsel for the applicant cannot be accepted.
27. Learned counsel for the respondent No.4, Shri Shetty placed reliance on the case of Prakash Singh (supra) contending that the period of two years in Section 22(N) has been put in terms of -- judgment of Supreme Court in the case of Prakash Singh (supra).
28. Learned counsel for the applicant submitted that the applicant had been transferred without giving any posting. He submitted that the mala fides of the respondents are writ large. He contended that the applicant was transferred in accordance with the instructions of Election Commission contained in the letter dated 23" December, 2023. He contended that when the respondents realized that the Election Commission guidelines cannot be of any help as those guidelines clearly indicate that the officers who is retiring shall not be disturbed, the respondents have come up with the theory of completion of tenure in terms of Section 22(N). The Election 25 OA No.111/2024
(vi) states that any officer, who is due to retire within the coming six months will be exempted from the purview of the Commission's directions mentioned in para 3. The six months period shall be reckoned backwards from 30" June, 2023. Further, officer falling in. the category (home district/3 years+ criteria and due to retire within 6 months) if holding an election related post mentioned in para 5, shall. be relieved of that charge and not be associated with any election related duty. It is, however, reiterated that such retiring officer need not be transferred out of the district. Para 3 states that no officer connected directly with elections shall be allowed to continue in the " present district (revenue district) of posting, if she/he is posted in her/his own District, (ii) if she/he has completed three years in District during last four years or would be completing three years on or before 30" June, 2024. While calculating the period of three years, promotion to a post within the District is to be counted. He submitted that later on, the respondents changed their stand and took a different stand that the applicant has completed two years of tenure in the present posting and, therefore, he is transferred.
29. Learned counsel for the respondents contended that the applicant have completed two years of service and, therefore, he was transferred.
26 OA No.111/202430. Record was called to find out the reasons for transfer. Before that, we would like to quote the reply of respondent No.4 and respondents Nos.2 and 3 in para 8, 9, 10, following averments are made:
"8. The Respondent herein also submit that the Maharashtra Police Act as amended, a copy whereof is enclosed herewith and Annexure R-8. in Section 22(N) specifies that the tenure hay to be 2 years at one place of posting. In the present case, the Applicant has continued to be posted in the same place since 23.08.2021 and therefore he has completed more than 2 years, thereby making him liable to be shifted out. The Private Respondent further submits that the issue in question is one of transfer which is an incidence of service and therefore does not warrant any interference especially in the light of the fact that the same is clearly covered by not only the Maharashtra Police Act but also the Transfer Act of 2015.
9. The Respondent herein submits that the tenure which was originally fixed for 3 years has since come to be reduced to 2 Supreme Court in the case of Union of India vs. Prakash Singh, (2006)8 SCC 1, which was not interfered with in Prakash Sing Versus Union of India (2019) 4 SCC 6, copies of both are enclosed herewith and marked as Annexure R-9-colly, The said judgment when read with the Hon'ble Supreme Court rulings in the case of State Bank of India vs. Anjan Saniyal (2001) 5 sce Page 508, a copy whereof is enclosed herewith and marked as Annexure R-10, for its true meaning and effect, shows that there is no illegality in the Transfer Order,
10. The Respondent is also relying on the judgment of the Hon'ble Supreme Court in the case of State of U.P VS.
Gobardhan Lal, (2004) i1 Scc 402, read with the Apex Court ruling in the case of Kendriya Vidyalay Sanghathan ys. Damodar Prasad Pandey, (2004) 12 scc Page 299, Copies of both the judgments are enclosed herewith and marked as Annexure R-11 and R-12, for its true meaning and effect."
31. These averments in para 8 and 9 clearly show that the applicant was transferred in accordance with the Circular dated 21% December, 27 OA No.111/2024 aS, 2023. Averments in para 9 clearly show that pursuant to the instructions of the Election Commission, the Home Department of Government of Maharashtra transferred the applicant from the post of Special Inspector General of Police Nashik Range and appointed in his place as Respondent No.4. Thus, it is clear that the transfer is effected on account of instructions contained letter dated 21° December, 2023.
32. The question that falls for consideration is whether the transfer is in violation of the directions contained in the letter of Election Commission of India dated 21 December, 2023. From this letter, the policy of Election Commission appears to be that officers directly connected with conduct of elections in a election going State/UT shall not be posted in their home districts or places where they have served for considerably long period. Para 3 of this letter reads thus :-
"3. Hence, the Commission has decided that no officer connected directly with elections shall be allowed to continue in the present district (revenue district) of posting :-
(1) if she/he is posted in her/his home district.
(ii) if she/he has completed three years in that district during last four(4) years or would be completing 3 years on or before 30" June, 2024.
While calculating the period of three years, promotion to a post within the district is to be counted."
33. From this para, it is clear that no officer connected directly with elections shall be allowed to continue in the present district (revenue 28 OA No.111/2024 district) of posting, if he is posted in his home district or if he has completed three years in that district during last four years or would be completing three years on or before 30" June, 2024. While calculating the period of three years, promotion to a post within the district is to be counted. Our attention was drawn to para 6(vi) by the learned counsel for the applicant to contend that the applicant is due for retirement within the next six months and, therefore, he is exempted from the purview of the Commission's direction mentioned in para 3. Para 6(vi) reads thus :-
"6(vi). Any officer, who is due to retire within the coming six months will be exempted from the purview of the Commission's directions mentioned in para 3. The six months period shall be reckoned backwards from 30% June, 2023. F urther, officer falling in the category (home district/3 years+ criteria and due to . retire within 6 months) if holding an election related post mentioned in para 5, shall be relieved of that charge and not be associated with any election related duty. It is, however, reiterated that such retiring officer need not be transferred out of the district."
34. From this clause, it is clear that any officer who is due to retire within the coming six months will be exempted from the purview of Commission's directions mentioned in para-3. Six months period has to be reckoned backwards from 30" June, 2023. So according to this provision, six months period has to be reckoned backwards from 30% June, 2023 which means the starting date will be 01° January, 2023, From 01" January, 2023, the officer due for retirement within six 29 OA No.111/2024 months is exempted from the purview of the Commission's directions. This clearly indicates that the officers retiring during the period from 01% January, 2023 till 30% June, 2023 shall be exempted from the direction of Commission in para 3 (supra). The applicant is not retiring on 30" June, 2023, therefore, he gets excluded from the . purview of Clause (vi) of para 6 of the Commission's guidelines, Therefore, there is no violation so far as clause (vi) of para 6 of Election Commission's guidelines are concerned. Both the learned counsels for the respondents contended that the applicant has been transferred on administrative grounds also. They contended that the applicant completed two years of service in Nashik Range. He was posted in Nashik Range on 23" August, 2021. Thus, he completed two years on 22" August, 2021. Therefore, he is out of the purview of the Commission's direction in para 6(vi) (supra). As indicated earlier, respondents Nos.2 and 3 have raised both the grounds in their reply. However, the record does not show that the applicant was transferred on account of instructions/guidelines of the Election Commission. The record shows that the applicant's name along with others was referred to PEB. PEB's recommendations show that applicant was transferred because of tenure completion.
35. However, the respondents have violated the instructions /guidelines contained in para 3 of the letter dated 21 December, 2023 30 OA No.111/2024 of the Election Commission. Para 3 of these guidelines in no uncertain terms state that no officer connected directly with the elections shall be allowed to continue in the present district of posting if he is posted in his home district, if he has completed three years in that district during last four years or would be completing three years on or before 39% June, 2024. The applicant will] complete three years on 22™° August, 2024. Thus, he is not completing three years before 30" June, 2024. Therefore, the applicant was not liable to be transferred as he is not completing three years on 30% June, 2024. He is retiring on 31* May, 2024. Therefore, the applicant has been transferred in violation of the guidelines 3 contained in the communication dated 215 December, 2023 of the Election Commission. It is not the case of the respondents that they wanted an officer who would be available for the entire period of elections. Though they have taken a ground of transfer of the applicant in accordance with the guidelines of Election Commission, the argument advanced were that the applicant was transferred purely on administrative grounds in view of Section 22(N) of the Police Act. At the cost of repetition, we say that the recommendations of PEB do not show that the transfer was on account of guidelines of the Election Commission, Though the record shows that the applicant was transferred on administrative grounds, reply of the respondents shows ( @ 34 OA No.111/2024 that the Elections Commission's guidelines were also followed. Reply of respondents show that they have followed the guidelines of Election Commission. While transferring the applicant, they have violated the guidelines of Election Commission as indicated above. The directions issued by the Election Commission require strict adherence. Supreme Court in the case of Election Commission of India Vs. All India Anna Dravida Mannetra Khazagam, 1994 Supp (2) SCC 689 held that the directions issued by the Election Commission require strict adherence.
36. Learned counsel for the respondents Dr. Masurkar vehemently placed reliance on the case of N.K.Singh Vs. Union of India and others, (1994) 6 SCC 98 for the proposition that interference is justified only in cases of mala fides or infraction of any professed norm or principle. He also.placed reliance on the case of S.C.Saxena Vs. Union of India and Others, (2006) 9 SCC 583, In this Supreme Court decision, it has been held that a Government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a Court to ventilate his grievances. ° It is his duty to first report for work where he is transferred and make a representation. It has been further held that such tendency of not reporting at the place of posting and indulging in litigation needs to be curbed. This authority is of no use for the respondents because the transfer order @ 32 OA No.111/2024 does not show the place where he is transferred. The transfer order shows that his posting is awaited. Therefore, there was no question of his joining at the new place of posting and then make a representation. He further submitted that against the order of transfer, applicant made the representation on 21" December, 2023. He should have waited for six months and then should have approached this Tribunal in terms of Section 20 of the Administrative Tribunals Act, 1985. This submission does not have any force because it was not a representation against the transfer. He had only written a letter to the Director General mentioning therein that he was due for retirement and, therefore, he should not be transferred and this letter is of 21* December, 2023 i.e. much before the transfer order was issued. Therefore, this decision of the Supreme Court has no application to the facts of the case in hand.
37. Learned counsel for the respondent No.4 Shri Shetty placed reliance on the State of Bihar Vs. Lal Krishna Advani and others, (2003) 8 SCC 361 for the proposition that if any allegation is made against a party then that party has to be made the respondents. Another judgment in the case of Sant Ram Sharma Vs. State of Rajasthan and others, 1967 SCC Online SC 16, it is held that it is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular 3 OA No.111/2024 jas) point, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. He contended that the Election Commission's guidelines cannot supersede the provisions of Maharashtra Police Act. This argument cannot be accepted. This argument would have held some water if respondents had not relied on the direction of the Election Commission. Once they follow the guidelines, they cannot take a plea that these guidelines are not binding.
38. Learned counsel for the applicant contended that the transfer of the applicant is a mid term transfer. In terms of Section 6(a) of the Police Act transfer is defined as posting of a Police personnel in the Police Force from one post, office or department to another post, office or department in the month of April and May of every year after completion of normal tenure as mentioned in Sub Section (1) of Section 22(N). Mid term transfer is defined as a transfer of a police personnel in the Police Force other than the general transfer. In the case at hand, the transfer was effected on 31% January, 2024 which means it is not a general transfer. When mid term transfer is effected as per the judgment of the Bombay High Court in the case of Sachin Ashok Patil Vs. State of Maharashtra, Writ Petition No.5614/2021 decided on 20° September, 2021 while effecting mid term transfer, reasons have to be given.
® 34 OA No.111/202439. SS eamed counsel for the applicant placed reliance on the case of Sachin Ashok Patil (supra) in which it is observed thus:-
"10. As has been observed by us above, perusal of the relevant file does not establish that the Police Establishment Board did at all peruse any of the complaints leading to formation of a subjective satisfaction that the mid-term transfer of the petitioner on the ground that there are allegations of corruption against him is warranted. On the contrary, what we find is that several police officers were considered for transfer and the Police Establishment Board had recorded "administrative reasons" as the cause for such transfers. Indeed, if a police officer is subjected to a 'General Transfer', assigning "administrative reasons" as the cause for such transfer would suffice. However, once an officer is being subjected to a 'Mid-term Transfer', there ought to be at least one reason of the nature referred to in the proviso to sub-section (1) of Section 22N or any of those in sub-section (2) thereof, other than "administrative reasons", for recommending his transfer; or else, the purpose of the statute providing a normal tenure would be defeated merely on the ipse dixit of the Board that an officer should be transferred 'mid-term'. There cannot be a rolled-up consideration of all officers due for 'General Transfer' and those being subjected to a 'Mid-term Transfer', as has been done in the present case."
40. In terms of these observations of the Bombay High Court, it is clear that cause for transfer has to be given to transfer the employee/Government servant if the transfer is a mid term transfer. In the case at hand, the proposal for the transfer of the applicant was referred to Police Establishment Board which shows that the Police Establishment Board had recommended the transfer of the applicant but it does not show that any reason has been given for the transfer of the applicant. In the remarks column, it is simply mentioned "tenure complete". This shows that the respondents are treating the transfer as general transfer. But in our opinion, it is a mid term transfer. It was 35 OA No.111/2024 General should take action in accordance with the orders of Maharashtra Administrative Tribunal/Model Code of Conduct/Letter of Election Commission dated 21' December, 2023. We do not find any substance in this argument. This is not the cause for transfer, but it is direction to Director General to make compliance of those orders/directions. There is no provision which indicate that once the tenure is completed, the Police Officer can be transferred any time thereafter and it will not be regarded as mid term transfer. Therefore, even if, it is assumed for the sake of argument that the Election Commission's recommendation are not binding the respondents cannot succeed.
41. Learned counsel for the respondent No.4 placed reliance on the case of E.P-Royappa Vs. State of Tamil Nadu and Another, (1974) 4 SCC 3 for the proposition that the burden of establishing mala fides is very heavy on the person who alleges it. Reliance was placed by him in the case of N.Mani Vs. Sangeetha Theatre and Others, (2004) 12 SCC 278 in which it is held that it is well settled that if an authority has a power under the law merely because while exercising that power, the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can 36 OA No. 111/2024 be traced to a source available in law. For the same proposition, he has cited the judgment in the case of Ram Sunder Ram Vs. Union of India and others, (2007) 13 SCC 255.
42. Learned counsel for the applicant placed reliance on the case of State of Maharashtra Vs. Kiran Vishnu Patil, 2019 SCC Online Bom 9820, in which it is held in para 3 and 4, thus:-
"3. The Respondent being in the cadre of Assistant Commissioner of Police, falls in Section 22N(a) of the Maharashtra Police Act, which provides that the ACP shall have normal tenure .of two years at one posting. The Respondent was posted as ACP at Turbhe on 3" January 2017. On 25" January 2018, Respondent was transferred from ACP. Turbhe to ACP, Control Room under Navi Mumbai Commissionerate. This order was challenged by the Respondent before MAT by filing Original Application No.136 of 2018. During the pendency of this OA, the Respondent was transferred by the order dated 25" January 2019 from ACP Control Room, Navi Mumbai Commissionerate to Mumbai Commissionerate.
4, In terms of the provisions of section 22N(a) of the Maharashtra Police Act, the Respondent was entitled to complete tenure of two years at one place of posting. The impugned order of the transfer is in breach of the provisions of the said section. Having considered the rival submissions and having gone through record and proceeding, we do not find any reason to interfere with the impugned order. The MAT has considered the relevant provisions and came to the conclusion that the Respondent was transferred mid-term without there being any reason in support of the same. The writ petition is without any merit and the same is accordingly dismissed."
43. This judgment is of no assistance to the applicant for the reason that the respondents in that judgment of Bombay High Court was transferred from Navi Mumbai Commissionerate to Mumbai Commissionerate. In the case at hand, this is not the fact situation, the 37 OA No.111/2024 applicant has not been transferred from one Commissionerate to another Commissionerate. He was Deputy Inspector General at Nashik Range and he was promoted as Special Inspector General, Nashik Range. Therefore, this cannot be considered as a transfer.
44. The learned counsel for the applicant placed reliance on the authorities to indicate that the employees were protected as they were due for retirement. He contended that the applicant is also due for retirement and, therefore, solely on this reason also, the applicant can be protected. We do not find any substance in this argument. In all those authorities, there was a provision that in case of employees who were due for retirement, they shall not be transferred. Therefore, this submission has no force.
45. It was argued that the applicant has suppressed the fact that he was transferred on 25™ August, 2021 as Deputy Inspector General. Thus, he concealed the fact and thereafter, he was promoted as Special Inspector General, This is a material fact which dis-entitles the applicant to claim any relief. It is true that one who claims equity must to equity and must come to the Court with clean hands. The question is whether this suppression has any bearing on the ultimate conclusion of this OA. The respondents-contention is that the transfer is in terms of the guidelines issued by the Election Commission of India. However, these guidelines have been violated. The record 38 OA No.111/2024 shows that even Chief Election Commission was not consulted. The letter dated 21 December, 2023 states that for every transfer, election commission will have to be consulted. Therefore, suppression of this fact has no bearing on the outcome of the OA. Every suppression does not non-suit the party. Only that suppression which has bearing on the outcome of the Proceeding can be called suppression of the material fact.
46. In the case at hand, the applicant is succeeding on account of the defence raised by the respondents in their written statement contending that the transfer was pursuant to the order passed by the directions of the Election Commission.
47, In this view of the matter, we do not think that this suppression has any bearing on the outcome of the OA. In this view of the matter, OA is allowed and the transfer order of the applicant dated 315 January, 2024 is set aside. Transfer of respondent No.4 to Nashik Range is set aside. Applicant be reinstated as Special Inspector General, Nashik Range. Record be returned to the respondents No.2 and 3 forthwith. No costs.
(Rajinder Kashyap) (Justice M.G.Sewlikar) Member (Administrative) Member (Judicial) kmg* paw"