Gujarat High Court
State Of Gujarat & 2 vs Hadamatsinh Naharsinh Sisodiya on 1 July, 2014
Author: V.M.Sahai
Bench: Vijay Manohar Sahai
C/LPA/1400/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1400 of 2013
In SPECIAL CIVIL APPLICATION NO. 12765 of 2010
With
LETTERS PATENT APPEAL NO. 1401 of 2013
In
SPECIAL CIVIL APPLICATION NO. 3553 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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STATE OF GUJARAT & 2....Appellant(s)
Versus
HADAMATSINH NAHARSINH SISODIYA....Respondent(s)
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Appearance:
MS MONALI BHATT, AGP for the Appellant(s) No. 1 - 3
MR P P MAJMUDAR, ADVOCATE, MR MITUL K SHELAT, ADVOCATE along
with MR KAIVAN K PATEL, ADVOCATE for the respective Respondents
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
SAHAI
and
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C/LPA/1400/2013 JUDGMENT
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 01/07/2014
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI)
1. As common questions of fact and law are involved in these appeals, they are heard together and disposed of by way of this common judgment.
2. We have heard Ms.Monali Bhatt, learned Assistant Government Pleader, appearing for the appellants and Mr.P.P. Majmudar, learned advocate, appearing for the respondent in LPA No.1400 of 2013, learned advocate Mr.Mitul K.Shelat along with Mr.Kaivan Patel, learned advocate, appearing for the respondent in LPA No.1401 of 2013.
3. These Letters Patent Appeals have been preferred by the appellants-original respondents challenging the judgment and order dated 31.07.2013 passed by the learned Single Judge of this Court in Special Civil Application No.12765 of 2010 with Special Civil Application No.3553 of 2011.
4. The opponents-original petitioners are constables. They were transferred from Ahmedabad to different places by separate transfer orders. The opponents-original petitioners in compliance of the transfer orders joined the places where they were transferred.
5. Being aggrieved by the transfer orders, the original petitioners preferred the Writ Petitions being Special Civil Application No 12765 of 2010 with Special Civil Application No.3553 of 2011, which were allowed by the learned Single Judge by order dated 31.07.2013.
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6. The findings recorded by the learned Single Judge are extracted below:
"22. The provisions of Section 28 of the Act read with Rule 152 of the Manual came to be considered by Hon'ble Division Bench of this Court in the case of Haroon Yusufbhai Kadiwala Vs. Director General of Police and Anr. reported in 2011 (3) GLH (UJ) 8. Full text of the judgment in the said case is placed on record of Special Civil Application No. 12765 of 2010 with further affidavit filed by the petitioners at page
141. Hon'ble Division Bench in the said case examined legality or otherwise of the order of transfer of police constable made in exercise of the powers under the above said provisions and has held and observed in para 5 to 10 as under:
"5. It would be expedient to quote Sec.28 of the Bombay Police Act, 1951, which reads as under:
"28. Police Officer to be deemed to be always on duty and to be liable to employment in any part of the State.-
(1) Every Police officer not on leave or under suspension shall for all purposes of this Act be deemed to be always on duty, and any Police Officer or any number or body of Police officers allocated for duty in one part of the State may, if the State Government or the Inspector-General so directs, at any time, be employed on Police duty in any other part of the State may, if the State Government or the Inspector-General so directs, at any time, be employed on Police duty in any other part of the State for so long as the services of the same may be there required."
6. We may also reproduce Rule 152 and 153 of the Gujarat Police Manual. Rule 152 reads as under:
"152. Inter District Transfers in emergencies. - (1) Under section 28(1) of the Bombay Police Act, 1951, the Inspector General of Police is authorised to make, whenever necessary, inter-district transfers of police establishment without reference to Government.
(2) In accordance with the provisions contained in Page 3 of 8 C/LPA/1400/2013 JUDGMENT section 28(2) of the Bombay Police Act, 1951, the Inspector General Police should, except in cases of extreme urgency give timely intimation to the District Magistrates concerned whenever he proposes to transfer or redistribute the Police disposition obtaining in Districts." Clause (1) and sub-clause (a) reads as under:
"153. Ordinary transfers of Police Officers, men and Ministerial staff. - Transfers may be effected as follows:-
"(1)(a) The Inspector General may transfer Assistant Commandants, Adjutants and Quarter Master (Deputy Superintendents of Police) from one Group to the other Assistant Public Prosecutors, Ministerial staff and members of the Police force of and below the rank of Police Inspectors, from one place to another in the State; al Inspectors, Assistant Public Prosecutors and Sub-Inspectors to and from Criminal Investigation Department and the Police Training School."
7. On perusal of various provisions of the Gujarat Police Manual and the Bombay Police Act, and more particularly, Cl. (1) of Sec. 28 of the Bombay Police Act which states that every Police officer not on leave or under suspension shall for all purposes of this Act be deemed to be always on duty, and any Police Officer or any number or body of Police officers allocated for duty in one part of the State, may, if the State Government or the Inspector- General so directs, at any time, be employed on Police duty in any other part of the State may, if the State Government or the Inspector-General so directs, at any time, be employed on Police duty in any other part of the State for so long as the services of the same may be there required.
8. A plain reading of the Section itself suggests that the appellant petitioner could have been transferred, but the only aspect which needs to be considered is as to for how long the appellant- petitioner would be kept at that particular place on transfer. We feel that the State Government should in cases like the present one should bear in mind and also clarify as to how long the services of the appellant-petitioner would still be required at the place where he has been transferred so that he may not have to stay at the place of deputation for an indefinite period of time. Secondly, we would also like to clarify that the appellant petitioner's lien in the original parent cadre would also be protected. So far as seniority of the appellant-petitioner is Page 4 of 8 C/LPA/1400/2013 JUDGMENT concerned, it has been well accepted in the Police Manual that the same will not be disturbed.
9. Our attention has also been drawn to Rule 153, more particularly 153(1)(a) where the emphasis has been laid on the words "and members of the Police force of and below the rank of Police Inspectors, from one place to another in the State". Taking into consideration all the relevant provisions of law, we are of the opinion that the transfer of the appellant petitioner as an Unarmed Head Constable originally posted at Khatodara Police Station, Surat to Sabarkantha District and placed at the disposal of Superintendent of Police, Sabarkantha at Himmatnagar, amounts to deputation, because deputation is also a transfer outside the cadre, and in no manner contrary to law or the provisions which have been relied upon.
10. We, therefore, deem it fit and proper to observe that under Rule152, which provides for inter-district transfers in emergencies and the other Rule relating to transfer on the administrative grounds, in case of emergencies, it is desirable that the authorities should clarify as to how long the services of a Head Constable/Constable are required to meet with the exigencies at the transferred place, and as soon as the emergent administrative exigencies cease to exist at the transferred place, they must be sent back to their parent cadre. With these observations, the Letters Patent Appeal is disposed of accordingly with no order as to costs."
23. Hon'ble Division Bench has clearly observed that it is desirable that the authorities should state as to how long services of constable are required to meet with the exigency at the place of transfer and as soon as emergent administrative exigency is over at the place of transfer, they must be sent back to their parent cadre.
24. Therefore, as observed by the Hon'ble Division Bench in context of provisions of Section 28 of the Act read with Rule 152 of the Manual, the competent authority when decided to exercise powers under the above provisions, had to clearly provide as to how long services of the petitioners were required at the place of transfer even if such transfer was made in public interest. The transfer of the petitioners are not ordinary. They are made under Section 28(1) of the Act. Therefore, such transfers could never be on any Page 5 of 8 C/LPA/1400/2013 JUDGMENT other ground except for what is provided in Section 28(1) of the Act.
25. In the present case, the transfer of the petitioners was not to meet with any exigency or in public interest prevailed at transferred place but the same was only on account of hooch tragedy in connection with which the petitioners have been departmentally punished. Such grounds for transfer are not recognized, envisaged or intended by the legislature in the provisions of Section 28 of the Act read with Rule 152 of the Manual. When the transfer of the petitioners are made under statutory provision, even though the public interest demanded or warranted taking of any action against the petitioners, the same would not weigh and permit the concerned authority to defy the statutory provision. Even apart from this, transfer of the petitioners could not have been either for unlimited period or for period of five years at a stretch. This very fact of providing no time limit in order of one of the petitioners and five years in the case of another petitioner would lend support to the case of the petitioners that their transfer was not for any requirement or reasons as provided in Section 28 of the Act.
26. It is required to be noted that in the case of petitioner in Special Civil Application No. 12765 of 2010, punishment of reduction in pay scale was imposed whereas in the case of petitioner in Special Civil Application No.3553 of 2011, punishment of stoppage of increment came to be imposed. Thus, departmental inquiry initiated against the petitioner was concluded and no further inquiry was pending against the petitioner. The respondents instead of stating as to how long services of the petitioners were required at the place of transfer filed affidavit- in-reply stating that the transfers were for five years. Under these circumstances, it clearly appears that the continuation of the petitioner at the place of transfer is without authority of law.
27. Learned Assistant Government Pleader Mr. Raval has relied on the decisions to point out that the transfer of an employee is an incident of service and could be made in public interest and for administrative reasons. However, in none of the cases, the Courts were faced with the question paused for consideration in these petitions. Similarly, Page 6 of 8 C/LPA/1400/2013 JUDGMENT the decision relied on by learned advocate for the petitioners since on different facts situation will have no application to the facts of the case. In the present case, this Court has examined the orders of transfer of the petitioners in context of the provisions of Section 28 of the Act read with Rule 152 of the Manual in exercise of which the respondent authorities have passed impugned orders of transfer of the petitioners. It may be that there were compelling necessity in public interest to pass transfer orders against the petitioners with other police officers. In ordinary transfer in public interest or for administrative reasons, the Court may have limited judicial review. However, the scope of judicial review is widened when the transfer of police constable is made out of district in exercise of powers under Section 28 of the Act read with Rule 152 of the Manual, to examine whether such transfer is meeting the statutory requirement. The Court finds that the transfer orders since not satisfying the statutory provisions, cannot be permitted to be operated any further. Impugned orders of transfer are, therefore, required to be quashed and set aside.
28. For the reasons stated above, petitions are allowed. Impugned orders dated 26.10.2010 and 24.9.2010 are quashed and set aside. It is directed that the the impugned orders shall not operate against the petitioners henceforth. Rule is made absolute accordingly."
7. In view of the Division Bench's judgment of this Court in the case of Haroon Yusufbhai Kadiwala v. Director General of Police and another (supra) , we do not find any illegality in the impugned order passed by the learned Single Judge. The Letters Patent Appeals are devoid of any merits. These appeals fail and are dismissed accordingly. There shall be no order as to costs. Interim relief, if any, stands vacated.
(V.M.SAHAI, J.)
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C/LPA/1400/2013 JUDGMENT
(R.P.DHOLARIA,J.)
Ashish Tripathi
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