Rajasthan High Court - Jodhpur
Ishwar Lal Kharadi vs The State Of Rajasthan ... on 4 January, 2024
Author: Kuldeep Mathur
Bench: Kuldeep Mathur
[2024:RJ-JD:358]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 6568/2023
Ishwar Lal Kharadi S/o Tejaji Kharadi, Aged About 49 Years,
Saroli (Bhuwal), Tehsil Kherwara, District Udaipur.
----Petitioner
Versus
1. The State Of Rajasthan, Through Secretary, Department
Of Home, Govt. Of Rajasthan, Secretariat, Jaipur.
2. Director General Of Police, Headquarter, Rajasthan,
Jaipur.
3. Inspector General Of Police, Udaipur Range, Udaipur.
4. The Superintendent Of Police, Rajsamand.
5. The Superintendent Of Police, Dungarpur.
----Respondents
For Petitioner(s) : Mr. Bharat Shrimali.
For Respondent(s) : Mr. Manish Vyas, AAG.
HON'BLE MR. JUSTICE KULDEEP MATHUR
Order 04/01/2024 Learned counsel for the petitioner at the outset submitted that the present controversy is squarely covered by the order passed by a coordinate Bench of this Court in the case of Balbeer Singh Vs. State of Rajasthan & Ors. & other connected matter (S.B. Civil Writ Petition No.11190/2021), decided on 10.02.2022, which reads as here under:-
"These writ petitions have been filed by the petitioners aggrieved against the order dated 18.12.2020 (Annex.3), whereby, the Headquarter of the petitioners during the period of suspension has been changed from Churu to Sri Ganganagar.
The respondents by order dated 18.12.2020, inter-alia indicating that as it has come to the notice that in most of the cases, the suspended policemen have their Headquarter in the same Range/Unit, (Downloaded on 04/01/2024 at 08:40:29 PM) [2024:RJ-JD:358] (2 of 6) [CW-6568/2023] resulting in an apprehension that they may affect the cases and, therefore, their Headquarters be changed and consequently, the Headquarter of the petitioners has been changed.
Learned counsel for the petitioners made submissions that issue regarding the change of of Headquarter of persons like petitioners, who are Head Constable stands squarely covered by judgment of this Court in Subhash Chandra v. State of Rajasthan & Ors.: S.B. Civil Writ Petition No.10353/2021, decided on 03.09.2021, which order has been upheld by the Division Bench in State of Rajasthan & Ors. v. Surendra Khokhar: D.B. Special Appeal Writ No.610/2021, decided on 29.11.2021.
Learned counsel for the respondents attempted to make submissions that the order in the case of Subhash Chandra (supra), as upheld by the Division Bench, is contrary to the provisions of the Rule. However, it was conceded that the seniority of Head Constable is being maintained at District Level.
A Coordinate Bench of this Court in the case of Subhash Chandra (supra) came to the following conclusion:-
"(35) As the appointing authority of
Constable/Head-Constable is the
Superintendent of Police of the district
concerned, consequent to their transfer under consideration, the Constables and Head- Constables will be required to receive instructions/directions from the Superintendent of Police of the district in which they have been transferred and as a natural corollary of their transfer, their appointing authority, so also the disciplinary authority will be changed.
(36) Such action of the respondents cannot be countenanced as the Appointing (Downloaded on 04/01/2024 at 08:40:29 PM) [2024:RJ-JD:358] (3 of 6) [CW-6568/2023] Authority and Disciplinary Authority of an employee cannot be changed without his/her consent.
(37) The transfers made vide order under challenge are, on the one hand, contrary to the statutory provisions and judgments of this Court and on the other hand reflective of non- application of mind.
(38) This Court fails to comprehend that if any disciplinary action is to be taken against a transferred Constable/Head Constable, then, who will be the competent authority to initiate the enquiry? Subhash Chandra (petitioner in S.B. Civil Writ Petition No.10353/2021), being a Constable (General Duty), has been transferred from Jaisalmer to G.R.P., Ajmer; his disciplinary authority prior to the impugned transfer was Superintendent of Police, Jaisalmer. May be, as per the stand of the respondents, his seniority will remain as per his seniority in Jaisalmer, but what would happen if the persons junior to him posted in Jaisalmer are promoted, whereas no promotional avenues are available in G.R.P., Ajmer. Will he still be given promotion?
(39) That apart, if due to any delinquency, a disciplinary action is proposed to be taken against the said Constable (Subhash Chandra), whether the Superintendent of Police, Jaisalmer will be the competent authority to initiate the disciplinary proceedings or the Superintendent of Police at Ajmer! (40) There are many more related or ancillary questions attached with such transfer, such as; at which place the service record of the transferred employees will be kept, who will deal with leave applications etc. of the transferred Constable/HeadConstables and A.S.Is? The Rules of 1989 are silent in this (Downloaded on 04/01/2024 at 08:40:29 PM) [2024:RJ-JD:358] (4 of 6) [CW-6568/2023] regard. The hiatus, if any, cannot be filled by the administrative orders.
(41) According to this Court, transfers affected by the impugned order, shunting petitioners even out of range, would entail more complications than serving the cause of administration; let alone, the inconvenience caused to the petitioners.
(42) During the course of submission, learned Additional Advocate General apprised the Court that most of the petitioners are facing cases of anti-corruption and hence, in the interest of better administration, the respondent No.2 has decided to transfer these employees out of their respective range, so that they cannot influence the investigation.
(43) This Court feels that the same cannot be a reason or ground to transfer a Constable/Head-Constable or even an A.S.I. out of his range. Such stand reflects State's lack of confidence in the officers and investigating agencies.
(44) As an outcome of the discussion foregoing, these writ petitions deserve to be, and are hereby allowed. The impugned order dated 05.08.2021, qua each of the petitioners, whose names are mentioned in the schedule, including that of Subhash Chandra, is quashed."
The Division Bench, on appeal, came to the conclusion that statutory provisions limit the transfer liability of the Constable and Head Constable within the district and the Assistant Sub Inspector within the Range.
So far as the submissions made by learned counsel for the respondents pertaining to the interpretation of the provisions is concerned, the Coordinate Bench as well as the Division Bench have (Downloaded on 04/01/2024 at 08:40:29 PM) [2024:RJ-JD:358] (5 of 6) [CW-6568/2023] taken into consideration the provisions of Rules and as such, the submissions made in this regard cannot be countenanced.
Further submissions were attempted to be made by learned counsel for the respondents that present is not a case of transfer and the same is only a change of Headquarter and as such, the ratio in the case of Subhash Chandra (supra) would not apply.
A perusal of the judgment of Subhash Chandra (supra) as quoted hereinbefore would reveal that in para No.42 & 43, the Coordinate Bench has dealt with the said aspect and had negated the said submissions, therefore, the said aspect also is no more res integra.
In view of the above discussion, following the judgments in the case of Subhash Chandra (supra) and Surendra Khokhar (supra), the petitions filed by the petitioners are allowed.
The order dated 18.12.2020 (Annex.3) qua the petitioners are quashed and set aside." Per contra, learned AAG Shri Manish Vyas, submitted that the present case is not that of routine transfer. He further submitted that the headquarter of the petitioner has been changed during suspension so as to ensure fair and smooth enquiry against him. Learned AAG submitted that in case the petitioner is allowed to remain posted at the same place, he is likely to influence the material witnesses of the case.
Learned AAG Shri Vyas submitted that since the present case is not a case of transfer, the petitioner is not entitled to the relief prayed for in the present writ petition and the order dated 10.03.2023 passed by the competent authority of the respondent department changing the headquarter of the petitioner from (Downloaded on 04/01/2024 at 08:40:29 PM) [2024:RJ-JD:358] (6 of 6) [CW-6568/2023] Reserve Police Line, Dungarpur to Reserve Police Line, Rajsamand during his suspension, deserves to be upheld by this Court. However, learned AAG was not in a position to refute the fact that the coordinate Bench of this Court while deciding the case of Balbeer Singh (supra) was dealing with the similar situation and the headquarter of the petitioner therein was also changed during his suspension.
Learned counsel frankly conceded that appeal filed by the State against order dated 10.02.2022 passed by the coordinate Bench of this Court in the case of Balbeer Singh (supra) being D.B. Special Appeal (Writ) No.668/2022 (State of Rajasthan & Ors. Vs. Balbeer Singh), was dismissed on 20.07.2022. However, the State thereafter preferred a review petition before the Hon'ble Division Bench being D.B. Review Petition (Writ) No.21/2023, which is pending consideration.
In view of the aforesaid discussion and in the considered opinion of this Court, the judgment passed by the coordinate Bench of this Court in the case of Balbeer Singh (supra), is fully applicable in the present case.
As a cumulative effect of the aforesaid observations, judicial pronouncements and legal propositions, the impugned order dated 10.03.2023 (Annex.2), changing the headquarter of the petitioner from Reserve Police Line Dungarpur to Reserve Police Line, Rajasamand is hereby quashed and set aside.
Resultantly, the present writ petition is allowed.
(KULDEEP MATHUR),J 4-Prashant/-
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