Rajasthan High Court - Jodhpur
Kamal Singh vs State Of Rajasthan (2024:Rj-Jd:46732) on 19 November, 2024
[2024:RJ-JD:46732]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 3273/2023
Kamal Singh S/o Bheru Singh, Aged About 49 Years, R/o Village
And Post Mirgeshwar, Ps Bali, District Pali.
----Petitioner
Versus
1. State Of Rajasthan, Through Principal Secretary,
Department Of Home Affairs, Government Of Rajasthan,
Jaipur.
2. Director General Of Police (Headquarter), Jaipur.
3. Inspector General Of Police, Jodhpur Range, Jodhpur.
4. The Superintendent Of Police, Barmer.
----Respondents
For Petitioner(s) : Mr. Hinglaj Dan Charan
For Respondent(s) : Mr. Sandeep Soni
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral) 19/11/2024
1. Petitioner herein seeks quashing of the order dated 14.01.2023 (Annex.-5) vide which the petitioner has been transferred from District Barmer to District Jaisalmer and another order dated 23.02.2023 (Annex.-8) vide which he was relieved from Barmer.
2. Briefly speaking, relevant facts as pleaded in the petition are as follows:-
2.1 The petitioner was appointed as a Constable on 07.12.1994 under the Superintendent of Police, Barmer. In 2017, the petitioner passed the eligibility examination for Head Constable and was promoted to the post.
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[2024:RJ-JD:46732] (2 of 5) [CW-3273/2023] 2.2 His services are governed by the Rajasthan Police Rules, 1989, under which the appointing authority for both Constable and Head Constable posts is the Superintendent of Police at the district level. Seniority for these posts is also maintained on a district basis. In 2022, the petitioner's name appeared in the provisional seniority list at serial no. 146, issued by the Superintendent of Police, Barmer.
2.3 The petitioner was transferred from Police Line Barmer to Choki Gunga (Police Station Shiv), District Barmer, on 06.07.2022, and later transferred to District Jaisalmer by an order dated 14.01.2023. The petitioner objected to this transfer by submitting an application on 28.01.2023, requesting the quashing of the transfer order, but no action has been taken. Thus, this writ petition.
3. Stand taken in the reply filed by the respondents inter alia is that the petitioner was transferred to Jaisalmer District due to administrative exigency, a matter within the department's discretion. The petitioner's seniority will be maintained in accordance with Rule 26 of the Rules of 1989, and no prejudice will be caused. The case of Subhash Chandra v. State of Rajasthan relates to the transfer of a Constable between districts, whereas the petitioner, a Head Constable, has been transferred within the same range.
3.1 Posting decisions are the prerogative of the State Government, and the respondents issued the transfer order without any mala fide intent, purely for better administration, considering local conditions and a humanitarian approach. Hence, the present writ petition lacks merit and should be dismissed. (Downloaded on 26/11/2024 at 09:21:43 PM)
[2024:RJ-JD:46732] (3 of 5) [CW-3273/2023]
4. In the aforesaid backdrop, I have heard the rival contentions and have perused the case file.
5. First and foremost, reference may be had to judgment rendered in Subhash Chandra Vs. State of Rajasthan & Ors.:
S.B. Civil Writ Petition No.10353/2021 by a Coordinate Bench of this Court. Relevant of which, is reproduced hereinbelow:-
"(33) This Court has consistently held that inter-district transfers of Constables and Head-Constables and inter-range transfers of ASI's are contrary to Rule 26 of the Rules of 1989. It will not be out of place to reproduce adjudication made by this Court in the case of Smt. Premlata (supra), which reads thus:-
"A perusal of the said Rules shows that the persons mentioned in column 5 of Sections I, II and IV of the Schedule-I holding substantive rank shall be eligible in the case of Constables on District/Unit, Battalion basis, which means that the concerned Constable shall be promoted as and when his/her turn comes in the district to which he/she has been transferred.
Mr. Jai Singh, Dy. Superintendent of Police, Traffic, Bikaner is present in the Court and confirms the said fact. Thus, this Court fails to understand as to how the petitioner does not stand to suffer, in case she is transferred from Bikaner to Jhunjhunu because, even though, the seniority is maintained from the date of the appointment, she will be promoted only in case the person senior to her in Jhunjhunu has been promoted though his initial appointment is after the date of the initial appointment of the present petitioner. Thus, the transfer order which places the petitioner in disadvantage vis-a-vis for the purpose of promotion cannot be sustained."
(34) Coordinate Benches of this Court have followed the aforesaid view in the cases of Yadram (supra) and Harendra(supra). (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.
xxxxxxxxxxxxxxxx (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 (Downloaded on 26/11/2024 at 09:21:43 PM) [2024:RJ-JD:46732] (4 of 5) [CW-3273/2023] 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/Head-Constables and A.S.Is? The Rules of 1989 are silent in this regard. The hiatus, if any, cannot be filled by the administrative orders."
6. I am in respectful agreement with the above views expressed by the learned Single Judge. In the case in hand, not only there is a blatant violation of Rule 26 of the Rajasthan Police Subordinate Service Rules, 1989, but even otherwise, the above judgment (which has attained finality) is directly applicable herein. Since both Constable and Head Constable are district-level posts, transferring the petitioner to another district violates the district- based seniority system. Such a transfer without the employee's consent is detrimental to seniority and has already been condemned by this Court in the case of Subhash Chandra ibid.
7. Moreover, circular dated 28.12.2020 issued under Rule 26 clearly instructs the officials to pass order in accordance thereof i.e. that a Constable / Head Constable being a District cadre, cannot be transferred out of District assigned to him so as to maintain their seniority.
8. In light thereof, I see no reason why the benefit of the same be not accorded to the petitioner.
9. Accordingly, the petition is allowed. The impugned order dated 14.01.2023 (Annex.-5) changing the district of the petitioner as well as the relieving order dated 23.02.2023 (Annex.-
8) are therefore set aside being not sustainable in law. (Downloaded on 26/11/2024 at 09:21:43 PM)
[2024:RJ-JD:46732] (5 of 5) [CW-3273/2023]
10. However, respondents are at liberty to pass fresh orders in compliance with applicable Rules within the same District where the petitioner / Head Constable is currently serving.
11. Pending application, if any, stands disposed of.
(ARUN MONGA),J 239-DhananjayS/-
Whether fit for reporting: Yes / No
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