Gujarat High Court
Bharatsinh Himmatsinh Champavat & 2 vs State Of Gujarat & 3 on 6 August, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8463/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8463 of 2015
With
SPECIAL CIVIL APPLICATION NO. 8469 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 8489 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowedYes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy ofNo
the judgment ?
4 Whether this case involves a substantial question ofNo
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHARATSINH HIMMATSINH CHAMPAVAT & 21....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR HB CHAMPAVAT, ADVOCATE for the Petitioner(s) No. 1 - 22
MR RJ GOSWAMI, ADVOCATE for the Petitioner(s) No. 1 - 22
GOVERNMENT PLEADER for the Respondent(s) No. 1 - 4
NOTICE SERVED for the Respondent(s) No. 1 - 4
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/08/2015
CAV JUDGMENT
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1. Since the issues involved in all the captioned writapplications are the same those were heard analogously and are being disposed of by this common judgment and order.
2. By these writapplications under Article 226 of the Constitution of India, the petitioners serving as Police Constables seek to challenge the impugned orders dated 24th April, 2015 transferring the petitioners to other districts.
3. All the petitioners are serving as Police Constables. Before the impugned orders came to be passed they all were serving in different Police Stations in the city of Ahmedabad. They are aggrieved by the order of transfer passed by the respondents Nos. 2 and 3, dated 24th April, 2015 outside the district of Ahmedabad.
4. It appears on plain reading of the orders of transfer that the same were passed in the public interest.
5. Mr. Goswami, the learned advocate appearing for the petitioners submitted that the impugned orders of transfer are contrary to the provisions of the Section 28(1) of the Bombay Police Act and rule 152 of the Gujarat Police Manual. He submitted that an officer of the cadre of a constable appointed in one district cannot be Page 2 of 44 HC-NIC Page 2 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT transferred to any other district. The only exception to this rule is the case of emergency wherein more force is needed at the place of transfer to meet with any exigencies. Mr. Goswami further submitted that the law in this regard is well settled in the case of Haroon Yusufbhai Kadiwala V. Director General of Police and another reported in 2011 (3) GLH(UJ)8. Relying on the said decision of this Court rendered by a Division Bench (to which I was a party) he submitted that the transfer of a Head Constable from one district to the other amounts to deputation and can be made only on administrative grounds in cases of emergency.
6. Mr. Goswami submitted that although the orders of transfer do not speak anything further then the public interest yet the reason for passing such orders of transfer is that the petitioners had attended the marriage reception of the son of a noted bootlegger, namely Kishor Sinh @ Langdo Lalsinh Rathod. Therefore, according to Mr. Goswami, the transfer could be termed as punitive in nature which is otherwise not permissible in law.
7. On the other hand, this application has been vehemently opposed by Mr. Rutvij Oza, the learned AGP appearing for the State. He submitted that Page 3 of 44 HC-NIC Page 3 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT the respondents Nos. 1 and 2 committed no error in passing the impugned orders of transfer.
8. Mr. Oza has placed reliance on the affidavit inreply filed by Shri R.J. Savani, D.I.G. at present serving as the Additional Commissioner of Police (Administration) Ahmedabad city. In the affidavitinreply the following averments have been made: "8. I say and submit that it is necessary to draw this Hon'ble Courts attentions on the facts which were considered before passing of transfer order for the petitioners and therefore brief facts are as under:
A. The petitioner had attended the marriage reception on 15.02.2015 of the son of Kishorshingh @ Kishor Langda who is a well known bootlegger. There are in all 23 probibition offences registered against Kishorsinh and other 11 offence are also registered and 18 times PASA orders were passed against him. As per the record of the deponent, Kishorsinh is a 'listed' offender as per the office record as the prohibition offences were registered under the jurisdiction of the Commissionarate of Ahmedabad. Annexed herewith and marked as Annexure R1 (colly) are copies of list of offences registered against Kishorshinh along with the list of PASA orders.
B. In pursuance to the presence of the petitioners at reception of son of Kishorsinh on 15.02.2015, a news article appeared on 18.02.2015 that Police Personal had attended the marriage reception of the son of a proclaimed and 'listed' bootlegger. On the same day Commissioner of Police, Ahmedabad has taken a serious view and immediately ordered an inquiry into the matter. The inquiry was handed over to Deputy Commissioner of Police (zone1), Ahmedabad.
C. Thereafter, Deputy Commissioner of Police, Ahmedabad has submitted preliminary report to the Page 4 of 44 HC-NIC Page 4 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT Commissioner of Police, Ahmedabad. On receipt of such report certain further details were called for and the same were provided and finally on 20.04.2015 the final report came to be filed. After receiving the inquiry reports, the Commissioner of Police, Ahmedabad forwarded confidential report to the Additional Chief Secretary, Home Department, Gujarat State through Director General and Inspector General of Police, Gujarat State on 22.04.2015. In that the Director General of Police, Gujarat State has passed an order of transfers from Ahmedabad and Gandhinagar. The same order was also sent to Commissioner of Police, Ahmedabad for communicating to the petitioner, who are serving under the Commissioner of Police, Ahmedabad. Annexed hereto and marked as Annexure - RII is the copy of order passed by office of the Director General and Inspector General of Police, Gujarat State.
9. I further say and submit that under Section 23 of the Bombay Police Act, 1951, Commissioner or Inspector General of Gujarat State has powers to issue transfer orders, when any subordinate to him is generally found to be neglecting his duties and that the person is not doing his duty within the norms of discipline of the department. Relevant provision of section 23(h) is reproduced herein for ready reference of this Hon'ble Court.
"Generally, for the purpose of rendering the police efficient and preventing abuse or neglect of their duties."
10. I say and submit that the Director General and Inspector General of Gujarat State has powers to transfer in ordinary circumstances as well as has powers to transfer from one place to another in the State. I further produce the relevant abstract of provision viz. Section 154(3)(a) and 154(3)(D) of Gujarat Police Manual, 1975, Volume1 as under for ready reference.
Section 154(3)(a) "No Government servant of the gazetted rank and of the nongazetted rank belonging to the ClassIII executive post/service, should be transferred from one station to another until he has completed five years service at one and the same station or unless his transfer becomes necessary earlier in the following circumstances:
(i) When a Government servant is to be promoted to higher post;
(ii) When a Government servant reverts from a higher Page 5 of 44 HC-NIC Page 5 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT to a lower post and is required to be given a posting; and
(iii) When exigencies of public service so require, and/or as disciplinary measure."
Section 154(3)(d) "No Government servant belonging to classIII executive as well as ministerial post/service or ClassIV should be transferred from one district to another unless such a transfer is considered necessary by the competent authority".
Thus, in view of Section 154(3)(a)(iii), the competent authority has the powers to transfer, when there is an exigency of public service requirement and/or a transfer can also be made as a disciplinary measure. Further, it is stated that it is clear from the above mentioned Section 154(3)(d) that, an officer can be transferred from one district to another if it is considered necessary by the competent authority. And therefore, a combined reading of Section 154(3)(a)(iii) and Section 154(3)
(d) gives sufficient powers to the authority to make inter district transfers, when the necessary circumstances arises as stated above.
11. I respectfully say and submit that the orders of transfers are passed in consonance with the Gujarat Civil Service (Conduct) Rules, 1971 specifically under Rule3(I) (1,2 and 3). The aforesaid Rules have been violated by the petitioners herein and therefore rightly Director General and Inspector General of Police, Gujarat State has ordered the transfer of petitioners. Rule 3 of the Gujarat Civil Services (conduct) Rules, 1971 is produced herewith for ready reference of this Hon'ble Court. Annexed herewith and marked as AnnexureRIII is the copy of abstract from the Gujarat Civil Service (Conduct) Rules, 1971 of Rule
3.
13. I state and submit that Home Department of Gujarat Government has passed Government Resolution BDL/1093/171/SH on 29.07.1993 regarding powers of the Director General of Police, Gujarat State to transfer the officers out side the district. Annexed herewith and marked as AnnexureRIV is the copy of Government Resolution dated 29.07.1993.
14. I respectfully state that the petitioner are relying on decision of this Hon'ble Court passed in Haroon Yusufbhai Kadiwala V/s. Director General of Police and Another reported in 2011(3) GLH (U.J.) 8 Page 6 of 44 HC-NIC Page 6 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT is not applicable to the facts of the present case and also the other decisions passed by this Hon'ble Court which was confirmed by Division Bench of this Hon'ble Court, facts of the aforesaid decisions are all together on a different footing and therefore I request this Hon'ble Court to distinguish the facts of the present case from the facts of the cases cited by the petitioner. I further submit that by order of the transfer of the petitioners does not disturb the seniority of the petitioners and the cadre of the petitioners are also not going to be changed and therefore the decision relied by the petitioners are not applicable in the present case.
15. In the facts and circumstances stated above, the present petition is required to be dismissed."
9. Thus, the plain reading of the affidavitin reply would suggest that the transfers had to be affected as it was found that the petitioners being police constables had attended the wedding reception of the son of a noted bootlegger against whom there are number of criminal cases registered. The stance of the respondents is that with a view to maintain the discipline and efficiency in the police force the transfers had to be affected.
10. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the action of the respondents in transferring the petitioners from Ahmedabad to other districts could be faulted on any grounds.
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11. Before adverting to the rival submissions made on both the sides, it is necessary for me to look into few provisions of law.
12. Sections 23 and 28 of the Bombay Police Act, 1951 reads as under: "23. Framing of rules for administration of the Police. Subject to the orders of the State Government the Commissioner in the case of the Police Force allocated to [****] areas for which he has been appointed and the InspectorGeneral in the case of the Police Force allocated to other areas may make rules or orders not inconsistent with this Act or with any other enactment for the time being in force -
(a) regulating the inspection of the Police Force by his subordinates;
(b) determining the description and quantity of arms, accountrements, clothing and other necessaries to be furnished to the Police;
(c) prescribing the places of residence of members of the Police Force;
(d) for institution, management and regulation of any Police fund for any purpose connected with police administration;
(e) regulating, subject to the provisions of section 17, the distribution, movements and location of the Police;
(f) assigning duties to Police Officers of all ranks and grades, and prescribing
(i) the manner in which, and
(ii) the conditions subject to which, they shall exercise and perform their respective powers and duties;
(g) regulating the collection and communication by the Police of intelligence and information;
(h) generally, for the purpose of rendering the Police efficient and preventing abuse or neglect of their duties."
"28. Police Officer to be deemed to be always on duty and to be liable to employment in any part of Page 8 of 44 HC-NIC Page 8 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT 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 InspectorGeneral so directs, at any time, be employed on Police duty in any other part of the State may, if the State Government or the InspectorGeneral 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.
(2) Intimation of proposed transfers to be given by the Inspector General to the Commissioner and District Magistrate.Timely intimation shall, except in case of extreme urgency, be given to [*****] the District Magistrate by the Inspector General of any proposed transfer under this section and except, where secrecy is necessary the reasons for the transfer shall be explained; whereupon the officers aforesaid and their subordinate shall give all reasonable furtherance to such transfer."
13. Rule 152 of the Gujarat Police Manual, 1975 VolumeI 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 authorized to make, whenever necessary, interdistrict transfers of police establishment without reference to Government.
(2) In accordance with the provisions contained in section 28(2) of the Bombay Police Act, 1951, the Inspector General of Police should, except in cases of extreme urgency give timely initmation to the District Magistrates concerned whenever he proposes to transfer or redistribute the Police disposition obtaining in Districts."
14. Article 154 of the Gujarat Police Manual, 1975 VolumeI reads as under: "154. Instructions regarding transfers. - (1) Frequent transfers cause great personal and domestic inconvenience to Officers and result in considerable cost to Government on account of Page 9 of 44 HC-NIC Page 9 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT traveling allowance, etc. They also dislocate administrative work and render it difficult to fix responsibility in regard to inordinate delays and other lapses in the matter of the discharge of official duties.
(2) The authorities, while submitting proposals to Government/Inspector General/Deputy Inspector General, for postings, transfers, etc., of officers, must scrutinize all such proposals with a view to avoiding frequent transfers, officers being kept at the same station, as far as possible, for at least five years.
(3) The following principles, in general, should be observed while effecting transfers:
(a) No Government servant of the gazetted rank and of the nongazetted rank belonging to the Class III executive post/service, should be transferred from one station to another until he has completed five years service at one and the same station or unless his transfer becomes necessary earlier in the following circumstances:
(i) When a Government servant is to be promoted to a higher post;
(ii) When a Government servant reverts from a higher to a lower post and is required to be given a posting; and
(iii) When exigencies of public service so require, and/or as disciplinary measure.
(b) Even after the completion of five years' service at one and the same station, there would be no objection to his continuing there, if the competent authority so considers on administrative grounds.
(c) No Government servant belonging to Class III ministerial post/service or Class IV should be transferred from one station to another unless his transfer is considered necessary by the competent authority.
(d) No Government servant belonging to Class III executive as well as ministerial post/service or Class IV should be transferred from one district to another unless such a transfer is considered necessary by the competent authority.
(e) Persons should not be posted repeatedly to one and the same district or place i.e. persons who have worked in a particular area should not again be posted Page 10 of 44 HC-NIC Page 10 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT there without a reasonable lapse of time.
(f) If any person proceeds on leave before serving for nearly five years in the same charge, he should normally be reposted in the same charge on return from leave.
(g) Normally large scale transfers should be avoided in the middle of the school term and should be made as far as possible in October or April of the year except under unavoidable circumstances and in exceptional cases.
(h) If after the issue of the transfer orders, a person proceeds on leave, he should be reposted to the same post on expiry of his leave and his vacancy should be filled up by local arrangements.
(i) Transfers should be effected in such a way that they will entail minimum expenditure on travelling allowance and in keeping with administrative requirements.
(j) If a person, who is transferred by the Inspector General, applies for leave, it should not be granted to him without prior permission of the Inspector General of Police. In exceptional cases such as serious illness, etc. such persons may be allowed to remain on leave but a report should be submitted to the Inspector General immediately stating the reasons for granting the leave.
(k) Transfers to and from the Criminal Investigation Department of Officers belows the rank of Sub Inspectors will be arranged between the Deputy Inspector General, Criminal Investigation Department and the Commissioner of Police/Superintendent of Police concerned.
(l) Transfers of Head Constables and Constables between one District or Railway and another, may be effected by mutual agreement between the Commissioner of Police/Superintendents of Police concerned.
(m) In the case of such Head Constables attached to the Police Training School as are borne on the strength of Junagadh District, any changes required will be arranged between the Principal, Police Training School and the Superintendent of Police, Junagadh.
(n) Clerks should be transferred from the office of the Superintendent of Police to those of Sub Divisional Police Officers and the Headquarters in Page 11 of 44 HC-NIC Page 11 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT rotation. If this be not entirely feasible, the 'Daftars' of Clerks should be changed every three years. Cashiers should however be changed, every year.
(4) No transfers of Officers should be made or suggested on account of unsatisfactory work. If an officer is not upto the mark, it is for the Superintendent of Police to set him right and bring him up to the required standard. The correct course would be for the Superintendent of Police to submit proposals through the Deputy Inspector General concerned regarding the reversion of the officer in question, if he is officiating and to hold departmental proceedings for inefficiency if his is permanent.
(5) Applications from the relatives of Policemen or outsiders, requesting Government on their behalf for transfers should discouraged. Superintendents of Police should, however, while ordering the transfers of Constables, give sympathetic consideration to genuine domestic difficulties.
(6) Whenever an application is received from a Government servant requesting for his transfer, the said application should be entered into rigistere to be maintained in all offices in Form No.8 in Appendix I. This register should be put up from time to time before the Competent Authority who should consider the applications entered in such register whenever transfers are being considered."
15. Rule 3(1) of the Gujarat Civil Services (conduct) Rules, 1971 reads as under: "3. General : (1) Every Government servant shall at all times
(i) maintain absolute integrity.
(ii) maintain devotion to duty, and
(iii) do nothing which is unbecoming of a Government servant.
*Explanation : A Government servant, who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of performance expected of him, shall be deemed to be lacking in devotion to duty within the meaning of clause (ii).
Page 12 of 44HC-NIC Page 12 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT * [Inserted vide Govt. Notification GAD No. GS88 72/CDR/1087/U.O. 12/Inq. Cell, dated 2112 1988.]"
16. Section 28 of the Bombay Police Act and Rule 153 of the Gujarat Police Manual, 1975 fell for the consideration of a Division Bench of this Court in the case of Haroon Yusufbhai (supra). The Court explained the same in paragraphs Nos. 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 InspectorGeneral so directs, at any time, be employed on Police duty in any other part of the State may, if the State Government or the InspectorGeneral 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, interdistrict transfers of police establishment without reference to Government.
(2) In accordance with the provisions contained in 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 subclause (a) reads as under:
"153. Ordinary transfers of Police Officers, men and Ministerial staff. Transfers may be effected as follows: Page 13 of 44 HC-NIC Page 13 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT "(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 SubInspectors 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 InspectorGeneral 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 appellantpetitioner 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 appellantpetitioner 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 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 Page 14 of 44 HC-NIC Page 14 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT 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 interdistrict 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."
17. The decision of the Division Bench referred to above was later on considered by a learned Single Judge of this Court in the case of Hadmatsinh Naharsinh Sisodiya v. State of Gujarat reported in 2014 (1) GLH 285, wherein the learned Single Judge observed as under: "23. Honble 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 Honble 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 other ground except for what is provided in Section 28(1) of the Act.
25. In the present case, the transfer of the Page 15 of 44 HC-NIC Page 15 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT 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 inreply 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, 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 Page 16 of 44 HC-NIC Page 16 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT 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."
18. I may now look into some case law on the subject of transfer.
19. The Supreme Court in the case of Union of India and others V. Janardhan Dabanath and another reported in 2004 (4) SCC 245, observed in paragraph No.12: "That brings us to the other question as to whether the use of the expression "undesirable" warranted an enquiry before the transfer. Strong reliance was placed by learned counsel for the respondents on a decision of this Court in Jagdish Mitter v. Union of India (AIR 1964 SC 449, para 21, p. 456) to contend that whenever there is a use of the word "undesirable" it casts a stigma and it cannot be done without holding a regular enquiry. The submission is clearly without substance. The said case relates to use of the expression "undesirable" in an order affecting the continuance in service by way of discharge. The decision has therefore no application to the facts of the present case. The manner, nature Page 17 of 44 HC-NIC Page 17 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT and extent of exercise to be undertaken by Courts/Tribunal in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditionsstatus, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases.Transfers unless they involve any such adverse impact or visits the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration."
20. In Somesh Tiwari V. Union of India, reported in 2009 (2) SCC 592, the Supreme Court observed in paragraph No.16 as under: "16.Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where interalia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal."
21. A Division Bench of the Allahabad High Court speaking through B.S. Chauhan, J. (as his Lordship then was) in the case of Krishna Chandra Dubey Son of Ramraj Dubey V. Union of India, Page 18 of 44 HC-NIC Page 18 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT through Secretary Minstry of Agriculture, reported in 2005 Law Suit (All) 1423, after an exhaustive review of various decisions of the Supreme Court observed as under: "7. The issue of transfer and posting has been considered time and again by the Apex Court and entire law has been settled by catena of decisions. It is entirely upon the competent authority to decide when, where and at what point of time a public servant is to be transferred from his present posting. Transfer is not only an incident but an essential condition of service. It does not affect the conditions of service in any manner. The employee does not have any vested right to be posted at a particular place. (vide B. Varadha Rao v. State of Karnatka and Ors., ; Shipli Bose V. State of Bihar, ; Union of India v. N.P. Thomas,; Union of India v. S.L.Abbas, ; Rajender Roy v. Union of India, ; Ramadhar Panday v. State of U.P. And Ors., 1993 Supp.(3) SCC 35; N.K. Singh v. Union of India and Ors. ; Chief General Meneral Manager (Tel.) N.E. Telecom Circle v. Rajendra Ch. Bhattacharjee,; State of U.P. v. Dr. R.N. Prasad, 1995 (Supp) 2 SCC 151; Union of India and Ors. V. Ganesh Dass Singh, ; Abani Kante Ray v. State of Orissa, 1995 (Supp) 4 SCC 169; Laxmi Narain Mehar v. Union of India, ; State of U.P. V. Ashok Kumar Saxena, ; National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan, ; Pulic Services Tribunal Bar Association v. State of U.P. And Ors. ; State of U.P. V. Siya Ram,; and Union of India v. Janardhan Debanath,.
8. An employee holding a transferable post cannot claim any vested right to work at a particular place as the transfer order does not affect any of his legal rights and the Court cannot interfere with a transfer/posting which is made in public interest or on administrative exigency. In Gujarat Electricity Board v. Atmaram Sungomal Poshani, the Hon'ble Supreme Court has observed as under: "Transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the another is an incident of service. No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to Page 19 of 44 HC-NIC Page 19 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT other is necessary in public interest and efficiency in the public administration."
9. In Union of India v. H.N.Kirtania, the Hon'ble Apex Court observed as under: "Transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless there are strong and pressing grounds rendering the transfer order illegal on the ground of violation of statutory rules or on ground of malafide."
10. In Union of India V. S.L.Abbas (supra), the Apex Court has observed that the Government instructions on transfer are mere guidelines without any statutory force and the Court or Tribunal cannot interfere with the order of transfer unless the said order is alleged to have been passed by malice or where it is made in violation of the statutory provisions.
11. Similar view has been reiterated by the Supreme Court, in Bank of India v. Jagjit Singh Mehta, observing that the terms incorporated in the transfer policy for posting of both the spouses, if in service, at the same place, require to be considered by the authorities "along with exigencies of administration" and "without any detriment to the administrative need and claim of other employees."
12. In State Bank of India v. Anjan Sanyal, , the Apex Court held as under: "4. An order of transfer of an employee is a part of the service conditions and such order of transfer is not required to be interfered with lightly by a court of law in exercise of its discretionary jurisdiction unless the court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities, who issued the order, had not the competence to pass the order.
(Emphasis supplied).
13. In RhonePoulenc (India) Ltd. v. State of U.P.,, the Hon'ble Supreme Court held as under. "the mere fact that after the order of transfer had been issued and when Respondent 3 had failed to report for duty, he was also asked by the Corporate Manager, who was competent to order his transfer, to Page 20 of 44 HC-NIC Page 20 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT join the duties at Kanpur will not validate ' the order of transfer issued by an authority not competent to do so."
14. A relieving order could be passed when certain functional responsibilities are to be carried out by the transferred employee. For example, heading over of the charge, classified documents, registers, commercial documents, cash etc., as the case may be (Vide Raj Bahadur Sharma v. Union of India, ).
15. Thus, it is clear that the transfer policy does not create any legal right in favour of the employee. It is settled law that a writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by an employee that there is a breach of a statutory duty on the part of the employer. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he/ she has a legal right to insist on such performance. The existence of the said right is a condition precedent for invoking the writ jurisdiction. (Vide Calcutta Gas Company (Propriety) Ltd. v. State of West Bengal and Ors., ; Mani Subrat Jain and Ors. v. State of Haryana, ; State of Kerala v. Smt. A. Lakshmi Kutty, ; State of Kerala v. K.G. Madhavan Pillai and Ors., ; Krishan Lal v. State of J & K, ; State Bank of Patiala and Ors. v. S.K. Sharma, ; Rajendra Singh v. State of M.P., ; Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor and Ors., ; Utkal University v. Dr. Nrusingha Charan Sarangi and Ors., ; State of Punjab v. Raghbir Chand Sharma and Anr., ; and Sadhana Lodh v. National Insurance Co. Ltd. and Anr., .
16. In Shilpi Bose (supra), the Apex Court has held that order of transfer/posting "issued by the competent authority did not violate any of her legal right." The employee holding a transferable post cannot claim any vested right for his/her posting at a particular place.
17. In Atmaram Sungomal Poshani (supra), the Apex Court in crystal clear words observed that an employee fails to join at the transferred place, he Page 21 of 44 HC-NIC Page 21 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT exposes himself to the disciplinary proceedings for disobedience of the order. The employee cannot avoid the compliance of the transfer order. In Addisons Paints & Chemicals Ltd. v. Workman, AIR 2001 SC 436, a similar view has been reiterated and it has been held therein that refusal to report for duty upon transfer amounts to misconduct. Even if the transfer order is bad for some reason, the employee must ensure compliance of the order first and then raise the issue with the employer for redressal of his grievance.
18. In State of U.P. Gobardhan Lal, , the Hon'ble Supreme Court held as under: "It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order if transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision." (Emphasis added).
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19. Similar view has been reiterated in Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey, .
20. The transfer order may cause great hardship as an employee would be forced to have a second establishment at a far distant place, education of his children may be adversely affected, may not be able to manage his affairs and to look after his family. This aspect was also considered by the Apex Court in State of M.P. v. S.S. Kaurav, , wherein it has been held that it is not permissible for the Court to go into the relative hardship of the employee. It is for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administration.
21. The issue of "malus animus" was considered in Tara Chand Khatri v. Municipal Corporation of Delhi and Ors., , wherein the Hon'ble Supreme Court has held that the High Court would be justified in refusing to carry on investigation into the allegation of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus.
22. Similarly, in E.P. Royappa v. State of Tamil Nadu and Anr., , the Hon'ble Supreme Court held that a transfer is mala fide when it is made not for professed purpose, such as normal course or in public or administrative interest or in the exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons. The Court further observed as under: "Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it.... The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other, not because of any special status... but because otherwise, functioning effectively would become Page 23 of 44 HC-NIC Page 23 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT difficult in a democracy."
23. The Hon'ble Supreme Court in Sukhwinder Pal Bipan Kumar and Ors. etc. etc. v. State of Punjab and Ors., ; and Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and Ors., has made similar observations.
24. In M. Sankaranarayanan, IAS v. State of Karnataka and Ors., , the Hon'ble Supreme Court observed that the Court may "draw a reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of institution, surmise or conjecture."
25. In N.K. Singh (supra), the Hon'ble Supreme Court has held that "the inference of mala fides should be drawn by reading in between the lines and taking into account the attendant circumstances."
26. In Arvind Dattatraya Dhande v. State of Maharashtra, , the Hon'ble Supreme Court held as under: "In view of the unimpeachable and eloquent testimony of the performance of the duties, it will be obvious that the transfer is not in public interest but is a case of victimisation of an honest officer at the behest of the aggrieved complainants carrying on the business in liquor and toddy. Under these circumstances, as stated earlier, the transfer of the appellant is nothing but mala fide exercise of the power to demoralise honest officer who would efficiently discharge the duties of public office."
27. There has to be very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. (Vide Kiran Gupta and Ors. v. State of U.P. and Ors., ; and Netai Bag and Ors. v. State of W.B. and Ors.).
28. In State of Punjab v. V.K. Khanna and Ors., AIR 2001 SC 343, the Hon'ble Apex Court examined the issue of bias and mala fide, observing as under: Page 24 of 44 HC-NIC Page 24 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT "Whereas fairness is synonymous with reasonableness bias stands included within the attributes and broader purview of the word 'malice' which in common acceptation means and implies 'spite' or 'ill will'. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice.... In almost all legal inquiries, 'intention as distinguished from motive is the allimportant factor' and in common parlance a malicious act stands equated with an intentional act without just cause or excuse."
29. Similar view has been reiterated in Samant and Anr. v. Bombay Stock Exchange and Ors.,.
30. In Dr. Balkrishna Pandey v. State, 1997 Ad 1038 a Division Bench of this Court has held that if an employee is at a station for a long time and the transfer is made administratively only on that ground, it cannot be a case of mala fide.
31. The Hon'ble Supreme Court in Sarvesh Kumar Awasthi v. U.P. Jal Nigam, held as under: "In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration, the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration."
32. Transfer effected as a punitive measure is also not permissible. Whether a transfer is punitive or not is a question of fact, as held by the Hon'ble Supreme Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd., . It was permissible for the Court to go behind the order and find out if it was punitive in nature.
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33. In Gobardhan Lal (supra), the Apex Court held as under: "A challenge to an order of transfer should normally be eschewed and should not be countenanced by the courts or tribunals as though they are Appellate authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that courts or tribunals cannot substitute their own decisions in the matter of transfer for that of competent authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."
(Emphasis added)."
34. Similar view has been reiterated by the Apex Court in State of U.P. v. Siya Ram, .
35. In First Land Acquisition Collector and Ors. v. Nirodhi Prakash Gangoli and Anr., ; and Jasvinder Singh and Ors. v. State of J & K and Ors., , the Apex Court held that burden of proving mala fides is very heavy on the person who alleges it. Mere allegation is not enough. Party making such allegations is under a legal obligation to place the specific materials before the Court to substantiate the said allegations.
36. It is settled legal proposition that in case allegations of mala fide are made against any person he is to be impleaded by name, otherwise the allegations cannot be considered. (Vide State of Bihar and Anr. v. P.P. Sharma, IAS. and Anr., AIR 1992 SC 1260; Dr. J.N. Banavalikar v. Municipal Corporation of Delhi and Anr., AIR 1996 SC 326; All India State Bank Officers Federation and Ors v. Union of India and Ors., ; & I.K. Mishra v. Union of India and Ors., ).
37. In Federation of Rly. Officers Association v. Union of India and Ors., , the Apex Court has held Page 26 of 44 HC-NIC Page 26 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT that the allegation of mala fide has to be specifically made and the person against whom such allegations are made has to be impleaded and in his absence such allegations cannot be taken into consideration.
38. In this case, neither the authority which wanted to accommodate Dr. Dinesh Kumar nor Shri Dinesh Kumar had been impleaded before the Tribunal. Even before this Court, Dr. Dinesh Kumar has been impleaded without leave of the Court. A period of five years has passed but no notice has been issued to him. In view of the above, the allegations of mala fide cannot be considered.
39. In Director of School Education Madras and Ors. v. O. Karuppa Thevan and Anr., 1994 Supp (2) SCC 666, the issue of transfer in mid academic session was considered by the Hon'ble Supreme Court and it was held that "the fact that children of the employee are studying should be given due weight, if the exigencies of the service are not urgent." Therefore, it is for the employer to examine as to whether transfer of an employee can be deferred till the end of the current academic session. The Court has no means to assess as what is the real urgency of administrative exigency.
40. In Suresh Chand Sharma v. Chairman, UPSEB and Ors., 2005 AIR SCW 1133, the Hon'ble Supreme Court deprecated the transfer under political pressure. In Lokesh Kumar v. State, 1998 (1) AWC 27, this Court has held that transfer in colourable exercise of power without administrative exigency only on political or extraneous consideration is liable to be set aside. The transfer of an employee must be made considering the administrative exigency and not at the whim of any administrator/ politician, including the Ministers, for the reason that in such a case transfer order may be passed for extraneous consideration as held by this Court in Director v. Nathi Lal, 1995 (2) UPLBEC 1121. In Pratap Narain Srivastava v. State of U.P. and Ors., 1995 (1) Edu. & Service Cases 509; Pradeep Kumar Agrawal v. Director, (1994) 1 UPLBEC 189; Sheo Kumar Sharma and Ors. v. District Shiksha Adhikari, Kanpur Dehat and Ors., (1991) 1 UPLBEC 690; Smt Gayatri Devi v. State of U.P., 1997 (2) UPLBEC 925, Pradip Kumar v. Director Local Bodies, 1994 (1) UPLBEC 156; Pawan Kumar Srivastava v. U.P. State Electricity Board, 1995 (1) UPLBEC 414; Shiv Kumar Sharma v. Basic Page 27 of 44 HC-NIC Page 27 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT Shiksha Adhikari, 1991 (1) UPLBEC 69; and Goverdhan Lal v. State of U.P. and Ors., 2000 (2) UPLBEC 1356, it has categorically been held that a transfer order passed under influence of any other person cannot be sustained in the eyes of law.
41. In view of the above, the legal position can be summarized that transfer is a condition of service. It does not adversely affect the status or emoluments or seniority of the employee. The employee has no vested right to get a posting at a particular place. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. There is a very little scope of judicial review by the Court/Tribunal against the transfer order and only if it is found to be in contravention of the statutory Rules or for mala fide that the Court can interfere. This is for the reason that a transfer order does not violate any legal right of the employee. Transfer policy of the State does not have any statutory force. It merely provides for guidelines for the understanding of the Departmental personnel. However, transfer order should be passed in public interest or administrative exigency, and not arbitrarily or for extraneous consideration or for victimization of the employee not under political pressure. If a party alleges mala fides, the burden to prove it lies upon him and it is to be proved by taking appropriate pleadings and the person against whom the allegation of mala fides are alleged, should be impleaded by name. The Court must examine the case from all angles to find out whether the order is punitive or not.
42. If a transfer order is passed during the pendency of the disciplinary proceedings, the Court may examine as to whether the order is punitive in nature as it may also be necessary to facilitate the proceedings and as a preventive measure of tampering with the evidence or witnesses.
43. Once a transfer order is passed, the Competent Authority has a right to cancel it or modify it, even after it stood executed. The transfer order must be passed by the Competent authority and employee should be relieved for joining at the transferred place, if it is necessary to relieve him formally. There is no prohibition to post both the spouses at different places, if they are in service, Page 28 of 44 HC-NIC Page 28 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT and cannot be adjusted at the same place or services of one of them is required in administrative exigency at a different place. Same remains the position of midacademic session. The employer may consider and keep this aspect in mind, but he cannot compromise with administrative requirement."
22. In view of the above, the legal position on the issue of transfer can be summarized as under:
1) Transfer is a condition of service.
2) It does not adversely affect the status or emoluments or seniority of the employee.
3) The employee has no vested right to get a posting at a particular place or can choose to serve at a particular place for a particular tenure.
4) It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required.
5) Transfer order should be passed in public interest or considering any administrative exigency, and not arbitrarily or for any extraneous consideration or for victimization of the employee nor it should be passed under Page 29 of 44 HC-NIC Page 29 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT political pressure.
6) There is a very little scope of judicial review by the Court/Tribunal against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or mala fides is established.
7) In case of mala fides, the employee has to make specific averments and should prove the same by adducing implacable evidence.
8) The person against whom allegation of mala fide is alleged is to be impleaded as a party by name.
9) Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Departmental personnel.
10) The Court does not have a power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children as consideration of such issues fall within the exclusive domain of the employer.
11) If the transfer order is made in midacademic session of the children of the employee, the Page 30 of 44 HC-NIC Page 30 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT Court/Tribunal cannot interfere. It is for the employer to consider such a personal grievance.
23. Since I am dealing with a very sensitive issue as regards the integrity and discipline concerning the police force I deem it necessary to look into the code of conduct for the police in India (1960).
"36. The "Police" figure as Entry 2 in State List in the Seventh Schedule of the Constitution, thereby making State Government primarily responsible for maintaining public order. Invariably, police, which is part of the civil administration, is at the forefront in maintaining law and order under the framework of constitutional governance based on principles of "Sovereign Socialist Secular Democratic Republic to secure fundamental right of its citizens. In consonance with the idea of democratic policing, a Code of Conduct for the Police in India was adopted at the Conference of Inspectors General of Police in 1960 and circulated to all the State Government.
Code of Conduct for the Police in India (1960)
1. The police must bear faithful allegiance to the Constitution of India and respect and uphold the rights of the citizens as guaranteed by it.
2. The police are essentially a law enforcing agency. They should not question the propriety or necessity of any duly enacted law. They should enforce the law firmly and impartially, without fear or favor, malice or vindictiveness.
3. The police should recognized and respect the imitations of their powers and functions. They should not usurp or even seem to usurp the functions of the judiciary and sit in judgment on cases. Nor should they avenge individials and punish the guilty.
4. In securing the observance of law or in maintaining order, the police should, as far as practicable, use the methods of persuasion, advice and warning. When the application of force becomes inevitable, only the irreducible minimum of force Page 31 of 44 HC-NIC Page 31 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT required in the circumstances should be used.
5. The prime duty of the police is to prevent crime and disorder and the police must recognize that the test of their efficiency is the absnece of both and not the visible evidence of police action in dealing with them.
6. The police must recognize that they are members of the public, with the only difference that in the interest of the society and on its behalf they are employed to give full time attention to duties, which are normally incumbent on every citizen to perform.
7. The police should realize that the efficient performance of their duties would be dependent on the extent of ready cooperation that they recive from the public. This, in turn, will depend on their ability to secure public approval of their conduct and actions and to earn and retain public respect and confidence. The extent to which they succeeded in obtaining public cooperation will diminish proportionality the necessity of the use of physical force of compulsion in the discharge of their functions.
8. The police should always keep the welfare of the people in mind and be sympathetic and considerate towards them. They should always be ready to offer individual service and friendship and render necessary assistance to all without regard to their wealth and/or social standing.
9. The police should always place duty before self, should maintain calm in the face of danger, scorn or ridicule and should be ready to sacrifice their lives in protecting those of others.
10. The police should always be Courteous and well mannered; they should be dependable and impartial; they should possess dignity and courage; and should cultivate character and the trust of the people.
11. Integrity of the highest order is the fundamental basis of the prestige of the police. Recognizing this, the police must keep their private lives scrupulously clean, develop selfrestrain and be truthful and honest in thought and deed, in both personal and official life, so that the public may regard them as exemplary citizens.
12. The police should recognize that their full utility to the State is best ensured only by maintaining a high standard of discipline, faithful Page 32 of 44 HC-NIC Page 32 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT performance of duties in accordance with law and implicit obedience to the lawful directions of commanding ranks and absolute loyalty to the force and by keeping themselves in the State of constant training and preparedness."
24. The ratio of the Division Bench decision in the case of Haroon Yusuf (supra) makes at least one thing very clear that the inter district transfer of a police constable should be in accordance with Section 28(1) of the Act read with rule 152 of the Police Manual. It appears on close reading of the Division Bench decision that the view taken is that if a police constable is transferred outside the district the same will have to be construed as on deputation. It is in that context that the Division Bench observed that if a police Constable is to be treated as on deputation then the period of deputation should be prescribed and made clear and that the deputation should not be for an indefinite period of time. What is sought to be argued before me is that in any circumstances a police constable cannot be transferred to a different district other then the one where he was appointed except to meet with the exigency at the transferred place and as soon as the emergent administrative exigencies cease to exist at the transfered place, such police constable must be sent back to his parent cadre. Again what is argued before me is that the petitioners were transferred not on Page 33 of 44 HC-NIC Page 33 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT account of any emergent administrative exigencies but by way of punishment since they had attended the wedding reception of the son of a noted bootlegger of the city of Ahmedabad against whom there are 23 offences registered so far under the Prohibition Act.
25. The question which I am posing for my consideration is whether the term "administrative exigencies" should be construed so narrowly that in any event it is not permissible in law to transfer any police constable to any other district other then one where he was appointed.
25. Article 154(3)(iii) of the Manual provides that while effecting transfers the exigencies of public service and/or the disciplinary measures can be taken into consideration. Article 154(3) (D) also provides that a police constable can be transferred from one district to another if the competent authority considers it necessary. I am of the view that the existence of "exigencies of the service at the place of transfer" although is a prerequisite for the exercise of the power yet should not be construed so narrowly so as to defeat the very object of transfer from one place to the other. The formation of such opinion is a matter which, in view of the important nature of the function should primarily be left to the subjective satisfaction of the authority Page 34 of 44 HC-NIC Page 34 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT concerned. The responsibility for good administration and maintenance of law and order is that of the government. The maintenance of an efficient, honest and experienced police service is a must for the due discharge of that responsibility. Therefore, the authority concerned alone is best suited to judge as to the existence of exigencies of such a service, requiring inter district transfer. The term "exigency" being understood in its widest and pragmatic sense as a rule, the court would not judge the propriety or sufficiency of such opinion by objective standards, save where the subjective process of forming it, is vitiated by malafides, dishonesty, extraneous purpose, or transgression of the limits circumscribed by the legislation.
26. Article 154(3)(iii) of the Manual provides that while effecting transfers the exigencies of public service and/or the disciplinary measures can be taken into consideration. Article 154(3) (D) also provides that a police constable can be transferred from one district to another if the competent authority considers it necessary. I am of the view that the existence of "exigencies of the service at the place of transfer" although is a prerequisite for the exercise of the power yet should not be construed so narrowly so as to Page 35 of 44 HC-NIC Page 35 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT defeat the very object of transfer from one place to the other. The formation of such opinion is a matter which, in view of the important nature of the function should primarily be left to the subjective satisfaction of the authority concerned. The responsibility for good administration and maintenance of law and order is that of the government. The maintenance of an efficient, honest and experienced police service is a must for the due discharge of that responsibility. Therefore, the authority concerned alone is best suited to judge as to the existence of exigencies of such a service, requiring inter district transfer. The term "exigency" being understood in its widest and pragmatic sense as a rule, the court would not judge the propriety or sufficiency of such opinion by objective standards, save where the subjective process of forming it, is vitiated by malafides, dishonesty, extraneous purpose, or transgression of the limits circumscribed by the legislation.
27. In the case of Union of India and others vs. Janardhan Debanath and others reported in 2004 (4) SCC 245, the Supreme Court held as follows: "The manner, nature and extent of exercise to be undertaken by Courts/Tribunals in a case to adjudge whether the use of the word "undesirable" casts a Page 36 of 44 HC-NIC Page 36 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT stigma or constitutes a punishment would depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially and same yardstick, norms or standards cannot be applied to all category of cases. Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.
The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of an if the requirement, as submitted by learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for the Supreme Court to direct one way or the other."
28. I may also quote with profit the decision of the Supreme Court in the case of State of U.P. And others v. Gobardhan Lal reported in AIR 2004 SC2165. I may quote the observations made by the Supreme Court in paragraph No.8: "It is too late in the day for any Government servant Page 37 of 44 HC-NIC Page 37 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is shwon to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provisions."
29. In the present case the affidavitinreply of the Additional Commissioner of Police (Administration) makes one thing clear that the petitioners had attended the marriage reception on 15th February, 2015 and a news article in that regard was also published in the various news papers on 18th February, 2015. It appears that the Commissioner of Police, Ahmedabad took a very serious view of the same and very rightly as it tarnished the image of the police department and he ordered an inquiry into the matter. The Page 38 of 44 HC-NIC Page 38 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT inquiry was handed over to the Deputy Commissioner, Police (zone1) Ahmedabad and on the basis of the inquiry reports the Director General of Police, State of Gujarat passed the impugned order of transfers.
30. The object of transfer also appears to be quite clear. Prima facie upon inquiry if it was found that being police constables they had attended the wedding reception then it necessarily implies the close proximity of the police constables with a noted bootlegger. It is but obvious that such police constables should be kept at a distance so that there position is not abused by criminals. Could it be said that the only remedy available with the Director General of Police was to place them under suspension or initiate departmental inquiry against each of the petitioners but in any circumstances they could not have been transferred to another district.
31. I am of the view that such construction will not be in the interest of the administration of the police force even keeping in mind the Division Bench decision of this Court on which strong reliance has been placed. I may clarify one thing since I was a party to the Division Bench decision that what was argued before the Division Bench was that the police constable in Page 39 of 44 HC-NIC Page 39 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT that case could not have been transferred to another district keeping in mind section 28 of the Act and the Gujarat Police Manual. The Division Bench took the view that the petitioner in that case could have been transferred but his transfer could be termed as one on deputation at a particular place and such deputation should not be for an indefinite period. The Division Bench had no occasion to consider any exigencies like the one which I am considering in the present case.
32. At the same time I must put the respondents to guard that what has been observed by me should also not be misused in the sense that if the inter district transfer is otherwise not permissible under the Gujarat Police Manual except if it is found to be necessary then while effecting such inter district transfer the exigencies also should be of that nature.
33. In the case of Hadmatsinh Naharsinh (supra) a learned Single Judge of this Court placing reliance on the Division Bench decision in the case of Haroon Yusuf (supra) took the view that the transfer of the petitioner of that case was on account of the hooch tragedy which had taken place in the city of Ahmedabad and therefore the transfer order could not have been said to have Page 40 of 44 HC-NIC Page 40 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT been passed to meet with any emergent exigencies or in public interest at the place where the petitioner was transferred. The view taken by the learned Single Judge was more or less in the facts of that particular case.
34. It was vehemently argued before me that as in the case of Hadmatsinh (supra), the learned Single Judge took the view that the transfer of the Police Constable on account of the hooch tragedy could not be said to be in the public interest, in the same manner even if it is believed that the petitioners herein had attended the wedding reception of the son of a noted bootlegger then the transfer to the other districts could not be said to be in public interest. In short according to Mr. Goswami, attending the wedding reception has nothing to do with the public interest. Therefore, the word used in the orders of transfer i.e. "public interest" is vague.
35. The expression 'public interest' has not been defined either in any rules or in any statute. It is a wide expression and the question of public interest will have to be determined in the context of the particular order. As has been noted by the Supreme Court in State of Bihar v. Kameshwar Singh, 1952 AIR (SC) 252, the Page 41 of 44 HC-NIC Page 41 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT expression could only be defined by a process of judicial inclusion and exclusion. However, a broad test has been formulated and it is that 'whatever furthers the general interest of the Community, as opposed to the particular interest of the individuals, must be regarded as public purpose. 'In the context of public service it would mean the interest of public as opposed to the personal, political or other extraneous interest. Public interest demands that an officer or an employee posted at a particular post, must inspire confidence, not only among his fellow employees and superior authorities, but also among the members of the public.If a police constable is found to be in company of criminals or persons accused of having committed any offence then his transfer from that place must be held to be in the public interest.
36. 'Public interest' in this context would be justiciable only to this extent that the order should not be based on any extraneous considerations or malafide reasons. The use of the word 'public interest' in a particular order would prima facie be sufficient to raise presumption that the order has been passed in public interest.
37. It is the existence of the circumstances Page 42 of 44 HC-NIC Page 42 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT constituting the public interest which is to be seen by the Court, once the circumstances are shown to have existed, the sufficiency of the circumstance is for the government to decide.
38. Section 28 of the Act should be read harmoniously with Article 152 and 154 of the Gujarat Police Manual, 1975. Article 152 speaks of the inter district transfer in emergencies making reference of section 28(1) of the Act. Whereas Article 154 of the Manual speak of general instructions regarding transfers. I am of the view that Section 28 of the Act empowers the State Government or the Inspector General to employ a police officer allocated for duty in part of the state to any other part of the state so long as the service of the same at the transferred place are required but that does not mean that in no circumstances other than the one mentioned in the section 28 of the Act the police officer cannot be sent to any other part of the state by way of transfer. The Gujarat Police Manual itself takes care so far as the inter district transfers are concerned and makes it very clear that no government servant belonging to class (3) ministerial post/service or class(4) should be transferred from one place to another unless his transfer is considered necessary by the competent authority. The words in Article Page 43 of 44 HC-NIC Page 43 of 44 Created On Fri Aug 07 02:29:00 IST 2015 C/SCA/8463/2015 CAV JUDGMENT 154(3)(D) "unless such a transfer is considered necessary" should not be construed as the necessity of transfer under Section 28 alone.
39. In the over all view of the matter, I have reached to the conclusion that no interference is warranted with the impugned orders of transfer.
40. In the result, all the petitions fail and are hereby rejected. Notice is discharged.
(J.B.PARDIWALA, J.) Manoj Page 44 of 44 HC-NIC Page 44 of 44 Created On Fri Aug 07 02:29:00 IST 2015