Gujarat High Court
Haroon vs Director on 10 August, 2010
Author: A.L.Dave
Bench: A.L.Dave
Gujarat High Court Case Information System
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SCA/3739/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3739 of 2010
=========================================================
HAROON
YUSUFBHAI KADIWALA - Petitioner(s)
Versus
DIRECTOR
GENERAL OF POLICE & 1 - Respondent(s)
=========================================================
Appearance
:
MR
MUKIL SINHA for MR SUBRAMANIAM IYER
for
Petitioner(s) : 1,
MR NIRAG PATHAK AGP for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE A.L.DAVE
Date
: 10/08/2010
ORAL ORDER
The petitioner, who was working as an Unarmed Head Constable, at Khatodara Police Station of Surat, has been transferred by order dated 23.3.2010 to Sabarkantha District and is placed at the disposal of Superintendent of Police, Sabarkantha, at Himmatnagar. Aggrieved by the said order, the petitioner has approached this Court with this petition making the following prayers :-
(A) That the Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ or order declaring that the impugned order dated 23.3.2010 is illegal and ultra-vires to the powers of the authority amounting to victimization, improper and violative of Articles 14 and 16 of the Constitution of India and further be pleased to quash and set aside the same.
(B) Pending admission and final disposal of this petition, the Hon'ble Court be pleased to stay further operation of the impugned transfer order and direct the authorities to re-transfer the petitioner in the original place at Khatodara Police Station.
(C) Any other relief deemed fit to meet the ends of justice may be granted.
2. The petition is based on the ground that employee upto the level of Constable cannot be transferred outside the District; that the transfer is punitive action for legitimate association activities of the petitioner; that the transfer order is passed in colourable exercise of power; and that the transfer order would cause prejudice to the petitioner's interest and, therefore, the same may be quashed and set aside.
3. Heard learned advocate Mr Sinha for the petitioner and learned AGP Mr Pathak for the respondent.
4. Learned advocate Mr Sinha submitted that inter-district transfer of the petitioner is used as a weapon to punish him for his association activities, since the petitioner is a party to association activities and writ petition. Mr Sinha submitted that ordinarily inter-district transfers are not effected for Constables unless there are emergent circumstances. He has drawn attention of this Court towards paras 152, 153, 154 and 155 of the Police Manual and submitted that the orders are bad and may be quashed and set aside.
5. Learned AGP Mr Pathak has opposed this petition, According to him, the orders are passed by the Director General of Police, who is at the top of the Police Department at State level and resolution dated 17.10.1979 permits such transfers. The transfer order is passed on administrative grounds and, therefore, the petition may not be entertained.
6. In rejoinder, Mr Sinha submitted that if the order is passed on administrative grounds, there is no question of any secrecy and the cause may be made known to the petitioner to enable him to meet with the same.
7. When his attention was drawn to Section 28 of the Bombay Police Act, he submitted that these powers are not to be employed in ordinary course. This is done where a mass of police personnel is to be shifted from one place to another for emergent circumstances.
8. Having examined the case on hand in light of the rival submissions, it may be noted that the petitioner is a Head Constable, who is sought to be transferred from one district to another on administrative grounds. The order impugned is signed by the Police Commissioner, Surat, but is passed pursuant to an order passed by the Director General of Police on 19.3.2010. The order makes it clear that the transfer is effected on public interest.
9. The grounds of challenge mainly are malafides, colourable exercise of power, want of jurisdiction and that employee upto the level of Constable cannot be transferred outside the district ordinarily. If the order is seen, there is nothing to read that it is either punitive or in colourable exercise of power and there may not be any such indication in the order ordinarily.
9.1 So far as the authority or jurisdiction part is concerned, much emphasis is laid on the provisions contained in paragraph 152 of the Bombay Police Manual, which provides that under Section 28(1) of the Bombay Police Act, 1951, the Inspector General of Police is authorised to make, whenever necessary, inter-district transfer of police establishment without reference to the Government. It has, therefore, been canvassed that inter-district transfer otherwise cannot be effected except in exercise of powers under Section 28(1) of the Bombay Police Act and that is to be exercised only in emergent circumstances.
10. If a reference is made to Section 28(1) of the Bombay Police Act, it runs as under :-
28. Police Officer to be deemed to be always on duty and to be liable to employment in any part of the State. -
(1) Every Police Officer not on leave or under suspension shall for all purposes of this Act be deemed to be always on duty, and any Police Officer or any number or body of Police Officers allocated for duty in one part of the State may, if the State Government or the Inspector-General so directs, at any time, be employed on Police duty in any other part of the State may, if the State Government or the Inspector-General so directs, at any time, be employed on Police duty in any other Part of the State for so long as the services of the same may be there required.
11. A plain reading of this Section would make it clear that every Police Officer who is not on leave or under suspension shall be deemed to be on duty for all purposes, and any Police Officer or any number or body of Police Officers allocated for duty in one part of the State may, if the State Government or the Inspector-General so directs, at any time, be employed on Police duty in any other part of the State may, if the State Government or the Inspector-General so directs, at any time, be employed on Police duty in any other Part of the State for so long as the services of the same may be there required.
12. An affidavit-in-reply filed on behalf of respondent No.2 clearly denies allegations of malafides etc.. It is also denied that the order is punitive in nature.
13. It may be noted that though malafides and prejudice are stated as grounds for the petition, the allegations are too general in nature and are not levelled against any individual person. Further the resolutions do authorise Director General of Police to make inter-district transfers of police personnel. This Court will not go into the question of sufficiency of reasons for transferring a man in public interest. That subjective satisfaction is to be arrived at by the authority concerned. The powers under Section 28 of the Bombay Police Act also do not envisage any restriction in exercise of those powers and any police officer can be transferred. Term Police officer under Section 2(11) of the B.P. Act is defined to mean any member of the Police Force appointed or deemed to be appointed under the Act, and would, therefore, include any police personnel including a Head Constable, the rank to which the petitioner belongs.
14. This Court, therefore, would not exercise its extraordinary discretionary writ jurisdiction to interfere with the order of transfer passed in respect of the petitioner.
15. The petition, therefore, must fail and stands dismissed. Notice is discharged.
(A.L. DAVE, J.) zgs/-
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