Rajasthan High Court - Jodhpur
Rajendra Kumar vs State Of Rajasthan (2024:Rj-Jd:40225) on 26 September, 2024
Author: Vinit Kumar Mathur
Bench: Vinit Kumar Mathur
[2024:RJ-JD:40225]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 16041/2024
Rajendra Kumar S/o Pannalal, Aged About 44 Years, Ward
No.06, Samisera Post Chandarwara District Banswara Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Department
Of Home, Government Of Rajasthan, Secretariat, Jaipur.
2. Director General Of Police, Jaipur, Rajasthan
3. Inspector General Of Police, Banswara Range, Banswara,
Rajasthan.
4. Superintendent Of Police, District Banswara, Rajasthan.
5. Superintendent Of Police, District Dungarpur, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Vikram Singh Bhati
For Respondent(s) : Mr. Rituraj Singh Bhati, GC assisted
by Mr. Raj Singh Bhati
HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
Order 26/09/2024
1. Heard learned counsel for the parties.
2. Issue notice.
3. Mr. Rituraj Singh Bhati, learned GC, accepts notice on behalf of the respondents.
4. With the consent of counsel for the parties, the writ petition is being heard and disposed of today itself.
5. Briefly noted the facts in the present writ petition are that the petitioner was appointed on the post of Constable in the respondent-Department. Thereafter, he was promoted to the post of Head Constable. While the petitioner was discharging his duties (Downloaded on 26/09/2024 at 09:13:01 PM) [2024:RJ-JD:40225] (2 of 5) [CW-16041/2024] as Head Constable, a criminal case was filed against him under the Prevention of Corruption Act, 1988 and he was placed under suspension vide order dated 20.08.2024. During pendency of the suspension order, vide another order dated 21.08.2024, the Headquarter of the petitioner was changed from District Banswara to District Dungarpur. Hence, the present writ petition has been filed.
6. Learned counsel for the petitioner submits that the action of changing the Headquarter of the petitioner during the suspension period that too from District Banswara to District Dungarpur will amount to change in his seniority position as the seniority position of the Head-Constable is maintained on the District Level and in the present case, since the petitioner is being posted out of the District from Banswara to Dungarpur, therefore, he will suffer from a loss of seniority while joining at District Dungarpur.
7. Learned counsel further submits that in the identical situation, a Co-ordinate Bench of this Court has decided the controversy in S.B. Civil Writ Petition No.10353/2021 (Subhash Chandra vs. State of Rajasthan) on 03.09.2021 in the following terms:
"(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 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.
(Downloaded on 26/09/2024 at 09:13:01 PM)[2024:RJ-JD:40225] (3 of 5) [CW-16041/2024] (36) Such action of the respondents cannot be countenanced as the Appointing Authority and Disciplinary Authority of an employee cannot be changed without his/her consent.
(37) The transfers made vide order under challenge are, on the one hand, contrary to the statutory provisions and judgments of this Court and on the other hand reflective of non-application of mind.
(38) This court fails to comprehend that if any disciplinary action is to be taken against a transferred Constable/Head-Constable, then, who will be competent authority to initiate the enquiry? Subhash Chandra (petitioner in S.B. Civil Writ Petition No.10353/2021), being a Constable (General Duty), has been transferred from Jaisalmer to G.R.P., Ajmer; his disciplinary authority prior to the impugned transfer was Superintendent of Police, Jaisalmer. May be, as per the stand of the respondents, his seniority will remain as per his seniority in Jaisalmer, but what would happen if the persons junior to him posted in Jaisalmer are promoted, whereas no promotional avenues are available in G.R.P., Ajmer. Will he still be given promotion?
(39) That apart, if due to any delinquency, a disciplinary action is proposed to be taken against the said Constable (Subhash Chandra), whether the Superintendent of Police, Jaisalmer will be the competent authority to initiate the disciplinary proceedings or the Superintendent of Police at Ajmer! (40) There are many more related or ancillary questions attached with such transfer, such as; at which place the service record of the transferred employees will be kept, who will deal with leave applications etc. of the transferred Constable/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.
(41) According to this Court, transfers affected by the impugned order, shunting petitioners even out of range, would entail more complications than serving the cause of administration; let alone, the inconvenience caused to the petitioners.
(Downloaded on 26/09/2024 at 09:13:01 PM)[2024:RJ-JD:40225] (4 of 5) [CW-16041/2024] (42) During the course of submission, learned Additional Advocate General apprised the Court that most of the petitioners are facing cases of anti- corruption and hence, in the interest of better administration, the respondent No.2 has decided to transfer these employees out of their respective range, so that they cannot influence the investigation.
(43) This Court feels that the same cannot be a reason or ground to transfer a Constable/Head- Constable or even an A.S.I. out of his range. Such stand reflects State's lack of confidence in the officers and investigating agencies.
(44) As an outcome of the discussion foregoing, these writ petitions deserve to be, and are hereby allowed. The impugned order dated05.08.2021, qua each of the petitioners, whose names are mentioned in the schedule, including that of Subhash Chandra, is quashed."
8. Learned counsel for the petitioner, therefore, prays that the writ petition may be allowed, the order dated 21.08.2024 (Annex.2) passed by the Inspector General of Police, Banswara Range, Banswara may be quashed and set-aside and the respondents may be directed to post the petitioner at any other place in the District Banswara.
9. Learned counsel for the respondents is not in a position to controvert the submissions made by the counsel for the petitioner.
However, he submits that the respondents may be given liberty to pass a fresh order posting the petitioner within the District Banswara.
10. Considering the submissions made at the Bar and taking note of the judgment rendered by a Co-ordinate Bench of this Court in the case of Subhash Chandra (supra), the writ petition merits acceptance and the same is allowed. The order dated (Downloaded on 26/09/2024 at 09:13:01 PM) [2024:RJ-JD:40225] (5 of 5) [CW-16041/2024] 21.08.2024 (Annex.2) passed by the Inspector General of Police Banswara Range, Banswara is quashed and set-aside with liberty to the respondents to pass a fresh order posting the petitioner within the District of Banswara.
11. The stay petition and other pending misc. applications, if any, stand disposed of accordingly.
(VINIT KUMAR MATHUR),J 63-/Arun Pandey/-
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