Gujarat High Court
Haroon vs Director on 17 February, 2011
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/2277/2010 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2277 of 2010
In
SPECIAL
CIVIL APPLICATION No. 3739 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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HAROON
YUSUFBHAI KADIWALA - Appellant(s)
Versus
DIRECTOR
GENERAL OF POLICE & 1 - Respondent(s)
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Appearance :
MR
MUKUL SINHA for Appellant(s) : 1,
MRS. MANISHA LAVKUMAR SHAH AGP
for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B. PARDIWALA
Date
: 17/02/2011
ORAL
JUDGMENT
(Per : HONOURABLE MR JUSTICE J.B. PARDIWALA ) Heard learned counsels for the respective parties. Matter is taken up for final disposal forthwith.
2. The present appeal has been preferred challenging the judgment and order passed by the learned Single Judge dated 10.08.2010 whereby the petition of the petitioner came to be dismissed under the following factual background.
3. The appellant-original petitioner was serving as an Unarmed Head Constable at Khatodara Police Station, Surat. He came to be transferred vide order dated 23.03.2010 passed by the Police Commissioner, Surat City to Sabarkantha District and was placed at the disposal of Superintendent of Police, Sabarkantha, Himmatnagar. Aggrieved by the said order of transfer, appellant-original petitioner challenged the same by filing Special Civil application No.3739 of 2010. Before the learned Single Judge, the principal contention canvassed by the learned counsel for the petitioner was that posts of Head Constable/Constable are in District Cadre and the Superintendent of Police or Deputy Commissioner of a District is the appointing authority under Rule 70 of the Police Manual. Therefore, a Head Constable/Constable cannot be transferred from one District to another District. The second contention before the learned Single Judge was that the order of transfer is punitive in nature for legitimate association activities of the petitioner. It was also submitted before the learned Single Judge that the order of transfer is nothing, but a colourable exercise of power, and has nothing to do with the administrative exigency. Learned Single Judge considered all the above referred contentions, and ultimately dismissed the petition holding that prima facie no case of malafides and prejudice have been made out and the Court would not go into the question of sufficiency of reasons for transferring the petitioner in public interest.
4. Learned counsel for the appellant-petitioner has put forward a principal contention that the appellant-petitioner could not have been transferred as it is in violation of the Rules and Regulations governing the transfer of police officers. It is pertinent to note at this stage that on 06.10.2010 an order came to be passed wherein State Government was allowed two weeks time to file affidavit and to state whether the cadre of Head Constable/Constable is a District Cadre, and if transferred to other District, whether the petitioner will retain his seniority in his parent Cadre. An affidavit-in-reply has been filed by the Additional Director General of Police, Gujarat State, wherein it is clarified that any police officer, more particularly, Head Constable/Constable would retain his seniority and other eligible advantages of his original district cadre in case he is transferred to another district. It has also been stated that in view of Sec.28(1) of the Bombay Police Act, either the State Government or Inspector General of Police (now designated as the Director General of Police), can place the services of any police officer serving in the police force in any part of the State. Reliance has also been placed on Rule 153(1)(a) of the Gujarat Police Manual, 1975 (Part-I) which provides that Inspector General of Police (now Director General of Police) may transfer members of the police force, of and below the rank of Police Inspectors, from one place to another in the State.
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 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."
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, inter-district 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 sub-clause (a) reads as under:
"153.
Ordinary transfers of Police Officers, men and Ministerial staff. - Transfers may be effected as follows:-
"(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 Sub-Inspectors 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 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.
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 appellant-petitioner 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 appellant-petitioner 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 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 Rule 152, which provides for inter-district 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.
(S.J. MUKHOPADHAYA, C.J.) (J.B. PARDIWALA, J.) [sn devu] pps Top