Bombay High Court
Assistant Commissioner vs State Of Maharashtra on 24 December, 2013
Bench: S.C.Dharmadhikari, Revati Mohite Dere
{1}
wp10622-13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10622 OF 2013
Rajan Ramchandra Bhogale
Assistant Commissioner
of Police, Wanawadi Division,
Pune .. Petitioner
Versus
1] State of Maharashtra
2] The Commissioner of Police,
Pune Commissionerate, Pune,
3]
Annasaheb Babu Bandgar,
flat No.28, Payal Society,
Opp.Karishma Society,
Erandawane, Pune 411038
Mr.Y.S.Jahagirdar, Senior Advocate with Mr.N.V.Bandivadekar for
petitioner
Mr.A.Y.Sakhare, Senior Advocate with Sagar Kumbhar for respondent
No.3
Mr.Samir Patil, AGP for respondent No.2.
CORAM : S.C.DHARMADHIKARI, &
MRS. REVATI MOHITE DERE, JJ
RESERVED: 5th December 2013
PRONOUNCED: 24th December 2013.
ORAL ORDER (Per Dharmadhikari, J.):-
1] Rule. Respondents waive service. By consent rule made returnable forthwith. Heard parties.
::: Downloaded on - 27/01/2014 23:04:41 :::{2} wp10622-13.doc 2] The petitioner states that on 1st April 1983, he was appointed as Police Sub-Inspector by direct recruitment. He received further promotions. He was promoted as Assistant Commissioner of Police (ACP) and presently working in that post. Third respondent before this court is also an officer working in the same cadre namely ACP.
3] By an order dated 23rd May 2013, the State of Maharashtra effected transfers of about 38 officers working in the cadre of ACP/ Sub-Divisonal Police Officer/ Deputy Superintendent of Police across State of Maharashtra.
4] The petitioner at that time was working as Assistant Commissioner of Police, Traffic Branch and reporting to the Commissioner of Police. One Mr.Vitthal Tikaram Pawar, working as ACP Pune came to be transferred as ACP Thane. Respondent No.3 then working as Sub Divisional Police Officer (SDPO), Karmala came to be transferred as ACP Pune in the post which has fallen vacant due to transfer of Vitthal Pawar. Annexure A is a copy of the order of transfers.
::: Downloaded on - 27/01/2014 23:04:41 :::{3} wp10622-13.doc 5] By order dated 31st May 2013, second respondent relieved the said Vitthal Pawar to enable him to join the place of transfer i.e. ACP Thane City. By the very order and internal transfer the petitioner came to be shifted from the post of Assistant Commissioner of Police, Traffic to the post of Assistant Commissioner of Police, Wanavadi, Pune. The petitioner states that he was relieved from this post of ACP, Traffic and he assumed charge of post of ACP Wanavadi, Pune on 1st July 2013.
On 7th June 2013 third respondent came to be relieved from his post of SDPO Karmala by Additional Superintendent of Police Solapur, Rural to enable him to join the place of transfer as ACP Pune. The respondent No.3 accepted that order, according to the petitioner, and reported to respondent No.2. The respondent No.2 posted the third respondent as ACP, Control Room, Pune City. The petitioner states that no grievance was made by third respondent and he continued to work at the posted place. Reliance is placed upon a further order dated 10th June 2013 which has been issued by the second respondent by way of internal transfer whereunder the third respondent was transferred from the post of ACP, Control Room, Pune city to the post of ACP, Special Branch.
6] It is at this stage and not satisfied with this arrangement that the ::: Downloaded on - 27/01/2014 23:04:41 ::: {4} wp10622-13.doc third respondent filed an Original Application being O.A. 492 of 2013 against respondent Nos. 1 and 2. The petitioner before us was impleaded as respondent No.3. The challenge in this application was to the order, a copy of which is at Annexure B insamuch as the petitioner's posting was put in issue and in the forefront. That is how the third respondent pressed the original application. A copy of the original application is marked as Annexure "E" and a copy of the Government Resolution dated 25th July 2008 on the subject of constitution of the Police Establishment Board is annexed as Annexure "F".
7] The Tribunal, on this application directed filing of replies and accordingly replies were filed and served. There were rejoinder affidavits filed. There was an application made for amendment seeking to incorporate the prayer to allow third respondent to work as ACP Wanawadi Division, Pune.
8] After the pleadings were complete the parties were heard and the tribunal passed the impugned order dated 11th November 2013 under which it set aside the order of transfer in relation to the petitioner as well as respondent No.3 and granted the relief as prayed in para ::: Downloaded on - 27/01/2014 23:04:41 ::: {5} wp10622-13.doc 9(a) of the original application. Petitioner's Advocate sought stay of this order, since he was already working at the posted place for near about seven months. Annexure Q is a copy of that order dated 11th November 2013. However, the stay was refused on the very day.
9] It is the order dated 11th November 2013 which is challenged in this petition under Article 226 of the Constitution of India.
10] Mr.Y.S.Jahagirdar, learned Senior Counsel appearing for petitioner firstly submitted that the Tribunal exceeded its jurisdiction in granting a relief and which had no basis in law. The Tribunal ought to have considered as to whether the application of the third respondent challenging his order of transfer deserves to be allowed or not. It is the basic order of transferring him from Solapur to Pune which could have been at best challenged. The respondent No.3 could not have made any grievance with regard to his posting within Pune City. The tribunal mistook the grievance of posting within the Pune city as transfer and proceeded to pass the impugned order. In doing that the tribunal has ignored the fundamental distinction between a transfer from one station to another and after reporting at that station, internal transfer or posting within that station. The latter aspect is falling within the province of ::: Downloaded on - 27/01/2014 23:04:41 ::: {6} wp10622-13.doc posting of officers who are transferred and that is the sole prerogative of the authority / administrator. In that no interference is permissible.
11] Mr.Jahagirdar submits that the respondent No.3 was aware of the fact that Mr.Vitthal Pawar was transferred from senior ACP, Wanawadi to ACP Thane City. This was the general transfer/ relieving order. Thereafter, there are two internal orders and in one it has been very clearly stated that the petitioner Rajan Bhogale who was then working as ACP, Traffic was transferred from his present posting as ACP Traffic to ACP, Wanawadi. Further, it is evident that the respondent No.3 was relieved on 7th June 2013 as SDPO, Solapur Rural so as to enable him to report for work at the transfer places.
12] The petitioner has also invited the attention of the tribunal to the order passed in relation to the respondent No.3 whereunder he was removed from the ACP Control Room and posted to the post of ACP Special Branch. All these orders have been duly implemented because there was no grievance or protest.
13] Therefore, when the respondent No.3 is not aggrieved by his transfer from Solapur to Pune but his posting within Pune city, then, his ::: Downloaded on - 27/01/2014 23:04:41 ::: {7} wp10622-13.doc grievance should not have been entertained by the tribunal. The tribunal erred in entertaining it and by relying upon the initial orders of 24th May 2013 and the chart annexed thereto. In that chart merely because the transferred place is indicated as a vacant seat or vacant post does not mean that the officer can lay a claim or assert any right to a particular posting after transfer. Once he complies with the transfer order upon unconditionally accepting it, then, where he should be posted is not a matter of his choice, leave alone any right. For all these reasons, the impugned order deserves to be set aside.
14] After noting these arguments of Mr.Jahagirdar, we had passed an order on 20th November 2013 in the following terms:-
"1. We have heard Mr.Jahagirdar, learned Senior Counsel appearing for the Petitioner and Mr.Sakhare, learned Senior Counsel appearing for the contesting Respondent No.3.
2.With their assistance we have perused the order passed by the Maharashtra Administrative Tribunal, copy of which is annexed to this Writ Petition at AnnexureQ page 130.
3.The principal contention of the Petitioner is that there is distinction in law between an order of transfer and an order posting an officer pursuant to the transfer. Later is within the exclusive domain of the administrative head under whom an individual employee who is transferred must work and to whom he must report. In the present case, the Tribunal has interdicted with that authority and power of the administrative head of posting an officer after his transfer and that is how the entire order is vitiated in ::: Downloaded on - 27/01/2014 23:04:41 ::: {8} wp10622-13.doc law.
4. Mr.Sakhare, on the other hand, submits that there is an order whereby the Respondent No.3 (Applicant before the Tribunal) has been posted on the vacant post and that vacant post was held by the earlier officer at particular Police Station and the Respondent No.3 before us can be posted there at.
5. We are afraid that the order of the Tribunal would have serious consequences in law and particularly the authority and power vested in the higher officials to post individual employees and officers working under them at a particular office or police station. The Tribunal's order would amount to holding that even in such matters an employee who may not be aggrieved by the transfer has a vested right and can question his posting in the garb of invoking the provisions of the Maharashtra Regulations of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005.
6. In these circumstances we would highly appreciate if the learned AGP takes instructions from the Respondent No.2 and informs the Court as to how the Respondent No.
2 wants the transferred officers working under him to be posted and whether he has, at any time, agreed to the position that the Respondent No.3 ought to be posted at a particular Police Station, namely, Wanwadi or that it is his power to post each of the officers under him including the Petitioner and the Respondent No.3 at particular police stations or offices which are controlled by him. Let the Respondent No.2 inform us by Friday (22.11.2013). Stand over to 22.11.2013."
15] Pursuant to that order, the Commissioner of Police, Pune filed his affidavit and in that affidavit which has been affirmed by the Joint ::: Downloaded on - 27/01/2014 23:04:41 ::: {9} wp10622-13.doc Commissioner of Police and holding Additional charge of Commissioner of Police Pune, he stated as under:-
"2. I say that in accordance with the observations made by the High Court in the order passed on 20th November 2013, I wish to submit as under:-
(a) The respondent No.3 Shri Annasaheb Babu Bandgar was original posted as Sub-Divisional Police Officer (SDPO) Karmala Division, Solapur Rural, Dist.
Solapur. By order issued by the Home Department, Government of Maharashtra bearing No.RPS-1713/P.K. 183/Pol-1(A) dated 23/5/2013 Shri Annasaheb Babu Bandgar came to be transferred as Assistant Commissioner of Police Pune City, Pune.
(b) Thereafter, by order issued by respondent No. 2 - Commissioner of Police, Pune City bearing No.Est-1/ACP/G.T-13/2013 dated 10/6/2013 Shri Annasaheb Babu Bandgar - Respondent No.3 was posted as Assistant Commissioner of Police, Special Branch, Pune City, Pune. I say that respondent No.2 wants Shri Annasaheb Babu Bandgar - respondent No.3 to continue in the said post as ACP, Special Branch Pune City.
(c) The petitioner Shri Rajan Ramchandra Bhogale is posted as Assistant Commissioner of Plice, Wanwadi Division, Pune City, vide order issued by Respondent No.2 bearing No.Est-1/ACP/G.T-13/2013 dated 31/5/2013. I say that accordingly from 1/6/2013 the petitioner Shri Rajan R. Bhogale is continuously working in the said post and respondent No.2 wants him to continue the said position as it is.
(d) Respondent No.2 has never intended or agreed to the position that the respondent No.3 Shri Annasaheb Babu Bandgar should be posted at any particular police station or at Wanwadi Police Station/ Division.
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(e) I say that in accordance with the provisions of Section 6 of the Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Official Duties Act, 2005 read with the Government Resolution, Home Department, hearing No.RPS-3306/P.K.615/Pol-1A dated 30/4/2007, the Commissioner of Police, Pune City is empowered to make internal postings/ transfers of the officers in the cadre of Assistant Commissioners of Police, Group-A. It is in exercise of the said powers respondent No.2 has issued the aforesaid orders giving posting to the petitioner as ACP, Wanwadi Division, Pune City and to the respondent No.3 as ACP, Special Branch, Pune."
16] It is in that light and after this affidavit that the respondent No.3 chose to place his affidavit and controvert the stand of respondent No.
2. It is his case that respondent No.2 has no power of transfer or to post the officer of the rank of ACP, Group A Vide G.R.dated 30th April 2007. This Resolution was withdrawn by Government by a notification dated 29th March 2011. The power to post the officers within the Commissionerate is only till the rank of police inspector. In the case of posting of a superior officer, it is mandatory to place the matters before the police establishment board and particularly in case of an officer of the rank of ACP. The second respondent never placed these papers of posting or proposals either of the petitioner or the third respondent before this board and consequently there is an illegality committed by ::: Downloaded on - 27/01/2014 23:04:41 ::: {11} wp10622-13.doc him. The third respondent justified filing of O.A. before the tribunal also because the second respondent in his opinion interfered with the order of the Tribunal. In his submission, therefore, the order of tribunal requires no interference in our writ jurisdiction and the petition be dismissed.
17] The Petitioner has filed a rejoinder affidavit dealing with all these statements and submitting that several police inspectors were promoted to the post of ACP and allotted posting to different Commissionerates, including Pune. Therefore, it is apparent that the State only transfers ACP to different commissionerates. Thereafter, the concerned Commissioner gives specific posting to the said ACPs.
That is how in this case as well, the second respondent issued posting order and there was nothing illegal or irregular in the same.
18] It is on this material that we have heard the learned AGP and Mr.Sakhare, learned Senior Counsel opposing the petition.
Mr.Sakhare submits that the first resolution is of the year 2007 and relying upon it makes it evident that by para 6(d) it is clarified that the payscale higher than what is prescribed therein and the officer drawing such pay scale is not therefore under the control of the Commissioner ::: Downloaded on - 27/01/2014 23:04:41 ::: {12} wp10622-13.doc of Police. This second resolution has been withdrawn and our attention has been invited to page 159 of the paperbook by Mr.Sakhare. He submits that now the power with regard to transfer and posting of ACP vests in the State Government.
19] Assuming without admitting that the posting orders could have been made by the police commissioner, yet, in this case, if the posting is a transfer, then, that ought to have been effected by an authority competent to do so and in terms of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005. In such circumstances, the exercise of power by anybody other than the Principal is vitiated in law.
Mr.Sakhare heavily relied upon the observations of the tribunal in this case and particularly in para 9. He, therefore, submits that the petition be dismissed.
20] With the assistance of all the learned Counsel appearing for parties, we have perused the petition and the annexures thereto, including the impugned order. We have perused all affidavits filed on record. We have equally perused the legal provisions.
::: Downloaded on - 27/01/2014 23:04:41 :::{13} wp10622-13.doc 21] That there is a distinction in law between transfer and posting is apparent. In an order dated 22.11.2013 passed in Writ Petition No. 7554 of 2013 (Pradip Balkrushna Lonandkar v/s State of Maharashtra) and connected matters, a Division Bench of this Court emphasised this difference. The elementary and basic distinction has been noted in the following paras:-
"18 To appreciate the contention that every single posting or asking a person for taking up a job or seat of duty or assignment attached a particular post, even within the Head Quarter would amount to transfer that we have carefully perused the Transfer Act, 2005. The Transfer Act, 2005 suggests that it is an Act to provide for regulation of transfers of Government servants and prevention of delay in discharge of official duties. The settled canon of interpretation of statutes and particularly the definitions of terms therein, would demonstrate that every single definition is required to be construed in the context. If the context requires otherwise, then, the construction of a definition would depend upon that context. So seen we do not find any confusion. The term "post" is defined so as to indicate the job or seat of duty to which the Government servant is assigned or posted. The term "transfer"
definitely means "posting". Therefore, it is posting of the Government servant made, may be, from one post, office or department to another post, office or department. However, in individual cases and orders would have to be scrutinised and construed. The concept cannot be generalized as is sought by the learned counsel appearing for the Petitioners. One cannot say that every order entrusting duties other than one which are presently performed or other than a job presently held or seat to which the presently Government servant is assigned or posted, would amount to transfer necessarily. Everything would depend upon the facts and circumstances in each case.
No general rule can be laid down. True it is that the ::: Downloaded on - 27/01/2014 23:04:41 ::: {14} wp10622-13.doc Division Bench of this Court in one of the orders expressed an opinion that such definition of the word "Transfer" would present difficulty. In the ultimate analysis, it is for the Court to construe an order in individual case and if it amounts to transfer, then, to apply the provisions of the Transfer Act, 2005 so as to ensure that its object and purpose is fulfilled. That is plainly to protect the officers against frequent and in discriminate transfers. That is not creating a right to hold on to a particular post or job or seat. Therefore, even if the Division Bench has rightly expressed some reservations with regard to the definition of the term "transfer" as as appearing in the Transfer Act, 2005 and held that it could be in a given case presenting some difficulty, we do not find that by expressing such opinion the Division Bench meant that in all cases if the words "entrustment", posting, assignment are used that would be a transfer. To repeat in each case, the peculiar facts and circumstances would have to be seen. It is not that every order using the term "entrustment" would necessarily mean a transfer. It is not necessary to clarify the legal concept in this case. In the present case, the order impugned before the MAT and before us cannot be termed as a Transfer at all. The fact that the post held by the petitioners has Executive (Police Station duty) and nonExecutive duties attached to it is undisputed. That posting and assignment from one to other is common in the police force. That a police officer must be acquainted with administrative and managerial functions so also active policing is the intent in issuing routine posting orders. By such orders no prejudice is caused because there is no change of station and Headquarter. That remains within Mumbai. The Pay, status, emoluments and perquisites remain the same. The person concerned suffers no loss. All that happens is that he reports to different superiors at the offices within the city/ suburban limits. If promoted the promotional duties at a different office within these limits have to be discharged. The Act never intended such routine administrative matters being termed as Transfers."
"19. There are two authoritative pronouncements directly on this point. A Government employee or any ::: Downloaded on - 27/01/2014 23:04:41 ::: {15} wp10622-13.doc servant of a public undertaking leave alone a disciplined police force has no choice in the matter of posting. He has no legal right to insist for being posted at any particular place. The assignment of work and duty is a prerogative of his superiors. The legal connotation and meaning of the term, transfer, deputation have been interpreted and construed by the Hon'ble Supreme Court repeatedly. In V.Jagannatha Rao and Ors. Vs. State of Andhra Pradesh and Ors., reported in (2001) 10 SCC 401 the Hon'ble Supreme Court held as under:"
"13. It is to be noted that para 5(1) of the Presidential Order is in terms of para 3(3) thereof.
Para 3(3) postulates that each department in each zone shall be organised into a separate cadre. Para 5(1) speaks of separate unit for purposes of recruitment, appointment, discharge, seniority, promotion and transfer and such other matters as may be specified by the State Government in respect of the category of posts and each part of the State for which local cadre has been organised in respect of any category of posts is required to have a separate unit for the aforesaid purposes. Para 5(2) is in the nature of an enabling provision which authorizes the State Government to make provisions for transfer in certain specified circumstances. The present dispute relates to para 5(2) ©. It speaks of a transfer. Attempt of the appellants is to give enlarged meaning to the expression to include promotional aspects. It has been contended in that context that though para 5(1) treats promotion and transfer separately, yet that distinction would not be applicable to cases covered by para 5(2). The contention is clearly untenable."
"14. Transfer in relation to service reduced to simple terms means a change of place of employment within an organization, as stated in New Oxford English Dictionary , 1993 Edition, Vol.2, p.3367. It is an incidence of public service and generally does not require the consent of the employee. In most ::: Downloaded on - 27/01/2014 23:04:41 ::: {16} wp10622-13.doc service rules, there are express provisions relating to transfer. For example, Fundamental Rule 15 provides:
F.R.15(a) The President may transfer a Government servant from one post to another;
provided that except
(1) on account of inefficiency or
misbehaviour, or
(2) on his written request, a
Government servant shall not be transferred substantively to, or, except in a case covered by Rule 49, appointed to officiate in a post carrying less pay than the pay of the permanent post on which he holds a lien, or would hold a lien had his lien not been suspended under Rule 14.
(b) Nothing contained in clause (a) of this Rule or in clause (13) of Rule 9 shall operate to prevent the retransfer of a Government servant to the post on which he would hold a lien, had it not been suspended in accordance with the provisions of clause (a) of Rule
14."
"15. Service rules sometimes define transfer. For example, supplementary Rule 2(18) of the Fundamental Rules governing Central Government servants defines transfer in the following terms:
"Rule 2(18): Transfer means the movement of a Government servant from one headquarter station in which he is employed to another such station, either (a) to take up the duties of a new post, or (b) in consequence of change of his headquarter."
Though, definitions may differ and in many cases transfer is conceived in wider terms as a movement to any other place or branch of the organization, transfer essentially is to a similar post in the same ::: Downloaded on - 27/01/2014 23:04:41 ::: {17} wp10622-13.doc cadre as observed by this Court in B. Varadha Rao vs. State of Karnataka (AIR 1987 SC 287). It is now well settled that a government servant is liable to be transferred to a similar post in the same cadre which is a normal feature and incidence of government service and no government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified nontransferable post. No transfer is made to a post higher than what a Government servant is holding. In other words, it is generally a lateral and not vertical movement within the employers organization."
"18. We find that para 5(2) of the Presidential Order speaks of transfer and not of promotion. It would be hazardous to accept the contention of the appellants that promotion is included in the expression transfer and no assistance can be availed from the distinction made in para 5(1) of the Order. No provisions or word in a statute has to be read in isolation. In fact, the statute has to be read as a whole. A statute is an edict of the legislature. It cannot be said that without any purpose the distinction was made in para 5(1) between transfer and promotion and such distinction was not intended to be operative in para 5(2). The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid as to what has been said as also to what has not been said. See Mohd. Ali Khan vs. Commissioner of Wealth Tax, New Delhi (AIR 1997 SC 1165) and Institute of Chartered Accountants of India vs. M/s. Price Water House (AIR 1998 SC 74). As a conseuence a construction which requires for its support addition or substitution of words or which resorts for rejection of words as meaningless has to be avoided. As stated by the Privy Council in Robert Wigram Crawford vs. Richard Spooner (1846 (6) Moore PC 1) We cannot aid the Legislatures defective phrasing of an Act, we cannot add or mend and, by construction make ::: Downloaded on - 27/01/2014 23:04:41 ::: {18} wp10622-13.doc deficiencies which are left there. The aforesaid decision was referred to by this Court in State of Gujarat and Ors. vs. Dilipbhai Nathjibhai Patel & Anr. (JT 1998 (2) SC 253). It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. (See Stock vs. Frank Jones (Tiptan) Ltd. (1978 [1] All.ER 948 (HL). Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute. (See Pinner Vs. Everett (1969 [3] All.ER 257). In other words, there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding a particular case. Much trouble is made by substituting other phrases assumed to be equivalent, which then are reasoned from as if they were in the Act. In Union of India vs. Deoki Nandan Aggarwal (AIR 1992 SC 96), it was observed that the Court cannot refrain the legislature for the very good reason that it has no power to legislate. It is incumbent on the Court to avoid the construction if reasonably permissible on the language which would render a part of the statute devoid of any meaning or application. In the interpretation of statutes, the Courts always presume that the Legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have an effect."
"19. We, therefore, find no reasons to accept this stand of the appellant that the expression transfer takes within its scope a promotion."
Again in Prasar Bharati and Others Vs. Amarjeet Singh and Ors., reported in (2007) 9 SCC 539, the Hon'ble Supreme Court explained the conceptual difference between transfer and deputation in the following manner:"
"13. There exists a distinction between 'transfer' and 'deputation'. 'Deputation' connotes service outside the cadre or outside the parent department in which ::: Downloaded on - 27/01/2014 23:04:41 ::: {19} wp10622-13.doc an employee is serving. 'Transfer', however, is limited to equivalent post in the same cadre and in the same department. Whereas deputation would be a temporary phenomenon, transfer being antithesis must exhibit the opposite indications."
"14. There cannot be any doubt whatsoever that ordinarily no employee can be transferred without his consent from one employer to another. [See Jawaharlal Nehru University v. Dr. K.S. Jawatkar and Ors. [(1989) Supp. (1) SCC 679]. But, the said principle has no application in the instant case."
"15. A transfer of an employee may be governed by the provisions of a statute or the terms and conditions of a contract of service."
"16. The situation as obtaining in the present case, however, in our opinion, would amount to be a case of deemed deputation. It is true that no order has been passed by the Central Government on this behalf, but the respondents acted in the manner as if such an order had been passed. The respondents have been working with the Corporation for a long time without any demur whatsoever. They are undoubtedly under the control and supervision of the officers of the Corporation. There exists a hierarchy of the officers in the Corporation. There are a large number of departments. Each department has separate functions. Work of one department, however, would be related to another."
"17. It has not been disputed that the functions of the Central Government has been taken over by the Corporation in terms of Section 12 of the Act, when the Corporation has started functioning on and from the appointed day. It requires manpower for managing its affairs. It has been doing so with the existing staff. They are being paid their salaries or other remunerations by the Corporation. They are subjected to effective control by its officers. The respondents, for all intent and purposes, are ::: Downloaded on - 27/01/2014 23:04:41 ::: {20} wp10622-13.doc therefore, under the control of the Corporation."
"21. The Corporation has not framed its own rules. In absence of any rules, however, an employer, it is wellknown, would have an inherent power to deal with its employees. In a situation of this nature, we have no doubt that the same would include a power of transfer. It is one thing to say that an employer does not possess of any power to transfer in terms of the extant rules or conditions of service or the nature thereof; but the same does not mean that the employer must have the power to transfer its employees only in terms of a statute."
"22. The position of an industrial workman, however, would stand on a different footing. The terms and conditions of industrial employees are governed by the provisions of the Industrial Disputes Act or the certified standing orders framed under the Industrial Employment (Standing Orders) Act, 1946."
"23. An establishment like the Corporation, moreover, in absence of the rules may have an implied power of transfer. Transfer is an ordinary incident of service. It does not result in alteration of any condition of service to its disadvantage. [See B. Vandana Rao v. State of Karnataka and Anr. (1986) 4 SCC 624], Abani Kanta Ray v. State of Orissa [(1995) Supp. (4) SCC 169]; and Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and Others [(2004) 12 SCC 299]."
"24. In Public Services Tribunal Bar Association v. State of U.P. and Another [(2003) 4 SCC 104], this Court observed :
"37. Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the courts. This Court consistently has been taking a view that orders of transfer should not be interfered with except in rare cases where the transfer has been ::: Downloaded on - 27/01/2014 23:04:41 ::: {21} wp10622-13.doc made in a vindictive manner."
"25. In Balco Employees' Union (Regd.) v. Union of India and Others [(2002) 2 SCC 333], this Court opined that in case of policy, the employees may suffer to certain extent, but such sufferings should be taken to be incidence of service. Therein, the court observed :
"48. Merely because the workmen may have protection of Articles 14 and 16 of the Constitution, by regarding BALCO as a State, it does not mean that the erstwhile sole shareholder viz. Government had to give the workers prior notice of hearing before deciding to disinvest. There is no principle of natural justice which requires prior notice and hearing to persons who are generally affected as a class by an economic policy decision of the Government. If the abolition of a post pursuant to a policy decision does not attract the provisions of Article 311 of the Constitution as held in State of Haryana v. Des Raj Sangar on the same parity of reasoning, the policy of disinvestment cannot be faulted if as a result thereof the employees lose their rights or protection under Articles 14 and 16 of the Constitution. In other words, the existence of rights of protection under Articles 14 and 16 of the Constitution cannot possibly have the effect of vetoing the Governments right to disinvest."
We feel so much is enough as far as this aspect is concerned. The attention of the Division Bench possibly was not invited to these judgements or else they would not have expressed any view."
22] In the present case, the tribunal treating the grievance of the respondent No.3 has complaining about a transfer, has proceeded to allow the original application in terms of reliefs sought vide para 9(a).
::: Downloaded on - 27/01/2014 23:04:41 :::{22} wp10622-13.doc That was to quash an order dated 10th June 2013. The respondent No. 3 alleged that he has been transferred from the post of SDPO Karmala as ACP Pune in place of Vitthal Pawar. He then states that, Vitthal Pawar was relieved from Wanawadi Division in pursuance of transfer order dated 23rd May 2013. The present petitioner has been transferred and posted from Traffic branch to Wanawadi Division even though he has not completed three years in traffic branch and not due for transfer. Thus the projected grievance was that Mr.Vitthal Pawar was relieved from Wanawadi Division and the present petitioner original respondent No.3 was transferred and posted from traffic branch to Wanawadi division vide the same order. At the same time, the Respondent No.3 does not dispute that he was relieved on 7th June 2013 from Karmala Sub-Division, Solapur but a posting order was issued by respondent No.2 transferring and posting him to special branch. Thus, the grievance is of posting at a particular place upon transfer.
23] We do not see how such a grievance could have been dealt with and decided by the Tribunal. The Tribunal completely misdirected itself in law in observing that the affidavit filed by the State did not answer the specific query as to whether the respondent No.3 original applicant ::: Downloaded on - 27/01/2014 23:04:41 ::: {23} wp10622-13.doc in Original application was posted as ACP, Wanawadi. Merely because transfer order indicates that the respondent No.3 has been transferred to the post falling vacant after shifting of Mr.Vitthal Pawar does not mean that the respondent No.3 has a vested right to be posted at Wanawadi police station. The transfer order must be understood as transferring the respondent No.3 from the post of SDPO Karmala to Pune Commissionerate, Pune. Thereafter, it is for the Pune Commissioner to post him within his jurisdiction at any branch or police station. The Tribunal could not have interfered with this authority of the State and the Superior of the present petitioner as also the respondent No.3. That the transfer order indicates that the respondent No.3 to this petition is transferred to vacant post of Vitthal Pawar, by no stretch of imagination can be construed as giving or conferring any right in the respondent No.3 to be posted at Wanawadi police station. The observations in para 7 of the impugned orders are pure conjectures and surmises on the part of the Tribunal. The tribunal completely misunderstood the controversy before it. The respondent No.3 as also the petitioner were not aggrieved and were not challenging the transfer order at all. The applicant - original respondent No.3 before us may have termed the posting order as transfer but the fact remains that he had not challenged his transfer from Solapur to Pune. He willingly got ::: Downloaded on - 27/01/2014 23:04:41 ::: {24} wp10622-13.doc himself relieved and reported to the transferred place. It is, thereafter, that he thought there is some injustice done to him by not posting him at Wanawadi. Such a matter was clearly beyond the purview of the Tribunal. The tribunal unnecessarily went into the matter raised before it by placing reliance upon the G.R. dated 25th July 2008. Once the transfer order was not under challenge, then, it was not necessary to have referred to any of these matters.
24] In para 9 of the impugned order, the Tribunal has held as under:-
"9. The issue which remains to be decided is whether the action of the respondent No.2 in posting the respondent No.3 as A.C.P. Wanwadi and consequent posting of the applicant, Special branch is correct. Learned counsel for the respondent No.3 has supported the action of the respondent No.2 on two grounds, viz., (I) the respondent No.2 as the Commissioner of Police has powers to post A.C.P. level officers within the Commissionerate by virtue of powers delegated to him by G.R. dated 30.4.2007 and (ii) the applicant has accepted his posting as A.C.P., Special Branch without protest and he cannot now challenge the said order dated 10.6.2013. The second ground cited by the learned Counsel for the respondent No.3 cannot be accepted. If the respondent No.2 ordered the applicant to join as A.C.P. Special Branch, there was no alternative available to the applicant but to comply with the order. Any other action would have made the applicant liable for disciplinary action. The applicant has chosen very properly to challenge the order by filing the present original application. As regards ::: Downloaded on - 27/01/2014 23:04:41 ::: {25} wp10622-13.doc powers of the respondent No.2 to post the applicant in any post in the commissionerate, such powers cannot be untrammeled. In the present case, foremost fact to be considered is that the respondent No.1 has ordered posting of the applicant as A.C.P. Wanwadi on 23.5.2013.
By posting the respondent No.3 on 31.5.2013 as A.C.P. Wanawadi, the respondent No.2 made the order of the State Government infructuous. Though the respondent No. 2 may have power of internal postings of A.C.P. by virtue of G.R. dated 30.4.2007, which according to the respondent No.2 is still valid, an authority delegating power to a subordinate authority can always exercise the power itself. In the present case, it is seen that in some cases, including that of the applicant, respondent No.1 has given specific posting and exercised powers of posting of A.C.Ps. itself. The respondent No.2 could not have changed that order without the permission of the respondent No.1. The order of the respondent No.2, posting the respondent No.3 on 31.5.2013 as A.C.P. Wanawadi is clearly in contravention of the order dated 23.5.2013 passed by the respondent No.
1. Similarly, the respondent No.2 did not have power to modify posting of the applicant decided by the respondent No.1. The order dated 10.6.2013 qua the applicant cannot be sustained."
25] The Tribunal in this para is fully aware of the fact that firstly the matter of posting is the prerogative of respondent No.2. That he has been so empowered to post any of the officers under him is not disputed by the Tribunal. However, the tribunal being aware that the respondent No.3 accepted the posting without protest, still questioned it, then, held that had the respondent No.3 protested, he would had to face disciplinary action. Therefore, he is not protesting is of no consequence. Yet, in the same para the Tribunal observes that the ::: Downloaded on - 27/01/2014 23:04:41 ::: {26} wp10622-13.doc power of respondent No.2 to post the respondent No.3 in the commissionerate cannot be said to be untrammeled. By this, the Tribunal implies that there is a power to post any subordinate officer and which vests in the Commissioner.
26] To our mind, the observations in the Tribunal's order that even the posting orders have to be issued by Police Commissioner with the permission of the State has no basis in law. The Tribunal is aware that power of internal posting vests in the superior, in this case, the Police Commissioner of Pune and he can exercise all such powers as are conferred in the police commissioner by law. In such circumstances, in matters of posting, the interference by the tribunal was totally uncalled for and wholly unwarranted.
27] The Tribunal completely lost sight of the fact that the documents produced before it would show that the respondent No.3 reported to the Commissioner, Pune and was firstly appointed as ACP Control Room. Thereafter, he was brought to the post of ACP Special Branch from ACP Control Room. In such circumstances, to urge that he had a vested right to be posted at Wanawadi cannot be accepted. The present petitioner was also ACP Traffic and was transferred as ACP ::: Downloaded on - 27/01/2014 23:04:41 ::: {27} wp10622-13.doc Wanawadi Division. Therefore, such issues are beyond the purview of the Tribunal dealing with service matters. More so, when the transfer was as ACP, Pune city and in the post of Vitthal Pawar, is an arrangement which confers some rights, yet, the respondent No.3 did not bring in any material to show that he was transferred and/or posted as ACP Wanawadi. He just relied upon the wording of transfer order and claimed the right. If that right could be claimed by such persons, then, the whole concept of transfer and posting would turn upside down and it would mean that transfer and posting are both matters within the exclusive domain of the State Government. That they are not so and posting can be done by the Pune Police Commissioner is apparent and clarified all through out and even before us.
28] In the above circumstances, we do not find that the Tribunal was justified in allowing the original application and interfering with matters of posting of the officers in the Pune Commissionerate. That has caused grave prejudice not only to the individual officers but results in total miscarriage of justice. The Government Resolutions do not in any manner indicate that posting of Government officers within the division or the commissionerate is a power not vesting with the police commissioner of city but exclusively in the State Government. In such ::: Downloaded on - 27/01/2014 23:04:41 ::: {28} wp10622-13.doc circumstances, by some circuitous reasoning the Tribunal has taken away that power from the commissionerate and vested it exclusively in the Government.
29] It is therefore that we hold that the impugned order cannot be sustained and deserves to be quashed and set aside. We proceed to allow the petition and quash the order passed by the Tribunal dated 11th November 2013 in O.A. 492 of 2013. The O.A. stands dismissed.
30] In the light of the above conclusions we are of the opinion that it is not necessary to decide any wider controversy and particularly as raised by Mr.Sakhare. It is apparent that the Government Resolution relied upon by him cannot be read in the manner held by the Tribunal.
Beyond that we do not express any opinion on this issue. Rule is made absolute accordingly. No costs.
(MRS.REVATI MOHITE DERE,J) (S.C.DHARMADHIKARI, J) ::: Downloaded on - 27/01/2014 23:04:41 ::: {29} wp10622-13.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISIDCTION WRIT PETITION NO.10622 OF 2013 RESERVED ON : 05th December, 2013.
PRONOUNCED ON : 24th December, 2013
FOR APPROVAL:
HON'BLE MR.JUSTICE S.C.DHARMADHIKARI :
AND HON'BLE MRS.JUSTICE REVATI MOHITE DERE:
1] Whether Reporters of Local Newspapers may be allowed to see the Judgement?
2] To be referred to the Reporters or Not?
3] To be circulated to Aurangabad, Nagpur
and Goa benches?
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