Madhya Pradesh High Court
Sudhakar Baraskar vs The State Of Madhya Pradesh on 8 March, 2019
1 Writ Petition No.3911/2019
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT AT JABALPUR
Writ Petition No.3911/2019
Sudhakar Baraskar
Vs.
The State of Madhya Pradesh & Others
Date of Order 08.03.2019
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay Dwivedi
Whether approved for
reporting
Name of counsels for parties For Petitioner: Shri Sanjay K. Agrawal with
Shri Siddharth Kumar Sharma, Advocate.
For Respondents: Shri Paritosh Gupta,
Government Advocate.
Law laid down Significant paragraph numbers (JUDGMENT) (08.03.2019) The pleadings are complete therefore, at the request of the learned counsel for the parties, the matter is heard finally.
2. By the instant petition, the petitioner has questioned the validity of the orders dated 15.02.2019 (Annexure-P/6) and 19.02.2019 (Annexure- P/7). By the order dated 15.02.2019 (Annexure-P/6), the petitioner has been directed to be transferred from District Katni to the Police Headquarter Bhopal and vide order dated 19.02.2019 (Annexure-P/7), the petitioner has been further given posting at Rewa Zone, Rewa.
3. The challenge is founded mainly on the ground that the orders 2 Writ Petition No.3911/2019 impugned are arbitrary, illegal and contrary to the law laid down by Hon'ble the Apex Court in the case of Prakash Singh & Others vs. Union of India & Others [(2006) 8 SCC 1]. The learned counsel for the petitioner submits that the impugned orders are arbitrary as the petitioner is being transferred in mid-academic session which is contrary to the law laid down by Hon'ble the Apex Court in the case of Director of School Education Madras & Others vs. O. Karuppa Thevan & Another [(1994) Supl.(2) SCC 666]. The learned counsel for the petitioner further submits that though the order of transfer has been recommended by the Police Establishment Board in a proceeding dated 15.02.2019 in which the name of the petitioner finds place at Serial No.128 but the same is based upon wrong premise inasmuch as the recommendation of the Board reveals that the petitioner has been recommended to be transferred as the petitioner has completed three years in one District and as per the instructions issued by the Election Commission on 16.01.2019 (RJ-1), his case was arbitrarily brought within the purview of the said guidelines just to make his transfer legal. Although, the reason assigned in the proceeding of the Board recommending the transfer of the petitioner is contrary to the existing fact. As per the petitioner, he has not completed a tenure of three years in District Katni till the cut-off date as shown by the Election Commission. The learned counsel for the petitioner contends that the petitioner has not completed three years in District Katni where he came only on 13.09.2016.
4. Per contra, the learned counsel for the respondents has placed reliance upon the reply filed by them in which they have taken a stand that the transfer of the petitioner, in any manner, cannot be said to be contrary to the law laid down by Hon'ble the Apex Court in the case of Prakash 3 Writ Petition No.3911/2019 Singh (supra). He submits that the petitioner is wrongly interpreting the direction issued by Hon'ble the Apex Court saying that he has not completed a minimum tenure of two years in Police Station Sleemnabad but the petitioner has already completed two years at District Katni and therefore, the orders impugned cannot be said to be contrary to the law laid down by Hon'ble the Apex Court in the case of Prakash Singh (supra). The learned counsel for the respondents have also placed reliance upon the decisions passed by this Court in the case of Prateek Roy vs. Secretary, State of Madhya Pradesh & Another; reported in (2012) SCC OnLine MP 5472 and a case reported in 2017 SCC OnLine MP 1320 D.N. Raj Vs. State of Madhya Pradesh & Others and further relied upon a decision passed by this Court in W.P. No.3640/2019 parties being Ashok Kumar Pandey vs. State of Madhya Pradesh & Others.
As per the learned counsel for the respondents, this Court has already observed that the period of two years does not relate to the posting in a particular Police Station but it relates to the posting in a particular District and accordingly, the orders impugned are proper and not contrary to the policy of the State Government as framed in pursuance to the directions issued by Hon'ble the Apex Court. The learned counsel for the respondents further submits that interference in a matter of transfer would create chaos as considering the administrative arrangements, the petitioner has been transferred and thus, no interference is called for by this Court and as such, the petition deserves to be dismissed.
5. Arguments heard, record perused.
6. As per the admitted facts, the petitioner came to Katni from District Hoshangabad on 13.09.2016 in pursuance to the order of transfer dated 4 Writ Petition No.3911/2019 19.08.2016 (Annexure-P/1). Thereafter, for the period between 13.09.2016 and 17.12.2016 he remained at Police Line, Katni. Then, from 19.12.2016 till 14.04.2017, he was posted at Police Station Sleemnabad as Station House Officer. Then, vide order dated 25.08.2017, he was posted at Police Station Bahoriband. Then again vide order dated 19.07.2018, the petitioner was posted at Police Station Sleemnabad, District Katni and vide order impugned dated 15.02.2019 (Annexure-P/6), he was again transferred from Katni to Police Headquarter Bhopal. As contended by the learned counsel for the petitioner that in Police Station Sleemnabad, the petitioner has been posted vide order dated 19.07.2018 and he has not completed the period of two years at the same Police Station, therefore, his order of transfer is contrary to the directions issued by Hon'ble the Apex Court in the case of Prakash Singh (supra). He has further contended that the transfer of the petitioner has been made on the recommendation of the Police Establishment Board but that was not on the ground of completing normal tenure of two years at one District/Police Station but he has been transferred on the premise as his case was coming within the purview of the directions issued by the Election Commission that the petitioner has completed three years at one District.
7. To adjudicate the rival contentions of the parties, it is appropriate to reproduce the directions issued by the Supreme Court in the case of Prakash Singh (supra) :-
"Minimum tenure of IG of police and other officers - Police officers on operational duties in the field like the Inspector General of Police in-charge Zone, Deputy Inspector General of Police in-charge Range, Superintendent of Police in-charge District and Station House officer in- charge of a Police Station shall also have a prescribed minimum tenure of two years unless it is found necessary to 5 Writ Petition No.3911/2019 remove them on grounds of conviction, incapacitation, etc., as detailed herein."
8. The Supreme Court has also directed for a constitution of Police Establishment Board in each State to control the transfer/posting, promotion and other service related matters of the Officers of the Police Department and has observed as follows :-
"Police Establishment Board - There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The State Government may interfere with the decision of the Board in exceptional cases, only after recording its reasons for doing so. The Board shall also be authorised to make appropriate recommendations to the State Government regarding the postings and transfers of officers of an above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept them. It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotions/transfers/disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State."
9. Not only this, but in pursuance to the directions issued by Hon'ble the Apex Court in the case of Prakash Singh (supra), the State Government through Home Department issued an order on 14.02.2007 with the following guidelines :-
^^2- jsat iqfyl egkfujh{kd rFkk v/khuLFk vU; vf/kdkfj;ksa dk U;wure dk;Zdky ¼i½ izns'k esa jsat Lrj ij inLFk fd;s tkus okys iqfyl egkfujh{kd@mi iqfyl egkfujh{kd rFkk ftyksa esa inLFk gksus dk ftyk iqfyl v/kh{kd] vuqfoHkkxh; vf/kdkjh ¼iqfyl½@uxj iqfyl v/kh{kd ,oa Fkkuk izHkkfj;ksa dk U;wure dk;Zdky 2 o"kZ jgsxk] tc rd fd mUgsa fuEu ifjfLFkfr;ksa esa U;wure dk;Zdky ds iwoZ gh l{ke vf/kdkjh }kjk mudh inLFkkiuk ls gVkus dk fu.kZ; u ys fy;k tk;s& ¼ii½ vuq'kklukRed dk;Zokgh lafLFkr gksus ij] ¼iii½ vijkf/kd vFkok Hkz"Vkpkj ds izdj.k esa U;k;ky; }kjk nks"kfl) Bgjk;s 6 Writ Petition No.3911/2019 tkus ij] ¼iv½ inh; nkf;Roksa@dRrZO;ksa ds fuoZgu esa vU;Fkk v{ke gksus ij] ¼v½ dkuwu ,oa O;oLFkk dh xaHkhj ifjfLFkfr;ksa ij fu;a=.k djus esa vlQy gksus ij] ¼vi½ inksUufr vFkok lsokfuo`fRr gks tkus ij]^^ (Emphasis Supplied)
10. From a perusal of the directions issued by the Supreme Court as quoted above and considering the Policy framed by the State Government, there is no confusion with regard to the intention of the Apex Court and also of the State Government that the posting of a Police Officer till the rank of Inspector at one Police Station has been taken note of, meaning thereby if a Police Officer is posted in one Police Station at a particular time then as per the direction of the Apex Court and also the Policy framed by the State Government, the Police Officer is to be allowed to complete his minimum tenure of two years unless decision for his transfer or removal is taken under the contingency as contained in the Policy of the State Government. It is further pertinent to mention that the order dated 14.02.2007 cannot be considered to be a transfer policy as is framed by the State Government for the employees of other Departments as it is settled principle of law that the said policies have no statutory force. But in the present case, the case of the petitioner governs with the policy/order dated 14.02.2007 issued by the Home Department of the State Government in compliance of the direction issued by the Supreme Court in the case of Prakash Singh (supra) and accordingly, it cannot be treated to be a normal policy having no statutory force but it is a policy which has a statutory force and the authorities of Police Department of State is under statutory obligation to follow the same.
11. The aforesaid view gets support from the view taken by the 7 Writ Petition No.3911/2019 co-ordinate Bench in the case of Manoj Kumar Singh (supra) in which the co-ordinate Bench has dealt with the issue and very categorically observed regarding minimum tenure of an Inspector considering the fact that the same connotes period of two years at one Police Station in relation to the Station House Officer (Inspector).
12. The learned counsel for the respondents has submitted that in case of D.N.Raj (supra), this Court has very categorically laid down that period of posting in one Police Station is not material but the tenure in the District has to be taken note of and normal tenure of two years as per the direction of the Supreme Court and also the policy of the State Government is adjudged relating to the posting of all police officers in a District. However, from the perusal of the order passed by the co-ordinate Bench in the case of D.N.Raj (supra), I am of the view that while passing the order, this Court has not taken note of the earlier decision of this Court in the case of Manoj Kumar Singh (supra) in which, this Court has specifically dealt with the issue regarding minimum tenure of a Police Officer considering the fact as far as the Station House Officer is concerned, the said tenure is of two years as per the policy but not the period completed by the said Police Officer in a particular District. In such a circumstance, in view of the law laid down by the larger Bench of this Court in the case of Jabalpur Bus Operators Association & Others vs. State of M.P. & Another; [2003 (1) M.P.H.T. 226 (FB)], I have no hesitation to say with due respect that the order passed by this Court in the case of D.N.Raj (supra) is per incuriam. It is further apt to mention that in case of D.N.Raj (supra), the Court has also observed that the policy in relation to the Police Officer as framed by the State Government has no statutory force and has also placed 8 Writ Petition No.3911/2019 reliance upon the case of R.S. Choudhary vs. State of Madhya Pradesh reported in [2007 (2) ILR MP 1329] whereas, the case of R.S. Choudhary (supra) which deals with the normal transfer policy issued by the State Government in relation to the employees of other Departments but the policy of Police Department is altogether different and has statutory force therefore, the said observation of this Court is also not sustainable in view of the law laid down by Hon'ble the Apex Court in the case of Prakash Singh (supra) and also in the case of Manoj Kumar Singh (supra).
Further, the learned counsel for the respondents has also relied upon a decision of this Court in the case of Prateek Roy (supra) saying that the coordinate Bench while dealing with the transfer of the Police Officer has very categorically laid down that the normal tenure of two years as per the Policy of the State Government and also as per the direction of the Apex Court relates to posting in a District but does not relate to the posting at a particular Police Station. However, I am not convinced with the contention of the respondents because a perusal of the judgment rendered in the case of Prateek Roy (supra), makes it clear that the facts considered by the coordinate Bench therein are distinguishable from the case in hand. Furthermore, in the said case, there was a local shifting of the Police Officer without any recommendation of the Police Establishment Board and as such, the Court while not considering such shifting of the Police Officer as a transfer, has observed that the Officer completing the normal tenure of two years in one District, thereafter got transferred by the Police Establishment Board then such transfer is not contrary to the law laid down by the Apex Court in the case of Prakash Singh (supra). On the contrary, if the observation of the Court in the case of Prateek Roy (supra) is 9 Writ Petition No.3911/2019 scrutinized minutely then inference can easily be drawn that the Court was of the impression that the transfer of Prateek Roy from one Police Station to another within a period of two years is not contrary to the policy because his posting to industrial area, Police Station Dewas was not on the basis of the recommendation of the Police Establishment Board. It otherwise clarifies that the Court was also in support of the view that the normal transfer at one Police Station as per the recommendation of the Police Establishment Board, permits the petitioner to complete normal tenure of two years in the said Police Station. Thus, I have no hesitation to say that in view of the direction issued by the Apex Court and the policy framed by the State Government and also after considering the same by this Court in the case of Manoj Kumar Singh (supra), the present transfer of the petitioner is contrary to law and is not sustainable. Further, in view of the contention of the counsel for the petitioner that his children are studying and in absence of any denial to that aspect, the transfer of the petitioner in view of the law laid down by Hon'ble the Apex Court in the case of O. Karupa Thevan & Another (supra), is also liable to be set aside.
13. The contention of the learned counsel for the petitioner that the recommendation made by the transfer Board for transferring the petitioner was also on the wrong premise because from perusal of the reason assigned in the proceeding of Board, it reveals that the case of the petitioner has been brought within the parameters of restrictions provided in the instructions issued by the Election Commission not keeping the officers in one District to the officers directly connected with the conduct of election. As per the said instructions dated 16.01.2019 (RJ-1), Clause-3 says if an Officer has completed three years in a District, he shall not be allowed to 10 Writ Petition No.3911/2019 continue in the same District. The petitioner submits that even otherwise his transfer is contrary to the guidelines issued by the Election Commission and the respondents have deliberately taken shelter of the same and brought the case of the petitioner unnecessarily with the purview of the said guidelines whereas the petitioner has not completed three years period in one District Katni because he came to Katni only on 13.09.2016 by virtue of order dated 19.08.2016 and in any case before the cut-off date i.e. 31.05.2019 he has not completed three years period in District Katni.
14. Considering the facts involved in this case, I find force in the contention made by the petitioner and apparently, the reason assigned in the proceeding of Police Establishment Board for recommending the name of the petitioner for transfer is contrary to the guidelines issued by the Election Commission on 16.01.2019 (RJ-1). Thus, in this premise also, the orders impugned are not sustainable.
15. Further, the contention of the respondents that if the order of transfer of the petitioner is interfered with then the same would create a chaos in administrative side and therefore, he submits that in such a matter interference is impermissible. To some extent, I am also of the opinion that in a matter of transfer, the Court should allow elbow room so that administration may work smoothly but here in this case, it is a violation of the statutory policy of transfer, therefore, the Court cannot ignore that aspect. On the contrary, the petitioner has submitted a letter dated 19.02.2019 (RJ-2) in which the Superintendent of Police, Katni has requested the higher Officers of the Police Department for canceling the transfer of the petitioner stating therein that on 11 posts of Inspector, only 5 are working and 6 posts are still lying vacant and if the petitioner is 11 Writ Petition No.3911/2019 transferred then it would create chaos in the District. Thus, the contention of the respondents has no substance and the orders impugned (Annexures- P/6 & P/7) so far as they relate to the petitioner, deserves to be set aside.
16. In view of the above, the petition filed by the petitioner is allowed and the impugned orders (Annexures- P/6 & P/7) are hereby set aside.
17. Parties shall bear their own costs.
(SANJAY DWIVEDI) JUDGE Priya.P Digitally signed by Priyanka Pithawe Date: 2019.03.12 17:32:37 +05'30'