Gujarat High Court
Ajitsinh Himmatsinh Padhiyar vs Superintendent Of Police - Amreli on 7 November, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/9742/2020 ORDER DATED: 07/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9742 of 2020
==========================================================
AJITSINH HIMMATSINH PADHIYAR
Versus
SUPERINTENDENT OF POLICE - AMRELI & 2 other(s)
==========================================================
Appearance:
MR MB PARIKH(576) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI, AGP for the Respondent-State authorities
DS AFF.NOT FILED (N) for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 07/11/2023
ORAL ORDER
1. Heard learned Advocate Mr. M.B. Parikh for the petitioner and learned AGP Mr. Sahil Trivedi for the respondents.
2. Rule. Learned AGP Mr. Trivedi waives service of rule on behalf of the respondents.
3. By way of this petition, the petitioner has inter alia challenged an order passed by the respondent No.1 dated 14.07.2020, whereby the petitioner has been transferred from Police Headquarter, Amreli District to East Kutch-Gandhidham District.
4. Learned Advocate Mr. Parikh for the petitioner would assail the impugned order by submitting that the transfer order, though it records the word 'public interest', but the same had been passed, more particularly alleging that the present petitioner was having regular contact with one listed bootlegger under the Prohibition Act. Learned Advocate would Page 1 of 8 Downloaded on : Thu Nov 09 20:40:19 IST 2023 NEUTRAL CITATION C/SCA/9742/2020 ORDER DATED: 07/11/2023 undefined submit that for the very same allegation i.e. for keeping alleged contact with a bootlegger, a charge-sheet had been issued to the petitioner on 06.07.2020 and whereas considering the fact that the alleged incident is of the year 2013 and whereas in the interregnum, an internal inquiry had taken place and ultimately while charge-sheet had been issued on 06.07.2020, the petitioner had been transferred on 14.07.2020, this Court had quashed and set aside the said charge-sheet. Learned Advocate would further submit that as such, the said decision has not been challenged by the respondents by preferring any Letters Patent Appeal. Learned Advocate would submit that the very basis of the decision of transferring the petitioner now not remaining, this Court may set aside the impugned order and may direct the respondent No.1 to issue appropriate posting orders to the petitioner at Amreli.
5. This petition is vehemently objected to by learned AGP Mr. Sahil Trivedi for the respondents. Learned AGP would submit that while the fact of the allegation that the petitioner was in regular contact with a listed bootlegger is mentioned in the order of inter-district transfer itself, yet the fact remains that the impugned order was in public interest. Learned AGP would submit that since the petitioner is not in any way prejudiced on account of the said transfer order, more particularly the salary and seniority etc. of the petitioner not being disturbed, this Court may not interfere with the order in question.
6. Heard learned Advocates for the respective parties and perused the documents on record.
7. At the outset, it requires to be noted that inter-district transfer of a police constable i.e. the post on which the petitioner is working, are regulated by Rule 152 and Rule 153 of the Gujarat Police Manual. Rule Page 2 of 8 Downloaded on : Thu Nov 09 20:40:19 IST 2023 NEUTRAL CITATION C/SCA/9742/2020 ORDER DATED: 07/11/2023 undefined 152 and Rule 153 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."
"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."
7.1 A perusal of Rule 152 inter alia makes it clear that Inspector General of Police is authorised to make inter-district transfers, in case of emergency, more particularly after giving intimation to District Magistrates. It would appear that the scope and ambit of Rule 152, has been discussed by a Division Bench of this Court in case of Haroon Yusufbhai Kadiwala Vs. Director General of Police and Anr., reported in 2011 (3) GLH (UJ) 8. Paragraphs No. 5 to 10 of the said decision being relevant for the present purpose, are quoted hereinbelow Page 3 of 8 Downloaded on : Thu Nov 09 20:40:19 IST 2023 NEUTRAL CITATION C/SCA/9742/2020 ORDER DATED: 07/11/2023 undefined for benefit :
"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:
Page 4 of 8 Downloaded on : Thu Nov 09 20:40:19 IST 2023NEUTRAL CITATION C/SCA/9742/2020 ORDER DATED: 07/11/2023 undefined "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 Page 5 of 8 Downloaded on : Thu Nov 09 20:40:19 IST 2023 NEUTRAL CITATION C/SCA/9742/2020 ORDER DATED: 07/11/2023 undefined 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 Rule152, 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."
7.2 A perusal of the above quoted paragraphs would clearly indicate that the Division Bench has inter alia recorded that while a police constable could be transferred on inter-district basis, yet in certain cases the State Government should bear in mind as to how long the services of the police officer would be required at the transferred place. The Division Page 6 of 8 Downloaded on : Thu Nov 09 20:40:19 IST 2023 NEUTRAL CITATION C/SCA/9742/2020 ORDER DATED: 07/11/2023 undefined Bench has also observed that while transfer on administrative grounds in case of emergencies is permissible, it would be desirable that the authorities should clarify as to how long the services of the constable are required to be meet with the exigencies at the transferred place.
8. In the instant case, it would appear that the petitioner was transferred on account of an allegation that the petitioner was having contact with a listed bootlegger under the Prohibition Act, and whereas the transfer order does not mention the period for which the petitioner had been transferred. Be that as it may, it also appears that for the very same allegation i.e. of having maintained telephonic contact with a known bootlegger, the petitioner had been issued with a charge-sheet dated 06.07.2020. It appears that the petitioner had challenged the said charge- sheet before this Court by preferring Special Civil Application No. 9740 of 2020, and whereas this Court vide oral judgment dated 12.04.2023 had quashed and set aside the charge-sheet, more particularly on the ground that the charge-sheet had been issued after an inordinate delay of seven years. It also appears as submitted by learned Advocate Mr. Parikh that the said decision has become final inter party, more particularly since the respondent-State has chosen not to challenge the same.
9. In this view of the matter, since the issue for which the petitioner had been transferred, no longer survives, more particularly upon the charge-sheet issued to the petitioner having been quashed and set aside by this Court, and whereas since the emergency situation as reflected in the impugned order no longer remains, in the considered opinion of this Court, there is no reason whatsoever for the respondents to have continued with the transfer of the petitioner from District Amreli to District Kutch. Under such circumstances, this Court deems it appropriate to issue the following directions :
Page 7 of 8 Downloaded on : Thu Nov 09 20:40:19 IST 2023NEUTRAL CITATION C/SCA/9742/2020 ORDER DATED: 07/11/2023 undefined (A) The impugned order transferring the petitioner from District Amreli to District East Kutch dated 14.07.2020 is hereby quashed and set aside.
(B) The respondents i.e. the respondent No.2 in consultation with the respondent No.3 shall forthwith but not later than a period of four weeks from the date of receipt of this order pass appropriate orders transferring the petitioner back to Amreli District under the respondent No.1.
(C) The respondent No.1 shall issue appropriate orders of posting to the petitioner within a period of two weeks thereafter.
10. With the above observations and directions, the present petition stand disposed of as allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(NIKHIL S. KARIEL,J) BDSONGARA Page 8 of 8 Downloaded on : Thu Nov 09 20:40:19 IST 2023