police officials attending marriage reception of son of a criminal is a sufficient ‘public...
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8463 of 2015
With
SPECIAL CIVIL APPLICATION NO. 8469 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 8489 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowedto see the judgment ?
Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy ofthe judgment ?
No
Whether this case in!ol!es a substantial "uestion oflaw as to the interpretation of the #onstitution of$ndia or any order made thereunder ?
No
==========================================================
BHARATSINH HIMMATSINH CHAMPAVAT & 21....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
==========================================================
Appearance:
MR HB CHAMPAVAT, ADVOCATE for the Petitioner(s) No. 1 - 22
MR RJ GOSWAMI, ADVOCATE for the Petitioner(s) No. 1 - 22GOVERNMENT PLEADER for the Respondent(s) No. 1 - 4
NOTICE SERVED for the Respondent(s) No. 1 - 4
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4
==========================================================
#%R&'( HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/08/2015
CAV JUDGMENT
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1. Since the issues involved in all the
captioned writ-applications are the same those
were heard analogously and are being disposed of
by this common judgment and order.
2. By these writ-applications under Article 226
of the Constitution of India, the petitioners
serving as Police Constables seek to challenge
the impugned orders dated 24th April, 2015
transferring the petitioners to other districts.
3. All the petitioners are serving as Police
Constables. Before the impugned orders came to be
passed they all were serving in different Police
Stations in the city of Ahmedabad. They are
aggrieved by the order of transfer passed by the
respondents Nos. 2 and 3, dated 24th
April, 2015
outside the district of Ahmedabad.
4. It appears on plain reading of the orders of
transfer that the same were passed in the public
interest.
5. Mr. Goswami, the learned advocate appearing
for the petitioners submitted that the impugned
orders of transfer are contrary to the provisions
of the Section 28(1) of the Bombay Police Act and
rule 152 of the Gujarat Police Manual. He
submitted that an officer of the cadre of aconstable appointed in one district cannot be
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transferred to any other district. The only
exception to this rule is the case of emergency
wherein more force is needed at the place of
transfer to meet with any exigencies. Mr. Goswami
further submitted that the law in this regard is
well settled in the case of Haroon Yusufbhai
Kadiwala V. Director General of Police and
another reported in 2011 (3) GLH(UJ)8. Relying on
the said decision of this Court rendered by a
Division Bench (to which I was a party) he
submitted that the transfer of a Head Constable
from one district to the other amounts to
deputation and can be made only on
administrative grounds in cases of emergency.
6. Mr. Goswami submitted that although the
orders of transfer do not speak anything further
then the public interest yet the reason for
passing such orders of transfer is that the
petitioners had attended the marriage reception
of the son of a noted bootlegger, namely Kishor
Sinh @ Langdo Lalsinh Rathod. Therefore,according to Mr. Goswami, the transfer could be
termed as punitive in nature which is otherwise
not permissible in law.
7. On the other hand, this application has been
vehemently opposed by Mr. Rutvij Oza, the learnedAGP appearing for the State. He submitted that
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the respondents Nos. 1 and 2 committed no error
in passing the impugned orders of transfer.
8. Mr. Oza has placed reliance on the affidavit-
in-reply filed by Shri R.J. Savani, D.I.G. at
present serving as the Additional Commissioner of
Police (Administration) Ahmedabad city. In the
affidavit-in-reply the following averments have
been made:-
8. I say and submit that it is necessary to draw
this Honble Courts attentions on the facts which
were considered before passing of transfer order for
the petitioners and therefore brief facts are as
under:
A. The petitioner had attended the marriage
reception on 15.02.2015 of the son of Kishorshingh @
Kishor Langda who is a well known bootlegger. Thereare in all 23 probibition offences registered
against Kishorsinh and other 11 offence are also
registered and 18 times PASA orders were passed
against him. As per the record of the deponent,
Kishorsinh is a listed offender as per the office
record as the prohibition offences were registered
under the jurisdiction of the Commissionarate of
Ahmedabad. Annexed herewith and marked as Annexure-
R-1 (colly) are copies of list of offences
registered against Kishorshinh along with the list
of PASA orders.
B. In pursuance to the presence of the petitioners
at reception of son of Kishorsinh on 15.02.2015, a
news article appeared on 18.02.2015 that Police
Personal had attended the marriage reception of the
son of a proclaimed and listed bootlegger. On the
same day Commissioner of Police, Ahmedabad has taken
a serious view and immediately ordered an inquiry
into the matter. The inquiry was handed over to
Deputy Commissioner of Police (zone-1), Ahmedabad.
C. Thereafter, Deputy Commissioner of Police,Ahmedabad has submitted preliminary report to the
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Commissioner of Police, Ahmedabad. On receipt of
such report certain further details were called for
and the same were provided and finally on 20.04.2015
the final report came to be filed. After receiving
the inquiry reports, the Commissioner of Police,
Ahmedabad forwarded confidential report to the
Additional Chief Secretary, Home Department, Gujarat
State through Director General and Inspector General
of Police, Gujarat State on 22.04.2015. In that the
Director General of Police, Gujarat State has passed
an order of transfers from Ahmedabad and
Gandhinagar. The same order was also sent to
Commissioner of Police, Ahmedabad for communicating
to the petitioner, who are serving under the
Commissioner of Police, Ahmedabad. Annexed hereto
and marked as Annexure R-II is the copy of order
passed by office of the Director General and
Inspector General of Police, Gujarat State.9. I further say and submit that under Section 23 of
the Bombay Police Act, 1951, Commissioner or
Inspector General of Gujarat State has powers to
issue transfer orders, when any subordinate to him
is generally found to be neglecting his duties and
that the person is not doing his duty within the
norms of discipline of the department. Relevant
provision of section 23(h) is reproduced herein for
ready reference of this Honble Court.
Generally, for the purpose of rendering the police
efficient and preventing abuse or neglect of theirduties.
10. I say and submit that the Director General and
Inspector General of Gujarat State has powers to
transfer in ordinary circumstances as well as has
powers to transfer from one place to another in the
State. I further produce the relevant abstract of
provision viz. Section 154(3)(a) and 154(3)(D) of
Gujarat Police Manual, 1975, Volume-1 as under for
ready reference.
Section 154(3)(a)
No Government servant of the gazetted rank and of
the non-gazetted rank belonging to the Class-III
executive post/service, should be transferred from
one station to another until he has completed five
years service at one and the same station or unless
his transfer becomes necessary earlier in the
following circumstances:-
(i) When a Government servant is to be promoted to
higher post;
(ii) When a Government servant reverts from a higher
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to a lower post and is required to be given a
posting; and
(iii) When exigencies of public service so require,
and/or as disciplinary measure.
Section 154(3)(d)
No Government servant belonging to class-III
executive as well as ministerial post/service or
Class-IV should be transferred from one district to
another unless such a transfer is considered
necessary by the competent authority.
Thus, in view of Section 154(3)(a)(iii), the
competent authority has the powers to transfer, when
there is an exigency of public service requirement
and/or a transfer can also be made as a disciplinary
measure. Further, it is stated that it is clear fromthe above mentioned Section 154(3)(d) that, an
officer can be transferred from one district to
another if it is considered necessary by the
competent authority. And therefore, a combined
reading of Section 154(3)(a)(iii) and Section 154(3)
(d) gives sufficient powers to the authority to make
inter district transfers, when the necessary
circumstances arises as stated above.
11. I respectfully say and submit that the orders
of transfers are passed in consonance with the
Gujarat Civil Service (Conduct) Rules, 1971specifically under Rule-3(I) (1,2 and 3). The
aforesaid Rules have been violated by the
petitioners herein and therefore rightly Director
General and Inspector General of Police, Gujarat
State has ordered the transfer of petitioners. Rule-
3 of the Gujarat Civil Services (conduct) Rules,
1971 is produced herewith for ready reference of
this Honble Court. Annexed herewith and marked as
Annexure-R-III is the copy of abstract from the
Gujarat Civil Service (Conduct) Rules, 1971 of Rule-
3.
13. I state and submit that Home Department of
Gujarat Government has passed Government Resolution
BDL/1093/171/SH on 29.07.1993 regarding powers of
the Director General of Police, Gujarat State to
transfer the officers out side the district. Annexed
herewith and marked as Annexure-R-IV is the copy of
Government Resolution dated 29.07.1993.
14. I respectfully state that the petitioner are
relying on decision of this Honble Court passed in
Haroon Yusufbhai Kadiwala V/s. Director General ofPolice and Another reported in 2011(3) GLH (U.J.) 8
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is not applicable to the facts of the present case
and also the other decisions passed by this Honble
Court which was confirmed by Division Bench of this
Honble Court, facts of the aforesaid decisions are
all together on a different footing and therefore I
request this Honble Court to distinguish the facts
of the present case from the facts of the cases
cited by the petitioner. I further submit that by
order of the transfer of the petitioners does not
disturb the seniority of the petitioners and the
cadre of the petitioners are also not going to be
changed and therefore the decision relied by the
petitioners are not applicable in the present case.
15. In the facts and circumstances stated above, the
present petition is required to be dismissed.
9. Thus, the plain reading of the affidavit-in-
reply would suggest that the transfers had to be
affected as it was found that the petitioners
being police constables had attended the wedding
reception of the son of a noted bootlegger
against whom there are number of criminal cases
registered. The stance of the respondents is that
with a view to maintain the discipline and
efficiency in the police force the transfers had
to be affected.
10. Having heard the learned counsel appearing
for the parties and having gone through the
materials on record, the only question that falls
for my consideration is whether the action of the
respondents in transferring the petitioners from
Ahmedabad to other districts could be faulted on
any grounds.
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11. Before adverting to the rival submissions
made on both the sides, it is necessary for me to
look into few provisions of law.
12. Sections 23 and 28 of the Bombay Police Act,
1951 reads as under:-
23. Framing of rules for administration of the
Police.- Subject to the orders of the State
Government the Commissioner in the case of the
Police Force allocated to [****] areas for which he
has been appointed and the Inspector-General in the
case of the Police Force allocated to other areas
may make rules or orders not inconsistent with this
Act or with any other enactment for the time being
in force
(a) regulating the inspection of the Police Force
by his subordinates;
(b) determining the description and quantity of
arms, accountrements, clothing and other
necessaries to be furnished to the Police;
(c) prescribing the places of residence of members
of the Police Force;
(d) for institution, management and regulation of
any Police fund for any purpose connected with
police administration;
(e) regulating, subject to the provisions of
section 17, the distribution, movements and
location of the Police;
(f) assigning duties to Police Officers of all
ranks and grades, and prescribing-
(i) the manner in which, and
(ii) the conditions subject to which, they shall
exercise and perform their respective powers and
duties;
(g) regulating the collection and communication by
the Police of intelligence and information;
(h) generally, for the purpose of rendering the
Police efficient and preventing abuse or neglect of
their duties.
28. Police Officer to be deemed to be always on
duty and to be liable to employment in any part of
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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.
(2) Intimation of proposed transfers to be given by
the Inspector General to the Commissioner and
District Magistrate.-Timely intimation shall,except in case of extreme urgency, be given to
[*****] the District Magistrate by the Inspector
General of any proposed transfer under this section
and except, where secrecy is necessary the reasons
for the transfer shall be explained; whereupon the
officers aforesaid and their subordinate shall give
all reasonable furtherance to such transfer.
13. Rule 152 of the Gujarat Police Manual, 1975
Volume-I 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 authorized
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 of Police should, except in cases
of extreme urgency give timely initmation to theDistrict Magistrates concerned whenever he proposes
to transfer or redistribute the Police disposition
obtaining in Districts.
14. Article 154 of the Gujarat Police Manual,
1975 Volume-I reads as under:-
154. Instructions regarding transfers.
(1) Frequent transfers cause great personal and
domestic inconvenience to Officers and result in
considerable cost to Government on account of
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traveling allowance, etc. They also dislocate
administrative work and render it difficult to fix
responsibility in regard to inordinate delays and
other lapses in the matter of the discharge of
official duties.
(2) The authorities, while submitting proposals to
Government/Inspector General/Deputy Inspector General,
for postings, transfers, etc., of officers, must
scrutinize all such proposals with a view to avoiding
frequent transfers, officers being kept at the same
station, as far as possible, for at least five years.
(3) The following principles, in general, should be
observed while effecting transfers:-
(a) No Government servant of the gazetted rank and of
the non-gazetted rank belonging to the Class IIIexecutive post/service, should be transferred from one
station to another until he has completed five years
service at one and the same station or unless his
transfer becomes necessary earlier in the following
circumstances:-
(i) When a Government servant is to be promoted to a
higher post;
(ii) When a Government servant reverts from a higher
to a lower post and is required to be given a posting;
and
(iii) When exigencies of public service so require,
and/or as disciplinary measure.
(b) Even after the completion of five years service
at one and the same station, there would be no
objection to his continuing there, if the competent
authority so considers on administrative grounds.
(c) No Government servant belonging to Class III
ministerial post/service or Class IV should be
transferred from one station to another unless his
transfer is considered necessary by the competent
authority.
(d) No Government servant belonging to Class III
executive as well as ministerial post/service or Class
IV should be transferred from one district to another
unless such a transfer is considered necessary by the
competent authority.
(e) Persons should not be posted repeatedly to one and
the same district or place i.e. persons who haveworked in a particular area should not again be posted
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there without a reasonable lapse of time.
(f) If any person proceeds on leave before serving for
nearly five years in the same charge, he should
normally be reposted in the same charge on return from
leave.
(g) Normally large scale transfers should be avoided
in the middle of the school term and should be made as
far as possible in October or April of the year except
under unavoidable circumstances and in exceptional
cases.
(h) If after the issue of the transfer orders, a
person proceeds on leave, he should be reposted to the
same post on expiry of his leave and his vacancy
should be filled up by local arrangements.
(i) Transfers should be effected in such a way that
they will entail minimum expenditure on travelling
allowance and in keeping with administrative
requirements.
(j) If a person, who is transferred by the Inspector
General, applies for leave, it should not be granted
to him without prior permission of the Inspector
General of Police. In exceptional cases such as
serious illness, etc. such persons may be allowed to
remain on leave but a report should be submitted to
the Inspector General immediately stating the reasonsfor granting the leave.
(k) Transfers to and from the Criminal Investigation
Department of Officers belows the rank of Sub-
Inspectors will be arranged between the Deputy
Inspector General, Criminal Investigation Department
and the Commissioner of Police/Superintendent of
Police concerned.
(l) Transfers of Head Constables and Constables
between one District or Railway and another, may be
effected by mutual agreement between the Commissioner
of Police/Superintendents of Police concerned.
(m) In the case of such Head Constables attached to
the Police Training School as are borne on the
strength of Junagadh District, any changes required
will be arranged between the Principal, Police
Training School and the Superintendent of Police,
Junagadh.
(n) Clerks should be transferred from the office of
the Superintendent of Police to those of Sub-Divisional Police Officers and the Headquarters in
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rotation. If this be not entirely feasible, the
Daftars of Clerks should be changed every three
years. Cashiers should however be changed, every year.
(4) No transfers of Officers should be made or
suggested on account of unsatisfactory work. If an
officer is not upto the mark, it is for the
Superintendent of Police to set him right and bring
him up to the required standard. The correct course
would be for the Superintendent of Police to submit
proposals through the Deputy Inspector General
concerned regarding the reversion of the officer in
question, if he is officiating and to hold
departmental proceedings for inefficiency if his is
permanent.
(5) Applications from the relatives of Policemen or
outsiders, requesting Government on their behalf fortransfers should discouraged. Superintendents of
Police should, however, while ordering the transfers
of Constables, give sympathetic consideration to
genuine domestic difficulties.
(6) Whenever an application is received from a
Government servant requesting for his transfer, the
said application should be entered into rigistere to
be maintained in all offices in Form No.8 in Appendix
I. This register should be put up from time to time
before the Competent Authority who should consider the
applications entered in such register whenevertransfers are being considered.
15. Rule 3(1) of the Gujarat Civil Services
(conduct) Rules, 1971 reads as under:-
3. General :-
(1) Every Government servant shall at all times -
(i) maintain absolute integrity.
(ii) maintain devotion to duty, and
(iii) do nothing which is unbecoming of a Government
servant.
*Explanation :- A Government servant, who habitually
fails to perform a task assigned to him within the
time set for the purpose and with the quality of
performance expected of him, shall be deemed to be
lacking in devotion to duty within the meaning of
clause (ii).
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* [Inserted vide Govt. Notification GAD No. GS-88-
72/CDR/1087/U.O. 12/Inq. Cell, dated 21-12-
1988.]
16. Section 28 of the Bombay Police Act and Rule
153 of the Gujarat Police Manual, 1975 fell for
the consideration of a Division Bench of this
Court in the case of Haroon Yusufbhai (supra).
The Court explained the same in paragraphs Nos. 5
to 10 as under:-
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 asfollows:-
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"(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 forduty 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 keptat 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 atHimmatnagar, amounts to deputation, because deputation
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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.
17. The decision of the Division Bench referred
to above was later on considered by a learned
Single Judge of this Court in the case of
Hadmatsinh Naharsinh Sisodiya v. State of Gujarat
reported in 2014 (1) GLH 285, wherein the learned
Single Judge observed as under:-23. Honble Division Bench has clearly observed
that it is desirable that the authorities should
state as to how long services of constable are
required to meet with the exigency at the place of
transfer and as soon as emergent administrative
exigency is over at the place of transfer, they
must be sent back to their parent cadre.
24. Therefore, as observed by the Honble Division
Bench in context of provisions of Section 28 of
the Act read with Rule 152 of the Manual, thecompetent authority when decided to exercise
powers under the above provisions, had to clearly
provide as to how long services of the petitioners
were required at the place of transfer even if
such transfer was made in public interest. The
transfer of the petitioners are not ordinary. They
are made under Section 28(1) of the Act.
Therefore, such transfers could never be on any
other ground except for what is provided in
Section 28(1) of the Act.
25. In the present case, the transfer of the
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petitioners was not to meet with any exigency or
in public interest prevailed at transferred place
but the same was only on account of hooch tragedy
in connection with which the petitioners have been
departmentally punished. Such grounds for transfer
are not recognized, envisaged or intended by the
legislature in the provisions of Section 28 of the
Act read with Rule 152 of the Manual. When the
transfer of the petitioners are made under
statutory provision, even though the public
interest demanded or warranted taking of any
action against the petitioners, the same would not
weigh and permit the concerned authority to defy
the statutory provision. Even apart from this,
transfer of the petitioners could not have been
either for unlimited period or for period of five
years at a stretch. This very fact of providing no
time limit in order of one of the petitioners andfive years in the case of another petitioner would
lend support to the case of the petitioners that
their transfer was not for any requirement or
reasons as provided in Section 28 of the Act.
26. It is required to be noted that in the case of
petitioner in Special Civil Application No. 12765
of 2010, punishment of reduction in pay scale was
imposed whereas in the case of petitioner in
Special Civil Application No.3553 of 2011,
punishment of stoppage of increment came to be
imposed. Thus, departmental inquiry initiatedagainst the petitioner was concluded and no
further inquiry was pending against the
petitioner. The respondents instead of stating as
to how long services of the petitioners were
required at the place of transfer filed affidavit-
in-reply stating that the transfers were for five
years. Under these circumstances, it clearly
appears that the continuation of the petitioner at
the place of transfer is without authority of law.
27. Learned Assistant Government Pleader Mr. Raval
has relied on the decisions to point out that the
transfer of an employee is an incident of service
and could be made in public interest and for
administrative reasons. However, in none of the
cases, the Courts were faced with the question
paused for consideration in these petitions.
Similarly, the decision relied on by learned
advocate for the petitioners since on different
facts situation will have no application to the
facts of the case. In the present case, this Court
has examined the orders of transfer of the
petitioners in context of the provisions ofSection 28 of the Act read with Rule 152 of the
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Manual in exercise of which the respondent
authorities have passed impugned orders of
transfer of the petitioners. It may be that there
were compelling necessity in public interest to
pass transfer orders against the petitioners with
other police officers. In ordinary transfer in
public interest or for administrative reasons, the
Court may have limited judicial review. However,
the scope of judicial review is widened when the
transfer of police constable is made out of
district in exercise of powers under Section 28 of
the Act read with Rule 152 of the Manual, to
examine whether such transfer is meeting the
statutory requirement. The Court finds that the
transfer orders since not satisfying the statutory
provisions, cannot be permitted to be operated any
further. Impugned orders of transfer are,
therefore, required to be quashed and set aside.
28. For the reasons stated above, petitions are
allowed. Impugned orders dated 26.10.2010 and
24.9.2010 are quashed and set aside. It is
directed that the the impugned orders shall not
operate against the petitioners henceforth. Rule
is made absolute accordingly.
18. I may now look into some case law on the
subject of transfer.
19. The Supreme Court in the case of Union of
India and others V. Janardhan Dabanath and
another reported in 2004 (4) SCC 245, observed in
paragraph No.12:-
That brings us to the other question as to whether
the use of the expression "undesirable" warranted an
enquiry before the transfer. Strong reliance was
placed by learned counsel for the respondents on a
decision of this Court in Jagdish Mitter v. Union of
India (AIR 1964 SC 449, para 21, p. 456) to contend
that whenever there is a use of the word
"undesirable" it casts a stigma and it cannot be done
without holding a regular enquiry. The submission is
clearly without substance. The said case relates to
use of the expression "undesirable" in an order
affecting the continuance in service by way of
discharge. The decision has therefore no applicationto the facts of the present case. The manner, nature
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and extent of exercise to be undertaken by
Courts/Tribunal in a case to adjudge whether it casts
a stigma or constitutes one by way of punishment
would also very much depend upon the consequences
flowing from the order and as to whether it adversely
affected any service conditions-status, service
prospects financially and same yardstick, norms or
standards cannot be applied to all category of
cases.Transfers unless they involve any such adverse
impact or visits the persons concerned with any penal
consequences, are not required to be subjected to
same type of scrutiny, approach and assessment as in
the case of dismissal, discharge, reversion or
termination and utmost latitude should be left with
the department concerned to enforce discipline,
decency and decorum in public service which are
indisputably essential to maintain quality of public
service and meet untoward administrative exigenciesto ensure smooth functioning of the administration.
20. In Somesh Tiwari V. Union of India, reported
in 2009 (2) SCC 592, the Supreme Court observed
in paragraph No.16 as under:-
16.Indisputably an order of transfer is an
administrative order. There cannot be any doubt
whatsoever that transfer, which is ordinarily anincident of service should not be interfered with,
save in cases where interalia mala fide on the part
of the authority is proved. Mala fide is of two
kinds one malice in fact and the second malice in
law. The order in question would attract the
principle of malice in law as it was not based on
any factor germane for passing an order of transfer
and based on an irrelevant ground i.e. on the
allegations made against the appellant in the
anonymous complaint. It is one thing to say that the
employer is entitled to pass an order of transfer in
administrative exigencies but it is another thing tosay that the order of transfer is passed by way of
or in lieu of punishment. When an order of transfer
is passed in lieu of punishment, the same is liable
to be set aside being wholly illegal.
21. A Division Bench of the Allahabad High Court
speaking through B.S. Chauhan, J. (as his
Lordship then was) in the case of Krishna ChandraDubey Son of Ramraj Dubey V. Union of India,
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through Secretary Minstry of Agriculture,
reported in 2005 Law Suit (All) 1423, after an
exhaustive review of various decisions of the
Supreme Court observed as under:-
7. The issue of transfer and posting has been
considered time and again by the Apex Court and
entire law has been settled by catena of decisions.
It is entirely upon the competent authority to
decide when, where and at what point of time a
public servant is to be transferred from his present
posting. Transfer is not only an incident but an
essential condition of service. It does not affect
the conditions of service in any manner. The
employee does not have any vested right to be posted
at a particular place. (vide B. Varadha Rao v. State
of Karnatka and Ors., ; Shipli Bose V. State of
Bihar, ; Union of India v. N.P. Thomas,; Union of
India v. S.L.Abbas, ; Rajender Roy v. Union of
India, ; Ramadhar Panday v. State of U.P. And Ors.,
1993 Supp.(3) SCC 35; N.K. Singh v. Union of India
and Ors. ; Chief General Meneral Manager (Tel.) N.E.
Telecom Circle v. Rajendra Ch. Bhattacharjee,; State
of U.P. v. Dr. R.N. Prasad, 1995 (Supp) 2 SCC 151;
Union of India and Ors. V. Ganesh Dass Singh, ;Abani Kante Ray v. State of Orissa, 1995 (Supp) 4
SCC 169; Laxmi Narain Mehar v. Union of India, ;
State of U.P. V. Ashok Kumar Saxena, ; National
Hydroelectric Power Corporation Ltd. v. Shri
Bhagwan, ; Pulic Services Tribunal Bar Association
v. State of U.P. And Ors. ; State of U.P. V. Siya
Ram,; and Union of India v. Janardhan Debanath,.
8. An employee holding a transferable post cannot
claim any vested right to work at a particular place
as the transfer order does not affect any of his
legal rights and the Court cannot interfere with atransfer/posting which is made in public interest or
on administrative exigency. In Gujarat Electricity
Board v. Atmaram Sungomal Poshani, the Honble
Supreme Court has observed as under:-
Transfer of a Government servant appointed to a
particular cadre of transferable posts from one
place to the another is an incident of service. No
Government servant or employee of public undertaking
has legal right for being posted at any particular
place. Transfer from one place to other is generally
a condition of service and the employee has no
choice in the matter. Transfer from one place to
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other is necessary in public interest and efficiency
in the public administration.
9. In Union of India v. H.N.Kirtania, the Honble
Apex Court observed as under:-
Transfer of a public servant made on administrative
grounds or in public interest should not be
interfered with unless there are strong and pressing
grounds rendering the transfer order illegal on the
ground of violation of statutory rules or on ground
of malafide.
10. In Union of India V. S.L.Abbas (supra), the Apex
Court has observed that the Government instructions
on transfer are mere guidelines without any
statutory force and the Court or Tribunal cannot
interfere with the order of transfer unless the saidorder is alleged to have been passed by malice or
where it is made in violation of the statutory
provisions.
11. Similar view has been reiterated by the Supreme
Court, in Bank of India v. Jagjit Singh Mehta,
observing that the terms incorporated in the
transfer policy for posting of both the spouses, if
in service, at the same place, require to be
considered by the authorities along with exigencies
of administration and without any detriment to the
administrative need and claim of other employees.
12. In State Bank of India v. Anjan Sanyal, , the
Apex Court held as under:-
"4. An order of transfer of an employee is a part of
the service conditions and such order of transfer is
not required to be interfered with lightly by a
court of law in exercise of its discretionary
jurisdiction unless the court finds that either the
order is mala fide or that the service rules
prohibit such transfer or that the authorities, who
issued the order, had not the competence to pass the
order.
(Emphasis supplied).
13. In Rhone-Poulenc (India) Ltd. v. State of U.P.,,
the Hon'ble Supreme Court held as under.-
"the mere fact that after the order of transfer had
been issued and when Respondent 3 had failed to
report for duty, he was also asked by the CorporateManager, who was competent to order his transfer, to
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join the duties at Kanpur will not validate ' the
order of transfer issued by an authority not
competent to do so."
14. A relieving order could be passed when certain
functional responsibilities are to be carried out by
the transferred employee. For example, heading over
of the charge, classified documents, registers,
commercial documents, cash etc., as the case may be
(Vide Raj Bahadur Sharma v. Union of India, ).
15. Thus, it is clear that the transfer policy does
not create any legal right in favour of the
employee. It is settled law that a writ petition
under Article 226 of the Constitution is
maintainable for enforcing the statutory or legalright or when there is a complaint by an employee
that there is a breach of a statutory duty on the
part of the employer. Therefore, there must be a
judicially enforceable right for the enforcement of
which the writ jurisdiction can be resorted to. The
Court can enforce the performance of a statutory
duty by public bodies through its writ jurisdiction
at the behest of a person, provided such person
satisfies the Court that he/ she has a legal right
to insist on such performance. The existence of the
said right is a condition precedent for invoking the
writ jurisdiction. (Vide Calcutta Gas Company(Propriety) Ltd. v. State of West Bengaland Ors., ;
Mani Subrat Jain and Ors. v. State of Haryana, ;
State of Kerala v. Smt. A. Lakshmi Kutty, ; State of
Kerala v. K.G. Madhavan Pillai and Ors., ;Krishan
Lal v. State of J & K, ; State Bank of Patiala and
Ors. v. S.K. Sharma, ; Rajendra Singh v. State of
M.P., ;Rani Laxmibai Kshetriya Gramin Bank v. Chand
Behari Kapoor and Ors., ; Utkal University v. Dr.
Nrusingha Charan Sarangiand Ors., ; State of Punjab
v. Raghbir Chand Sharmaand Anr., ; and Sadhana Lodh
v. National Insurance Co. Ltd. and Anr., .
16. In Shilpi Bose (supra), the Apex Court has held
that order of transfer/posting "issued by the
competent authority did not violate any of her legal
right." The employee holding a transferable post
cannot claim any vested right for his/her posting at
a particular place.
17. In Atmaram Sungomal Poshani (supra), the Apex
Court in crystal clear words observed that anemployee fails to join at the transferred place, he
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exposes himself to the disciplinary proceedings for
disobedience of the order. The employee cannot avoid
the compliance of the transfer order. In Addisons
Paints & Chemicals Ltd. v. Workman, AIR 2001 SC 436,
a similar view has been reiterated and it has been
held therein that refusal to report for duty upon
transfer amounts to misconduct. Even if the transfer
order is bad for some reason, the employee must
ensure compliance of the order first and then raise
the issue with the employer for redressal of his
grievance.
18. In State of U.P. Gobardhan Lal, , the Hon'ble
Supreme Court held as under:-
"It is too late in the day for any governmentservant to contend that once appointed or posted in
a particular place or position, he should continue
in such place or position as long as he desires.
Transfer of an employee is not only an incident
inherent in the terms of appointment but also
implicit as an essential condition of service in the
absence of any specific indication to the contra, in
the law governing or conditions of service. Unless
the order if transfer is shown to be an outcome of a
mala fide exercise of power or violative of any
statutory provision (an Act or rule) or passed by an
authority not competent to do so, an order oftransfer cannot lightly be interfered with as a
matter of course or routine for any or every type of
grievance sought to be made. Even administrative
guidelines for regulating transfers or containing
transfer policies at best may afford an opportunity
to the officer or servant concerned to approach
their higher authorities for redress but cannot have
the consequence of depriving or denying the
competent authority to transfer a particular
officer/servant to any place in public interest and
as is found necessitated by exigencies of service as
long as the official status is not affected
adversely and there is no infraction of any career
prospects such as seniority, scale of pay and
secured emoluments. This Court has often reiterated
that the order of transfer made even in
transgression of administrative guidelines cannot
also be interfered with, as they do not confer any
legally enforceable rights, unless, as noticed
supra, shown to be vitiated by mala fides or is made
in violation of any statutory provision."
(Emphasis added).
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19. Similar view has been reiterated in Kendriya
Vidyalaya Sangathan v. Damodar Prasad Pandey, .
20. The transfer order may cause great hardship as
an employee would be forced to have a second
establishment at a far distant place, education of
his children may be adversely affected, may not be
able to manage his affairs and to look after his
family. This aspect was also considered by the Apex
Court in State of M.P. v. S.S. Kaurav, , wherein it
has been held that it is not permissible for the
Court to go into the relative hardship of the
employee. It is for the administration to consider
the facts of a given case and mitigate the real
hardship in the interest of good and efficient
administration.
21. The issue of "malus animus" was considered in
Tara Chand Khatri v. Municipal Corporation of Delhi
and Ors., , wherein the Hon'ble Supreme Court has
held that the High Court would be justified in
refusing to carry on investigation into the
allegation of mala fides, if necessary particulars
of the charge making out a prima facie case are not
given in the writ petition and burden of
establishing mala fide lies very heavily on the
person who alleges it and there must be sufficient
material to establish malus animus.
22. Similarly, in E.P. Royappa v. State of Tamil
Nadu and Anr., , the Hon'ble Supreme Court held that
a transfer is mala fide when it is made not for
professed purpose, such as normal course or in
public or administrative interest or in the
exigencies of service but for other purpose, that is
to accommodate another person for undisclosed
reasons. The Court further observed as under:-
"Secondly, we must not also over-look that the
burden of establishing mala fides is very heavy on
the person who alleges it.... The Court would,
therefore, be slow to draw dubious inferences from
incomplete facts placed before it by a party,
particularly when the imputations are grave and they
are made against the holder of an office which has a
high responsibility in the administration. Such is
the judicial perspective in evaluating charges of
unworthy conduct against ministers and other, not
because of any special status... but becauseotherwise, functioning effectively would become
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difficult in a democracy."
23. The Hon'ble Supreme Court in Sukhwinder Pal
Bipan Kumar and Ors. etc. etc. v. State of Punjab
and Ors., ; and Shivajirao Nilangekar Patil v. Dr.
Mahesh Madhav Gosavi and Ors., has made similar
observations.
24. In M. Sankaranarayanan, IAS v. State of
Karnataka and Ors., , the Hon'ble Supreme Court
observed that the Court may "draw a reasonable
inference of mala fide from the facts pleaded and
established. But such inference must be based on
factual matrix and such factual matrix cannot remain
in the realm of institution, surmise or conjecture."
25. In N.K. Singh (supra), the Hon'ble Supreme Court
has held that "the inference of mala fides should be
drawn by reading in between the lines and taking
into account the attendant circumstances."
26. In Arvind Dattatraya Dhande v. State of
Maharashtra, , the Hon'ble Supreme Court held as
under:-
"In view of the unimpeachable and eloquent testimony
of the performance of the duties, it will be obvious
that the transfer is not in public interest but is a
case of victimisation of an honest officer at the
behest of the aggrieved complainants carrying on the
business in liquor and toddy. Under these
circumstances, as stated earlier, the transfer of
the appellant is nothing but mala fide exercise of
the power to demoralise honest officer who would
efficiently discharge the duties of public office."
27. There has to be very strong and convincing
evidence to establish the allegations of mala fides
specifically alleged in the petition as the same
cannot merely be presumed. The presumption is in
favour of the bona fides of the order unless
contradicted by acceptable material. (Vide Kiran
Gupta and Ors. v. State of U.P. and Ors., ; and
Netai Bag and Ors. v. State of W.B. and Ors.).
28. In State of Punjab v. V.K. Khanna and Ors., AIR
2001 SC 343, the Hon'ble Apex Court examined the
issue of bias and mala fide, observing as under:-
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"Whereas fairness is synonymous with reasonableness-
bias stands included within the attributes and
broader purview of the word 'malice' which in common
acceptation means and implies 'spite' or 'ill will'.
One redeeming feature in the matter of attributingbias or malice and is now well settled that mere
general statements will not be sufficient for the
purposes of indication of ill will. There must be
cogent evidence available on record to come to the
conclusion as to whether in fact, there was existing
a bias or a mala fide move which results in the
miscarriage of justice.... In almost all legal
inquiries, 'intention as distinguished from motive
is the all-important factor' and in common parlance
a malicious act stands equated with an intentional
act without just cause or excuse."
29. Similar view has been reiterated in Samant and
Anr. v. Bombay Stock Exchange and Ors.,.
30. In Dr. Balkrishna Pandey v. State, 1997 Ad 1038
a Division Bench of this Court has held that if an
employee is at a station for a long time and the
transfer is made administratively only on that
ground, it cannot be a case of mala fide.
31. The Hon'ble Supreme Court in Sarvesh Kumar
Awasthi v. U.P. Jal Nigam, held as under:-
"In our view, transfer of officers is required to be
effected on the basis of set norms or guidelines.
The power of transferring an officer cannot be
wielded arbitrarily, mala fide or an exercise
against efficient and independent officer or at the
instance of politicians whose work is not done by
the officer concerned. For better administration,the officers concerned must have freedom from fear
of being harassed by repeated transfers or transfers
ordered at the instance of someone who has nothing
to do with the business of administration."
32. Transfer effected as a punitive measure is also
not permissible. Whether a transfer is punitive or
not is a question of fact, as held by the Hon'ble
Supreme Court in Radhey Shyam Gupta v. U.P. State
Agro Industries Corporation Ltd., . It was
permissible for the Court to go behind the order andfind out if it was punitive in nature.
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33. In Gobardhan Lal (supra), the Apex Court held as
under:-
"A challenge to an order of transfer should normallybe eschewed and should not be countenanced by the
courts or tribunals as though they are Appellate
authorities over such orders, which could assess the
niceties of the administrative needs and
requirements of the situation concerned. This is for
the reason that courts or tribunals cannot
substitute their own decisions in the matter of
transfer for that of competent authorities of the
State and even allegations of mala fides when made
must be such as to inspire confidence in the court
or are based on concrete materials and ought not to
be entertained on the mere making of it or onconsideration borne out of conjectures or surmises
and except for strong and convincing reasons, no
interference could ordinarily be made with an order
of transfer."
(Emphasis added)."
34. Similar view has been reiterated by the Apex
Court in State of U.P. v. Siya Ram, .
35. In First Land Acquisition Collector and Ors. v.
Nirodhi Prakash Gangoli and Anr., ; and Jasvinder
Singh and Ors. v. State of J & K and Ors., , the
Apex Court held that burden of proving mala fides is
very heavy on the person who alleges it. Mere
allegation is not enough. Party making such
allegations is under a legal obligation to place the
specific materials before the Court to substantiate
the said allegations.
36. It is settled legal proposition that in caseallegations of mala fide are made against any person
he is to be impleaded by name, otherwise the
allegations cannot be considered. (Vide State of
Bihar and Anr. v. P.P. Sharma, IAS. and Anr., AIR
1992 SC 1260; Dr. J.N. Banavalikar v. Municipal
Corporation of Delhi and Anr., AIR 1996 SC 326;All
India State Bank Officers Federation and Ors v.
Union of Indiaand Ors., ; & I.K. Mishra v. Union of
India and Ors., ).
37. In Federation of Rly. Officers Association v.
Union of India and Ors., , the Apex Court has held
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that the allegation of mala fide has to be
specifically made and the person against whom such
allegations are made has to be impleaded and in his
absence such allegations cannot be taken into
consideration.
38. In this case, neither the authority which wanted
to accommodate Dr. Dinesh Kumar nor Shri Dinesh
Kumar had been impleaded before the Tribunal. Even
before this Court, Dr. Dinesh Kumar has been
impleaded without leave of the Court. A period of
five years has passed but no notice has been issued
to him. In view of the above, the allegations of
mala fide cannot be considered.
39. In Director of School Education Madras and Ors.v. O. Karuppa Thevan and Anr., 1994 Supp (2) SCC
666, the issue of transfer in mid academic session
was considered by the Hon'ble Supreme Court and it
was held that "the fact that children of the
employee are studying should be given due weight, if
the exigencies of the service are not urgent."
Therefore, it is for the employer to examine as to
whether transfer of an employee can be deferred till
the end of the current academic session. The Court
has no means to assess as what is the real urgency
of administrative exigency.
40. In Suresh Chand Sharma v. Chairman, UPSEB and
Ors., 2005 AIR SCW 1133, the Hon'ble Supreme Court
deprecated the transfer under political pressure. In
Lokesh Kumar v. State, 1998 (1) AWC 27, this Court
has held that transfer in colourable exercise of
power without administrative exigency only on
political or extraneous consideration is liable to
be set aside. The transfer of an employee must be
made considering the administrative exigency and not
at the whim of any administrator/ politician,
including the Ministers, for the reason that in such
a case transfer order may be passed for extraneous
consideration as held by this Court in Director v.
Nathi Lal, 1995 (2) UPLBEC 1121. In Pratap Narain
Srivastava v. State of U.P. and Ors., 1995 (1) Edu.
& Service Cases 509; Pradeep Kumar Agrawal v.
Director, (1994) 1 UPLBEC 189; Sheo Kumar Sharma and
Ors. v. District Shiksha Adhikari, Kanpur Dehat and
Ors., (1991) 1 UPLBEC 690; Smt Gayatri Devi v. State
of U.P., 1997 (2) UPLBEC 925, Pradip Kumar v.
Director Local Bodies, 1994 (1) UPLBEC 156; Pawan
Kumar Srivastava v. U.P. State Electricity Board,1995 (1) UPLBEC 414; Shiv Kumar Sharma v. Basic
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Shiksha Adhikari, 1991 (1) UPLBEC 69; and Goverdhan
Lal v. State of U.P. and Ors., 2000 (2) UPLBEC 1356,
it has categorically been held that a transfer order
passed under influence of any other person cannot be
sustained in the eyes of law.
41. In view of the above, the legal position can be
summarized that transfer is a condition of service.
It does not adversely affect the status or
emoluments or seniority of the employee. The
employee has no vested right to get a posting at a
particular place. It is within the exclusive domain
of the employer to determine as to at what place and
for how long the services of a particular employee
are required. There is a very little scope of
judicial review by the Court/Tribunal against the
transfer order and only if it is found to be incontravention of the statutory Rules or for mala
fide that the Court can interfere. This is for the
reason that a transfer order does not violate any
legal right of the employee. Transfer policy of the
State does not have any statutory force. It merely
provides for guidelines for the understanding of the
Departmental personnel. However, transfer order
should be passed in public interest or
administrative exigency, and not arbitrarily or for
extraneous consideration or for victimization of the
employee not under political pressure. If a party
alleges mala fides, the burden to prove it lies uponhim and it is to be proved by taking appropriate
pleadings and the person against whom the allegation
of mala fides are alleged, should be impleaded by
name. The Court must examine the case from all
angles to find out whether the order is punitive or
not.
42. If a transfer order is passed during the
pendency of the disciplinary proceedings, the Court
may examine as to whether the order is punitive in
nature as it may also be necessary to facilitate the
proceedings and as a preventive measure of tampering
with the evidence or witnesses.
43. Once a transfer order is passed, the Competent
Authority has a right to cancel it or modify it,
even after it stood executed. The transfer order
must be passed by the Competent authority and
employee should be relieved for joining at the
transferred place, if it is necessary to relieve him
formally. There is no prohibition to post both thespouses at different places, if they are in service,
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and cannot be adjusted at the same place or services
of one of them is required in administrative
exigency at a different place. Same remains the
position of mid-academic session. The employer may
consider and keep this aspect in mind, but he cannot
compromise with administrative requirement.
22. In view of the above, the legal position on
the issue of transfer can be summarized as
under:-
1) Transfer is a condition of service.
2) It does not adversely affect the status or
emoluments or seniority of the employee.
3) The employee has no vested right to get a
posting at a particular place or can choose to
serve at a particular place for a particular
tenure.
4) It is within the exclusive domain of the
employer to determine as to at what place and for
how long the services of a particular employee
are required.
5) Transfer order should be passed in public
interest or considering any administrative
exigency, and not arbitrarily or for any
extraneous consideration or for victimization of
the employee nor it should be passed under
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political pressure.
6) There is a very little scope of judicial
review by the Court/Tribunal against the transfer
order and the same is restricted only if the
transfer order is found to be in contravention of
the statutory Rules or mala fides is established.
7) In case of mala fides, the employee has to
make specific averments and should prove the same
by adducing implacable evidence.
8) The person against whom allegation of mala
fide is alleged is to be impleaded as a party by
name.
9) Transfer policy or guidelines issued by the
State or employer does not have any statutory
force as it merely provides for guidelines for
the understanding of the Departmental personnel.
10) The Court does not have a power to annul the
transfer order only on the ground that it willcause personal inconvenience to the employee, his
family members and children as consideration of
such issues fall within the exclusive domain of
the employer.
11) If the transfer order is made in mid-academicsession of the children of the employee, the
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Court/Tribunal cannot interfere. It is for the
employer to consider such a personal grievance.
23. Since I am dealing with a very sensitive
issue as regards the integrity and discipline
concerning the police force I deem it necessary
to look into the code of conduct for the police
in India (1960).
36. The Police figure as Entry 2 in State List inthe Seventh Schedule of the Constitution, thereby
making State Government primarily responsible for
maintaining public order. Invariably, police, which
is part of the civil administration, is at the
forefront in maintaining law and order under the
framework of constitutional governance based on
principles of Sovereign Socialist Secular Democratic
Republic to secure fundamental right of its citizens.
In consonance with the idea of democratic policing, a
Code of Conduct for the Police in India was adopted
at the Conference of Inspectors General of Police in
1960 and circulated to all the State Government.
Code of Conduct for the Police in India (1960)
1. The police must bear faithful allegiance to the
Constitution of India and respect and uphold the
rights of the citizens as guaranteed by it.
2. The police are essentially a law enforcing agency.
They should not question the propriety or necessity
of any duly enacted law. They should enforce the law
firmly and impartially, without fear or favor, maliceor vindictiveness.
3. The police should recognized and respect the
imitations of their powers and functions. They should
not usurp or even seem to usurp the functions of the
judiciary and sit in judgment on cases. Nor should
they avenge individials and punish the guilty.
4. In securing the observance of law or in
maintaining order, the police should, as far as
practicable, use the methods of persuasion, advice
and warning. When the application of force becomesinevitable, only the irreducible minimum of force
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required in the circumstances should be used.
5. The prime duty of the police is to prevent crime
and disorder and the police must recognize that the
test of their efficiency is the absnece of both and
not the visible evidence of police action in dealing
with them.
6. The police must recognize that they are members
of the public, with the only difference that in the
interest of the society and on its behalf they are
employed to give full time attention to duties, which
are normally incumbent on every citizen to perform.
7. The police should realize that the efficient
performance of their duties would be dependent on the
extent of ready cooperation that they recive from the
public. This, in turn, will depend on their abilityto secure public approval of their conduct and
actions and to earn and retain public respect and
confidence. The extent to which they succeeded in
obtaining public cooperation will diminish
proportionality the necessity of the use of physical
force of compulsion in the discharge of their
functions.
8. The police should always keep the welfare of
the people in mind and be sympathetic and considerate
towards them. They should always be ready to offer
individual service and friendship and rendernecessary assistance to all without regard to their
wealth and/or social standing.
9. The police should always place duty before self,
should maintain calm in the face of danger, scorn or
ridicule and should be ready to sacrifice their lives
in protecting those of others.
10. The police should always be Courteous and well
mannered; they should be dependable and impartial;
they should possess dignity and courage; and should
cultivate character and the trust of the people.
11. Integrity of the highest order is the fundamental
basis of the prestige of the police. Recognizing
this, the police must keep their private lives
scrupulously clean, develop self-restrain and be
truthful and honest in thought and deed, in both
personal and official life, so that the public may
regard them as exemplary citizens.
12. The police should recognize that their full
utility to the State is best ensured only bymaintaining a high standard of discipline, faithful
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performance of duties in accordance with law and
implicit obedience to the lawful directions of
commanding ranks and absolute loyalty to the force
and by keeping themselves in the State of constant
training and preparedness.
24. The ratio of the Division Bench decision in
the case of Haroon Yusuf (supra) makes at least
one thing very clear that the inter district
transfer of a police constable should be in
accordance with Section 28(1) of the Act read
with rule 152 of the Police Manual. It appears on
close reading of the Division Bench decision that
the view taken is that if a police constable is
transferred outside the district the same will
have to be construed as on deputation. It is in
that context that the Division Bench observed
that if a police Constable is to be treated as on
deputation then the period of deputation should
be prescribed and made clear and that the
deputation should not be for an indefinite period
of time. What is sought to be argued before me is
that in any circumstances a police constable
cannot be transferred to a different district
other then the one where he was appointed except
to meet with the exigency at the transferred
place and as soon as the emergent administrative
exigencies cease to exist at the transfered
place, such police constable must be sent back to
his parent cadre. Again what is argued before me
is that the petitioners were transferred not on
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account of any emergent administrative exigencies
but by way of punishment since they had attended
the wedding reception of the son of a noted
bootlegger of the city of Ahmedabad against whom
there are 23 offences registered so far under the
Prohibition Act.
25. The question which I am posing for my
consideration is whether the term administrative
exigencies should be construed so narrowly that
in any event it is not permissible in law to
transfer any police constable to any other
district other then one where he was appointed.
25. Article 154(3)(iii) of the Manual provides
that while effecting transfers the exigencies of
public service and/or the disciplinary measures
can be taken into consideration. Article 154(3)
(D) also provides that a police constable can be
transferred from one district to another if the
competent authority considers it necessary. I am
of the view that the existence of exigencies of
the service at the place of transfer although isa pre-requisite for the exercise of the power yet
should not be construed so narrowly so as to
defeat the very object of transfer from one place
to the other. The formation of such opinion is a
matter which, in view of the important nature of
the function should primarily be left to thesubjective satisfaction of the authority
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concerned. The responsibility for good
administration and maintenance of law and order
is that of the government. The maintenance of an
efficient, honest and experienced police service
is a must for the due discharge of that
responsibility. Therefore, the authority
concerned alone is best suited to judge as to the
existence of exigencies of such a service,
requiring inter district transfer. The term
exigency being understood in its widest and
pragmatic sense as a rule, the court would not
judge the propriety or sufficiency of such
opinion by objective standards, save where the
subjective process of forming it, is vitiated by
malafides, dishonesty, extraneous purpose, or
transgression of the limits circumscribed by the
legislation.
26. Article 154(3)(iii) of the Manual provides
that while effecting transfers the exigencies of
public service and/or the disciplinary measures
can be taken into consideration. Article 154(3)(D) also provides that a police constable can be
transferred from one district to another if the
competent authority considers it necessary. I am
of the view that the existence of exigencies of
the service at the place of transfer although is
a pre-requisite for the exercise of the power yetshould not be construed so narrowly so as to
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defeat the very object of transfer from one place
to the other. The formation of such opinion is a
matter which, in view of the important nature of
the function should primarily be left to the
subjective satisfaction of the authority
concerned. The responsibility for good
administration and maintenance of law and order
is that of the government. The maintenance of an
efficient, honest and experienced police service
is a must for the due discharge of that
responsibility. Therefore, the authority
concerned alone is best suited to judge as to the
existence of exigencies of such a service,
requiring inter district transfer. The term
exigency being understood in its widest and
pragmatic sense as a rule, the court would not
judge the propriety or sufficiency of such
opinion by objective standards, save where the
subjective process of forming it, is vitiated by
malafides, dishonesty, extraneous purpose, or
transgression of the limits circumscribed by the
legislation.
27. In the case of Union of India and others vs.
Janardhan Debanath and others reported in 2004
(4) SCC 245, the Supreme Court held as follows:-
The manner, nature and extent of exercise to be
undertaken by Courts/Tribunals in a case to adjudge
whether the use of the word undesirable casts a
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stigma or constitutes a punishment would depend
upon the consequences flowing from the order and as
to whether it adversely affected any service
conditions status, service prospects financially
and same yardstick, norms or standards cannot be
applied to all category of cases. Transfers unless
they involve any such adverse impact or visit the
persons concerned with any penal consequences, are
not required to be subjected to same type of
scrutiny, approach and assessment as in the case of
dismissal, discharge, reversion or termination and
utmost latitude should be left with the department
concerned to enforce discipline, decency and
decorum in public service which are indisputably
essential to maintain quality of public service and
meet untoward administrative exigencies to ensure
smooth functioning of the administration.
The allegations made against the respondents are of
serious nature, and the conduct attributed is
certainly unbecoming. Whether there was any
misbehaviour is a question which can be gone into
in a departmental proceeding. For the purposes of
effecting a transfer, the question of holding an
enquiry to find out whether there was mis-behaviour
or conduct unbecoming of an employee is unnecessary
and what is needed is the prima facie satisfaction
of the authority concerned on the contemporary
reports about the occurrence complained of an if
the requirement, as submitted by learned counselfor the respondents, of holding an elaborate
enquiry is to be insisted upon the very purpose of
transferring an employee in public interest or
exigencies of administration to enforce decorum and
ensure probity would get frustrated. The question
whether respondents could be transferred to a
different division is a matter for the employer to
consider depending upon the administrative
necessities and the extent of solution for the
problems faced by the administration. It is not for
the Supreme Court to direct one way or the other.
28. I may also quote with profit the decision of
the Supreme Court in the case of State of U.P.
And others v. Gobardhan Lal reported in AIR 2004
SC2165. I may quote the observations made by the
Supreme Court in paragraph No.8:-
It is too late in the day for any Government servant
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to contend that once appointed or posted in a
particular place or position, he should continue in
such place or position as long as he desires.
Transfer of an employee is not only an incident
inherent in the terms of appointment but also
implicit as an essential condition of service in the
absence of any specific indication to the contra in
the law governing or conditions of service. Unless
the order of transfer is shwon to be an outcome of a
mala fide exercise of power or violative of any
statutory provision (an Act or Rule) or passed by an
authority not competent to do so, an order of
transfer cannot lightly be interfered with as a
matter of course or routine for any or every type of
grievance sought to be made. Even administrative
guidelines for regulating transfers or containing
transfer policies at best may afford an opportunity
to the officer or servant concerned to approach theirhigher authorities for redress but cannot have the
consequence of depriving or denying the competent
authority to transfer a particular officer/servant to
any place in public interest and as is found
necessitated by exigencies of service as long as the
official status is not affected adv