Special Civil Application Nos. 8463 and 8469 to 8489 of 2015. Case: Bharatsinh Himmatsinh Champavat and Ors. Vs State of Gujarat and Ors.. High Court of Gujarat (India)
| Case Number | Special Civil Application Nos. 8463 and 8469 to 8489 of 2015 |
| Counsel | For Appellant: H.B. Champavat and R.J. Goswami, Advocates and For Respondents: Government Pleader |
| Judges | J. B. Pardiwala, J. |
| Issue | Bombay Police Act, 1951 - Sections 17, 23, 23(h), 28, 28(1), 28(2); Constitution of India - Articles 154(3)(D), 154(3)(iii), 226 |
| Judgement Date | August 06, 2015 |
| Court | High Court of Gujarat (India) |
Judgment:
J. B. Pardiwala, J.
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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.
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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.
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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.
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It appears on plain reading of the orders of transfer that the same were passed in the public interest.
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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 a constable appointed in one district cannot be 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.
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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.
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On the other hand, this application has been vehemently opposed by Mr. Rutvij Oza, the learned AGP appearing for the State. He submitted that the respondents Nos. 1 and 2 committed no error in passing the impugned orders of transfer.
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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 Hon'ble Courts attentions on the facts which were considered before passing of transfer order for the petitioners and therefore brief facts are as under:
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The petitioner had attended the marriage reception on 15.02.2015 of the son of Kishorshingh @ Kishor Langda who is a well known bootlegger. There are in all 23 prohibition 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 Commissionerate 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.
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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.
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Thereafter, Deputy Commissioner of Police, Ahmedabad has submitted preliminary report to the 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.
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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 Hon'ble Court.
Generally, for the purpose of rendering the police efficient and preventing abuse or neglect of their duties.
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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 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 from the 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.
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I respectfully say and submit that the orders of transfers are passed in consonance with the Gujarat Civil Service (Conduct) Rules, 1971 specifically under Rule-3(1) (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 Hon'ble 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.
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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.
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I respectfully state that the petitioner are relying on decision of this Hon'ble Court passed in Haroon Yusufbhai Kadiwala V/s. Director General of Police and Another reported in 2011(3) GLH (U.J.) 8 is not applicable to the facts of the present case and also the other decisions passed by this Hon'ble Court which was confirmed by Division Bench of this Hon'ble Court, facts of the aforesaid decisions are all together on a different footing and therefore I request this Hon'ble 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.
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In the facts and circumstances stated above, the present petition is required to be dismissed."
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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.
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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...
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