police officials attending marriage reception of son of a criminal is a sufficient ‘public...

7/23/2019 Police officials attending marriage reception of son of a criminal is a sufficient Public Interest to transfer them : G

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C/SCA/8463/2015 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO. 8463 of 2015

With


TO


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

police officials attending marriage reception of son of a criminal is a sufficient ‘public...

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