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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6809 OF 2017
PETITIONER : Vazeer Hussain Shaikh
Aged about 52 years, Occupation : Service,
R/o 113, MLA Hostel, Civil Lines,
Nagpur.
VERSUS
RESPONDENTS: 1] State of Maharashtra,
through its Secretary in the Ministry of Home,
Mantralaya, Mumbai.
2] Commissioner of Police, Nagpur.
3] Police Establishment Board,
Nagpur.
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Mr. S. V. Bhutada with Mr. Yash Maheshwari, Advocates for
the petitioner.
Mr. N. B. Jawade, A.G.P. for non-applicant nos.1 to 3
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CORAM : PRASANNA B. VARALE and
ARUN D. UPADHYE, JJ.
th DATE : 15 NOVEMBER, 2017.
ORAL JUDGMENT (Per Prasanna B. Varale, J.) 1] Heard. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, the matter is taken up for final disposal at the stage of admission itself. ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:43 :::
2 WP6809.17.odt 2] By the present petition, the petitioner is challenging the
judgment and order passed by the Maharashtra Administrative Tribunal, Nagpur Bench, Nagpur dated 12.10.2017 in Original Application No. 467 of 2017, thereby dismissing the application filed by the petitioner challenging his transfer.
3] It is the case of the petitioner that he was recruited in police force in the State of Maharashtra in year 1990. In year 2004, the petitioner was promoted as Assistant Police Inspector and in year 2016 he was promoted as Police Inspector. Pursuant to the orders of transfer, the petitioner joined the duties at Nagpur on 08.1.2017 from Raigad and on 11.1.2017, the petitioner was temporarily posted in Economic Offences Wing, Nagpur. In the said wing, the petitioner was Head of the Property Cell, which was constituted to investigate the offences related to the property matters in the city of Nagpur. It was the case of the petitioner that he was confirmed in Economic Offences Wing and was heading the Special Investigation Team (SIT). The SIT was constituted to inquire into the cases of land grabbing and defrauding the general public by one Dilip Gwalbanshi and his gang.
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3 WP6809.17.odt 4] On 24.5.2017, the In-charge Additional Commissioner of
Police (Crimes), Nagpur asked the petitioner to hand over all the cases which were being investigated by him to SIT and retained with him the investigation of the only crime i.e. Crime No.312/2016, registered by Smt. Sunita Rajnish Singh. The petitioner was transferred by order dated 04.7.2017 from Economic Offences Wing to Traffic department. It is the grievance of the petitioner that no reasons were assigned in the said transfer order nor the order was specifying the exceptional reason so as to effect the mid-term transfer of the petitioner. Being aggrieved by the said order, the petitioner approached Maharashtra Administrative Tribunal by filing O.A. No. 467/2017.
5] The Tribunal, while issuing notice on the Original Application filed by the petitioner, by way of interim direction, directed the respondents not to relieve the petitioner. The petitioner proceeded on sick leave and joined his duties on 10.7.2017. On his joining the duties, the petitioner was served with the order issued by the Deputy Commissioner of Police, Economic Offences Wing, Nagpur, directing the petitioner to handover all the pending case ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:43 ::: 4 WP6809.17.odt papers to the Special Investigation Team, except case papers of Crime No. 312/2016. The petitioner further submits that the learned Tribunal by the judgment and order dated 12.10.2017, dismissed the original application.
6] Mr. Bhutada, the learned counsel for the petitioner vehemently submitted that the Tribunal has failed to consider that the transfer order of the petitioner, which was a mid-term transfer, was clearly contrary to the provisions of Maharashtra Police Act, 1951. It was the further submission of the learned counsel for the petitioner that the provisions of said Act had protection over the tenure and it was his right to complete the tenure on the said post and mid-term transfer of the petitioner was depriving him to exercise his right. The learned counsel for the petitioner submitted that mid- term transfer of the petitioner was contrary to the provisions of Section 22-N(2) of the Act. It was also his submission that the only ground for effecting transfer of the petitioner namely, administrative difficulty or administrative exigency, cannot be a ground to effect transfer of the petitioner. The learned counsel then submitted that the Department also cannot raise a ground that the petitioner was ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:43 ::: 5 WP6809.17.odt transferred to fill up the vacancy in Traffic branch at Nagpur. He then submitted that mid-term transfer of the petitioner has resulted in serious prejudice to the petitioner. He submitted that even assuming that no prejudice is caused to the petitioner, his mid-term transfer in contravention of the provisions of Maharashtra Police Act itself is unsustainable. The learned counsel for the petitioner submitted that the petitioner is having clean and unblemished service record and the work of the petitioner was appreciated by his superiors time and again. The learned counsel for the petitioner in support of his submissions relied on the judgments of the Apex Court as well as this Court.
7] Mr. Jawade, the learned Assistant Government Pleader for the respondents vehemently opposed submissions of the learned counsel for the petitioner. He vehemently advanced the counter submissions and supported the order impugned in the petition passed by the Tribunal. The learned Assistant Government Pleader submitted that though, the petitioner alleges that his transfer is a mid-term transfer, the order is of posting the petitioner from one branch to another branch i.e. from Economic Offences Wing to ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:43 ::: 6 WP6809.17.odt Traffic branch. The learned AGP vehemently submitted that respondent authorities, in its wisdom, considering the good service record of the petitioner and the fact that there is a serious problem of regulating the traffic, thought it fit to utilize the services of the petitioner where it was more necessary. So also they though that the petitioner could handle the problems faced in regulating traffic and ultimately it would be in the interest of general public and accordingly, the authorities transferred the petitioner in traffic branch. The learned AGP then submitted that as the petitioner himself submitted that his service record is clean and unblemished, his posting from one branch to another branch, that too within the city limits of Nagpur and the same Commissionerate area, is causing no prejudice to the petitioner nor the same is in contravention of any of the provisions of the Act. On the contrary, according to him, provisions of the Act in respect of transfer of the officer are scrupulously followed. The learned AGP submitted that before issuing the posting orders, the matter was under the scrutiny and consideration of respondent no.3 - Police Establishment Board, Nagpur as per the requirement of the Act and the respondent no.3 Board on assessment of the material, approved the posting of the ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:43 ::: 7 WP6809.17.odt petitioner. The learned AGP has placed reliance on the unreported judgments of this Court in Writ Petition No.14200 of 2016 (State of Mah. and another .vs. Siddharth Krushnarao Kasbe and another) and in Writ Petition No. 1277 of 2016 (Sanjay Gulabrao Deshmukkh .vs. State of Mah and others.) 8] On the backdrop of the rival submissions of the learned counsel for the respective parties, we have gone through the material placed on record as well as the relevant provisions of the Maharashtra Police Act.
9] The petitioner has placed on record a copy of the order dated 11.1.2017 at Annexure -A1. Perusal of the order clearly shows that the petitioner was transferred from Raigad division, where he was working in Civil Right Protection wing. The order further shows that the petitioner was posted in the economic offences wing and this posting was a temporary charge. (emphasis supplied) 10] As it was the thrust of the learned counsel for the petitioner that the impugned transfer order is a mid term transfer, we asked the learned counsel to place on record first transfer order ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:43 ::: 8 WP6809.17.odt of the petitioner, whereby he was brought to Nagpur. As the learned counsel for the petitioner was unable to present said document, the learned AGP made available the order dated 13.1.2016 for our perusal. The said order dated 13.1.2016 is taken on record and marked as 'Exhibit-X' for identification. Perusal of the said order shows that the order was effected under the provisions of Section 22-N(2) of the Maharashtra Police Act. The respondent no.3 Police Establishment Board, by exercising its powers effected transfer of nearly 45 police officers. Insofar as the petitioner is concerned, he is placed at Sr.No.3. The petitioner was working at Pune Commissionerate Area in Pune city and was transfered to Nagpur city i.e. under Nagpur Commissionerate area. This order dated 13.1.2016 assumes importance on the backdrop of the submissions of the learned counsel for the petitioner.
11] As referred to above, the petitioner was posted in Economic Offences Wing, Nagpur city by order dated 11.1.2017. The transfer of the petitioner to Nagpur was on his promotion. The communication dated 27.4.2017 placed on record at Annexure-A4 in the petition shows that the petitioner was one of the members of a ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:43 ::: 9 WP6809.17.odt Special Investigation Team (SIT). The said team was headed by the Deputy Commissioner of Police, Circle No.2, Nagpur City, namely Shri Rakesh Kalasagar. This SIT was created for carrying out investigation in the matter of land grabbing by one land mafia namely Dilip Gwalbanshi and his gang. The other documents placed on record by the petitioner itself show that by order dated 24.5.2017, issued by the In-charge Joint Commissioner of Police (Crimes), investigation of Crime No.312/2016 was retained with the petitioner. The order states that as Crime No. 312/2016 is a sensitive matter and the petitioner was in the Economic Offences Wing and there were other matters for investigation assigned to the said wing and as it may not be possible for the petitioner to concentrate on the investigation of Crime No.312/2016, the investigation of said crime only was retained with the petitioner and the petitioner was directed to handover the case papers and case diaries of the other crimes to SIT.
12] Perusal of the order impugned i.e. order dated 04.7.2016 shows that the petitioner was transferred to Traffic branch on a vacant post from Economic Offences wing. The order states that it is effected on administrative ground. The learned counsel for the ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:43 ::: 10 WP6809.17.odt petitioner submitted that the vacancy in Traffic branch was created only to transfer the petitioner to that branch. The document placed on record at Annexure-A8 shows that one Shri G.G. Tathod, P.I. was transferred from Crime branch to Traffic branch on his request and one Shri S. R. Khandekar, P.I. was transferred from Traffic branch to Economic Offences wing on administrative ground. Perusal of these documents show that the petitioner is the other officer posted at Traffic branch by order dated 04.7.2017. Considering these facts, it can be said that the petitioner was an additional officer in traffic branch along with other officers, who were earlier transferred by order dated 22.05.2017.
13] In the reply on behalf of respondent no.2 -
Commissioner of Police, Nagpur, it is stated that in view of the provisions of sub-section 2 of Section 22(N) of the Act, the competent authority may transfer a police officer after obtaining approval from Police Establishment Board established under the Act. It is then stated that the respondent no.3 Board consists of Police Commissioner, Nagpur City, Joint Commissioner of Police, Additional Commissioner of Police, Deputy Commissioner of Police (Head Quarter). It is further stated that in the meeting dated 04.7.2017 of ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:44 ::: 11 WP6809.17.odt respondent no.3 Board, the subject of placement of six police officials was discussed and under the approval by the Board, the petitioner was posted from Economic Offences wing to Traffic branch. It is also stated that as police force being the law and order maintaining and enforcing agency, the administrative head of the Commissionerate area i.e. respondent no.2 - Commissioner of Police, Nagpur by considering the exigencies, is duty bound to take the decision of shifting/posting of the officer from one place to another place. It is also stated in the reply that as there is a pressure of increasing traffic and construction of Metro Rail Project is going on, it was necessary to post a Police Inspector in the Traffic department so as to regulate the traffic. It is also stated in the reply that it is not only the petitioner, who was transferred to another branch, but there were other five officers, who were posted to other various establishments and these officers have already followed the orders dated 04.7.2017 and have joined at their respective places.
14] Mr. Bhutada, the learned counsel for the petitioner invited our attention to the provisions of Maharashtra Police Act. As it is the submission of the learned counsel for the petitioner that transfer order of the petitioner, which is a mid term transfer and is in ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:44 ::: 12 WP6809.17.odt contravention of Section 22N(2) of the Act, we have gone through the relevant provision. The term "Mid-term Transfer" is defined in section 2(6B) and the same read as "transfer of a Police Personnel in the Police Force other than the General transfer". The term "General Transfer" is defined in Section 2(6A) and the same reads as "means posting of a Police Personnel in the Police Force from one post, office or Department to another post, office or Department in the month of April and May of every year, after completion of normal tenure as mentioned in subsection (1) of section 22N." It would be useful to refer to the provision on which the learned counsel for the petitioner has placed reliance i.e. Section 22N(2), which reads thus :
"22N. Normal tenure of Police Personnel and Competent Authority.
1. .......
2. In addition to the grounds mentioned in sub- section (1), in exceptional cases, in public interest and on account of administrative exigencies, the Competent Authority shall make mid-term transfer of any Police Personnel of the Police force. [Explanation - For the purposes of this sub-section, the expression "Competent Authority" shall mean - Police Personnel ...... Competent Authority
(a) Officers of the Indian Police Service ..... Chief Minister ;::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:44 :::
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(b) Maharashtra Police Service Officers of and above the rank of Deputy Superintendent of Police ... Home Minister.
(c) Police Personnel upto the rank of Police Inspector for transfer out of the respective Range or Commissionerate or Specialized Agency ..... Police Establishment Board No.2.
(d) Police Personnel upto the rank of Police Inspector for transfer within the respective Range, Commissionerate or Specialized Agency ...... Police Establishment Boards at the Level of Range, Commissionerate or Specialized Agency, as the case may be ;
(e) Police Personnel upto the rank of Police Inspector for transfer within the District ...... Police Establishment Board at District Level.
Provided that, in case of any serious complaint, irregularity, law and order problem the highest Competent Authority can make the transfer of any Police Personnel without any recommendation of the concerned Police Establishment Board.] 15] It was the submission of the learned counsel for the petitioner that while effecting mid-term transfer, the order must satisfy the requirements namely, transfer in exceptional cases, in public interest and on account of administrative exigencies, whereas ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:44 ::: 14 WP6809.17.odt transfer order of the petitioner states only one ground i.e. on account of administrative exigency and it fails to refer to the other grounds. 16] On reading of the provision and in view of the material placed before us, we are of the opinion that though, the transfer order refers the only ground of administrative exigency, the material placed before us also satisfies the other ground i.e. public interest. We are unable to accept the submission of the learned counsel that while effecting transfer under Section 22N(2), it is necessary to meet all the three grounds namely exceptional case, public interest and administrative exigency. In our opinion, an exceptional case itself would be a ground in certain cases and there may not be the requirement of satisfying other two grounds.
17] Insofar as the present petition and the order impugned is concerned, as stated above by us, the order was passed on the ground of administrative exigency and the exigency is referred to in the reply filed by the State. It is specifically stated that in view of excess pressure of the traffic, the competent authority i.e. respondent no.2 - Commissioner of Police thought it fit to post an officer of the rank of Police Inspector so as to regulate the traffic. This reason also ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:44 ::: 15 WP6809.17.odt takes care of the other ground namely public interest. It cannot be disputed that regulation of traffic is an act of public interest. If the traffic is regulated the same would serve the purpose of convenience of public at large and this act is certainly in the interest of public. The learned Maharashtra Administrative Tribunal took into consideration this very purpose while dealing with the provision of Section 22N-(2).
18] Mr. Bhutada, the learned counsel for the petitioner, in support of his submissions placed heavy reliance on the Division Bench judgment of this Court reported in 2012 (2) All M.R. 322 in the case of Purushottam S/o Govindrao Bhagwat .vs. State of Maharashtra and others. In this case, the Division Bench was considering the transfer on the backdrop of the provisions of Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005. It was a case of mid-term transfer, effected under Section 4(4) of the Act. There, an attempt was made to support the transfer order on the ground that it was a special case and there was a post vacant to effect the transfer. The Division Bench found that no material was brought before the Court to show that it was a special case. The ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:44 ::: 16 WP6809.17.odt Division Bench thus, in view of the judgment of the Apex Court and various Courts, observed that the transfer of government servants cannot be an act of sweet will of the authorities. In Purushottam Bhagwat's case, the petitioner therein who was transferred and posted as Executive Engineer, Public Works Division No.1, Jalna and before he could complete one year on the post, he was transferred from Jalna to Yavatmal. The stand of the government was, the transfer was effected due to exceptional circumstances or special reasons, but the government failed to place on record any material in that respect. Accordingly, the order of transfer impugned therein was quashed and set aside.
19] Mr. Bhutada, the learned counsel for the petitioner then placed reliance on the judgment of this Court reported in 2012 (1) Mh.L.J. 951 in the case of Ramakant Baburao Kendre .vs. State of Maharashtra and another. In this matter also, the provisions of Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 were dealt with. In this case also, the transfer was a mid-term transfer under Section 4 of the Act and no material was brought before the Court to show that the order of transfer effected was in public ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:44 ::: 17 WP6809.17.odt interest or for administrative convenience. Accordingly, the transfer order was quashed and set aside.
20] Mr. Bhutada, the learned counsel for the petitioner further placed reliance on the other judgments of this Court reported in 2012 (3) Mh.L.J. 197 in the case of S.B. Bhagwat .vs. State of Maharashtra and others ; 2013 (3) Mh.L.J. 463 in the case of Kishor Shridharrao Mhaske .vs. Maharashtra OBC Finance and Development Corporation, Mumbai ; and 2015 (2) Mh.L.J. 679 in the case of State of Maharashtra and others .vs. Dr. (Ms.) Padmashri Shriram Bainade and others. In these cases also as the orders were either passed without seeking approval of the Competent Authority or without assigning the reasons and only stating that the orders are passed for special reasons or in exceptional circumstances, this Court quashed and set aside the orders impugned therein. 21] Mr. Bhutada, the learned counsel for the petitioner then relied on the judgment of the Apex Court reported in (2006) 8 Supreme Court Cases 1 in the case of Prakash Singh and others .vs. Union of India and others. A need was felt by the Apex Court ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:44 ::: 18 WP6809.17.odt for reforms in the matter of transfer of police personnel and regulating the process of transfer. As in the present matter the transfer is effected in view of the amendment brought in the Maharashtra Police Act and thereafter regulating the transfer, the judgment of the Apex Court is of no help to the petitioner. The other judgments relied on by the learned counsel for the petitioner were on the ground of interpretation of the statutes. Though, there cannot be any dispute on the proposition of law reflected in the judgments relied on by the learned counsel for the petitioner, in our opinion, these judgments are of no help to the petitioner on the backdrop of the facts of the matter, which we have dealt with elaborately. 22] The learned counsel for the petitioner also relied on certain judgments to submit that the prejudice is caused to the petitioner. Insofar as this ground is concerned, we are unable to accept the submission of the learned counsel for the reason that as stated above, the petitioner is transferred in Nagpur city limits from one branch to another branch under the Commissionerate area of City of Nagpur.
23] The learned Assistant Government Pleader has relied on
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the judgments of the Division Bench of this Court in Writ Petition Nos.1277/2016 and 14200/2016. In W.P. No.1277/2016, it was the case of the petitioner therein that his transfer was a mid-term transfer and he was transferred from Jalgaon district to Nashik range. It was submitted that the petitioner had not completed the tenure of three years in Jalgaon district or in Nashik range. A ground was also raised that the transfer order of the petitioner was effected due to political interference. The Division Bench of this Court, on the backdrop of the facts of the petition and in view of the provisions of Section 22N(2) found that the order of the petitioner was not a result of malice or political interference, but it was on the administrative ground. The Division Bench also found that bunch of more than 300 officers were transferred and the reasons were assigned in the order. Considering these grounds, the Tribunal could not found any fault in the transfer order. The order of the Tribunal was challenged before this Court and this Court uphold the order of the Tribunal by rejecting the petition.
24] In unreported judgment of this Court in Writ Petition No. 14200/2016, the State had challenged the order of the Maharashtra Administrative Tribunal, thereby allowing the Original ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:44 ::: 20 WP6809.17.odt Application filed by the applicant/petitioner challenging his order of transfer. A ground was raised that it was a mid-term transfer and on the ground of exceptional circumstance, the transfer was effected without the approval of the Police Establishment Board. The State submitted before the Division Bench that there were serious allegations against the respondent no.1. A Departmental Enquiry was also conducted in the matter. Necessary material was brought before the Board. An affidavit was also filed through the Member Secretary of the Police Establishment Board submitting that the Board had considered the material, which was in the form of serious allegations against the respondent no.1 and it was a conscious decision of the Board to direct mid-term transfer of the respondent no.1. For this reason, the Division Bench found that the order passed by the Tribunal was unsustainable and the writ petition filed by the State challenging the order of the Tribunal was allowed. 25] As stated by us above, the transfer of the petitioner herein could not have been treated as mid-term transfer as the petitioner was posted from Economic Offences Wing to the Traffic branch and he was in the same Commissionerate area i.e. Commissioner of Police, Nagpur city, Nagpur. The Competent ::: Uploaded on - 28/11/2017 ::: Downloaded on - 28/11/2017 23:40:44 ::: 21 WP6809.17.odt Authority i.e. respondent no.3 - Police Establishment Board, on consideration of the grounds namely administrative convenience/ exigency and public interest, approved the transfer. The grounds of administrative exigency and public interest are supported by the material presented before us. The petitioner was unable to show that any prejudice is caused to him due to transfer, which is from one branch to another branch in the city of Nagpur.
26] Considering all these grounds, in our opinion, the judgment and order of the Tribunal needs no interference. The petition is thus devoid of merits and deserves to be dismissed. Accordingly, the writ petition is dismissed. Rule discharged. No order as to costs.
27] As the writ petition is dismissed, no orders are required to be passed on the application filed by the State (CAW No.2464/2017) seeking vacation of interim orders and application filed by the petitioner (CAW No.2501/2017) seeking amendment to the petition. The same accordingly stand disposed of.
JUDGE JUDGE
Diwale
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