Bombay High Court
Sanjay Gulabrao Deshmukh vs The State Of Maharashtra And ... on 5 May, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1277 OF 2016
Sanjay s/o. Gulabrao Deshmukh,
Age: 54 Years, Occupation Service,
As Police Inspector, R/o. Hirapur
Road, Opp.Swami Samarath Kendra,
Patil Bungalow, Chalisgaon,
District Jalgaon
ig PETITIONER
VERSUS
1] The State of Maharashtra,
Through its Secretary,
Home Department, M.S.
Mantralaya, Mumbai-32.
2] The Director General of Police,
Maharashtra State, Mumbai-1
3] The Superintendent of Police,
Jalgaon, District Jalgaon.
4] Mr. Adinath Raghunath Budhwant,
Age: Major, Occup. Service as
Police Inspector, Chalisgaion City
Police Station, Ta. Chalisgaon,
District Jalgaon
The copies of respondents' No.1 to 3
to be served through Government
Pleader, High Court, Bench at
Aurangabad RESPONDENTS
...
Mr.V.D.Sapkal, Advocate for the petitioner
Mr.S.B.Yawalkar,AGP for respondent Nos.1 to 3
Respondent no.4 served.
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CORAM: S.S.SHINDE &
V.K.JADHAV,JJ.
Reserved on : 22.04.2016
Pronounced on : 05.05.2016
JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard the learned counsel appearing
for the petitioner and the learned AGP
appearing for the respondent - State.
2] This Petition is filed being
aggrieved by the order dated 16.12.2015
passed by the Member, Maharashtra
Administrative Tribunal, Aurangabad [for
short 'MAT'] in Original Application No.323
of 2015, and also the order dated 30th May,
2015 passed by respondent no.2 [Exhibit-A].
3] The learned counsel appearing for
the petitioner submits that the order passed
by respondent no. 2 to effect the
petitioner's mid-tenure transfer from
Jalgaon District and / or the Nashik Range is
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totally in violation and disregard of the
provisions contained in the proviso to
Section 22N (1) of the Maharashtra Police
[Amendment and Continuance] Act, 2014. It is
submitted that the transfer of the petitioner
is before completion of normal tenure in the
Nashik Range and the said transfer is
contrary to the policy of the State
Government reflected in the Circular dated
18th March, 2015. It is submitted that the
petitioner has hardly completed the tenure of
three years in the Jalgaon District and/or in
the Nashik Range that in view of the
provisions contained in the Maharashtra
Ordinance No. II of 2015 published on 16th
February, 2015, read with the provisions in
the Maharashtra Police [Amendment and
Continuance] Act, 2014, the petitioner was
not due for transfer out of the Jalgaon
District and / or of the Nashik Range. Bare
reading of the said Ordinance along with the
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provisions of Section 22N (1) of the said Act
shows and establishes that while normal
tenure of a Police Officer like the
petitioner in one post or office is of two
years, the same is of four years and eight
years respectively in the District and in the
Range. Therefore, though the petitioner is
liable to be transferred upon completion of
the tenure of two years in one post or
office, however, he is not liable to be
transferred out of a District and a Range
unless and until he completes the tenure of
four years and eight years therein
respectively. However, the petitioner is
transferred though he has not completed
tenure of 3 years in the Jalgaon District and
/ or in the Nashik Range.
4] It is submitted that the provisions
of Section 22N of the said Act along with the
Ordnance dated 16th February, 2015, if read
conjointly, those not only speaks about
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normal tenure of the Police Officer in a
post, District and Range, but those also
admittedly speak of certain contingencies
upon existence of which only a mid tenure and
/ or a midterm transfer of a Police Officer
can be effected. For effecting a mid-tenure
transfer of a Police Officer like the present
petitioner existence of the contingencies
mentioned in the proviso of Section 22N is
mandatorily required and further even as far
as a mid-term transfer is concerned, for
effecting it the contingencies i.e.
exceptional case, public interest and
administrative exigency must necessarily
exist. In the absence of any of the
contingencies mentioned in the proviso to
Section 22N of the said Act, no mid-tenure
transfer of a Police Officer can be effected
and likewise in the absence of exceptional
case, public interest and administrative
exigency, no mid-term transfer of a Police
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Officer can be effected even in the light of
the provisions of the said Act. It is
submitted that the petitioner is not only
transferred from Chalisgaon Police Station
but even out of the Jalgaon District and the
Nashik Range. It is submitted that,
unscrupulous elements were instrumental in
bringing extra-departmental pressure on
respondent no.2 for effecting petitioner's
transfer not only out of Chalisgaon but out
of the Jalgaon District and the Nashik Range.
As per the information of the petitioner,
there was no report made either by respondent
no. 3 or by the Special IGP Nashik Range,
Nashik to respondent no.2 and / or to
respondent no.1 for shunting the petitioner
not only out of his post at Chalisgaon but
even out of Jalgaon District and Nashik
Range. Therefore, on the said backdrop, when
there was no report submitted by the
Competent Authority recommending petitioner's
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mid-tenure transfer out of Jalgaon District
and Nashik Range and further when none of the
contingencies quoted in clauses (a) and (e)
of sub-section (1) of Section 22N of the said
Act was in existence and in case of the
petitioner that it was simply impermissible
nay illegal for respondent no. 2 to effect
the petitioner's mid-tenure transfer by
including his name in the order dated
30.05.2015.
5] It is submitted that the MAT, in
similar set of facts, decided Original
Application on 3rd August, 2015. In the said
order, it is observed that, the Police
Inspector rank can be transferred by Police
Establishment Board, on completion of normal
two years period. In case non-completion of
normal tenure, the State Government has
authority to transfer Police Inspector in
case of exigencies as mentioned in the clause
(a) and (c) in Section 22N (1) of the said
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Act. In such matter, only the Government is
Competent Authority. Therefore, the learned
counsel appearing for the petitioner relying
upon the pleadings in the Petition, annexures
thereto and other documents placed on record
submits that, the Petition deserves to be
allowed.
6] In pursuance of the notices issued
to the respondents, respondent no.2 has filed
affidavit-in-reply. The learned AGP appearing
for the respondent - State submits that, the
MAT did not accept the averments raised by
the petitioner such as, that the Police
Personnel cannot be transferred unless, he /
she completes normal tenure, as it cannot be
the intention of Legislation and the vague
allegations made by the petitioner that he
was transferred as he had filed one complaint
to the Superintendent of Police against MLAs
Smt. Pankaja Munde and Shri Vinod Tavade, the
then leaders of opposition in Legislative
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Council, there is nothing on record to show
that any of the Officers of the respondents
or Smt. Pankaja Munde or Shri Vinod Tavade
was having personal grudge against the
petitioner. No specific allegations of malice
have been leveled against the respondents.
It is submitted that the transfer order of
the petitioner is justified, although made at
the time of General Transfer, 2015, it is
made on the basis of the powers conferred
upon the P.E.B.No.2, in terms of Section 22N
(2) i.e. in exceptional cases, in public
interest and on account of administrative
exigencies, on the undisputed position that
the petitioner has never worked at Nagpur and
there were vacancies available in Nagpur City
and that were required to be filled-in in the
public interest and because of the
administrative exigencies. It is submitted
that once the provisions of Section 22N (2)
of the M.P. Act, 1951, have been invoked, on
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the basis of the undisputed position in the
case of the petitioner such as, that there
were number of vacancies in the Nagpur City
and the fact that the petitioner had never
worked in Nagpur. The transfer of the
petitioner is issued purely on administrative
grounds in public interest. The post on which
the petitioner is working, is a transferable
post within the State of Maharashtra.
It is submitted that the petitioner is
relying upon the ordinance dated 16th
February, 2015, but as a matter of fact the
Ordinance dated 16th February, 2015 has become
part of the Maharashtra Police Act, 1951,
because of issuance of Maharashtra Act No.XI
of 2015 on 06.04.2015. Secondly, the
petitioner is not taking into consideration
the administrative exigencies were existed at
the relevant time, as there were number of
vacancies to be filled in Nagpur City and
also the fact that the petitioner had never
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worked in Nagpur and hence the transfer of
the petitioner made by the P.E.B.No.2 by
invoking Section 22 N(2) of the Maharashtra
Police Act, 1951 is legally sustainable. The
P.E.B.No.2 has been very specifically
conferred with right of transferring the
Police Personnel upto the rank of P.I. by way
of explanation given below the Maharashtra
Act No.XI of 2015 dated 06.04.2015, by
invoking the provisions of Section 22N (1)
(2) of the Maharashtra Police Act, 1951.
Therefore, the learned AGP appearing for the
Respondent - State submits that, the Petition
may be rejected.
7] We have given careful consideration
to the rival submissions of the learned
counsel appearing for the petitioner and the
learned AGP appearing for the respondent -
State. With their able assistance, perused
the pleadings and the grounds taken in the
Petition, annexures thereto, the provisions
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of the said Act, 1951 and the impugned
judgment and order passed by the MAT.
Though the petitioner has tried to suggest
that his transfer is due to the extra
departmental interference and / or pressure,
however, there are no specific allegations
against any particular individual. Though
the petitioner made feeble attempt before the
MAT to contend that the petitioner was
transferred from Chalisgaon as he had filed
one complaint to the Superintendent of Police
against Smt. Pankaja Munde and Shri Vinod
Tavade, the then leaders of Opposition in
Legislative Council, there is nothing on
record to show that any of the Officers of
the respondents or Smt. Pankaja Munde or Shri
Vinod Tavade was having personal grudge
against the petitioner, and therefore, the
MAT in para 24 of the impugned judgment
observed that mere vague allegations in the
Original Application that the applicant has
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taken stern action against some persons and
those persons wanted the petitioner to be out
of District is not sufficient to prove
malice. Though it is argued by the learned
counsel appearing for the petitioner that in
similar set of facts the MAT has allowed the
Original Application No.177/2015. Upon
careful perusal of the Judgment in the
Original Application No.177/2015 [Rameshwar
s/o. Mohanrao Gade Vs. The State of
Maharashtra and others], it is abundantly
clear that the transfer of the applicant
therein was the outcome of the political
interference by the local MLA. The MAT has
discussed in detailed about the said aspect
in the said Judgment. However, in the
present case, the petitioner could not
establish malice as alleged by him against
two political leaders.
8] We have carefully perused of the
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provisions of Section 22N (1) and (2) of the
Maharashtra Police Act. The relevant
provisions of Section 22N (1) (c) reads thus:
(c) for Police Officers of the rank
of Police Sub-Inspector, Assistant
Police Inspector and Police
Inspector a normal tenure shall be
of two years at a Police Station or
Branch, four years in a District and
eight years in a Range, however, for
the Local Crime Branch and Special
Branch in a District and the Crime
Branch and Special Branch in a
Commissionerate, a normal tenure
shall be of three years
It is true that, upon perusal of the
afore-mentioned provision, normal tenure of
the Officer of the rank of the petitioner
shall be of two years at a Police Station or
Branch, four years in a District and eight
years in a Range. The provisions of Section
22N (e) (c) provides that the Officers upto
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the rank of Police Inspector can be
transferred by the Police Establishment Board
No.2, Police Establishment Board at Range
level, Police Establishment Board at
Commissionerate Level, Police Establishment
Board at District Level and Police
Establishment Board at the level of
Specialized Agency. There is proviso which
states that the State Government may transfer
any Police Personnel prior to the completion
of his normal tenure on the grounds given
under the said proviso.
Sub section (2) of Section 22N, reads
thus:
(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.
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Therefore, upon reading sub-section
(2) of Section 22N of the said Act, it is
abundantly clear that 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.
9] By way of amendment, Section 22N
(1) was inserted by Maharashtra 11 of 2015,
with effect from 16.02.2015. The said
provision starts from non obstante clause and
provided to ensure that the Government work
is not adversely affected on account of large
scale transfers of Police Personnel from one
single Department or office, not more than
one-third of the Police Personnel shall be
transferred from any office or Department at
a time, in a year.
10] If the facts of the case of the
petitioner are considered in the light of the
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afore-mentioned provisions and read
conjointly with the reasons assigned in the
order dated 30th May, 2015 passed by
respondent no.2, it is abundantly clear that
the transfer of the petitioner along with
other 330 Police Inspectors on the
administrative grounds cannot be construed,
contrary to the provisions of Section 22N (1)
(c) or proviso thereof or the said transfer
is out of mala fide exercise of powers by the
respondents. The MAT has in detail dealt with
the contentions raised by the petitioner in
para 18 of the impugned Judgment, adverted to
the order dated 30th May, 2015 and after
considering all aspects of the matter, the
MAT reached to the conclusion to reject the
original Application filed by the petitioner.
11] The reasons / findings recorded by
the MAT are in consonance with the material
placed on record and the relevant provisions.
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The view taken by the MAT needs no
interference, hence, the Writ Petition stands
rejected.
Sd/- Sd/-
[V.K.JADHAV] [S.S.SHINDE]
JUDGE JUDGE
DDC
