Vazeer Hussain Shaikh vs State Of Maharashtra Thr. ...
2017 Latest Caselaw 8729 Bom

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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. 

  ----------------------------------------------------------------------------------------------
            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
  ----------------------------------------------------------------------------------------------

                      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.

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 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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 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

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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

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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

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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

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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

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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

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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

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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

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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

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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 ;

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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

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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

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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

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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

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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

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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

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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

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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