Bombay High Court
The State Of Maharashtra Through ... vs Anuradha Subhash Dhumal on 1 September, 2021
Bench: G. S. Kulkarni
10-WP.9984.2019
Pdp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9984 OF 2019
The State of Maharashtra & Anr } Petitioners
versus
Anuradha Subhash Dhumal } Respondent
WITH
WRIT PETITION NO. 9838 OF 2019
The State of Maharashtra & Anr. } Petitioners
versus
Rajendra Damodar Nanaware } Respondent
WITH
WRIT PETITION NO. 9992 OF 2019
The State of Maharashtra & Anr. } Petitioners
versus
Geetanjali Rajendra Jadhav } Respondent
WITH
WRIT PETITION NO. 9989 OF 2019
The State of Maharashtra & Anr. } Petitioners
versus
Naresh Anandrao Balsane } Respondent
WITH
WRIT PETITION NO. 9993 OF 2019
The State of Maharashtra & Anr. } Petitioners
versus
Nilesh Namdev Palave } Respondent
WITH
WRIT PETITION NO. 9990 OF 2019
The State of Maharashtra & Anr. } Petitioners
versus
Rupali Suresh Chandgude } Respondent
1
10-WP.9984.2019
WITH
WRIT PETITION NO. 9987 OF 2019
The State of Maharashtra & Anr. } Petitioners
versus
Rakesh Dnyanoba Kachare } Respondent
WITH
WRIT PETITION NO. 9988 OF 2019
The State of Maharashtra & Anr. } Petitioners
versus
Kavita Vijay Nalawade } Respondent
WITH
WRIT PETITION NO. 9991 OF 2019
The State of Maharashtra & Anr. } Petitioners
versus
Sachin Bhau Kadam } Respondent
WITH
WRIT PETITION NO. 9994 OF 2019
The State of Maharashtra & Anr. } Petitioners
versus
Sandip Prakash Gaikwad } Respondent
WITH
WRIT PETITION NO. 9986 OF 2019
The State of Maharashtra & Anr. } Petitioners
versus
Supriya Nitin Shewale } Respondent
Mr. A. Y. Sakhare, Senior Advocate a/w Mr. N. K. Rajpurohit
for petitioners.
Mr. Ram S. Apte, Senior Advocate i/by Mr. Vivek S. Salunke
for respondent in WP/9984/2019, WP/9989/2019,
WP/9990/2019, WP/9987/2019, WP/9991/2019 &
WP/9986/2019.
2
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CORAM :- DIPANKAR DATTA, CJ &
G. S. KULKARNI, J.
DATE :- SEPTEMBER 1, 2021
ORAL JUDGMENT [Per DIPANKAR DATTA, CJ]: -
1. By a common judgment and order dated August 9,
2019, the Member (Judicial) of the Maharashtra
Administrative Tribunal, Mumbai (hereinafter "the Tribunal",
for short) disposed of 12 (twelve) original applications. The
common order of transfer assailed in such original applications
by the original applicants were set aside, with a direction
upon the respondents in the original applications to reinstate
the original applicants on the posts they were transferred
from within two weeks from that date. The respondents
before the Tribunal (hereafter "the State", for short) have
questioned such common judgment and order in all these writ
petitions.
2. The original applicants before the Tribunal being the
respondents in the writ petitions (hereafter "original
applicants", for short) are police constables attached to the
Police Commissionerate, Pune. At the material time, the
original applicants were posted at the Social Security Cell of
the Crime Branch of such Commissionerate. By an order dated
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May 31, 2019 issued by the Commissioner of Police, Pune, all
the original applicants stood transferred to various police
stations within the jurisdiction of the Police Commissionerate,
Pune. None of the original applicants, however, were given
postings on transfer beyond a radius of 15 kms. from the
Crime Branch office. The primary contention of the original
applicants was that they had not completed their normal
tenure of five years at the Crime Branch and that the
impugned transfers had been issued in contravention of the
provisions of sub-section (1)(b) read with sub-section (2) of
section 22N of the Maharashtra Police Act, 1951, as amended
(hereinafter "the 1951 Act" for short). According to them,
such transfers were mid-term transfers as defined in section
2(6B) of the 1951 Act and since the jurisdictional fact upon
the existence whereof such mid-term transfers could be
ordered was absent, the impugned transfer orders were void
ab initio. One other subsidiary contention raised by the
original applicants was that their transfers were ordered based
on the recommendations of the Police Establishment Board
(hereafter "the Board", for short) but such Board had not been
validly constituted in terms of the 1951 Act.
3. Having read the impugned judgment and order of the
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Tribunal, we note three features. First, the contention that the
impugned mid-term transfers ordered by the Commissioner of
Police, Pune were in contravention of the 1951 Act, found
favour with the Tribunal and succeeded. Secondly, although
the original applicants had questioned the constitution of the
Board, on whose recommendation the transfers were ordered,
such point was not raised in course of hearing before the
Tribunal and, therefore, the Tribunal did not pronounce its
decision on such point. However, thirdly, the Tribunal assigned
an additional reason for interdicting the impugned orders of
the transfer. Such reasoning was based on certain documents
which were tendered across the bar by the learned advocate
for the original applicants, the contents whereof were not
disputed by the learned Presenting Officer representing the
State on a clear misconception of facts. We shall refer to this
aspect at a later part of this judgment.
4. It is not in dispute that in pursuance of the impugned
orders of transfer the original applicants had reported to the
police stations where they had been transferred. Despite their
success before the Tribunal, they could not obtain the benefit
of the impugned judgment and order of the Tribunal because
ad-interim relief was granted on September 11, 2019 by a co-
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ordinate Bench of this Court, which has continued till this
date.
5. Since section 22N of the 1951 Act was the sheet-anchor
of the original applicants' primary contention, we need to read
such provision. Section 22N, to the extent relevant for the
present purpose, reads thus: -
"22N. Normal tenure of Police Personnel, and
Competent Authority.- (1) Police Officers in the Police
Force shall have a normal tenure as mentioned below,
subject to the promotion or superannuation: -
(a) ....
(b) for Police Constabulary a normal tenure shall be of
five years at one place of posting;
(c) .....
(d) .....
(e) .....
The Competent Authority for the general transfer shall
be as follows, namely: -
Police Personnel Competent Authority
(a) Officers of the Indian Police ... Chief Minister
Service.
(b) Maharashtra Police Service
Officers of and above the rank
Of Deputy Superintendent of
Police. ... Home Minister
(c) Officers up to Police
Inspector (a)Police Establishment
Board No.2.
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(b) Police Establishment
Board at Range Level
(c) Police Establishment
Board at
Commissionerate
Level.
[(d) Police Establishment
Board at District Level
(e) Police Establishment
Board at The Level of
Specialized Agency]:
Provided that, the State Government may transfer
any Police Personnel prior to the completion of his
normal tenure, if, -
(a) disciplinary proceedings are instituted or
contemplated against the Police Personnel; or
(b) the Police Personnel is convicted by a court of
law; or
(c) there are allegations of corruption against the
Police Personnel; or
(d) the Police Personnel is otherwise incapacitated
from discharging his responsibility; or
(e) the Police Personnel is guilty of dereliction of
duty.
(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 made mid-term transfer of any Police
Personnel of the Police Force."
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6. Since the original applicants had also relied on section
2(6A) and 2(6B) defining "General Transfer" and "Mid-term
Transfer", such provisions are also quoted below: -
"2. Definitions. - In this Act, unless there is anything
repugnant in the subject or context, -
(6A) "General Transfer" 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 sub-section (1) of
section 22N;
(6B) "Mid-term Transfer" means transfer of a Police
Personnel in the Police Force other than the General
Transfer."
7. The plinth of the original applicants' claims before the
Tribunal was this. They were transferred and posted at the
Crime Branch of the Police Commissionerate, Pune on diverse
dates between 27th September, 2014 and 27th July 2018;
thus, none of them had completed the normal tenure of five
years in the Crime Branch as on May 31, 2019. Relying on
sections 2(6A), 2(6B) read with section 22N of the 1951 Act,
it was, accordingly, their contention that they could not have
been transferred prior to completion of normal tenure of five
years. Alternatively, they contended that even if it were
conceded that the Commissioner of Police had the power to
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effect mid-term transfers, the same could not have been
effected without all the circumstances specified in section
22N(2) of the 1951 Act, i.e., exceptional cases, public interest
and administrative exigencies, being satisfied. Drawing our
attention to the order dated May 31, 2019 issued by the
Commissioner of Police, Pune, it was contended by Mr. Apte,
learned senior counsel for the original applicants that
absolutely no reason as to the special reasons/circumstances
justifying the transfer of the original applicants prior to
completion of the normal tenure of posting can be discerned.
8. However, in the midst of the hearing, our attention was
drawn by Mr. Sakhare, learned senior counsel appearing for
the State, to the minutes of meeting of the Board dated May
31, 2019 that preceded the impugned orders of transfer.
Relevant portion thereof (translated version in English) reads
as follows: -
"On perusing the service records of the employees
working in the Social Security Branch, majority of the
employees have received number of prizes for their skill
and performance. Further, on perusing their confidential
reports for last three years, it has been found that the
remarks of all the employees are of the grading viz. very
good and outstanding.
From this it is found that, the said employees use
all this knowledge viz. the informers in their branch and
their network of gathering confidential information for
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taking effective action on unlawful activities in Social
Security Branch.
The Establishment Boards felt that if the said police
personnel are appointed at the Police Station level then,
it would help in taking action against the unlawful
activities at the Police Station level and also in
preventing the same and it would be helpful for the
safety of the weaker sections in the society such as
women, children and senior citizens etc. and for
maintaining the public order. Hence, as per the
provisions in Section 22(N)(1) in the Maharashtra Police
Act, 1951 available to the Police Establishment Board i.e.
both the criteria viz. 1) Public Interest and 2) on account
of Administrative Exigency (in English in the original and
emphasis supplied by us), to give appointment
to/transfer of all the police personnel attached to Social
Security Branch to different Police Stations, the decision
has been taken unanimously to transfer them to the
places as shown against their respective names."
9. Referring to such minutes, Mr. Sakhare contends that
sufficient justification was available on record for transferring
the original applicants and the Tribunal fell in error and acted
wholly in excess of jurisdiction by substituting its opinion for
the opinion of the Board, as if it were exercising appellate
powers.
10. While the contention of Mr. Sakhare has been that the
orders of transfer were perfectly legal and valid and the
impugned judgment and order merits interdiction, Mr. Apte
contends that the orders of transfer were flawed for the
reasons as assigned by the Tribunal and, therefore, the writ
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petitions ought to be dismissed.
11. It is placed on record that both Mr. Sakhare and Mr. Apte
have placed before us multiple authorities on the point of
(il)legality and (in)validity of transfer orders passed by the
competent authority invoking the provisions of the 1951 Act
as well as the Maharashtra Government Servants Regulation
of Transfers and Prevention of Delay in Discharge of Official
Duties Act, 2005 (hereinafter "the 2005 Act" for short) in
support of their respective contentions. We do not propose to
refer to all such authorities, except a couple of them, since
the issue raised in these writ petitions can be decided on the
basis of our interpretation of the relevant provisions of the
1951 Act read with the 2005 Act.
12. Transfer in relation to service would generally mean a
change of place of employment within an organization. Since
it is an incident of public service, consent of the employee is
not required. In most organizations, transfer is regulated by
administrative instructions or policy guidelines. In the State of
Maharashtra, so far as Government employees are concerned,
transfers are guided and regulated by the provisions of the
2005 Act. Transfers of police personnel, however, are
regulated by the amended provisions of the 1951 Act, the
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amendments having been necessitated by reason of the
decision of the Supreme Court reported in (2006) 8 SCC 1
(Prakash Singh & Ors. Vs. Union of India & Ors.). Since two
kinds of transfer are defined in the 1951 Act, we need to seek
guidance from the statutory provisions for deciding the
contentious issue raised in these writ petitions. It is also
considered appropriate to remind ourselves at this juncture
that the 1951 Act was enacted to amalgamate various Police
Forces into one common Police Force and, inter alia, binds the
police personnel employed across the State in their
performance of functions and the State Government in the
exercise of its powers. Section 3 of the 1951 Act ordains that
there shall be one Police Force for the whole of the State of
Maharashtra and such force shall include every police officer
referred to in clause (6) of section 2. Although the original
applicants are not covered by clause (6), they are indeed
police personnel as defined in clause (11A) of section 2.
Therefore, the provisions of the 1951 Act would apply to all
police personnel appointed thereunder and attached either to
various Police Commissionerate area or beyond forming part
of the Police Force of the State.
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13. As can be seen from the extract of section 22N supra,
sub-section (1)(b) of the 1951 Act ordains that for the police
constabulary, which includes constables, a normal tenure shall
be five years at one place of posting (emphasis supplied).
"General Transfer", in section 2(6A), emphasizes posting of
police personnel in the Police Force from one post, office or
Department to another post, office or Department after
completion of normal tenure as mentioned in sub-section (1)
of section 22N (emphasis supplied). Such provisions, as of
necessity, need to be juxtaposed with the relevant provisions
of the 2005 Act, viz. sections (3)(1) and (4)(1), and read to
gather the legislative intent. So read, what was intended by
the legislature by the words "at one place of posting" would
clearly be evident. Section 3(1) of the 2005 Act ordains that
for all groups of State Government servants or employees,
viz. Groups A, B, C and D, the normal tenure in a post
(emphasis supplied) shall be three years, with section 2(g)
defining "post" as "the job or seat of duty to which a
Government servant is assigned or posted". While in the 2005
Act the legislature has used the words "in a post", i.e., the job
assigned or the seat of duty, significantly, while incorporating
amendments in the 1951 Act, the expression used is "at one
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place of posting". Such expression, quite obviously, was used
to carve out a distinction between police personnel serving
under a Police Commissionerate, which necessarily would
exercise jurisdiction over a specified "place" as defined in
section 2(8), and those who are posted beyond a Police
Commissionerate area but is part of the State Police Force.
While, ordinarily, the place of employment of a police
constable attached to a Police Commissionerate is not likely to
change even with change of posting, a change of posting for a
member of the State Police Force could entail a change of
place of posting. The expression "place of posting", therefore,
assumes importance in the present context. The legislature
while amending the 1951 Act and incorporating amendment in
section 22N therein in 2015 has designedly not ordained
normal tenure of five years on one post bearing in mind police
personnel attached to Police Commissionerate area.
Therefore, the distinction between normal tenure of five years
at one place of posting [as in section 22N(1)(b)] and the
normal tenure in a post shall be three years as in section 3(1)
of the 2005 Act has to be borne in mind, which leaves no
manner of doubt that the original applicants do not have
semblance of any right to claim that once posted at the Crime
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Branch, they cannot be moved or shifted until they complete
the normal tenure of five years. "Post" has been defined in
section 2 (11B) of the 1951 Act. Such definition is not similar
to the definition of "post" in the 2005 Act. Thus, posting of the
original applicants at the Crime Branch is neither a job
assigned nor a seat of duty so as to provide a protective
umbrella from transfer prior to the normal tenure. Had the
constables like the original petitioners been governed by an
enactment having similar provisions such as the 2005 Act, the
legal position would have been different and they could claim
protection from transfer. Notably, the jurisdiction of the Police
Commissionerate, Pune, extends to the whole of the city of
Pune, which would be the "place" of "posting" referred to in
section 22N(1)(b) of the 1951 Act. Therefore, so long as a
police constable is not shifted out of Pune, he cannot derive
any assistance from section 22N(1)(b) to contend that if he is
posted on a particular seat of duty or a job is assigned to him,
he cannot be transferred. However, we may not be
misunderstood to have laid down the law by our interpretative
exercise of the relevant statutory provision that a member of
the police constabulary could be made to discharge duties
from different posts in the city of Pune by subjecting him to
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frequent transfers. If a constable is so subjected, any alleged
arbitrary decision resulting in frequent transfers could be
made the subject matter of challenge on available grounds of
judicial review.
14. Our interpretation of section 22N(1)(b) of the 1951 Act
accords with the co-ordinate Bench decision of this Court
reported in 2019 (3) Mh.L.J. 851 [Ashok S/o Rangnath
Barde Vs. State of Maharashtra & Ors.], decided by the
Aurangabad Bench. It has been held there as follows: -
"16. *** The place of posting has, therefore, to mean
that a particular town or city, whereat an incumbent is
posted irrespective of the fact of he having served with
very many branches of the same department at various
places in the same town or city."
15. We, thus, hold that the original applicants' primary
contention based on section 22(1)(b) and section 22N(2) read
with sections 2(6A) and 2(6B) is devoid of merit.
16. However, we are conscious that our interpretation of the
relevant statutory provisions, as delineated above, would
render the transfer of the original applicants to be "General
Transfer" within the meaning of section 2(6A) of the 1951 Act
although, at all material times, the State proceeded on the
premise that the original applicants were being subjected to
mid-term transfers, as defined in section 2(6B) thereof. Be
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that as it may, nothing turns on it because there cannot be
any estoppel against the statute. Any misinterpretation of the
statutory provisions by the administrative authorities cannot
be fatal for such authorities when the legislative intent is
clear, the interpretation of the relevant statute, as made, does
not do violence to the scheme of the statute and the power is
not shown to be otherwise non-existent.
17. Having interpreted the law which, admittedly, was not
examined by the Tribunal for lack of appropriate assistance,
we now proceed to consider Mr. Apte's argument that the
State had proceeded to transfer the original applicants mid-
term and that such decision was taken without recording the
requisite satisfaction; and that, the Tribunal was not in error
in reaching the conclusion it did. Frankly, this submission has
not impressed us at all. It is true that the order of the
Commissioner of Police, Pune dated May 31, 2019 does not
record any reason; however, sight cannot be lost of the
minutes of the Board meeting extracted supra. Although the
Tribunal has taken exception to such minutes by recording
that the ground for transfer is not sustainable, we are afraid,
such a finding is clearly not tenable. In terms of the provisions
of the 1951 Act, it is the Board to decide on transfers and
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postings of police personnel like the original applicants. The
final judge whether to transfer police personnel or not, on
facts, therefore, is the Board. Although it was urged in the
original applications that the Board was improperly
constituted, it was not pressed further before the Tribunal as
well as before us. The original applicants while they were
posted at the Crime Branch had acquitted themselves
creditably. Based on such performances on their part, the
Board formed an opinion that the services of the original
applicants should be utilized in the police stations where
maintenance of law and order is the paramount duty. The
opinion formed by the Board of the requirement of the original
applicants to be posted at police stations has to be regarded
as a judgment of belief, that is, a belief or a conviction
resulting from consideration of materials as to what it
thought, or perceived, would advance the cause of public
interest or administrative exigency best having regard to
prevailing circumstances. If a public authority has to form an
opinion and its opinion is to govern the subjects, such opinion
must be formed on such reasons and grounds as the public
authority seems relevant and material. An opinion, which is a
judgment of belief based on certain reasons/grounds, could at
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times reflect a subjective satisfaction but even such
satisfaction has to be based on objective criteria, meaning
thereby, application of mind to pertinent and proximate
matters only, and excluding the irrelevant and the remote.
The Tribunal was required to consider whether the opinion of
the Board was fallible on the existence of any of the vices,
that is formation of opinion not based on pertinent and
proximate matters or based on irrelevant and remote factors.
We do not endorse Mr. Apte's argument that all three
circumstances, i.e., exceptional cases, public interest and
administrative exigencies, were required to be satisfied before
ordering the mid-term transfer of the original applicants. In
our considered opinion, it could be on either one of the three
circumstances that a mid-term transfer order could issue with
the second and third circumstances being inter-related.
Administrative exigency means the need or demand for
running a good administration. This is intrinsically connected
with public interest, whereas the first circumstance is a
residuary circumstance going beyond the others to meet
demands created by exceptional situations. We do not see
reason to hold that there has been breach of statutory
provisions in transferring the original applicants. Also, mala
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fide exercise of power has not been whispered. None of the
two available grounds based whereon an order of transfer
could be legitimately and successfully challenged was present
for the Tribunal to interfere. Mr. Sakhare is right in his
contention that the Tribunal exceeded its jurisdiction in finding
fault with the opinion of the Board, as if it were exercising
appellate jurisdiction. We conclude our discussion on this point
by holding that the caution sounded by the co-ordinate Bench
of this Court in its decision reported in 2019 (4) Mh.L.J. 547
[Santosh Machhindra Thite Vs. State of Maharashtra &
Ors.] cited by Mr. Apte has been duly adhered to and that the
orders of the Commissioner of Police, Pune to transfer the
original applicants, in furtherance of the minutes of the
meeting of the Board, is unexceptionable.
18. We do not, however, consider it necessary to deal with
the other decisions cited by Mr. Apte since none of them dealt
with transfer of a police constable and, therefore, did not
involve consideration of the provisions of the 1951 Act.
19. Before concluding, notice has to be taken of the other
ground on which the Tribunal set aside the impugned orders
of transfer. According to the Tribunal, several other constables
were transferred in the same process by which the original
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applicants were transferred. However, on the request of some
of such constables, the Board had cancelled their transfer
orders or had modified some of such transfer orders earlier
made, which bear testimony to the lack of either public
interest or administrative exigency. As has been noted earlier,
documents in this behalf were tendered across the bar and
the learned Presenting Officer, who was representing the
State, had not disputed its contents possibly due to oversight
or lack of instructions. In course of hearing Mr. Sakhare has
produced relevant documentary evidence to show that either
for family reasons or on medical grounds, some of the
constables under orders of transfer had prayed for change of
posting upon transfer and that, to the extent possible, such
requests were granted. It is the specific contention of Mr.
Sakhare that in none of the cases, such constables were
retained at the Crime Branch. This position could not be and
has not been disputed by Mr. Apte. Thus, there is no good
reason to uphold the reasoning of the Tribunal in this behalf.
20. For the reasons aforesaid, we hold the impugned
judgment and order of the Tribunal to be indefensible. The
same stands set aside. The writ petitions are allowed, with the
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result that the original applications on the file of the Tribunal
stand dismissed. The parties are left to bear their own costs.
(G. S. KULKARNI, J.) (CHIEF JUSTICE)
Digitally
signed by
PRAVIN
PRAVIN DASHARATH
DASHARATH PANDIT
PANDIT Date:
2021.09.07
10:38:54
+0530
