Samarjeet Singh Parihar vs The State Of Madhya Pradesh
2022 Latest Caselaw 16436 MP

                                                                 1
                                          IN THE HIGH COURT OF MADHYA PRADESH
                                                       AT JABALPUR
                                                          WP No. 27616 of 2022
                                      (SAMARJEET SINGH PARIHAR Vs THE STATE OF MADHYA PRADESH AND OTHERS)

                           Dated : 12-12-2022
                                 Shri Mahendra Pateriya, Advocate for the petitioner.

                                 Shri Kamal Singh Baghel, Govt. Advocate for the respondent nos. 1 to

3/State.

Shri Swapnil Ganguly, Advocate for the respondent no.4.

1. Petitioner has filed this writ petition under Article 226 of the

Constitution of India challenging transfer order dated 26.11.2022 contained in Annexure P/1.

2. Counsel appearing for the petitioner submitted that petitioner was posted as In-charge SDOP Tenothar Rewa and has been transferred as In- charge Assistant Commandant 9th Special Battalion Bhopal. It is submitted that order has been passed by Deputy Secretary, Department of home. As per Madhya Pradesh Police Regulation 198, Officers of rank of Dy. Superintendent of Police and above shall be transferred by the State Govt on recommendation of the Police Establishment Board. There is no recommendation of Police

Establishment Board and petitioner has been transferred. Petitioner will retire from service within a period of one year. In these circumstances, impugned order of termination is bad in law.

3. Counsel appearing for the respondent no.4 submitted that issue has already been considered by this Court in catena of orders. It is submitted that Division Bench of this Court in W.A.No. 545/2020 held that post of SDOP is not the post of operational duties on field and therefore, ratio of judgment of Prakash Singh and others vs Union of India and others-(2006) 8 SCC 1 is Signature Not Verified Signed by: ARVIND KUMAR DUBEY Signing time: 12/13/2022 10:08:49 AM

not attracted in the case. Petitioner is not on operational duty, therefore, no stay may be granted to petitioner. It is also submitted that order of transfer has already been executed.

4. Govt. Advocate for the State has opposed the prayer and submitted that transfer order has been executed, therefore, stay may not be granted and one week's time is granted to file reply.

5. Heard learned counsel for the parties on the question of interim relief.

6. Regulation 198 lays down that Officers up to rank of Dy. Superintendent of Police and above rank shall be transferred by State

Government on recommendation of police establishment Board. Said Regulation has been incorporated by notification dated 12.7.2013. State Government cannot deny to follow the said regulation. It is not argued that Regulation 198 has been followed. Word used in Regulation is 'shall' therefore, recommendation of Police Establishment Board is to be sought for transfer by the State Government in case of Officers above the rank of Dy. Superintendent of Police.

7. Issue before Court is compliance of Regulation 198 and not that petitioner has been transferred from operational duty on field before completion of tenure period. Court can grant stay to put a party in same position during pendency of case if facts prima facie show non compliance of law. In view of above, impugned order dated 26.11.2022 is stayed and petitioner is permitted to continue as In-charge S.D.O.P, Teonthar District Rewa till the next date of hearing.

List the matter in the first week of January, 2023.

Signature Not Verified Certified copy as per rules.

Signed by: ARVIND KUMAR DUBEY Signing time: 12/13/2022 10:08:49 AM

(VISHAL DHAGAT) JUDGE

DUBEY/-

Signature Not Verified Signed by: ARVIND KUMAR DUBEY Signing time: 12/13/2022 10:08:49 AM