Madhya Pradesh High Court
Archana Nagar vs The State Of Madhya Pradesh on 20 April, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 20 th OF APRIL, 2023
WRIT PETITION No. 3209 of 2022
BETWEEN:-
ARCHANA NAGAR D/O SHRI BASANT KUMAR NAGAR,
AGED ABOUT 45 YEARS, OCCUPATION: INSPECTOR OF
POLICE, POLICE STATION GORAKHPUR, DISTRICT
JABALPUR (MADHYA PRADESH)
.....PETITIONER
(MS. ARCHANA NAGAR - PETITIONER IN PERSON)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
THE SECRETARY HOME DEPARTMENT VALLABH
BHAWAN, BHOPAL (MADHYA PRADESH)
2. DIRECTOR GENERAL OF POLICE, M.P. POLICE
H E A D Q U A R T E R JAHANGIRABAD, BHOPAL
(MADHYA PRADESH)
3. SUPERINTENDENT OF POLICE JABALPUR
DISTRICT JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI BRAHMADATT SINGH - GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Heard on I.A. No.4818 of 2023, an application for amendment in para 5.5
facts and para 6.2 in grounds.
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2. Petitioner in person prays for and is permitted to withdraw I.A. No.4818
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of 2023. Accordingly, same is dismissed as withdrawn.
3. This writ petition is filed assailing the order of attachment of the
petitioner dated 03.02.2022 (Annexure P-8), whereby petitioner who was
working as Station House Officer, Police Station Gorakhpur, District Jabalpur,
in her substantive capacity of Inspector was line attached by the Superintendent
of Police, Jabalpur.
4. Petitioner's contention is that vide order dated 25.03.2021 (Annexure P-
1), she was transferred from Ujjain to Jabalpur. She had given her joining at
Jabalpur and was given posting as Station House Officer, Police Station
Gorakhpur, District Jabalpur vide order dated 21.08.2021 (Annexure P-2) and
within less than six months, she was transferred and attached to lines.
5. It is submitted that she had joined at Police Station Gorakhpur vide
Rojnamacha entry (Annexure P-3) dated 21.08.2021 and within short duration
had improved the workings of the said Police station, which is reflected from
Annexure P-4, which is a comparative chart of the activities performed under
the leadership of the petitioner showing that there was substantial increase in
number of cases registered and investigated under various provisions like Arms
Act, Excise Act, Gambling Act, NDPS Act, Motor Vehicles Act, Police Act
and under Sections 110, 107, 116(3) and 151 of the Cr.P.C.
6. It is submitted that her performance was commendable, therefore, she
was given a Letter of Appreciation by the Superintendent of Police as is
contained in Annexure P-5 followed by a cash price of Rs.400/- and that of
Rs.500/-, respectively, on 11.01.2022 and 03.02.2022. It is submitted that on
the one hand Superintendent of Police was giving price for her commendable
work and on the same date, he attached her to the lines, without assigning any
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reason and that is the bone of contention.
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7. It is submitted that as per the guidelines issued by the Department of
Home, Ministry, Vallabh Bhawan, Bhopal on 14.02.2007 in terms of the
judgment of the Hon'ble Supreme Court in Writ Petition (Civil) No.310/1996
(Prakash Singh and others Vs. Union of India and others) it is provided that
the minimum tenure of a Station House Officer is two years and he/she can be
removed only on institution of disciplinary proceedings or on being held guilty
in a criminal case or in a case of corruption or being not competent to conduct
duties attached to the post or on failure of having control over the law and order
situation or on promotion or retirement.
8. It is submitted that decision taken to remove the petitioner is in violation
of the provisions contained in Fundamental Rule 9(17), which deals with
transfer and defines 'Transfer' as movement of a Government servant from one
'Headquarters Station' in which he is employed to another such station (a) to
take up duties of a new post or (b) in consequence of change of his
Headquarters.
9. Reading this provision contained in FR 9(17), it is submitted that since
the movement of the petitioner from the police station to the lines will amount to
transfer and that transfer being contrary to the policy of the State and the
directions of the Hon'ble Supreme Court, needs indulgence.
10. Shri Brahmadatt Singh, learned Deputy Advocate General, in his turn,
submits that the said order is not an order of transfer. It is a local arrangement.
There were several complaints which were received against the petitioner.
11. It is submitted that as per the law laid down by the Supreme Court in
Prakash Singh and others Vs. Union of India and others, (2006) 8 SCC 1,
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it is provided that the prescribed minimum tenure for a Station House
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Officers/Incharges of a Police Station, shall be two years unless it is found
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necessary to remove them prematurely following disciplinary proceedings
against them. It is submitted that in the present case, petitioner was placed
under suspension on 04.02.2022 as she was found to be violating the provisions
contained in para 64(4), 64(3), 64(11) and para 582 of the Police Regulation.
There were allegations on the petitioner to direct her subordinate officers to
collect money to settle matters. It is submitted that one Amit Thapa had made a
complaint that he was called by a Constable, namely, Rajneesh informing him
that TI madam had asked him to accept a sum of Rs.5,000/- from said Amit
Thapa and close his case.
12. It is submitted that in view of such facts, order of suspension was
issued as contained in Annexure R-6 on 04.02.2022. Several enquiries were
pending in which reports were received against the petitioner and, therefore, it
was incumbent to have removed her from the sensitive post of Station House
Officer.
13. Reliance is placed on order dated 20.12.2021 (Annexure R-15),
whereby petitioner was visited with penalty of 'Censure' for unauthorizedly
making an accused to sit in the police station without giving intimation to the
superior officers. Thus, it is submitted that there are other orders on record
which reveal that conduct of the petitioner as a Station House Officer was
improper and, therefore, she has been subjected to these proceedings.
14. Petitioner in person, has placed reliance on the judgment of the
Division Bench of this High Court at Indore Bench in Sanjay Jain Vs. State of
Madhya Pradesh, 2021 (4) MPLJ 182, wherein it is held that validity of an
order must be examined on grounds mentioned therein. It cannot be substituted
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and supported by assigning different reasons by filing counter affidavits in
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Court. This judgment has placed reliance on Constitution Bench judgment of
Hon'ble Supreme Court in Mohinder Singh Gill and another Vs. The Chief
Election Commissioner, New Delhi and others, AIR 1978 SC 851.
15. In case of Mohinder Singh Gill (supra) it is held that when a
statutory functionary makes an order based on certain grounds, its validity must
be judged by the reasons so mentioned and cannot be supplemented by fresh
reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the
beginning, may, by the time it comes to Court on account of a challenge, get
validated by additional grounds later brought out. Thus, it is submitted that
since the impugned order of attachment, does not make mention of any reason,
it is bad in law and be set aside.
16. Firstly, a perusal of the definition of 'Transfer' given in FR 9 (17) will
not apply to the petitioner, inasmuch as, transfer is the movement of a
Government servant from 'Headquarters Station' in which he is employed to
another 'Station'. Thus, attachment of the petitioner at the same place i.e.
Jabalpur vide impugned order will not amount to transfer and will not amount to
change of the Headquarters station. The composite word used is from one
'Headquarters station' in which he is employed to another 'Station'. Thus, it is
evident that shifting from police station to lines cannot be said to be change
from one Headquarters Station to another Station and thus, submission made
by the petitioner that it amounts to transfer, is incorrect.
17. As far as second submission is concerned that no reasons are
mentioned in the impugned order and they cannot be supplemented by filing
return or rejoinder or any other affidavit is concerned, with respect to the ratio
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of law respondents have produced material on record to show that there were
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complaints against the petitioner for lodging false cases against the persons and
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harassing them and these complaints were examined by the competent authority.
Report of one such enquiry is available on record as Annexure R-7 dated
02.02.2022, in which it is mentioned that petitioner did not appear to give her
statements in the enquiry. Thus, Superintendent of Police, Jabalpur had
sufficient material in his possession before passing the impugned order of her
line attachment.
18. At this stage, petitioner in person submits that she has produced
documents through rejoinder and additional rejoinder to demonstrate that when
she was on some duty or not keeping good health, she had sought time to
appear and give her version but that time was never allowed to her.
19. I have perused those documents also and I am of the opinion that if
petitioner was on duty then she could not have sought undue adjournment but
should have pointed out that at what time, she could appear before the
authorities after finishing her duty or in the alternative, should have informed the
superior authorities and should have taken their leave to appear before the
Enquiry officer. Thus, the alibi used by the petitioner to not to appear before
the Enquiry officer, does not appear to be just and correct.
20. There are limited grounds to show indulgence in the matter of posting
and one of the major grounds is whether the exercise has been conducted and
transfer was made for real administrative exigency or for some other ulterior
motive. This aspect is dealt by the Supreme Court in the State of Punjab and
another Vs. Gurdial Singh and others, AIR 1980 SC 319, and it is held that
unless transfer is made malafidely, same cannot be questioned in the writ
jurisdiction of the High Court. In T.D. Subramaniam v. Union of India and
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others, AIR 1982 SC 776, Supreme Court held that Court is only required to
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see that whether the transfer was made for the needs of good and efficient
administration and that must depend on the facts and circumstances of each
case. In fact in K.B. Shukla and others Vs. Union of India and others, AIR
1979 SC 1136, it is held that the responsibility for good administration is that
of the Government. The maintenance of an efficient, honest and experienced
administrative service is a must for the due discharge of that responsibility.
Therefore, the Government alone is best suited to judge as to the existence of
exigencies of such a service requiring appointments by transfer. The term
'exigency' being understood in its widest and pragmatic sense.
21. When tested on this touchstone, then the impugned order of
attachment being not a transfer firstly in terms of the provisions contained in FR
9(17) and secondly, when this change of posting at the same Headquarters from
one place to another is tested on the touchstone of administrative exigency then
the same cannot be faulted with, calling for interference.
22. In view of above, petition fails and is dismissed.
(VIVEK AGARWAL)
JUDGE
pp
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