Madhya Pradesh High Court
Rajaram Badole vs The State Of Madhya Pradesh on 2 May, 2024
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 2 nd OF MAY, 2024
WRIT PETITION No. 617 of 2024
BETWEEN:-
RAJARAM BADOLE S/O SHRI S.R. BADOLE, AGED
ABOUT 49 YEARS, OCCUPATION: SERVICE R/O POLICE
THANA BORI DISTT. ALIRAJPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANOJ MANAV - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH PRINCIPAL
SECRETARY DEPARTMENT OF POLICE (HOME)
VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
2. INSPECTOR GENERAL OF POLICE POLICE HEAD
QUARTER, JAHANGIRABAD, BHOPAL (MADHYA
PRADESH)
3. SUPERINTENDENT OF POLICE ALIRAJPUR,
DISTRICT ALIRAJPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANENDRA SINGH PARIHAR - P.L. FOR STATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
1. By this petition preferred under Article 226 of the Constitution of
India, the petitioner has challenged the order dated 4/1/2024 (Annexure P/1)
passed by the Inspector General of Police, respondent No.2 whereby he has
been transferred from Alirajpur to Mandla. As per the petitioner by order dated
15/9/2022 he was transferred from Barwani to Police Training Centre, Indore on
account of his promotion from Sub-Inspector to Inspector. By order dated
29/8/2023 he was again transferred from Police Training Centre Indore to
Alirajpur. Within a period of four months therefrom the impugned transfer order
has been issued transferring him from Alirajpur to Mandla.
2. The aforesaid order has been assailed by the petitioner mainly on the
ground that the same has been passed in contravention of the directions issued
by the Supreme Court in the case of Prakash Singh V/s. Union of India
(2006) 8 SCC 1. It is also assailed on the ground that the petitioner has been
transferred twice within a period of almost one and a half years and at the
present place of posting he has hardly completed six months. The order has
also been assailed on the ground that it is contrary to the provisions of the
transfer policy framed by the State Government on 14/2/2007 in pursuance to
the directions issued by the Supreme Court in the case of Prakash Singh
(supra). The petitioner has relied upon the decision of Prakash Singh (supra)
and also the orders passed by this Court in W.P.No.8019/2016 (Manoj Kumar
Singh V/s. State of M.P. ); W.P.No.3287/2019 ( Dr. Kripa Shankar Dwivedi
V/s. State of M.P. ); and W.P.No.3911/2019 ( Sudhakar Baraskar V/s. State
of M.P.).
3 . Per contra, learned counsel for respondents/State relying upon the
reply by the State has contended that the impugned transfer order of the
petitioner is in accordance with the provisions of policy dated 14/2/2007 and
has been passed in pursuance to the recommendation made by the Police
Establishment Board as constituted by the State Government in pursuance of
the directions given by the Apex Court in the case of Prakash Singh (supra). It
is further submitted that the earlier transfer order of the petitioner dated
29/11/2022 was on his own request hence cannot be considered for the purpose
of appreciating the contentions as raised by the petitioner in this petition. Earlier
the petitioner was transferred from Barwani to Indore on account of his
promotion. It is submitted that the impugned transfer order is not hit by the
directions of the Apex Court in the case of Prakash Singh (supra) and also the
policy dated 14/2/2007 in view of which the petition deserves to be dismissed.
4. The order dated 29/11/2022 was on account of the petitioner being
promoted from Sub-Inspector to Inspector and being transferred from Barwani
to Police Training Centre, Indore. The same would no doubt be a transfer
order. Though it appears that thereafter the petitioner had made an application
for his transfer but the order issued on 29/8/2023 was not on the basis of
request of the petitioner but was on administrative grounds hence cannot be
said to be a transfer at the own request of the petitioner. The facts which hence
emerge are that the petitioner has been transferred on 29/11/2022 and thereafter
on 29/8/2023.
5. The controversy as raised in this petition has already been settled by a
number of decisions of this Court which have been taken note of in the case of
S.N. Pathak V/s. State of M.P. & Others, ILR 2019 MP 865 relied upon by
the learned counsel for the petitioner in which it has been held as under :-
"10. The core issue in this case, which reflects from the arguments
advanced by the learned counsel for the parties is whether the order
impugned issued in respect of the petitioner is in contravention of the
directions issued by the Supreme Court and also in contravention of the
order passed by the State Government on 14.02.2007 framing
guidelines in respect of transfer of the police officers. It is also the
question before this Court whether the order dated 14.02.2007 has a
statutory force or it should be treated as an executive instructions/routine
transfer policy as is framed in respect of the employees of the State
Government.
11. The contention put-forth by the learned counsel for the respondent No.4
that the order dated 14.02.2007 is in contravention of the directions issued
by Hon'ble the Supreme Court in the case of Prakash Singh (supra) in
Paragraph-31 under the heading of 'Minimum tenure of IG of police and
other officers', no post of SDO(P)/CSP has been mentioned and, therefore,
the State Government has committed an error by including the post of
SDO(P)/CSP in its order dated 14.02.2007. However, I am not convinced
with this contention for the reason that the Supreme Court in the case
of Prakash Singh (supra) has referred to the post of Deputy Superintendent,
the relevant paragraphs are as under :-
"31. (1) xxx xxx xxx
(2) xxx xx xxx
(3) xxx xxx xxx
(4) Separation of investigation- The investigating police shall
be separated from the law and order police to ensure speedier
investigation, better expertise and improved rapport with the
people. It must, however, be ensured that there is full
coordination between the two wings. The separation, to start
with, may be effected in towns/urban areas which have a
population of ten lakhs or more, and gradually extended to
smaller towns/urban areas also.
(5) Police Establishment Board- There shall be a Police
Establishment Board in each State which shall decide all
transfers, postings, promotions and other service related matters
of officers of and below the rank of Deputy Superintendent of
Police. The Establishment Board shall be a departmental body
comprising the Director General of Police and four other senior
officers of the Department. The State Government may interfere
with the decision of the Board in exceptional cases only after
recording its reasons for doing so. The Board shall also be
authorised to make appropriate recommendations to the State
Government regarding the postings and transfers of officers of
and above the rank of Superintendent of Police, and the
Government is expected to give due weight to these
recommendations and shall normally accept it. It shall also
function as a forum of appeal for disposing of representations
from officers of the rank of Superintendent of Police and above
regarding their promotions/transfers/disciplinary proceedings
or their being subjected to illegal or irregular orders and
generally reviewing the functioning of the police in the State."
From the aforesaid, it is clear that the post of Deputy Superintendent of
Police referred here is equivalent to the post of SDO(P) and belongs to the
same cadre. Even otherwise, the State Government very categorically in its
order dated 14.02.2007 has referred the post of SDO(P)/CSP and has
specified, their minimum tenure is two years. The order dated 14.02.2007,
very categorically contains that the same has been passed pursuant to the
directions of the Supreme Court in the case of Prakash Singh (supra). In
the present case, the order dated 14.02.2007 is not under challenge and it
is for the State Government to form a policy in respect of its officers and if
the post of SDO(P) and CSP is included then it is not proper to say that the
State Government has misinterpreted the directions of the Supreme Court
and it is equally not proper to say that in the present case, the order dated
14.02.2007 is not applicable for the reason that in the case of Prakash
Singh (supra), there was no reference of the post of SDO(P)/CSP or Deputy
Superintendent of Police. Not only this, but also on earlier occasion, the
cases relating to the post of SDO(P)/CSP has been dealt with by this Court
in pursuance to the directions of the Apex Court in the case of Prakash
Singh (supra) and also taken note of the order dated 14.02.2007 issued by
the State Government and in the consistent view of this Court, the order
dated 14.02.2007 has a statutory force, the guidelines contained therein
cannot be considered to be the provisions mentioned in routine transfer
policy as is issued by the State Government in respect of the transfer of its
employees. The learned counsel for the petitioner has placed reliance in
the case of Manoj Kumar Singh (supra) in which this Court has dealt with
the transfer of a Police Officer holding the post of SDO(P) and has
observed that in the case of Prakash Singh (supra) so as to in the order
dated 14.02.2007, it is clearly mentioned that the said policy is not a
routine policy of transfer or guidelines but it has a binding effect. It is
further observed that the policy dated 14.02.2007 relates to posting and
transfer both. The Writ Court has also observed that the minimum tenure of
a Police Officer is two years at a particular station/place which can be
curtailed in the circumstances mentioned in Clause- (ii) to (vi) of the
policy dated 14.02.2007. The relevant portion of Manoj Kumar Singh
(supra) case are reproduced herein under :-
"8. A combined reading of aforesaid Paras of judgment
of Prakash Singh (supra) and order of government dated
14.02.2007 makes it clear that the judgment and order aforesaid
are applicable in cases of transfers and postings both. The order
(Annexure-P/8) passed by the government is based on the
judgment of Supreme Court. Thus, it is not merely a policy
guidelines. It has a binding effect because the order is issued in
consonance with the judgment of Supreme Court. Thus, the
normal principle applicable to transfer matters in relation to
policy will not be applicable in the present case.
9. The basic purpose of Constitution of Police Establishment
Board is to ensure that transfers, postings are made on objective
considerations. Extraneous or political consideration should not
be a reason to shift the police officers before completion of
normal tenure. The reproduced portion of order dated
14.02.2007, in no uncertain terms makes it clear that minimum
tenure of an officer is two years at a particular station/place
which can be curtailed in the circumstances mentioned in
Clause (ii) to (vi). This is not the stand of the respondents that
such conditions were attracted in the present case. Thus, there
is no scintilla of doubt that impugned posting/transfer runs
contrary to the law laid down by the Apex Court in Prakash
Singh (supra) and government's order dated 14.02.2007
(Annexure-P/8)."
I have no hesitation to say that the order dated 14.02.2007 has been given
approval by this Court treating the same as a policy having a statutory
force and the guidelines contained therein having a binding effect.
Further, in the case of Dr. Kripa Shankar Dwivedi (supra), this Court has
very categorically dealt with the transfer of a Deputy Superintendent of
Police and the SDO(P) and has also specified that these police officers are
also on operational duties in the field. It is also observed by the Writ Court
in the said case that the directions issued by the Apex Court in the case
of Prakash Singh (supra) are squarely applicable for the post of SDO(P)
and has also observed that this post also has a minimum normal tenure of
two years at one place. The relevant paragraph of the said case is
reproduced herein below :-
"21. The other contention of the Ld. Additional Advocate General that
the petitioner being a Dy. SP was not "In-charge" either of a zone,
range, district or of a police station which, according to the Ld.
Additional Advocate General, is a condition precedent to be satisfied
before the protection of two years continuous service at the place of
posting can be accorded to the Petitioner. According to the Ld.
Additional Advocate General, the Petitioner being a Dy. SP, his
position is in between a Station House Officer and the Superintendent
of Police of a district and, therefore, he does not occupy a post where
he is In-charge of any field operational duties. Yet again, with great
respect, this court begs to differ. Direction No.3 commences with the
words "police officers on operational duties in the field" even in the
position of a Dy. SP, the Petitioner was on operational duties in the
field and this stand is established by the document filed by the State
itself in its reply, which is Annexure R/3 at page 12, which is a list of
fourteen cases in which notices have been given to the Petitioner. All
those cases relate to the conduct of the investigation in criminal
cases by the Petitioner. Investigation falls in the category of
operational duties in the field as it is not purely administrative.
Therefore, even though the Deputy Superintendent of Police and the
SDO(P) have been omitted, by necessary implication they were also
police officers on operational duties in the field."
12. As has been held by this Court consistently that the minimum tenure of
a Police Officer including SDO(P) at one place is two years and as such,
the present case in which the petitioner has been transferred is in violation
of the order of the State Government passed on 14.02.2007 and also in
contravention of the directions issued by the Apex Court in the case
of Prakash Singh (supra), I do not find any substance in the contention
raised by the State Government that it is a shifting within the District and,
therefore, the said shifting cannot be considered to be a transfer and as
such, the minimum tenure of two years would not apply for SDO(P) at a
place where he is posted but it applies to a particular District within
which he holds the posting. I am also not convinced with the said
contention of the respondents because the order impugned clearly contains
that the same has been issued in respect of the police officers finding name
therein for their transfer and posting. Not only this, but the case of the
petitioner as well as the respondent No.4 since placed before the Police
Establishment Board indicates that the same has been done to follow the
directions of the Supreme Court and to follow the Policy dated 14.02.2007
which clearly makes it mandatory to seek recommendation from the Police
Establishment Board. When part of the directions is complied with by the
State Government then they are under obligation to comply and to follow
the other part of the directions as well.
It is noteworthy to mention here that the transfer has been defined in
the rules known as the M.P. Civil Services (Joining Time) Rules, 1982
under Rule 2(b) :-
"2. Definitions.- In these rules, unless the context otherwise
requires :-
(a) xxx xxx xxx
(b) "Transfer" means the movement of a Government servant
from one post to another either within the same station or to another
station to take up duties of a new post or in consequence of change of
his headquarters."
Similarly, in the Fundamental Rules 9(17), transfer has been
defined as :-
"F.R. 9(17).- Transfer means the movement of a Government
servant from one headquarter station in which he is employed to
another such station either (a) to take up the duties of a new post, or
(b) in consequence of a change of his headquarters."
Thus, it is clear that in the present case, the shifting of the petitioner from
the post of SDO(P), Patan to the post of CSP, AJAK, Jabalpur falls within
the definition of transfer and accordingly, I do not find any force and
substance in the contention of the respondents.
13. As in the case of Prateek Roy (supra) on which the learned State
counsel has placed reliance stating that the same clearly provides that the
normal tenure of two years relates to the posting in a District but not at a
particular station and place. However, the said contention has also been
raised on earlier occasion and this Court has decided the case of Sudhakar
Baraskar (supra) in which the case of Prateek Roy (supra) has been
considered, rejecting the said contention explaining the intention of Court
and holding that the facts in case of Prateek Roy (supra) were different.
Accordingly, I am not convinced with the stand taken by the
respondents/State. The learned counsel for the State has also placed
reliance upon a decision of this Court in the case of Ashok Kumar Pandey
(supra). The said case is in relation to the police officers holding the post
of Station House Officer. However, the facts of the said case are not
applicable and similar to the facts of the present case for the reason that
the petitioner in the said case had completed two years period in District
Satna and in pursuance to the circular dated 25.1.2019 issued by the
Inspector General of Police stating that the Police Officer who has
completed the period of three years at one place has to be transferred and
the petitioner in the said case was posted at Satna on 19.03.2016 and
completed his three years period as per the circular dated 25.01.2019 on
the cut-off date and his transfer was held to be valid and further observed
that the case of Prakash Singh (supra) is not applicable. However, in the
present case, it is nobody's case that the transfer of the petitioner has been
done pursuant to the circular dated 25.01.2019. Accordingly, the case of
Ashok Kumar Pandey (supra) has no application in the case at hand.
Further the order/Policy dated 14.02.2007 very categorically contains the
exceptional circumstances under which the Police Officer can be
transferred by curtailing his normal tenure. However, the State
Government, in its reply, has not disclosed any such exigency transferring
the petitioner and not only this, but also in the minutes of meeting of the
Police Establishment Board, there was no such reason assigned and,
therefore, it cannot be considered that the petitioner has been transferred
under any such exigency. The Supreme Court, in the case of Mohinder
Singh Gill & Another Vs. Chief Election Commissioner, New Delhi &
Others [(1978) 1 SCC 405], has very categorically observed that the order
is adjudged for the reasons assigned therein but not on the basis of the
reason which is supplemented by any affidavit or by any oral submissions.
Shri Dixit submits that there is no requirement to assign reason by an
affidavit or by an oral submission under which transfer order is
made. Undoubtedly, the order dated 14.02.2007 does not say so but when
the validity of the order of transfer is questioned, the same would be
adjudged on the basis of the reason assigned in the order as per the
law laid down by the Supreme Court in the case of Mohinder Singh
Gill (supra). However, it is incumbent upon the authority to assign reason
when the transfer of a police officer is made under exceptional category
otherwise it will be presumed that the order of transfer has been made in a
routine manner. It is further pertinent to mention here that when the order
of transfer is put for judicial scrutiny before the Court specially
under Article 226 of the Constitution of India, the Court has to see as to on
what ground employee has been transferred, when such an issue is
involved that transfer of a police officer has not been made under the
exceptional category curtailing his normal tenure of posting, therefore, I
am also not convinced with the contention raised by the learned counsel
for the respondent No.4. It is for the State to disclose such reason and even
in the recommendation made by the Police Establishment Board such
reason ought to have been assigned.
14. In view of the above and in consistent view of this Court as has
been laid down in the case of Manoj Kumar Singh (supra), Dr. Kripa
Shankar Dwivedi (supra) and Sudhakar Baraskar (supra), I am of the view
that the order impugned in respect of the transfer of the petitioner is in
contravention of the directions of the Apex Court in the case of Prakash
Singh (supra) and also in contravention of the Policy framed by the State
Government dated 14.02.2007 and as such, the order impugned is not
sustainable and is hereby quashed."
7. In the present case also, the petitioner had been transferred twice
within a period of two years prior to the date of passing of the present
impugned transfer order. The same is hence clearly in violation of the decision
of the Apex Court in the case of Prakash Singh (supra) and so also the policy
framed by the State Government on 14/2/2007. Consequently, the same cannot
be sustained and is hereby quashed.
8. The petition is accordingly allowed and disposed off.
(PRANAY VERMA)
JUDGE
SS/-
