Rajasthan High Court - Jodhpur
Subhash Chandra vs State Of Rajasthan on 11 August, 2021
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 10353/2021
Subhash Chandra S/o Arjun Ram, Aged About 31 Years, Ugras,
Post Khara, Tehsil Phalodi, District Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Home Affairs, Government Of Rajasthan, Jaipur.
2. The Director General Of Police (Headquarter), Jaipur.
3. The Inspector General Of Police, Jodhpur Range, Jodhpur.
4. The Superintendent Of Police, Jaisalmer.
----Respondents
For Petitioner(s) : Mr. Sushil Solanki
For Respondent(s) : Mr. Manish Vyas, AAG
JUSTICE DINESH MEHTA
Order
11/08/2021
(1) By way of present writ petition the petitioner herein being
Constable/Head Constable/Assistant Sub-Inspector working in the
Police Department has challenged his transfer effected vide order
dated 5.8.2021 inter alia contending that the same is contrary to
Rule 26 of the Rajasthan Police Subordinate Service Rule, 1989
(hereinafter referred to as 'the Rules of 1989') .
(2) While maintaining that seniority of the persons working at
above mentioned posts is maintained Districtwise/Rangewise, it is
contended by learned counsel for the petitioner that the
petitioner's transfer which has been made out of District/Range
would adversely affect his seniority.
(2 of 4) [CW-10353/2021]
(3) Mr. Manish Vyas, learned AAG appearing for the respondent-
State invites Court's attention towards an order dated 10.8.2021
issued by the Addl. Director General of Police, Headquarter and
submits that seniority of the Police Personnel transferred vide
order nos. 2259, 2264, 2265 dated 5.8.2021 shall be maintained
Districtwise/Rangewise with their own District/Range.
(4) While relying upon Section 34 of Rajasthan Police Act, 2007
learned AAG argues that petitioner can be posted anywhere in the
State.
(5) Learned AAG further submits that transfer is an incidence of
service and the petitioners being members of disciplined force, are
obliged to honour the same, as they have been transferred in
administrative exigency and public interest.
(6) Learned AAG relies also upon the judgment of Hon'ble the
Supreme Court rendered in the case of State of Harayana & Ors.
Vs. Kashmir Singh & Anr., reported in (2010) 13 SCC 306 to
contend that petitioner's transfer can be made out of
District/Range.
(7) Heard learned counsel for interim relief.
(8) In the opinion of this Court, once the statute i.e., Rule 26 of
the Rules of 1989 provides for maintaining seniority
Districtwise/Rangewise, no administrative order much less order
dated 10.8.2021 can override the statutory provisions. Petitioner's
seniority cannot be maintained de hors the rules.
(9) Argument of Mr. Manish Vyas that Section 34 of the
Rajasthan Poice Act, 2007 permits transfer in the entire State, is
misconceived. A perusal of Section 2(j) of the Act of 2007 reveals
that police personnel for the purpose of the Act of 2007 are, the
persons whose appointing authority is Director General of Police.
(3 of 4) [CW-10353/2021]
Petitioner's appointing authority is undeniably Superintendent of
Police, hence, he cannot be considered as a police personnel for
the purpose of Section 34 of the Act of 2007.
(10) That apart, in the light of judgment rendered by this Court
on 20.12.2017 in the case of Yad Ram Vs. State of Rajasthan &
Anr. (SBCWP No.16818/2017), so also, judgment dated 2.2.2021
passed in the case of Harendra Vs. State of Rajasthan & Ors.
(SBCWP No.3656/2020), this Court is of the view that the
petitioner has a strong prima-facie case.
(11) So far as judgment of Hon'ble the Supreme Court rendered
in the case of State of Harayana Vs. Kashmir Singh (supra), cited
by learned AAG is concerned, on first look, the same appears to
support the stand of the respondent-State, however, a careful
reading thereof reveals that the provision involved (Rule 1.5) in
the said case is starkly different. More so, the Supreme Court has
held in para no.12 of the judgment that if the administrative
authorities concerned are of the opinion that more policemen are
required in a particular District and/or Range than in another,
depending upon their assessment of the law and order situation,
the transfer can be made.
(12) Transfer out of Range and District can be countenanced in
exceptional circumstances, when the administrative authorities are
of the view that more police personnel are required in a particular
District/Range in order to meet sudden exigency. The impugned
orders however, do not show existence of such emergent
situation.
(13) The matters require consideration.
(14) Issue notice. Issue notice of the stay application also.
(4 of 4) [CW-10353/2021]
(15) Mr. Manish Vyas, learned AAG having entered caveat accepts
notice on behalf of the respondent-State and prays for and is
granted two weeks' time to file reply.
(16) List this case on 25.8.2021.
(17) Meanwhile, effect and operation of order dated 5.8.2021 qua
the petitioner shall remain stayed.
(18) Needless to observe that as effect and operation of the
impugned transfer order dated 5.8.2021 has been stayed,
petitioner shall be permitted to discharge his duties at a place
where he was working prior to passing of the impugned order
dated 5.8.2021.
(19) Though present interim order has been passed in presence of
Mr. Manish Vyas, learned AAG, however the respondent-State shall
not be precluded from moving application under Article 226(3) of
the Constitution of India for vacation of the interim order.
(DINESH MEHTA),J
56-cpgoyal/-
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