Rajasthan High Court - Jodhpur

Dinesh Kumar vs State Of Rajasthan on 10 February, 2022

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11067/2021

Dinesh Kumar S/o Shri Sanwarmal Swami, Aged About 44 Years, Resident Of Village Khyali, Tehsil Malsisar, Jhunjhunu. At Present Posted As Head Constable At, Police Line, Sri Ganganagar.

----Petitioner Versus

1. State Of Rajasthan, Through Secretary, Department Of Home, Secretariat Jaipur.

2. Director General Of Police, Police Headquarter, Jaipur.

3. Inspector General Of Police, Bikaner Range, Bikaner.

4. Superintendent Of Police, Churu.

5. Superintendent Of Police, Sri Ganganagar.

----Respondents Connected With S.B. Civil Writ Petition No. 11190/2021 Balbeer Singh S/o Shri Phula Ram, Aged About 50 Years, Resident Of Village Pandreu Tibba, Tehsil Taranagar, Churu. At Present Posted As Head Constable At, Police Line, Sri Ganganagar.

----Petitioner Versus

1. State Of Rajasthan, Through Secretary, Department Of Home, Secretariat Jaipur.

2. Director General Of Police, Police Headquarters, Jaipur.

3. Inspector General Of Police, Bikaner Range, Bikaner.

4. Superintendent Of Police, Churu.

5. Superintendent Of Police, Sri Ganganagar.

----Respondents

For Petitioner(s) : Mr. Vikas Bijarnia Mr. Jai Naveen For Respondent(s) : Mr. Manish Vyas, AAG.

Mr. Kailash Choudhary.



           HON'BLE MR. JUSTICE ARUN BHANSALI


                                           (2 of 5)                [CW-11067/2021]

                                      Order

10/02/2022

These writ petitions have been filed by the petitioners

aggrieved against the order dated 18.12.2020 (Annex.3),

whereby, the Headquarter of the petitioners during the period of

suspension has been changed from Churu to Sri Ganganagar.

The respondents by order dated 18.12.2020, inter-alia

indicating that as it has come to the notice that in most of the

cases, the suspended policemen have their Headquarter in the

same Range/Unit, resulting in an apprehension that they may

affect the cases and, therefore, their Headquarters be changed

and consequently, the Headquarter of the petitioners has been

changed.

Learned counsel for the petitioners made submissions that

issue regarding the change of of Headquarter of persons like

petitioners, who are Head Constable stands squarely covered by

judgment of this Court in Subhash Chandra v. State of Rajasthan

& Ors.: S.B. Civil Writ Petition No.10353/2021, decided on

03.09.2021, which order has been upheld by the Division Bench in

State of Rajasthan & Ors. v. Surendra Khokhar: D.B. Special

Appeal Writ No.610/2021, decided on 29.11.2021.

Learned counsel for the respondents attempted to make

submissions that the order in the case of Subhash Chandra

(supra), as upheld by the Division Bench, is contrary to the

provisions of the Rule. However, it was conceded that the seniority

of Head Constable is being maintained at District Level.

A Coordinate Bench of this Court in the case of Subhash

Chandra (supra) came to the following conclusion:-

                             (3 of 5)                [CW-11067/2021]

"(35)     As     the     appointing   authority     of

Constable/Head-Constable is the Superintendent of Police of the district concerned, consequent to their transfer under consideration, the Constables and Head-Constables will be required to receive instructions/directions from the Superintendent of Police of the district in which they have been transferred and as a natural corollary of their transfer, their appointing authority, so also the disciplinary authority will be changed.

(36) Such action of the respondents cannot be countenanced as the Appointing Authority and Disciplinary Authority of an employee cannot be changed without his/her consent.

(37) The transfers made vide order under challenge are, on the one hand, contrary to the statutory provisions and judgments of this Court and on the other hand reflective of non-application of mind.

(38) This Court fails to comprehend that if any disciplinary action is to be taken against a transferred Constable/Head Constable, then, who will be the competent authority to initiate the enquiry? Subhash Chandra (petitioner in S.B. Civil Writ Petition No.10353/2021), being a Constable (General Duty), has been transferred from Jaisalmer to G.R.P., Ajmer; his disciplinary authority prior to the impugned transfer was Superintendent of Police, Jaisalmer. May be, as per the stand of the respondents, his seniority will remain as per his seniority in Jaisalmer, but what would happen if the persons junior to him posted in Jaisalmer are promoted, whereas no promotional avenues are available in G.R.P., Ajmer. Will he still be given promotion?

(39) That apart, if due to any delinquency, a disciplinary action is proposed to be taken against the said Constable (Subhash Chandra), whether the Superintendent of Police, Jaisalmer will be the competent authority to initiate the disciplinary proceedings or the Superintendent of Police at Ajmer! (40) There are many more related or ancillary questions attached with such transfer, such as; at which place the service record of the transferred employees will be kept, who will deal with leave applications etc. of the transferred Constable/HeadConstables and A.S.Is? The Rules of 1989 are silent in this regard. The hiatus, if any, cannot be filled by the administrative orders.

(41) According to this Court, transfers affected by the impugned order, shunting petitioners even out of range, would entail more complications than serving the cause of

(4 of 5) [CW-11067/2021]

administration; let alone, the inconvenience caused to the petitioners.

(42) During the course of submission, learned Additional Advocate General apprised the Court that most of the petitioners are facing cases of anti-corruption and hence, in the interest of better administration, the respondent No.2 has decided to transfer these employees out of their respective range, so that they cannot influence the investigation.

(43) This Court feels that the same cannot be a reason or ground to transfer a Constable/Head-Constable or even an A.S.I. out of his range. Such stand reflects State's lack of confidence in the officers and investigating agencies.

(44) As an outcome of the discussion foregoing, these writ petitions deserve to be, and are hereby allowed. The impugned order dated 05.08.2021, qua each of the petitioners, whose names are mentioned in the schedule, including that of Subhash Chandra, is quashed."

The Division Bench, on appeal, came to the conclusion that

statutory provisions limit the transfer liability of the Constable and

Head Constable within the district and the Assistant Sub Inspector

within the Range.

So far as the submissions made by learned counsel for the

respondents pertaining to the interpretation of the provisions is

concerned, the Coordinate Bench as well as the Division Bench

have taken into consideration the provisions of Rules and as such,

the submissions made in this regard cannot be countenanced.

Further submissions were attempted to be made by learned

counsel for the respondents that present is not a case of transfer

and the same is only a change of Headquarter and as such, the