Rajasthan High Court - Jodhpur

Basant vs State Of Rajasthan on 17 January, 2023

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 221/2021

Ram Niwas Bishnoi S/o Sh. Khema Ram, Aged About 57 Years, R/o Satheran, Tehsil And District Nagaur.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home Affairs, Government Of Rajasthan, Jaipur.

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

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

4. The Superintendent Of Police, Bikaner.

----Respondents Connected With S.B. Civil Writ Petition No. 865/2021 Prashant Legha S/o Shri Jagmohan, Aged About 35 Years, R/o Ward No. 13, Chawla Chowk, Purani Abadi, Sri Ganganagar, District Sri Ganganagar (Rajasthan).

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary To The Govt.

Department Of Home Affairs, Secretariat, Jaipur (Rajasthan).

2. The Director General Of Police, Police Head Quarter, Jaipur (Rajasthan).

3. The Additional Director General Of Police (Vigilance), Police Head Quarter, Jaipur (Rajasthan).

4. The Inspector General Of Police, Police Head Quarter, Jaipur (Rajasthan).

5. The Inspector General Of Police, Range, Bikaner Superintendent Of Police, Hanumangarh (Rajasthan).

6. The Superintendent Of Police, District Sri Ganganagar, (Rajasthan).

7. The Superintendent Of Police, District Bikaner (Rajasthan).

----Respondents

S.B. Civil Writ Petition No. 1670/2021 Shrawan Vishnoi S/o Sh. Babu Lal, Aged About 33 Years, R/o

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461, Rajendra Nagar, Bhalelao Road, Pali.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home Affairs, Government Of Rajasthan, Jaipur.

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

3. The Inspector General Of Police, Jodhpur Rural, Jodhpur.

4. The Superintendent Of Police, Jalore.

----Respondents S.B. Civil Writ Petition No. 1677/2021 Amit Kumar S/o Shri Birbal Ram, Aged About 28 Years, Resident Of Vpo Khetolai, Tehsil Pokran District Jaisalmer. At Present Working As Constable No. 951 (Under Suspension) Posted At Reserve Police Line Jaisalmer.

----Petitioner Versus

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

2. Director General Of Police, Head Quarter, Jaipur.

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

4. The Superintendent Of Police, Jaisalmer.

----Respondents S.B. Civil Writ Petition No. 1690/2021 Mangala Ram Rajpurohit S/o Shri Bheemaji Rajpurohit, Aged About 49 Years, R/o Post Munthalakaba, Bhinmal, Jalore.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home Affairs, Government Of Rajasthan, Jaipur.

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

3. The Inspector General Of Police, Jodhpur Rural, Jodhpur.

4. The Superintendent Of Police, Jalore.

----Respondents

S.B. Civil Writ Petition No. 4213/2021 Kunal Pandya S/o Mukesh Pandya, Aged About 33 Years, 2-N-6, Housing Board, Thana Kotwali, Banswara

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department

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Of Home Affairs, Government Of Rajasthan, Jaipur.

2. The Director General Of Police, Headquarters, Jaipur

3. The Inspector General Of Police, Udaipur Range, Udaipur

4. The Superintendent Of Police, Banswara

----Respondents S.B. Civil Writ Petition No. 4620/2021 Babar Khan S/o Sh Jeenayat Khan, Aged About 50 Years, R/o Indra Colony, Banswara.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary Department Of Home, Govt. Of Rajasthan, Jaipur.

2. The Director General Of Police, Head Quarter Jaipur.

3. The Additional Director General Of Police (Vigilance), Police Head Quarter Jaipur.

4. The Inspector General Of Police, Udaipur Range Udaipur.

5. The Superintendent Of Police, Banswara.

----Respondents S.B. Civil Writ Petition No. 4622/2021 Madan Singh S/o Sh. Nathu Singh, Aged About 54 Years, R/o Ward No. 4, Gadha Hatkiya, Raiki, Dungarpur.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary Department Of Home, Govt. Of Rajasthan, Jaipur.

2. The Director General Of Police, Head Quarter Jaipur.

3. The Additional Director General Of Police (Vigilance), Police Head Quarter, Jaipur.

4. The Inspector Gegneral Of Police, Udaipur Range, Udaipur.

5. The Superintendent Of Police, Banswara.

----Respondents S.B. Civil Writ Petition No. 4669/2021 Purushotam S/o Kevji, Aged About 53 Years, Chidiyawasa, District Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home, Govt. Of Rajasthan, Jaipur.

2. The Director General Of Police, Head Quarter Jaipur.

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3. The Additional Director General Of Police (Vigilance), Police Head Quarter Jaipur.

4. The Inspector General Of Police, Udaipur Range, Udaipur.

5. The Superintendent Of Police, Banswara.

----Respondents S.B. Civil Writ Petition No. 4671/2021 Bhanwar Lal S/o Chanchar Lal, Aged About 48 Years, Ward No.8, Metwala, Tehsil Garhi, District Banswara.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Department Of Home, Govt. Of Rajasthan, Jaipur.

2. The Director General Of Police, Head Quarter Jaipur.

3. The Additional Director General Of Police (Vigilance), Police Head Quarter Jaipur.

4. The Inspector General Of Police, Udaipur Range, Udaipur.

5. The Superintendent Of Police, Banswara.

----Respondents S.B. Civil Writ Petition No. 6113/2021 Basant S/o Shri Radheshyam Parasar, Aged About 45 Years, R/o Village Badliyas, Tehsil Kotdi, District Bhilwara (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through Principal Secretary, Department Of Home Affairs, Government Of Rajasthan, Secretariat, Jaipur (Raj.).

2. The Superintendent Of Police, District Chittorgarh (Raj.).

3. The Inspector General Of Police, Udaipur Range, Udaipur (Raj.).

----Respondents S.B. Civil Writ Petition No. 7229/2021 Sunil Bishnoi S/o Shri Hanuman Ram, Aged About 33 Years, R/o Village - Post Salori, Tehsil And District Jodhpur (Raj.)

----Petitioner Versus

1. State Of Rajasthan, Through Director General Of Police, Rajasthan, Jaipur.

2. The Additional Director General Of Police (Vigilance), Rajasthan, Jaipur.

3.     The     Commissioner            Of     Police,      Commissionerate        Of


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       Jodhpur, District Jodhpur.

4. The Deputy Commissioner Of Police, Headquarter And Traffic, Jodhpur.

----Respondents S.B. Civil Writ Petition No. 7867/2022 Jagdish Kumar S/o Sh. Sadasukh Bishnoi, Aged About 44 Years, Resident Of 114, Near Karni Rajput Hostel, Ward No. 30, Nokha, Dist. Bikaner.

----Petitioner Versus

1. The State Of Rajasthan, Through The Secretary, Department Of Home Affairs, Government Of Rajasthan, Jaipur.

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

3. The Additional Director General Of Police (Vigilance), Jaipur.

4. The Inspector General Of Police, Bikaner Range, Bikaner.

5. The Superintendent Of Police, Bikaner.

----Respondents

For Petitioner(s) : Mr. Sushil Solanki Mr. Trilok Joshi & Mr. Anil Choudhary Mr. S.S. Gour Mr. Devendra Sanwalot Mr. Vivek Firoda with Mr. Jayram Saran Mr. O.P. Sangwa For Respondent(s) : Mr. Kailash Choudhary for Mr. Manish Vyas, AAG Mr. Anil Kumar Bissa

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

17/01/2023

Learned counsel for the parties jointly submit that the

controversy is squarely covered by the order passed by a

coordinate Bench of this Hon'ble Court in Dinesh Kumar Vs. State

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of Rajasthan & Ors. (S.B. Civil Writ Petition No.11067/2021) on

10.02.2022, which reads as follows:

"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:-

"(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.

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(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 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

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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 ratio in the case of Subhash Chandra (supra) would not apply.

A perusal of the judgment of Subhash Chandra (supra) as quoted hereinbefore would reveal that in para No.42 & 43, the Coordinate Bench has dealt with the said aspect and had negated the said submissions, therefore, the said aspect also is no more res integra.

In view of the above discussion, following the judgments in the case of Subhash Chandra (supra) and Surendra Khokhar (supra), the petitions filed by the petitioners are allowed.

The order dated 18.12.2020 (Annex.3) qua the petitioners are quashed and set aside."

Learned counsel for the respondents are unable to refute the

applicability of the aforequoted order.

In light of aforequoted order, the present petitions are

allowed. The transfer order dated 18.12.2020 (Annex.3) (in CW

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No.221/2021; order dated 18.12.2020 (Annex.P./7) (in CW

No.865/2021); order dated 19.01.2021 (Annex.1) (in CW

No.1670/2021); order dated 19.01.2021 (Annex.4) (in CW

No.1677/2021); order dated 19.01.2021 (Annex.1) (in CW

No.1690/2021; order dated 05.01.2021 (Annex.1) (in CW

No.4213/2021); orders dated 04.01.2021 (Annex.2) and