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1990 DIGILAW 13 (CAL)

State of West Bengal v. Nripendra Kumar Mukherjee

1990-01-10

Probodh Dinkarrao Desai, Shyamal Kumar Sen

body1990
JUDGMENT Per Chief Justice: The appeal is taken up for hearing by treating it as included in the day's cause list. 2, The respondent (Writ Petitioner) is employed as Head Constable in the Police Force of the State of West Bengal. He was appointed as Constable in 1959 and was posted in Murshidabad District. He was promoted to the post of Head Constable in 1968. Ever since his promotion as Head Constable, he was being posted at different Police Stations in Murshidabad District. In 1985, he was given posting as Head Constable at Berahampur Sadar Traffic Police Station. 3. The respondent was transferred to South 24-Parganas District from Murshidabad District on April 10, 1986 by the Deputy Inspector General of Police along with another Head Constable serving in Murshidabad District in the interest of public service. He made a representation against the said order of transfer which was considered and rejected by the Deputy Inspector General of Police, Presidency Range. The order of rejection was communicated to him through a Memo dated May 23, 1986. It is the case of the appellants that he was asked from time to time thereafter to join duty at his new place of posting but he paid no heed. Thereupon, on April 2, 1987, he was finally asked to take departure by the Officer-in-Charge, Berhampore Police Station. Even then he did not join duty and instituted the Writ Petition out of which the present appeal arises. 4 The order of transfer was challenged in the Writ Petition mainly on two grounds. Thereupon, on April 2, 1987, he was finally asked to take departure by the Officer-in-Charge, Berhampore Police Station. Even then he did not join duty and instituted the Writ Petition out of which the present appeal arises. 4 The order of transfer was challenged in the Writ Petition mainly on two grounds. First, that under Regulation 835 of the Police Regulations of Bengal, 1943, all Police Officers under s. 22 of the Police Act, 1861, are required to be employed as such in any part of the general police district, but as a general rule Police Officers other than Inspectors are required to be considered to belong to the district in which they are serving and that, therefore, the respondent could not have been transferred to a place outside Murshidabad District and, secondly, that he was elected as President of the West Bengal Police Association, Murshidabad Unit, on February 15, 1987 and in view of the decision arrived at the first meeting of the Joint Consultative Committee held on July 20, 1979 at the level of the Inspector General of P0lice, office-bearers including the President of the District/Unit Committee of each of the Associations are required to be posted as far as possible at or near about the District/Unit Headquarters so that they could attend to their Association work properly and that, therefore, his transfer outside Murshidabad District was contrary to the administrative direction issued as aforesaid. 5. Tile Trial Court allowed the writ petition substantially on the' ground that the respondent (writ petitioner) could not have been directed to join duty in the new place of posting in view of the fact that meanwhile he had been elected as the President of the West Bengal Police Association, Murshidabad Unit. While reserving to the appellants the liberty to transfer the respondent strictly in accordance with law directions were issued to pay to him the arrears of salary, if any, as also the rationed articles for his family within a period of one month from the date of communication of the order of the Court. Hence the present appeal. 6. In Gujrat Electricity Board v, Atmarmn reported in 1989 (2) SCC 602 it has been ruled that a transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. Hence the present appeal. 6. In Gujrat Electricity Board v, Atmarmn reported in 1989 (2) SCC 602 it has been ruled that a transfer of a Government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No Government servant or employee of Public Undertaking has any legal right for being posted at any particular place. Transfer is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in the interest of public administration. Whenever a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled. the cancelled public servant must carry out the order. In the absence of any stay to the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules. This being the well settled legal position the right to move the Court in writ jurisdiction again" transfer order can be availed of only if it is alleged that the order of transfer is in violation of the conditions of service or is based on extraneous grounds. 7. Regulation 835 upon which reliance has been placed in the present case provides ill the opening part that all police officers under s. 22 of the Police Act, 1861, may be employed as such in any part of the general police district. This is a condition of service applicable to all police officers and they are liable to be posted in any part of the general police district. Of course, the Regulation provides that as a general rule Police Officers other than Inspectors of Police shall be considered to belong to the district in which they are serving. This is a condition of service applicable to all police officers and they are liable to be posted in any part of the general police district. Of course, the Regulation provides that as a general rule Police Officers other than Inspectors of Police shall be considered to belong to the district in which they are serving. However, this rider cannot be read as conferring upon the Police officers, other than the Inspectors, the right to be posted only in the district in which they are serving and fettering the discretion conferred upon the authority under the main part of the Regulation to post any of the police officers to any part of the general district. This is clear from the language employed in the latter part of the Regulation which use the expression "as a general rule". Therefore, for good and valid reasons and in the interest of public administration, even officers other than Inspectors can be posted in any part of the general police district. Be it stated that s. 22 of the Police Act, 1861, which is the law on the subject, provides, inter alia, that every police officer may at any time be employed as a police officer in any part of general police district, that is, any Presidency, State or place in which the Act is in operation. The said section does not contain any restriction on the place of posting. It is pertinent to point of also that Regulation 834 empowers the Inspector General of Police to transfer subordinate officers throughout the general police district and the Deputy Inspector General of Police to transfer them from one district to another with in his Range. Having regard to the context and collocation also, it is not possible to uphold the contention that a Head Constable cannot be transferred under any circumstances from one district to another. 8. In the instant case, according to the appellants, the respondent had served in Murshidabad District since his joining the police department in 1959, that is to say, for a period of more than 27 years. He had, therefore, remained posted in the same District for a major part of his service career and it was considered expedient in the interest of public service and exigency of administration to transfer him to another district. His representation against the impugned order of transfer was duly considered and rejected. He had, therefore, remained posted in the same District for a major part of his service career and it was considered expedient in the interest of public service and exigency of administration to transfer him to another district. His representation against the impugned order of transfer was duly considered and rejected. We do not think that against the aforesaid background the order of transfer could be held to be in violation of statutory conditions of service or based on extraneous grounds. 9. The decision arrived at the meeting of the Joint Consultative Committee also does not help the respondent. In the first place, the decision only records that all the office bearers of the District/Unit Committees should by posted, as far as possible, at or near about the District/Unit Headquarters so that they are able to attend to their association work property. The decision accordingly taken does not impinge upon the power to transfer the office bearers ; it only provides that as far as possible they should be posted at or near about the District/Unit Headquarters. In the next place, in the present case, the election of the respondent as office bearer took place much after the representation against the said order was rejected by the competent authority. The election took place during the period when he was evading departing for joining duty at the place to which he was transferred. Under such circumstances, no reliance can be places upon the decision taken at the meeting of the Joint Consultative Committee because such election is an event which has taken place after the transfer order was issued and the representation against the same was rejected. 10. For the foregoing reasons, the appeal succeeds and it is allowed. The judgment under appeal is set aside. 11. No separate order is required to be passed on the application for interim relief in light of the foregoing order. Interim orders, if any, stand vacated. Shyamal Kumar Sen, J : J agree. Appeal allowed.