K. G. Makwana v. STATE — 1996 DIGILAW 1 (GUJ)

C. K. THAKKER, J. ( 1 ) THIS petition is filed by the petitioner who is serving as a District superintendent of Police ("dsp" for short) against an order of transfer. By the impugned order, the petitioner, who was serving as DSP, Patan is transferred to the post of S. R. P. Commandant Group 10, Ukai, District Surat. ( 2 ) IT is the case of the petitioner that he joined services of the State Government as psi on 4th of January 1963, On 4th of October, 1974, he was promoted to the post of police Inspector, On 3rd of October, 1979, he was further promoted to the post of Dy. S. P. , and on January 3, 1989, he was promoted as DSP and posted at Gandhinagar. Thereafter, he was transferred at various places. ( 3 ) BY the impugned order, dt. April 27, 1995 which was not annexed alongwith the petition at the initial stage, the petitioner was transferred from Patan to Ukai in public interest. The said order was, however, placed on record at the time of hearing. Initially, when the matter was placed for hearing, this court (Coram : M. S. Parikh, J.) issued notice on May 1, 1995 by making it returnable on May 5, 1995. Meanwhile the petitioner was permitted to continue on leave. It appears that ad. interim relief was continued from time to time. Thereafter, when the matter came up before my learned brother M. R. Calla J. on 7th July, 1995, rule was issued since no reply affidavit was filed by the respondents against whom serious allegations of malafides were levelled by the petitioner. Ad. interim relief was also ordered to continue. Then the matter came up for hearing before my learned brother S. K. Keshote J. on July 28, 1995 and my learned brother passed the following order:"there are very serious allegations of malafides against respondents No. 3 and 4, but no affidavit has been filed. Learned Counsel for the petitioner is right in arguing that transfer order is subject to the judicial scrutiny of this Court under art. 226 of the Constitution of India, as held by the Supreme Court in the case of union of India vs. S. L. Abbas, reported in JT 1993 (3) SC 678. Rule has already been issued in this matter. 226 of the Constitution of India, as held by the Supreme Court in the case of union of India vs. S. L. Abbas, reported in JT 1993 (3) SC 678. Rule has already been issued in this matter. After considering the matter on merits, if ultimately the Court comes to the conclusion that the transfer order is biased and smacks of mala fides of respondents No. 3 and 4, the same may be quashed, but I find no justification whatsoever with the petitioner in not joining duty at the transferred place. The petitioner is a District Superintendent of Police and he has to comply with the orders, though he has a right to challenge the legality and validity thereof. So far as this court is concerned, it has not stayed the transfer order. If the petitioner is permitted to continue on leave, can it be said to be stay of the operation of the transfer order ? Such liberty is not required to be given by this court, because in case the petitioner has leave to his credit and the competent authority sanctions the leave, no intervention of this Court is required. Heard the learned counsel for the petitioner on the question of grant of interim relief. No case is made out for grant of interim relief. Hence, interim relief refused. List this case for final disposal on 8. 9. 1995. Meanwhile, the respondents, if they chose, may file affidavit-in-reply. S. O. to 8. 9. 1995. " ( 4 ) I have heard Mr. P. M. Raval, Sr. Advocate appearing for Mr. Mithani for the petitioner and Mr. D. A. Bambhania, AGP for the Respondents. ( 5 ) VARIOUS contentions were raised by the learned counsel for the petitioner at the time of hearing of the petition. 6. It was contended that the impugned order of transfer is passed by the State government not in public interest but in colourable exercise of power at the instance of respondent No. 3 and 4, Honble Minister for Water Supply and Honble Minister for state for Home. The impugned action is contrary to and violative of Rules 153 and 154 of the Gujarat police Manual, 1975. The petitioner has been made to suffer frequent transfers. Again, the impugned order is penal in nature inasmuch as it has been passed at the instance of respondents Nos. 3 and 4. The impugned action is contrary to and violative of Rules 153 and 154 of the Gujarat police Manual, 1975. The petitioner has been made to suffer frequent transfers. Again, the impugned order is penal in nature inasmuch as it has been passed at the instance of respondents Nos. 3 and 4. Though serious allegations of malafides have been made against the authorities including the Honble Ministers, initially no affidavit was filed and the court was constrained to admit the petition by issuing Rule. Though affidavits were filed balatedly full disclosure of facts have been made before the Court. The allegations against interference with investigation of various criminal cases have not been specifically dealt with except by a bald and vague denial. An objection was also taken by Mr. Raval about filing of affidavit at belated stage and particularly further affidavits by which according to the learned counsel, lacuna was attempted to be filled in. Malafide attitude of the respondent authorities also become clear from the fact that the petitioner was removed from the Executive side in the past also and was placed in branches since last 3 to 4 years. No reasons and/or grounds have been recorded to show why respondent authorities thought it fit to transfer the petitioner. Looking to the case diary maintained by the petitioner, it is clearly established that as the petitioner did not oblige the Honble ministers, at their instance, the State Government has taken the impugned action. The post at Ukai was vacant since long. It is, therefore, not correct to say that the said post was to be filled in immediately which warranted impugned action to be taken immediately in public interest. Reliance was also placed on Chapter VI of Vol. III of the Gujarat Police Manual which provides for keeping of a case diary by Investigating Officers. Rule 248 states that all Superintendents of Police will prepare monthly reviews of crime in the prescribed form as stated in the said Rule. It is assertion of the petitioner that he has maintained case diaries and all necessary entries have been made in the said diary. Xerox copy of the relevant pages of the said diary was placed for perusal of this court. It is assertion of the petitioner that he has maintained case diaries and all necessary entries have been made in the said diary. Xerox copy of the relevant pages of the said diary was placed for perusal of this court. In those pages, it is mentioned that there was undue interference in investigation of certain criminal cases by respondent Ministers and oral instructions were given to the petitioner not to arrest certain accused persons. The petitioner, however, had stated that it was his duty and obligation to investigate the offences in accordance with law and since he was not prepared to oblige respondent Ministers that at their instance, the State Government passed an order of transfer. A number of decisions were also cited before me by the learned counsel for the petitioner. ( 6 ) MR. Bambhania, learned Additional Government Pleader, on the other hand, supported the order passed by the respondent authorities. At the out-set, he raised a preliminary objection against maintainability of the petition on the ground that the petitioner has not complied with the order passed by my learned brother S. K. Keshote, J. on July, 28, 1995. The said order has been quoted by me in extenso. Relying upon the observations that if the petitioner will be permitted to continue on leave, the administration would suffer particularly in view of the fact that the petitioner is holding responsible post of District Superintendent of Police. Mr. Bambhania stated that till to day the petitioner has not reported for duty at the transferred place i. e. at Ukai, Hence, unless and until the petitioner resumes at Ukai, he cannot be heard on merits. On merits also, Mr. Bambhania submitted that no case has been made out for intervention of this court. The petitioner is unable to satisfy the court that the order is arbitrary, unreasonable or malafide. The petitioner has not made any application and/or representation to higher authorities against transfer. He has also not made any complaint to higher authorities regarding his grievance that he was prevented and/or obstructed in discharge of his duties by any official or even by any Minister. It is only after he was transferred and he did not want to accept the said order that now the allegations are sought to be made against the authorities as well as against Ministers. It is only after he was transferred and he did not want to accept the said order that now the allegations are sought to be made against the authorities as well as against Ministers. Regarding diaries, it was submitted that it is no doubt true that the petitioner has asserted that he has maintained diaries in accordance with the provisions of the Gujarat police Manual and certain necessary entries were made therein, but from the official records, it is not reflected that such materials were sent at the relevant time to the higher authorities. On the contrary, it is the contention of Mr. Bambhania that looking to the entries made and handwriting, in all probability, all the entries were made at a time, though different dates were mentioned. According to Mr. Bambhania, after the transfer order was passed against the petitioner with a view to get favourable order, he subsequently got diaries prepared by concocting the facts stated, averments made and allegations levelled against the respondents including the respondent Ministers. Mr. Bambhania also submitted that the action has been taken in public interest and in the interest of the administration. The petitioner alone is not transferred. It is a common and composite order by which 32 officers came to be transferred. It is, therefore, not right that the petitioner was singled out by pick and choose method. Regarding malafides, Mr. Bambhania submitted that not only the respondent authority has filed an affidavit and additional affidavits, affidavits have also been filed by the Ministers concerned, wherein it was clearly specifically and emphatically denied that they had interfered with administration in any manner and that at their instance, dictation and/or direction of respondent Nos. 3 or 4 (Honble Ministers) the impugned action was taken. It was specifically stated both by respondent No. 3 as well as respondent No. 4 that they had not taken any part whatsoever in transfer of the petitioner at any stage and the action was taken independently by the State Government, Mr. Bambhania also submitted that if guidelines have not been followed or norms have not been observed, it is always open to the petitioner to approach the authorities by making application and/or representation which can be decided in the light of facts and circumstances. Bambhania also submitted that if guidelines have not been followed or norms have not been observed, it is always open to the petitioner to approach the authorities by making application and/or representation which can be decided in the light of facts and circumstances. Those guidelines and norms, however, do not confer a justifiable right in favour of the petitioner and they cannot be enforced in a court of law. Running of the administration is ordinarily in the domain of the State Government. Transfer is an incidence of service and normally in exercise of extraordinary jurisdiction under Art. 226 of the Constitution of India. This court does not interfere such action and leave the matter to employer as to who is to be posted where and when. No case of exceptional character has been made out by the petitioner so as to interfere with the impugned order of transfer in this case, when the allegations of malafide have been denied by filing affidavit. An objection as to filing of further affidavit at a belated stage was taken by Mr. Raval. In this connection, Mr. Bambhania conceded that it is no doubt true that further affidavits were filed subsequently. He, however, submitted that the Court has power to grant time to file further reply and considering the facts and circumstances, the court granted time to the respondents and further affidavits have been filed. The petitioner cannot raise objection against filing of further affidavits. Regarding investigation of criminal cases, the learned A. G. P. contended that the State government has taken care to see that all the cases have been investigated properly, and in furtherance of that object, necessary directions were issued. So far as respondent Nos. 3 and 4 are concerned, they have unequivocally stated in their affidavits that they have not interfered with the investigation at any stage in any criminal case. ( 7 ) NOW, so far as preliminary objection of Mr. Barnbhania is concerned, though there is some substance in it, I do not intend to dismiss the petition only on that ground. It is, no doubt, true that the court while entertaining the petition, had not granted interim relief of suspension of order of transfer. As is clear, intially notice was issued and by way of ad. interim relief, the petitioner was granted liberty to proceed on leave. That relief was continued from time to time. It is, no doubt, true that the court while entertaining the petition, had not granted interim relief of suspension of order of transfer. As is clear, intially notice was issued and by way of ad. interim relief, the petitioner was granted liberty to proceed on leave. That relief was continued from time to time. When the matter was thereafter placed for hearing, since affidavits were not filed by respondent Nos. 3 and 4 against whom allegations of malafides were levelled, rule was issued. Then on July 28, 1995, my learned brother S. K. Keshote, J. observed that he could not find any justification whatsoever with the petitioner in not joining duty at the transferred place. The petitioner is a District Superintendent of police and he has to comply with the orders, though he has a right to challenge the legality and validity of such order. Liberty to proceed on leave need not be granted because in case the petitioner had leave to his credit and the competent authority sanctioned it, no intervention of the court was required. ( 8 ) IN my opinion, therefore, it cannot be said that this court directed that the petitioner must join at the transferred place and unless and until he joins at a transferred place, his petition will not be heard on merits. Looking to the observations, it is clear that if leave is to the credit of the petitioner, it could be granted. At the time of argument, Mr. Raval stated that the petitioner is having leave to his credit. In view of the above facts and circumstances and the order passed by this court, I am of the opinion that the petitioner cannot be denied right of hearing on merits merely on the ground that he had not reported for duty at the transferred place. The Preliminary objection, therefore, cannot be upheld. ( 9 ) ON merits, however, I am of the view that no case has been made out by the petitioner to interfere with the order of transfer. According to the petitioner, the order is punitive and penal in nature and is passed only because the petitioner was exercising his power and discharging his duties efficiently, honestly and without obliging any person including ministers interested in accused. It is also contended that respondent Nos. According to the petitioner, the order is punitive and penal in nature and is passed only because the petitioner was exercising his power and discharging his duties efficiently, honestly and without obliging any person including ministers interested in accused. It is also contended that respondent Nos. 3 and 4 were interested in some accused persons and oral instructions were issued to the petitioner not to arrest them as they belonged to Bharatiya Janta Party. If the petitioner would not act in accordance with the instructions issued by respondent Nos. 3 and 4, the petitioner might have to face the music. In other words, according to the petitioner, if he would not oblige respondent Nos. 3 and 4, he would have to prepare himself for transfer and accordingly he was transferred. Thus, though ostensibly the order was passed by the respondent No. 1, but it was passed as per the wishes of respondent Nos. 3 and 4, Now, all the respondents have filed their affidavits. Respondent No. 1 in his affidavit, dt. 4th May 1995 stated that the petitioner was transferred in public interest by the State Government. He has denied that the petitioner is transferred at the instance of respondent Nos. 3 and 4 or of Naranbhai Patel, MLA, he has also denied allegations of malafides. Similarly, respondent No. 2 has also filed two affidavits wherein he has stated that certain instructions were issued by the State Government regarding three criminal cases of which investigation was going on. But regarding transfer of the petitioner, it was stated that the order was passed by the State Government in accordance with law and not with a view to penalise him. In subsequent affidavit also, he has narrated certain circumstances under which the direction came to be issued to the petitioner regarding investigation of criminal cases. Respondent No. 3 and 4, Honble Ministers have also filed affidavits and further affidavits wherein allegations of malafides have been denied. It is emphatically stated that they have neither participated in the process of transfer, nor had intervened and/or recommended transfer of the petitioner. ( 10 ) NOW, So far as legal position is concerned, it is well settled. Respondent No. 3 and 4, Honble Ministers have also filed affidavits and further affidavits wherein allegations of malafides have been denied. It is emphatically stated that they have neither participated in the process of transfer, nor had intervened and/or recommended transfer of the petitioner. ( 10 ) NOW, So far as legal position is concerned, it is well settled. In a number of decisions, the Honble Supreme Court as well as this court has held that transfer is an incidence of service and ordinarily in exercise of extra-ordinary jurisdiction under Art. 226 of the Constitution, a High Court should not interfere with such administrative functions. In the instant case, the petitioner was transferred along with many other officers though it was contended that the petitioner was singled out inasmuch as he was only police official of the cadre who was transferred. But looking to the impugned order, it is clear that certain District Superintendents of Police were also transferred. Whether such transfer created some domestic problems to the petitioner or whether at Ukai the post was required to be filled in immediately or whether any other person could have been posted there are questions which can be decided by the State. Normally, under Art. 226 of the Constitution of India, this court does not undertake that task. If the order of transfer is contrary to law or violative of statutory provision or is otherwise mala fide, this court can interfere with such order. But it cannot be disputed and is not disputed by the learned counsel for the petitioner that the petitioner is holding transferable post. Hence, in accordance with the service rules, the petitioner can be transferred. It cannot, therefore, be said that the action transferring the petitioner from one place to another is contrary to law or against statutory provision. Again, the order is passed by the State government and normally before passing such orders, it is to be presumed that the state Government would take into account all the relevant facts and circumstances and would exercise power in larger public interest. If there are guidelines, regulations or norms providing for transfer and they have not been observed, it is always open to an employee to approach the State Government by making appropriate application and/or representation as observed by the Honble Supreme Court in Shanti Kumari vs. Regional deputy Director. Health Service, Patna, AIR 1981 SC 1577 . If there are guidelines, regulations or norms providing for transfer and they have not been observed, it is always open to an employee to approach the State Government by making appropriate application and/or representation as observed by the Honble Supreme Court in Shanti Kumari vs. Regional deputy Director. Health Service, Patna, AIR 1981 SC 1577 . Again, in State of Punjab vs. Joinder Singh Dhatt, AIR 1993 2486 and Union of India vs. S. L Abbas, AIR 1993 SC 2444 , it has been observed that the scope of judicial review in such cases is very limited. Who is to be posted where and when is ordinarily exclusive right of employer and is not subject to judicial scrutiny. There is no Us in such matters and it is not necessary to afford hearing to an employee and/or to record reasons. If there are personal difficulties, or domestic problems, they can be brought to the notice of the State government and the State considering well being of its employees as a model employer, would take appropriate steps. If such action is arbitrary, unreasonable or contrary to law and/or violative of fundamental rights of the petitioner, thereafter, an employee can approach a court of law. But this court under Art. 226 would not substitute its own opinion for the opinion of the administration and/or exercise appellate power by interfering and/or modifying an order passed by the authority. ( 11 ) REGARDING malafides, no doubt allegations have been levelled by the petitioner not only against respondent No. 1 and 2 but also against Ministers respondent Nos. 3 and 4. But so far as the investigation of criminal cases is concerned, both the Ministers by filing affidavits have stated that they always believe in rule of law and they encourage the officers to act legally, honestly and according to law. They have also stated that they have never interfered with investigation by giving instruction either to the petitioner or to any other officer. ( 12 ) REGARDING transfer of the petitioner, they have denied having taken any part whatsoever in the process of transfer of the petitioner. They have also stated that they have never interfered with investigation by giving instruction either to the petitioner or to any other officer. ( 12 ) REGARDING transfer of the petitioner, they have denied having taken any part whatsoever in the process of transfer of the petitioner. Respondent No. 1 has also in his affidavit stated that in the interest of administration, the State Government has passed order of transfer of petitioner from Patan to Ukai and there was no intervention and/or interferene by respondent No. 3 and/or reaspondent No. 4 or Naranbhai Patel, MLA of which reference was made by the petitioner though he is not made a party respondent. ( 13 ) ON malafides also, the law is well settled and as observed by the Honble supreme Court, allegations of mala fides are very easy to be made but very difficult to be made out. According to their Lordships, some times allegations of malafides have been made with a view to get sympathy of the court and that it becomes a last resort of a loosing litigant but the court will have to apply its mind by considering the allegations and materials placed on record and to satisfy as to whether prima facie case has been made out against the respondents concerned and whether the allegations have any foundation. Again, if the respondents against whom allegations have been made have not come forward or controverted those allegations, the court may relying on the averments, proceed to decide the matter. But if the contesting respondents come forward and file counter denying such allegations, the court will consider whether in the facts and circumstances, such allegations and/or averments can be relied upon. In the instant case, there is nothing on record in black and white. It is not even the case of thepetitioner that any written instructions were issued either by respondent Nos. 3 and/or 4 by which the petitioner was asked not to arrest certain accused persons. It was an oral talk. Since the petitioner did not oblige respondent Nos. 3 and 4 that immediate action was taken. Thus, there is a word of the petitioner. Both the respondents have filed affidavit denying above averments, assertions and allegations. In my opinion, in such circumstances, it would be hazardous to uphold assertions and allegations of the petitioner that such oral instructions were issued by respondent Nos. 3 and 4 that immediate action was taken. Thus, there is a word of the petitioner. Both the respondents have filed affidavit denying above averments, assertions and allegations. In my opinion, in such circumstances, it would be hazardous to uphold assertions and allegations of the petitioner that such oral instructions were issued by respondent Nos. 3 and 4 to the petitioner, not to arrest certain persons and as the petitioner failed to carry out those instructions, an order was passed. ( 14 ) THERE is an additional circumstance also, on the basis of which, it can be said that the action is not punitive or penal and it is the affidavit of Mr. Manek, Deputy secretary. In his affidavit, he has stated that the petitioner was transferred in public interest as a part of reshuffling effected by the State Government alongwith other 32 ips Officers. The petitioner has not been transferred at the behest of respondent Nos. 3 or 4 or Naranbhai Patel. As stated above, the impugned order is composite one by which as many as 32 officers came to be transferred. ( 15 ) IN my opinion, there is no reason why affidavit of respondent No. 1 should not be believed. According to him, in the interest of Government an order of transfer was passed by the State Government. There is no intervention and/or interference by respondent Nos. 3 or 4 or by Naranbhai Patel and hence no grievance can be made against such order. ( 16 ) IN view of the above findings, I do not express any opinion on the contention of mr. Bambhania that in fact so called entries in diary on which reliance was placed by the petitioner were written at a time subsequent to passing of impugned order, only with a view to prejudice this court that there was interference by respondent Nos. 3 and 4, When a finding is recorded that the action of transferring the petitioner has nothing to do with investigation of criminal cases, and is merely an administrative action taken by the State government in public interest, it is not necessary to decide the point and accordingly, no final opinion is expressed. ( 17 ) FOR the foregoing reasons, I do not see any substance in any of the contentions raised by the learned counsel for the petitioner and the petition is liable to be dismissed. ( 17 ) FOR the foregoing reasons, I do not see any substance in any of the contentions raised by the learned counsel for the petitioner and the petition is liable to be dismissed. Petition is accordingly dismissed. Rule discharged. No order as to costs. .