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2001 DIGILAW 379 (PAT)

Md. Hasnain v. State Of Bihar

2001-04-24

AFTAB ALAM, NAGENDRA RAI

body2001
Judgment Nagendra Rai, J. 1. This appeal under Clause 10 of Latters Patent of the High Court of Judicature at Patna is directed against the order dated 2.2.2000 passed in CWJC No. 10770 of 1999 whereby the learned Single Judge while dismissing the writ application filed by respondent No. 9 Ashok Kumar Yadav challenging his order of transfer, has also dismissed the interlocutory applications filed by the appellants and others rejecting their prayer to modify the interim order wherein directions were issued for their transfer. 2. Respondent No. 9 Ashok Kumar Yadav filed the aforesaid writ application for quashing the orders contained in Annexures 8, 12 and 13 to the writ application. By order dated 14.7.1999 contained in Annexure-8, he was transferred from Gopalganj District Police Force to Saran District Police Force. By order dated 9.10.99, contained in Annexure-12, he was transferred from Kochaikot P.S. to Police Line, Gopalganj and by order dated 17.10.99 contained in Annexure-13, he was relieved from Gopalganj District Police Force to join the Saran District Police Force. The orders of transfer were challenged primarily on the ground that the same were passed at behest of the Member, Legislative Council. 3. The learned Single Judge hearing the matter having noticed that the circulars and orders laying down guidelines regarding transfer and posting of police personnel are not being strictly followed, directed the State Counsel by order dated 14.12.1999 to furnish information with regard to duration of the posting of the Police Officers of the rank of inspector/Sub Inspector/Assistant Sub Inspector of Police posted in the different Police Stations falling within the jurisdiction of City S.R, Patna and adjourned the matter to 22.12.1999. On 22.12.1999, the affidavit was filed by the DJ.G. (Personnel) giving the names of the Police Officers of the aforesaid rank posted at different Police Stations within the jurisdiction of City S.R, Patna, for a decade or so. On 22.12.1999, the affidavit was filed by the DJ.G. (Personnel) giving the names of the Police Officers of the aforesaid rank posted at different Police Stations within the jurisdiction of City S.R, Patna, for a decade or so. The matter was adjourned for the next day and the Government Advocate was directed to discuss the matter with the concerned Police Officers and on the next day i.e. 23.12.1999, the learned counsel appearing for the State produced a copy of letter of the D.I.G. (Personnel) No. 7867/P2 dated 22.12.1999 issued on behalf of Director General of Police, Bihar directing the D.I.G. Police, Central Range, and I.G. Police, Patna Zone, Patna to take steps for transfer of the Police Officers posted in different Police Stations within the jurisdiction of the City S.R, Patna in accordance with the Police Order No. 247/ 94. Accordingly, the learned Single Judge while directing the authorities to expedite the matter of transfer, but as the said matter was likely to take some time, by way of interim measure directed the authorities to transfer such Police Officers of the rank of Inspector/Sub Inspector/ Assistant Sub Inspector, who have completed their normal tenure of posting in any particular police station falling within the jurisdiction of City S.P., Patna, to Police stations falling in the Rural areas within Patna district itself and this exercise was to be done within one week. The matter was adjourned to 4th January, 2000. On that day, the learned counsel for the State informed that the order has been complied with in part so far as it relates to the Sub Inspectors and Assistant Sub Inspectors of Police. As regards the Inspectors are concerned, steps are being taken for their transfer. The matter was adjourned to 11th January, 2000. 4. The three appellants filed I.A. No. 134 of 2000 in the case stating therein that they were posted as Inspectors-cum-Officers -in-Charge, Pirbahore Police Station, Digha Police Station and Malsalami Police Station respectively and their names are also included in the list annexed with the counter affidavit showing that they are also to be transferred from the present place of posting and as such they are necessary party to be heard in the matter. Another set of interlocutory application being I.A. No. 149 of 2000 was filed by Prativa Kumari and Ram Briksha Rajak who were posted as Inspector of Police Control Room, Patna and Inspector-cum-Officer-in-charge Alamganj Police Station for their addition on the same ground. 5. It appears that during pendency of the writ application, the intervenors and other police officers were transferred thereafter by the competent authority. The learned Single Judge after hearing the parties dismissed the writ application and reiterated its earlier interim orders. 6. The learned counsel appearing for the appellants submitted that the writ application filed by Ashok Kumar Yadav was not in the nature of public interest litigation, on the other hand, it was a writ application filed by individual challenging his transfer orders and as such the learned Single Judge was not justified in treating the said writ application as a Public Interest Litigation and issuing the directions especially when he has no jurisdiction to hear the P.I.L. matters in terms of the provisions contained in the Rules of the High Court at Patna. He also submitted that in any view of the matter, this Court cannot assume the function of the executive and issue direction for transfer of the employees. It is for the respondent-State and its authorities to discharge its function in accordance with law and only in a case of specific grievance being made before this Court, direction can be issued. As no grievance was made in the writ application with regard to non-implementation of the transfer policy, the direction given by the learned Single Judge is without jurisdiction. The learned counsel for the appellant further submitted that Rule 778 of the Bihar Police Manual, 1978 issued by and with the authority of the State Govrnment under Sections 7 and 12 of the Police Act V, 1861 contains a provision regarding transfer and posting of the police officers of the ranks of Assistant Sub-Inspector, Sub-Inspector and Inspector. It provides duration of 12 years in one district including service in more than one of the three ranks, Assistant Sub-Inspector, Sub-Inspector and Inspector. The said period has been curtailed to six years by Police Order No. 247 of 1994. It provides duration of 12 years in one district including service in more than one of the three ranks, Assistant Sub-Inspector, Sub-Inspector and Inspector. The said period has been curtailed to six years by Police Order No. 247 of 1994. It is submitted that Police Order No. 247 of 1994 has no authority of law as it has been issued without the approval of the State Government and on the basis of the same, no transfer and posting can be made as the same is inconsistent with the provisions contained in Rule 778 of the Police Manual. 7. The learned counsel appearing for the State on the other hand submitted that the direction issued by the learned Single Judge was not a direction for transfer and posting of a particular Police Personnel, on the other hand general direction was issued to the State to implement its policy which direction can be given by the learned Single Judge in public interest. He further submitted that the learned Single Judge while hearing the transfer matter found that the respondent State are not implementing its transfer policy, he reminded the authority of its duty to implement the transfer policy and thereafter the Director General of Police in that connection directed the concerned Police authority to implement the transfer in accordance with the transfer policy and thereafter the authority took steps to implement the transfer policy. The learned counsel appearing for the State further submitted that Police Order No. 247 of 1994 is neither inconsistent nor contrary to the provisions contained in Police Manual 778 {vii). On the other hand, the same has been issued by the Director General of Police in exercise of power conferred under Section 8 of the Police Manual which authorises the Director General of Police cum Inspector General of Police to issue circular, orders on matters of routine and in order to explain previous orders without prior approval of the State Government. The Police Order No. 247 of 1994 has been issued to explain the previous orders and other orders laying down the transfer policy. The Police Order No. 247 of 1994 is only explanatory in nature and has supplemented the provisions contained in the Rules. In no way it has supplanted or is inconsistent with the provisions as contained under rules with regard to transfer policy. 8. The Police Order No. 247 of 1994 is only explanatory in nature and has supplemented the provisions contained in the Rules. In no way it has supplanted or is inconsistent with the provisions as contained under rules with regard to transfer policy. 8. On the basis of the submissions advanced at the bar, two questions arise for consideration in this case. Firstly, as to whether such direction to implement the transfer policy could have been given by the learned Single Judge while hearing the transfer matter filed by the individual employee and secondfy as to whether Police Order No. 247 of 1994 issued by the Director General of Police is a valid order in the eye of law or not and even if it is held to be valid order whether that can be given effect to in view of the provisions contained in Rule 778 (vii) of the Police Manual. 9. The foundation of exercise of jurisdiction under Article 226 of the Constitution of India is the personal and individual right, though in some cases, like in the writ of habeas corpus and quo warranto, the aforesaid rule is relaxed or modified. In recent past, even if the persons has no personal interest but brings to the notice of the Apex Court or this Court that the public interest is affected by action of the State or its authorities, the writ is maintainable even at his instance on the ground that he has spoused the public cause. Such litigations have been classified as Public Interest Litigation. In exercise of extraordinary power, this Court under Article 226 of the Constitution does not insist upon the locus standi of the person if the prayer made on his behalf is to remedy the public mischief. It is well settled that when an application is made by a party aggrieved, the Court will intervene ex debito justiliae (injustice to the applicant). However, when the Court is moved by stranger, the Court considers whether in the public interest, it should be intervened in the matter. In both the category of cases, the matter rests ultimately in the discretion of the Court. 10. In terms of the Standing Order No. 3 of 1994 of this Court, effective from 2.9.1994, the public interest litigation shall be placed for admission/hearing before a Division Bench. In both the category of cases, the matter rests ultimately in the discretion of the Court. 10. In terms of the Standing Order No. 3 of 1994 of this Court, effective from 2.9.1994, the public interest litigation shall be placed for admission/hearing before a Division Bench. Thus, in terms of the aforesaid standing order, the P.I.L. is not to be heard on the poing of admission/ hearing by a learned Single Judge. 11. The question for consideration is as to whether the directions issued by the learned Single Judge with regard to implementation of transfer policy were in the nature of Public Interest Litigation or they were given while dealing with the transfer matter filed by the writ petitioner. Admittedly, the transfer orders were challenged by the writ petitioner and one of the grounds of the challenge was that the transfer orders were being passed in violation of the provisions dealing with transfer matters, and the learned Single Judge having noticed that the provisions dealing with transfer matter are not being observed, issued directions to the authorities to carry out the provisions regarding transfer matter and thereafter the authorities issued orders in the light of the provisions contained in the Rules and Police Orders. Thus, it cannot be said that direction issued by the learned Single Judge is wholly unconnected or irrelevant in deciding the question in controversy for which writ application was filed. On the other hand, the circumstances of the case before the learned Single Judge necessitated the issuance of the said directions to clarify the matter dealing with transfer. Thus, the submission advanced on behalf of the appellants that the learned Single Judge has no jurisdiction to issue the aforesaid direction, has to be rejected. 12. The learned Counsel for the appellants was also not justified in submitting that the Court while issuing direction to the authorities of the State Government to implement its order regarding transfer policy has assumed the function of the executive. This Court did nothing except to direct the authorities to implement its own policy with regard to transfer. This Court never directed the State Government to frame any policy with regard to transfer in the light of the directions issued by this Court, but only reminded the respondent authority to discharge its duties in accordance with the policy contained in the Police Order mentioned in the order. 13. This Court never directed the State Government to frame any policy with regard to transfer in the light of the directions issued by this Court, but only reminded the respondent authority to discharge its duties in accordance with the policy contained in the Police Order mentioned in the order. 13. The Police Act, 1861 has been enacted to re-organise the police and to make it more efficient instrument for the prevention and detection of crime. Section 7 of the Act gives power to the Inspector-General, Deputy Inspector General, Assistant Inspector General and District Superintendents of Police to dismiss, suspend or reduce any police officer to the subordinate rank who shall discharge his duty in a careless or negligent manner etc. However, that power is subject to the provision of Article 311 of the Constitution and such rules as the State Government may make under the Act. Section 12 of the Act confers power on the Inspector-General of police to frame such orders and rules as it may deem expedient relative to the organisation, classification and distribution of the police force, the places at which the members of the force shall reside, and the particular services to be performed by them; their inspection, the description of arms, accountrements and other necessaries to be furnished to them etc. However, such rules or orders have to be framed with the approval of the State Government. The Bihar Police Manual was issued by and with the authority of the State Government under Sections 7 and 12 of the said Act. Thus the rules under the Police Manual are statutory in nature and they are binding and they can be amended or substituted by and with the authority of the State Government. Rule 8 of the Police Manual however giyes certain power to the Inspector General of Police and he is authorised to issue circulars or orders on matters of routine or in order to explain previous orders without prior approval of the State Government. However, it cannot issue any circular dealing with the point of law until approved by the Legal Remembrancer and two copies of all such circulars will be submitted to the Government. 14. Chapter 24 of the Police Manual deals with transfer, leave and retirement of the police officers including gazetted police officers and the Subordinate Police Officers. However, it cannot issue any circular dealing with the point of law until approved by the Legal Remembrancer and two copies of all such circulars will be submitted to the Government. 14. Chapter 24 of the Police Manual deals with transfer, leave and retirement of the police officers including gazetted police officers and the Subordinate Police Officers. Rule 778 of the Police Manual contains a provision regarding the principles which are to be followed with regard to transfer and posting and the relevant provision for the purpose of present case is Rule 778 (vii) which runs as follows : "A Circle Inspector should be transferred on completion of 4 years service in one circle. Sub-Inspectors and those of lower rank may stay at one post for a total period of three years. The total service of an officer in one district including service in more than one of the three ranks, Assistant Sub-Inspector, Sub-Inspector and Inspector, should not exceed 12 years provided that the period spent on in service, training and refresher or other courses should be excluded in reckoning this period of service." 15. According to the said rule, the Circle Inspector should be transferred on completion of 4 years service in one circle. Sub-Inspectors and those of lower rank may stay at one post for a total period of 3 years. The total service of an officer in more than one of the three ranks, namely, Assistant Sub-Inspector, Sub-Inspector and Inspector should not exceed 12 years in one district. 16. At the time of issuance of the Police Manual, the State Police was divided into different ranges headed by Deputy Inspector General of Police. Later on, the State Government created police zone comprising of several ranges headed by Inspector General of Police now by Addl. Director General of Police. Duties and functions of the Head of the zone have also been notified by the State Government. Even several districts were created out of big districts. All this necessitated clarification of rule 778 (vii) of the Police Manual. The Director General of Police, accordingly, issued different orders at different times explaining the transfer policy as contained in the Bihar Police Manual. The said Police Orders are, Police Order No. 105, Police Order No. 219 of 1990, letter No. 5971/ P-2 dated 22.11.1993, memo No. 6112/ P-2 dated 11.12.1993 and Police Order No. 247 of 1994. The Director General of Police, accordingly, issued different orders at different times explaining the transfer policy as contained in the Bihar Police Manual. The said Police Orders are, Police Order No. 105, Police Order No. 219 of 1990, letter No. 5971/ P-2 dated 22.11.1993, memo No. 6112/ P-2 dated 11.12.1993 and Police Order No. 247 of 1994. The Police Order 247 of 1994 clearly mentions that the provision of transfer policy has been made in the Police Manual and also in the aforesaid circulars and memoes but to explain the same, certain clarifications have to be issued. Apart from other things, it fixes duration of the police officers of the rank of Inspectors to Assistant Sub-Inspector of Police in different districts, range and zone. It provides that no officer of the aforesaid ranks shall remain in one district for more than six years. In any range, the total period of posting will be 8 years inclusive of all the ranks. The total period of posting inclusive of all ranks in one zone will be up to ten years. 17. According to the appellants, the said provision is contrary to the provision contained in the rule 778 of the Police Manual. Transfer is not a condition of service, rather it is an incidence of service and no employee has any right to be posted at one place for a particular time. Even if there being fixation of tenure of posting at a particular place, on administrative exigencies, the transfer can be made even before the expiry of the said tenure. It is admitted position that Police Order No. 247 of 1994 has been issued without approval of the State Government and as such it is not an order issued by or under the authority of the State Government. So the order cannot assume the character of an order issued under Section 12 of the Act which empowers the Director General to issue instruction with regard to matter enumerated therein with the approval of the State Government. According to the stand of the respondent, order has been issued under Rule 8 of the Police Manual which empowers the Director General to issue orders or directions in the circumstances mentioned therein. According to the stand of the respondent, order has been issued under Rule 8 of the Police Manual which empowers the Director General to issue orders or directions in the circumstances mentioned therein. The question is as to whether the direction issued by the Director General is explanatory or supplemental to the Rules framed under Section 12 of the Act or it is inconsistent with the said Rules. Of late several changes have been made in the police administration. Several districts have been carved out of big district. Zones have been created in which several ranges fall. In such a situation, it became necessary for the Director General of Police to issue circulars explaining the transfer policy contained in the Police Manual. Police Order No. 247 of 1994 does not provide anything contrary to or inconsistent with the provisions contained in the Police Manual. The grievance of the appellant is that according to the provisions of the Police Manual, an officer including in all the three ranks, namely, ASI, S.I. and Inspector may remain posted for 12 years in one district, whereas by Police Order No. 247 of 1994, the said period has been reduced to six years. Thus, the same is contrary to the aforesaid provision. It is difficult to accept the aforesaid contention. The said Police rule only provides that in no case, the posting of Police Officer including in all the ranks namely, Assistant Sub-Inspector, Sub-Inspector and Inspector should not exceed 12 years. In other words, no minimum time limit was fixed for retention in one district, whereas explanatory order only provides that they shall not remain posted in one district for more than six years. Thus, the direction issued by the Director General of Police in Police Order No. 247 of 1994 is only explanatory in nature which have been necessitated because of the aforesaid reason. Thus, it cannot be said that the Police Order in any way is inconsistent with or has supplanted the Rule 778 (ii) [sic(vii) ?] of the Police Manual. On the other hand, the same has been issued to explain the previous orders by the Director General in exercise of power under Rule 8 of the Rules. Thus, the submission advanced on behalf of the appellant that Police Order No. 247 of 1994 cannot be given effect to is without substance. 18. On the other hand, the same has been issued to explain the previous orders by the Director General in exercise of power under Rule 8 of the Rules. Thus, the submission advanced on behalf of the appellant that Police Order No. 247 of 1994 cannot be given effect to is without substance. 18. In the result, there is no merit in this appeal and the same is dismissed. Aftab Alam, J. 19 I agree.