Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 724 (JK)

Gh. Hassan Kamal v. State

2013-12-13

TASHI RABSTAN

body2013
1. By the medium of writ petition-in-hand, the petitioner has called in question Order No. OSI/Post./13/42000-42008/ dated 27.09.2013 and Order No. 2624 of 2013 dated 21.10.2013 issued by respondent No.3 whereby the petitioner has been transferred from Police Station, Satwari to District Police Lines, Jammu and respondent No.5 has been directed to lookafter the work of SHO, Police Station, Satwari till further orders. The petitioner has challenged the impugned orders primarily on two grounds:- (i) That respondent No.3 has no competence to pass the transfer order of the petitioner; and (ii) That the petitioner has been subjected to frequent transfer, which act of the official respondents is arbitrary, malafide and actuated by extraneous consideration. 2. Official respondents have filed their objections in which challenge to the impugned orders has been resisted on the ground that transfer of the petitioner from Police Station, Satwari to District Police Lines, Jammu is in furtherance of communication No. PHQ/C.B./lnspr-07/2003-1891 dated 05.08.2013. It is further contended by the respondents that transfer of the petitioner was necessitated in view of his involvement in case FIR No.33 of 2010 for the offence punishable under Section 5(2) of Prevention of Corruption Act, registered with the Police Station, Vigilance Organization, Kashmir. It is further contended by the respondents that charges against the petitioner have been proved in the investigation and the charge sheet has since been filed in the Court of Anti Corruption, Srinagar where the petitioner is facing trial after being charged for the aforesaid offence. 3. In this background, the official respondents have submitted that in view of the involvement of the petitioner in a serious offence of corruption, the petitioner is a tainted official and cannot be allowed to perform the responsive duties of public interest as Incharge of Police Station, Satwari. With a view to restore public confidence to keep the tainted officer away from performance of responsive duties of Incharge Police Station, Satwari, respondent No.3 in exercise of his powers under Rule 18 of the J&K Police Rules, 1960 has transferred the petitioner vide order impugned dated 21.10.2013. It is further stated that police force is a disciplined force and very high dignity of honesty, dedication and discipline is expected from the members of such force. It is further stated that police force is a disciplined force and very high dignity of honesty, dedication and discipline is expected from the members of such force. Putting the tainted officers like the petitioner, who are involved in serious cases of corruption as Incharge of Police Station is not in the interest of administration and is likely to shake the confidence of people. The contention of the petitioner that Senior Superintendent of Police is not competent to transfer the petitioner has also been denied by the official respondents by relying upon Rule 18 of J&K Police Rules, 1960. Official respondents have also placed reliance upon the provisions of Section 21 of the General Clause Act to contend that petitioner who was transferred and posted by respondent no.3 from District Police Lines, Jammu to Police Station Satwari is competent to rescind or modify the said order. 4. Heard learned counsel for the parties and perused the record. 5. It is well settled that transfer is an exigency of service. No employee can claim his transfer and posting to a particular post of his choice. It is employer, who is the best judge of needs of administration and is all powerful to decide about the posting of the officer/its employees so as to subserve the interest of administration. The Courts have been loath to interfere with discretion of the employer in the matter of transfers. The transfer, however, can be interfered with only if the same is found to be made by the officer not competent to transfer or is actuated by malafides consideration or issued in violation of the statutory Rules. Although, the petitioner has vehemently contended that his transfer by respondent No. 3 is without jurisdiction in as much as under Rule 123 of the J&K Police Rules, the power to transfer the Inspector of Police vests with Deputy Inspector General of Police and respondent No. 3, Senior Superintendent of Police, is not competent to transfer the police officers of the rank of Inspectors and above. 6. On the other hand, respondents 1 to 4 have submitted that J&K Police Rules were framed in the year 1960 and thereafter police establishment has undergone tremendous change and many designations which exist in the Rule of 1960 have undergone sea change. 6. On the other hand, respondents 1 to 4 have submitted that J&K Police Rules were framed in the year 1960 and thereafter police establishment has undergone tremendous change and many designations which exist in the Rule of 1960 have undergone sea change. For example, Inspector General of Police who is the Incharge of Police under Police Rules is now designated as Director General of Police and IGP is only Incharge of the Province. Official respondents, therefore, contend that conjoint reading of Rules 4 and 18 of the J&K Police Rules would clearly demonstrate that SSP being Incharge of the District is responsible to maintain the administration within his district. Maintenance of administration in the district, respondents contend includes power to transfer and post the Incharge Police Station (SHO) within the district. 7. During the course of the arguments, learned counsel for the respondents also brought it to the notice of this Court a communication of Police Headquarter dated 05.08.2013 (Annexure-R3 with the objections) in which Director General of Police has clearly provided that the petitioner, who is involved in FIR No.33 of 2010 under Section 5(2) of Prevention of Corruption Act registered with Police Station, Vigilance Organization, Kashmir may not be posted in any significant/independent place. Relying upon the aforesaid communication issued from the Headquarter, learned counsel for the official respondents contends that order impugned issued by respondent No.3 was in pursuance of the aforesaid communication, as such, cannot be found faulted with for want of jurisdiction. Otherwise also, as contended by the respondents with reference to submission made in paragraph No.5 of the objections, petitioner was transferred from District Police Lines, Jammu and posted as Incharge Police Station, Satwari vide order No. 1693 of 2013 dated 01.07.2013 passed by respondent No.3. Petitioner who was posted in Police Station, Satwari by respondent No.3 did not object the jurisdiction and competence of respondent No.3 as it suited to him at that point of time. The petitioner now challenges the jurisdiction and competence of respondent no.3 when he is transferred back to District Police Lines by the same authority/officer. The petitioner, as has rightly been contended by respondents, cannot be allowed to blow hot and cold in the same breath. The petitioner now challenges the jurisdiction and competence of respondent no.3 when he is transferred back to District Police Lines by the same authority/officer. The petitioner, as has rightly been contended by respondents, cannot be allowed to blow hot and cold in the same breath. The plea of want of jurisdiction and competence of respondent no.3 to issue order of transfer of the petitioner, therefore, cannot be accepted, particularly, when it has come from the mouth of the person, who had earlier accepted the jurisdiction and competence of the aforesaid officer when it suited to him. If the petitioner concedes the power and competence of respondent No.3 to transfer and post him from District Police Lines to Incharge, Police Station, Satwari, then he must accept the power and competence of said officer to reverse the aforesaid order. In these circumstances, plea raised by the petitioner with regard to want of jurisdiction/competence of respondent No.3 to issue order impugned cannot be accepted. 8. So far as the allegations of malafides are concerned, the petitioner has not been able to demonstrate as to how respondent No.3 was inimical to him. Rather, respondent No.3 has made abundantly clear that in view of the involvement of the petitioner in serious offence of corruption, it was not in the interest of administration to put such tainted officer as Incharge of the sensitive Police Station, i.e., Police Station, Satwari. Moreso, when Police Headquarter vide its communication dated 05.08.2013 had categorically directed not to post the petitioner in any significant/independent place. 9. Law with regard to transfer of a Government employee is well settled and scope of interference of the Courts in exercise of discretion of the employer in effecting transfer of its employees is very limited as is cleared from the catena of judicial pronouncements of the Apex Court as well as of this Court. Otherwise also, Division Bench of this Court while dealing with WPPIL No. 9 of 2012 titled Sheikh Mohd Shafi and another v. Union of India and others vide its order dated 04.03.2013 directed the State functionaries not to post a person who had been facing serious charges of corruption in the capital city. Otherwise also, Division Bench of this Court while dealing with WPPIL No. 9 of 2012 titled Sheikh Mohd Shafi and another v. Union of India and others vide its order dated 04.03.2013 directed the State functionaries not to post a person who had been facing serious charges of corruption in the capital city. The directions were issued in the context of Shri Baseer Ahmad Khan (IAS), Deputy Commissioner, Srinagar who despite having been accused in FIR No. 8 of 2009 registered under Prevention of Corruption Act at Police Station, Vigilance Organization, Kashmir have been posted as Deputy Commissioner, Srinagar. On that analogy, the petitioner who is similarly involved in the corruption charges cannot be posted as SHO in Police Station in the capital city at Jammu. 10. In view of above, there is no merit in this petition. Accordingly, the same is dismissed along with connected CMA(s). Interim direction, if any, shall stand vacated. 11. Contempt petition is taken on board. Contempt(S) No. 483/2013. 12. In view the dismissal of the main writ petition, nothing survives in this contempt petition. However, it is provided that in case the petitioner has not been allowed to function as Incharge, Police Station, Satwari despite interim direction dated 21.11.2013 issued by this Court, intervening period would be treated as on duty and his due salary, if any, shall be disbursed. 13. With these observations, contempt petition shall stand disposed of.