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2013 DIGILAW 730 (JK)

Gh. Hassan Kamal v. State Of J&K

2013-12-18

Hasnain Massodi, M.M.Kumar

body2013
1. The instant appeal under clause 12 of the Letters Patent is directed against the judgment dated 13.12.2013 rendered by the learned writ court in SWP No. 2507 of 2013 along with connected applications up-holding order dated 27.09.2013 transferring the appellant from Police Station, Satwari to District Police Lines, Jammu. The impugned order further stipulates that respondent No. 4 (inadvertently mentioned as respondent No. 5 in the order), was to look after the work of SHO, Police Station, Satwari till further orders. The appellant failed to persuade the learned Writ Court to accept the prayer for quashing the order of transfer. It has been held that the transfer is an exigency of service and no employee could claim posting at a particular station of his choice. It is the employer, who is best judge of the needs of the administration and, accordingly, he has primacy to decide about the posting of its employees. The learned writ Court rejected the arguments that the Sr. Superintendent of Police, was not competent to pass the order of transfer and has placed reliance on Rule-18 of the Jammu & Kashmir Police Rules, 1960 (for brevity `the Rules'). A reference has also been made to the communication of Police Headquarter dated 05.08.2013 (R-3), wherein the Director General of Police, has issued instructions that the appellant may not be posted in any significant/ independent seat. The aforesaid communication was prompted by the fact that the appellant is involved in case FIR No. 33 of 2010 under Section 5(2) of the Prevention Act (for brevity `the Act'), which is registered with the Police Station, Vigilance Organization, Kashmir. The allegations of mala fide leveled against respondent No. 3 have also not been accepted by the learned writ court. It is also appropriate to mention that the writ court has also placed reliance on the order dated 04.03.2013 passed by the Division Bench of this Court in WPPIL No. 9 of 2012 (Sheikh Mohd. Shafi and another v. Union of India and others), wherein the directions were issued to the State functionaries not to post an employee who had been facing serious charges of corruption in capital City like Jammu/Srinagar. Shafi and another v. Union of India and others), wherein the directions were issued to the State functionaries not to post an employee who had been facing serious charges of corruption in capital City like Jammu/Srinagar. Thus, directions were issued because one Shri Basheer Ahmed Khan, IAS continued to work as Deputy Commissioner, Srinagar, despite the fact that he was facing the charges of corruption in case FIR No. 8 of 2009 registered under the Act at Police Station, Vigilance Organization, Kashmir. 2. Mr. Slathia, learned sr. counsel assisted by Mr. Ashish Sharma, Advocate for the appellant, has vehemently argued that the posting and transfer of the Police Officers is regulated by Rule 123 of the Rules. According to the learned counsel, it is only Inspector General of Police, who would be competent to transfer enrolled Police Officers or gazetted Officers. Mr. Slathia, has emphasized that the impugned order of transfer has been passed by the Sr. Superintendent of Police, Jammu, who is competent to transfer only Sub-Inspectors, Assistant Sub-Inspectors and all other officers working in lower ranks in the District. Learned counsel has submitted that incorrect view has been taken by the writ court which has erroneously placed reliance on the provision, which deals only with the general supervision expected from a Superintendent of Police. 3. Mr. Slathia, has then attacked the order of transfer by submitting that the order dated 05.08.2013 (R-3) passed by the Director General of Police, cannot legitimize the order of transfer that has been issued by the Sr. Superintendent of Police independently. 4. Mr. Gagan Basotra, learned Sr. AAG has, however, argued that the appellant is named in case FIR No. 33 of 2010 registered under Section 5(2) of the Act with Police Station, Vigilance Organization, Kashmir, therefore, such an officer cannot be deputed to discharge the duties of Station House Officer. In reply to the arguments that the transfer order had been passed by the Sr. Superintendent of Police, Mr. Basotra, learned Sr. AAG, has submitted that the Sr. Superintendent of Police has been guided by the Director General of Police and Inspector General of Police, Jammu vide order dated 05.08.2013 and, therefore, it cannot be said that the Sr. Superintendent of Police, has exercised his own powers. Thus, the order has been passed on the direction issued by the Director General of Police and Inspector General of Police. Mr. Superintendent of Police, has exercised his own powers. Thus, the order has been passed on the direction issued by the Director General of Police and Inspector General of Police. Mr. Basotra has emphasized that there is no necessity to make a reference to the order of the superior authority in the impugned order of transfer, if it can established, otherwise. According to the learned counsel the order dated 21.10.2013 is referable to the order dated 05.08.2013 (R-3) passed by the Director General of Police asking the Inspector General, Jammu Zone that the appellant was not to be posted in significant/independent office on account of his involvement in the case under the Act. 5. Having heard the learned counsel for the parties and after pursuing the paper book with their able assistance, we are of the considered opinion that the transfer is necessarily an exigency of service, and no employee can claim a particular place of posting and the employer, would be fully within his powers to utilise the potential of an employee as per the requirement of administration exigency. In that regard, reliance may be placed on the observation made by the Hon'ble Supreme Court in case `T.D.Subramaniam v. Union of India and ors.', (1981) 4 SCC 150 ') and `Union of `India v. Janardhan Debanath and another', (2004) 4 SCC 245 . 6. Having observed in the aforesaid manner, we now proceed to deal the submission that the order of transfer has not been passed by the competent authority. In that regard, it would be first appropriate to read Rule 123 of the Jammu & Kashmir Police, Rules (for brevity `the Rules'), which is set out below in extenso: 123. "Postings and Transfers (1) The Inspector General is empowered to post or transfer all gazetted officers up to the rank of Assistant/Deputy Superintendents of Police and all enrolled Police Officers to or in any part of the general police district. A Deputy Inspector General of Police may post or transfer all enrolled police officers within his province. A Superintendent of Police Incharge of a district may post and transfer Sub-Inspectors, Assistant Sub-Inspectors and all lower ranks in the district. (2) A register of postings of all enrolled police officers except Inspectors shall be maintained in English in the office of the Deputy Inspector General of Police and District Superintendent of Police in Form 13.......'" 7. A Superintendent of Police Incharge of a district may post and transfer Sub-Inspectors, Assistant Sub-Inspectors and all lower ranks in the district. (2) A register of postings of all enrolled police officers except Inspectors shall be maintained in English in the office of the Deputy Inspector General of Police and District Superintendent of Police in Form 13.......'" 7. A perusal of the aforesaid Rule would make it patent that the Inspector General of Police alone is empowered to post or transfer all gazetted officers up to the rank of Assistant/Dy. S.P of Police and all enrolled police officers to or any part of the general district. In other words, the Inspector General of Police, has been designated as an authority to pass transfer order in respect of Inspector/SHO. 8. The appellant is admittedly involved in a case FIR No. 33 of 2010 registered under Section 5(2) of the Act. The case is pending adjudication before the Anti-Corruption, Judge. It was in keeping with the aforesaid facts that on 05.08.2013 the Director General of Police sent a letter to the Inspector General of Police (R-3). The letter was also endorsed to the Sr. Superintendent of Police, Jammu for information and necessary action vide endorsement No. Pers/Inspr/2013/22238-39 dated 22.8.2013. 9. The question, which falls for consideration is, whether in the back drop of the letter dated 05.08.2013, it could be concluded that the Sr. Superintendent of Police, Jammu has passed the order of transfer on 21.10.2013 in an independent capacity or on the sanction and desire expressed by the Director General of Police. It is obvious that the Sr. Superintendent of Police has passed the order on the basis of the endorsement sent to him on 22.08.2013/04.09.2013. It would be appropriate to read the order dated 05.08.2013/04.09.2013 (R-3) along with its endorsement which is set out below in extenso: "Confidential POLICE HEADQUARTERS- J&K SRINAGAR No. PHQ/C.B/Inspr-07/2003-1891 Dated 05.08.2013 The Inspector General of Police, Jammu Zone, Jammu. Sir, Vide PHQ order No. 364 of 2013 dated 06.--.2013 among others Inspector Ghulam Hassan Kamal No. 3049/NGO (ExJ-905683) was transferred from Crime Branch to Jammu Zone on tenure basis. Sir, Vide PHQ order No. 364 of 2013 dated 06.--.2013 among others Inspector Ghulam Hassan Kamal No. 3049/NGO (ExJ-905683) was transferred from Crime Branch to Jammu Zone on tenure basis. I have been directed to convey that the officer is not to be posted in any significant/independent place in view of (a) his involvement in case FIR No. 33/2010 U/S 5(2) VOK prevention of corruption Act of P/S VOK which is subjudice in the court of Sub Judge Anti-corruption Kashmir and (b) on account of death of his domestic helper with the service revolver of the officer in 2003.\ Yours faithfully, Sd/- AIG(P) For Director General of Police, J&K Srinagar. ZONAL POLICE HEADQUARTER JAMMU No. Pers/Inspr/2013/22238-39 Dated 22.08.2013 Copy to the: 1. DIG JKS Range Jammu for information and n/action. 2. SSP Jammu for information and n/action. Sd/- For Inspector General of Police Jammu Zone, Jammu RANGE POLICE HEADQUARTERS JAMMU No. Estt/13/8537 Dated 04.09.2013 Copy to:- 1. SSP, Jammu (sick) for info. and n/a" 10. A perusal of the aforesaid order would make it abundantly clear that the copy of the order has been endorsed to Sr. Superintendent of Police, Jammu by the Inspector General of Police, Jammu Zone, Jammu on 04.9.2013, the order of transfer dated 21.10.2013, has been passed apparently keeping in view the order passed by the Director General of Police which has been duly endorsed to respondent-3 by the Inspector General of Police on 4.9.2013. 11. It is well settled that if a source of power can be traced to another order or a provision of a statute then merely because no express mention of such an order has been made in the later order, would not by itself result in a declaration that the later order is without concurrence and direction issued by the superior and competent authority. Therefore, we are not able to appreciate the contention raised on behalf of the appellant. 12. We are, also in agreement with Mr. Basotra, learned State counsel, when he argued that the officer facing serious allegations of corruption should not be given posting in key area because such a posting raises eye brow and questions of propriety. Therefore, we are not able to appreciate the contention raised on behalf of the appellant. 12. We are, also in agreement with Mr. Basotra, learned State counsel, when he argued that the officer facing serious allegations of corruption should not be given posting in key area because such a posting raises eye brow and questions of propriety. It is in this regard that the reliance has been correctly placed on the view taken by the Division Bench of this Court in the order dated 04.03.2013 passed in WPPIL No. 9 of 2012, and in that case, a direction was issued to the State functionary to refrain from posting a person in the capital city who had been facing serious charges of corruption. The capital city is the face of the State and the administration could not possibly post an officer with ugly and doubtful antecedent at such a place. The directions issued by the Division Bench were challenged before the Hon'ble Supreme Court. However, the State counsel could not persuade the Supreme Court to reverse the order. Eventually, the Special Leave Petition was dismissed as not pressed. Therefore, the order transferring the appellant has been passed in the exigency of service and the same does not suffer from any legal infirmity warranting interference of this Court. The appeal is wholly without substance and does not merit admission. 13. For the reasons aforementioned, this appeal fails and the same is dismissed.