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2018 DIGILAW 518 (GAU)

T. Mhonyamo Tsopoe v. State of Nagaland

2018-03-23

LANUSUNGKUM JAMIR

body2018
JUDGMENT : Lanusungkum Jamir, J. 1. The challenge to the Notification dated 22.12.2017 insofar as the transfer and posting of the petitioners and the private respondents are concerned and the reliefs sought for being identical, both W.P.(C) No. 2(K) of 2018 and W.P.(C) No. 3(K) of 2018 are being disposed of by this common judgment and order. The petitioner in W.P.(C) No. 2(K) of 2018 is serving as Officer-in-Charge (Additional S.P.) of the Nagaland Police Central Store, Chumukedima. By a Notification dated 22.05.2017, the petitioner was transferred as Additional Superintendent of Police (PHQ) attached to CP, Dimapur from ACP (A) Div., Dimapur on the recommendation of the Police Establishment Board ('PEB' in short). The said Notification dated 22.05.2017 was modified by transferring and posting the petitioner who was serving as Additional S.P. (PHQ) attached to CP, Dimapur as Additional S.P. (INT) and attached to CP, Dimapur till further order by Notification dated 1.7.2017. Thereafter, by another Notification dated 09.10.2017, the petitioner was again transferred as OC (Addl. S.P.), Police Central Store. The petitioner thereafter, took over charge as Officer-in-Charge of Nagaland Police Central Store, Chumukedima with effect from 01.11.2017. Again by another Notification dated 22.12.2017, the petitioner was again cross-transferred with the private respondent No. 4 and was posted as Deputy Commandant 7th NAP Battalion, Bhandari. Being aggrieved with the frequent transfer, the petitioner has filed the present writ petition. The petitioner in W.P.(C) No. 3(K) of 2018 was posted as Deputy Superintendent of Police (Reserve) at Kohima. By Notification dated 22.12.2017, the petitioner was transferred and posted as Assistant Commandant, 5th NAP Battalion. The said Notification dated 22.12.2017 is also under challenge in the present writ petition on the ground that the transfer order was not served upon the petitioner and that he had came to know about the same through social media application and that the said transfer order was issued at the behest of political interference to accommodate the private respondent No. 4. 2. Heard Mr. Taka Masa, learned senior counsel assisted by Mr. Arenlong, learned counsel appearing for the petitioners in both the writ petitions. Also heard Ms. V. Suokhire, learned Additional Senior Government appearing for the State respondents in both the writ petitions as well as Mr. A. Zho, learned counsel appearing for the private respondent No. 4 in both the writ petitions. 3. Mr. Arenlong, learned counsel appearing for the petitioners in both the writ petitions. Also heard Ms. V. Suokhire, learned Additional Senior Government appearing for the State respondents in both the writ petitions as well as Mr. A. Zho, learned counsel appearing for the private respondent No. 4 in both the writ petitions. 3. Mr. Taka Masa, learned senior counsel for the petitioner in W.P.(C) No. 2(K) of 2018 submits that the petitioner was initially transferred and posted as Additional S.P. (PHQ) attached to CP, Dimapur while he was serving as ACP (A) Div, Dimapur. Thereafter, a Notification dated 01.07.2017 was issued modifying the earlier Notification dated 22.05.2017 by which the petitioner was transferred and posted as Additional S.P. (INT) and attached to CP, Dimapur till further order. Within a span of few months, another Notification dated 09.10.2017 was issued by the respondents transferring the petitioner as OC (Additional S.P.), Nagaland Police Central Store, Chumukedima. In response to the transfer and posting effected by the Notification dated 09.10.2017, the petitioner had taken over charge in his new place of posting i.e. Officer-in-Charge, Nagaland Police Central Store, Chumukedima with effect from 01.11.2017. Thereafter, within a period of one month, the petitioner was again transferred as Deputy Commandant, 7th NAP Battalion, Bhandari allegedly on the recommendation of the PEB. Learned senior counsel for the petitioner submits that it is a settled position of law that a Government employee should not be frequently transferred as has been done in the present case. It is also submitted that the transfer of the petitioner is in violation of the direction passed by the Hon'ble Supreme Court in the case of Prakash Singh & Ors. Vs. Union of India & Ors., reported in (2006) 8 SCC 1 wherein, the Hon'ble Supreme Court has directed that there shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. It was further directed that the Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. It was further directed that the Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. It was also provided that the Board shall also be authorized to make appropriate recommendations to the State Government regarding the postings and transfers of officers of and above the rank of Superintendent of Police and the Government is expected to give due weight to these recommendations and shall normally accept it. He submits that in gross violation of the directions passed by the Hon'ble Supreme Court in the case of Prakash Singh (supra), the PEB that was held while considering the case of the petitioner for transfer was headed by the Chief Secretary and was not presided over by the Director General of Police. In the said PEB, the Inspector General of Police (IGP Headquarter) had attended the same and therefore, the constitution of PEB is in total contravention of the direction passed by the Hon'ble Supreme Court. Learned senior counsel further submits that in the PEB that was held on 21.12.2017, the name of the petitioner did not figure for transfer but however, in the impugned Notification dated 22.12.2017, the petitioner has been transferred allegedly on the recommendation of the PEB. This would clearly indicate that the transfer of the petitioner was made on extraneous considerations for achieving an alien purpose or an oblique motive and the same amounts to colourable exercise of power and mala fide on the part of the respondents. 4. Insofar as the petitioner in W.P.(C) No. 3(K) of 2018 is concerned, learned senior counsel for the petitioner submits that he was transferred as Deputy Superintendent of Police at Kohima by an order dated 31.03.2015 and while discharging his duty, he had come across a Notification dated 22.12.2017 in the social media whereby, the petitioner was shown to have been transferred as Assistant Commandant, 5th NAP Battalion and the respondent No. 4 was transferred to the place of posting of the petitioner. He submits that till the filing of the writ petition, the Notification dated 22.12.2017 was not served upon the petitioner and that the petitioner has strong reasons to believe that the impugned transfer order was issued at the behest of political interference to accommodate the respondent No. 4 in place of the petitioner. He submits that till the filing of the writ petition, the Notification dated 22.12.2017 was not served upon the petitioner and that the petitioner has strong reasons to believe that the impugned transfer order was issued at the behest of political interference to accommodate the respondent No. 4 in place of the petitioner. He submits that it is an established principles of service jurisprudence that the transfer is mala fide when it is made not in professed purpose such as any normal course or in public or administrative interest or in exigencies of service but for other purpose such as to accommodate another person for undisclosed reasons. He also reiterates his submissions that the recommendation of the PEB on the basis of which the impugned Notification dated 22.12.2017 has been issued, was not presided over by the Director General of Police but the same was held under the Chief Secretary of Nagaland which is in total contravention of the direction passed by the Hon'ble Supreme Court in the case of Prakash Singh (supra). He also submits that the son of the petitioner is appearing for the 10th standard from Mezhur Higher Secondary School at Kohima under the Nagaland Board of School Education and the board examination would be commencing within the month of March, 2018. As the petitioner is sought to be transferred to a remote place by the impugned Notification dated 22.12.2017, the same would cause tremendous hardship and the educational facilities available to the petitioner's son at his place of posting, would be effected. Therefore, such an unwarranted transfer order issued in a mala fide manner for extraneous consideration deserves to be set aside and quashed. He has placed reliance in the case of (1) Prakash Singh & Ors. Vs. Union of India & Ors., reported in (2006) 8 SCC 1, (2) Shri Bimal Kumar Deb Medhi Vs. The State of Assam & Ors., reported in 1995 (1) GLT 435, (3) Oil Koyu Vs. The State of Arunachal Pradesh & Ors., reported in 2014 (5) GLT 539, (4) Hussein Ghadially @ M.H.G.A. Shaikh & Ors. Vs. The State of Gujarat, reported in (2014) 8 SCC 425 and in the case of (5) Uddar Gagan Properties Limited Vs. Sant Singh & Ors., reported in (2016) 11 SCC 378 . 5. Ms. The State of Arunachal Pradesh & Ors., reported in 2014 (5) GLT 539, (4) Hussein Ghadially @ M.H.G.A. Shaikh & Ors. Vs. The State of Gujarat, reported in (2014) 8 SCC 425 and in the case of (5) Uddar Gagan Properties Limited Vs. Sant Singh & Ors., reported in (2016) 11 SCC 378 . 5. Ms. V. Suokhrie, learned Additional Senior Government Advocate appearing on behalf of the State respondents in both the writ petitions submits that the petitioner in W.P.(C) No. 2(K) of 2018 was transferred on three occasions within a span of five months and all these transfers and postings were made for his personal interest and choice and none of his transfer and posting was proposed by the PHQ. The Notification dated 22.12.2017 was issued without any mala fide intention and that there is no mandatory provision/order that only the Director General of Police should be physically present in the PEB. She also submits that the State Government has enacted the Nagaland Police Service Rules, 2006 ('the Rules of 2006, in short) which was published in the Nagaland Gazetted on 29.06.2007. She submits that under the Rules of 2006, Rule 11 provides for the constitution of Police Establishment Board wherein, the Chief Secretary, Nagaland is the Chairman and the Director General of Police is a member along with three other Government Officers. Therefore, the PEB that was held on 21.12.2017 was in consonance with the Rules of 2006 and therefore, the petitioner cannot challenge the Notification dated 22.12.2017 on the ground that the PEB was not properly constituted. It is also submitted that Rule 11(a) of the Rules of 2006 provides that there shall be a Police Establishment Board to clear all promotions to members of the service consisting of Chief Secretary as Chairman and Director General of Police, Nagaland as member along with three others. Learned Additional Senior Government Advocate submits that Rule 11 will have to be read along with Rule 14 and thereby it covers promotion, transfer and posting of police officers by the PEB. On the basis of records, learned Additional Senior Government Advocate further submits that the allegations of the learned senior counsel for the petitioner in W.P.(C) No. 2(K) of 2018 that his name was not proposed for transfer by the PEB is not correct inasmuch as, in the 1st minutes of the PEB, the name of the petitioner figured therein. On the basis of records, learned Additional Senior Government Advocate further submits that the allegations of the learned senior counsel for the petitioner in W.P.(C) No. 2(K) of 2018 that his name was not proposed for transfer by the PEB is not correct inasmuch as, in the 1st minutes of the PEB, the name of the petitioner figured therein. In that view of the matter, she submits that there is no merit in the writ petitions and deserves to be dismissed. It is also submitted that Rules of 2006 has been framed in terms of para 31 of the directions passed by the Hon'ble Supreme Court in the case of Prakash Singh (supra) wherein directions were issued to the Central Government, State Government and Union Territories for compliance till framing of an appropriate legislation. In the present case, the Rules of 2006 has been framed under Article 309 of the Constitution of India and the Government had deemed it appropriate that the PEB should be headed by the Chief Secretary of the State and therefore, the directions passed in the case of Prakash Singh (supra) has been complied by the State Government. Learned Additional Senior Government Advocate further submits that the petitioner in W.P.(C) No. 3(K) of 2018 cannot take the umbrage of not being transferred out on the ground that his son is appearing HSLC Examination in March, 2018. The petitioner has completed three years as Deputy Superintendent of Police (R), Kohima and therefore, has completed his normal tenure and as such, there is no political interference or mala fide in ordering his transfer. 6. Mr. A. Zho, learned counsel appearing for the private respondent No. 4 in both the writ petitions while endorsing the submissions made by the learned Additional Senior Government Advocate further submits that the constitution of PEB envisaged under Rule 11 of the Rules of 2006 is not under challenge and therefore, the petitioner cannot take the ground that the PEB has been constituted in violation of the directions of the Hon'ble Supreme Court. He also submits that in a similar matter, the State of Bihar has enacted the Bihar Police Act, 2007 whereby structure of the PEB has been constituted with the Chief Secretary as Chairman and the Director General of Police as member under Section 24. He also submits that in a similar matter, the State of Bihar has enacted the Bihar Police Act, 2007 whereby structure of the PEB has been constituted with the Chief Secretary as Chairman and the Director General of Police as member under Section 24. It is submitted that the Bihar Police Act 2007 was before the scrutiny of the Hon'ble Supreme Court in the case of Pramod Kumar & Anr. Vs. Bihar Vyavasayik Sangharsh Morcha & Ors., reported in (2007) 7 SCC 659 , wherein the Hon'ble Supreme Court has also referred the case of Prakash Singh (supra) while examining the Bihar Police Act, 2007. However, the Hon'ble Supreme Court did not strike down the PEB in the Bihar Police Act, 2007 holding that it was contrary to the Supreme Court directions. He submits that in the present case, the Government has enacted the Rules of 2006 under Article 309 of the Constitution and has considered it appropriate that the Chief Secretary should head the PEB. In that view of the matter, the present case is covered by the case of Pramod Kumar (supra) and therefore, no interference is required in the impugned Notification dated 22.12.2017. As the direction of the Hon'ble Supreme Court given in the case of Prakash Singh (supra) has been complied with by the State Government by enacting the Rules of 2006, the petitioner cannot take the plea that the PEB has been constituted in contravention to the direction of Hon'ble Supreme Court passed in the case of Prakash Singh (supra). He further submits that no Government employee has a right to claim to be posted in a particular place of posting as the transfer and posting of a Government employee is within the prerogative of the Government. That as regards the petitioner in W.P.(C) No. 3(K) of 2018, he submits, that the petitioner has completed more than three years in his present place of posting and therefore has no right to challenge his transfer order. In his support, learned counsel for the respondent No. 4 has also placed reliance in the case of (1) S.C. Saxena Vs. Union of India & Ors., reported in (2006) 9 SCC 583 , (2) State of U.P. & Ors. Vs. Gobardhan Lal, reported in (2004) 11 SCC 402 , (3) Rajendra Singh & Ors. Vs. In his support, learned counsel for the respondent No. 4 has also placed reliance in the case of (1) S.C. Saxena Vs. Union of India & Ors., reported in (2006) 9 SCC 583 , (2) State of U.P. & Ors. Vs. Gobardhan Lal, reported in (2004) 11 SCC 402 , (3) Rajendra Singh & Ors. Vs. State of Uttar Pradesh & Ors., reported in (2009) 15 SCC 178 , (4) Mohd. Masood Ahmad Vs. State of U.P. & Ors., reported in (2007) 8 SCC 150 and in the case of Pramod Kumar & Anr. Vs. Bihar Vyavasayik Sangharsh Morcha & Ors., reported in (2007) 7 SCC 659 . 7. In reply, learned senior counsel for the petitioner submits that the Hon'ble Supreme Court in the case of Prakash Singh (supra) at para 31 has made it abundantly clear that the direction passed by the Hon'ble Supreme Court will have to be followed until an appropriate legislation is made by the Government. In the present case, the Rules of 2006 which has been enacted under Article 309 of the Constitution cannot be construed to be a legislation and therefore, until and unless an appropriate legislation is made by the State Government, the respondents cannot take umbrage under the Rules of 2006 to circumvent the direction passed by the Hon'ble Supreme Court in Prakash Singh (supra). 8. I have considered the submissions forwarded by the learned counsel for the parties. 9. Though there are a number of allegations made against each other by both the rival parties, this Court is of the considered opinion that the main crux of the issue is whether the PEB that was held on 21.12.17 is in consonance with the direction passed by the Hon'ble Supreme Court in the case of Prakash Singh (supra). 10. In the case of CMD/Chair man, Bharat Sanchar Nigam Limited & Ors. Vs. Union of India & Ors., reported in (2011) 14 SCC 739 , the Hon'ble Supreme Court has held as under:- "11. Rules under Article 309 can be changed even during the subsistence of the old rules. As held in Raj Kumar v. Union of India (vide SCC para 2) "rules made under the proviso to Article 309 of the Constitution are legislative in character, and therefore can be given effect to retrospectively". Rules under Article 309 can be changed even during the subsistence of the old rules. As held in Raj Kumar v. Union of India (vide SCC para 2) "rules made under the proviso to Article 309 of the Constitution are legislative in character, and therefore can be given effect to retrospectively". Thus, the rules under the proviso to Article 309 are constitutional rules, not like rules under a statute. Hence they have the same force as a statute, though made by the executive". In the context of what has been held by the Hon'ble Supreme Court, this Court is of the considered opinion that the Rules of 2006 which has been enacted under Article 309 of the Constitution of India shall be deemed to be constitutional Rules which have the same force as a statute though made by the executive. The Rules of 2006 was also published in the Nagaland Gazetted on 29.06.2017. At the same breath, the purpose of constituting the PEB under the Rules of 2006 will have to be considered in the context of the directions passed by the Hon'ble Supreme Court in the case of Prakash Singh (supra). Rule 11(a) of the Rules of 2006 reads as under:- "11. Constitution of Police Establishment Board: (a) There shall be a Police Establishment Board (PEB) to clear all promotions to members of the service consisting of the following:- 1. The Chief Secretary, Nagaland - Chairman 2. The Director General of Police, Nagaland - Member 3. The Addl. C.S. & Commissioner, Nagaland - Member 4. The Principal Secretary, -Member P & AR 5. The Secretary in charge of Home Department - Member Secretary" It is also a well settled principle of interpretation that inconvenience and hardship to a person will not be the decisive factors while interpreting the provisions. When a bare reading of the provision makes it very clear and unequivocally gives a meaning it has to be interpreted in the same sense. This has been reiterated by the Hon'ble Supreme Court in the case of State of Uttar Pradesh & Ors. Vs. Subhash Chandra Jaiswal & Ors., reported in (2017) 5 SCC 163 . The relevant paragraph is reproduced herein below:- "18. In this regard, another aspect needs to be noted. We have already stated that some of the directions are in the nature of legislation or policy. Vs. Subhash Chandra Jaiswal & Ors., reported in (2017) 5 SCC 163 . The relevant paragraph is reproduced herein below:- "18. In this regard, another aspect needs to be noted. We have already stated that some of the directions are in the nature of legislation or policy. In Union of Indai v. Deoki Nandan Aggarwal a three-Judge Bench has observed that (SCC p. 332, para 14) the power to legislate has not been conferred on the courts and, therefore, the court cannot add words to a statute or read words into it which are not there". 11. Coming to Rule 11(a) of the Rules of 2006, it very clearly and unequivocally indicates that the constitution of the PEB is to clear all promotions to the members of the Nagaland Police Service. Rule 11(a) does not empower the PEB to make transfer and posting of the members of the Nagaland Police Service. In the absence of any power given to the PEB by Rule 11(a) for transfer and posting, the stand of the State respondents that the PEB has been constituted in terms of direction of the Hon'ble Supreme Court is not accepted by this Court. As Rule 11(a) provides only for clearing promotions to members of the Nagaland Police Service and not otherwise, the State respondents will have to constitute a PEB in terms of the directions passed by the Hon'ble Supreme Court in the case of Prakash Singh (supra) for transfer and posting till an appropriate legislation is made to that effect. Till such time, the direction passed by the Hon'ble Supreme Court is binding on the State respondents. This Court has also considered the submission of the learned Additional Senior Government Advocate that Rule 11 will have to be read with Rule 14 of the Rules of 2006. This Court is unable to accept the submission made inasmuch as Rules 11 pertains to constitution of the PEB with regard to clearing of promotions to members of the service whereas Rule 14 of the Rules of 2006 pertains to posting and deputation which has no connection with Rule 11. 12. The records furnished by the learned Additional Senior Government Advocate has also been perused by this Court. A perusal of the same at page 135 to page 138 contains a minutes of the PEB meeting to be held on 21.12.2017. 12. The records furnished by the learned Additional Senior Government Advocate has also been perused by this Court. A perusal of the same at page 135 to page 138 contains a minutes of the PEB meeting to be held on 21.12.2017. However, a consideration of the same would indicate that it is only a draft minutes of the PEB. The final minutes of the PEB meeting held on 21.12.2017 is at page 139 upto page 141 of the records. Therein, no proposal has been made for transfer of the petitioner in W.P.(C) No. 2(K) of 2018. In that view of the matter, even though, this Court has held that the PEB held on 21.12.2017 is not in consonance with the direction of the Hon'ble Supreme Court in Prakash Singh (supra), the respondents could also not have transferred the petitioner in W.P.(C) No. 2(K) of 2018 inasmuch as, there is no recommendation to that effect. 13. In the facts and circumstances of what has been discussed herein above, this Court is of the considered opinion that the PEB held on 21.12.2017 stands vitiated inasmuch as, the constitution of the PEB is not in consonance with the direction of the Hon'ble Supreme Court passed in Prakash Singh (supra). In that view of the matter, the Notification dated 22.12.2017 is set aside and quashed insofar as it concerns the petitioners and the private respondents in W.P.(C) No. 2(K) of 2018 and W.P.(C) No. 3(K) of 2018. 14. Accordingly, both the writ petitions are allowed. However, with no orders as to costs. Return the records to Ms. V. Suokhrie, learned Additional Senior Government Advocate, Nagaland.