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2023 DIGILAW 916 (JHR)

Mohan Prasad Yadav v. State of Jharkhand

2023-07-21

SANJAY KUMAR DWIVEDI, SANJAYA KUMAR MISHRA

body2023
ORDER : Sanjay Kumar Dwivedi, J. 1. The present intra-court appeal has been preferred being dissatisfied by the judgment dated 23.12.2022 passed by the learned Single Judge in W.P.(S) No.5954 of 2022, whereby, he has been pleased to dismiss the writ petition. 2. The writ petition was filed praying therein to quash the order dated 23.11.2022 passed by the Additional Director General of Police, Jharkhand Armed Police, Ranchi (respondent no.4), whereby, the writ petitioners have been transferred to vacant posts of other battalions. The prayer was also made for quashing the order dated 26.11.2022 passed by the Commandant, Jharkhand Armed Police-4, Bokaro (respondent no.4), whereby, the petitioners have been directed to be relieved from their present places of posting and thereupon to report in the office of respondent no.5. 3. The writ petition was filed stating therein that all the petitioners were appointed on the post of 'Constable' in the year 2006, in pursuant to Advertisement No. 01/04 in Jharkhand Armed Police-4, Bokaro, and were allotted their respective Brass Nos. The petitioners are at present working at different places within the state of Jharkhand, as per orders of the department being issued from time to time, however JAP-4 is their paternal battalion, whereby their services have been duly adjusted on vacant posts. After joining the services, the petitioners are attached with JAP-4, Bokaro till date and working to the utmost satisfaction of the respondent authorities. A separate elite force namely Jharkhand Jaguar was formed on 19.02.2008 by the State of Jharkhand to counter the extremist's activities within the State. Subsequently, applications were invited for joining on deputation in the Jharkhand Jaguar from amongst the Constables and Havaldars working and posted in different district police force and battalions, including JAP. 50% Incentive apart from basic pay was provided to the personnel of Jharkhand Jaguar. The writ petitioners did not join Jharkhand Jaguar and remained in JAP-4 being their paternal battalion, and they are presently attached with JAP-4 only. The aforesaid 50% extra Incentive on basic pay was provided to the personnel of Jharkhand Jaguar till April, 2019, however, the incentive granted to the employees of Jharkhand Jaguar was withheld by the respondents after April 2019 and, therefore, the person who joined the Jharkhand Jaguar have left the same due to tough duty and also because of not getting any extra incentive. When the applications were called for joining in the Jharkhand Jaguar, many Constables and Havaldars belonging to the paternal battalion of the petitioners i.e. JAP-4, left the same and joined the Jharkhand Jaguar for getting more salary and, therefore, the post remain vacant. Thereafter, the respondents have come forward with fresh direct recruitment from time to time to fill up those vacant posts and, thereafter, many candidates have been selected. It was further stated in the writ petition that due to distress of hard duty being rendered in Jharkhand Jaguar coupled with the pain of not getting extra Incentive, the police personnel who earlier joined the Jharkhand Jaguar, are returning from the Jharkhand Jaguar and they are being posted in different battalions and district police forces, by the respondents. The fact remains that since already the respondents have filled their vacant posts (i.e. the posts held by Jharkhand Jaguar personnel before joining Jharkhand Jaguar) through direct recruitment and have already filled the entire vacancies, therefore the problem has arisen to adjust them in various battalions including JAP-4 (the paternal battalion of the petitioners herein). On earlier occasion also, the personnel who were returned to their base battalion, they were adjusted in other battalions wherever the seats were vacant. Thereafter, the Additional Director General of Police, Jharkhand Armed Police (JAP) has arbitrarily issued the transfer order of the petitioners to the vacant posts of other battalions vide order dated 23.11.2022, in violation of Rule 778 (x) of the Jharkhand Police Manual. The petitioners who have committed no fault and are serving in their paternal battalion since 2006, they are being arbitrary treated as additional in their own paternal battalion i.e. JAP-4, and are being transferred to the vacant posts of other battalions, which is in sheer violation of Rule 778 (x) of the Jharkhand Police Manual. Rule 778 of the Jharkhand Police Manual depicts the principles regarding posting of the police personnel, whereby under Sub Rule (x) of Rule 778, it has been clearly stated that there should be no inter-unit transfer except on promotion or for special reasons. Rule 778 of the Jharkhand Police Manual depicts the principles regarding posting of the police personnel, whereby under Sub Rule (x) of Rule 778, it has been clearly stated that there should be no inter-unit transfer except on promotion or for special reasons. As per Rule 778 (x) of the Jharkhand Police Manual, it is crystal clear that only under two circumstances, a police personnel may be subjected to inter-unit transfer; the first condition is promotion and another is special reasons, but in the instant case neither the petitioners have been promoted nor there are any special reasons for their transfer. Rather, only to accommodate the police personnel returning from Jharkhand Jaguar, the transfer order of the petitioners has been issued. Being astonished with the transfer order, coupled with the fact that most of them are presently posted in Ranchi district, therefore looking into the paucity of time and the hurry of the respondents in giving effect to the transfer order, some of the petitioners immediately made a representation to the Additional Director General of Police, JAP on 24.11.2022, with a copy thereof to the Commandant, JAP-4, praying therein that since their order of transfer is violative of the statutory provisions, therefore it may kindly be withdrawn. The petitioners after serving the aforesaid representation were having the hope that their orders of transfer would be certainly withdrawn, but to their utter dismay, instead of paying any heed to the aforesaid representation and without considering the same, the Commandant, JAP-4 in a most arbitrary some of the petitioners (only those 21 persons who signed the representation) have been directed to be relieved from their present places of posting and thereupon to report in the office of the Commandant, JAP-4, vide order dated 26.11.2022. The Deputy Inspector General of Police (Personnel), Jharkhand, Ranchi issued Memo No. 267/P dated 10.03.2021, addressed to the Additional Director General of Police, Jharkhand Armed Police (JAP), wherein it has been recommended that the transfers of Constables (JAP/IRB) must be done in accordance with provisions of Jharkhand Police Manual, and not otherwise. Even assuming that the personnel of Jharkhand Jaguar are not additional, then at least the personnel who have been appointed to fill their vacant seats in the JAP-4, may be treated as additional employees. Even assuming that the personnel of Jharkhand Jaguar are not additional, then at least the personnel who have been appointed to fill their vacant seats in the JAP-4, may be treated as additional employees. But, under no stretch of imagination the petitioners, who are rendering their services since their joining in the year 2006 in JAP-4 can be treated as additional employees and transferred to other battalions. 4. The respondent-State also contested the writ petition by way of filing the counter affidavit. 5. Considering the rival submission of the petitioners as well as the respondent-State, the learned Single Judge has been pleased to dismiss the said writ petition vide judgment dated 23.12.2022. Aggrieved with that judgment, the petitioners have preferred the present Letters Patent Appeal. 6. Mr. Diwakar Upadhyay, learned counsel for the writ petitioners/ appellants submits that the writ petitioners never joined Jharkhand Jaguar, rather they remained all along with their paternal battalion i.e. JAP-4, Bokaro and served the department with utmost sincerity and satisfaction of the respondents. He further submits that the writ petitioners have been made escape goat and they have been arbitrarily treated as additional employees. He also submits that Rule 778(x) of the Jharkhand Police Manual rescue the writ petitioners. He submits that neither the petitioners have been promoted nor there is any special reason for their transfer. He further submits that the learned Single Judge has not appreciated the fact that juniors to the petitioners, who have been appointed on the vacant post much after the appointment of the petitioners, have been given preference above the petitioners and they are not treated as additional employees in JAP-4 like the petitioners. He also submits that inter-unit transfer of the police personnel can be done only under two circumstances i.e. either upon promotion or due to any special reason, and not otherwise. He submits that the transfer order has been passed hurriedly. He submits that the order of transfer has been passed malafidely. He also submits that the learned Single Judge has not appreciated the fact that the respondents have adopted the pick and choose method in passing the order inasmuch as the respondents have nowhere explained as to how they have selected 66 persons as additional employees in JAP-4 regarding whom the order of transfer has been passed. He submits that even transparency was not maintained in passing the order. He submits that even transparency was not maintained in passing the order. He further submits that the petitioners are deprived of extra allowances to the tune of approximately Rs.5,000/- to Rs.6,000/-per month. On these grounds, he submits that the impugned order may kindly be set aside. 7. On the other hand, Mr. Amit Kumar, learned S.C. (Mines)-II appearing for the State submits that the learned Single Judge has rightly dismissed the writ petition. He submits that the order is elaborate and the reasons for dismissing the writ petition has also been made therein. He submits that in the terms and conditions of appointment in Jharkhand Jaguar (STF), it was clearly mentioned that the period of posting in Jharkhand Jaguar is three years under rotation basis. He further submits that the transfer of the personnel is purely administrative matter as per the decision of the State. He submits that what is the nature of malafide, that has not been made out. He also submits that irrespective of their remaining in JAP-4 or JAP-6, their service conditions are not at all effected. The plea of the writ petitioners/appellants are not based on correct facts. 8. In view of the submission of the learned counsel for the parties, we have gone through the contents of the writ petition, counter affidavit as well as the impugned order passed by the learned Single Judge. We find that Rule 778(x) of the Jharkhand Police Manual has been considered by the learned Single Judge in paragraphs 10 and 11 of the impugned order and the learned Single Judge has rightly interpreted Rule 778(x) of the Jharkhand Police Manual and found that it is not a case that pick and choose method has been adopted and persons of a particular class or caste have been transferred. It was a chain transfer in which just to maintain the sanctioned strength, 66 persons have been transferred and the reasons for such transfer was mentioned in the paragraphs 21 and 22 of the counter-affidavit filed by the respondents in the writ petition. It was a chain transfer in which just to maintain the sanctioned strength, 66 persons have been transferred and the reasons for such transfer was mentioned in the paragraphs 21 and 22 of the counter-affidavit filed by the respondents in the writ petition. Looking into Rule 778(x) of the Jharkhand Police Manual read with paragraphs 21 and 22 of the counter-affidavit, the learned Single Judge has been pleased to hold that the petitioners are the members of disciplined force and it is settled principle of law that no one can be allowed to stay at a particular place, as per his choice for years together. The learned Single Judge has found that in view of the said Rule of the Jharkhand Police Manual, the members of armed forces are appointed in a particular Unit, there will no inter-unit transfer, but simultaneously, option is there to transfer them to different units on administrative exigencies and considering the more police personnel than sanction strength, the learned Single Judge has found that extreme exigency was there and the petitioners have been repatriated from the Jharkhand Jaguar and working strength of their parent unit was already full and they have been rightly adjusted in different Units of the Armed Police and held that there is no error in the order of transfer. 9. With regard to right of employee to continue in a particular place, the learned Single Judge has relied upon the judgment passed in Major General J.K. Bansal v. Union of India & Ors.; [ (2005) 7 SCC 227 ], Novartis India Ltd. v. State of W.B. & Ors.; [ (2009) 3 SCC 124 ] and Rajendra Singh & Ors. v. State of U.P. & Ors.; [ (2009) 15 SCC 178 ] and, thereafter, has held that the transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in absence of any specific indication to the contrary. 10. In such transfer order, limited role of judicial review was also taken into consideration by the learned Single Judge by way of relying upon the judgment passed by the Hon'ble Supreme Court in Registrar General, High Court of Judicature of Madras v. R. Perachi & Ors.; [ (2011) 12 SCC 137 ]. 11. 10. In such transfer order, limited role of judicial review was also taken into consideration by the learned Single Judge by way of relying upon the judgment passed by the Hon'ble Supreme Court in Registrar General, High Court of Judicature of Madras v. R. Perachi & Ors.; [ (2011) 12 SCC 137 ]. 11. The matters of transfers are best left to the discretion of the competent authority, and should not be tinkered with, in the absence of a demonstrable violation of statutory rules, or an instance of mala fides on the part of the competent authority, was further considered by the learned Single Judge by placing reliance upon the judgment passed in Major Amod Kumar v. Union of India & Anr.; [ (2018) 18 SCC 478 ]. 12. Thus, we find that the learned Single Judge has dealt with all the contentions of the writ petitioners, minutely. We also find that on the point of malafide action, the writ petitioners/appellants are not able to prove the malafide action. None of the officer of the State have been made party by name, which is must for proving the malafide. Since prima facie case to the effect that the order of transfer was malafide or in breach of law, was not made out, the learned Single Judge has rightly not exercised power under Article 226 of the Constitution of India. No employee is having choice posting i.e. a cardinal principle of service law. 13. In view of the above facts, reasons and analysis, we find that the learned Single Judge has rightly dealt with all the points and there is no apparent error on the record and, as such, no interference in the impugned order is warranted. 14. Accordingly, this Letters Patent Appeal is dismissed. 15. Pending Interlocutory Application, if any, is disposed of.