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2024 DIGILAW 97 (HP)

Brij Lal v. State of Himachal Pradesh

2024-01-12

RANJAN SHARMA

body2024
JUDGMENT : Ranjan Sharma, J. Notice. Mr. Rajan Kahol, learned Additional Advocate General appears and waives service of notice on behalf of the respondents along with Mr. Anup Rattan, Learned Advocate General. 2. With the consent of the parties, the instant writ petition, is taken up for disposal at this stage, in view of the orders, intended to be passed herein. 3. The petitioner, being a HHC, has come up before this Court, by way of the instant writ petition, seeking the following relief(s):- (i) “That the appropriate writ, order and directions may kindly be issued thereby ordering and directing the respondents authorities not to give effect to the impugned transfer order dated 06.01.2024. (ii) That appropriate writ, order and directions may kindly be issued quashing and setting aside the impugned transfer order dated 06.01.2024. (iii) That the appropriate writ, order and directions may kindly be issued thereby ordering and directing the respondents authorities to allow the petitioner to continue at the present place of posting”. 4. The case was taken up in the pre-lunch session and after hearing the learned State Counsel, the matter was adjourned for post lunch session, so as to enable him to ensure the production of records, leading to the issuance of the transfer orders dated 06.01.2024, (Annexure P-1) wrongly mentioned as dated as 6.1.2023. 5. In the post-lunch session, Mr. Anup Rattan, learned Advocate General along with State Counsel Mr. Rajan Kahol appeared. Mr. Abhishek Trivedi, ADGP (Law and Order), Himachal Pradesh, at the instance of Mr. Anup Rattan, Learned Advocate General was present alongwith records during the course of hearing. 6. Petitioner, Brij Lal was initially appointed as Constable in 1993 in 3 rd IRBn Battalion and he served at various places like Daroh (District Kangra), Bangarh (District Una), then in District Mandi, then in State-CID at Shimla and presently the petitioner is posted in District Mandi, since 2014 till day. 7. Now, the petitioner, being a Non-Gazetted Police Officer-II, has been transferred as HHC {Honorary Head Constable} from District Mandi to 3rd IRBn Pandoh on 06.12.2024 (Annexure P-1). 7. Now, the petitioner, being a Non-Gazetted Police Officer-II, has been transferred as HHC {Honorary Head Constable} from District Mandi to 3rd IRBn Pandoh on 06.12.2024 (Annexure P-1). The petitioner has assailed the transfer orders dated 6.1.2024 (Annexure P-1), on the grounds ; firstly, that the transfer has been ordered without any public interest and administrative exigencies; secondly, the transfer is not based on any genuine, cogent and convincing material revealing public interest but the same has been issued just to give effect to the dictates of the competent authority; thirdly, the non-adherence to independent and impartial application of mind has resulted in an unequal and discriminatory application of norms and principles governing transfers when, the incumbents with longer stay were retained in District Mandi whereas the petitioner was singled out and sent to 3rd IRBn Pandoh; fourthly, the autonomy granted to the State Police Establishment Committee, under Section 56 of the Act cannot be tinkered with, by any such direction so received from higher ups or any person not connected with affairs of the State; and fifthly, the non-adherence to the Statute, including i.e. Section 56 of the Himachal Pradesh Police Act, 2007 and the standing orders, norms, directives governing transfers from District Police to IRBn or otherwise by ignoring the relevant considerations was alleged to be violative of Article 14 and 16 of the Constitution of India. 8. It is manifest that as per the provision of Section 56 of the Himachal Pradesh Police Act, 2007 the “State Police Establishment Committee” is a statutory authority, conferred with autonomy to examine/consider and approve the cases for transfer of Police Personnel, including NGPO-II, including the petitioner. The records so produced today, reveal that about 193 police personnel were recommended for transfer. The petitioner was transferred on the basis of a list of intended transferees so received from the competent authority (Hon’ble Chief Minister). Even if, the aforesaid competent authority, had granted approval or had given a direction for transfer of police personnel, then also, the “State Police Establishment Committee”, being an Autonomous-Statutory Authority, under Section 56 of the Act, was legally bound to undertake and resort to an independent and impartial application of mind as to whether any genuine, cogent, convincing material revealing public interest and exigencies of services existed or not and whether based on such material, the transfer was necessitated or not. Mr. Mr. Anup Rattan, Learned Advocate General, on the instructions, of Mr. Abhishek Trivedi, ADGP, does not dispute the fact that in the case of the petitioner the transfer has been ordered by acting on the directions received from the competent authority (Hon’ble Chief Minister) and without going into the cases of other police personnel in the said list, in the case of the petitioner there is neither any independent nor impartial application of mind to other material aspects, including the availability or non-availability of genuine, cogent and convincing material revealing public interest and administrative exigencies. Accordingly, the fair stand so taken, by the Learned Advocate General, based on records, so produced before this Court is really appreciable, which, at the very threshold, is sufficient to interdict and invalidate the impugned transfer order of the petitioner. 9. Without commenting further in the matter and without adverting to other contentions herein, at this stage, this Court, quashes the impugned order of transfer dated 6.1.2024, (Annexure P-1) wrongly dated 6.1.2023, transferring the petitioner from District Mandi to 3rd IRBn Pandoh. Consequent upon, quashing of the impugned transfer orders dated 6.1.2024 (Annexure P-1), liberty is granted to the State Authorities-Respondents, to re-examine/reconsider the matter, in the light of the Himachal Pradesh Police Act, 2007 and the fulfillment of the twin pre-requirements of public interest and administrative exigencies and to pass appropriate orders, in-accordance with law, if so desired. 10. Accordingly, writ petition is allowed and the impugned order dated 6.1.2024, (Annexure P-1), is quashed and set-aside ; qua the petitioner herein, subject to the liberty as aforesaid. In aforesaid terms, the writ petitions as well as the pending miscellaneous applications, if any, shall also stand disposed of, accordingly.