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IN THE HIGH COURT OF BOMBAY
Devendra Kumar Upadhyaya, A.S.Doctor, JJ.
Dattatraya R. Karale - Appellant
Versus
Shekhar Balasaheb Genbhau - Respondent
Writ Petition No. 3717 of 2024
Decided On : 20-03-2024
TRANSFER - Maharashtra Police Act, 1951; Election Commission of India Circular - Sections 22N, 2(6A), 2(6B) - The court discussed the provisions of Section 22N of the Maharashtra Police Act, which outlines the normal tenure of police personnel and the conditions under which mid-term transfers can occur. It emphasized that transfers must be justified by public interest or administrative exigencies. The court also analyzed the Election Commission of India's Circular regarding the transfer of officers during election periods, particularly focusing on exemptions for officers nearing retirement. The court concluded that the transfer of the respondent was not in compliance with these provisions, leading to the decision to uphold the Tribunal's ruling.
Fact of the Case:
The petitioner challenged the Tribunal's order that set aside his transfer from Thane to Nashik and directed the posting of the respondent as Special Inspector General of Police, Nashik Range. The respondent had completed over two years in Nashik and was transferred to Pune, which was contested based on the provisions of the Maharashtra Police Act and the Election Commission's Circular.
Finding of the Court:
The court found that the transfer of the respondent from Nashik to Pune violated the Election Commission's Circular, which exempted officers due to retire within six months from being transferred. The Tribunal's ruling was upheld as it correctly interpreted the relevant legal provisions.
Issues: Whether the transfer of the respondent was in accordance with the provisions of the Maharashtra Police Act and the Election Commission's Circular, particularly regarding the exemptions for officers nearing retirement.
Ratio Decidendi: The court held that the transfer of the respondent was not justified under the provisions of Section 22N of the Maharashtra Police Act or the Election Commission's Circular, as the respondent was due to retire shortly and was exempt from transfer requirements.
Final Decision: The writ petition was dismissed, affirming the Tribunal's decision to set aside the transfer order and retain the respondent in Nashik, with the stipulation that he should not be assigned election-related duties if applicable.
JUDGMENT/ORDER
DEVENDRA KUMAR UPADHYAYA, J.
Rule. Rule is made returnable forthwith. Learned counsel for the parties have consented to take up this writ petition for final hearing as the pleadings of the respective parties before the Central Administrative Tribunal, Mumbai Bench, Mumbai (hereafter referred to as 'the Tribunal') are available on record of this writ petition as well.
2. Heard Mr. Tulzapurkar, learned senior counsel representing the petitioner, Dr. Birendra Saraf, learned Advocate General representing the State-respondents and Mr. Kumbhakoni, learned senior counsel representing respondent no. 1 and perused the record available before us on this writ petition.
3. This petition filed under Article 226 of the Constitution of India seeks to assail the judgment and order dtd. 4/3/2024 passed by the Tribunal in Original Application No. 111 of 2024, whereby the order dtd. 31/1/2024 transferring the petitioner from Thane to Nashik has been set aside and further, a direction has been issued to post the respondent no. 1 as Special Inspector General of Police, Nashik Range, Nashik.
4. Certain facts, which are necessary for proper adjudication of the controversy involved in this petition, which lie in narrow compass, need to be noticed.
5. By means of an order dtd. 31/1/2024, the petitioner was transferred from the post of Joint Commissioner of Police, Thane City to the post of Special Inspector General of Police, Nashik Range, Nashik and so far as respondent no. 1 is concerned, the said order recites that he has been transferred by the said order from the post of Special Inspector General of Police, Nashik Range, Nashik, however, the order of his posting will be issued separately. Thereafter, by means of the order dtd. 2/2/2024, the respondent no. 1, who was awaiting his posting pursuant to the order dtd. 31/1/2024, was posted on the post of Special Inspector General of Police, Motor Transport, Pune.
6. The respondent no. 1 challenged the order dtd. 2/2/2024, whereby he was posted at Pune by filing Original Application No. 111 of 2024 and subsequently, by way of amendment, also challenged the transfer order dtd. 31/1/2024. The Tribunal, after considering the respective cases put forth by the parties, has allowed the Original Application and quashed the order of transfer of the petitioner, dtd. 31/1/2024 and also quashed the said order so far as it related to the respondent no. 1, by means of the impugned judgment and order dtd. 4/3/2024, which is under challenge in this petition. By the impugned order, the Tribunal has also directed that the respondent no. 1 be posted as Special Inspector General of Police, Nashik Range, Nashik.
7. It is also to be noticed that respondent no. 1 was posted at Nashik on the post of Deputy Inspector General of Police on 23/8/2021 and was promoted on 20/4/2022 as Special Inspector General of Police at the same place, i.e., Nashik itself on the upgradation of the post of the post of Deputy Inspector General. Accordingly, the respondent no. 1, before being transferred from Nashik to Pune on 2/2/2024, already had completed more than 2 years of his tenure at Nashik, firstly as Deputy Inspector General of Police and thereafter, as Special Inspector General of Police.
8. The submission of the learned counsel representing the cause of the competing parties in this case revolves around Sec. 22N of the Maharashtra Police Act, 1951 (hereafter referred to as 'the Police Act') and a Circular issued by the Election Commission of India (hereafter referred to as 'ECI') dtd. 21/12/2023. Sec. 22N, which is in respect of normal tenure of posting of a police personnel, is extracted hereinbelow: -
The court established that transfers of police personnel must comply with statutory provisions regarding tenure and must be justified by public interest or administrative exigencies, particularly in ....
Transfer orders of police personnel under ECI directives are valid beyond elections, emphasizing public interest and administrative exigencies.
The main legal point established in the judgment is the interpretation of the relevant provisions of the Maharashtra Police Act, 1951, specifically regarding the nature of transfers of police constab....
Transfer orders in public service are valid unless proven mala fide or in violation of statutory provisions.
The court emphasized that transfer orders should not be interfered with unless they are shown to be vitiated by malafide or made in violation of any statutory provision or issued by an incompetent pe....
The court affirmed that transfer of a government employee is a necessary incident of service, with limited grounds for judicial review, primarily focusing on administrative necessity without proof of....
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