Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Guj) 505

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIJAY MANOHAR SAHAI, R.P. DHOLARIA, JJ.
STATE OF GUJARAT & 2 - Appellants
Versus
HADAMATSINH NAHARSINH SISODIYA - Respondent
LETTERS PATENT APPEAL NO. 1400 of 2013 In SPECIAL CIVIL APPLICATION NO. 12765 of 2010 With LETTERS PATENT APPEAL NO. 1401 of 2013 In SPECIAL CIVIL APPLICATION NO. 3553 of 2011
Decided on: 01/07/2014

Advocates:
Advocate Appeared:
MS MONALI BHATT, AGP for the Appellant(s) No. 1-3 MR P.P. MAJMUDAR, ADVOCATE, MR MITUL K SHELAT, ADVOCATE along with MR KAIVAN K PATEL, ADVOCATE for the respective Respondents

The transfer of constables under statutory provisions must meet the statutory requirement and clearly provide the duration of their services at the place of transfer.

Headnote:
Transfer - Police Constables - Bombay Police Act, 1951, Section 28 - Gujarat Police Manual, Rule 152 and 153
Fact of the Case:

The constables were transferred to different places by separate transfer orders. They challenged the transfer orders, which were allowed by the Single Judge. The Division Bench considered the provisions of Section 28 of the Bombay Police Act, 1951 and Rules 152 and 153 of the Gujarat Police Manual.
Finding of the Court:

The Court found that the transfer orders did not satisfy the statutory provisions and quashed and set them aside.
Issues: The issues involved the legality of the transfer orders of constables under Section 28 of the Bombay Police Act and Rules 152 and 153 of the Gujarat Police Manual.
Ratio Decidendi: The Court held that the transfer orders, made under statutory provisions, must clearly provide the duration of the constables' services at the place of transfer. The transfer should meet the statutory requirement, and if not, cannot be permitted to be operated further.
Final Decision: The petitions were allowed, and the impugned transfer orders were quashed and set aside. The appeals were dismissed.

JUDGMENT

VIJAY MANOHAR SAHAI, J.

1. As common questions of fact and law are involved in these appeals, they are heard together and disposed of by way of this common judgment.

2. We have heard Ms. Monali Bhatt, learned Assistant Government Pleader, appearing for the appellants and Mr. P.P. Majmudar, learned advocate, appearing for the respondent in LPA No.1400 of 2013, learned advocate Mr. Mitul K. Shelat along with Mr. Kaivan Patel, learned advocate, appearing for the respondent in LPA No. 1401 of 2013.

3. These Letters Patent Appeals have been preferred by the appellants-original respondents challenging the judgment and order dated 31.07.2013 passed by the learned Single Judge of this Court in Special Civil Application No.12765 of 2010 with Special Civil Application No. 3553 of 2011.

4. The opponents-original petitioners are constables. They were transferred from Ahmedabad to different places by separate transfer orders. The opponents-original petitioners in compliance of the transfer orders joined the places where they were transferred.

5. Being aggrieved by the transfer orders, the original petitioners preferred the Writ Petitions being Special Civil Application No 12765 of 2010 with Special Civil Application No.3553 of 2011, which were allowed by the learned Single Judge by order dated 31.07.2013.

6. The findings recorded by the learned Single Judge are extracted below:

“22. The provisions of Section 28 of the Act read with Rule 152 of the Manual came to be considered by Hon’ble Division Bench of this Court in the case of Haroon Yusufbhai Kadiwala Vs. Director General of Police and Anr. Reported in 2011(3) GLH (UJ) 8. Full text of the judgment in the said case is placed on record of Special Civil Application No. 12765 of 2010 with further affidavit filed by the petitioners at page 141. Hon’ble Division Bench in the said case examined legality or otherwise of the order of transfer of police constable made in exercise of the powers under the above-said provisions and has held and observed in para 5 to 10 as under:

“5. It would be expedient to quote Sec.28 of the Bombay Police Act, 1951, which reads as under:

"28. Police Officer to be deemed to be always on duty and to be liable to employment in any part of the State.-

(1) Every Police officer not on leave or under suspension shall for a purposes of this Act be deemed to be always on duty, and any Police Officer or any number or body of Police officers allocated for duty in one part of the State may, if the State Government or the Inspector-General so directs, at any time, be employed on Police duty in any other part of the State may, if the State Government or the Inspector-General so directs, at any time, be employed on Police duty in any other part of the State for so long as the services of the same may be there required."

6. We may also reproduce Rule 152 and 153 of the Gujarat Police Manual. Rule 152 reads as under:

"152. Inter District Transfers in emergencies. - (1) Under section 28(1) of the Bombay Police Act, 1951, the Inspector General of Police is authorised to make, whenever necessary, inter-district transfers of police establishment without reference to Government.

(2) In accordance with the provisions contained in section 28(2) of the Bombay Police Act, 1951, the Inspector General Police should, except in cases of extreme urgency give timely intimation to the District Magistrates concerned whenever he proposes to transfer or redistribute the Police disposition obtaining in Districts." Clause (1) and sub-clause (a) reads as under:

"153. Ordinary transfers of Police Officers, men and Ministerial staff. - Transfers may be effected as follows:-

"(1)(a) The Inspector General may transfer Assistant Commandants, Adjutants and Quarter Master (Deputy Superintendents of Police) from one Group to the other Assistant Public Prosecutors, Ministerial staff and members of the Police force of and below the rank of Police Inspectors, from one place to another in the State; all Inspectors, Ass

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