HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION NO. 8463 of 2015
With
SPECIAL CIVIL APPLICATION NO. 8469 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 8489 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================

Whether Reporters of Local Papers may be allowedYes

to see the judgment ?

To be referred to the Reporter or not ?

Whether their Lordships wish to see the fair copy ofNo

the judgment ?

Whether this case involves a substantial question ofNo

law as to the interpretation of the Constitution of
India or any order made thereunder ?

Yes

==========================================================
BHARATSINH HIMMATSINH CHAMPAVAT & 21....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
==========================================================
Appearance:
MR HB CHAMPAVAT, ADVOCATE for the Petitioner(s) No. 1 - 22
MR RJ GOSWAMI, ADVOCATE for the Petitioner(s) No. 1 - 22
GOVERNMENT PLEADER for the Respondent(s) No. 1 - 4
NOTICE SERVED for the Respondent(s) No. 1 - 4
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 4

==========================================================

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 06/08/2015
CAV JUDGMENT

Page 1 of 44
Page 1 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

1.

CAV JUDGMENT

Since the issues involved in all the

captioned writapplications are the same those

wereheardanalogouslyandarebeingdisposedof
bythiscommonjudgmentandorder.
2.

BythesewritapplicationsunderArticle226

of the Constitution of India, the petitioners

serving as Police Constables seek to challenge
the impugned orders dated 24th April, 2015
transferringthepetitionerstootherdistricts.
3.

All the petitioners are serving as Police

Constables.Beforetheimpugnedorderscametobe
passedtheyallwereservingindifferentPolice
Stations in the city of Ahmedabad. They are
aggrievedbytheorderoftransferpassedbythe
respondentsNos.2and3,dated24th April,2015
outsidethedistrictofAhmedabad.
4.

Itappearsonplainreadingoftheordersof

transferthatthesamewerepassedinthepublic
interest.
5.

Mr. Goswami, the learned advocate appearing

for the petitioners submitted that the impugned

ordersoftransferarecontrarytotheprovisions
oftheSection28(1)oftheBombayPoliceActand
rule 152 of the Gujarat Police Manual. He
submitted that an officer of the cadre of a
constable appointed in one district cannot be
Page 2 of 44
Page 2 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

transferred to any other district. The only

exceptiontothisruleisthecaseofemergency
wherein more force is needed at the place of
transfertomeetwithanyexigencies.Mr.Goswami
furthersubmittedthatthelawinthisregardis
well settled in the case of Haroon Yusufbhai
Kadiwala V. Director General of Police and
anotherreportedin2011(3)GLH(UJ)8.Relyingon
the said decision of this Court rendered by a
Division Bench (to which I was a party) he
submitted that the transfer of a HeadConstable
from one district to the other amounts to
deputation and can be made only on
administrativegroundsincasesofemergency.
6.

Mr. Goswami submitted that although the

ordersoftransferdonotspeakanythingfurther
then the public interest yet the reason for
passing such orders of transfer is that the
petitioners had attended the marriage reception
ofthesonofanotedbootlegger,namelyKishor
Sinh @ Langdo Lalsinh Rathod. Therefore,
according to Mr.Goswami, thetransfer could be
termed aspunitive innature which isotherwise
notpermissibleinlaw.
7.

Ontheotherhand,thisapplicationhasbeen

vehementlyopposedbyMr.RutvijOza,thelearned
AGP appearing for the State. He submitted that
Page 3 of 44
Page 3 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

therespondentsNos.1and2committednoerror
inpassingtheimpugnedordersoftransfer.

8.

Mr.Ozahasplacedrelianceontheaffidavit

inreply filed by Shri R.J. Savani, D.I.G. at

presentservingastheAdditionalCommissionerof
Police (Administration) Ahmedabad city. In the
affidavitinreply the following averments have
beenmade:
8.Isayandsubmitthatitisnecessarytodraw
this Honble Courts attentions on the facts which
wereconsideredbeforepassingoftransferorderfor
the petitioners and therefore brief facts are as
under:
A. The petitioner had attended the marriage
receptionon15.02.2015ofthesonofKishorshingh@
KishorLangdawhoisawellknownbootlegger.There
are in all 23 probibition offences registered
against Kishorsinh and other 11 offence are also
registered and 18 times PASA orders were passed
against him. As per the record of the deponent,
Kishorsinhisalistedoffenderaspertheoffice
record as the prohibition offences were registered
under the jurisdiction of the Commissionarate of
Ahmedabad.AnnexedherewithandmarkedasAnnexure
R1 (colly) are copies of list of offences
registered against Kishorshinh along with the list
ofPASAorders.
B.Inpursuancetothepresenceofthepetitioners
atreceptionofsonofKishorsinhon15.02.2015,a
news article appeared on 18.02.2015 that Police
Personalhadattendedthemarriagereceptionofthe
sonofaproclaimedandlistedbootlegger.Onthe
samedayCommissionerofPolice,Ahmedabadhastaken
a serious view and immediately ordered an inquiry
into the matter. The inquiry was handed over to
DeputyCommissionerofPolice(zone1),Ahmedabad.
C. Thereafter, Deputy Commissioner of Police,
Ahmedabad has submitted preliminary report to the

Page 4 of 44
Page 4 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

Commissioner of Police, Ahmedabad. On receipt of

suchreportcertainfurtherdetailswerecalledfor
andthesamewereprovidedandfinallyon20.04.2015
thefinalreportcametobefiled.Afterreceiving
the inquiry reports, the Commissioner of Police,
Ahmedabad forwarded confidential report to the
AdditionalChiefSecretary,HomeDepartment,Gujarat
StatethroughDirectorGeneralandInspectorGeneral
ofPolice,GujaratStateon22.04.2015.Inthatthe
DirectorGeneralofPolice,GujaratStatehaspassed
an order of transfers from Ahmedabad and
Gandhinagar. The same order was also sent to
CommissionerofPolice,Ahmedabadforcommunicating
to the petitioner, who are serving under the
Commissioner of Police, Ahmedabad. Annexed hereto
andmarkedasAnnexureRIIisthecopyoforder
passed by office of the Director General and
InspectorGeneralofPolice,GujaratState.
9.IfurthersayandsubmitthatunderSection23of
the Bombay Police Act, 1951, Commissioner or
Inspector General of Gujarat State has powers to
issuetransferorders,whenanysubordinatetohim
isgenerallyfoundtobeneglectinghisdutiesand
that the person is not doing his duty within the
norms of discipline of the department. Relevant
provisionofsection23(h)isreproducedhereinfor
readyreferenceofthisHonbleCourt.
Generally,forthepurposeofrenderingthepolice
efficientandpreventingabuseorneglectoftheir
duties.
10.IsayandsubmitthattheDirectorGeneraland
Inspector General of Gujarat State has powers to
transfer in ordinary circumstances as well as has
powerstotransferfromoneplacetoanotherinthe
State. I further produce the relevant abstract of
provision viz. Section 154(3)(a) and 154(3)(D) of
GujaratPoliceManual,1975,Volume1asunderfor
readyreference.
Section154(3)(a)
NoGovernmentservantofthegazettedrankandof
the nongazetted rank belonging to the ClassIII
executive post/service, should be transferred from
onestationtoanotheruntilhehascompletedfive
yearsserviceatoneandthesamestationorunless
his transfer becomes necessary earlier in the
followingcircumstances:
(i)WhenaGovernmentservantistobepromotedto
higherpost;
(ii)WhenaGovernmentservantrevertsfromahigher

Page 5 of 44
Page 5 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

to a lower post and is required to be given a

posting;and
(iii)Whenexigenciesofpublicservicesorequire,
and/orasdisciplinarymeasure.
Section154(3)(d)
No Government servant belonging to classIII
executive as well as ministerial post/service or
ClassIVshouldbetransferredfromonedistrictto
another unless such a transfer is considered
necessarybythecompetentauthority.
Thus, in view of Section 154(3)(a)(iii), the
competentauthorityhasthepowerstotransfer,when
thereisanexigencyofpublicservicerequirement
and/oratransfercanalsobemadeasadisciplinary
measure.Further,itisstatedthatitisclearfrom
the above mentioned Section 154(3)(d) that, an
officer can be transferred from one district to
another if it is considered necessary by the
competent authority. And therefore, a combined
readingofSection154(3)(a)(iii)andSection154(3)
(d)givessufficientpowerstotheauthoritytomake
inter district transfers, when the necessary
circumstancesarisesasstatedabove.
11. Irespectfullysayandsubmitthattheorders
of transfers are passed in consonance with the
Gujarat Civil Service (Conduct) Rules, 1971
specifically under Rule3(I) (1,2 and 3). The
aforesaid Rules have been violated by the
petitioners herein and therefore rightly Director
General and Inspector General of Police, Gujarat
Statehasorderedthetransferofpetitioners.Rule
3 of the Gujarat Civil Services (conduct) Rules,
1971 is produced herewith for ready reference of
thisHonbleCourt.Annexedherewithandmarkedas
AnnexureRIII is the copy of abstract from the
GujaratCivilService(Conduct)Rules,1971ofRule
3.
13. I state and submit that Home Department of
GujaratGovernmenthaspassedGovernmentResolution
BDL/1093/171/SH on 29.07.1993 regarding powers of
the Director General of Police, Gujarat State to
transfertheofficersoutsidethedistrict.Annexed
herewithandmarkedasAnnexureRIVisthecopyof
GovernmentResolutiondated29.07.1993.
14. I respectfully state that the petitioner are
relyingondecisionofthisHonbleCourtpassedin
Haroon Yusufbhai Kadiwala V/s. Director General of
PoliceandAnotherreportedin2011(3)GLH(U.J.)8

Page 6 of 44
Page 6 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

isnotapplicabletothefactsofthepresentcase
andalsotheotherdecisionspassedbythisHonble
CourtwhichwasconfirmedbyDivisionBenchofthis
HonbleCourt,factsoftheaforesaiddecisionsare
alltogetheronadifferentfootingandthereforeI
requestthisHonbleCourttodistinguishthefacts
of the present case from the facts of the cases
cited by the petitioner. I further submit that by
order of the transfer of the petitioners does not
disturb the seniority of the petitioners and the
cadre of thepetitionersare alsonotgoing tobe
changed and therefore the decision relied by the
petitionersarenotapplicableinthepresentcase.
15.Inthefactsandcircumstancesstatedabove,the
presentpetitionisrequiredtobedismissed.

9.

Thus,theplainreadingoftheaffidavitin

replywouldsuggestthatthetransfershadtobe
affected as it was found that the petitioners
beingpoliceconstableshadattendedthewedding
reception of the son of a noted bootlegger
against whom there arenumber of criminal cases
registered.Thestanceoftherespondentsisthat
with a view to maintain the discipline and
efficiencyinthepoliceforcethetransfershad
tobeaffected.
10. Having heard the learned counsel appearing
for the parties and having gone through the
materialsonrecord,theonlyquestionthatfalls
formyconsiderationiswhethertheactionofthe
respondentsintransferringthepetitionersfrom
Ahmedabadtootherdistrictscouldbefaultedon
anygrounds.

Page 7 of 44
Page 7 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

11. Before adverting to the rival submissions

madeonboththesides,itisnecessaryformeto
lookintofewprovisionsoflaw.
12. Sections23and28oftheBombayPoliceAct,
1951readsasunder:
23. Framing of rules for administration of the
Police. Subject to the orders of the State
Government the Commissioner in the case of the
PoliceForceallocatedto[****]areasforwhichhe
hasbeenappointedandtheInspectorGeneralinthe
caseofthePoliceForceallocatedtootherareas
maymakerulesorordersnotinconsistentwiththis
Actorwithanyotherenactmentforthetimebeing
inforce
(a)regulatingtheinspectionofthePoliceForce
byhissubordinates;
(b) determining the description and quantity of
arms, accountrements, clothing and other
necessariestobefurnishedtothePolice;
(c)prescribingtheplacesofresidenceofmembers
ofthePoliceForce;
(d) for institution, management and regulation of
any Police fund for any purpose connected with
policeadministration;
(e) regulating, subject to the provisions of
section 17, the distribution, movements and
locationofthePolice;
(f) assigning duties to Police Officers of all
ranksandgrades,andprescribing
(i)themannerinwhich,and
(ii) the conditions subject to which, they shall
exercise and perform their respective powers and
duties;
(g)regulatingthecollectionandcommunicationby
thePoliceofintelligenceandinformation;
(h) generally, for the purpose of rendering the
Policeefficientandpreventingabuseorneglectof
theirduties.
28. Police Officer to be deemed to be always on
dutyandtobeliabletoemploymentinanypartof

Page 8 of 44
Page 8 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

theState.
(1) Every Police Officer not on leave or under
suspension shall for all purposes of this Act be
deemedtobealwaysonduty,andanyPoliceOfficer
oranynumberorbodyofPoliceofficersallocated
fordutyinonepartoftheStatemay,iftheState
GovernmentortheInspectorGeneralsodirects,at
anytime,beemployedonPolicedutyinanyother
partoftheStatemay,iftheStateGovernmentor
theInspectorGeneralsodirects,atanytime,be
employed on Police duty in any other part of the
Stateforsolongastheservicesofthesamemay
bethererequired.
(2)Intimationofproposedtransferstobegivenby
the Inspector General to the Commissioner and
District Magistrate.Timely intimation shall,
except in case of extreme urgency, be given to
[*****] the District Magistrate by the Inspector
Generalofanyproposedtransferunderthissection
andexcept,wheresecrecyisnecessarythereasons
forthetransfershallbeexplained;whereuponthe
officersaforesaidandtheirsubordinateshallgive
allreasonablefurtherancetosuchtransfer.

13. Rule152oftheGujaratPoliceManual,1975
VolumeIreadsasunder:
152.InterDistrictTransfersinemergencies.
(1) Under Section 28(1) of the Bombay Police Act,
1951,theInspectorGeneralofPoliceisauthorized
tomake,whenevernecessary,interdistricttransfers
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
InspectorGeneralofPoliceshould,exceptincases
of extreme urgency give timely initmation to the
District Magistrates concerned whenever he proposes
to transfer or redistribute the Police disposition
obtaininginDistricts.

14. Article 154 of the Gujarat Police Manual,

1975VolumeIreadsasunder:
154.Instructionsregardingtransfers.
(1) Frequent transfers cause great personal and
domestic inconvenience to Officers and result in
considerable cost to Government on account of

Page 9 of 44
Page 9 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

traveling allowance, etc. They also dislocate

administrative work and render it difficult to fix
responsibility in regard to inordinate delays and
other lapses in the matter of the discharge of
officialduties.
(2) The authorities, while submitting proposals to
Government/InspectorGeneral/DeputyInspectorGeneral,
for postings, transfers, etc., of officers, must
scrutinizeallsuchproposalswithaviewtoavoiding
frequent transfers, officers being kept at the same
station,asfaraspossible,foratleastfiveyears.
(3) The following principles, in general, should be
observedwhileeffectingtransfers:
(a)NoGovernmentservantofthegazettedrankandof
the nongazetted rank belonging to the Class III
executivepost/service,shouldbetransferredfromone
stationtoanotheruntilhehascompletedfiveyears
service at one and the same station or unless his
transfer becomes necessary earlier in the following
circumstances:
(i)WhenaGovernmentservantistobepromotedtoa
higherpost;
(ii)WhenaGovernmentservantrevertsfromahigher
toalowerpostandisrequiredtobegivenaposting;
and
(iii) When exigencies of public service so require,
and/orasdisciplinarymeasure.
(b)Evenafterthecompletionoffiveyearsservice
at one and the same station, there would be no
objection to his continuing there, if the competent
authoritysoconsidersonadministrativegrounds.
(c) No Government servant belonging to Class III
ministerial post/service or Class IV should be
transferred from one station to another unless his
transfer is considered necessary by the competent
authority.
(d) No Government servant belonging to Class III
executiveaswellasministerialpost/serviceorClass
IVshouldbetransferredfromonedistricttoanother
unlesssuchatransferisconsiderednecessarybythe
competentauthority.
(e)Personsshouldnotbepostedrepeatedlytooneand
the same district or place i.e. persons who have
workedinaparticularareashouldnotagainbeposted

Page 10 of 44
Page 10 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

therewithoutareasonablelapseoftime.
(f)Ifanypersonproceedsonleavebeforeservingfor
nearly five years in the same charge, he should
normallyberepostedinthesamechargeonreturnfrom
leave.
(g)Normally large scale transfers should be avoided
inthemiddleoftheschooltermandshouldbemadeas
faraspossibleinOctoberorApriloftheyearexcept
under unavoidable circumstances and in exceptional
cases.
(h) If after the issue of the transfer orders, a
personproceedsonleave,heshouldberepostedtothe
same post on expiry of his leave and his vacancy
shouldbefilledupbylocalarrangements.
(i) Transfers should be effected in such a way that
they will entail minimum expenditure on travelling
allowance and in keeping with administrative
requirements.
(j)Ifaperson,whoistransferredbytheInspector
General,appliesforleave,itshouldnotbegranted
to him without prior permission of the Inspector
General of Police. In exceptional cases such as
seriousillness,etc.suchpersonsmaybeallowedto
remain on leave but a report should be submitted to
theInspectorGeneralimmediatelystatingthereasons
forgrantingtheleave.
(k)Transfers to and from the Criminal Investigation
Department of Officers belows the rank of Sub
Inspectors will be arranged between the Deputy
Inspector General, Criminal Investigation Department
and the Commissioner of Police/Superintendent of
Policeconcerned.
(l) Transfers of Head Constables and Constables
between one District or Railway and another, may be
effectedbymutualagreementbetweentheCommissioner
ofPolice/SuperintendentsofPoliceconcerned.
(m) In the case of such Head Constables attached to
the Police Training School as are borne on the
strength of Junagadh District, any changes required
will be arranged between the Principal, Police
Training School and the Superintendent of Police,
Junagadh.
(n) Clerks should be transferred from the office of
the Superintendent of Police to those of Sub
Divisional Police Officers and the Headquarters in

Page 11 of 44
Page 11 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

rotation. If this be not entirely feasible, the

Daftars of Clerks should be changed every three
years.Cashiersshouldhoweverbechanged,everyyear.
(4) No transfers of Officers should be made or
suggested on account of unsatisfactory work. If an
officer is not upto the mark, it is for the
Superintendent of Police to set him right and bring
him up to the required standard. The correct course
would be for the Superintendent of Police to submit
proposals through the Deputy Inspector General
concerned regarding the reversion of the officer in
question, if he is officiating and to hold
departmental proceedings for inefficiency if his is
permanent.
(5) Applications from the relatives of Policemen or
outsiders, requesting Government on their behalf for
transfers should discouraged. Superintendents of
Police should, however, while ordering the transfers
of Constables, give sympathetic consideration to
genuinedomesticdifficulties.
(6) Whenever an application is received from a
Government servant requesting for his transfer, the
said application should be entered into rigistere to
bemaintainedinallofficesinFormNo.8inAppendix
I. This registershouldbe put upfromtimetotime
beforetheCompetentAuthoritywhoshouldconsiderthe
applications entered in such register whenever
transfersarebeingconsidered.

15. Rule 3(1) of the Gujarat Civil Services

(conduct)Rules,1971readsasunder:
3.General:
(1)EveryGovernmentservantshallatalltimes
(i)maintainabsoluteintegrity.
(ii)maintaindevotiontoduty,and
(iii)donothingwhichisunbecomingofaGovernment
servant.
*Explanation: AGovernmentservant,whohabitually
failstoperformataskassignedtohimwithinthe
time set for the purpose and with the quality of
performance expected of him, shall be deemed to be
lacking in devotion to duty within the meaning of
clause(ii).

Page 12 of 44
Page 12 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

* [Inserted vide Govt. Notification GAD No. GS88

72/CDR/1087/U.O. 12/Inq. Cell, dated 2112

1988.]
16. Section28oftheBombayPoliceActandRule
153oftheGujaratPoliceManual,1975fellfor
the consideration of a Division Bench of this
Court in the case of Haroon Yusufbhai (supra).
TheCourtexplainedthesameinparagraphsNos.5
to10asunder:
5. It would be expedient to quote Sec.28 of the Bombay
PoliceAct,1951,whichreadsasunder:
"28.PoliceOfficertobedeemedtobealwaysonduty
and to be liable to employment in any part of the
State.(1)EveryPoliceofficernotonleaveorunder
suspensionshallforallpurposesofthisActbedeemed
to be always on duty, and any Police Officer or any
numberorbodyofPoliceofficersallocatedfordutyin
onepartoftheStatemay,iftheStateGovernmentor
the InspectorGeneral so directs, at any time, be
employedonPolicedutyinanyotherpartoftheState
may, if the State Government or the InspectorGeneral
sodirects,atanytime,beemployedonPolicedutyin
anyotherpartoftheStateforsolongastheservices
ofthesamemaybethererequired."
6.WemayalsoreproduceRule152and153oftheGujarat
PoliceManual.Rule152readsasunder:
"152. Inter District Transfers in emergencies. (1)
Undersection28(1)oftheBombayPoliceAct,1951,the
Inspector General of Police is authorised to make,
whenever necessary, interdistrict transfers of police
establishmentwithoutreferencetoGovernment.
(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
extremeurgencygivetimelyintimationtotheDistrict
Magistrates concerned whenever he proposes to transfer
or redistribute the Police disposition obtaining in
Districts." Clause (1) and subclause (a) reads as
under:
"153.OrdinarytransfersofPoliceOfficers,menand
Ministerialstaff.Transfersmaybeeffectedas
follows:

Page 13 of 44
Page 13 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

"(1)(a) The Inspector General may transfer Assistant

Commandants, Adjutants and Quarter Master (Deputy
SuperintendentsofPolice)fromoneGrouptotheother
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;alInspectors,Assistant Public Prosecutorsand
SubInspectors to and from Criminal Investigation
DepartmentandthePoliceTrainingSchool."
7. On perusal of various provisions of the Gujarat
Police Manual and the Bombay Police Act, and more
particularly,Cl.(1)ofSec.28oftheBombayPolice
ActwhichstatesthateveryPoliceofficernotonleave
orundersuspensionshallforallpurposesofthisAct
bedeemedtobealwaysonduty,andanyPoliceOfficer
oranynumberorbodyofPoliceofficersallocatedfor
duty in one part of the State, may, if the State
GovernmentortheInspectorGeneralsodirects,atany
time,beemployedonPolicedutyinanyotherpartof
theStatemay,iftheStateGovernmentortheInspector
Generalsodirects,atanytime,beemployedonPolice
dutyinanyotherpartoftheStateforsolongasthe
servicesofthesamemaybethererequired.
8.AplainreadingoftheSectionitselfsuggeststhat
the appellant petitioner could have been transferred,
buttheonlyaspectwhichneedstobeconsideredisas
toforhowlongtheappellantpetitionerwouldbekept
atthatparticularplaceontransfer.Wefeelthatthe
State Government should in cases like the present one
shouldbearinmindandalsoclarifyastohowlongthe
services of the appellantpetitioner would still be
requiredattheplacewherehehasbeentransferredso
thathemaynothavetostayattheplaceofdeputation
for an indefinite period of time. Secondly, we would
also like to clarify that the appellant petitioner's
lien in the original parent cadre would also be
protected. So far as seniority of the appellant
petitioner is concerned, it has been well accepted in
thePoliceManualthatthesamewillnotbedisturbed.
9.OurattentionhasalsobeendrawntoRule153,more
particularly153(1)(a)wheretheemphasishasbeenlaid
on the words "and members of the Police force of and
belowtherankofPoliceInspectors,fromoneplaceto
anotherintheState".Takingintoconsiderationallthe
relevantprovisionsoflaw,weareoftheopinionthat
thetransferoftheappellantpetitionerasanUnarmed
Head Constable originally posted at Khatodara Police
Station,SurattoSabarkanthaDistrictandplacedatthe
disposal of Superintendent of Police, Sabarkantha at
Himmatnagar, amounts to deputation, because deputation

Page 14 of 44
Page 14 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

isalsoatransferoutsidethecadre,andinnomanner
contrarytolawortheprovisionswhichhavebeenrelied
upon.
10.
We,therefore,deemitfitandpropertoobserve
that under Rule152, which provides for interdistrict
transfersinemergenciesandtheotherRulerelatingto
transfer on the administrative grounds, in case of
emergencies,itisdesirablethattheauthoritiesshould
clarify as to how long the services of a Head
Constable/Constable are required to meet with the
exigenciesatthetransferredplace,andassoonasthe
emergentadministrativeexigenciesceasetoexistatthe
transferred place, they must be sent back to their
parent cadre. With these observations, the Letters
PatentAppealisdisposedofaccordinglywithnoorder
astocosts.

17. The decision ofthe Division Bench referred

to above was later on considered by a learned
Single Judge of this Court in the case of
HadmatsinhNaharsinhSisodiyav.StateofGujarat
reportedin2014(1)GLH285,whereinthelearned
SingleJudgeobservedasunder:
23. Honble Division Bench has clearly observed
that itisdesirablethattheauthorities should
state as to how long services of constable are
requiredtomeetwiththeexigencyattheplaceof
transfer and as soon as emergent administrative
exigency is over at the place of transfer, they
mustbesentbacktotheirparentcadre.
24.Therefore,asobservedbytheHonbleDivision
Bench in context of provisions of Section 28 of
the Act read with Rule 152 of the Manual, the
competent authority when decided to exercise
powersundertheaboveprovisions,hadtoclearly
provideastohowlongservicesofthepetitioners
were required at the place of transfer even if
such transfer was made in public interest. The
transferofthepetitionersarenotordinary.They
are made under Section 28(1) of the Act.
Therefore, such transfers could never be on any
other ground except for what is provided in
Section28(1)oftheAct.
25. In the present case, the transfer of the

Page 15 of 44
Page 15 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

petitionerswasnottomeetwithanyexigencyor
inpublicinterestprevailedattransferredplace
butthesamewasonlyonaccountofhoochtragedy
inconnectionwithwhichthepetitionershavebeen
departmentallypunished.Suchgroundsfortransfer
arenotrecognized,envisagedorintendedbythe
legislatureintheprovisionsofSection28ofthe
Act read with Rule 152 of the Manual. When the
transfer of the petitioners are made under
statutory provision, even though the public
interest demanded or warranted taking of any
actionagainstthepetitioners,thesamewouldnot
weighandpermittheconcernedauthoritytodefy
the statutory provision. Even apart from this,
transfer of the petitioners could not have been
eitherforunlimitedperiodorforperiodoffive
yearsatastretch.Thisveryfactofprovidingno
timelimitinorderofoneofthepetitionersand
fiveyearsinthecaseofanotherpetitionerwould
lendsupporttothecaseofthepetitionersthat
their transfer was not for any requirement or
reasonsasprovidedinSection28oftheAct.

26.Itisrequiredtobenotedthatinthecaseof
petitionerinSpecialCivilApplicationNo.12765
of2010,punishmentofreductioninpayscalewas
imposed whereas in the case of petitioner in
Special Civil Application No.3553 of 2011,
punishment of stoppage of increment came to be
imposed. Thus, departmental inquiry initiated
against the petitioner was concluded and no
further inquiry was pending against the
petitioner.Therespondentsinsteadofstatingas
to how long services of the petitioners were
requiredattheplaceoftransferfiledaffidavit
inreplystatingthatthetransferswereforfive
years. Under these circumstances, it clearly
appearsthatthecontinuationofthepetitionerat
theplaceoftransferiswithoutauthorityoflaw.
27.LearnedAssistantGovernmentPleaderMr.Raval
hasreliedonthedecisionstopointoutthatthe
transferofanemployeeisanincidentofservice
and could be made in public interest and for
administrative reasons. However, in none of the
cases, the Courts were faced with the question
paused for consideration in these petitions.
Similarly, the decision relied on by learned
advocate for the petitioners since on different
facts situation will have no application to the
factsofthecase.Inthepresentcase,thisCourt
has examined the orders of transfer of the
petitioners in context of the provisions of
Section28oftheActreadwithRule152ofthe

Page 16 of 44
Page 16 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

Manual in exercise of which the respondent

authorities have passed impugned orders of
transferofthepetitioners.Itmaybethatthere
were compelling necessity in public interest to
passtransferordersagainstthepetitionerswith
other police officers. In ordinary transfer in
publicinterestorforadministrativereasons,the
Court may have limited judicial review. However,
thescopeofjudicialreviewiswidenedwhenthe
transfer of police constable is made out of
districtinexerciseofpowersunderSection28of
the Act read with Rule 152 of the Manual, to
examine whether such transfer is meeting the
statutory requirement. The Court finds that the
transferorderssincenotsatisfyingthestatutory
provisions,cannotbepermittedtobeoperatedany
further. Impugned orders of transfer are,
therefore,requiredtobequashedandsetaside.
28. For the reasons stated above, petitions are
allowed. Impugned orders dated 26.10.2010 and
24.9.2010 are quashed and set aside. It is
directed that the the impugned orders shall not
operate against the petitioners henceforth. Rule
ismadeabsoluteaccordingly.

18. I may now look into some case law on the

subjectoftransfer.
19. The Supreme Court in the case of Union of
India and others V. Janardhan Dabanath and
anotherreportedin2004(4)SCC245,observedin
paragraphNo.12:
Thatbringsustotheotherquestionastowhether
theuseoftheexpression"undesirable"warrantedan
enquiry before the transfer. Strong reliance was
placed by learned counsel for the respondentson a
decisionofthisCourtinJagdishMitterv.Unionof
India(AIR1964SC449,para21,p.456)tocontend
that whenever there is a use of the word
"undesirable"itcastsastigmaanditcannotbedone
withoutholdingaregularenquiry.Thesubmissionis
clearlywithoutsubstance.Thesaidcaserelatesto
use of the expression "undesirable" in an order
affecting the continuance in service by way of
discharge.Thedecisionhasthereforenoapplication
tothefactsofthepresentcase.Themanner,nature

Page 17 of 44
Page 17 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

and extent of exercise to be undertaken by

Courts/Tribunalinacasetoadjudgewhetheritcasts
a stigma or constitutes one by way of punishment
would also very much depend upon the consequences
flowingfromtheorderandastowhetheritadversely
affected any service conditionsstatus, service
prospects financially and same yardstick, norms or
standards cannot be applied to all category of
cases.Transfersunlesstheyinvolveanysuchadverse
impactorvisitsthepersonsconcernedwithanypenal
consequences, are not required to be subjected to
sametypeofscrutiny,approachandassessmentasin
the case of dismissal, discharge, reversion or
terminationandutmostlatitudeshouldbeleftwith
the department concerned to enforce discipline,
decency and decorum in public service which are
indisputablyessentialtomaintainqualityofpublic
service and meet untoward administrative exigencies
toensuresmoothfunctioningoftheadministration.

20. InSomeshTiwariV.UnionofIndia,reported
in2009(2)SCC592,theSupremeCourtobserved
inparagraphNo.16asunder:
16.Indisputably an order of transfer is an
administrative order. There cannot be any doubt
whatsoever that transfer, which is ordinarily an
incidentofserviceshouldnotbeinterferedwith,
saveincaseswhereinteraliamalafideonthepart
of the authority is proved. Mala fide is of two
kindsonemaliceinfactandthesecondmalicein
law. The order in question would attract the
principleofmaliceinlawasitwasnotbasedon
anyfactorgermaneforpassinganorderoftransfer
and based on an irrelevant ground i.e. on the
allegations made against the appellant in the
anonymouscomplaint.Itisonethingtosaythatthe
employerisentitledtopassanorderoftransferin
administrativeexigenciesbutitisanotherthingto
saythattheorderoftransferispassedbywayof
orinlieuofpunishment.Whenanorderoftransfer
ispassedinlieuofpunishment,thesameisliable
tobesetasidebeingwhollyillegal.

21. ADivisionBenchoftheAllahabadHighCourt
speaking through B.S. Chauhan, J. (as his
Lordshipthenwas)inthecaseofKrishnaChandra
Dubey Son of Ramraj Dubey V. Union of India,
Page 18 of 44
Page 18 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

through Secretary Minstry of Agriculture,

reported in 2005 Law Suit (All) 1423, after an
exhaustive review of various decisions of the
SupremeCourtobservedasunder:
7. The issue of transfer and posting has been
considered time and again by the Apex Court and
entirelawhasbeensettledbycatenaofdecisions.
It is entirely upon the competent authority to
decide when, where and at what point of time a
publicservantistobetransferredfromhispresent
posting. Transfer is not only an incident but an
essentialcondition of service. It doesnotaffect
the conditions of service in any manner. The
employeedoesnothaveanyvestedrighttobeposted
ataparticularplace.(videB.VaradhaRaov.State
of Karnatka and Ors., ; Shipli Bose V. State of
Bihar, ; Union of India v. N.P. Thomas,; Union of
India v. S.L.Abbas, ; Rajender Roy v. Union of
India,;RamadharPandayv.StateofU.P.AndOrs.,
1993Supp.(3)SCC35;N.K.Singhv.UnionofIndia
andOrs.;ChiefGeneralMeneralManager(Tel.)N.E.
TelecomCirclev.RajendraCh.Bhattacharjee,;State
ofU.P.v.Dr.R.N.Prasad,1995(Supp)2SCC151;
Union of India and Ors. V. Ganesh Dass Singh, ;
Abani Kante Ray v. State of Orissa, 1995 (Supp) 4
SCC 169; Laxmi Narain Mehar v. Union of India, ;
State of U.P. V. Ashok Kumar Saxena, ; National
Hydroelectric Power Corporation Ltd. v. Shri
Bhagwan, ; Pulic Services Tribunal Bar Association
v.StateofU.P.AndOrs.;StateofU.P.V.Siya
Ram,;andUnionofIndiav.JanardhanDebanath,.
8. An employee holding a transferable post cannot
claimanyvestedrighttoworkataparticularplace
as the transfer order does not affect any of his
legalrightsandtheCourtcannotinterferewitha
transfer/postingwhichismadeinpublicinterestor
on administrative exigency. In Gujarat Electricity
Board v. Atmaram Sungomal Poshani, the Honble
SupremeCourthasobservedasunder:
Transfer of a Government servant appointed to a
particular cadre of transferable posts from one
placetotheanotherisanincidentofservice.No
Governmentservantoremployeeofpublicundertaking
haslegalrightforbeingpostedatanyparticular
place.Transferfromoneplacetootherisgenerally
a condition of service and the employee has no
choice in the matter. Transfer from one place to

Page 19 of 44
Page 19 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

otherisnecessaryinpublicinterestandefficiency
inthepublicadministration.
9. In Union of India v. H.N.Kirtania, the Honble
ApexCourtobservedasunder:
Transferofapublicservantmadeonadministrative
grounds or in public interest should not be
interferedwithunlesstherearestrongandpressing
groundsrenderingthetransferorderillegalonthe
groundofviolationofstatutoryrulesoronground
ofmalafide.
10.InUnionofIndiaV.S.L.Abbas(supra),theApex
CourthasobservedthattheGovernmentinstructions
on transfer are mere guidelines without any
statutory force and the Court or Tribunal cannot
interferewiththeorderoftransferunlessthesaid
order is alleged to have been passed by malice or
where it is made in violation of the statutory
provisions.
11.SimilarviewhasbeenreiteratedbytheSupreme
Court, in Bank of India v. Jagjit Singh Mehta,
observing that the terms incorporated in the
transferpolicyforpostingofboththespouses,if
in service, at the same place, require to be
consideredbytheauthoritiesalongwithexigencies
ofadministrationandwithoutanydetrimenttothe
administrativeneedandclaimofotheremployees.
12. InStateBankofIndiav.AnjanSanyal,,the
ApexCourtheldasunder:

"4.Anorderoftransferofanemployeeisapartof
theserviceconditionsandsuchorderoftransferis
not required to be interfered with lightly by a
court of law in exercise of its discretionary
jurisdictionunlessthecourtfindsthateitherthe
order is mala fide or that the service rules
prohibitsuchtransferorthattheauthorities,who
issuedtheorder,hadnotthecompetencetopassthe
order.
(Emphasissupplied).
13.InRhonePoulenc(India)Ltd.v.StateofU.P.,,
theHon'bleSupremeCourtheldasunder.

"themerefactthataftertheorderoftransferhad
been issued and when Respondent 3 had failed to
reportforduty,hewasalsoaskedbytheCorporate
Manager,whowascompetenttoorderhistransfer,to

Page 20 of 44
Page 20 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

join the duties at Kanpur will not validate ' the

order of transfer issued by an authority not
competenttodoso."
14.Arelievingordercouldbepassedwhencertain
functionalresponsibilitiesaretobecarriedoutby
thetransferredemployee.Forexample,headingover
of the charge, classified documents, registers,
commercialdocuments,cashetc.,asthecasemaybe
(VideRajBahadurSharmav.UnionofIndia,).
15.Thus,itisclearthatthetransferpolicydoes
not create any legal right in favour of the
employee. It is settled law that a writ petition
under Article 226 of the Constitution is
maintainable for enforcing the statutory or legal
right or when there is a complaint by an employee
thatthereisabreachofastatutorydutyonthe
part of the employer. Therefore, there must be a
judiciallyenforceablerightfortheenforcementof
whichthewritjurisdictioncanberesortedto.The
Court can enforce the performance of a statutory
dutybypublicbodiesthroughitswritjurisdiction
at the behest of a person, provided such person
satisfiestheCourtthathe/shehasalegalright
toinsistonsuchperformance.Theexistenceofthe
saidrightisaconditionprecedentforinvokingthe
writ jurisdiction. (Vide Calcutta Gas Company
(Propriety)Ltd.v.StateofWestBengalandOrs.,;
Mani Subrat Jain and Ors. v. State of Haryana, ;
StateofKeralav.Smt.A.LakshmiKutty,;Stateof
Keralav.K.G.MadhavanPillai andOrs.,; Krishan
Lalv.StateofJ&K,; StateBankofPatialaand
Ors. v. S.K. Sharma, ; Rajendra Singh v. State of
M.P.,;RaniLaxmibaiKshetriyaGraminBankv.Chand
Behari Kapoor and Ors., ; Utkal University v. Dr.
NrusinghaCharanSarangiandOrs.,;StateofPunjab
v.RaghbirChandSharmaandAnr.,;andSadhanaLodh
v.NationalInsuranceCo.Ltd.andAnr.,.
16.InShilpiBose(supra),theApexCourthasheld
that order of transfer/posting "issued by the
competentauthoritydidnotviolateanyofherlegal
right." The employee holding a transferable post
cannotclaimanyvestedrightforhis/herpostingat
aparticularplace.
17. In Atmaram Sungomal Poshani (supra), the Apex
Court in crystal clear words observed that an
employeefailstojoinatthetransferredplace,he

Page 21 of 44
Page 21 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

exposeshimselftothedisciplinaryproceedingsfor
disobedienceoftheorder.Theemployeecannotavoid
the compliance of the transfer order. In Addisons
Paints&ChemicalsLtd.v.Workman,AIR2001SC436,
asimilarviewhasbeenreiteratedandithasbeen
held therein that refusal to report for duty upon
transferamountstomisconduct.Evenifthetransfer
order is bad for some reason, the employee must
ensurecomplianceoftheorderfirstandthenraise
the issue with the employer for redressal of his
grievance.
18. In State of U.P. Gobardhan Lal, , the Hon'ble
SupremeCourtheldasunder:
"It is too late in the day for any government
servanttocontendthatonceappointedorpostedin
a particularplaceorposition,heshouldcontinue
in such place or position as long as he desires.
Transfer of an employee is not only an incident
inherent in the terms of appointment but also
implicitasanessentialconditionofserviceinthe
absenceofanyspecificindicationtothecontra,in
thelaw governingor conditionsofservice.Unless
theorderiftransferisshowntobeanoutcomeofa
mala fide exercise of power or violative of any
statutoryprovision(anActorrule)orpassedbyan
authority not competent to do so, an order of
transfer cannot lightly be interfered with as a
matterofcourseorroutineforanyoreverytypeof
grievance sought to be made. Even administrative
guidelines for regulating transfers or containing
transferpoliciesatbestmayaffordanopportunity
to the officer or servant concerned to approach
theirhigherauthoritiesforredressbutcannothave
the consequence of depriving or denying the
competent authority to transfer a particular
officer/servanttoanyplaceinpublicinterestand
asisfoundnecessitatedbyexigenciesofserviceas
long as the official status is not affected
adverselyandthereisnoinfractionofanycareer
prospects such as seniority, scale of pay and
securedemoluments.ThisCourthasoftenreiterated
that the order of transfer made even in
transgression of administrative guidelines cannot
alsobeinterferedwith,astheydonotconferany
legally enforceable rights, unless, as noticed
supra,showntobevitiatedbymalafidesorismade
inviolationofanystatutoryprovision."
(Emphasisadded).

Page 22 of 44
Page 22 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

19. Similar view has been reiterated in Kendriya

VidyalayaSangathanv.DamodarPrasadPandey,.

20.Thetransferordermaycausegreathardshipas
an employee would be forced to have a second
establishment at afardistantplace,education of
hischildrenmaybeadverselyaffected,maynotbe
able to manage his affairs and to look after his
family.ThisaspectwasalsoconsideredbytheApex
CourtinStateofM.P.v.S.S.Kaurav,,whereinit
has been held that it is not permissible for the
Court to go into the relative hardship of the
employee.Itisfor the administrationtoconsider
the facts of a given case and mitigate the real
hardship in the interest of good and efficient
administration.
21. The issue of "malus animus" was considered in
TaraChandKhatriv.MunicipalCorporationofDelhi
and Ors., , wherein the Hon'ble Supreme Court has
held that the High Court would be justified in
refusing to carry on investigation into the
allegation of mala fides, if necessary particulars
ofthechargemakingoutaprimafaciecasearenot
given in the writ petition and burden of
establishing mala fide lies very heavily on the
personwhoallegesitandtheremustbesufficient
materialtoestablishmalusanimus.
22. Similarly, in E.P. Royappa v. State of Tamil
NaduandAnr.,,theHon'bleSupremeCourtheldthat
a transfer is mala fide when it is made not for
professed purpose, such as normal course or in
public or administrative interest or in the
exigenciesofservicebutforotherpurpose,thatis
to accommodate another person for undisclosed
reasons.TheCourtfurtherobservedasunder:
"Secondly, we must not also overlook that the
burdenofestablishingmalafidesisveryheavyon
the person who alleges it.... The Court would,
therefore, beslowtodraw dubiousinferencesfrom
incomplete facts placed before it by a party,
particularlywhentheimputationsaregraveandthey
aremadeagainsttheholderofanofficewhichhasa
high responsibility in the administration. Such is
the judicial perspective in evaluating charges of
unworthy conduct against ministers and other, not
because of any special status... but because
otherwise, functioning effectively would become

Page 23 of 44
Page 23 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

difficultinademocracy."
23. The Hon'ble Supreme Court in Sukhwinder Pal
Bipan Kumar and Ors. etc. etc. v. State of Punjab
andOrs.,;and ShivajiraoNilangekarPatilv.Dr.
Mahesh Madhav Gosavi and Ors., has made similar
observations.
24. In M. Sankaranarayanan, IAS v. State of
Karnataka and Ors., , the Hon'ble Supreme Court
observed that the Court may "draw a reasonable
inference of mala fide from the facts pleaded and
established. But such inference must be based on
factualmatrixandsuchfactualmatrixcannotremain
intherealmofinstitution,surmiseorconjecture."
25.InN.K.Singh(supra),theHon'bleSupremeCourt
hasheldthat"theinferenceofmalafidesshouldbe
drawn by reading in between the lines and taking
intoaccounttheattendantcircumstances."
26. In Arvind Dattatraya Dhande v. State of
Maharashtra, , the Hon'ble Supreme Court held as
under:
"Inviewoftheunimpeachableandeloquenttestimony
oftheperformanceoftheduties,itwillbeobvious
thatthetransferisnotinpublicinterestbutisa
case of victimisation of an honest officer at the
behestoftheaggrievedcomplainantscarryingonthe
business in liquor and toddy. Under these
circumstances, as stated earlier, the transfer of
theappellantisnothingbutmalafideexerciseof
the power to demoralise honest officer who would
efficientlydischargethedutiesofpublicoffice."
27. There has to be very strong and convincing
evidencetoestablishtheallegationsofmalafides
specifically alleged in the petition as the same
cannot merely be presumed. The presumption is in
favour of the bona fides of the order unless
contradicted by acceptable material. (Vide Kiran
Gupta and Ors. v. State of U.P. and Ors., ; and
NetaiBagandOrs.v.StateofW.B.andOrs.).
28.InStateofPunjabv.V.K.KhannaandOrs.,AIR
2001 SC 343, the Hon'ble Apex Court examined the
issueofbiasandmalafide,observingasunder:

Page 24 of 44
Page 24 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

"Whereasfairnessissynonymouswithreasonableness
bias stands included within the attributes and
broaderpurviewoftheword'malice'whichincommon
acceptationmeansandimplies'spite'or'illwill'.
Oneredeemingfeatureinthematterof attributing
bias or malice and is now well settled that mere
general statements will not be sufficient for the
purposes of indication of ill will. There must be
cogentevidenceavailableonrecordtocometothe
conclusionastowhetherinfact,therewasexisting
a bias or a mala fide move which results in the
miscarriage of justice.... In almost all legal
inquiries, 'intention as distinguished from motive
istheallimportantfactor'andincommonparlance
a maliciousactstandsequatedwithan intentional
actwithoutjustcauseorexcuse."
29.Similarviewhasbeenreiteratedin Samantand
Anr.v.BombayStockExchangeandOrs.,.
30.InDr.BalkrishnaPandeyv.State,1997Ad1038
aDivisionBenchofthisCourthasheldthatifan
employee is at a station for a long time and the
transfer is made administratively only on that
ground,itcannotbeacaseofmalafide.
31. The Hon'ble Supreme Court in Sarvesh Kumar
Awasthiv.U.P.JalNigam,heldasunder:

"Inourview,transferofofficersisrequiredtobe
effected on the basis of set norms or guidelines.
The power of transferring an officer cannot be
wielded arbitrarily, mala fide or an exercise
againstefficientandindependentofficeroratthe
instance of politicians whose work is not done by
the officer concerned. For better administration,
theofficersconcerned musthavefreedom fromfear
ofbeingharassedbyrepeatedtransfersortransfers
orderedattheinstanceofsomeonewhohasnothing
todowiththebusinessofadministration."
32.Transfereffectedasapunitivemeasureisalso
notpermissible. Whether atransfer ispunitive or
notisaquestionoffact,asheldbytheHon'ble
Supreme Court in Radhey Shyam Gupta v. U.P. State
Agro Industries Corporation Ltd., . It was
permissiblefortheCourttogobehindtheorderand
findoutifitwaspunitiveinnature.

Page 25 of 44
Page 25 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

33.InGobardhanLal(supra),theApexCourtheldas
under:
"Achallengetoanorderoftransfershouldnormally
be eschewed and should not be countenanced by the
courts or tribunals as though they are Appellate
authoritiesoversuchorders,whichcouldassessthe
niceties of the administrative needs and
requirementsofthesituationconcerned.Thisisfor
the reason that courts or tribunals cannot
substitute their own decisions in the matter of
transfer for that of competent authorities of the
Stateandevenallegationsofmalafideswhenmade
mustbesuchastoinspireconfidenceinthecourt
orarebasedonconcretematerialsandoughtnotto
be entertained on the mere making of it or on
consideration borne out of conjectures or surmises
and except for strong and convincing reasons, no
interferencecouldordinarilybemadewithanorder
oftransfer."
(Emphasisadded)."
34. Similar view has been reiterated by the Apex
CourtinStateofU.P.v.SiyaRam,.

35. InFirstLandAcquisitionCollectorandOrs.v.
Nirodhi Prakash Gangoli and Anr., ; and Jasvinder
Singh andOrs.v. StateofJ & K andOrs.,, the
ApexCourtheldthatburdenofprovingmalafidesis
very heavy on the person who alleges it. Mere
allegation is not enough. Party making such
allegationsisunderalegalobligationtoplacethe
specificmaterialsbeforetheCourttosubstantiate
thesaidallegations.
36. It is settled legal proposition that in case
allegationsofmalafidearemadeagainstanyperson
he is to be impleaded by name, otherwise the
allegations cannot be considered. (Vide State of
Bihar and Anr. v. P.P. Sharma, IAS. and Anr., AIR
1992 SC 1260; Dr. J.N. Banavalikar v. Municipal
CorporationofDelhiandAnr.,AIR1996SC326;All
India State Bank Officers Federation and Ors v.
UnionofIndiaandOrs.,;&I.K.Mishrav.Unionof
IndiaandOrs.,).
37. In Federation of Rly. Officers Association v.
UnionofIndiaandOrs.,,theApexCourthasheld

Page 26 of 44
Page 26 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

that the allegation of mala fide has to be

specifically made andthepersonagainst whomsuch
allegationsaremadehastobeimpleadedandinhis
absence such allegations cannot be taken into
consideration.

38.Inthiscase,neithertheauthoritywhichwanted
to accommodate Dr. Dinesh Kumar nor Shri Dinesh
Kumarhadbeen impleadedbeforetheTribunal.Even
before this Court, Dr. Dinesh Kumar has been
impleaded without leave of the Court. A period of
fiveyearshaspassedbutnonoticehasbeenissued
to him. In view of the above, the allegations of
malafidecannotbeconsidered.
39. InDirectorofSchoolEducationMadrasandOrs.
v. O. Karuppa Thevan and Anr., 1994 Supp (2) SCC
666,theissueoftransferinmidacademicsession
wasconsideredbytheHon'bleSupremeCourtandit
was held that "the fact that children of the
employeearestudyingshouldbegivendueweight,if
the exigencies of the service are not urgent."
Therefore,itisfortheemployertoexamineasto
whethertransferofanemployeecanbedeferredtill
theendofthecurrentacademicsession.TheCourt
hasnomeanstoassessaswhatistherealurgency
ofadministrativeexigency.
40. In Suresh Chand Sharma v. Chairman, UPSEB and
Ors.,2005AIRSCW1133,theHon'bleSupremeCourt
deprecatedthetransferunderpoliticalpressure.In
LokeshKumarv.State,1998(1)AWC27,thisCourt
has held that transfer in colourable exercise of
power without administrative exigency only on
political or extraneous consideration is liable to
be set aside. The transfer of an employee must be
madeconsideringtheadministrativeexigencyandnot
at the whim of any administrator/ politician,
includingtheMinisters,forthereasonthatinsuch
acasetransferordermaybepassedforextraneous
considerationasheldbythisCourtinDirectorv.
Nathi Lal, 1995 (2) UPLBEC 1121. In Pratap Narain
Srivastavav.StateofU.P.andOrs.,1995(1)Edu.
& Service Cases 509; Pradeep Kumar Agrawal v.
Director,(1994)1UPLBEC189;SheoKumarSharmaand
Ors.v.DistrictShikshaAdhikari,KanpurDehatand
Ors.,(1991)1UPLBEC690;SmtGayatriDeviv.State
of U.P., 1997 (2) UPLBEC 925, Pradip Kumar v.
Director Local Bodies, 1994 (1) UPLBEC 156; Pawan
Kumar Srivastava v. U.P. State Electricity Board,
1995 (1) UPLBEC 414; Shiv Kumar Sharma v. Basic

Page 27 of 44
Page 27 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

ShikshaAdhikari,1991(1)UPLBEC69;and Goverdhan
Lalv.StateofU.P.andOrs.,2000(2)UPLBEC1356,
ithascategoricallybeenheldthatatransferorder
passedunderinfluenceofanyotherpersoncannotbe
sustainedintheeyesoflaw.
41.Inviewoftheabove,thelegalpositioncanbe
summarizedthattransferisaconditionofservice.
It does not adversely affect the status or
emoluments or seniority of the employee. The
employeehasnovestedrighttogetapostingata
particularplace.Itiswithintheexclusivedomain
oftheemployertodetermineastoatwhatplaceand
forhowlongtheservicesofaparticularemployee
are required. There is a very little scope of
judicial review by the Court/Tribunal against the
transfer order and only if it is found to be in
contravention of the statutory Rules or for mala
fidethattheCourtcaninterfere.Thisisforthe
reason that a transfer order does not violate any
legalrightoftheemployee.Transferpolicyofthe
Statedoesnothaveanystatutoryforce.Itmerely
providesforguidelinesfortheunderstandingofthe
Departmental personnel. However, transfer order
should be passed in public interest or
administrativeexigency,andnotarbitrarilyorfor
extraneousconsiderationorforvictimizationofthe
employee not under political pressure. If a party
allegesmalafides,theburdentoproveitliesupon
him and it is to be proved by taking appropriate
pleadingsandthepersonagainstwhomtheallegation
of mala fides are alleged, should be impleaded by
name. The Court must examine the case from all
anglestofindoutwhethertheorderispunitiveor
not.

42. If a transfer order is passed during the

pendencyofthedisciplinaryproceedings,theCourt
mayexamineastowhethertheorderispunitivein
natureasitmayalsobenecessarytofacilitatethe
proceedingsandasapreventivemeasureoftampering
withtheevidenceorwitnesses.
43.Onceatransferorderispassed,theCompetent
Authority has a right to cancel it or modify it,
even after it stood executed. The transfer order
must be passed by the Competent authority and
employee should be relieved for joining at the
transferredplace,ifitisnecessarytorelievehim
formally.Thereisnoprohibitiontopostboththe
spousesatdifferentplaces,iftheyareinservice,

Page 28 of 44
Page 28 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

andcannotbeadjustedatthesameplaceorservices
of one of them is required in administrative
exigency at a different place. Same remains the
position of midacademic session. The employer may
considerandkeepthisaspectinmind,buthecannot
compromisewithadministrativerequirement.

22. Inviewoftheabove,thelegalpositionon
the issue of transfer can be summarized as
under:
1)Transferisaconditionofservice.
2) It does not adversely affect the status or
emolumentsorseniorityoftheemployee.
3) The employee has no vested right to get a
posting at a particular place or can choose to
serve at a particular place for a particular
tenure.
4) It is within the exclusive domain of the
employertodetermineastoatwhatplaceandfor
how long the services of a particular employee
arerequired.
5) Transfer order should be passed in public
interest or considering any administrative
exigency, and not arbitrarily or for any
extraneousconsiderationorforvictimizationof
the employee nor it should be passed under

Page 29 of 44
Page 29 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

politicalpressure.
6) There is a very little scope of judicial
reviewbytheCourt/Tribunalagainstthetransfer
order and the same is restricted only if the
transferorderisfoundtobeincontraventionof
thestatutoryRulesormalafidesisestablished.
7) In case of mala fides, the employee has to
makespecificavermentsandshouldprovethesame
byadducingimplacableevidence.
8) The person against whom allegation of mala
fideisallegedistobeimpleadedasapartyby
name.
9) Transfer policy or guidelines issued by the
State or employer does not have any statutory
force as it merely provides for guidelines for
theunderstandingoftheDepartmentalpersonnel.
10)TheCourtdoesnothaveapowertoannulthe
transfer order only on the ground that it will
causepersonalinconveniencetotheemployee,his
family members and children as consideration of
such issues fall within the exclusive domain of
theemployer.
11)Ifthetransferorderismadeinmidacademic
session of the children of the employee, the
Page 30 of 44
Page 30 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

Court/Tribunal cannot interfere. It is for the

employertoconsidersuchapersonalgrievance.
23. Since I am dealing with a very sensitive
issue as regards the integrity and discipline
concerning thepolice force Ideem itnecessary
tolookintothecodeofconductforthepolice
inIndia(1960).
36.ThePolicefigureasEntry2inStateListin
the Seventh Schedule of the Constitution, thereby
making State Government primarily responsible for
maintaining public order. Invariably, police, which
is part of the civil administration, is at the
forefront in maintaining law and order under the
framework of constitutional governance based on
principlesofSovereignSocialistSecularDemocratic
Republictosecurefundamentalrightofitscitizens.
Inconsonancewiththeideaofdemocraticpolicing,a
CodeofConductforthePoliceinIndiawasadopted
attheConferenceofInspectorsGeneralofPolicein
1960andcirculatedtoalltheStateGovernment.
CodeofConductforthePoliceinIndia(1960)
1. The police must bear faithful allegiance to the
Constitution of India and respect and uphold the
rightsofthecitizensasguaranteedbyit.
2.Thepoliceareessentiallyalawenforcingagency.
They should not question the propriety or necessity
ofanydulyenactedlaw.Theyshouldenforcethelaw
firmlyandimpartially,withoutfearorfavor,malice
orvindictiveness.
3.
The police should recognized and respect the
imitationsoftheirpowersandfunctions.Theyshould
notusurporevenseemtousurpthefunctionsofthe
judiciary and sit in judgment on cases. Nor should
theyavengeindividialsandpunishtheguilty.
4.
In securing the observance of law or in
maintaining order, the police should, as far as
practicable, use the methods of persuasion, advice
and warning. When the application of force becomes
inevitable, only the irreducible minimum of force

Page 31 of 44
Page 31 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

requiredinthecircumstancesshouldbeused.
5.Theprimedutyofthepoliceistopreventcrime
anddisorderandthepolicemustrecognizethatthe
testoftheirefficiencyistheabsneceofbothand
notthevisibleevidenceofpoliceactionindealing
withthem.
6.
Thepolicemustrecognizethattheyaremembers
ofthepublic,withtheonlydifferencethatinthe
interest of the society and on its behalf they are
employedtogivefulltimeattentiontoduties,which
arenormallyincumbentoneverycitizentoperform.
7.
The police should realize that the efficient
performanceoftheirdutieswouldbedependentonthe
extentofreadycooperationthattheyrecivefromthe
public.This,inturn,willdependontheirability
to secure public approval of their conduct and
actions and to earn and retain public respect and
confidence. The extent to which they succeeded in
obtaining public cooperation will diminish
proportionalitythenecessityoftheuseofphysical
force of compulsion in the discharge of their
functions.
8.
The police should always keep the welfare of
thepeopleinmindandbesympatheticandconsiderate
towards them. They should always be ready to offer
individual service and friendship and render
necessary assistance to all without regard to their
wealthand/orsocialstanding.
9.Thepoliceshouldalwaysplacedutybeforeself,
shouldmaintaincalminthefaceofdanger,scornor
ridiculeandshouldbereadytosacrificetheirlives
inprotectingthoseofothers.
10. The police should always be Courteous and well
mannered; they should be dependable and impartial;
they should possess dignity and courage; and should
cultivatecharacterandthetrustofthepeople.
11.Integrityofthehighestorderisthefundamental
basis of the prestige of the police. Recognizing
this, the police must keep their private lives
scrupulously clean, develop selfrestrain and be
truthful and honest in thought and deed, in both
personal and official life, so that the public may
regardthemasexemplarycitizens.
12. The police should recognize that their full
utility to the State is best ensured only by
maintaining a high standard of discipline, faithful

Page 32 of 44
Page 32 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

performance of duties in accordance with law and

implicit obedience to the lawful directions of
commanding ranks and absolute loyalty to the force
and by keeping themselves in the State of constant
trainingandpreparedness.

24. TheratiooftheDivisionBenchdecisionin
thecaseofHaroonYusuf(supra)makesatleast
one thing very clear that the inter district
transfer of a police constable should be in
accordance with Section 28(1) of the Act read
withrule152ofthePoliceManual.Itappearson
closereadingoftheDivisionBenchdecisionthat
theviewtakenisthatifapoliceconstableis
transferred outside the district the same will
havetobeconstruedasondeputation.Itisin
that context that the Division Bench observed
thatifapoliceConstableistobetreatedason
deputation then the period of deputation should
be prescribed and made clear and that the
deputationshouldnotbeforanindefiniteperiod
oftime.Whatissoughttobearguedbeforemeis
that in any circumstances a police constable
cannot be transferred to a different district
otherthentheonewherehewasappointedexcept
to meet with the exigency at the transferred
placeandassoonastheemergentadministrative
exigencies cease to exist at the transfered
place,suchpoliceconstablemustbesentbackto
hisparentcadre.Againwhatisarguedbeforeme
is thatthe petitioners were transferred noton

Page 33 of 44
Page 33 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

accountofanyemergentadministrativeexigencies
butbywayofpunishmentsincetheyhadattended
the wedding reception of the son of a noted
bootleggerofthecityofAhmedabadagainstwhom
thereare23offencesregisteredsofarunderthe
ProhibitionAct.
25. The question which I am posing for my
considerationiswhetherthetermadministrative
exigenciesshouldbeconstruedsonarrowlythat
in any event it is not permissible in law to
transfer any police constable to any other
districtotherthenonewherehewasappointed.
25. Article 154(3)(iii) of the Manual provides
thatwhileeffectingtransferstheexigenciesof
public service and/or the disciplinary measures
can be taken into consideration. Article 154(3)
(D)alsoprovidesthatapoliceconstablecanbe
transferred from onedistrict toanother ifthe
competentauthorityconsidersitnecessary.Iam
oftheviewthattheexistenceofexigenciesof
theserviceattheplaceoftransferalthoughis
aprerequisitefortheexerciseofthepoweryet
should not be construed so narrowly so as to
defeattheveryobjectoftransferfromoneplace
totheother.Theformationofsuchopinionisa
matterwhich,inviewoftheimportantnatureof
the function should primarily be left to the
subjective satisfaction of the authority
Page 34 of 44
Page 34 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

concerned. The responsibility for good

administration and maintenance of law and order
isthatofthegovernment.Themaintenanceofan
efficient,honestandexperiencedpoliceservice
is a must for the due discharge of that
responsibility. Therefore, the authority
concernedaloneisbestsuitedtojudgeastothe
existence of exigencies of such a service,
requiring inter district transfer. The term
exigency being understood in its widest and
pragmatic sense as a rule, the court would not
judge the propriety or sufficiency of such
opinion by objective standards, save where the
subjectiveprocessofformingit,isvitiatedby
malafides, dishonesty, extraneous purpose, or
transgressionofthelimitscircumscribedbythe
legislation.
26. Article 154(3)(iii) of the Manual provides
thatwhileeffectingtransferstheexigenciesof
public service and/or the disciplinary measures
can be taken into consideration. Article 154(3)
(D)alsoprovidesthatapoliceconstablecanbe
transferred from onedistrict toanother ifthe
competentauthorityconsidersitnecessary.Iam
oftheviewthattheexistenceofexigenciesof
theserviceattheplaceoftransferalthoughis
aprerequisitefortheexerciseofthepoweryet
should not be construed so narrowly so as to
Page 35 of 44
Page 35 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

defeattheveryobjectoftransferfromoneplace
totheother.Theformationofsuchopinionisa
matterwhich,inviewoftheimportantnatureof
the function should primarily be left to the
subjective satisfaction of the authority
concerned. The responsibility for good
administration and maintenance of law and order
isthatofthegovernment.Themaintenanceofan
efficient,honestandexperiencedpoliceservice
is a must for the due discharge of that
responsibility. Therefore, the authority
concernedaloneisbestsuitedtojudgeastothe
existence of exigencies of such a service,
requiring inter district transfer. The term
exigency being understood in its widest and
pragmatic sense as a rule, the court would not
judge the propriety or sufficiency of such
opinion by objective standards, save where the
subjectiveprocessofformingit,isvitiatedby
malafides, dishonesty, extraneous purpose, or
transgressionofthelimitscircumscribedbythe
legislation.
27. InthecaseofUnionofIndiaandothersvs.
Janardhan Debanath and others reported in 2004
(4)SCC245,theSupremeCourtheldasfollows:
The manner, nature and extent of exercise to be
undertakenbyCourts/Tribunalsinacasetoadjudge
whethertheuseofthewordundesirablecastsa

Page 36 of 44
Page 36 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

stigma or constitutes a punishment would depend

upontheconsequencesflowingfromtheorderandas
to whether it adversely affected any service
conditionsstatus,serviceprospectsfinancially
and same yardstick, norms or standards cannot be
appliedtoallcategoryofcases.Transfersunless
theyinvolveanysuchadverseimpactorvisitthe
personsconcernedwithanypenalconsequences,are
not required to be subjected to same type of
scrutiny,approachandassessmentasinthecaseof
dismissal,discharge,reversionorterminationand
utmostlatitudeshouldbeleftwiththedepartment
concerned to enforce discipline, decency and
decorum in public service which are indisputably
essentialtomaintainqualityofpublicserviceand
meet untoward administrative exigencies to ensure
smoothfunctioningoftheadministration.
Theallegationsmadeagainsttherespondentsareof
serious nature, and the conduct attributed is
certainly unbecoming. Whether there was any
misbehaviourisaquestionwhichcanbegoneinto
in a departmentalproceeding. Forthepurposes of
effecting a transfer, the question of holding an
enquirytofindoutwhethertherewasmisbehaviour
orconductunbecomingofanemployeeisunnecessary
andwhatisneededistheprimafaciesatisfaction
of the authority concerned on the contemporary
reports about the occurrence complained of an if
the requirement, as submitted by learned counsel
for the respondents, of holding an elaborate
enquiryistobeinsistedupontheverypurposeof
transferring an employee in public interest or
exigenciesofadministrationtoenforcedecorumand
ensure probity would get frustrated. The question
whether respondents could be transferred to a
differentdivisionisamatterfortheemployerto
consider depending upon the administrative
necessities and the extent of solution for the
problemsfacedbytheadministration.Itisnotfor
theSupremeCourttodirectonewayortheother.

28. Imayalsoquotewithprofitthedecisionof
the Supreme Court in the case of State of U.P.
Andothersv.GobardhanLalreportedinAIR2004
SC2165.Imayquotetheobservationsmadebythe
SupremeCourtinparagraphNo.8:
ItistoolateinthedayforanyGovernmentservant

Page 37 of 44
Page 37 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

to contend that once appointed or posted in a

particularplaceorposition,heshouldcontinuein
such place or position as long as he desires.
Transfer of an employee is not only an incident
inherent in the terms of appointment but also
implicitasanessentialconditionofserviceinthe
absenceofanyspecificindicationtothecontrain
the law governing or conditions of service. Unless
theorderoftransferisshwontobeanoutcomeofa
mala fide exercise of power or violative of any
statutoryprovision(anActorRule)orpassedbyan
authority not competent to do so, an order of
transfer cannot lightly be interfered with as a
matterofcourseorroutineforanyoreverytypeof
grievance sought to be made. Even administrative
guidelines for regulating transfers or containing
transferpoliciesatbestmayaffordanopportunity
totheofficerorservantconcernedtoapproachtheir
higher authorities for redress but cannot have the
consequence of depriving or denying the competent
authoritytotransferaparticularofficer/servantto
any place in public interest and as is found
necessitatedbyexigenciesofserviceaslongasthe
officialstatusisnotaffectedadverselyandthere
is no infraction of any career prospects such as
seniority,scaleofpayandsecuredemoluments.This
Courthasoftenreiteratedthattheorderoftransfer
made even in transgression of administrative
guidelinescannotalsobeinterferedwith,astheydo
notconferanylegallyenforceablerights,unless,as
noticedsupra,showntobevitiatedbymalafidesor
ismadeinviolationofanystatutoryprovisions.

29. Inthepresentcasetheaffidavitinreplyof
the Additional Commissioner of Police
(Administration) makes one thing clear that the
petitioners had attended the marriage reception
on15thFebruary,2015andanewsarticleinthat
regard was also published in the various news
paperson18thFebruary,2015.Itappearsthatthe
Commissioner of Police, Ahmedabad took a very
seriousviewofthesameandveryrightlyasit
tarnishedtheimageofthepolicedepartmentand
he ordered an inquiry into the matter. The
Page 38 of 44
Page 38 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

inquiry was handed over to the Deputy

Commissioner, Police (zone1) Ahmedabad and on
the basis of the inquiry reports the Director
General of Police, State of Gujarat passed the
impugnedorderoftransfers.
30. The object of transfer also appears to be
quiteclear.Primafacieuponinquiryifitwas
found that being police constables they had
attended the wedding reception then it
necessarily implies the close proximity of the
policeconstableswithanotedbootlegger.Itis
butobviousthatsuchpoliceconstablesshouldbe
keptatadistancesothattherepositionisnot
abused by criminals. Could it be said that the
only remedy available with the Director General
ofPolicewastoplacethemundersuspensionor
initiatedepartmentalinquiryagainsteachofthe
petitioners but in any circumstances they could
nothavebeentransferredtoanotherdistrict.
31. Iamoftheviewthatsuchconstructionwill
notbeintheinterestoftheadministrationof
the police force even keeping in mind the
Division Bench decision of this Court on which
strong reliance has been placed. I may clarify
one thing since I was a party to the Division
Bench decision that what was argued before the
Division Bench was thatthe police constable in
Page 39 of 44
Page 39 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

that case could not have been transferred to

another district keeping in mind section 28 of
the Act and the Gujarat Police Manual. The
DivisionBenchtooktheviewthatthepetitioner
inthatcasecouldhavebeentransferredbuthis
transfercouldbetermedasoneondeputationat
aparticularplaceandsuchdeputationshouldnot
be foranindefinite period. The Division Bench
had nooccasion toconsider anyexigencies like
the one which I am considering in the present
case.
32. AtthesametimeImustputtherespondents
toguardthatwhathasbeenobservedbymeshould
also not be misused in the sense that if the
inter district transfer is otherwise not
permissible under the Gujarat Police Manual
exceptifitisfoundtobenecessarythenwhile
effecting such inter district transfer the
exigenciesalsoshouldbeofthatnature.
33. InthecaseofHadmatsinhNaharsinh(supra)
a learned Single Judge of this Court placing
reliance on the Division Bench decision in the
caseofHaroonYusuf(supra)tooktheviewthat
thetransferofthepetitionerofthatcasewas
onaccountofthehoochtragedywhichhadtaken
placeinthecityofAhmedabadandthereforethe
transferordercouldnothavebeensaidtohave
Page 40 of 44
Page 40 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

beenpassedtomeetwithanyemergentexigencies
or in public interest at the place where the
petitionerwastransferred.Theviewtakenbythe
learned Single Judge was more or less in the
factsofthatparticularcase.
34. Itwasvehementlyarguedbeforemethatasin
the case of Hadmatsinh (supra), the learned
SingleJudgetooktheviewthatthetransferof
the Police Constable on account of the hooch
tragedy could not be said to be in the public
interest, in the same manner even if it is
believedthatthepetitionershereinhadattended
the wedding reception of the son of a noted
bootlegger then the transfer to the other
districts could not be said to be in public
interest. In short according to Mr. Goswami,
attendingtheweddingreceptionhasnothingtodo
with the public interest. Therefore, the word
used in the orders of transfer i.e. public
interestisvague.
35. Theexpressionpublicinteresthasnotbeen
definedeitherinanyrulesorinanystatute.It
isawideexpressionandthequestionofpublic
interest will have to be determined in the
context of the particular order. As has been
notedbytheSupremeCourtinStateofBiharv.
Kameshwar Singh, 1952 AIR (SC) 252, the
Page 41 of 44
Page 41 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

expressioncouldonlybedefinedbyaprocessof
judicial inclusion and exclusion. However, a
broad test has been formulated and it is that
whatever furthers the general interest of the
Community,asopposedtotheparticularinterest
of the individuals, must be regarded as public
purpose. In the context of public service it
wouldmeantheinterestofpublicasopposedto
the personal, political or other extraneous
interest.Publicinterestdemandsthatanofficer
oranemployeepostedataparticularpost,must
inspire confidence, not only among his fellow
employees and superior authorities, but also
among the members of the public.If a police
constableisfoundtobeincompanyofcriminals
or persons accused of having committed any
offencethenhistransferfromthatplacemustbe
heldtobeinthepublicinterest.
36. Public interest in this context would be
justiciable only to this extent that the order
should not be based on any extraneous
considerations or malafide reasons. The use of
thewordpublicinterestinaparticularorder
would prima facie be sufficient to raise
presumption that the order has been passed in
publicinterest.
37. It is the existence of the circumstances
Page 42 of 44
Page 42 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

constituting the public interest which istobe

seen by the Court, once the circumstances are
shown to have existed, the sufficiency of the
circumstanceisforthegovernmenttodecide.
38. Section 28 of the Act should be read
harmoniously with Article 152 and 154 of the
Gujarat Police Manual, 1975. Article 152 speaks
of the inter district transfer in emergencies
making reference of section 28(1) of the Act.
Whereas Article 154 of the Manual speak of
generalinstructionsregardingtransfers.Iamof
theviewthatSection28oftheActempowersthe
State Government or the Inspector General to
employ a police officer allocated for duty in
partofthestatetoanyotherpartofthestate
so long as the service of the same at the
transferredplacearerequiredbutthatdoesnot
meanthatinnocircumstancesotherthantheone
mentionedinthesection28oftheActthepolice
officercannotbesenttoanyotherpartofthe
state by way of transfer. The Gujarat Police
Manual itself takes care so far as the inter
district transfers are concerned and makes it
very clear that no government servant belonging
toclass(3)ministerialpost/serviceorclass(4)
should betransferred from one place toanother
unless his transfer is considered necessary by
the competent authority. The words in Article
Page 43 of 44
Page 43 of 44

Created On Sun Aug 30 15:16:07 IST 2015

HC-NIC

C/SCA/8463/2015

CAV JUDGMENT

154(3)(D) unless such a transfer is considered

necessary should not be construed as the
necessityoftransferunderSection28alone.
39. In the over all view ofthe matter, I have
reachedtotheconclusionthatnointerferenceis
warrantedwiththeimpugnedordersoftransfer.
40. Intheresult,allthepetitionsfailandare
herebyrejected.Noticeisdischarged.

(J.B.PARDIWALA, J.)
Manoj

Page 44 of 44
Page 44 of 44

Created On Sun Aug 30 15:16:07 IST 2015