We have heard Mr. Hasit H. Joshi, learned counsel appearing for the appellant – original petitioner and Mr. Rakesh Patel, learned Assistant Government Pleader appearing for the respondents. 2. This Intra-Court Letters Patent Appeal has been filed by the appellant challenging the judgment dated 18.7.2012 passed by the learned Single Judge in Special Civil Application No.9652 of 2012 whereby the writ petition filed by the petitioner came to be dismissed.
3. This Letters Patent Appeal can be disposed of without calling for affidavit-in-reply.
The appellant was working as Unarmed Head Constable at District Jamnagar. District-wise seniority of Head Constables is maintained in Jamnagar and for the purposes of promotion, district- wise seniority is considered. Normally, a constable or Head Constable working in the district is not transferred outside the district unless the administrative exigencies require him to be posted in another district as observed by the Division Bench of this Court in Haroon Yusufbhai Kadiwala v. Director General of Police and another, Letters Patent Appeal No.2277 of 2010 decided on 17.2.2011, such transfers has to be treated as on deputation and after the deputation is over, the Constable has to be sent back to his parent district. In the said decision, the Division Bench has also considered Section 28 of the Bombay Police Act, 1951 and Rules 152 and 153 of the Gujarat Police Manual. The relevant observations of the Division Bench made in paragraphs 7 to 10 is extracted below :-
“7. On perusal of various provisions of the Gujarat Police Manual and the Bombay Police Act, and more particularly, Cl. (1) of Sec. 28 of the Bombay Police Act which states that every Police officer not on leave or under suspension shall for all 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.
8. A plain reading of the Section itself suggests that the appellant-petitioner could have been transferred, but the only aspect which needs to be considered is as to for how long the appellant-petitioner would be kept at that particular place on transfer. We feel that the State Government should in cases like the present one should bear in mind and also clarify as to how long the services of the appellant-petitioner would still be required at the place where he has been transferred so that he may not have to stay at the place of deputation 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 the Police Manual that the same will not be disturbed.
9. Our attention has also been drawn to Rule 153, more particularly 153(1)(a) where the emphasis has been laid on the words "and members of the Police force of and below the rank of Police Inspectors, from one place to another in the State". Taking into consideration all the relevant provisions of law, we are of the opinion that the transfer of the appellant-petitioner as an Unarmed Head Constable originally posted at Khatodara Police Station, Surat to Sabarkantha District and placed at the disposal of Superintendent of Police, Sabarkantha at Himmatnagar, amounts to deputation, because deputation is also a transfer outside the cadre, and in no manner contrary to law or the provisions which have been relied upon.
10. We, therefore, deem it fit and proper to observe that under Rule 152, which provides for inter-district transfers in emergencies and the other Rule relating to transfer on the administrative grounds, in case of emergencies, it is desirable that the authorities should clarify as to how long the services of a Head Constable/Constable are required to meet with the exigencies at the transferred place, and as soon as the emergent administrative exigencies cease to exist at the transferred place, they must be sent back to their parent cadre. With these observations, the Letters Patent Appeal is disposed of accordingly with no order as to costs.”
4. Once the respondents found that the administrative exigency was over at Vyara where the appellant was transferred from Jamnagar and in pursuance of the directions of this Court dated 29.9.2011 passed in Special Civil Application No.14557 of 2011, the representation of the appellant was to be considered as to whether the administrative exigency for the transfer of the appellant to the other district is now no more in existence. Instead of considering this factor, the respondents have gone on the observations made by the learned Single Judge to post the appellant in some nearby district. This observation by the learned Single Judge was made and was to be applied if the administrative exigency was still existing. In our opinion, the appellant could not be posted in nearby district once the administrative exigency at Vyara was over. He was liable to be repatriated to his parent cadre and District at Jamnagar. Though the appellant in compliance of the order passed by the respondents has joined from Vyara to Surendranagar. But since the respondents have not considered as to whether the administrative exigency of the transfer of the appellant to Vyara was still in existence. And prima facie to us, it appears that there is no more in existence any administrative exigency for transferring the appellant and posting him from Vyara to Surendranagar. Therefore, the appellant was required to be posted in his parent cadre in the district where he holds his seniority at Jamnagar. Therefore, the impugned order dated 5.6.2012 of the respondent No.2 cannot be maintained.
5. In the result, this Letters Patent Appeal succeeds and is allowed. The impugned order dated 18.7.2012 passed by the learned Single Judge in Special Civil Application No.9652 of 2012 as well as the order dated 5.6.2012 of the respondent No.2 are quashed. The appellant shall make a fresh detailed representation within ten days to the respondent No.2 and the respondent No.2 is directed to decide the representation of the appellant afresh in light of the observations made by the Division Bench of this Court in Haroon Yusufbhai Kadiwala v. Director General of Police and another, Letters Patent Appeal No.2277 of 2010 decided on 17.2.2011. The respondent No.2 is further directed to decide the representation filed by the appellant within a period of one month from the date on which copy of this order is served on respondent No.2.
In view of final disposal of this appeal, Civil Application also stands disposed of.
D.S. permitted.
Sd/-
[V. M. SAHAI, J.] Sd/-
[G. B. SHAH, J.] Savariya