Jai Kishore Rajauria vs State Of M.P. And Others

In the wake of unprecedented and uncertain situation due to outbreak of the Novel Corona virus (COVID-19) and considering the advisories issued by the Government of India, this petition has been heard and decided through video conferencing to maintain social distancing. The parties are being represented by the respective counsel through video conferencing, following the norms of social distancing/ physical distancing in letter and spirit.

With the consent of the parties, the matter is finally heard.

The present petition is being filed being aggrieved by the order dated 20.02.2020 passed by the Superintendent of Police, District Datia (M.P.) whereby the earlier order dated 18.02.2020 has been cancelled without giving any reason. It is submitted that the petitioner was transferred vide order dated 18.02.2020 from Police Kotwali, Datia to S.H.O. Police Station Atreta, District Datia. It is submitted that in compliance of the order dated 18.02.2020, the petitioner was relieved and has submitted his joining at Police Station Atreta and has started working then all of a sudden, the impugned order has been passed by the Superintendent of Police, District Datia whereby the earlier order dated 18.02.2020 has been cancelled and the petitioner was directed to work at Kotwali, Datia. It is submitted that the order dated 18.02.2020 has already been executed by the petitioner. Therefore, in view of the law laid down by the Division Bench of this Court in the case of Manmohan Sharma vs. The State of M.P. in W.A.No.1249/2017 order dated 02.02.2018 wherein the Division Bench has categorically held that the executive transfer order could not be cancelled. The order impugned is per-se illegal and is in unsustainable in the eyes of law. It is further submitted that the Fundamental Rules 110 deals with transfer and the transfer defines which means a movement of employee from one station to another. It is argued that the petitioner has been transferred from Kotwali, Datia and posted to Police Station Atreta meaning thereby the change of place of working of the petitioner is there. Therefore, the order impugned is clear cut a transfer order. He has placed reliance upon the judgment passed by this Court in the case of B.Varadha Rao Vs. State of Karnataka and others, reported in AIR 1986 SC 1955 and submits that the aforesaid also amounts to frequent transfer, therefore, in view of the law laid down in the aforesaid case the transfer order is unsustainable. He prays for quashment of the impugned order.

Per contra, learned Panel Lawyer for the State by filing reply has submitted that the impugned order is not a transfer order. It is only a posting order of the petitioner from one police Station to another police station that to within the same district. The Superintendent of Police is having a jurisdiction to post the concerning Police Officer in the concerning Police Station as per the requirement of work. There is nothing wrong in the impugned order itself. It cannot be said to be a transfer of the petitioner from one place to another. It is submitted that within a short period of two days itself, the posting order of the petitioner was recalled and he has been directed to work in the previous police station itself. No malafides are being attributed by the petitioner in the petition against the authorities who have passed a transfer order. It is argued that as per the settled legal position even it is presumed that it is a transfer order then also the same cannot be interfered in view of the law laid down by the Hon'ble Division Bench of this Court in the case of B.Varadha Rao (supra). It is argued that the impugned order is only a posting order and the same has been passed by the Competent Authority, therefore, the same does not call for any interference in the present petition. The petitioner has filed a rejoinder in view of the return filed by the State Authorities and has brought to the notice of this Court the definition of the transfer which clearly stipulates that transfer is change of place of a employee from one. It is pointed out that if the headquarter of employee is changed, it amounts to transfer. It is argued that the police station where the petitioner was posted for working has been changed by the impugned order. Therefore, the same amounts to transfer only. In such circumstances, the impugned order is unsustainable and prays for quashment of the order.

Heard the learned counsel for the parties and perused the record. From the perusal of the record, it is seen that the order dated 18.02.2020 reads as under :-

"निम्नांकित उप निरीक्षकों को अस्थाई रूप से आगामी आदेश तक उनके नाम के सामने दर्शायनुसार थानों में डियुटी हेतु लगाया जाता है :-

स.क्र.

नाम एवं पद

वर्तमान पदस्थापना

नवीन पदस्थापना

1-

उनि. परमानंद शर्मा

थाना    अतरैटा

पुलिस लाइन दतिया।

2-

उनि. जयकिशोर

थाना कोतवाली दतिया राजौरिया

थाना अतरैटा

From the perusal of the aforesaid order, it is clearly seen that it is only a posting order of the petitioner in the concerning police station. Duties have been given to the petitioner in the concerning police station. In pursuance to the same, the petitioner has submitted his joining for doing the duty at Police Station Atreta but immediately thereafter within two days itself, the Superintendent of Police has changed the posting of the petitioner and he has been posted as a previous place of posting i.e. Kotwali, Datia itself. The aforesaid change of police stations within the same district cannot be said to be a transfer. The Superintendent of Police is a competent authority to post the concerning Police Officer like the petitioner in any of the police stations as per the requirement of work within its jurisdiction. The order dated 18.02.2020 (Annexure P/2) as well as impugned order does not clearly speak that the same are the transfer orders. There is no scope of interference in the present petition. Accordingly, finding no merit in the petition, the petition is dismissed. No order as to costs.

E-copy of this order be provided to the petitioner and it is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.