Rajesh Tiwari vs State Of Madhya Pradesh & Others

At the request of parties, matter is heard on I.A. No.7923/2018, by which the respondents have prayed for vacating of interim order dated 11.05.2018

passed by this Court.

Shri G.P. Singh, for the respondents-State submits that by the instant petition, the petitioner has assailed the order dated 08.05.2018 (Annexure-P-1)

whereby he has been directed to be transferred to Police Head Quarter, Bhopal. He further submits that the petitioner has already completed his

normal tenure at Jabalpur and, therefore, he has been transferred to Bhopal on administrative exigency. He also submits that in the entire service

career of 36 years, the petitioner stayed at Jabalpur in various capacity for the period of almost 22 years and as per the respondents the petitioner

remained out of Jabalpur only for some period. He has contended that the order of transfer of the petitioner has been made by the Board only on the

administrative ground but, not at the instance of respondent No.4 and the documents filed by the petitioner to constitute the malafide has not been

taken note of by the Board. The respondents have also contended that the Election Commission has issued an order saying that the officers in whose

presence the election of State Assembly 2013 was conducted should not be allowed to continue at the same place, therefore, he has submitted that the

interim order granted in favour of the petitioner is liable to be vacated because as per the stand taken in their reply there is no scope for interference in

the order of transfer of the present petitioner.

In reply to the contention raised by the respondent-State, Shri Choubey, counsel for the petitioner submits that he has submitted reply to the

application for vacating of interim order, in which, he has denied the averments made in the application for vacating of interim order. He further

submits that in view of the documents filed along with his reply, the application for vacating of interim order deserves to be dismissed.

First of all, for vacating of interim order, it is required to see as to what interim order has been granted by this Court. As per the order dated

11.05.2018 this Court has observed as follows:-

“Shri Brijesh Choubey, counsel for the petitioner.

Shri R.K. Verma, learned Addl. A.G. for the respondent/State.

Heard on the question of admission.

Issue show cause notice against admission to the respondents on payment of process fee within three working days. Notices be made returnable

within four weeks.

The challenge has been made to the order of transfer dated 08.05.2015 to petitioner on the ground of malice filing a letter written by respondent No.4

by which the Member of Legislative Assembly concerned requesting to the Chief Minister for transfer of the petitioner because the workers are not

satisfied and relying upon the said letter, petitioner has been transferred. The MLA concerned has also been joined as a party to the proceedings in

this case.

In that view of the matter, till the rebuttal of those allegations of malafide, operation of the order impugned Annexure-P/9 dated 08.05.2018 shall

remain stayed.

Learned counsel for the petitioner as well as learned counsel for the respondent both have said that the petitioner has been relieved on the same day.

Considering the allegations of malafide, operation of the transfer order has been stayed, however, petitioner be allowed to continue on the place of

posting, on which he was working. C.C. today.â€​

From bare perusal of the interim order, it is clear that this Court has interfered in the order of transfer on the basis of a letter given by respondent

No.4 i.e. Annexure-P-10, in which, the local MLA/respondent No.4 requested the Chief Minister regarding transfer of the petitioner out of Jabalpur

because the working of the petitioner is creating unsatisfactory atmosphere among the party workers. The said letter is dated 28.04.2018 and order of

transfer dated is 08.05.2018 and it is presumed that the transfer of the petitioner has been made at the instance of local MLA/respondent No.4. The

reason for transferring the petitioner is assigned in the letter itself that the party workers were not satisfied with the working of the petitioner. The

Court found that it is sufficient ground for drawing inference of malafide and, therefore, operation of the transfer order dated 08.05.2018 was stayed

in respect of the petitioner. The Court further observed that the said order will remain in force till the rebuttal of the allegation of malafide is filed. It is

a settled principle of law that for substantiating malafide, the person should be made party eonomine. Respondent No.4 is, therefore, made a party by

the petitioner. It is further settled that the concerning person against whom malafideis allegedhasto come forward to deny the allegation. But, in the

present case, respondent No.4 did not come forward to deny the said allegation.

Although, the counsel for the respondent-State submits that from perusal of Annexure-R-3 it can be seen that the order of transfer of the petitioner

has been issued by the Police Establishment Board and from that document it does not reveal that the Board has acted upon on the letter of

respondent No.4 but, this contention of the respondents-State has no force for the reason that Annexure-R-3 does not reveal as to what

recommendations have been made by the department before the Board for transferring the petitioner. Unless the proceeding of the Board is placed

before this Court, it is difficult to say that the Board has not taken cognizance of the said letter.

On the other hand, counsel for the petitioner is also placing reliance on the order passed by this Court in W.P. No.8019/2016 in which the Court

relying upon the case of Prakash Singh and others Vs. Union of India and others, (2006) 8 SCC 1 has observed as under:-

“There shall be a Police Establishment board in each State which shall decide all transfers, postings, promotions and other service related matters

of officers of and below the rank of Deputy Superintendent of Police. The State Government may interfere with the decision of the Board in

exceptional cases, only after recording its reasons for doing so. The board shall also be authorized to make appropriate recommendations to the State

Government regarding the postings and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to

give due weight to these recommendations and shall normally accept them. It shall also function as a forum of appeal for disposing of representations

from officers of the rank of Superintendent of Police and above regarding their promotions/transfers/disciplinary proceedings or their being subjected

to illegal or irregular orders and generally reviewing the functioning of the police in the State.

Minimum tenure of IG of police and other officers

(3)Â Police officers on operational duties in the field like the Inspector General of Police in-charge Zone, Deputy Inspector General of Police in-

charge Range, Superintendent of Police incharge District and Station House Officer incharge of a Police Station shall also have a prescribed minimum

tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a

criminal offence or in a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities. This would be subject to

promotion and retirement of the officer.â€​

In the light of judgment of Prakash Singh (supra), Home Department of State Government issued the order dated 14-02-2007.

The relevant portion of said order reads as under:-

^^2- jsat iqfyl egkfujh{kd rFkk v/khuLFk vU; vf/kdkfj;ksa dk U;wure dk;Zdky

¼i½ izns'k esa jsat Lrj ij inLFk fd;s tkus okys iqfyl egkfujh{kd@mi iqfyl egkfujh{kd rFkk ftyksa esa inLFk gksus dk ftyk iqfyl v/kh{kd]

vuqfoHkkxh; vf/kdkjh ¼iqfyl½@uxj iqfyl v/kh{kd ,oa Fkkuk izHkkfj;ksa dk U;wure dk;Zdky 2 o""kZ jgsxk] tc rd fd mUgsa fuEu ifjfLFkfr;ksa esa

U;wure dk;Zdky ds iwoZ gh l{ke vf/kdkjh }kjk mudh inLFkkiuk ls gVkus dk fu.kZ; u ys fy;k tk;s&

¼ii½ vuq'kklukRed dk;Zokgh lafLFkr gksus ij]

¼iii½ vijkf/kd vFkok Hkz""Vkpkj ds izdj.k esa U;k;ky; }kjk nks""kfl) Bgjk;s tkus ij]

¼iv½ inh; nkf;Roksa@dRrZO;ksa ds fuoZgu esa vU;Fkk v{ke gksus ij]

¼v½ dkuwu ,oa O;oLFkk dh xaHkhj ifjfLFkfr;ksa ij fu;a=.k djus esa vlQy gksus ij]

¼vi½ inksUufr vFkok lsokfuo`fRr gks tkus ij]^^

(Emphasis supplied)â€​

The Court has further observed with respect to order dated 14.02.2007 issued by the Home Department of the State Government and the guidelines

under which the Police Officers can be transferred prior to completion of the period of 2 years at one place. Relevant portion of the said order is

reproduced herein below:-

e/;izns’k 'kklu x`g foHkkx

e=ky; oYyHk Hkou Hkksiky

vkns’k  fnukad 14@02@2007

Øekad ,Q 1&73@1998@o&2@nks eku- mPpre U;k;ky; }kjk writ petition civil no. 310 of 1996 fnukad 22-09-2005 dks ikfjr fu.kZ; esa iqfyl lq/kkjksa

ds laca/k esa fn;s x;s funsZ’kksa ds fØ;kUo;u ds fnol ij iqu% fnukad 11-01-2007 dks ikfjr vkns’k ds vuqlj.k esa jkT; ’kklu }kjk iqfyl

lq/kkj fo""k;d fuEukuqlkj fu.kZ; fy;s tkrs gS&

1- iqfyl egkfunsZ’kd dk p;u ,oa U;ure dk;Zdky%&

iqfyl egkfunsZ’kd ds in ij fu;qfDr ds fy;s p;u iqfyl egkfunsZ’kd dh jSad esa inksUufr gsrq lsokdky cgqr vPNk fjdkMZ ,oa vuqcU/k dh vof/k

dks /;ku esa j[krs gq, rS;kj fd;s x;s jkT; ds 3 ofj""Bre iqfyl vf/kdkfj;ksa ds iSuy esa ls fd;k tk;sxk rFkk ,sls iSuy esa ls fu;qDr fd;s x;s iqfyl

egkfunsZ’kd dk U;wure dk;Zdky 2 o""kZ dk gksxkA ijUrq iqfyl egkfunZs’kd ds in ij mDrkuqlkj fu;qDr fd;s x;s vf/kdkjh dks fuEu ifjfLFkfr;ksa

esa jkT; lqj{kk vk;ksx ds xBu gksus dh fLFkfr esa vk;ksx ls ijke’kZ djrs gq, U;wure dk;Zdky ds iwoZ Hkh gVk;k tk ldsxk%&

i ¼vf[ky Hkkjrh; lsok,a vuq’kklu rFkk vihy½ fu;eksa ds varZxr dk;Zokgh lafLFkr gksus ij]

ii fdlh vijkf/kd vFkok Hkz""Vkpkj ls lacaf/kr izdk’k esa U;k;ky; }kjk nks izfl) Bgjk;s tkus ij]

iii in ds drZO;ksa ds fuoZgu esa vU;Fkk l{ke gksus ij vFkok mlds

Lo;a ds vuqjks/k ij] iv O;kid Lo:i dh dkuwu ,oa O;oLFkk dh xaHkhj ifjfLFkfr;ksa es iqfyl cy dks usr`Ro iznku djus rFkk ,slh ifjfLFkfr;ksa ij fu;a=.k djus

esa vlQy gksus ij]

2- jsat iqfyl egkfujh{kd rFkk vf/kuLFk vU; vf/kdkfj;ksa dk U;wure dk;Zdky

i izns’k esa jsat Lrj ij inLFk fd;s tkus okys iqfyl egkfujh{kd@mi iqfyl egkfujh{kd rFkk ftys esa inLFk gksus dh ftyk iqfyl vuqfoHkkxh

¼iqfyl½@uxj iqfyl v/kh{kd ,oa Fkkuk izHkkjh dk U;wure dk;Zdky 2 o""kZ jgsxk] tc rd fd mUgsa fuEu ifjfLFkfr;ksa esa U;wure dk;Zdky ds iwoZ

gh le{k vf/kdkjh }kjk mudh inLFkkiuk ls gVkus dk fu.kZ; u ys fy;k tk;s&

ii vuq’kklukRed dk;Zokgh lafLFkr gksus ij]

iii vijkf/kd vFkok Hkz""Vkpkj ds izdj.k esa U;k;ky; }kjk nks""kfl)

Bgjk;s tkus ij] iv inh; nkf;Roksa@dRrZO;ksa ds fuoZgu esa vU;Fkk n{k gksus ij]

v dkuwu ,oa O;oLFkk dh xaHkhj ifjfLFkfr;ksa ij fu;a=.k djus esa vlQy gksus ij]

vi inksUufr vFkok lsokfuo`fRr gks tkus ij]

3- iqfyl LFkkiuk cksMZ

iqfyl egkfunsZ’kd dh v/;{krk esa iqfyl LFkkiuk cksMZ dh xBu fd;k tkrk gS] ftlds fuEukuqlkj 4 ofj""B iqfyl vf/kdkjh lnL; cksMZ%&

i vfrfjDr iqfyl egkfunsZ’kd] iz’kkluA ii vfrfjDr iqfyl egkfunsZ’kd] xqIrokrkZA iii vfrfjDr iqfyl egkfunsZ’kd] fo’ks""k l’kL= cyA

iv vfrfjDr iqfyl egkfunZs’kd v-t-fo-A

4- mDr iqfyl LFkkiuk cksMZ }kjk mi iqfyl v/kh{kd ,oa mlls uhps ds Lrj ds iqfyl vf/kdkfj;ksa@deZpkfj;ksa ds LFkkukarj.k vFkok in LFkkiuk ds laca/k

esa fu.kZ; fy;s tk;sxsaA vR;kf/kd izdj.kksa ls jkT; iz’kklu ds cksMZ ds fu.kZ;ksa esa gLr{ksi dk vf/kdkj gksxkA vr% vR;kf/kd izdj.kksa ls jkT;

iz’kklu ds cksMZ ds fu.kZ;ksa esa gLr{ksi dk vf/kdkj gksxkA vr% cksMZ ds fu.kZ; fØ;kUo;u ds iwoZ jkT; 'kklu dks izsf""kr fd;s tk;sxsaA

5- cksMZ }kjk fujh{kd Lrj rd ds iqfyl dfeZ;ksa dh inksUufr laca/kh izdj.k Hkh fuf.kZr fd;s tk;saxsA

6- iqfyl LFkkiuk cksMZ iqfyl v/kh{kd ,oa mlls mPp Lrj ds vf/kdkfj;ksa ds LFkkukarj.k@inLFkkiuk ds laca/k esa jkT; ’kklu dks vuq’kklu djus

ds fy;s vf/kd`r jgsxk rFkk cksMZ }kjk bl le{k esa dh xbZ vuq’kalk dh jkT; ’kklu }kjk ;Fkksfpr ojh;rk nh tk;sxhA

7- iqfyl LFkkiuk cksMZ iqfyl v/kh{kd ,oa mlls mPp Lrj ds vf/kdkfj;ksa ls mudh inksUufr@LFkkukarj.k@vuq’kklfud dk;Zokgh vFkok vfu;fer

vkns’kksa ds laca/k esa vH;kosnu izkIr gksus ij ,sls vH;kosnuksa dks fn’kkmijkUr vius vfHker lfgr fu.kZ;kFkZ jkT; ’kklu dks HkstsxkA

cksMZ  }kjk jkT; ds ifyl ds dk;Z@dk;Ziz.kkyh dh lkekU; leh{kk Hkh dh tk;sxh vkSj leh{kk izfrosnu jkT; ’kklu dks izLrqr fd;k tkosxkA

;g vkns’k rRdky izHkko’khy gksxk vkSj izns’k esa uohu iqfyl vf/kfu;e izHkko’khy gks tkus ij ;g vkns’k fuxzHkkoh gksxkA

e/;izns’k ds jkT;iky ds uke ls rFkk vkns’kkuqlkj

¼,l-Mh-vxzoky½ lfpo

                                                  e/;izns’k

’kklu] x`g foHkkx

From bare perusal of this order it is clear that there is no such eventuality available as shown by the State Government in the order dated 14.02.2007.

The petitioner has contended that he has completed only 15 months as Additional Superintendent of Police in Jabalpur and came only by order dated

16.08.2017 from 6th Battalion, PTS, SAF, Jabalpur.

Counsel for the respondent-State although has pointed out that as per the details given in para-4 of the reply, the petitioner has spent almost 22

years of his service in Jabalpur only, but that contention is of no force in the present circumstance for the reason that the petitioner has spent his

maximum period of services in Jabalpur only by virtue of orders issued by the respondents and the respondents nowhere have stated that any order of

transfer of the petitioner has been issued by the State Government at his own request, meaning thereby, it is the respondents who have compelled the

petitioner to live in Jablpur for maximum period of his service time. Therefore, under such circumstance, the petitioner cannot be put at

disadvantageous position.

In view of the above, when specific allegation of malafide is not rebutted by adducing cogent evidence showing that the Board has not taken note

of the letter issued vide Annexure-P-10 and transfer of the petitioner is not based upon such letter, therefore, the interim order passed by this Court

cannot be vacated.

Counsel for the respondents has also placed reliance on a decision reported in (2007) 8 SCC 150 (Mohd. Masood Ahmad Vs. State of U.P. And

Others) saying that merely because the recommendation of MLA is there, the said recommendation cannot be made basis for declaring the order of

transfer invalid but that case is not applicable in the present case because here in this case there is no complaint made by the local MLA regarding the

working of the petitioner but it is a complaint showing grievance of the workers of a particular party who were dissatisfied with the working of the

petitioner. It clearly reveals that the petitioner was not performing his duties as per the wishes of the workers of a particular party and such type of

working cannot be considered to be a complaint made by a local MLA but on the contrary it construed the malafide on the part of the political workers

harassing a particular police officer who is not discharging his duties as per the wishes of political workers. Thus, it is not a case in which the interim

order granted by this Court is liable to be vacated. The I.A. No.7923/2018, is therefore, dismissed.

Case be listed for hearing in due course.