Gopalji Srivastava vs Inspector General of Police (Karmik) and Others

S.R. Singh, J.—Petitioner, who is serving as S.I. (M) was posted as Accountant in the office of Senior Supdt. of Police Gorakhpur. By means of the order dated 5 5-1993, he was transferred from Police Office to the Unit of P.A.C. stationed at Gorakhpur. The Said transfer was impugned in a writ petition filed in this Court on the grounds that it had been made in breach of the Government order dated 9-7-1991 (Annexurc-2) spelling out the transfer policy. According to the Petitioner, having already served in P.A.C. for about nine years in two spells-from 17-7-1979 to 10-9-90 in the first spell and 2-8-1986 to 10-9-1990 in the second spell in accordance with the circular dated 9-12-1985 issued by Inspector General of police (Personnel) U.P. Lucknow, he was not liable to be transferred again from the Civil Police to P.A.C. and that there was no justification for his transfer within three years of his present place of posting. The said writ petition was finally disposed of by means of the order dated 4-6-1993 studded with the observations that in case the Petitioner chose to prefer a representation, the ''appropriate authority'' would traverse upon the grievances of the Petitioner and pass a reasoned and speaking order disposing of his representation. While disposing of the writ petition, the operation of the transfer order dated 5-5-1993 was stayed initially for 15 days and if a representation was filed within that period, the transfer order was to remain in abeyance, until the disposal of the representation by the ''appropriate authority''.

Thereafter, on 15-6-1993, the Petitioner preferred a representation to the Inspector General of Police (Karmik) U.P. Lucknow with the request prayer to rescind the transfer order dated 15-5-1993. The said representation was filed through proper channel in pursuance of the order dated 4-6-1993 passed by this Court. A copy of the same was attached to the representation aforesaid.

It would transpire from a perusal of the facts on record that on 19-6-1993, the Dy. Inspector General of Police (Karmik) Allahabad, passed the following order which has been extracted in para 23 of the writ petition and the same is quoted below for ready reference:

Order regarding transfer of S.I, (M) Accountant Sri Gopal Jee Srivastava from District Gorakhpur to P.A.C. issued vide P.Hg orders of even No. dated 5-5-1993 is stayed up to 31-12-1993.

The Inspector General of Police (Karmik) U.P. Luckaow as would appear, rejected the said representation by order contained in D.C. letter No. D.C. Four-115 (58)-93 dated 27-4-1994 communicated to the Petitioner by the Senior Supdt. of Police Gorakhpur vide letter dated 3-5-1994 annexed as Annexure--7 to the writ petition on the premise that the ''Competent Authority'' for the purpose was the Deputy Inspector General of Police, who in consideration of the Petitioner''s representation, had already stayed the transfer of the Petitioner till December 31, 1993 The Ist Respondent seems to have taken the view that since the High Court had required the ''Competent Authority'' to dispose of the representation any order by the Inspector General of Polite (Karmik) U.P. Luckaow in exercise of the appellate power was not warranted

I have heard the learned Counsel for the Petitioner as also the Learned Standing Counsel. The Learned Standing Counsel his opened not to file any counter affidavit reckoning with the fact that only legal questions have been pressed into service for determination.

Having heard the learned Counsel for the Petitioner, I veer round to the opinion that the impugned order dated 3-8-1994 is not sustainable in law inasmuch as in my considered opinion, the Inspector General of Police (Karmik) U.P. Lucknow, has illegally refused to exercise the jurisdiction vested in him by law. The expression ''appropriate authority'' used in the Court''s order dated 4-6-1993 in relation, to a person aggrieved by a transfer order passed by Deputy Inspector General of Police. includes the authority vested with The supervisory powers in the matter of transfer The Inspector General of Police was under a duty to apply his mind and give due considerations to the points agitated by the Petitioner in his representation dated 15-6-1993. Regulation 1-A of the U.P. Police Regulations as inserted by S.C. No. 708/8-7-175-1 (Greh Police) Anubhag-7 dated July 8, 1991, leaves no manner of doubt that the Additional Inspector General of Police and for matter of that the Inspector General of Police (Karmik) is vested with the supervisory power of control in respect of his Zone and has in that capacity the power to issue appropriate guidelines to be abided by. the Deputy Inspector General of Police of his Zone in respect of the matter pertaining to transfer of non-gazetted officers besides other matters enumerated in Regulation 1-A. There is no denying the fact that Additional Inspector General of Police, exercises the power of Inspector General of Police and for the purposes of Regulation 1-A of the U.P. Police Regulations, the Inspector General of Police was the ''Appropriate Authority'' to entertain and decide Petitioner''s representation dated 15-6-1993 on its intrinsic merits and in fact, the representation was addressed and sent to him vide S.S.P''s letter dated 23-6-1993.

Even otherwise, the order passed by the Deputy Inspector General of Police on 19-6-1993 (quoted in paragraph 23 of the writ petition) savors of an order of interim nature and cannot be understood to mean a final order disposing of Petitioner''s representation dated 15-6-1993 addressed to the Ist Respondent. The fact that the order dated 5-5-1993 was stayed up to 81-12-1993 cannot be stretched to mean consideration of the grievances of the Petitioner and consequent disposal of his representation by a reasoned order. It is obvious that neither the Deputy Inspector General of Police nor the Inspector General of Police (Karmik) U.P. Lucknow addressed himself to the questions raised by the Petitioner in his representation. It was expected of them, by the order dated 4-6-1993 of this Court, to delve into Petitioner''s grievances and dispose of his representation by means of a ''reasoned and speaking order. Passing of a -reasoned and speaking order'' necessarily postulates application of mind to the points raised in the representation and its disposal having regard to administrative exigencies and the Government orders encapsulating policy on the subject concerned-transfer of police officers in the instant case. I am constrained to observe that the Petitioner''s representation has been rejected by the Inspector General of Polios In a casual and perfunctory manner and without application of mind to the points raised in the representation compelling the Petitioner to approach this Court twice for the redressal of the same grievance and vindication of his cause. As noticed earlier, the order passed by the D.I.G. was is the nature of as interim order and it cannot be taken to be an order disposing of the representation preferred by the Petitioner.

From the tenor of the order passed by the Ist Respondent it does not appear, and it is also not the case of the Respondents, that apart from the interim order, quoted hereinbefore, the Dy. Inspector General of Police had passed any other order which may be said to be a reasoned order disposing of the Petitioner''s representation of the Ist Respondent on 21-6-1993. But assuming that the reasons may have been noted on the file of the D.I.G. Still the Inspector General of police to whom the representation was sent and who is vested with the supervisory powers, was duty bound to direct himself to the seasons, If any, recorded by the D.I.G. vis-a-vis the plea raised by the Petitioner in his representation. That the impugned orders are open to judicial review on the grounds of bad-faith, malafides irrationality, unreasonableness and/or non-application of mind cannot be disputed in that "in a system based on rule of law, unfettered governmental discretion, is a contradiction in terms"--Proof Wade. It is no doubt true the that the authority ordering transfer of subordinate government servants has a wide discretion In the matter. But ''discretion" necessarily implies ''good faith in discharge of public duties. A person exeroising statutory or executive powers ensuing civil eonsequences, acts "unreasonably" if he fails to direct himself properly in law or falls to call his own attention to the matters which he is bound to consider.

It may be observed for the guidance of the authorities exercising powers of superintendence over their subordinates, and they must note it, that exercise of statutory powers by a person, whether purely administrative or discretionary or quasi-judicial, "without application of mind to the questions before him or the conditions and circumstances relevant to the exercise of power and the facts and circumstances before him, it ceases to be a bonafide exercise of power." See Basu on Administrative Law, Second Edn P. 184; Lawrence Joachim Joseph D''souza Vs. The State of Bombay, ; The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, ; and Civil Misc. Writ No. 11954 of 1994 Avadhesh Singh v. C.D.O. Sonbhadra and others decided on 13-4-1994.

In their dealings with the employees and officers of subordinate ranks, the higher governmental authorities must act reasonably and while ordering transfer ''authorities must keep in mind the guidelines issued by the Government on the subject" and further that "if a person makes any representation with respect to his transfer the appropriate authority must consider the same having regard to the exigencies of administration" See Union of India and Others Vs. S.L. Abbas, . Transfer of a Government servant from one place to another is meant and designed to sub serve ''public interest'' and the interest of Administration on one hand and executive instructions issued from time to time laying down norms and guidelines on transfer of government servants on the other, are intended to check arbitrariness in the matter of transfer and thereby to ensure rule of law and secure right to equality guaranteed to government servants by Article 16 read with 14 of the Constitution. The concerned authorities have to strike a creative balance between ''public interest'' and ''interest of individual government servants while ordering their transfer from one place to another. They have to discharge this duty with a sense of responsibility--accnuntabllity-accountabillity to the people and above all to themselves. Union of India and Others Vs. S.L. Abbas, .

Disposal of representation, in my opinion, without application of mind cannot but be held as malafide and by no stretch of imagination, it can be said to be a bonafide exercise of power. It may be observed here that if a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. See Pearce v. Foster (1866) 17 QBD 536 quoted in Union of India and Others Vs. K.K. Dhawan, .

In view of the above discussion, the impugned order passed by the first Respondent and communicated to Petitioner by the SR, Supdt. of Police, cannot be sustained in law

Accordingly, the writ petition succeeds and is allowed in part. The impugned order dated 27-4-1994 passed by the Inspector General of Police (Karmik) U.P. Lucknow and its communication by the SR. Supdt. of Police vide letter/communication dated 3-5-199 are quashed. The Inspector General of Police shall go over the entire matter and dispose of the Petitioner''s representation by means of a reasoned and speaking order i.e. in due consideration of the points raised in the representation vis-a-vis the relevant Government Orders encapsulating policy on transfer of police officers of subordinate ranks and the exigencies of administration etc. In the meanwhile, the operation of the transfer order dated 3-5-1994 shall remain in abeyance until the matter is finally decided by the Inspector General of police'' (Karmik) in accordance with law and in the light of the observations made in the body of this order.

Let a copy of this order be supplied to the learned Counsel for the Petitioner on payment of usual charges within 3 days.