Jagat Ram Joshi vs State of Uttarakhand and Others

Barin Ghosh, C.J.—On 24th July 2009, the petitioner was transferred from 40th Battalion, P.A.C., Haridwar to Additional Superintendent of Police, Dehradun. By an order dated 13th July 2010, in public interest, 6 Additional Superintendents of Police were transferred. Petitioner was one of them. The second person in the transfer order was sought to be transferred from Haridwar to replace the petitioner. The third person, who was attached to Kumbh Mela, was transferred to Dehradun. The fourth person, who was in the Vigilance Department at Dehradun, was transferred to Rishikesh. The fifth person, who was attached to the Police Headquarters at Dehradun, was transferred to Haridwar to replace the second person in the list. The sixth person was transferred from Dehradun to Dehradun.

Since this transfer dated 13th July 2010 was effected before expiry of two years of stay of the petitioner at Dehradun, the petitioner made a representation. In that, he stated that having had brought his family to Dehradun about 10 months back, it would not be possible for him to take his family to his transferred post. In that representation, he made a request for recalling of the said transfer order, in so far as he is concerned. In that, he stated that on 11th July 2010, an incident took place, which incident was brought under control by his active participation, but in course thereof, he had altercation with a person named in the said representation. He said that the said incident cannot be taken as an instrument to effect the transfer against which he was making the representation.

Before the representation could be considered, the present writ petition was filed.

In as much as no stay was granted on the writ petition, the petitioner jointed his transferred post. Subsequent thereto, at the concession of the Learned Counsel appearing for the parties, an order was passed by this Court, whereby and under, petitioner was to be transferred to one of the three places opted by him. The respondents filed a review petition contending that the said part of the order was not conceded by the respondents. Later on, both the parties agreed that the order may be recalled and, accordingly, the same was recalled.

With the review application, the respondents filed their counter affidavit to the writ petition.

One of the contentions in the writ petition was that reasons are necessary, even when power to transfer is exercised in public interest. No such reason having been given in the transfer order dated 13th July 2010, the respondents chose to give the reasons in their counter affidavit. Those have been furnished in paragraphs 5, 6, 7 and 8 of the counter affidavit, as follows:

It is relevant to mention here that on 11th July, 2010 while trying to clear the traffic at Premnagar, Dehradun, one Sub Inspector and two Constables had heated argument with Hon''ble MLA Shri Rajkumar, who has parked his car in No-Parking Zone. The Police officials who were on duty in the particular area requested him to park his car at proper place, in between hot talk exchange and used abusive language.

That the argument turned heated and later turned into a scuffle. It is pertinent to mention here that the petitioner had admitted hot talks with MLA Shri Ganesh Joshi and other public persons. Later on the senior officials reached on the spot and pacified the people to control the situation. Government has taken the seriousness of the incident and took cognizance.

The Government has minutely analyzed the incident on 12-07-2010 after considerable discussion. It was decided in the meeting which was chaired by Hon''ble Chief Minister to transfer the concerned Police Officers in the public interest.

It is further stated that the Senior Superintendent of Police was also transferred and criminal case was registered against the erring Police Officials.

It appears from the averments made in those paragraphs of the counter affidavit that one Member of Legislative Assembly (MLA) parked his car in no-parking zone. One Sub-Inspector and two Constables, who were on duty in the area, requested the said MLA to park his car at proper place. The MLA concerned refused to do so. Altercation took place, which later turned into a scuffle. Another MLA came to the scene. At the same time the petitioner and other senior officials also reached the place. By their intervention, the matter stood resolved. In course of resolving the matter, petitioner had hot talks with the MLA, who reached the place later. This incident was taken seriously by the Government. It, accordingly, analyzed the incident minutely on 12th July 2010 and thereupon, at a meeting, it was decided to transfer concerned police officers in public interest. The reason thus furnished therefore makes it clear that the petitioner was transferred in public interest because he had hot talks with an MLA, who arrived at the place where another MLA had parked his car in no-parking zone and, when he was requested to park his car at proper place, he refused to do so. From the order impugned, it appears that it was only the petitioner who was thus transferred and in his place, another person was brought and in place of that person some other person. The transfer of the second, third, fourth, fifth and sixth persons, named in the transfer order, had nothing to do with the incident in question. It is true, as stated in paragraph 8 of the counter affidavit, that the Senior Superintendent of Police was transferred, but on promotion. The logical conclusion, therefore, would be that despite, in association with other senior officers, the petitioner was successful to pacify the situation, which cropped up by reason of refusal by an MLA to remove his car from the no-parking zone, the petitioner was transferred only for having had hot talks with another MLA, who came to the place where the said incident took place. The transfer order, therefore, can only be taken to be a punishment order. It is settled law that no transfer can be effected by way of punishment.

We, accordingly, interfere with the order of transfer, in so far as the petitioner is concerned, and quash the same. The writ petition is, accordingly, allowed.

The respondents are permitted to take appropriate steps in relation to transfer of the persons listed at serial Nos. 2 and 5 in the transfer order.