SAIYED AMIN AKBAR MIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) NINE jail inmates of Sabarmati Central Prison, situated at Ahmedabad, have jointly moved this writ petition invoking the writ jurisdiction of This Court under Article 226 of the Constitution of India with reference to provisions of Articles 14 and 21 of the Constitution of India and have prayed that appropriate writ, direction or order may kindly be issued against the respondents/authorities in terms of relief prayed mainly in sub -Paragraphs (B), (C), (D) and (E)(i) in Paragraph 16 of the petition.

(2.) THE Counsel appearing for the parties are heard in piecemeal as the parties have attempted to clarify their stand qua the dispute raised by the petitioners by filing affidavit and counter -affidavit at various stages and have also produced documents in support of their say expressed in the respective affidavits. I have gone through all the affidavits filed and the Counsel appearing for the parties have also taken me through the relevant facts stated in the affidavit filed in this matter and they have taken me through the relevant legal provisions as well as the Government Resolutions, Circulars, issued by the State Government and the relevant part of Jail Manual. For brevity and convenience and with a view to appreciate the contentions raised by the parties, it would be proper to quote the relevant part of relief clause referred to hereinabove:

(3.) IN response to the notice issued by This Court on 18th November, 2003 making it returnable on 20th November, 2003, a request for adjournment was made by learned G.P. Mr. A. D. Oza on 20th November, 2003 and the matter was adjourned to 24th November, 2003. On 24th November, 2003 the reply -affidavit on behalf of respondent Nos. 1 and 2 dated 21st November, 2003 has been tendered. The said affidavit -in -reply has been filed by one Mr V.M. Chauhan, Joint Secretary, Home Department, Jails, State of Gujarat, along with the documents referred in the affidavit. The stand of the respondent Nos. 1 and 2, in brief, is that the petition is misconceived and the documents accompanying the petition, if appreciated, it can reasonably inferred that the same is filed at the behest of respondent No. 3, Mr. Sanjeev Bhatt, who has been transferred from Sabarmati Central Jail, Ahmedabad. Substantially, the order of transfer has been challenged by the petitioners. Otherwise, the copy which was endorsed by the Government to respondent No. 3 could not have been produced as one of the Annexures with the petition, that is, Annexure -A. The petitioners must have been supplied with the copy of the impugned transfer order at respondent No. 3. When the transfer is an incident of service, it was otherwise difficult for respondent No. 3 to challenge the order of his transfer as it was passed for administrative reasons and the same does not suffer from any illegality or infirmity. The attempt has been made by respondent No. 3 to get his transfer order stayed and the order of transfer cannot be said to have violated or contravened any of the rights of the petitioners. According to respondent Nos. 1 and 2, the petitioners have no right either constitutional or statutory - to say that they are entitled to have a particular person as the Superintendent of Central Jail or to request the Government to continue or to have any relief from This Court which would bind the Government to a particular person as Superintendent of a particular Jail. The averments notwithstanding phrase 'right to life' guaranteed by Article 21 of the Constitution of India made by the petitioners are absurd and under this alleged right they cannot get the relief to continue to have a particular person posted as the Superintendent of the Jail. When the order of transfer is perfectly legal and when the same is not challenged by the concerned officer in any manner directly before This Court, none of the reliefs as prayed for in Paragraph 16 of the petition can be granted. The order of transfer of respondent No. 3 is passed pursuant to the decision taken by the authority who is competent to transfer respondent No. 3 and respondent No. 3 is holding a transferable post and as the said transfer is in public interest, it is neither violative of any statutory rule nor was passed mala fide. The decision of transfer was not taken by the authority as a 'punitive measure', but it was in the interest of the administration and with a view to ensure that no further damage is done to the order of discipline of Sabarmati Central Jail. Thus, there is no contravention of Article 14 of the Constitution of India. The State has averred in the affidavit that the competent authority is willing to place the original file containing the relevant record and papers before the Court for perusal. There is no locus for the petitioners to challenge the order of transfer at Annexure -A. On the contrary, the State has made the grievance in Paragraph 6 of the affidavit that it would be wrong to create an impression that there will be complete vacuum in the administration and reforms if respondent No. 3 is shifted from Sabarmati Central Jail. On the contrary, various steps taken by respondent No. 3 after his posting as a Superintendent of Sabarmati Central Jail in September, 2003 cannot be treated as a step 'reformatory' in nature. On the contrary, number of steps taken by respondent No. 3 as listed by the petitioners are contrary to the provisions of law and rules. On the contrary, some decisions are apparently look like a decision taken under some whims and as the petitioners were the beneficiaries of such illegal and unauthorised measures taken as per whims of respondent No. 3, they have taken up the cause of respondent No. 3 with a request to interfere with the order of transfer. Jail Superintendent is under obligation to perform various duties and functions which are prescribed and enumerated in Bombay Jail Manual (as applicable in the State of Gujarat) and it is not open to any Jail Superintendent to flout those statutory obligations. It is the say of respondent Nos. 1 and 2 that during the short tenure of approximately two months as Jail Superintendent, respondent No. 3 has observed the statutory functions more in breach than in compliance. Each liberal action has been taken by the petitioners as 'jail reforms'. The allegation of the State is that respondent No. 3 has done disservice to the jail discipline and safety. It is averred that during the past six months from the date of filing of the petition various Committees and important persons have visited the Sabarmati Jail and without any exception, all of them have expressed their satisfaction as to the conditions prevailing in the Sabarmati Central Jail and the State has heavily relied upon the Visitors' Register and the entries made therein for the last six months. It is submitted that during the period between December, 1996 and August, 2000 there were as many as six officers of I.P.S. rank were holding the post of Sabarmati Central Jail at different point of time. The steps taken by respondent No. 3 during his tenure as Superintendent of Sabarmati Central Jail cannot be termed as 'reforms' but some of the steps are contrary to the established norms, statutory provisions and Rules. In Paragraph 11 of the reply -affidavit the respondent -State has attempted to demonstrate and prove that continuation of respondent No. 3 as Superintendent of Sabarmati Central Jail will not be conducive to the public interest in general and in order of discipline of such a big Jail. Total seven instances have been mentioned in the first reply -affidavit in Paragraph 11, which read as under: