HASSAN KAMAL Vs. STATE OF J & K

JUDGEMENT

(1.) The instant appeal under clause 12 of the Letters Patent is directed against the judgment dated 13.12.2013 rendered by the learned writ court in SWP No. 2507 of 2013 along with connected applications up-holding order dated 27.09.2013 transferring the appellant from Police Station, Satwari to District Police Lines, Jammu. The impugned order further stipulates that respondent No. 4 (inadvertently mentioned as respondent No. 5 in the order), was to look after the work of SHO, Police Station, Satwari till further orders. The appellant failed to persuade the learned Writ Court to accept the prayer for quashing the order of transfer. It has been held that the transfer is an exigency of service and no employee could claim posting at a particular station of his choice. It is the employer, who is best judge of the needs of the administration and, accordingly, he has primacy to decide about the posting of its employees. The learned writ Court rejected the arguments that the Sr. Superintendent of Police, was not competent to pass the order of transfer and has placed reliance on Rule-18 of the Jammu & Kashmir Police Rules, 1960 (for brevity 'the Rules'). A reference has also been made to the communication of Police Headquarter dated 05.08.2013 (R-3), wherein the Director General of Police, has issued instructions that the appellant may not be posted in any significant/independent seat. The aforesaid communication was prompted by the fact that the appellant is involved in case FIR No. 33 of 2010 under Section 5(2) of the Prevention Act (for brevity 'the Act'), which is registered with the Police Station, Vigilance Organization, Kashmir. The allegations of mala fide leveled against respondent No. 3 have also not been accepted by the learned writ court. It is also appropriate to mention that the writ court has also placed reliance on the order dated 04.03.2013 passed by the Division Bench of this Court in WPPIL No. 9 of 2012 (Sheikh Mohd. Shafi and another v. Union of India and others), wherein the directions were issued to the State functionaries not to post an employee who had been facing serious charges of corruption in capital City like Jammu/Srinagar. Thus, directions were issued because one Shri Basheer Ahmed Khan, IAS continued to work as Deputy Commissioner, Srinagar, despite the fact that he was facing the charges of corruption in case FIR No. 8 of 2009 registered under the Act at Police Station, Vigilance Organization, Kashmir. Mr. Slathia, learned sr. counsel assisted by Mr. Ashish Sharma, Advocate for the appellant, has vehemently argued that the posting and transfer of the Police Officers is regulated by Rule 123 of the Rules. According to the learned counsel, it is only Inspector General of Police, who would be competent to transfer enrolled Police Officers or gazetted Officers. Mr. Slathia, has emphasized that the impugned order of transfer has been passed by the Sr. Superintendent of Police, Jammu, who is competent to transfer only Sub-Inspectors, Assistant Sub-Inspectors and all other officers working in lower ranks in the District. Learned counsel has submitted that incorrect view has been taken by the writ court which has erroneously placed reliance on the provision, which deals only with the general supervision expected from a Superintendent of Police.

(2.) Mr. Slathia, has then attacked the order of transfer by submitting that the order dated 05.08.2013 (R-3) passed by the Director General of Police, cannot legitimize the order of transfer that has been issued by the Sr. Superintendent of Police independently.

(3.) Mr. Gagan Basotra, learned Sr. AAG has, however, argued that the appellant is named in case FIR No. 33 of 2010 registered under Section 5(2) of the Act with Police Station, Vigilance Organization, Kashmir, therefore, such an officer cannot be deputed to discharge the duties of Station House Officer. In reply to the arguments that the transfer order had been passed by the Sr. Superintendent of Police, Mr. Basotra, learned Sr. AAG, has submitted that the Sr. Superintendent of Police has been guided by the Director General of Police and Inspector General of Police, Jammu vide order dated 05.08.2013 and, therefore, it cannot be said that the Sr. Superintendent of Police, has exercised his own powers/Thus, the order has been passed on the direction issued by the Director General of Police and Inspector General of Police. Mr. Basotra has emphasized that there is no necessity to make a reference to the order of the superior authority in the impugned order of transfer, if it can established, otherwise. According to the learned counsel the order dated 21.10.2013 is referable to the order dated 05.08.2013 (R-3) passed by the Director General of Police asking the Inspector General, Jammu Zone that the appellant was not to be posted in significant/independent office on account of his involvement in the case under the Act.