K.K. Maheshwari Vs. Union of India Through the Secretary and Others - Court Judgment

G. George Paracken:

1. This Original Application has been filed by the applicant Shri K.K. Maheshwari, who is an IPS Officer of 1980 batch, belonging to the AGMUT Cadre and is presently posted as Director General (Home Guards), GNCT, Delhi. His grievance is against the impugned Annexure A-1 order dated 11.09.2012 transferring him from Delhi to Arunachal Pradesh as Director General of Police and the impugned Annexure A-2 order dated 25.09.2012 by which his representation has been rejected by the respondents.

2.   According to the applicant, he has already been posted at two hard stations in the North-East, one in Arunachal Pradesh from 1984 to 1986 and then from 2008 to 2011 in Mizoram. Thus he spent three years in the hard areas as against the stipulated period of two years for officers in suppertime scale and above. He came back to Delhi from Mizoram only in March, 2011 and within less than a year, he is again transferred out of Delhi to Arunachal Pradesh causing great hardship to him. According to him, after a hard posting of three years, every officer is entitled to have a continuous posting in Delhi for at least two years and, therefore, he should not have been transferred from Delhi again particularly when he was there only for 11 months and he has less than two years of service left for his superannuation on 30.09.2014. He has, therefore, stated that the impugned order of transfer is against the guidelines for transfer/posting of IPS officers of joint AGMUT cadre which is as under

“The officers whose retirement is due within next two years may not be posted in the outlying segments. However, at the request of the officer, his transfer to an outlying constituent may be permitted even on the verge of retirement.”

He has also stated that his son is studying for a two years MBA Course in Delhi and he is not yet employed. Therefore, he needs his guidance and support not only for pursuing his MBA Course but also for his settlement.

3. He has, therefore, submitted the Annexure A-3 representation dated 13.09.2012 followed by the detailed Anneuxre A-4 supplementary representation dated 19.9.2012 to the Home Secretary, Govt. of India with the request to cancel his transfer to Arunachal Pradesh on the following grounds:-

“(i)  As per provision no. 7 of the guidelines, officers in the Rank of IG and above are required to serve 2 tenures of 2 years each - one tenure in hard area and one tenure in soft area outside Delhi. However, he has served more than the stipulated period of two years in hard areas. If his tenure details are compared with other officers, it would be seen that many of them have never served in North East.

(ii)  There is a principle of station seniority adopted in the matters of transfer and posting. He reported back to Delhi just less than a year and half back, i.e. in April, 2011 after spending 3 years in hard posting in Mizoram. There are many officers in ADG/DG rank, whose station seniority is much more than him but they have reported back to Delhi in year 2009/2010, yet they have been allowed to serve in Delhi. In accordance with the principles of natural justice, persons who have reported at Delhi earlier should be considered for posting outside Delhi first.

(iii)  Vide provision 9 (i) of the guidelines for transfer/posting of IAS/IPS, a panel of 3 officers is required to be made for the posts of Chief Secretary and DGP. But no such panel has been made in his case, as at no occasion he had been apprised about the same.

(iv) The post of DGP requires a thorough experience of field policing, maintenance of law and order, investigation and organized crime control, whereas his experience in field policing has been limited. He was not assigned any field posting during the period of his DIG, IG and ADG tenure. Arunachal Pradesh being a bordering State, requires a well experienced person as DGP but with his limited experience, he may not be able to do justice with assignment.

(v)  He was promoted as DGP just 15 days before. Many Officers who have been promoted as DGP earlier than him and have not done tenure in the North East in suppertime scale and above, can be considered for the present posting.

(vi) There are a number of precedence of transfer/posting where there has been no distinction maintained between DG and ADG. Officers of IG rank have been posted against ADG post, ADGs have been posted against DGs post and instances are also there where DGs have been posted on ADGs posts. Therefore, an officer of ADG rank can also be considered for this posting if no other officer of DG rank can be posted there.”

4. The learned counsel for the applicant Shri Arun Bhardwaj has also contended that the impugned transfer order has been issued in violation of the law laid down by the Apex Court in Prakash Singh and Ors. Vs. Union of India and Ors. (2006 (8) SCC 1) wherein it has been held that for the posting of DGP of a State, a panel of three officers has to be prepared by the UPSC and once he has been selected for the job, he should have a minimum tenure of at least two years. The relevant part of the said judgment is as under:-

“Selection and Minimum Tenure of DGP:

(2) The Director General of Police of the State shall be selected by the State Government from amongst the three senior-most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.

Minimum Tenure of I.G. of Police and other officers:

(3) 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 in-charge district and Station House Officer in-charge 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.”

5.   He has also relied upon the Order of the Calcutta Bench of the Tribunal in OA 70/AN/2012 - Shamser Bahadur Singh Deol Vs. Union of India and Ors. decided on 25.07.2012. The Applicant therein was an officer of AGMU Cadre of IPS posted as DG AandN Islands. He was challenging his transfer and seeking a direction to the Respondents to allow him to continue up to his superannuation on 31.01.2013. One of the questions which has been considered in the said order was whether the transfer and posting of the Applicant therein violates the directions of the Apex Court in para 31 (2) of the judgment in Prakash Singh and Others (Supra) quoted above. The Tribunal also held that since the erstwhile Union Territories of Arunachal Pradesh, Goa and Mizoaram were elevated as States in the year 1986-87 and they are governed by AIS (Joint Cadre) Rules, 1972, the transfer orders are to be issued by the Joint Cadre Authority and not the Union of India. The relevant part of the said Order is as under:-

“21.Both the applicant as well as the respondents have relied on the 2010 order. We have not been addressed on the question as to whether these guidelines are in accordance with the above decision in Prakash Singh (supra) and Rules framed under the AIS Act. We have not examined these questions. We only note that tenure of not less than two years is laid down in Prakash Singh (supra).

22.  The respondents have not brought on record the legislations enacted pursuant to the decision in Prakash Singh (supra). It shows that UPSC has to be consulted in matters of appointment of DG of a State. The decisions of Apex Court referred to in para 12 and 13 above includes Union Territory. This decision would accordingly apply to the appointment of the highest post in a Union Territory. Nothing is brought on record to show that the UPSC was consulted. The guidelines provide for consultation with the Chief Minister of a State also. Nothing is brought on record by the respondents to show that consultation has been held with the Lt. Governor of AandN Islands. Nothing is brought on record to indicate that JCA has decided the subsequent posting.

23.  We are not examining other contentions raised by the applicant as the OA can be decided otherwise. As regards the contention that he cannot be transferred as he is associated with the investigation and prosecution of certain cases, the decision of Apex Court in N.K.Singh - vs- Union of India [1994 (6) SCC 98] can be referred to. The Apex Court held

“The element of prejudice to public interest can be involved only in transfers from sensitive and important public offices and not in all transfers. Mere suspicion or likelihood of some prejudice to public interest is not enough and there must be strong unimpeachable evidence to prove definite substantial prejudice to public interest to make it a vitiating factor in an appropriate case unless it is justified on the ground of larger public interest and exigencies of administration. Such cases would be rare and this factor as a vitiating element must be accepted with great caution and circumspection.”

24.  The respondents have not brought any other material on record which may have weighed with them in transferring the applicant from AandN Islands.

25.  To sum up

a)   The JCA which is the competent authority under the rules to transfer such officers has not passed the order.

b)   The order is contrary to Rule 9(7) of IPS (Pay) Rules;

c)   He has been transferred without a post. Unless an officer working in this segment is superannuating this would require passing of proper order by competent authority in respect of one more officer.

26.  The Apex Court in S.R.Venkataraman - vs- Union of India [AIR 1979 SC 49] has held:

“Malice in law - is, however, quite different. Viscount Haldane described it in Shearer v. Shields, (1914) AC 808 as: “A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with the innocent mind: he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state mind is concerned, he acts ignorantly, and in that sense innocently”. Malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or fro want of reasonable or probable cause.”

27.  When this ratio is applied to the facts of this case, there is ‘malice in law in exercise of powers.

28.  The submission of respondents, that they were required to be heard before grant of ex parte interim relief, is contrary to Section 24 of A.T. Act. It is stated only to be rejected.

29.  In conclusion the transfer order of the applicant cannot be sustained as being contrary to law, being issued by incompetent authority. There is malice in law in exercise of power. It is quashed and set aside. We however, give liberty to the respondents to pass an order in accordance with law as explained above. No order as to costs”.

6.   The learned counsel has also filed MA 3102/2012 in this O.A seeking a direction to produce the record/files relating to (i) panel prepared; (ii) panel sent to Chief Minister, Arunachal Pradesh, (iii) the decision of the Chief Minister, Arunachal Pradesh; (iv) the original file containing the minutes of the JCA meeting of the JCA of the year 1989 as well as the record showing the station seniority of all officers available for posting at DGP, Arunachal Pradesh. He has also filed MA 3103/2012 for impleadment of Respondent No. 5 Govt. of National Capital Territory of Delhi through its Chief Secretary as necessary party.

7.   The respondents have filed their reply. They have submitted that in accordance with the service conditions of IPS officers of AGMU Cadre, the applicant is liable to serve at any of the constituents of AGMU Cadre which includes Arunachal Pradesh. In order to bring transparency to share onus of service in hard area by IAS/IPS officers of AGMU Cadre, the respondent Ministry has framed a policy guidelines for posting/transfer of officers. The said transfer policy envisages that an IPS officer is liable to serve 4 tenures in outlying segments, for a period of 5 years in soft areas and 6 years in hard areas. Out of which, two tenures in DIG and below scale and two tenures in IG level and above are to be done in outlying segments. The applicant admittedly has not served in soft area and has done 5 years of service in hard area.

8.   They have further stated that presently 8 IPS officers of AGMU cadre are in DGP grade. Out of those 8 officers, Shri Neeraj Kumar is functioning as CP Delhi and will retire in July, 2012, Shri S.B.S. Deol is serving in a hard area at Andaman and Nicobar Islands and is due for retirement in January, 2013, Smt. K.S. Deol after completing tenure as DG Arunachal Pradesh has been posted in Delhi recently and Shri Alok Kumar Verma has been posted as DGP Mizoram recently. Hence, in accordance with Para 9 (i) of the Transfer Guidelines which provides that posting of senior most police officer in the State may be decided with the approval of Home Minister in consultation with Chief Minister of State. Initially, a panel of three officers, namely, (i) Shri B.S. Bassi (IPS:1977), (2) Ms. Vimla Mehra (IPS:1978) and (3) Shri Ranjit Narayan (IPS:1978) was suggested to the CM Arunachal Pradesh. The CM Arunachal Pradesh did not accept any of them. Shri Ranjit Narayan was not accepted because he was due for retirement on 30.11.2013. Other two were due for promotion to the rank of Commissioner of Police and the next Commissioner of Delhi will have to be appointed from 1.8.2013. Hence, the CM expressed his consent for appointment of applicant as DG Arunachal Padesh as he is to retire only on 30.09.2014. Hence, in accordance with the policy, the applicant has been transferred to Arunachal Pradesh vide order dated 11.09.2012 as Director General of Police, Arunachal Pradesh which has been challenged by him.

9.   According to the Respondents, a Government servant is liable to be transferred in the same cadre, which is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post. In terms of his service conditions, his services can be utilized in any manner and anywhere in India. According to them, the applicant has not contended any mala fide action on the part of the respondents. In this regard, they have relied upon the following judgments of the Honble Apex Court:  (i)   Union of Inia and Ors. Vs. S.L. Abbas (1993 AIR 2444);

(ii)  State of UP Vs. Siya Ram (2004 (7) SCC 405);

(iii)  State of Punjab Vs. Joginder Singh Dhatt (AIR 1993 SC 2486);

(iv)National Hydroelectric Power Corporation   Ltd. Vs. Shri Bhagwan (2001 (8) SCC 574);

(v)  Rajendra Singh Vs. State of UP and Ors. decided on 31.07.2009;

(vi)Gujarat Electricity Board and Anr. Vs. Atmaram Sungomal Poshani (1989 SCR (2) 357);

(vii)State of UP Vs. Gobardhan Lal (2004 (11) SCC 402);

(viii) Kendriya Vidyalaya Sangathan Vs. Damodar Prasad Pandey and Ors. (JT 2004 (9) SC 185);

(ix)Rajendra Rao Vs. Union of India (1993 (1) SCC 148);

(x)  State Bank of India Vs. Anjan Sanyal (2001 (5) SCC 508);

(xi)B. Varadha Rao Vs. State of Karnataka (AIR 1986 SC 1955);

(xii)Shilpi Bose Vs. State of Bihar (AIR 1991 SC 532);

(xiii) Union of India Vs. N.P. Thomas (AIR 1993 SC 1605);

(xiii) Union of India and Ors. Vs. H.N. Kirtania (1989 SCR (3) 397);

(xiv) Bank of India Vs. Jagjit Singh Mehta (1992 (1) SCC 306);

(xv)State of Haryana Vs. Kashmir Singh (2010 (13) SCC 306);

(xvi) Chief General Manager (Telecom) Vs. Shri Rajendra Ch. Bhattacharjee (1995 SCC (2) 532);

(xvii) Mohd. Masood Ahmad Vs. State of UP and Ors. (2007 (11) SCALE 271);

(xviii) Union of India and Anr. Vs. N.P. Thomas (AIR 1993 SC 1605).

10.  They have, therefore, prayed that the O.A. being devoid of any merit deserves to be dismissed.

11.  We have heard the learned counsel for the applicant Shri Arun Bhardwaj and the learned counsel for the respondents Shri R.N. Singh. We have also considered the documents available on record and the judgments relied upon the respective parties. The main contention of the applicant/his counsel Shri Arun Bhardwaj is that the transfer of the Applicant as the Director General of Police, Arunachal Pradesh is in violation of the law laid down by the Apex Court in Prakash Singh and Ors. (Supra) and the order of the Calcutta Bench of this Tribunal in Shamser Bahadur Singh Deol (Supra). In our considered view, the said contention of the Applicant is totally misplaced and misconceived. Prakash Singhs case is with regard to the selection of the Director General of Police of the State from amongst the three senior-most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission. Here the case is different. The Applicant has already been selected as Director General of Police. There are 8 such officers available. The Applicant is one among them. He is now presently posted as Director General, Home Guards, Delhi. His case is that of his transfer from Delhi to Arunachal Pradesh and not of any promotion as in Prakash Singhs case (supra). Therefore, there is no violation of the law laid down by the Apex Court in the said case, as alleged by the applicant/his counsel. Again, in the case of Shri Shamser Bahadur Singh Deol (supra), he was an Additional Director General of Police with the Andaman and Nicobar Islands. His post was temporarily upgraded as Director General of Police. Thereafter, he was transferred to Delhi. The Calcutta Bench of this Tribunal held that his transfer was in violation of the judgment of the Apex Court in Prakash Singhs case (Supra) which says that “the Director General of Police of the State shall be selected by the State Government from amongst the three senior-most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation.” In the case of the Applicant, there is no question of selection as Director General of Police from amongst the three senior-most officers empanelled for promotion to that rank by the UPSC. The Applicant is already an officer promoted to the post of Director General of Police. Again the said order says that the AIS (Joint Cadre) Rules will apply and the Joint Cadre Authority (JCA) shall determine the names of the members of the AIS who may be required to serve in connection with the affairs of each of the Constituent State and the purpose for which their service shall be available to Government. In our considered view the aforesaid contention is also not applicable in the case of the Applicant who belongs to AGMU Cadre governed by the guidelines for transfer/posting of IAS/IPS officers of Joint AGMU Cadre 2010. Para 9 (1) of the said guidelines deals with the transfer/posting Policy as it has to be operated as under:-

“(i) The transfer and postings of Chief Secretary/Administrator and the senior most police officer heading the police force in State/UT may be decided with the approval of Home Minister in consultation with Chief Ministers of States concerned. A panel of 3 names can be suggested to Chief Ministers of the States, who may convey their response with reasons thereof on the panel within a period of 15 days. After considering the response received from the Chief Minister, the MHA may issue the orders for posting of Chief Secretary/Administrator/Director General of Police. In case no response is received within a period of 15 days, the MHA may decide the matter at its own level. The transfer and posting of the officers may be decided at the level of Home Secretary except in the case of Junior Scale officers, whose transfer and posting may be decided by Joint Secretary (UT)”.

Para 9 of the said guidelines also says that “Notwithstanding anything contained in this policy, Government (MHA) has the absolute right, if necessary, to transfer or post any officer to any constituent at any time on administrative grounds/in public interest”. It is evident from para 3 of the said guidelines that the transfer and posting Policy has been formulated after the approval by the JCA and the said para reads as under:-

“JCA decisions

3 (i) Originally, States and UTs serviced by the Cadre were classified into 3 categories, viz. ‘A, ‘B and ‘C as indicated below :

A - Delhi

B - Soft Areas - Goa and UTs of Chandigarh and Puducherry.

C - Hard Areas - Arunachal Pradesh, Mizoram and UTs of Andaman and Nicobar Islands, Daman and Diu and Dadra and Nagar Haveli and Lakshadweep

Delhiand its equivalent

(ii) As per the meeting held on 6th June, 1994 JCA approved that the following periods will be excluded from the calculation spent outside Delhi segment:

(a) Period spent on long leave, including study leave during a posting outside Delhi.

(b) Period spent on a training course of duration longer than six weeks.

(c) Period spent at a station outside the cadre.

(iii) JCA also approved that the tenure of the Supertime Scale officers posted in the outlying territories should be three years instead of two years. The JCA stressed the need to implement the disincentives laid down in the existing guidelines in letter and spirit.

(iv) No further changes to the transfer posting policy were made by JCA However, in 2008, the UT of Daman and Diu and Dadra and Nagar Haveli was declared as ‘soft area and shifted from ‘C to ‘B category.”

It is also clear that the JCA can take any further decision related to issues regarding transfer and postings. Para 13 of the said guidelines is relevant in this regard and it is reproduced as under:-

“13.The JCA meetings should be held from time to time or on the request of any constituent to address the issues relates to transfer and postings.”

12.  Therefore, in our considered view, the Respondents have issued the transfer order of the Applicant taking into consideration of the "Guidelines for transfer/posting of IAS/IPS officers of Joint AGMU Cadre 2010” which recognizes the power of the Government (MHA) to transfer or post any officer to any constituent at any time on administrative grounds/in public interest. After all public interest is of the paramount importance in governance and the individual/private interest has to give way to it. Moreover, as held by the Apex Court in the case of S.L. Abbas (supra), the guidelines do not confer upon the Government employee any legally enforceable right. But, no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Further, the appropriate authority must also consider the representation, if any, made by the Government employee with respect to his transfer, having regard to the exigencies of administration. Both the above requirements have been fulfilled in the case of the applicant.

13.  We, therefore, do not find any merit in the Original Application and accordingly the same is dismissed. The interim order passed by this Tribunal in the case on 3.10.2012 and continued from time to time is hereby vacated. Since the reply affidavit filed by the respondent is very much clear and unambiguous, it is not necessary for us to call for any file/records from the respondents. We also do not find the necessity of impleading the Govt. of NCT of Delhi for the adjudication of this O.A. Hence, both MA No.3102/2012 and MA No. 3103/2012 are also dismissed.

14.     There shall be no order as to costs.