Police officer attending marriage of son of criminal whether liable to be transferred in public interest?

Gujarat High Court, earlier this month refused to interfere with a Transfer order passed against three Police Constables on the ground that they were found attending a marriage reception of the son of a noted bootlegger. Holding that such a transfer order was in Public Interest, Justice J.B.Pardiwala said “If   a   police constable is found to be in company of criminals or   persons   accused   of   having   committed   any offence then his transfer from that place must be held to be in the public interest.”

Public interest demands that an officer or an employee posted at a particular post, must inspire confidence, not only among his fellow employees   and superior   authorities,   but   also among   the   members   of   the   public, the Court said. The Court further held whatever furthers the general interest of the Community, as opposed to the particular interest of the individuals, must be regarded as public purpose. The court said “‘In the context of public service it would mean the interest of public as opposed to the personal, political  or other extraneous interest.”

The Court was considering the Writ petition challenging transfer orders moved by three Police Constables. Counsel for the petitioner had argued that attending the wedding reception has nothing to do with the public interest and the word “Public Interest” used in the orders of transfer is vague. Rejecting those contentions, the court said that police constables attending the reception“necessarily implies the close proximity of the police constables with a noted bootlegger”. The court further said that it is desirable that such police constables should be kept at a distance so that their position is not abused by criminals.

Relying on the decision by Gujarat High Court in Haroon Yusufbhai Kadiwala   V.   Director   General   of   Police   2011 (3) GLH(UJ) 8 the Counsel also said that the transfer of a head constable  from   one   district   to   the   other   amounts   to  deputation   and   can   be made   only   on  administrative grounds in cases of emergency, which is not the case here. Answering that aspect the Court held “The words in Article   154(3)(D) “unless such a transfer is considered  necessary”   should   not   be   construed   as   the  necessity of transfer under Section 28 alone.”  The court added “It   is   the   existence   of   the   circumstances      constituting the public interest which is to be seen by the Court, once the circumstances are shown.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8463 of 2015

HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 06/08/2015



1. Since   the   issues   involved   in   all   the
captioned   writ­applications   are   the   same   those
were heard analogously and are being disposed of
by this common judgment and order.
2. By these writ­applications under Article 226
of   the   Constitution   of   India,   the   petitioners
serving   as   Police   Constables   seek   to   challenge
the   impugned   orders   dated   24th  April,   2015
transferring the petitioners to other districts.
3. All   the   petitioners   are   serving   as   Police
Constables. Before the impugned orders came to be
passed they all were serving in different Police
Stations   in   the   city   of   Ahmedabad.   They   are
aggrieved by the order of transfer passed by the
respondents Nos. 2 and 3, dated 24th  April, 2015
outside the district of Ahmedabad. 
4. It appears on plain reading of the orders of
transfer that the same were passed in the public
interest.
5. Mr.  Goswami,   the  learned   advocate  appearing
for the petitioners submitted  that the impugned
orders of transfer are contrary to the provisions
of the Section 28(1) of the Bombay Police Act and
rule   152   of   the   Gujarat   Police   Manual.   He
submitted   that   an   officer   of   the   cadre   of   a
constable   appointed   in   one   district   cannot   be


transferred   to   any   other   district.   The   only
exception to this rule is the case of emergency
wherein   more   force   is   needed   at   the   place   of
transfer to meet with any exigencies. Mr. Goswami
further submitted that the law in this regard is
well   settled   in   the   case   of   Haroon   Yusufbhai
Kadiwala   V.   Director   General   of   Police   and
another reported in 2011 (3) GLH(UJ)8. Relying on
the   said   decision   of   this   Court   rendered   by   a
Division   Bench   (to   which   I   was   a   party)   he
submitted that the transfer of a Head Constable
from   one   district   to   the   other   amounts   to
deputation   and   can   be   made   only   on
administrative grounds in cases of emergency. 
6. Mr.   Goswami   submitted   that   although   the
orders of transfer do not speak anything further
then   the   public   interest   yet   the   reason   for
passing   such   orders   of   transfer   is   that   the
petitioners   had   attended   the   marriage   reception
of the son of a noted bootlegger, namely Kishor
Sinh   @     Langdo   Lalsinh   Rathod.   Therefore,
according to Mr. Goswami, the transfer could be
termed as punitive in nature which is otherwise
not permissible in law. 
7. On the other hand, this application has been
vehemently opposed by Mr. Rutvij Oza, the learned
AGP   appearing   for   the   State.   He   submitted   that

the respondents Nos. 1 and 2 committed no error
in passing the impugned orders of transfer. 
8. Mr. Oza has placed reliance on the affidavitin­reply
  filed   by   Shri   R.J.   Savani,   D.I.G.   at
present serving as the Additional Commissioner of
Police   (Administration)   Ahmedabad   city.   In   the
affidavit­in­reply   the   following   averments   have
been made:­
“8. I say and submit that it is necessary to draw
this  Hon’ble   Courts   attentions  on   the   facts   which
were considered before passing of transfer order for
the   petitioners   and   therefore   brief   facts   are   as
under:
A.   The   petitioner   had   attended   the   marriage
reception on 15.02.2015 of the son of Kishorshingh @
Kishor Langda who is a well known bootlegger. There
are   in   all   23   probibition   offences   registered
against   Kishorsinh   and   other   11   offence   are   also
registered   and   18   times   PASA   orders   were   passed
against   him.   As   per   the   record   of   the   deponent,
Kishorsinh is a ‘listed’ offender as per the office
record as the prohibition offences were registered
under   the   jurisdiction   of   the   Commissionarate   of
Ahmedabad. Annexed herewith and marked as AnnexureR­1
  (colly)   are   copies   of   list   of   offences
registered against Kishorshinh along with the list
of PASA orders. 
B. In pursuance to the presence of the petitioners
at reception of son of Kishorsinh on 15.02.2015, a
news   article   appeared   on   18.02.2015   that   Police
Personal had attended the marriage reception of the
son of a proclaimed and ‘listed’ bootlegger. On the
same day Commissioner of Police, Ahmedabad has taken
a   serious   view   and   immediately   ordered   an   inquiry
into   the   matter.   The   inquiry   was   handed   over   to
Deputy Commissioner of Police (zone­1), Ahmedabad.
C.   Thereafter,   Deputy   Commissioner   of   Police,
Ahmedabad   has   submitted   preliminary   report   to   the

Commissioner   of   Police,   Ahmedabad.   On   receipt   of
such report certain further details were called for
and the same were provided and finally on 20.04.2015
the final report came to be filed. After receiving
the   inquiry   reports,   the   Commissioner   of   Police,
Ahmedabad   forwarded   confidential   report   to   the
Additional Chief Secretary, Home Department, Gujarat
State through Director General and Inspector General
of Police, Gujarat State on 22.04.2015. In that the
Director General of Police, Gujarat State has passed
an   order   of   transfers   from   Ahmedabad   and
Gandhinagar.   The   same   order   was   also   sent   to
Commissioner of Police, Ahmedabad for communicating
to   the   petitioner,   who   are   serving   under   the
Commissioner   of   Police,   Ahmedabad.   Annexed   hereto
and marked as Annexure – R­II is the copy of order
passed   by   office   of   the   Director   General   and
Inspector General of Police, Gujarat State. 
9. I further say and submit that under Section 23 of
the   Bombay   Police   Act,   1951,   Commissioner   or
Inspector   General   of   Gujarat   State   has   powers   to
issue transfer orders, when any subordinate to him
is generally found to be neglecting his duties and
that   the   person   is   not   doing   his   duty   within   the
norms   of   discipline   of   the   department.   Relevant
provision of section 23(h) is reproduced herein for
ready reference of this Hon’ble Court. 
“Generally, for the purpose of rendering the police
efficient and preventing abuse or neglect of their
duties.”
10. I say and submit that the Director General and
Inspector   General   of   Gujarat   State   has   powers   to
transfer   in   ordinary   circumstances  as   well   as   has
powers to transfer from one place to another in the
State.   I   further   produce   the   relevant   abstract   of
provision   viz.   Section   154(3)(a)   and   154(3)(D)   of
Gujarat Police Manual, 1975, Volume­1 as under for
ready reference. 
Section 154(3)(a)
“No Government servant of the gazetted rank and of
the   non­gazetted   rank   belonging   to   the   Class­III
executive   post/service,  should   be   transferred   from
one station to another until he has completed five
years service at one and the same station or unless
his   transfer   becomes   necessary   earlier   in   the
following circumstances:­
(i) When a Government servant is to be promoted to
higher post;
(ii) When a Government servant reverts from a higher

to   a   lower   post   and   is   required   to   be   given   a
posting; and 
(iii) When exigencies of public service so require,
and/or as disciplinary measure.”
Section 154(3)(d)
“No   Government   servant   belonging   to   class­III
executive   as   well   as   ministerial   post/service   or
Class­IV should be transferred from one district to
another   unless   such   a   transfer   is   considered
necessary by the competent authority”.
Thus,   in   view   of   Section   154(3)(a)(iii),   the
competent authority has the powers to transfer, when
there is an exigency of public service requirement
and/or a transfer can also be made as a disciplinary
measure. Further, it is stated that it is clear from
the   above   mentioned   Section   154(3)(d)   that,   an
officer   can   be   transferred   from   one   district   to
another   if   it   is   considered   necessary   by   the
competent   authority.   And   therefore,   a   combined
reading of Section 154(3)(a)(iii) and Section 154(3)
(d) gives sufficient powers to the authority to make
inter   district   transfers,   when   the   necessary
circumstances arises as stated above. 
11. I respectfully say and submit that the orders
of   transfers   are   passed   in   consonance   with   the
Gujarat   Civil   Service   (Conduct)   Rules,   1971
specifically   under   Rule­3(I)   (1,2   and   3).   The
aforesaid   Rules   have   been   violated   by   the
petitioners   herein   and   therefore   rightly   Director
General   and   Inspector   General   of   Police,   Gujarat
State has ordered the transfer of petitioners. Rule­
3   of   the   Gujarat   Civil   Services   (conduct)   Rules,
1971   is   produced   herewith   for   ready   reference   of
this Hon’ble Court. Annexed herewith and marked as
Annexure­R­III   is   the   copy   of   abstract   from   the
Gujarat Civil Service (Conduct) Rules, 1971 of Rule­
3. 
13.   I   state   and   submit   that   Home   Department   of
Gujarat Government has passed Government Resolution
BDL/1093/171/SH   on   29.07.1993   regarding   powers   of
the   Director   General   of   Police,   Gujarat   State   to
transfer the officers out side the district. Annexed
herewith and marked as Annexure­R­IV is the copy of
Government Resolution dated 29.07.1993.
14.   I   respectfully   state   that   the   petitioner   are
relying on decision of this Hon’ble Court passed in
Haroon Yusufbhai Kadiwala V/s. Director General of
Police and Another reported in 2011(3) GLH (U.J.) 8

is not applicable to the facts of the present case
and also the other decisions passed by this Hon’ble
Court which was confirmed by Division Bench of this
Hon’ble Court, facts of the aforesaid decisions are
all together on a different footing and therefore I
request this Hon’ble Court to distinguish the facts
of   the   present   case   from   the   facts   of   the   cases
cited by the petitioner. I further submit that by
order of the transfer of the petitioners does not
disturb   the   seniority   of   the   petitioners   and   the
cadre of the petitioners are also not going to be
changed   and   therefore   the   decision   relied   by   the
petitioners are not applicable in the present case. 
15. In the facts and circumstances stated above, the
present petition is required to be dismissed.”
9. Thus, the plain reading of the affidavit­inreply
would suggest that the transfers had to be
affected   as   it   was   found   that   the   petitioners
being police constables had attended the wedding
reception   of   the   son   of   a   noted   bootlegger
against whom there are number of criminal cases
registered. The stance of the respondents is that
with   a   view   to   maintain   the   discipline   and
efficiency in the police force the transfers had
to be affected. 
10. Having   heard   the   learned   counsel   appearing
for   the   parties   and   having   gone   through   the
materials on record, the only question that falls
for my consideration is whether the action of the
respondents in transferring the petitioners from
Ahmedabad to other districts could be faulted on
any grounds. 

11. Before   adverting   to   the   rival   submissions
made on both the sides, it is necessary for me to
look into few provisions of law.
12. Sections 23 and 28 of the Bombay Police Act,
1951 reads as under:­
“23.   Framing   of   rules   for   administration   of   the
Police.­  Subject   to   the   orders   of   the   State
Government   the   Commissioner   in   the   case   of   the
Police Force allocated to [****] areas for which he
has been appointed and the Inspector­General in the
case of the Police Force allocated to other areas
may make rules or orders not inconsistent with this
Act or with any other enactment for the time being
in force – 
(a) regulating the inspection of the Police Force
by his subordinates;
(b)   determining   the   description   and   quantity   of
arms,   accountrements,   clothing   and   other
necessaries to be furnished to the Police;
(c) prescribing the places of residence of members
of the Police Force;
(d) for institution, management and regulation of
any   Police   fund   for   any   purpose   connected   with
police administration;
(e)   regulating,   subject   to   the   provisions   of
section   17,   the   distribution,   movements   and
location of the Police;
(f)   assigning   duties   to   Police   Officers   of   all
ranks and grades, and prescribing­
(i) the manner in which, and 
(ii)   the   conditions   subject   to   which,   they   shall
exercise   and   perform   their   respective   powers   and
duties;
(g) regulating the collection and communication by
the Police of intelligence and information;
(h)   generally,   for   the   purpose   of   rendering   the
Police efficient and preventing abuse or neglect of
their duties.”
“28. Police Officer to be deemed to be always on
duty and to be liable to employment in any part of

the State.­
(1) Every   Police   Officer   not   on   leave   or   under
suspension  shall  for all purposes of this Act be
deemed to be always on duty, and any Police Officer
or any number or body of Police officers allocated
for duty in one part of the State may, if the State
Government or the Inspector­General so directs, at
any time, be employed on Police duty in any other
part of the State may, if the State Government or
the Inspector­General so directs, at any time, be
employed on Police duty in any other part of the
State for so long as the services of the same may
be there required.
(2) Intimation of proposed transfers to be given by
the   Inspector   General   to   the   Commissioner   and
District   Magistrate.­Timely   intimation   shall,
except   in   case   of   extreme   urgency,   be   given   to
[*****]   the   District   Magistrate   by   the   Inspector
General of any proposed transfer under this section
and except, where secrecy is necessary the reasons
for the transfer shall be explained; whereupon the
officers aforesaid and their subordinate shall give
all reasonable furtherance to such transfer.”
13. Rule 152 of the Gujarat Police Manual, 1975
Volume­I reads as under:­
“152. Inter District Transfers in emergencies. – 
(1)   Under   Section   28(1)   of   the   Bombay   Police   Act,
1951, the Inspector General of Police is authorized
to make, whenever necessary, inter­district transfers
of   police   establishment   without   reference   to
Government.
(2)   In   accordance  with   the   provisions   contained   in
section   28(2)   of   the   Bombay   Police   Act,   1951,   the
Inspector General of Police should, except in cases
of   extreme   urgency   give   timely   initmation   to   the
District   Magistrates   concerned   whenever   he   proposes
to   transfer   or   redistribute   the   Police   disposition
obtaining in Districts.”
14. Article   154   of   the   Gujarat   Police   Manual,
1975 Volume­I reads as under:­
“154. Instructions regarding transfers. – 
(1)   Frequent   transfers   cause   great   personal   and
domestic   inconvenience   to   Officers   and   result   in
considerable   cost   to   Government   on   account   of

traveling   allowance,   etc.   They   also   dislocate
administrative   work   and   render   it   difficult   to   fix
responsibility   in   regard   to   inordinate   delays   and
other   lapses   in   the   matter   of   the   discharge   of
official duties.
(2)   The   authorities,   while   submitting   proposals   to
Government/Inspector General/Deputy Inspector General,
for   postings,   transfers,   etc.,   of   officers,   must
scrutinize all such proposals with a view to avoiding
frequent   transfers,   officers   being   kept   at   the   same
station, as far as possible, for at least five years.
(3)   The   following   principles,   in   general,   should   be
observed while effecting transfers:­
(a) No Government servant of the gazetted rank and of
the   non­gazetted   rank   belonging   to   the   Class   III
executive post/service, should be transferred from one
station to another until he has completed five years
service   at   one   and   the   same   station   or   unless   his
transfer   becomes   necessary   earlier   in   the   following
circumstances:­
(i) When a Government servant is to be promoted to a
higher post;
(ii) When a Government servant reverts from a higher
to a lower post and is required to be given a posting;
and 
(iii)  When   exigencies   of   public   service   so   require,
and/or as disciplinary measure.
(b) Even after the completion of five years’ service
at   one   and   the   same   station,   there   would   be   no
objection   to   his   continuing   there,   if   the   competent
authority so considers on administrative grounds. 
(c)   No   Government   servant   belonging   to   Class   III
ministerial   post/service   or   Class   IV   should   be
transferred   from   one   station   to   another   unless   his
transfer   is   considered   necessary   by   the   competent
authority. 
(d)   No   Government   servant   belonging   to   Class   III
executive as well as ministerial post/service or Class
IV should be transferred from one district to another
unless such a transfer is considered necessary by the
competent authority.
(e) Persons should not be posted repeatedly to one and
the   same   district   or   place   i.e.   persons   who   have
worked in a particular area should not again be posted
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there without a reasonable lapse of time. 
(f) If any person proceeds on leave before serving for
nearly   five   years   in   the   same   charge,   he   should
normally be reposted in the same charge on return from
leave. 
(g) Normally large scale transfers should be avoided
in the middle of the school term and should be made as
far as possible in October or April of the year except
under   unavoidable   circumstances   and   in   exceptional
cases. 
(h)   If   after   the   issue   of   the   transfer   orders,   a
person proceeds on leave, he should be reposted to the
same   post   on   expiry   of   his   leave   and   his   vacancy
should be filled up by local arrangements. 
(i) Transfers should be effected in such a way that
they   will   entail   minimum   expenditure   on   travelling
allowance   and   in   keeping   with   administrative
requirements. 
(j) If a person, who is transferred by the Inspector
General, applies for leave, it should not be granted
to   him   without   prior   permission   of   the   Inspector
General   of   Police.   In   exceptional   cases   such   as
serious illness, etc. such persons may be allowed to
remain on leave but a report should be submitted to
the Inspector General immediately stating the reasons
for granting the leave. 
(k) Transfers to and from the Criminal Investigation
Department   of   Officers   belows   the   rank   of   SubInspectors
  will   be   arranged   between   the   Deputy
Inspector   General,   Criminal   Investigation   Department
and   the   Commissioner   of   Police/Superintendent   of
Police concerned. 
(l)   Transfers   of   Head   Constables   and   Constables
between  one   District  or   Railway  and   another,  may   be
effected by mutual agreement between the Commissioner
of Police/Superintendents of Police concerned. 
(m) In the case of such Head Constables attached to
the   Police   Training   School   as   are   borne   on   the
strength   of   Junagadh   District,   any   changes   required
will   be   arranged   between   the   Principal,   Police
Training   School   and   the   Superintendent   of   Police,
Junagadh. 
(n)  Clerks  should  be  transferred  from   the   office  of
the   Superintendent   of   Police   to   those   of   SubDivisional
  Police   Officers   and   the   Headquarters   in
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rotation.   If   this   be   not   entirely   feasible,   the
‘Daftars’   of   Clerks   should   be   changed   every   three
years. Cashiers should however be changed, every year.
(4)   No   transfers   of   Officers   should   be   made   or
suggested   on   account   of   unsatisfactory   work.   If   an
officer   is   not   upto   the   mark,   it   is   for   the
Superintendent  of  Police  to   set   him   right  and  bring
him  up  to   the   required  standard.  The  correct  course
would  be  for  the  Superintendent  of   Police  to  submit
proposals   through   the   Deputy   Inspector   General
concerned   regarding   the   reversion   of   the   officer   in
question,   if   he   is   officiating   and   to   hold
departmental   proceedings   for   inefficiency   if   his   is
permanent. 
(5)   Applications   from   the   relatives   of   Policemen   or
outsiders,  requesting Government  on  their  behalf  for
transfers   should   discouraged.   Superintendents   of
Police  should,  however,  while  ordering  the   transfers
of   Constables,   give   sympathetic   consideration   to
genuine domestic difficulties.
(6)   Whenever   an   application   is   received   from   a
Government   servant   requesting   for   his   transfer,   the
said application should be entered into rigistere to
be maintained in all offices in Form No.8 in Appendix
I. This register should be put up from time to time
before the Competent Authority who should consider the
applications   entered   in   such   register   whenever
transfers are being considered.”
15. Rule   3(1)   of   the   Gujarat   Civil   Services
(conduct) Rules, 1971 reads as under:­
“3. General :­
(1) Every Government servant shall at all times ­
(i) maintain absolute integrity.
(ii) maintain devotion to duty, and
(iii) do nothing which is unbecoming of a Government
servant.
*Explanation :­ A Government servant, who habitually
fails to perform a task assigned to him within the
time   set   for   the   purpose   and   with   the   quality   of
performance expected of him, shall be deemed to be
lacking   in   devotion   to   duty   within   the   meaning   of
clause (ii).
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*  [Inserted  vide   Govt.  Notification  GAD   No.  GS­88­
72/CDR/1087/U.O.   12/Inq.   Cell,   dated  21­12­
1988.]”
16. Section 28 of the Bombay Police Act and Rule
153 of the Gujarat Police Manual, 1975 fell for
the   consideration   of   a   Division   Bench   of   this
Court   in   the   case   of   Haroon   Yusufbhai   (supra).
The Court explained the same in paragraphs Nos. 5
to 10 as under:­
“5.  It  would  be  expedient  to  quote  Sec.28  of  the  Bombay
Police Act, 1951, which reads as under:
"28. Police Officer to be deemed to be always on duty
and   to   be   liable   to   employment   in   any   part   of   the
State.­(1) Every Police officer not on leave or under
suspension shall for all purposes of this Act be deemed
to   be   always   on   duty,   and   any   Police   Officer   or   any
number or body of Police officers allocated for duty in
one part of the State may, if the State Government or
the   Inspector­General   so   directs,   at   any   time,   be
employed on Police duty in any other part of the State
may, if the State Government or the Inspector­General
so directs, at any time, be employed on Police duty in
any other part of the State for so long as the services
of the same may be there required."
6. We may also reproduce Rule 152 and 153 of the Gujarat
Police Manual. Rule 152 reads as under:
"152.   Inter   District   Transfers   in   emergencies.   ­   (1)
Under section 28(1) of the Bombay Police Act, 1951, the
Inspector   General   of   Police   is   authorised   to   make,
whenever   necessary,   inter­district   transfers   of   police
establishment without reference to Government.
(2)   In   accordance   with   the   provisions   contained   in
section   28(2)   of   the   Bombay   Police   Act,   1951,   the
Inspector   General   Police   should,   except   in   cases   of
extreme urgency give timely intimation to the District
Magistrates concerned whenever he proposes to transfer
or   redistribute   the   Police   disposition   obtaining   in
Districts."   Clause   (1)   and   sub­clause   (a)   reads   as
under:
"153. Ordinary transfers of Police Officers, men and
Ministerial staff. ­ Transfers may be effected as
follows:­
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"(1)(a)   The   Inspector   General   may   transfer   Assistant
Commandants,   Adjutants   and   Quarter   Master   (Deputy
Superintendents of Police) from one Group to the other
Assistant   Public   Prosecutors,   Ministerial   staff   and
members of the Police force of and below the rank of
Police   Inspectors,   from   one   place   to   another   in   the
State; al Inspectors, Assistant Public Prosecutors and
Sub­Inspectors   to   and   from   Criminal   Investigation
Department and the Police Training School."
7.   On   perusal   of   various   provisions   of   the   Gujarat
Police   Manual   and   the   Bombay   Police   Act,   and   more
particularly, Cl. (1) of Sec. 28 of the Bombay Police
Act which states that every Police officer not on leave
or under suspension shall for all purposes of this Act
be deemed to be always on duty, and any Police Officer
or any number or body of Police officers allocated for
duty   in   one   part   of   the   State,   may,   if   the   State
Government or the Inspector­General so directs, at any
time, be employed on Police duty in any other part of
the State may, if the State Government or the InspectorGeneral
so directs, at any time, be employed on Police
duty in any other part of the State for so long as the
services of the same may be there required.
8. A plain reading of the Section itself suggests that
the   appellant   petitioner   could   have   been   transferred,
but the only aspect which needs to be considered is as
to for how long the appellant­petitioner would be kept
at that particular place on transfer. We feel that the
State Government should in cases like the present one
should bear in mind and also clarify as to how long the
services   of   the   appellant­petitioner   would   still   be
required at the place where he has been transferred so
that he may not have to stay at the place of deputation
for   an   indefinite   period   of   time.   Secondly,   we   would
also   like   to   clarify   that   the   appellant   petitioner's
lien   in   the   original   parent   cadre   would   also   be
protected.   So   far   as   seniority   of   the   appellantpetitioner
is concerned, it has been well accepted in
the Police Manual that the same will not be disturbed.
9. Our attention has also been drawn to Rule 153, more
particularly 153(1)(a) where the emphasis has been laid
on the words "and members of the Police force of and
below the rank of Police Inspectors, from one place to
another in the State". Taking into consideration all the
relevant provisions of law, we are of the opinion that
the transfer of the appellant petitioner as an Unarmed
Head   Constable   originally   posted   at   Khatodara   Police
Station, Surat to Sabarkantha District and placed at the
disposal   of   Superintendent   of   Police,   Sabarkantha   at
Himmatnagar,  amounts  to  deputation,  because  deputation
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is also a transfer outside the cadre, and in no manner
contrary to law or the provisions which have been relied
upon.
10. We, therefore, deem it fit and proper to observe
that   under   Rule152,   which   provides   for   inter­district
transfers in emergencies and the other Rule relating to
transfer   on   the   administrative   grounds,   in   case   of
emergencies, it is desirable that the authorities should
clarify   as   to   how   long   the   services   of   a   Head
Constable/Constable   are   required   to   meet   with   the
exigencies at the transferred place, and as soon as the
emergent administrative exigencies cease to exist at the
transferred   place,   they   must   be   sent   back   to   their
parent   cadre.   With   these   observations,   the   Letters
Patent Appeal is disposed of accordingly with no order
as to costs.”
17. The decision of the Division Bench referred
to   above   was   later   on   considered   by   a   learned
Single   Judge   of   this   Court   in   the   case   of
Hadmatsinh Naharsinh Sisodiya v. State of Gujarat
reported in 2014 (1) GLH 285, wherein the learned
Single Judge observed as under:­
“23.   Honble   Division   Bench   has   clearly   observed
that it is desirable that the authorities should
state   as   to   how   long   services   of   constable   are
required to meet with the exigency at the place of
transfer   and   as   soon   as   emergent   administrative
exigency  is  over  at  the  place  of  transfer,  they
must be sent back to their parent cadre.
24. Therefore, as observed by the Honble Division
Bench  in context  of provisions  of Section  28 of
the   Act   read   with   Rule   152   of   the   Manual,   the
competent   authority   when   decided   to   exercise
powers under the above provisions, had to clearly
provide as to how long services of the petitioners
were   required   at   the   place   of   transfer   even   if
such   transfer   was   made   in   public   interest.   The
transfer of the petitioners are not ordinary. They
are   made   under   Section   28(1)   of   the   Act.
Therefore,   such   transfers   could   never   be   on   any
other   ground   except   for   what   is   provided   in
Section 28(1) of the Act. 
25.   In   the   present   case,   the   transfer   of   the
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petitioners was not to meet with any exigency or
in public interest prevailed at transferred place
but the same was only on account of hooch tragedy
in connection with which the petitioners have been
departmentally punished. Such grounds for transfer
are not recognized, envisaged or intended by the
legislature in the provisions of Section 28 of the
Act   read   with   Rule   152   of   the   Manual.   When   the
transfer   of   the   petitioners   are   made   under
statutory   provision,   even   though   the   public
interest   demanded   or   warranted   taking   of   any
action against the petitioners, the same would not
weigh and permit the concerned authority to defy
the   statutory   provision.   Even   apart   from   this,
transfer   of   the   petitioners   could   not   have   been
either for unlimited period or for period of five
years at a stretch. This very fact of providing no
time limit in order of one of the petitioners and
five years in the case of another petitioner would
lend support to the case of the petitioners that
their   transfer   was   not   for   any   requirement   or
reasons as provided in Section 28 of the Act.
26. It is required to be noted that in the case of
petitioner in Special Civil Application No. 12765
of 2010, punishment of reduction in pay scale was
imposed   whereas   in   the   case   of   petitioner   in
Special   Civil   Application   No.3553   of   2011,
punishment   of   stoppage   of   increment   came   to   be
imposed.   Thus,   departmental   inquiry   initiated
against   the   petitioner   was   concluded   and   no
further   inquiry   was   pending   against   the
petitioner. The respondents instead of stating as
to   how   long   services   of   the   petitioners   were
required at the place of transfer filed affidavitin­reply
stating that the transfers were for five
years.   Under   these   circumstances,   it   clearly
appears that the continuation of the petitioner at
the place of transfer is without authority of law.
27. Learned Assistant Government Pleader Mr. Raval
has relied on the decisions to point out that the
transfer of an employee is an incident of service
and   could   be   made   in   public   interest   and   for
administrative   reasons.   However,   in   none   of   the
cases,   the   Courts   were   faced   with   the   question
paused   for   consideration   in   these   petitions.
Similarly,   the   decision   relied   on   by   learned
advocate   for   the   petitioners   since   on   different
facts   situation   will   have   no   application   to   the
facts of the case. In the present case, this Court
has   examined   the   orders   of   transfer   of   the
petitioners   in   context   of   the   provisions   of
Section 28 of the Act read with Rule 152 of the
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Manual   in   exercise   of   which   the   respondent
authorities   have   passed   impugned   orders   of
transfer of the petitioners. It may be that there
were   compelling   necessity   in   public   interest   to
pass transfer orders against the petitioners with
other   police   officers.   In   ordinary   transfer   in
public interest or for administrative reasons, the
Court may have limited judicial review. However,
the scope of judicial review is widened when the
transfer   of   police   constable   is   made   out   of
district in exercise of powers under Section 28 of
the   Act   read   with   Rule   152   of   the   Manual,   to
examine   whether   such   transfer   is   meeting   the
statutory   requirement.   The   Court   finds   that   the
transfer orders since not satisfying the statutory
provisions, cannot be permitted to be operated any
further.   Impugned   orders   of   transfer   are,
therefore, required to be quashed and set aside. 
28.   For   the   reasons   stated   above,   petitions   are
allowed.   Impugned   orders   dated   26.10.2010   and
24.9.2010   are   quashed   and   set   aside.   It   is
directed   that   the   the   impugned   orders   shall   not
operate   against   the   petitioners   henceforth.   Rule
is made absolute accordingly.”
18. I   may   now   look   into   some   case   law   on   the
subject of transfer. 
19. The   Supreme   Court   in   the   case   of   Union   of
India   and   others   V.   Janardhan   Dabanath   and
another reported in 2004 (4) SCC 245, observed in
paragraph No.12:­ 
“That brings us to the other question as to whether
the use of the expression "undesirable" warranted an
enquiry   before   the   transfer.   Strong   reliance   was
placed by learned counsel for the respondents on a
decision of this Court in Jagdish Mitter v. Union of
India (AIR 1964 SC 449, para 21, p. 456) to contend
that   whenever   there   is   a   use   of   the   word
"undesirable" it casts a stigma and it cannot be done
without holding a regular enquiry. The submission is
clearly without substance. The said case relates to
use   of   the   expression   "undesirable"   in   an   order
affecting   the   continuance   in   service   by   way   of
discharge. The decision has therefore no application
to the facts of the present case. The manner, nature
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and   extent   of   exercise   to   be   undertaken   by
Courts/Tribunal in a case to adjudge whether it casts
a   stigma   or   constitutes   one   by   way   of   punishment
would   also   very   much   depend   upon   the   consequences
flowing from the order and as to whether it adversely
affected   any   service   conditions­status,   service
prospects   financially   and   same   yardstick,   norms   or
standards   cannot   be   applied   to   all   category   of
cases.Transfers unless they involve any such adverse
impact or visits the persons concerned with any penal
consequences,   are   not   required   to   be   subjected   to
same type of scrutiny, approach and assessment as in
the   case   of   dismissal,   discharge,   reversion   or
termination and utmost latitude should be left with
the   department   concerned   to   enforce   discipline,
decency   and   decorum   in   public   service   which   are
indisputably essential to maintain quality of public
service and meet untoward administrative exigencies
to ensure smooth functioning of the administration.”
20. In Somesh Tiwari V. Union of India, reported
in 2009 (2) SCC 592, the Supreme Court observed
in paragraph No.16 as under:­
“16.Indisputably   an   order   of   transfer   is   an
administrative   order.   There   cannot   be   any   doubt
whatsoever   that   transfer,   which   is   ordinarily   an
incident of service should not be interfered with,
save in cases where interalia mala fide on the part
of   the   authority   is   proved.   Mala   fide   is   of   two
kinds – one malice in fact and the second malice in
law.   The   order   in   question   would   attract   the
principle of malice in law as it was not based on
any factor germane for passing an order of transfer
and   based   on   an   irrelevant   ground   i.e.   on   the
allegations   made   against   the   appellant   in   the
anonymous complaint. It is one thing to say that the
employer is entitled to pass an order of transfer in
administrative exigencies but it is another thing to
say that the order of transfer is passed by way of
or in lieu of punishment. When an order of transfer
is passed in lieu of punishment, the same is liable
to be set aside being wholly illegal.”
21. A Division Bench of the Allahabad High Court
speaking   through   B.S.   Chauhan,   J.   (as   his
Lordship then was) in the case of Krishna Chandra
Dubey   Son   of   Ramraj   Dubey   V.   Union   of   India,
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through   Secretary   Minstry   of   Agriculture,
reported   in  2005   Law   Suit  (All)  1423,  after  an
exhaustive   review   of   various   decisions   of   the
Supreme Court observed as under:­
“7.   The   issue   of   transfer   and   posting   has   been
considered   time   and   again   by   the   Apex   Court   and
entire law has been settled by catena of decisions.
It   is   entirely   upon   the   competent   authority   to
decide   when,   where   and   at   what   point   of   time   a
public servant is to be transferred from his present
posting.   Transfer   is   not   only   an   incident   but   an
essential condition of service. It does not affect
the   conditions   of   service   in   any   manner.   The
employee does not have any vested right to be posted
at a particular place. (vide B. Varadha Rao v. State
of   Karnatka   and   Ors.,   ;   Shipli   Bose   V.   State   of
Bihar, ; Union of India v. N.P. Thomas,; Union of
India   v.   S.L.Abbas,   ;   Rajender   Roy   v.   Union   of
India, ; Ramadhar Panday v. State of U.P. And Ors.,
1993 Supp.(3) SCC 35; N.K. Singh v. Union of India
and Ors. ; Chief General Meneral Manager (Tel.) N.E.
Telecom Circle v. Rajendra Ch. Bhattacharjee,; State
of U.P. v. Dr. R.N. Prasad, 1995 (Supp) 2 SCC 151;
Union   of   India   and   Ors.   V.   Ganesh   Dass   Singh,   ;
Abani Kante Ray v. State of Orissa, 1995 (Supp) 4
SCC   169;   Laxmi   Narain   Mehar   v.   Union   of   India,   ;
State   of   U.P.   V.   Ashok   Kumar   Saxena,   ;   National
Hydroelectric   Power   Corporation   Ltd.   v.   Shri
Bhagwan, ; Pulic Services Tribunal  Bar Association
v. State of U.P. And Ors. ; State of U.P. V. Siya
Ram,; and Union of India v. Janardhan Debanath,.
8.   An   employee   holding   a   transferable   post   cannot
claim any vested right to work at a particular place
as   the   transfer   order   does   not   affect   any   of   his
legal rights and the Court cannot interfere with a
transfer/posting which is made in public interest or
on   administrative   exigency.   In   Gujarat   Electricity
Board   v.   Atmaram   Sungomal   Poshani,   the   Hon’ble
Supreme Court has observed as under:­
“Transfer   of   a   Government   servant   appointed   to   a
particular   cadre   of   transferable   posts   from   one
place to the another is an incident of service. No
Government servant or employee of public undertaking
has legal right for being posted at any particular
place. Transfer from one place to other is generally
a   condition   of   service   and   the   employee   has   no
choice   in   the   matter.   Transfer   from   one   place   to
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other is necessary in public interest and efficiency
in the public administration.”
9.  In  Union  of  India  v.  H.N.Kirtania,  the  Hon’ble
Apex Court observed as under:­
“Transfer of a public servant made on administrative
grounds   or   in   public   interest   should   not   be
interfered with unless there are strong and pressing
grounds rendering the transfer order illegal on the
ground of violation of statutory rules or on ground
of malafide.”
10. In Union of India V. S.L.Abbas (supra), the Apex
Court has observed that the Government instructions
on   transfer   are   mere   guidelines   without   any
statutory   force   and   the   Court   or   Tribunal   cannot
interfere with the order of transfer unless the said
order is alleged to have been passed by malice or
where   it   is   made   in   violation   of   the   statutory
provisions. 
11. Similar view has been reiterated by the Supreme
Court,   in   Bank   of   India   v.   Jagjit   Singh   Mehta,
observing   that   the   terms   incorporated   in   the
transfer policy for posting of both the spouses, if
in   service,   at   the   same   place,   require   to   be
considered by the authorities “along with exigencies
of administration” and “without any detriment to the
administrative need and claim of other employees.”
12.  In State Bank of India v. Anjan Sanyal, , the
Apex Court held as under:­
"4. An order of transfer of an employee is a part of
the service conditions and such order of transfer is
not   required   to   be   interfered   with   lightly   by   a
court   of   law   in   exercise   of   its   discretionary
jurisdiction unless the court finds that either the
order   is   mala   fide   or   that   the   service   rules
prohibit such transfer or that the authorities, who
issued the order, had not the competence to pass the
order. 
(Emphasis supplied). 
13. In Rhone­Poulenc (India) Ltd. v. State of U.P.,,
the Hon'ble Supreme Court held as under.­
"the mere fact that after the order of transfer had
been   issued   and   when   Respondent   3   had   failed   to
report for duty, he was also asked by the Corporate
Manager, who was competent to order his transfer, to
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join the duties at Kanpur will not validate ' the
order   of   transfer   issued   by   an   authority   not
competent to do so." 
14. A relieving order could be passed when certain
functional responsibilities are to be carried out by
the transferred employee. For example, heading over
of   the   charge,   classified   documents,   registers,
commercial documents, cash etc., as the case may be
(Vide Raj Bahadur Sharma v. Union of India, ). 
15. Thus, it is clear that the transfer policy does
not   create   any   legal   right   in   favour   of   the
employee.   It   is   settled   law   that   a   writ   petition
under  Article   226  of   the   Constitution   is
maintainable   for   enforcing   the   statutory   or   legal
right or when there is a complaint by an employee
that there is a breach of a statutory duty on the
part   of   the   employer.   Therefore,   there   must   be   a
judicially enforceable right for the enforcement of
which the writ jurisdiction can be resorted to. The
Court   can   enforce   the   performance   of   a   statutory
duty by public bodies through its writ jurisdiction
at   the   behest   of   a   person,   provided   such   person
satisfies the Court that he/ she has a legal right
to insist on such performance. The existence of the
said right is a condition precedent for invoking the
writ   jurisdiction.   (Vide   Calcutta   Gas   Company
(Propriety) Ltd. v. State of West Bengal and Ors., ;
Mani   Subrat   Jain   and   Ors.   v.   State   of   Haryana,   ;
State of Kerala v. Smt. A. Lakshmi Kutty, ; State of
Kerala v. K.G. Madhavan Pillai  and Ors., ;  Krishan
Lal v. State of J & K, ; State Bank of Patiala and
Ors. v. S.K. Sharma, ;  Rajendra Singh v. State of
M.P., ; Rani Laxmibai Kshetriya Gramin Bank v. Chand
Behari  Kapoor  and  Ors.,  ;  Utkal  University  v.  Dr.
Nrusingha Charan Sarangi and Ors., ; State of Punjab
v. Raghbir Chand Sharma and Anr., ; and Sadhana Lodh
v. National Insurance Co. Ltd. and Anr., . 
16. In Shilpi Bose (supra), the Apex Court has held
that   order   of   transfer/posting   "issued   by   the
competent authority did not violate any of her legal
right."   The   employee   holding   a   transferable   post
cannot claim any vested right for his/her posting at
a particular place. 
17.   In   Atmaram   Sungomal   Poshani   (supra),   the   Apex
Court   in   crystal   clear   words   observed   that   an
employee fails to join at the transferred place, he
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exposes himself to the disciplinary proceedings for
disobedience of the order. The employee cannot avoid
the   compliance   of   the   transfer   order.   In   Addisons
Paints & Chemicals Ltd. v. Workman, AIR 2001 SC 436,
a similar view has been reiterated and it has been
held  therein  that  refusal  to  report  for duty  upon
transfer amounts to misconduct. Even if the transfer
order   is   bad   for   some   reason,   the   employee   must
ensure compliance of the order first and then raise
the   issue   with   the   employer   for   redressal   of   his
grievance. 
18. In State of U.P. Gobardhan Lal, , the Hon'ble
Supreme Court held as under:­ 
"It   is   too   late   in   the   day   for   any   government
servant to contend that once appointed or posted in
a particular place or position, he should continue
in   such   place   or   position   as   long   as   he   desires.
Transfer   of   an   employee   is   not   only   an   incident
inherent   in   the   terms   of   appointment   but   also
implicit as an essential condition of service in the
absence of any specific indication to the contra, in
the law governing or conditions of service. Unless
the order if transfer is shown to be an outcome of a
mala   fide   exercise   of   power   or   violative   of   any
statutory provision (an Act or rule) or passed by an
authority   not   competent   to   do   so,   an   order   of
transfer   cannot   lightly   be   interfered   with   as   a
matter of course or routine for any or every type of
grievance   sought   to   be   made.   Even   administrative
guidelines   for   regulating   transfers   or   containing
transfer policies at best may afford an opportunity
to   the   officer   or   servant   concerned   to   approach
their higher authorities for redress but cannot have
the   consequence   of   depriving   or   denying   the
competent   authority   to   transfer   a   particular
officer/servant to any place in public interest and
as is found necessitated by exigencies of service as
long   as   the   official   status   is   not   affected
adversely and there is no infraction of any career
prospects   such   as   seniority,   scale   of   pay   and
secured emoluments. This Court has often reiterated
that   the   order   of   transfer   made   even   in
transgression   of   administrative   guidelines   cannot
also be interfered with, as they do not confer any
legally   enforceable   rights,   unless,   as   noticed
supra, shown to be vitiated by mala fides or is made
in violation of any statutory provision." 
(Emphasis added).
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19.   Similar   view   has   been   reiterated   in  Kendriya
Vidyalaya Sangathan v. Damodar Prasad Pandey, .
20. The transfer order may cause great hardship as
an   employee   would   be   forced   to   have   a   second
establishment at a far distant place, education of
his children may be adversely affected, may not be
able   to   manage   his   affairs   and   to   look   after   his
family. This aspect was also considered by the Apex
Court in State of M.P. v. S.S. Kaurav, , wherein it
has   been   held   that   it   is   not   permissible   for   the
Court   to   go   into   the   relative   hardship   of   the
employee. It is for the administration to consider
the   facts   of   a   given   case   and   mitigate   the   real
hardship   in   the   interest   of   good   and   efficient
administration. 
21. The  issue  of  "malus  animus"  was  considered  in
Tara Chand Khatri v. Municipal Corporation of Delhi
and Ors.,  ,  wherein  the  Hon'ble  Supreme  Court  has
held   that   the   High   Court   would   be   justified   in
refusing   to   carry   on   investigation   into   the
allegation  of mala fides, if necessary particulars
of the charge making out a prima facie case are not
given   in   the   writ   petition   and   burden   of
establishing   mala   fide   lies   very   heavily   on   the
person who alleges it and there must be sufficient
material to establish malus animus. 
22.   Similarly,   in  E.P.   Royappa   v.   State   of   Tamil
Nadu and Anr., , the Hon'ble Supreme Court held that
a   transfer   is   mala   fide   when   it   is   made   not   for
professed   purpose,   such   as   normal   course   or   in
public   or   administrative   interest   or   in   the
exigencies of service but for other purpose, that is
to   accommodate   another   person   for   undisclosed
reasons. The Court further observed as under:­ 
"Secondly,   we   must   not   also   over­look   that   the
burden of establishing mala fides is very heavy on
the   person   who   alleges   it....   The   Court   would,
therefore, be slow to draw dubious inferences from
incomplete   facts   placed   before   it   by   a   party,
particularly when the imputations are grave and they
are made against the holder of an office which has a
high responsibility  in  the administration. Such is
the   judicial   perspective   in   evaluating   charges   of
unworthy   conduct   against   ministers   and   other,   not
because   of   any   special   status...   but   because
otherwise,   functioning   effectively   would   become
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difficult in a democracy." 
23.   The   Hon'ble   Supreme   Court   in   Sukhwinder   Pal
Bipan Kumar and Ors. etc. etc. v. State of Punjab
and Ors., ; and  Shivajirao Nilangekar Patil v. Dr.
Mahesh   Madhav   Gosavi   and   Ors.,   has   made   similar
observations. 
24.  In   M.   Sankaranarayanan,   IAS   v.   State   of
Karnataka   and   Ors.,   ,   the   Hon'ble   Supreme   Court
observed   that   the   Court   may   "draw   a   reasonable
inference  of  mala  fide  from the  facts  pleaded and
established.   But   such   inference   must   be   based   on
factual matrix and such factual matrix cannot remain
in the realm of institution, surmise or conjecture."
25. In N.K. Singh (supra), the Hon'ble Supreme Court
has held that "the inference of mala fides should be
drawn   by   reading   in   between   the   lines   and   taking
into account the attendant circumstances." 
26.  In   Arvind   Dattatraya   Dhande   v.   State   of
Maharashtra,   ,   the   Hon'ble   Supreme   Court   held   as
under:­ 
"In view of the unimpeachable and eloquent testimony
of the performance of the duties, it will be obvious
that the transfer is not in public interest but is a
case  of  victimisation  of  an honest  officer  at the
behest of the aggrieved complainants carrying on the
business   in   liquor   and   toddy.   Under   these
circumstances,   as   stated   earlier,   the   transfer   of
the appellant is nothing but mala fide exercise of
the   power   to   demoralise   honest   officer   who   would
efficiently discharge the duties of public office." 
27.   There   has   to   be   very   strong   and   convincing
evidence to establish the allegations of mala fides
specifically   alleged   in   the   petition   as   the   same
cannot   merely   be   presumed.   The   presumption   is   in
favour   of   the   bona   fides   of   the   order   unless
contradicted   by   acceptable   material.   (Vide   Kiran
Gupta   and   Ors.   v.   State   of   U.P.   and   Ors.,   ;   and
Netai Bag and Ors. v. State of W.B. and Ors.). 
28. In State of Punjab v. V.K. Khanna and Ors., AIR
2001   SC   343,   the   Hon'ble   Apex   Court   examined   the
issue of bias and mala fide, observing as under:­ 
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"Whereas fairness is synonymous with reasonablenessbias
  stands   included   within   the   attributes   and
broader purview of the word 'malice' which in common
acceptation means and implies 'spite' or 'ill will'.
One redeeming feature in the matter of attributing
bias   or   malice   and   is   now   well   settled   that   mere
general   statements   will   not   be   sufficient   for   the
purposes  of  indication  of  ill  will.  There  must  be
cogent evidence available on record to come to the
conclusion as to whether in fact, there was existing
a   bias   or   a   mala   fide   move   which   results   in   the
miscarriage   of   justice....   In   almost   all   legal
inquiries,   'intention   as   distinguished   from   motive
is the all­important factor' and in common parlance
a malicious act stands equated with an intentional
act without just cause or excuse." 
29. Similar view has been reiterated in  Samant and
Anr. v. Bombay Stock Exchange and Ors.,. 
30. In Dr. Balkrishna Pandey v. State, 1997 Ad 1038
a Division Bench of this Court has held that if an
employee  is  at  a   station  for  a   long  time  and   the
transfer   is   made   administratively   only   on   that
ground, it cannot be a case of mala fide. 
31.   The   Hon'ble   Supreme   Court   in  Sarvesh   Kumar
Awasthi v. U.P. Jal Nigam, held as under:­
"In our view, transfer of officers is required to be
effected  on  the basis of  set  norms  or  guidelines.
The   power   of   transferring   an   officer   cannot   be
wielded   arbitrarily,   mala   fide   or   an   exercise
against efficient and independent officer or at the
instance  of  politicians  whose  work  is  not  done  by
the   officer   concerned.   For   better   administration,
the officers concerned must have freedom from fear
of being harassed by repeated transfers or transfers
ordered at the instance of someone who has nothing
to do with the business of administration." 
32. Transfer effected as a punitive measure is also
not permissible. Whether a transfer is punitive or
not is a question of fact, as held by the Hon'ble
Supreme  Court  in  Radhey  Shyam  Gupta  v.  U.P.  State
Agro   Industries   Corporation   Ltd.,   .   It   was
permissible for the Court to go behind the order and
find out if it was punitive in nature.
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33. In Gobardhan Lal (supra), the Apex Court held as
under:­ 
"A challenge to an order of transfer should normally
be  eschewed  and should  not  be  countenanced  by the
courts   or   tribunals   as   though   they   are   Appellate
authorities over such orders, which could assess the
niceties   of   the   administrative   needs   and
requirements of the situation concerned. This is for
the   reason   that   courts   or   tribunals   cannot
substitute   their   own   decisions   in   the   matter   of
transfer   for   that   of   competent   authorities   of   the
State and even allegations of mala fides when made
must be such as to inspire confidence in the court
or are based on concrete materials and ought not to
be   entertained   on   the   mere   making   of   it   or   on
consideration  borne  out  of conjectures  or  surmises
and   except   for   strong   and   convincing   reasons,   no
interference could ordinarily be made with an order
of transfer." 
(Emphasis added)." 
34.   Similar   view   has   been   reiterated   by   the   Apex
Court in State of U.P. v. Siya Ram, .
35. In First Land Acquisition Collector and Ors. v.
Nirodhi   Prakash   Gangoli  and   Anr.,   ;   and  Jasvinder
Singh and Ors. v. State of J & K and Ors., , the
Apex Court held that burden of proving mala fides is
very   heavy   on   the   person   who   alleges   it.   Mere
allegation   is   not   enough.   Party   making   such
allegations is under a legal obligation to place the
specific materials before the Court to substantiate
the said allegations. 
36.   It   is   settled   legal   proposition   that   in   case
allegations of mala fide are made against any person
he   is   to   be   impleaded   by   name,   otherwise   the
allegations   cannot   be   considered.   (Vide   State   of
Bihar and Anr. v. P.P. Sharma, IAS. and Anr., AIR
1992   SC   1260;  Dr.   J.N.   Banavalikar   v.   Municipal
Corporation of Delhi and Anr., AIR 1996 SC 326; All
India   State   Bank   Officers   Federation   and   Ors   v.
Union of India and Ors., ; & I.K. Mishra v. Union of
India and Ors., ). 
37.   In   Federation   of   Rly.  Officers   Association   v.
Union of India and Ors., , the Apex Court has held
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that   the   allegation   of   mala   fide   has   to   be
specifically made and the person against whom such
allegations are made has to be impleaded and in his
absence   such   allegations   cannot   be   taken   into
consideration.
38. In this case, neither the authority which wanted
to   accommodate   Dr.   Dinesh   Kumar   nor   Shri   Dinesh
Kumar had been impleaded before the Tribunal. Even
before   this   Court,   Dr.   Dinesh   Kumar   has   been
impleaded  without  leave  of  the  Court.  A  period  of
five years has passed but no notice has been issued
to   him.   In   view   of   the   above,   the   allegations   of
mala fide cannot be considered. 
39. In Director of School Education Madras and Ors.
v.   O.   Karuppa   Thevan   and   Anr.,   1994   Supp   (2)   SCC
666, the issue of transfer in mid academic session
was considered by the Hon'ble Supreme Court and it
was   held   that   "the   fact   that   children   of   the
employee are studying should be given due weight, if
the   exigencies   of   the   service   are   not   urgent."
Therefore, it is for the employer to examine as to
whether transfer of an employee can be deferred till
the end of the current academic session. The Court
has no means to assess as what is the real urgency
of administrative exigency. 
40.  In  Suresh Chand Sharma  v.  Chairman,  UPSEB  and
Ors., 2005 AIR SCW 1133, the Hon'ble Supreme Court
deprecated the transfer under political pressure. In
Lokesh Kumar v. State, 1998 (1) AWC 27, this Court
has   held   that   transfer   in   colourable   exercise   of
power   without   administrative   exigency   only   on
political or extraneous  consideration is liable to
be set aside. The transfer of an employee must be
made considering the administrative exigency and not
at   the   whim   of   any   administrator/   politician,
including the Ministers, for the reason that in such
a case transfer order may be passed for extraneous
consideration as held by this Court in Director v.
Nathi  Lal,  1995 (2)  UPLBEC  1121.  In  Pratap  Narain
Srivastava v. State of U.P. and Ors., 1995 (1) Edu.
&   Service   Cases   509;  Pradeep   Kumar   Agrawal   v.
Director, (1994) 1 UPLBEC 189; Sheo Kumar Sharma and
Ors. v. District Shiksha Adhikari, Kanpur Dehat and
Ors., (1991) 1 UPLBEC 690; Smt Gayatri Devi v. State
of   U.P.,   1997   (2)   UPLBEC   925,   Pradip   Kumar   v.
Director   Local   Bodies,   1994   (1)   UPLBEC   156;  Pawan
Kumar   Srivastava   v.   U.P.   State   Electricity   Board,
1995   (1)   UPLBEC   414;  Shiv   Kumar   Sharma   v.   Basic
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Shiksha Adhikari, 1991 (1) UPLBEC 69; and  Goverdhan
Lal v. State of U.P. and Ors., 2000 (2) UPLBEC 1356,
it has categorically been held that a transfer order
passed under influence of any other person cannot be
sustained in the eyes of law. 
41. In view of the above, the legal position can be
summarized that transfer is a condition of service.
It   does   not   adversely   affect   the   status   or
emoluments   or   seniority   of   the   employee.   The
employee has no vested right to get a posting at a
particular place. It is within the exclusive domain
of the employer to determine as to at what place and
for how long the services of a particular employee
are   required.   There   is   a   very   little   scope   of
judicial   review   by   the   Court/Tribunal   against   the
transfer   order   and   only   if   it   is   found   to   be   in
contravention   of   the   statutory   Rules   or   for   mala
fide that the Court can interfere. This is for the
reason  that  a   transfer  order  does not  violate any
legal right of the employee. Transfer policy of the
State does not have any statutory force. It merely
provides for guidelines for the understanding of the
Departmental   personnel.   However,   transfer   order
should   be   passed   in   public   interest   or
administrative exigency, and not arbitrarily or for
extraneous consideration or for victimization of the
employee   not   under   political   pressure.   If   a   party
alleges mala fides, the burden to prove it lies upon
him   and   it   is   to   be   proved   by   taking   appropriate
pleadings and the person against whom the allegation
of  mala  fides  are  alleged,  should be  impleaded  by
name.   The   Court   must   examine   the   case   from   all
angles to find out whether the order is punitive or
not.
42.   If   a   transfer   order   is   passed   during   the
pendency of the disciplinary proceedings, the Court
may examine as to whether the order is punitive in
nature as it may also be necessary to facilitate the
proceedings and as a preventive measure of tampering
with the evidence or witnesses. 
43. Once a transfer order is passed, the Competent
Authority   has   a   right   to   cancel   it   or   modify   it,
even   after   it   stood   executed.   The   transfer   order
must   be   passed   by   the   Competent   authority   and
employee   should   be   relieved   for   joining   at   the
transferred place, if it is necessary to relieve him
formally. There is no prohibition to post both the
spouses at different places, if they are in service,
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and cannot be adjusted at the same place or services
of   one   of   them   is   required   in   administrative
exigency   at   a   different   place.   Same   remains   the
position of mid­academic  session. The  employer may
consider and keep this aspect in mind, but he cannot
compromise with administrative requirement.” 
22. In view of the above, the legal position on
the   issue   of   transfer   can   be   summarized   as
under:­
1) Transfer is a condition of service.
2)   It   does   not   adversely   affect   the   status   or
emoluments or seniority of the employee.
3)   The   employee   has   no   vested   right   to   get   a
posting   at  a  particular  place  or   can  choose  to
serve   at   a   particular   place   for   a   particular
tenure.
4)   It   is   within   the   exclusive   domain   of   the
employer to determine as to at what place and for
how   long   the   services   of   a   particular   employee
are required.
5)   Transfer   order   should   be   passed   in   public
interest   or   considering   any   administrative
exigency,   and   not   arbitrarily   or   for   any
extraneous consideration or for victimization of
the   employee   nor   it   should   be   passed   under
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political pressure.
6)   There   is   a   very   little   scope   of   judicial
review by the Court/Tribunal against the transfer
order   and   the   same   is   restricted   only   if   the
transfer order is found to be in contravention of
the statutory Rules or mala fides is established.
7)   In   case   of   mala   fides,   the   employee   has   to
make specific averments and should prove the same
by adducing implacable evidence.
8)   The   person   against   whom   allegation   of   mala
fide is alleged is to be impleaded as a party by
name.
9)   Transfer   policy   or   guidelines   issued   by   the
State   or   employer   does   not   have   any   statutory
force   as   it   merely   provides   for   guidelines   for
the understanding of the Departmental personnel.
10) The Court does not have a power to annul the
transfer   order   only   on  the   ground   that   it  will
cause personal inconvenience to the employee, his
family  members  and children as consideration of
such issues fall within the exclusive domain of
the employer.
11) If the transfer order is made in mid­academic
session   of   the   children   of   the   employee,   the
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Court/Tribunal   cannot   interfere.   It   is   for   the
employer to consider such a personal grievance.
23. Since   I   am   dealing   with   a   very   sensitive
issue   as   regards   the   integrity   and   discipline
concerning the police force I deem it necessary
to look into the code of conduct for the police
in India (1960).
“36. The “Police” figure as Entry 2 in State List in
the   Seventh   Schedule   of   the   Constitution,   thereby
making   State   Government   primarily   responsible   for
maintaining   public   order.   Invariably,   police,   which
is   part   of   the   civil   administration,   is   at   the
forefront   in   maintaining   law   and   order   under   the
framework   of   constitutional   governance   based   on
principles of “Sovereign Socialist Secular Democratic
Republic to secure fundamental right of its citizens.
In consonance with the idea of democratic policing, a
Code of Conduct for the Police in India was adopted
at the Conference of Inspectors General of Police in
1960 and circulated to all the State Government. 
Code of Conduct for the Police in India (1960)
1.   The   police   must   bear   faithful  allegiance  to   the
Constitution   of   India   and   respect   and   uphold   the
rights of the citizens as guaranteed by it. 
2. The police are essentially a law enforcing agency.
They should not question the propriety or necessity
of any duly enacted law. They should enforce the law
firmly and impartially, without fear or favor, malice
or vindictiveness.
3. The   police   should   recognized   and   respect   the
imitations of their powers and functions. They should
not usurp or even seem to usurp the functions of the
judiciary  and   sit   in   judgment  on   cases.   Nor   should
they avenge individials and punish the guilty. 
4. In   securing   the   observance   of   law   or   in
maintaining   order,   the   police   should,   as   far   as
practicable,   use   the   methods   of   persuasion,   advice
and   warning.   When   the   application   of   force   becomes
inevitable,   only   the   irreducible   minimum   of   force
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required in the circumstances should be used. 
5. The prime duty of the police is to prevent crime
and disorder and the police must recognize that the
test of their efficiency is the absnece of both and
not the visible evidence of police action in dealing
with them. 
6. The police must recognize that they are members
of the public, with the only difference that in the
interest of the society and on its behalf they are
employed to give full time attention to duties, which
are normally incumbent on every citizen to perform. 
7. The   police   should   realize   that   the   efficient
performance of their duties would be dependent on the
extent of ready cooperation that they recive from the
public. This, in turn, will depend on their ability
to   secure   public   approval   of   their   conduct   and
actions   and   to   earn   and   retain   public   respect   and
confidence.   The   extent   to   which   they   succeeded   in
obtaining   public   cooperation   will   diminish
proportionality the necessity of the use of physical
force   of   compulsion   in   the   discharge   of   their
functions. 
8. The   police   should   always   keep   the   welfare   of
the people in mind and be sympathetic and considerate
towards  them.   They   should   always   be   ready  to   offer
individual   service   and   friendship   and   render
necessary assistance to all without regard to their
wealth and/or social standing.
9. The police should always place duty before self,
should maintain calm in the face of danger, scorn or
ridicule and should be ready to sacrifice their lives
in protecting those of others. 
10.   The   police   should   always  be   Courteous  and   well
mannered;   they   should   be   dependable   and   impartial;
they should possess dignity and courage; and should
cultivate character and the trust of the people.
11. Integrity of the highest order is the fundamental
basis   of   the   prestige   of   the   police.   Recognizing
this,   the   police   must   keep   their   private   lives
scrupulously   clean,   develop   self­restrain   and   be
truthful   and   honest   in   thought   and   deed,   in   both
personal  and   official  life,   so   that   the   public   may
regard them as exemplary citizens.
12.   The   police   should   recognize   that   their   full
utility   to   the   State   is   best   ensured   only   by
maintaining  a   high   standard   of   discipline,  faithful
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performance   of   duties   in   accordance   with   law   and
implicit   obedience   to   the   lawful   directions   of
commanding   ranks   and   absolute   loyalty   to   the   force
and   by   keeping   themselves   in   the   State   of   constant
training and preparedness.”
24. The ratio of the Division Bench decision in
the case of Haroon Yusuf (supra) makes at least
one   thing   very   clear   that   the   inter   district
transfer   of   a   police   constable   should   be   in
accordance   with   Section   28(1)   of   the   Act   read
with rule 152 of the Police Manual. It appears on
close reading of the Division Bench decision that
the view taken is that if a police constable is
transferred   outside   the   district   the   same   will
have to be construed as on deputation. It is in
that   context   that   the   Division   Bench   observed
that if a police Constable is to be treated as on
deputation  then the period  of deputation should
be   prescribed   and   made   clear   and   that   the
deputation should not be for an indefinite period
of time. What is sought to be argued before me is
that   in   any   circumstances   a   police   constable
cannot   be   transferred   to   a   different   district
other then the one where he was appointed except
to   meet   with   the   exigency   at   the   transferred
place and as soon as the emergent administrative
exigencies   cease   to   exist   at   the   transfered
place, such police constable must be sent back to
his parent cadre. Again what is argued before me
is that the petitioners were transferred not on
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account of any emergent administrative exigencies
but by way of punishment since they had attended
the   wedding   reception   of   the   son   of   a   noted
bootlegger of the city of Ahmedabad against whom
there are 23 offences registered so far under the
Prohibition Act. 
25. The   question   which   I   am   posing   for   my
consideration is whether the term “administrative
exigencies” should be construed so narrowly that
in   any   event   it   is   not   permissible   in   law   to
transfer   any   police   constable   to   any   other
district other then one where he was appointed. 
25. Article   154(3)(iii)   of   the   Manual   provides
that while effecting transfers the exigencies of
public   service   and/or   the   disciplinary   measures
can be taken into consideration. Article 154(3)
(D) also provides that a police constable can be
transferred from one district to another if the
competent authority considers it necessary. I am
of the view that the existence of “exigencies of
the service at the place of transfer” although is
a pre­requisite for the exercise of the power yet
should   not   be   construed   so   narrowly   so   as   to
defeat the very object of transfer from one place
to the other. The formation of such opinion is a
matter which, in view of the important nature of
the   function   should   primarily   be   left   to   the
subjective   satisfaction   of   the   authority
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concerned.   The   responsibility   for   good
administration  and maintenance  of law and order
is that of the government. The maintenance of an
efficient, honest and experienced police service
is   a   must   for   the   due   discharge   of   that
responsibility.   Therefore,   the   authority
concerned alone is best suited to judge as to the
existence   of   exigencies   of   such   a   service,
requiring   inter   district   transfer.   The   term
“exigency”   being   understood   in   its   widest   and
pragmatic  sense  as   a  rule,   the  court   would   not
judge   the   propriety   or   sufficiency   of   such
opinion   by   objective   standards,   save   where   the
subjective process of forming it, is vitiated by
malafides,   dishonesty,   extraneous   purpose,   or
transgression of the limits circumscribed by the
legislation.
26. Article   154(3)(iii)   of   the   Manual   provides
that while effecting transfers the exigencies of
public   service   and/or   the   disciplinary   measures
can be taken into consideration. Article 154(3)
(D) also provides that a police constable can be
transferred from one district to another if the
competent authority considers it necessary. I am
of the view that the existence of “exigencies of
the service at the place of transfer” although is
a pre­requisite for the exercise of the power yet
should   not   be   construed   so   narrowly   so   as   to
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defeat the very object of transfer from one place
to the other. The formation of such opinion is a
matter which, in view of the important nature of
the   function   should   primarily   be   left   to   the
subjective   satisfaction   of   the   authority
concerned.   The   responsibility   for   good
administration  and maintenance  of law and order
is that of the government. The maintenance of an
efficient, honest and experienced police service
is   a   must   for   the   due   discharge   of   that
responsibility.   Therefore,   the   authority
concerned alone is best suited to judge as to the
existence   of   exigencies   of   such   a   service,
requiring   inter   district   transfer.   The   term
“exigency”   being   understood   in   its   widest   and
pragmatic  sense  as   a  rule,   the  court   would   not
judge   the   propriety   or   sufficiency   of   such
opinion   by   objective   standards,   save   where   the
subjective process of forming it, is vitiated by
malafides,   dishonesty,   extraneous   purpose,   or
transgression of the limits circumscribed by the
legislation.
27. In the case of Union of India and others vs.
Janardhan   Debanath   and   others   reported   in   2004
(4) SCC 245, the Supreme Court held as follows:­
“The  manner,  nature and  extent  of  exercise  to  be
undertaken by Courts/Tribunals in a case to adjudge
whether the use of the word “undesirable” casts a
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stigma   or   constitutes   a   punishment   would   depend
upon the consequences flowing from the order and as
to   whether   it   adversely   affected   any   service
conditions – status, service prospects financially
and   same   yardstick,   norms   or   standards   cannot   be
applied to all category of cases. Transfers unless
they involve any such adverse impact or visit the
persons concerned with any penal consequences, are
not   required   to   be   subjected   to   same   type   of
scrutiny, approach and assessment as in the case of
dismissal, discharge, reversion or termination and
utmost latitude should be left with the department
concerned   to   enforce   discipline,   decency   and
decorum   in   public   service   which   are   indisputably
essential to maintain quality of public service and
meet   untoward   administrative   exigencies   to   ensure
smooth functioning of the administration. 
The allegations made against the respondents are of
serious   nature,   and   the   conduct   attributed   is
certainly   unbecoming.   Whether   there   was   any
misbehaviour is a question which can be gone into
in a departmental proceeding. For the purposes of
effecting   a   transfer,   the   question   of   holding   an
enquiry to find out whether there was mis­behaviour
or conduct unbecoming of an employee is unnecessary
and what is needed is the prima facie satisfaction
of   the   authority   concerned   on   the   contemporary
reports   about   the   occurrence   complained   of   an   if
the   requirement,   as   submitted   by   learned   counsel
for   the   respondents,   of   holding   an   elaborate
enquiry is to be insisted upon the very purpose of
transferring   an   employee   in   public   interest   or
exigencies of administration to enforce decorum and
ensure probity would get frustrated.  The  question
whether   respondents   could   be   transferred   to   a
different division is a matter for the employer to
consider   depending   upon   the   administrative
necessities   and   the   extent   of   solution   for   the
problems faced by the administration. It is not for
the Supreme Court to direct one way or the other.”
28. I may also quote with profit the decision of
the Supreme Court in the case of State of U.P.
And others v. Gobardhan Lal reported in AIR 2004
SC2165. I may quote the observations made by the
Supreme Court in paragraph No.8:­
“It is too late in the day for any Government servant
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to   contend   that   once   appointed   or   posted   in   a
particular place or position, he should continue in
such   place   or   position   as   long   as   he   desires.
Transfer   of   an   employee   is   not   only   an   incident
inherent   in   the   terms   of   appointment   but   also
implicit as an essential condition of service in the
absence of any specific indication to the contra in
the law governing or conditions of service. Unless
the order of transfer is shwon to be an outcome of a
mala   fide   exercise   of   power   or   violative   of   any
statutory provision (an Act or Rule) or passed by an
authority   not   competent   to   do   so,   an   order   of
transfer   cannot   lightly   be   interfered   with   as   a
matter of course or routine for any or every type of
grievance   sought   to   be   made.   Even   administrative
guidelines   for   regulating   transfers   or   containing
transfer policies at best may afford an opportunity
to the officer or servant concerned to approach their
higher authorities for redress but cannot have the
consequence   of   depriving   or   denying   the   competent
authority to transfer a particular officer/servant to
any   place   in   public   interest   and   as   is   found
necessitated by exigencies of service as long as the
official status is not affected adversely and there
is   no   infraction   of   any   career   prospects   such   as
seniority, scale of pay and secured emoluments. This
Court has often reiterated that the order of transfer
made   even   in   transgression   of   administrative
guidelines cannot also be interfered with, as they do
not confer any legally enforceable rights, unless, as
noticed supra, shown to be vitiated by mala fides or
is made in violation of any statutory provisions.”
29. In the present case the affidavit­in­reply of
the   Additional   Commissioner   of   Police
(Administration) makes one thing clear that the
petitioners   had   attended   the   marriage   reception
on 15th February, 2015 and a news article in that
regard   was   also   published   in   the   various   news
papers on 18th February, 2015. It appears that the
Commissioner   of   Police,   Ahmedabad   took   a   very
serious view of the same and very rightly as it
tarnished the image of the police department and
he   ordered   an   inquiry   into   the   matter.   The
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inquiry   was   handed   over   to   the   Deputy
Commissioner,   Police   (zone­1)   Ahmedabad   and   on
the   basis   of   the   inquiry   reports   the   Director
General   of   Police,   State   of   Gujarat   passed   the
impugned order of transfers. 
30. The   object   of   transfer   also   appears   to   be
quite clear. Prima facie upon inquiry if it was
found   that   being   police   constables   they   had
attended   the   wedding   reception   then   it
necessarily   implies   the   close   proximity   of   the
police constables with a noted bootlegger. It is
but obvious that such police constables should be
kept at a distance so that there position is not
abused   by  criminals.   Could   it  be   said  that   the
only remedy available  with the Director General
of Police was to place them under suspension or
initiate departmental inquiry against each of the
petitioners but in any circumstances they could
not have been transferred to another district.
31. I am of the view that such construction will
not be in the interest of the administration of
the   police   force   even   keeping   in   mind   the
Division   Bench   decision   of   this   Court   on   which
strong   reliance   has   been   placed.   I   may   clarify
one   thing   since   I   was   a   party   to   the   Division
Bench   decision   that   what   was   argued   before   the
Division Bench was that the police constable in
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that   case   could   not   have   been   transferred   to
another   district   keeping   in   mind   section   28   of
the   Act   and   the   Gujarat   Police   Manual.   The
Division Bench took the view that the petitioner
in that case could have been transferred but his
transfer could be termed as one on deputation at
a particular place and such deputation should not
be for an indefinite period. The Division Bench
had no occasion to consider any exigencies like
the   one   which   I   am   considering   in   the   present
case. 
32. At the same time I must put the respondents
to guard that what has been observed by me should
also   not   be   misused   in   the   sense   that   if   the
inter   district   transfer   is   otherwise   not
permissible   under   the   Gujarat   Police   Manual
except if it is found to be necessary then while
effecting   such   inter   district   transfer   the
exigencies also should be of that nature. 
33. In the case of  Hadmatsinh Naharsinh (supra)
a   learned   Single   Judge   of   this   Court   placing
reliance   on   the   Division   Bench   decision   in   the
case of Haroon Yusuf (supra) took the view that
the transfer of the petitioner of that case was
on account of the hooch tragedy which had taken
place in the city of Ahmedabad and therefore the
transfer order could not have been said to have
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been passed to meet with any emergent exigencies
or   in   public   interest   at   the   place   where   the
petitioner was transferred. The view taken by the
learned   Single   Judge   was   more   or   less   in   the
facts of that particular case. 
34. It was vehemently argued before me that as in
the   case   of   Hadmatsinh   (supra),   the   learned
Single Judge took the view that the transfer of
the   Police   Constable   on   account   of   the   hooch
tragedy   could   not   be   said   to   be   in   the   public
interest,   in   the   same   manner   even   if   it   is
believed that the petitioners herein had attended
the   wedding   reception   of   the   son   of   a   noted
bootlegger   then   the   transfer   to   the   other
districts   could   not   be   said   to   be   in   public
interest.   In   short   according   to   Mr.   Goswami,
attending the wedding reception has nothing to do
with   the   public   interest.   Therefore,   the   word
used   in   the   orders   of   transfer   i.e.   “public
interest” is vague.
35. The expression ‘public interest’ has not been
defined either in any rules or in any statute. It
is a wide expression and the question of public
interest   will   have   to   be   determined   in   the
context   of   the   particular   order.   As   has   been
noted by the Supreme Court in State of Bihar v.
Kameshwar   Singh,   1952   AIR   (SC)   252,   the
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expression could only be defined by a process of
judicial   inclusion   and   exclusion.   However,   a
broad   test   has   been   formulated   and   it   is   that
‘whatever   furthers   the   general   interest   of   the
Community, as opposed to the particular interest
of   the   individuals,   must   be   regarded   as   public
purpose.   ‘In   the   context   of   public   service   it
would mean the interest of public as opposed to
the   personal,   political   or   other   extraneous
interest. Public interest demands that an officer
or an employee posted at a particular post, must
inspire   confidence,   not   only   among   his   fellow
employees   and   superior   authorities,   but   also
among   the   members   of   the   public.If   a   police
constable is found to be in company of criminals
or   persons   accused   of   having   committed   any
offence then his transfer from that place must be
held to be in the public interest.
36. ‘Public   interest’   in   this   context   would   be
justiciable   only   to   this   extent   that   the   order
should   not   be   based   on   any   extraneous
considerations   or   malafide   reasons.   The   use   of
the word ‘public interest’ in a particular order
would   prima   facie   be   sufficient   to   raise
presumption   that   the   order   has   been   passed   in
public interest. 
37. It   is   the   existence   of   the   circumstances
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constituting the public interest which is to be
seen   by   the   Court,   once   the   circumstances   are
shown   to   have   existed,   the   sufficiency   of   the
circumstance is for the government to decide.
38. Section   28   of   the   Act   should   be   read
harmoniously   with   Article   152   and   154   of   the
Gujarat Police  Manual,  1975. Article 152 speaks
of   the   inter   district   transfer   in   emergencies
making   reference   of   section   28(1)   of   the   Act.
Whereas   Article   154   of   the   Manual   speak   of
general instructions regarding transfers. I am of
the view that Section 28 of the Act empowers the
State   Government   or   the   Inspector   General   to
employ   a   police   officer   allocated   for   duty   in
part of the state to any other part of the state
so   long   as   the   service   of   the   same   at   the
transferred place are required but that does not
mean that in no circumstances other than the one
mentioned in the section 28 of the Act the police
officer cannot be sent to any other part of the
state   by   way   of   transfer.   The   Gujarat   Police
Manual   itself   takes   care   so   far   as   the   inter
district   transfers   are   concerned   and   makes   it
very clear that no government  servant  belonging
to class (3) ministerial post/service or class(4)
should be transferred from one place to another
unless   his   transfer   is   considered   necessary   by
the   competent   authority.   The   words   in   Article
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154(3)(D)  “unless  such a transfer  is considered
necessary”   should   not   be   construed   as   the
necessity of transfer under Section 28 alone.
39. In the over all view of the matter, I have
reached to the conclusion that no interference is
warranted with the impugned orders of transfer.
40. In the result, all the petitions fail and are
hereby rejected. Notice is discharged.
(J.B.PARDIWALA, J.)
Manoj
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