State Of Haryana & Ors vs Kashmir Singh & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8690-8701 OF 2010

[arising out of Special Leave Petitions(Civil) Nos. 18686-18697/2007]

State of Haryana and others ...... Appellants

-versus-

Kashmir Singh and another etc. etc. ....... Respondents

J U D G M E N T

Markandey Katju, J.

1. Leave granted.

2. These appeals have been filed against the common impugned

judgment of the Punjab and Haryana High Court dated 51.5.2006 in

CWP Nos. 7695, 7607, 7665, 7837, 8636, 8704, 8814, 9117, 6941,

8018 and 8310 of 2006.

2 3. Heard learned counsel for the parties and perused the record.

4. The respondents herein were serving in various districts in the

State of Haryana as Constables, Head Constables, Exemptee Head

Constables, Assistant Sub-Inspectors and Sub-Inspectors

(hereinafter in short as ASI and SI, respectively). They were ordered

to be transferred to other districts and ranges by the Inspector

General of Police. The respondents challenged the transfer orders

contending that in view of the Punjab Police rules so far as

Constables, Head Constables and Exemptee Constables are

concerned, they could not be transferred outside the district, and so

far as ASI and SIs are concerned, they could not be transferred

outside the range.

5. This contention has been upheld by the Division Bench of the

High Court and hence these appeals.

6. With respect, we are unable to agree with the High Court.

3 7. Section 1 of the Indian Police Act 1861 defines a `general police

district' as follows :

"the words `general police district' shall embrace any

presidency, State of place, or any part of any presidency,

State or place, in which this Act shall be ordered to take

effect".

8. Section 2 of the Act states as follows :

"Constitution of the force. - The entire police

establishment under a State government shall, for the

purposes of this Act, be deemed to be one police force

and shall be formally enrolled, and shall consist of such

number of officers and men, and shall be constituted in

such manner, as shall from time be ordered by the State

Government".

9. Section 4 of the Act states as follows:

"Inspector-General of Police, etc. - the administration of

the police throughout a general police-district shall be

vested in an officer to be styled the Inspector-General of

Police, and in such Deputy Inspectors-General and

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Assistant Inspectors-General as to the (State

Government) shall seem fit.

The administration of the police throughout the local

jurisdiction of the Magistrate of the district shall, under the

general control and direction of such Magistrate, be

vested in a District Superintendent and such Assistant

District Superintendents as the (State Government) shall

consider necessary".

10. Thus a perusal of the relevant provisions of the Police Act

clearly shows that the State police is one integral unit and does not

consist of separate independent units. The overall administrative

control of the police in the State is with the Inspector-General of

Police (now the Director-General of Police).

11. We may now also consider the relevant Rules in the Punjab

Police rules 1934 (hereinafter referred to as the `Rules'). Rule 1.4 of

the Rules states as follows :

"Rule 1.4 - Administrative Division: - The districts of the

province are grouped in Ranges and the administration of

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all police within each such range is vested in a Deputy

Inspector General under the control of the Inspector-

General of Police.

The training school is under the district control of

the Inspector-General subject to such delegation of

powers as he may make to one or other of the range

Deputy Inspector General. The Criminal Investigation

Department is administered by a Deputy Inspector

General, who also supervises the Finger Print Bureau".

Rule 1.5 - Limits of jurisdiction and liability to transfer - All

police officers appointed or enrolled in either of the two

general police districts constitute one police force and are

liable to, and legally empowered for, police duty,

anywhere within the province. No sub-division of the

force territorially or by classes, such as mounted and foot

police, affects this principle.

Every police officer shall be liable to serve at any

place, whether within or outside the State of Haryana and

in any organization under the Central government or

being ordered so to do by the appointing authority. Every

police officer is empowered to under Section 3 of the

Police Act 1888 (Central Act 3 of 1988), when necessary,

to exercise the powers, functions and privileges of a

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police officer in any part of India. In the exercise of such

functions a police officer is deemed to be a member of the

police force of the State of Union of India, in which he is

at the time".

"Rule 12.26 - Inter District Transfers. - Exchange of

appointment lower subordinates in districts of the same

range or between such police officers in the railway and

district police, may be effected subject to the approval of

the Superintendents concerned (or of the Assistant

Inspector General in cases affecting the railway police).

A lower subordinate may be transferred to fill a vacancy in

a district other than that in which he is serving only with

the sanction of the Deputy Inspector General of the

range. In cases of transfer from and to districts in

different ranges, or from and to districts in different

ranges, or from and to the railway police, the sanction of

both Deputy Inspector General concerned and the

Superintendent of Police Railways is required".

"Rule 14/15 - 14.15(1) - All enrolled police officers are,

under Section 22 of the Police Act, liable for service in

any part of the general police district".

12. A perusal of the relevant provisions of the Police Act and the

Rules thus clearly shows that the entire police establishment under

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the State Government is one integrated police force, though for better

administration the State has been sub-divided into districts/ranges.

Rule 1.5 of the Rules clearly shows that police officers constitute one

police force and are liable to be posted anywhere in the State.

Moreover, Rule 1.5 also clearly states that no sub-division of the

force territorially or by classes, affects this principle. Transfer from

one district to another district or from one range to another range can

be effected, though with the sanction of certain authorities mentioned

in Rule 12.26.

13. Thus, a plain perusal of the Punjab Police Rule shows that

transfer can be done from one district to another district or even to

another range, and there is no absolute prohibition for doing so.

However, in such a case, the seniority of Constable and Head

Constables at the district level and of ASI and SI at the range level is

maintained in the parent district/range despite the transfer.

Promotion/confirmation is also given strictly as per the seniority in the

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parent district/range level, as per Memo No. 43515-22/E-(III) dated

10.8.2010.

14. Transfer ordinarily is an incidence of service, and the Courts

should be very reluctant to interfere in transfer orders as long as they

are not clearly illegal. In particular, we are of the opinion that transfer

and postings of policemen must be left in the discretion of the

concerned State authorities which are in the best position to assess

the necessities of the administrative requirements of the situation.

The concerned administrative authorities may be of the opinion that

more policemen are required in any particular district and/or another

range than in another, depending upon their assessment of the law

and order situation and/or other considerations. These are purely

administrative matters, and it is well-settled that Courts must not

ordinarily interfere in administrative matters and should maintain

judicial restraint vide Tata Cellular vs. Union of India - AIR 1996

SC 11.

9 15. The High Court in the impugned judgment has relied upon the

decision of this Court in Jawaharlal Nehru University vs. Dr. K.S.

Jawatkar and others - (1998) Suppl. 1 SCC 679. After carefully

considering the said decision we are of the opinion that it has no

relevance in the present case. In that decision the facts were that the

employees of the Jawaharlal Nehru University were sought to be

transferred to the Manipur University as the centre of post graduate

studies set up by the Jawaharlal Nehru University at Manipur was

closed down and the centre was transferred to Manipur University.

This Court held that an employee of one University cannot be

transferred to another University without his consent. We fail to

understand what relevance this decision has with the present case.

In the present case, it is not that the respondent employees are being

transferred from one employer to another employer. Here the

employer remains the same i.e. the State of Haryana. Hence, the

aforesaid decision has no relevance in the present case. For the

same reason G.Varandani vs. Kurukshetra University and another -

(2003) 10 SCC 14 also has no relevance.

1 16. In our opinion, the High Court has taken a totally impractical

view of the matter. If the view of the High Court is to prevail, great

difficulties will be created for the State administration since it will not

be able to transfer/deploy its police force from one place where there

may be relative peace to another district or region/range in the State

where there may be disturbed law and order situation and hence

requirement of more police. Courts should not, in our opinion,

interfere with purely administrative matters except where absolutely

necessary on account of violation of any fundamental or other legal

right of the citizen. After all, the State administration cannot function

with its hands tied by judiciary behind its back. As Justice Holmes of

the US Supreme Court pointed out, there must be some free-play of

the joints provided to the executive authorities.

17. This Court also held in Divisional Manager, Aravali Golf Club &

another vs. Chander Hass & another - JT 2008(3) SC 221 and

Common Cause vs. Union of India & others - (2008) 5 SCC 511 that

1

Judges must observe judicial restraint and must not ordinarily

encroach into the domain of the legislature or the executive.

18. For the foregoing reasons, these appeals succeed and are

hereby allowed. The impugned judgment of the High court is set

aside and the writ petitions before the High Court stand dismissed.

No costs.

....................................J.

(MARKANDEY KATJU)

....................................J.

(T. S. THAKUR)

NEW DELHI;

OCTOBER 06, 2010