‘ '77 .&W/-%aj/ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR. WRIT PETITION N(. 26 [‘6 OF 2005 VERSUS RESPONCENTS State of Chhattisgarh 1. Through — The Secretary of Home affairs (jail)Department, D.K.S Bhawan Raipur (C.G.) The Director General of Police 8r, Inspector General of Jails Chhattisgarh, Office at Raipur, Tehsil &' Distt. Raipur (C.G.) The Superintendent of Jail Central Jail Bilaspur Tehsil 8L Distt. Bilaspur (C.G.) The Superintendent of Jail Central Jail Jagadalpur Tehsil & Distt. Jagdalpur (C.G.) Superintendent Mini Jail Sukma, Tehsil— Sukma, Distt. Jagdalpur (C.G.) Shri Ghanshyam Prasad Ghosle, Warder (Prahri) Mini Jail Pendra Road, Jail Line Pendra Road, Distt. Bilaspur (C.G.) f WRIT PETITION UNDER ARTICLE 2261227 OF THE CONSTITUTION OF INDIA FOR ISSUE OF AN APPROPRIATE WRIT IN THE NATURE OF MANDAMUS/GERTIORARI ETC. OR DIRECTION/ORDER IN THE LIKE NATURE ETC. @ / PETITIONER riday Narayan Singh, S/o 58/ about 42 years Warder @2/K ’ .......... Pendra Road Tehs11 Pendra «g. é“ $\“ $ Road, Dlstt. B11gspur, (C.G.) HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH m Writ Petition No. 2616 of 2005 Hriday Narayan‘ Singh — Versus — State of Chhattisgarh ami othérS Shri RakaSh Pamieyy counSel fer thés patitioniar, Shri Ramakzmt MiShra, GOVt, Advocate for the Stata. Shm’ Yashvallt Singh, Advocate for respondezgt No. 6. ORDER Haard, 2. By this petitioh under Article 226/227 of the. Canstitution of India, the petitioner haS Challenged the order dated 11-8—2004 Annexure 13—2 passed by respondent No, 1 whereby he has been transferred from Sub Jajl, Pendra Road to $11?) Jail, Sukma and the respondent. no. 6 has been transferred from Sub Jail, Sukma to Sub Jail, Pendra Road. He has also Chalienged the order dated 28-5— 2005 Annexure P—l whereby Ins representation against. the transfer order dated 11-8-2004 has been rejected. § Counsel for the petitioner submitted that. he initially filed a Writ Petition bearing WP. No. 4996/ 2004 (Hriday Narayan Singh —V- State of Chhattisgarh and others), which was decided vide order dated 12—4-2005 with a direction to the respondents to consider and decide the representation of the petitioner, Counsel submitted that he submitted a representation, Which has been decided on 28-5- 2005 as per Annexure P—l whereby his representation has been \gejected. Counsel submits that while deciding the representation, ”(ha mltavant rulas have. not bean considemd and it has heal rajactétd mcachanjcajly without'assigning any reason. Then he has flled this pEtjtion. 4. Notices W€r€ issued and the returns on behalf of respondents no. 1 to 5 and respondent no. 6 have been flied. 5. Counsel for the petitioner submits that. transfer is regulated by Statutory Rules known as C.G. Prisons Rules. Counsel for the petitioner submits that according to Rule 202 of the Prisons Rules, 1968, no warder can be appointed to a jail in his native district nor to a jail in a district in which he has been long resident. Counsel for the petitioner further submits that under Rule 208 of the Prisons Rules, 1968, procedure relating to transfer of warders have been prescribed. He also submitted that according to rule 208(2), transfer of warders from one circle to another shall not be made except for special reasons and then only mutual interchange shall be allowed, with the consent of the parties concerned and the Superintendent of both headquarters jail. Each ‘warder so transfer shall pay his own travelling expenses. Counsel for the petitioner submits that in the instant case, respondent. no.6 has been brought. to his own district and the petitioner has never consented for mutual transfer. 6. Counsel for respondents submits that the petitioner has remained in Pendra Road for last. 5% years, and therefore he has been transferred. 7. Btifore proceeding fuIThEI‘, it is pErtinant to Quote Rules 200, 201, 202 and 208 of the C.G./M.P. Prisons Rubs, 1968:- “200. Superintendent of headquarter Jails empowered to appaint warders.- The wcirders appointment within transfer each and circie promattbn shall respectively rest with ’the of Superintendent of the Headmmrters jail of such. Circle. 20?. Warders on appaintment be informed of conditions of service.- Every warder entertained in. any jail shall be infomed at the time of entertainment, that ordinariiy his appointment is made subject to his. being liable to serve at (my jail within the iimits of the circle in which the jail is situated but that in the interests of the service it may be necessary to transfer him to any other circle in the State, 202. Warders not to be appointed to jails in their native districts and period after which they be transferred.- Not warder shall be appointed to a jail in his native district nor to ajail in a district in which he has been long resident No warder shalt ordinarily be allowed to remain in a Central jail for more than Jive years or in District Jail for more than three years, or btksubsidmry‘ Jail for more than one year, 208. Procedure relating to transfer of warders.- (1) When a’ transfer of a warder is ordered by the Superintendent of a headmtarters jail, he shall )7x a date on which the warder concerned shall start for his destination, allowing sufficient time for his instructions to be received and to be acted noon, and the warder shall be dispatched on the date fixed unless this is impracticable on account ‘of sickness or for some other equally important reason, in which case timely intimation shall be given to the Superintendent of the headquarters jail, to enable him to make other arrangements and fix. some other date if necessary, No casual or other leave shall be granted to a warder whose transfer is ordered, so as to have ejject after the date for his despatch ('2) Transfer of wardens from (me circle to another shali not been made except for special reasons and then only mutual interchange shall be allowed, with. the consent of the parties concerned and the Supenintendent of both headmmrters jails. Each warder so transfer shall pay his own .traueiling expenses.” 8. Though the transfer is 2m exigenoy of service and Courts d0 not. interfere in transfer matters, but when Statutory Rules are violated, the matter falls within the ambit of Judicial Review. As per Rule 200 of the C.G. Prisons Rules 1968, the appointment, transfer and. promotion of warders within each circle shall rest with the Superintendent. of the Headquarters jail of such Circle. According to Rule 202, no warder shall be appointed to a jail in his native district. Further according to Rule 208(2) of the Rules, the transfer of warders from one circle to another shall not he made except. for special reasons and then only mutual interchange shall be allowed, with the consent. of the parties. As contended by the learned counsel for the petitioner, the petitioner never consented for mutual transfer with the respondent No. 6 The respondent no. 6 has been transferred on his own expenses, but. the petitioner has never consented for his transfer. The petitioner could only be transferred Within the circle that too by the Superintendent of Jails. The transfer made is against. the statutory rules. The policy cannot over ride the statutory rules. 9. In Abani Kama Ran vs. State of On'ssa. reported in 1995 Snppl.(4} SCC 1 69, the Supreme Court opined that. a. transfer which ‘ § is an incidant of servica is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer. 10. The Apex Court further in the case Mrs. ShiLpi Bose vs. State of Bfhar reported in AIR 1991 SC 539 has held that the Courts should not interfere with transfer orders when are made in public interest or on administrative grounds unless they are made in violation of mandatory statutory rules or on the ground of mala tide 11. in View of the law laid down, it is amply clear that where the rules have been framed as in the present case, then the rules have to be observed and followed strictly and breach of rule is actionable and is within the ambit. of judicial review. Since the transfer is in violation of the specific rule framed under the (‘GMP. Prisons / Rules, the same is not sustainable. 12. Having thus considered the facts and circumstances of the case and material on record, and in View of the discussions made in foregoing paragraphs which goes to show that the transfer is against the Statutory Rules, the impugned order Annexure P-2 dated l 1-8— 2004 and the order dated 28-5-2005 Annexure P—l rejecting the representation made by the petitioner are liable to be and are set aside accordingly. The petition is allowed with costs. / Counsel fee as Rs. IOOO/—. r s - ' ,