1 WP-5642-2011 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5642 OF 2011 Shri Bhausaheb Raosaheb Andalkar ...Petitioner Versus The State of Maharashtra & ors. ...Respondents Mr.Uday Warunjikar i/b. Mr.Balasaheb Deshmukh for petitioner. Mr.A.B. Vagyani, AGP for resp.nos.1 to 4. CORAM: B. H. MARLAPALLE & SMT. NISHITA MHATRE, JJ. October 17, 2011. P.C. 1. Heard Mr.Warunjikar with Mr.Deshmukh, the learned counsel for the petitioner who holds the post of Police Inspector with the Maharashtra State Police. By an order dated 25/1/2011 he came to be transferred from 2 WP-5642-2011 Pune Rural to Amravati on administrative grounds and, therefore, the said mid term transfer order was challenged by the petitioner in O.A. No.94 of 2011. The said O.A. has been disposed off as infructuous by the impugned order passed by the Tribunal on 6/5/2011. 2. It was contended by the petitioner before the Tribunal that the transfer order was in violation of Section 4(4) of the Maharashtra Government Servants Regulation of Transfers and Prevention of Delay in Discharge of Official Duties Act, 2005 (for short “the Transfer Act”). It was also alleged that the petitioner was transferred under political pressure. The State Government filed reply before the Tribunal and pointed out that the mid term transfer order was issued in compliance with the requirements of Section 4(4) of the Transfer Act and the proposal placed before the Chief Minister was approved and thereafter the transfer order was issued. In support of his prayer for interim stay before the Tribunal, it was contended by the petitioner that he may be allowed to continue till 1st April 2011 and in any case he would be due for regular transfer during April – May 2011. In the Original Application itself it was averred that the petitioner was ready and willing to go to the place of transfer during the regular transfers that may be effected in April – May 3 WP-5642-2011 2011. The transfer order was stayed by the Tribunal and when the OA came up for final order on 6th May 2011 the Tribunal noted that on account of interim stay the petitioner had continued beyond April 2011 and he himself had shown his readiness and willingness to accept the transfer order in regular course and that may be issued in April – May 2011. In any case, for regular transfers Section 4(4) may not come in the way of the Government and the Tribunal, therefore, noted the same and held that the challenge to the transfer order dated 25/1/2011 had become infructuous and disposed off the OA as such. 3. Mr.Warunjikar, the learned counsel for the petitioner at the threshold submitted that the petitioner has been relieved from duty from the Rural Police, Pune but he is presently on sick leave and has not reported at Amravati. He submitted that the impugned transfer order dated 25/1/2011 was contrary to the directions issued by the Supreme Court in the case of Prakash Singh and ors. Vs. Union of India and ors. [(2006) 8 SCC 1]. Mr.Warunjikar invited our attention to the directions issued by the Supreme Court and more particularly for constitution of the Police Establishment Board. The said directions read as under: 4 WP-5642-2011 “(5) There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with decision of the Board in exceptional cases only after recording its reasons for doing so. The Board shall also be authorized to make appropriate recommendations to the State Government regarding the posting and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotion / transfer / disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State.” 5 WP-5642-2011 4. As a step forward indicating the compliance of the directions issued by the Supreme Court in Prakash Singh’s case (Supra), the Government of Maharashtra vide its G.R. dated 25th July 2008 has constituted the Police Establishment Board at the State level and it consists of, (i) Director General of Police : Chairperson (ii)Additional Director General of Police (Establishment) : Member (iii) Additional Director General of Police (L & O) : Member (iv) Commissioner of Police, Mumbai : Member (v)Inspector General of Police : Ex-Officio Secretary (Establishment) 5. Clause 1A of the said GR states that the Police Establishment Board at the State level shall exercise powers and perform functions as shown therebelow. Sub-clause (a) of Clause 1A of the said GR reads as under: “(a) The Board shall decide all transfers, postings, promotions 6 WP-5642-2011 and other service related matters of officials of and below the rank of Inspector of Police. However, transfers will be decided within the purview of the Maharashtra Government Servants Regulation of Transfer and Prevention of Delay in Discharge of Duties Act, 2005.” 6. It was submitted by Mr.Warunjikar that the second part of the above sub-clause (a) of Clause 1A of the GR dated 25th July 2008 is contrary to the directions issued by the Supreme Court in Prakash Singh’s case for constitution of the Police Establishment Board and as per Mr.Warunjikar the decision of the Police Establishment Board for the transfers of Police Officers upto the rank of Police Inspector shall be final and the Transfer Act cannot be made applicable to such transfers. He, therefore, urged that even if the Original Application filed by the petitioner has been disposed off as infructuous, he made out a good case to quash the transfer order dated 25/1/2011 and to allow the petitioner to continue at Pune with the Pune Rural Police. 7. We are not impressed by these arguments. The petitioner himself had stated before the Tribunal that he was ready and willing to move out 7 WP-5642-2011 of Pune during the regular transfers that may take place in April – May 2011, when he was already due for regular transfer and, therefore, the Tribunal disposed off the OA as infructuous. We do not find any error in the said view taken by the Tribunal so as to cause interference in a writ petition filed under Articles 226 and 227 of the Constitution. 8. However, we make it clear that for the purpose of regulating the transfer orders of Police Officers and having regard to the directions issued by the Supreme Court in Prakash Singh’s case, the recommendations of the Police Establishment Board on transfer and postings of Police Officers shall not be ordinarily interfered with while processing such transfers under the Transfer Act. As directed by the Supreme Court in Prakash Singh’s case, if the State Government does not find itself in agreement with the recommendations made by the Police Establishment Board on such transfers, the State Government may, only in exceptional case and after recording its reasons for doing so, take a contrary view or different view than the recommendations of the Board. In short it is mandatory for the State Government while invoking the powers under the Transfer Act to respect the decision of the Police Establishment Board for the transfer of police officers covered by the 8 WP-5642-2011 directions issued by the Supreme Court in Prakash Singh’s case and the transfers of such police officers cannot effect, unless the Police Establishment Board decision is placed before the Competent Authority under the Transfer Act. 9. Save and except the above clarifications, the petition is rejected. (SMT.NISHITA MHATRE, J.) (B. H. MARLAPALLE, J.)