16 Oct 2010

No restriction on transfer of police personnel: Supreme Court

Can a police personnel argue that he should not be transferred to a particular area? The High Court had accepted the argument setting aside the order of transfer. Against the said decision the State Government had come in appeal to the Supreme Court where it was argued that even though the general practice was not to transfer senior personnel from their respective ranges, there was no prohibition under the Police Rules and thus the transfer orders had been wrongly set aside.

The Supreme Court in its decision [State of Haryana v. Kashmir Singh] setting aside the decision of the High Court declared the law inter alia as under; 
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
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. 
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 Judges must observe judicial restraint and must not ordinarily encroach into the domain of the legislature or the executive.

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