JUDGMENT
Bhagabati Prasad Banerjee, J.
1. The petitioner has challenged validity of the order of transfer passed on 12th May, 1992, transferring him from the post of Officerin-Charge, Gariahat Police Station to Enforcement Branch, alleging that the said order of transfer was made in the interest of public service. Along the petitioners several other officers who were also transferred by CO. No. 162, dated 12th May, 1995, which reads as follows :
“The following transfers in the rank of Inspector of Calcutta Police (Investigating Cadre) are order with immediate effect in the interest, of public service : –
1. Shri Prodyut Bikas Das (Offg.) of North Division, Additional Officerin-Charge, Syampukur P.S. is posted as Officer-in-Charge Jorabagan P.S.
2. Shri Prabir Chakraborty (Offg.) of South Division, Additional Officerin-Charge Bhowanipore P.S. is posted as Officer-in-Charge New Alipore
3. Shri Manas Kr. Bandyopadhyay of South Division, Officer-in-Charge New Alipore P.S., is posted as Officer-in-Charge Alipore P.S.
4. Shri Santi Ranjan Gangully of South Division, Officer-in-Charge Gariahat P.S. is posted to Enforcement Branch.
5. Shri Gananath Mukhopadhyay (Offg.) of North Division, Additional Officer-in-Charge Amherst St. P.S. is posted to South Division as Officerin-Charge, Gariahat P.S.
6. Shri Brojeswar Bhattacharjee of North Division Officer-in-Charge Jorabagan P.S. is posted as Officer-in-Charge Amherst St. P.S.
7. Shri Adhir Ghosh (Offg.) of Detective Department is posted to Special Branch.
8. Shri Raghabendra Bandyapadhyay (Offg.) of Detective Department is posted to Special Branch. (CO. No. 162 dated 12.5.95.)
2. The case of the petitioner is that the petitioner was transferred from the Enforcement Branch to South Division as Officer-in-Charge of Gariahat Police Station only by an order dated 22.02.1994, in terms of CO. No. 54 and that petitioner actually served at the Officer-in-Charge, Gariahat Police Station for about one year and three & half months.
3. The petitioner joined in the Calcutta Police Force in the year 1964 as Sub-Inspector of Police. He was initially posted at Port Commission where he successfully worked while he was posted as Sub-Inspector of Police in Police Stations in North Port and South Port, Garden Reach. He was promoted as Inspector of Police on 13th December, 1984, and worked as Officer-in-Charge for Metro Railways for more than two years and five months. He was first Officer-in-Charge of the Metro Railways, Calcutta, on 21st May, 1987, he was transferred as Officer-in-Charge at Ekbalpur Police Station and then by an order dated 16th November, 1988, he was transferred to Security Control & Arms Department, as a result of which, he only worked about one year five months as Officer-in-Charge of Ekbalpur Police Station. It is on record that while working at Ekbalpur Police Station, he received several awards and his service was highly commended by the highest authorities. After he was transferred to the Security Control Organisation, he worked in three important sections of the said Department as Officer-in Charge, like the Foreign Registration Office, Rishra Section. On 30th March. 1992, he was again transferred and posted as Officer-in-Charge in New Alipore Police Station only for a period of ten months, and on 3rd February, “1993, he was transferred to the Enforcement Branch where he worked in three important sections like Foreign Marketing Control, Statistics and Clerk Section as Officer-in-Charge. After one year he was transferred as Officer-in-Charge of Gariahat Police Station on 22nd February, 1994. On the basis of these facts the petitioner filed a writ application challenging the validity of the order of transfer alleging that the said order of transfer was passed in violation of the provisions of Rule 28 Chapter XVII of Police Regulation, Calcutta, Vol. 1. The writ application was admitted by Satyabrata Sinha, J., by an order dated 16th May, 1995, and His Lordship passed an order directing the Respondents not to give effect to the order of transfer in view of the statements made by the petitioners that they had been transferred five times within a span of three years. The Respondents contested the matter and the Commissioner of Police filed an affidavit-in-opposition of the matter.
4. Mr. Bholanath Sen, learned Counsel appearing on behalf of the petitioner, contended that the order of frequent transfer is prohibited by Rule 30 of the said Rules wherein it is provided that the number of transfer should be reduced to a minimum, and in this connection reference was made to the decision of the Supreme Court in the case of Varadha Rao v. State of Karnataka, , it was observed that –
“One cannot deny that frequent, unscheduled and unreasonable transfer can uproot a family, cause irrepairable harm to Government Servants and drive him to despairation. If it serves the education of children and leaves numerous other complexities and problems and results in hardships and demoralization, it therefore, follows that the policy of transfer should be reasonable and fair and should apply to everybody equally.”
5. Similar view was taken by the Supreme Court in the case of Amar Chand Dalami v. Mr. Justice G. C. Sohani, acting Chief Justice, High Court of M.P., reported in (1987) Supp. SCC, page 31, wherein the Supreme Court had stated-
“But we would like to observe that members of Subordinate Judiciary should not be frequently transferred before the expiration of the period laid down by the High Court for transfer in regard to any particular station and as far as possible no transfer should be effected in mid-term unless compelled by administrative exigencies. Otherwise, it would not only cause personal hardship and inconvenience to the members of the Subordinate Judiciary but will also have the effect of demoralizing them and would be likely to affect the performance of judicial work.”
6. The Supreme Court, in the case of Union of India v. S. L. Abbas, , held that an order of transfer is an incident in service. Who should be transferred where is a matter for the appropriate authority to be decided. Unless the order of transfer is vitiated by male fides or it is made in violation of any statutory powers, the court cannot interfere.
7. In Rajendra Roy v. Union of India, , the Supreme Court also reiterated this position and held that unless such order of transfer is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the court should not interfere with the order of transfer. Reference was also made to judgment of the learned Single Judge of this Court in the case of Mahatab v. District Inspector of Schools, reported in 91 Calcutta Weekly Noted, wherein it was held by Mahitosh Mazumdar, J., (as His Lordship then was) that an order of transfer can be passed for administrative reasons. But it is incumbent for the Respondents to be between the courts for relevant administrative reasons or the reasons justifying the order of transfer. It is true that the transfer is not one of the conditions of service but an incident of service. But the present day trend of passing an order of transfer for getting rid of an inconvenient officer on personal which and caprice, such an authority would be nothing but an order of service vitiated circumstances or extraneous matters. Lastly, reference was made to the decision of Bankim Chandra Roy, J., (as His Lordship then was) in the case of Birendra Chandra Ghosh v. State of West Bengal Ors., on considerations of the provisions of Regulation 877 and 839 and 836 of the Police Regulations involved and held that in view of the provisions of Regulation 836 of the Police Regulation, Bengal, transfer of an incumbent within nine months from the date of posting in the absence of exigencies seeking leave, promotion, retirement, serious misconduct and other unpreventable causes is bad and violative of Regulation 836 of Police Regulations. The said order of transfer in that case was also held to be illegal and void as in the order of transfer it was not stated, who is the officer to move first.
8. The provisions of Regulation 836 of Police Regulation Bengal is in pan materia with the provisions of Regulation 31 of the Police Regulations Calcutta. Regulation 835 of Police Regulation Bengal which provided that the number of transfer should be reduced to a minimum as in the case of Regulation 30 of Police Regulation, Calcutta. On interpreting the identical provisions of Police Regulations, Bengal, His Lordship held that it is only in the case of exigencies of sickness, leave, promotion, retirement, serious misconduct and other unpreventable causes a certain number of changes is unavoidable, and in that case transfer had been made in the middle of the session and no reason was recorded as to the unavoidable administrative reasons of the sickness or leave which made imperative of the authorities concerned to make it the order of transfer. The lordship held that mere statement made in the order of transfer that the same had; been made in the interest of public service will not make the order of transfer valid unless it conforms with the statutory provisions and accordingly His Lordship held that-
“The least circumstance I am constrained to hold that the matter of transfer has been made with utter prejudice of the aforesaid circulars of the government as well as Police Regulations 835(b) and 836(a) of the Police Regulations, Bengal, 1943. Furthermore, in the matter of handing over charge, there has been a total non-observance of the provisions of Regulation No. 839, which requires that charge of an office, station or post shall be made over and taken over by the Leavein-Officer personally to each other persons at the head quarters at the former’s acceptance with the special permission had been made of the Inspector General or the provincial government, as the case may be.”
9. On the basis of the aforesaid decisions, Mr. Sen submitted that in the instant case, there had been clear violation of the Regulation 30 of the Police Regulations, Calcutta, by which it requires that the number of transfers should be reduced to a minimum and the minimum period for stay of an Officer-in-Charge of a police station as provided in Regulation 28(b) was three years at a time and that the Respondents had no power to transfer before expiry of the three years in any police station except in the exigenncies of sickness, leave, promotion, retirement, serious misconduct and other unpreventable causes which make certain number of changes unavoidable as provided in Regulation 30. In this case, it was the submission of Mr. Sen that the Commissioner of Police had been stated nothing in the affidavit that the said period of three years had been curtailed for any reason which is specifically mentioned in Regulation 30 of the Police Regulation, Calcutta. On behalf of the Respondent, Mr. Biswas submitted that the order of transfer does not suffer from any illegality and reliance was placed in the judgment delivered by the Division Bench of this Court in State of West Bengal v. Kamal Mukherjee, in Appeal No. of 1994, matter No. 2190 of 1994, judgment delivered on 14th June, 1994, wherein it was held that transfer is a condition of service and it is well settled unless a clear case of mala fides or a case which has shown that the order of transfer has been made in violation of the statutory provision, the court cannot interfere the order of transfer. Where to post and for which period one may be posted, which are clearly within the jurisdiction of the administration. In the case the writ petitioner Kamal Mukherjee’s case was that there were Sergeant who had been kept for periods more than five years in different police stations and accordingly Mr. Kamal Mukherjee’s case was that these Sergeants who had been kept in the police station for a period of more than five years in aggregate should have been transferred from Police to Wireless before transferring him, which according to him was in violation of provisions of Article 14 of the Constitution and it was the submission that while making transfer the parties concerned should follow a uniform practice and shall transfer all persons who were there for more than five years in the police station to non-police station before the transfer of Mr. Mukherjee. That contentions were not accepted by the Division Bench and held that the transfer of the writ petitioner therein could not be interfered with as he has completed the maximum period for which he is entitled to remain and when somebody had been retained beyond that period he cannot complain violation of Article 14 and 16 of the Constitution of India. Reference was also made to the case of Chief General Manager v. Rajendra Chandra Bhattacharjee, , where the Supreme Court held that a government servant has no legal right to insist for being posted at a particular place. The provisions of Regulation 28 of Chapter XVII of Police Regulation, Calcutta, 28, 29, 30, 31, which are relevant for the purpose of disposal, are as follows :-
“28. (a) Without special orders of the Commissioner, no member of the force, of and below the rank of Inspector, shall remain at a time longer than two years in any station or more than five years in a division or unit.
(b) The tenure of service of an Officer-in-Charge in a police station, Sergeants in Security Control and the staff employed in the Police Training College, Barrackpore, shall, however, be three years at a time.
(c) The Deputy Commissioners/Assistant Commissioners in charge of the divisions and the unite will forward list of officers and men completing the term of their postings indicated in clauses (a) and (b) above, on the 1st of January, every year, to the Central Reserve Officer on or before the 1st of December.
29. Transfer and postings of the Police Prosecutors will be made by the Commissioner, who will report the same to the State Govt. for publication in the official gazette.
30. (a) The number of transfers should be reduced to a minimum. The exigencies of sickness, leave, promotion, retirement, serious misconduct and other unpreventable causes make a certain number of changes unavoidable. The Deputy Commissioners should therefore, abstain from making or recommending transfer unless unavoidable.
(b) Officers who are granted leave for less than four months shall, on the expiry of their leave, ordinarily be sent back to the station from which they took leave, unless they have completed their full period of service there as laid down in regulation No. 28.
31. (a) Every order transferring one officer to take the place of another shall indicate which officer is to move first. Such officer, and every officer transferred who has not to be relieved, shall start within seven days of the date of the order unless he is specially directed to move earlier or later.”
10. The Supreme Court in the case of S. L. Abbas v. Union of India, (supra), have clearly laid down that an order of transfer could not be interferred with by the court unless it is found that the order of transfer is vitiated by mala fides or so made in violations of any statutory provisions. The Supreme Court in the case of Union of India v. D. Mohan, reported in (1995) ) SCC 115, observed even case of disobediance of guidelines the court can interfere. Accordingly, in the instant case it is clear case where the petitioner has been transferred before the expiry of the statutory period of three years as provided in Regulation 28(b) of the said Regulation. The said period is fixed by the statute without any express power of relaxation of that period. But the provisions of Regulation 28(b) has to be read with the provisions of Regulation 30 and on construrtion of both the provisions it is evident that the said period of three years at a time in any police station as an Officer-in-Charge can be curtailed or reduced only in the case where the exigencies of sickness, leave, promotion, retirement, serious misconduct and other unpreventable causes which makes certain number of changes unavoidable. At the same time it has to bear in mind that the number or transfers should be reduced to a minimum. In the instant case, it is clear that the petitioner was subjected to frequent transfers without having any regard to the statutory provisions by the Commissioner of Police. The Supreme Court, in the case of Dr. Amerjeet Singh Ahluwalia v. State of Punjab, had held that even when there is an administrative instruction in having the force of law, the State could not at its own sweet will depart from it without rational justification. In Union of India v. K. P. Joseph, , the Supreme Court held that to say that an administrative order can never confer any right would be too wide a proposition. There are administritive orders which confer rights and impose duties. Accordingly, the Police Regulation, Calcutta, which lays down the Regulations, which includes provides the Rules and Regulations relating to the administration of police force in Calcutta which have been approved by the Government on the bisis of the Constitution of India and also certain other Acts, changed the Rules framed by the Commissioner of Police, Calcutta, with the approval of the Govt. and the statutory provisions on which certain Regulations have been based have been included in the marginal citations of this Calcutta Police Regulations. In the preamble of the Rules it has been stated that such Regulations are statutory rules and have force of law. Accordingly, in my view, the Commissioner of Police cannot make any transfer in violation of the provisions of Regulation 28(b), read with Regulation 30 of the said rules. In the instant case, the transfer order has been passed long before the period mentioned in the said Regulation and that in that affidavit-in-opposition the Commissioner of Police had not stated that there are circumstances for which a departure was made in public interest. The cases where departure could be made has been provided in Regulation 30, but no such case have been made. But, on the contrary, the case made out in the affidavit-in-opposition that at any time any Police Officer would be transferred from any place and any time. I am inclined to hold that such a view is wholly erroneous. When there are statutory rules, the rules must be followed and in the instant case it is clear that the order of transfer has been passed in clear violations of the mandatory provisions of Regulation 28(b), read with Regulation 30 and 31 of the said Regulations. The order of transfer has not also stated who is the Officer, who is to move first as mandatorily required to be inducted in the order under Regulation 31. All this shows that the authorities concerned were not aware of these statutory conditions and restrictions and there had been total non-application of mind by the authorities concerned before passing the order of transfer. When statutes had given certain rights that right cannot be taken away except in accordance with the guidelines given in the statute. But, unfortunately, in the affidavit-in-opposition, nothing has been said why the said period was curtailed and in what circumstanced. It appears that the authorities concerned took it that the authorities have an absolute right to transfer any Officer from any place according to their sweet will which is not permissible in view of the Regulations mentioned above. The Supreme Court, in B. Varadha Rao’s case (supra) has also depricated the practice of frequent unscheduled and unreasonable transfer. It was submitted by Mr. Biswas, appearing for the Respondent, that the order of transfer will not prejudice the petitioner. I am not inclined to accept such position in view of the fact that when a statute creates a right that right has to be preserved and given effect to. A prejudice cannot supercede a mandatory statutory provision that cannot dilute the provisions of a statute. The power of the authorities concerned to transfer are of course there and it is true that the administration should be allowed to run smoothly and the courts are not expected to interfere in the working of the administrative system of transfering officers to other places but at the same time the authorities have no jurisdiction to transfer in violation of the statutory protection or statutory restrictions made out in this behalf. If an order is stated to have been passed on administrative grounds or in exigency of public service cannot validate an order when the same has been passed in clear contravention of the statutory rules and regulations. In my view, as laid down by the Supreme Court ordinarily and normally, the court should not interfere with the order of transfer made on administrative ground unless a case of malafides or violation of rules has been made and in the instant case there had been a clear breach of statutory rules as has been made out by the petitioner and in affidavit-in-opposition filed by the Commissioner of Police, there was no whisper that no reason has been given, no case has been made out why the departure was made in the instant case. When there is a rule or even administrative instruction, the respondents cannot make any departure without any rational basis on the simple reasons that would be clearly violative of the provisions of Article 14 and 16 of the Constitution of India. The sweep of Article 14 and 16 is wide and pervasive. These two Articles embody the principles of rationality and they are intended to citation even as arbitrary, discriminatory actions taken by the State and that the State Government departs from the principles laid down by it dibit by administrative instruction and the departure is without reason and arbitrary. It would directly infringe the guarantee of equality under Article 14 and 16. This is laid down by the Supreme Court in Amarjeet Singh (supra), also respectively agree with the view taken by Bankim Chandra Roy (as His Lordship then was) in Virendm Chandra Ghosh v. State of West Bengal, when the Lordship had the occasion to consider similar and analogous provisions laid down in the Police Regulations, Bengal, which was in pari materia with the provisions of the Police Regulations Calcutta.
12. Admittedly, this was not a case of routine transfer as under Regulation 28(c) of the said regulation provides that the Deputy Commissioner or the Assistant Commissioner in charge of the Divisions and the Unit will forward list of officers and men completing the term of their postings indicated in clauses (a) and (b) of Regulation 28 on the 1st January of every year. This regulation also supports the contention of Mr. Sen that persons who could be considered for transfer were those who have completed their term under the Regulation 28 (a) & 28 (b) whereupon the appropriate authority will make the transfer at the beginning of the year. This was not done so in the instant case. No such list was prepared or followed by the Deputy Commissioners or the Assistant Commissioners nor the transfer was intended to be made at the beginning of the year. Admittedly, the Commissioner of Police had the power to transfer and post officers under his control from one place to another on the exigencies of service and/or in public service but such power has to be exercised strictly in accordance with the provisions of the regulation which had not been done in the instant case. It is well-settled principle that the courts will review the exercise of power and will ensure that the public body has observed the statutory procedural requirements. It was stated in Halsbury’s Laws of England, 4th Edition, Vol. 1(1), paragraph 19 that –
“19. Statutory and prerogative powers. If the repository of a power exceeds its authority, or if a power is exercised without lawful authority, a purported exercise of power may be pronounced invalid. The lawful exercise of a statutory power presupposes compliance not only with the substantive, formal and procedural conditions laid down for its performance but also with implied requirements governing the exercise of discretion. All statutory powers must be exercised in good faith, and for the purpose for which they were granted. The repository of a power must have regard to relevant considerations and not allow itself to be influenced by irrelevant consideartions. It must act fairly and reasonably.”
14. It was also stated in Halsbury’s Laws of England, 4th Edition, Vol. 1 (1), paragraph 26 that –
“26. Validity. If an act or decision, or an order of other instrument is invalid, it should, in principle, be null and void for all purposes and it has been said that there are no degrees of nullity”.
15. Accordingly, as the order of transfer has been made by the Commissioner of Police in violation of the provisions of Rule 28, 29, 30, 31, the same is illegal and void.
16. Accordingly, on the aforesaid reasons the order of transfer in so far as transfer of the petitioner from the post of Officer-in-Charge of Gariahat Police Station to Enforcement Branch, is set aside, and this order is passed without prejudice to the rights of the respondents concerned, to pass appropriate order in accordance with law and I make it clear that it has not been held by me that the Commissioner of Police has no power of transfer but he can transfer any Officer according to his choice subject to the conditions and restrictions imposed by the various provisions of the Police Regulations Calcutta which are admittedly statutory rules, have had the force of law and binding on him. Accordingly, the writ petition succeeds. The said order of transfer under CO. No. 162, dated 12th May, 1995, published in the Calcutta Police Gazette, dated 15th May, 1995, in so far as the transfer of the petitioner from South Division Officer-in-Charge, Gariahat Police Station to Enforcement Branch, is set aside.