Director General Of Police & 3 vs Khimjibhai Pethabhai Sarvaiya

(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. We have heard Mr.Jayswal, learned AGP for the appellants and Mr.Shethna, learned Counsel for the respondent - original petitioner.

2. It prima facie appears that when the original petitioner had already earlier filed petition being SCA No.12791 of 2010 for challenging the Page 1 of 5 C/LPA/174/2015 ORDER very transfer orders and when the said petition came to be dismissed by the Coordinate Bench of the learned Single Judge, the present petition was not maintainable for the same subject matter. The principles analogues to constructive res judicata as provided under Section 11 of the CPC read with the Explanation-IV are applicable to the writ proceedings under Article 226 of the Constitution of India. The petitioner did make statement in the petition at paragraph 5, but there is no consideration by the learned Single Judge in the impugned order. It can, prima facie, be said that the second petition, which has been entertained by the learned Single Judge could be said as not maintainable.

3. Apart from the above, the learned Single Judge has relied upon the decision of this Court in the case of J.S. Solanki v. Principal chief Conservator of Forests and Another, reported in 1986(1) GLR 41 while passing the impugned order, but in the very decision, it has been observed, inter alia, at paragraph 27, the relevant of which reads as under:-

"27. ... We may at the cost of repetition state Page 2 of 5 C/LPA/174/2015 ORDER that the order of suspension­cum­transfer should be very sparingly passed in only those rare cases where transfer or suspension alone is not sufficient to achieve the objective of containing the delinquent's sphere of influence."

4. In the affidavit filed before the learned Single Judge at paragraph 10 it was, inter alia, stated as under:-

"10. It is further submitted that with a view to see that a neutral investigation may be made for the above three offences registered against the petitioner and no hindrance may arise and that the damage may not be caused to the witnesses, second time petitioner was transferred to Jamnagar. At Jamnagar during the suspension of the petitioner, his behaviour was not found proper and therefore, the DGP, Gandhinagar vide Order No.KMK/1609/KH/RAJ RURAL/1230/10 dated 31.10.2010 changed the Headquarter during suspension of the petitioner at Bharuch. Thus the transfers of the petitioner are made on account of complaints registered against him no prejudice is observed for the same. The transfers are made on account of his serious misconduct during the service and his own faults, as all the complaints registered against him in the District to have neutral investigation can be made, he has been transferred to Bharuch."

5. Hence, it could not be said that there were no extraordinary circumstances warranting transfer simultaneously with suspension. Under these circumstances, on merits we find that the appeal deserves consideration and the order passed by the learned Single Judge deserves to be stayed.

respondent - original petitioner, contended that there is no detrimental effect to the appellant and the order passed by the learned Single Judge also not complied with. Hence, on these two grounds, Court may decline stay.

7. In our, prima facie, view, detrimental effect is always to be considered in light of the detriment to the administration and not to any individual officer, who has preferred appeal. If the transfer is stayed detriment would be to the witnesses and the inquiry. It is true that the order has not been complied with, but when the order is challenged and when this Court finds that the order passed by the learned Single Judge deserves to be stayed, in our view, the present case is not such where the interim relief should be declined on mere grounds that the order is not complied with.

8. In view of the above, following orders:-

(a) Appeal deserves to be admitted. Hence, Admit.

(b) By interim order, it is directed that the order passed by the learned Single Judge dated 23.7.2012 so far as grating interim relief in Page 4 of 5 C/LPA/174/2015 ORDER terms of prayer 8(B) qua the order dated 18.8.2010 and 13.1.2011 shall remain stayed and suspended.

9. It is also observed that it would be open for either side to move the learned Single Judge for final hearing of the main SCA and at that stage, rights and contentions of both the sides shall remain open and the learned Single Judge shall be at liberty to take independent view of the matter, without, in any manner, influenced by the order passed by this Court in the present appeal.

10. The Civil Application is disposed of accordingly.

(JAYANT PATEL, J.) (G.B.SHAH, J.) vinod Page 5 of 5