- (1.) THE petitioners seeks quashing of his transfer order dated the 9th of March, 1994 (Annexure -5 to the writ petition).
(2.) THE contention of the petitioner is that the transfer has been made out of malice and for political reasons, hence the same be quashed. THE petitioner . has very good record in the past and has been performing his duties to the utmost satisfaction of the superiors. On the 29th of October, 1993, the police had an encounter with the men of known gang, who were committing heinous crimes in the area concerned. In that encounter one of the persons died, who was wanted by the police in various cases, including kidnapping and other crimes. This infuriated the gang members and having access to the government through one Shri Daddu Prasad, inflicted punishment on the petitioner by transferring him from the area concerned. Heard learned counsel for the petitioner and learned standing counsel. It is necessary to give facts to appreciate controversy of this case. Petitioner's case is he was posted at Mau in district Banda on 24-8-1992 in order to curb the crime situation on account of frequent cases of dacoity, murders, kidnapping etc. On 24-10-1993 police had an encounter with the gang of Bharat Kurmi in which one member of that gang Chhota alias Kallu Kol was killed, who was wanted by the police. The said gang having support of one Shri Daddu Prasad, who haviDg rapport with Bahujan Samaj Party Leader Shri Kanshi Ram, made target on petitioner and other police officers of this area, resulted into mala fide transfer of the petitioner and also other police officers en masse. The other police officers en masse were transferred on 8-3-1994 is referred in paragraph 22 of the petition. Apart from three transfers of petitioner, which we are referring hereinafter, the petitioner was transferred on 9-3-1994 to Etah to P.A.C. with no active field work. These transfer, according to the petitioner, is mala fide.
(3.) IT is urged during short span of time petitioner is transferred three times, firstly, on 7-2-1994 from Mau Circle to Karvi Circle, then transferred back to Mau on 9th February, 1994 with additional charge of circle Karvi, then again transferred back to Karvi on 17th February, 1994 and finally to Etah on 9-3-1994 as aforesaid which is malafide. Next it is contended as it amounts to punishment in the absence of opportunity, be quashed. In a matter of transfer the Court normally does not interfere except in cases perpetuating injustice. In the present case we find allegations have been made to construe transfer of the petitioner mala fide. When en masse transfers are ordered as a consequence of any public upsurge or public reactions, the factors leading to it can more appropriately be judged by executive which is also within its realm. Many a time this executive decision is to check emotional public upsurge to bring such disorder in control or may be to satisfy local sentiments which is political in nature without possible fixation of any dereliction of duty on any such officers, though there may be converse cases also. This will depend on fact of each case. It will be difficult for Courts to judge it on the basis of affidavits only without any material before it and even it any materials are broughts it would be inappropriate of the Courts to take upon such executive functions. Constitution has divided functions of judiciary, legislature and executive and in a healthy functioning none should transgress on others jurisdiction except as complementary to each other and of course in the matter of injustice, citizen's liberty judiciary unhesitatingly comes to the rescue. That is why in every mala fide action Courts do not hesitate to strike it down. But where executive action does not fix any deliberation of individual responsibility it cannot be treated as imposing any penalty or with penal consequence. The same is the present case of en masse transfer. When any inquiry is undertaken and any responsibility is fixed with adverse consequences it creates right in such person to give him opportunity. We do not feel the present action amounts to penalising the petitioner. Though we do feel it is the onerous duty of the Government after taking initially such action, to scrutinise each case and in case there are efficient and useful officers, but has to face such wrath for public conscience has to be brought back in the main stream to utilise their services instead of keeping them in cold storage. It ultimately affects the administration.;