Pankaj Kumar And Ors. vs State Of U.P. Through The ...
2011 Latest Caselaw 1353 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 

 
Case :- SERVICE SINGLE No. - 2289 of 2011
 

 
Petitioner :- Pankaj Kumar And Ors.
 
Respondent :- State Of U.P. Through The Principal Secy. In The Dept.Home
 
Petitioner Counsel :- A.P.Singh
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Ritu Raj Awasthi,J.

Notice on behalf of the opposite parties has been accepted by the learned Chief Standing Counsel.

Heard learned counsel for the petitioners as well as Sri Badrul Hasan, learned Standing Counsel.

This writ petition has been filed challenging the transfer order dated 17.4.2011 including the decision/order/approval of the Regional Police Establishment Board dated 13.4.2011 by which the petitioners no. 1 to 5 have been transferred from Lucknow to Raibareli and the petitioner no. 6 has been transferred from Lucknow to Lakhimpur Kheri, on the ground that they are posted in the adjoining district to the home district which is not permissible as per the Government Order dated 11.7.1986. Challenge has also been made to the Government Order dated 11.7.1986.

Learned counsel for the petitioners submits that after coming into force the U.P. (Civil Police) Constables and Head Constables Service Rules 2008 (hereinafter referred to as 'Rules 2008') notified by the notification dated 2.12.2008, the Government Order dated 11.7.1986 has been superseded. Moreover, in view of Rule 26 of the Rules 2008, the matters not specifically covered by these rules shall be governed by the rules, regulations and the Orders applicable generally to Government servants serving in connection with affairs of the State.

Contention is that Rule 2008 does not prohibit the posting of police personnel in the home district or the adjoining district to the home district and, therefore, there can not be any embargo on the posting of the police personnel in the home district or districts adjoining to the home districts.

Learned counsel for the petitioners further submits that, in fact, Regulation 520 of the Police Regulation provides that the transfers which result in officers being stationed far from their homes should be avoided as much as possible, meaning thereby that the police personnel shall be posted near to the home districts.

Since Regulation 520 of the Police Regulations provided that transfers which result in officers being stationed far from their homes as far as possible should be avoided, therefore, the Government Order dated 11.7.1986 which is contrary to the Police Regulations is wrong and can not be allowed to deal with the transfers of the police personnel.

Moreover, the opposite parties on the one hand vide circular dated 21.3.2011 has exempted all those police personnel posted in the V.I.P. duties from the general transfers and on the other hand have made large scale transfers on the basis of the Government Order dated 11.7.1986 which amounts to discrimination.

It is further contended by learned counsel for the petitioners that the Full Bench of this Court in the case of Vinod Kumar & another Vs. State of U.P. & others (2010) 3 UPLBEC 2060, while considering the constitution of the Police Establishment Board vide notification dated 12.3.2008 has observed that Rule 26 of Rules 2008, makes applicable the rules pertaining to the Government servants i.e. the persons appointed to public services and posts in connection with the affairs of the State and as Regulation 520 deals with the transfers of police personnel, who are also a part of the public services of the State, therefore, insofar as the police personnel are concerned, the regulation pertaining to the transfers would continue to apply to them. In this regard he has relied on para 20 of the judgment in the case of Vinod Kumar (Supra).

"20. In our opinion, therefore, considering the fact that the Rule 26 of the Rules, 2008 makes applicable the rules pertaining to the Government servants, i.e. persons appointed to public services and posts in connection with the affairs of the State, and as Regulation 520 deals with the transfers of the police personnel, who are also a part of the public services of the State, therefore, insofar as the police are concerned, the Regulation pertaining to transfer would continue to apply to them. Therefore, though one of the Boards constituted is not strictly in terms of the directions issued by the Supreme Court in Prakash Singh (Supra), nonetheless considering the exercise that has to be done and the provisions for transfer, as contained in the Police Regulations, there has been sufficient compliance."

Further contention of learned counsel for the petitioners is that the constitution of the Regional Police Establishment Board is not as per the directions issued by the Apex Court in the case of Prakash Singh Vs. Union of India (2006) 8 SCC 1. The Full Bench in the case of Vinod Kumar (Supra) has only upheld the validity of constitution of four Police Establishment Boards by notification dated 12.3.2008, as such the impugned order passed on the basis of approval of the Regional Police Establishment Board are wrong and not sustainable in the eyes of law.

Learned counsel for the petitioners also submitted that earlier the transfer orders of the petitioners dated 29.5.2010 and 28.5.2010 were challenged in the Writ Petition No. 3838 (S/S) of 2010, which were quashed by the order dated 28.8.2010 with liberty to the opposite parties to pass afresh orders in accordance with law after approval from the Board constituted vide notification dated 12.3.2008 (wrongly mentioned as 12.8.2009). His contention is that when the Court had allowed the opposite parties to pass afresh orders with the approval from the Board as per the notification dated 12.3.2008, then it was not open for the opposite parties to have taken approval from the Regional Police Establishment Board, which has not been constituted as per the notification dated 12.3.2008 as the Regional Police Establishment Boards have been constituted vide notification dated 9.4.2010.

The learned Standing Counsel in opposition has submitted that the Government Order dated 11.7.1986, specifically deals with the transfers of the Police personnel including the Constables and Head Constables. It also provides that no police personnel shall be posted in the home district or the district adjoining to the home district. It is also submitted by the learned Standing Counsel that the Government Order dated 11.7.1986 is fully applicable even today after the Rules 2008 have been framed which only regulate the selection, promotion, training, appointment, determination of seniority and confirmation etc. of constables and Head Constables of civil police in the State of U.P. police force. The said Rules 2008 do not deal with the transfers of the police personnel.

It is further submitted that Rule 26 of Rules 2008, specifically provides that all those matters which are not covered under the rules shall be governed by the rules, regulations and the Orders applicable generally to the government servants meaning thereby that the Government Order dated 11.7.1986, which deals with the transfers of the police personnel shall be applicable even after coming into force of Rules 2008.

The learned Standing Counsel contends that validity of the constitution of the Regional Police Establishment Boards was not before the Full Bench in the case of Vinod Kumar (Supra), however, the Full Bench has upheld the theory of plurality of constitution of Police Establishment Boards as it has been observed by the Full Bench that looking into the vast area of the State and the total strength of the police force it is not possible to appoint one Board and accordingly the State by notification dated 12.3.2008 in exercise of its power under Section 2 of the Police Act,1861 had constituted four different Boards. Thus, the Full Bench has found the constitution of different Boards as proper. The Regional Police Establishment Boards constituted by the Government Order dated 9.4.2010 are headed by the Inspector General of Police (Establishment) and there is no illegality in the constitution of the said Boards.

A Division Bench of this Court in the case of State of U.P. & others Vs. C.P. Ravindra Singh and others, 2011 (2) ADJ 177 (DB), while setting aside the judgment passed by the learned Single Judge has come to the conclusion that in case the transfer orders have been passed on the basis of approval of the Regional Police Establishment Boards there is no illegality.

The learned Standing Counsel further submits that the Court while deciding the Writ Petition No.3838 (S/S) of 2010 by order dated 28.8.2010 had quashed the transfer orders dated 29.5.2010 and 28.5.2010 by which the petitioners were transferred, with liberty to the opposite parties to pass afresh orders in accordance with law after approval from the Board. His contention is that in the present case the Regional Police Establishment Board has granted approval which is sufficient as per the requirement of law and according to the directions issued by the Apex Court in the case of Prakash Singh (Supra) and observations made by the Full Bench in the case of Prakash Singh (Supra). Mere observation of the Court in its order dated 28.8.2010 to pass afresh orders after approval of the Board constituted as per the notification dated 12.3.2008 does not mean that only that Board which has been constituted by notification dated 12.3.2008 was required to grant approval and in case the approval has been granted by the Regional Police Establishment Board the order of transfer is bad.

I have considered various submissions made by the learned counsel for the parties.

So far as the contention of learned counsel for the petitioners that the Government Order dated 11.7.1986 stands superseded after coming into force Rules 2008, is concerned, it is to be noted that the preamble of Rules 2008 recites that the said rules have been framed to regulate the selections, promotions, appointments, determination of seniority and confirmation etc. of the Constables and Head Constables of civil police in the police force. A reading of these rules indicates that they do not deal with the transfer of police personnel. It is also to be seen that as per Rule 26 of the said Rules 2008, the matters which are not covered under these rules shall be governed by the rules, regulations and the orders applicable generally to Government servants. The Government Order dated 11.7.1986 specifically deals with the transfer of police personnel as such suffice is to mention that the said Government Order dated 11.7.1986 is duly applicable and enforceable in the present case.

So far as the contention of learned counsel for the petitioners that in view of Rule 26 of Rules 2008 only those Government Orders would be applicable which generally apply to the Government servants serving in connection with the affairs of the State, i.e. the transfer policies dealing with the Government servants are concerned, this Court is of the considered opinion that since the Government Order dated 11.7.1986 specifically deals with the transfer of police personnel, therefore, the Government Order dated 11.7.1986 would be fully applicable and the general transfer policy with respect to the Government servants would not be applicable in this case.

This Court had the occasion to consider the Government Order dated 11.7.1986 in Writ Petition No. 1781 (S/S) of 2011, Satya Narain Singh & others Vs. State of U.P. , wherein this Court while dismissing the writ petition held as under:

"So far as the contention of the learned counsel for the petitioners with regard to the discrimination in view of circular letter dated 21.3.2011 (wrongly mentioned as 24.3.2011) is concerned, suffice is to mention that the said circular letter relates to the transfer of the police personnel posted in V.I.P. duties. It is for the department to decide as to whether such police personnel posted in V.I.P. duties shall be subjected to transfers as per the Government Order dated 11.7.1986 or not."

The Government Order dated 11.7.1986 provides the guidelines for transfer of that police personnel, which also provide that they shall not be posted in their home districts or the adjoining districts to the home districts.

So far as the constitution of Regional Police Establishment Board is concerned, a Division Bench of this Court in the case of State of U.P. & others Vs. C.P. Ravindra Singh (Supra) has considered the Full Bench decision of this Court in the case of Vinod Kumar (Supra) which has upheld the theory of plurality of Police Establishment Boards and has found that in case the transfer order has been issued with the approval of the Regional Police Establishment Board that would not render it totally illegal. The relevant paragraph 14 in the case of State of U.P. & others Vs. C.P. Ravindra Singh (Supra) is quoted below:

"According to us, pluralistic view in the place and instead of singular view is one of the devices to maintain transparency. It avoids possibilities of motivated action, biasness or influence in the cases of transfer. To that extent, there is no conflict between Prakash Singh (Supra) and the steps taken by the State. The only issue is whether the State has strictly complied with or sufficiently complied with the direction of the Supreme Court in Prakash Singh (Supra). According to the Full Bench of this High Court in Vinod Kumar (Supra), direction has been sufficiently complied with. Learned Chief Standing Counsel has given an explanation by saying that the position of the State of Uttar Pradesh as regards its vastness and population may not be similar with various other States. Therefore, if the Board is constituted strictly in compliance with the direction of the Supreme Court then the State will not get full time engagement of such officers to maintain the law and order situation of the State. To that, it is desirable that the State should explain such position before the Supreme Court. It is expected that by now it has been done by the State. But so far as the existing position is concerned, this Division Bench will be governed by both, Prakash Singh (Supra) and Vinod Kumar (Supra) and a conjoint reading of both the judgments speaks that a mode or mechanism of plurality has been adopted by the State, in spite of the existing law. Therefore, this Court does not find any reason to negate the orders of transfer, as were impugned in the writ petition."

It is to be borne in mind that the Full Bench of this Court in the case of Vinod Kumar (Supra) while considering the constitution of Police Establishment Board constituted vide notification dated 12.3.2008 has upheld the constitution of various Police Establishment Boards headed by the Director General of Police as well as Inspector General of Police. The Full Bench in paras 18,19,20 & 21, observed as under:

"18.The judgment in Prakash Singh (Supra) was to ensure that in the matter of transfers and promotions etc., the officers and men would be considered based on their merit and uninfluenced by any political decision, patronage or consideration. Merely, because one of the functionaries named by post in the directions of the Supreme Court, is not in the Board, per se would not make the entire action of transfers void or non est. The administrative instructions are in exercise of the executive power of the State under Article 162 of the Constitution of India, which power extends to matters with respect to which the Legislature of the State has power to make laws. The transfers will have to be done in terms of the Police Regulations in force. To that extent, Rule 26 of the Rules 2008 will have to be so read with the expression 'orders applicable generally to Government servants serving in connection with the affairs of the State' which includes the Regulations. It is only in an area where conditions of service are not covered by the Act, Rules or Regulations, with the rules in the matter of conditions of service applicable to other Government servants, would be applicable. As long as the Regulations are in force, they will continue to be applicable in the matters of transfer. The Regulations also provide for regular transfers, which are transfers not on account of administrative exigency or in public interest. Rule 26 can not be read to mean that all existing rules and regulations in the matter of conditions of service including transfer are no longer in force. Rule 26 only contemplates a situation where there is a vacuum or no provision.

19. It is true that there may be no strict compliance in terms of the directions issued by the Supreme Court in Prakash Singh (Supra) insofar as one of the Boards is concerned. The Government has attempted to contend that the notification has to be read with the exercise of power under Section 2 of the Police Act. There is a power in the State Government under Section 2 to have issued notification constituting the Boards. The Section does not provide for the publication or laying of the Rules or Regulations made thereunder before the Legislature. In other words, the power conferred on the Government, as a delegate, to make rules is not subject to any control by the Legislature. Rules as held by the judgment of the Supreme Court can be made under Section 2 of the Police Act. The Government, in the absence of legislation, in exercise of its power under Article 309 of the Constitution should have made rules governing the conditions of service. In the instant case, there is legislation governing transfers, but there is no provision for Constitution of Boards. The Boards have been constituted by the State in exercise of its executive powers. It is now well settled that in an area, where rule or existing law is silent in the matter of conditions of service, administrative instructions can be issued to fill in the void or gap, which the State has done. However, we have held that the notification for reasons given cannot be held to be an exercise of power under Section 2 of the Police Act.

20.In our opinion, therefore, considering the fact that the Rule 26 of the Rules, 2008 makes applicable the rules pertaining to the Government servants,i.e.,persons appointed to public services and posts in connection with the affairs of the State, and as Regulation 520 deals with the transfers of the police personnel, who are also a party of the public services of the State, therefore, insofar as the police are concerned, the Regulation pertaining to transfer would continue to apply to them. Therefore, though one of the Boards constituted is not strictly in terms of the directions issued by the Supreme Court in Prakash Singh (Supra), nonetheless considering the exercise that has to be done and the provisions for transfer, as contained in the Police Regulations, there has been sufficient compliance.

21.In these circumstances, we are clearly of the opinion that, though we have found that the notification constituting the Board is not traceable to Section 2 of the Police Act, the same at the highest, amounts to an irregularity and not illegality and would not vitiate the transfers, if they have been done in terms of the Regulations and after the approval of the Board."

In this view of the matter, I am of the considered view that constitution of Regional Police Establishment Boards can not be said to be wrong.

In the present case, the transfer order of the petitioners has been passed after approval of the Regional Police Establishment Board as such it can not be said to be bad in the eyes of law.

So far as Regulation 520 of the Police Regulations is concerned, it provides as under:

520. Transfer of Gazetted Officers are made by the Governor in Council.

The Inspector General may transfer Police Officers not above the rank of Inspector throughout the province.

The Deputy Inspector General of Police of the range may transfer inspectors, sub-inspectors, head constables and constables, within his range; provided that the postings and transfers of inspectors and reserve sub-inspectors in hill stations will be decided by the Deputy Inspector-General of Police, Headquarters.

Transfers which result in officers being stationed far from their homes should be avoided as much as possible. Officers above the rank of constable should ordinarily not be allowed to serve in districts in which they reside or have landed property. In the case of constables the numbers must be restricted as far as possible.

Sub-inspectors and head constables should not be allowed to stay in a particular district for more than six years and ten years respectively and in a particular police station not more than three years and five years respectively. In the Tarai area (including the Tarai and Bhabar Estates) the period of stay of sub-inspectors, head constables and constables should not exceed five years."

The said regulation only provides that the transfers which result in officers being stationed far from their homes should be avoided as much as possible. It does not mean that the police officers/personnel should be posted in their home districts or the districts adjoining to the home districts. As per the said regulation the transfers which result in officers being stationed far from their homes should be avoided as much as possible. It does not even prohibit the transfer to far off places, as such, the contention raised in this regard by the learned counsel for the petitioners has no force.

The petitioners were earlier transferred by orders dated 29.5.2010 and 28.5.2010 and they had challenged the said orders by filing Writ Petition No. 3838 (SS) of 2010, mainly on the ground that the transfer orders have been issued with the approval of the Regional Police Establishment Board, which has not been validly constituted and, therefore the orders are bad. The writ petition was allowed and the orders dated 29.5.2010 and 28.5.2010 were quashed with liberty to the opposite parties to pass fresh orders in accordance with law after approval from the Board constituted by notification dated 12.3.2008.

Since the Full Bench in the case of Vinod Kumar(Supra) has upheld the validity of the constitution of various Police Establishment Boards by notification dated 12.3.2008 and relying on the aforesaid Full Bench decision, a Division Bench of this Court in the case of State of U.P. & others Vs. C.P. Ravindra Singh (Supra) has found that in case the transfer order has been issued with the approval of the Regional Police Establishment Board, it would not render the transfer order bad, I am of the considered opinion that in case the transfer order has been passed with the approval of the Regional Police Establishment Board, it would not render the order bad. The observation of the Court in the order dated 28.8.2010 passed in the Writ Petition No. 3838 (S/S) of 2010 is to be read in the manner that the approval of the Police Establishment Board duly constituted was required. Since the validity of the Regional Police Establishment Board has been upheld and the present transfer order has been issued with the approval of the Regional Police Establishment Board, the order impugned can not be said to be bad in law merely because it was observed by the Court in its order dated 28.8.2010 that the approval of the Board constituted by the notification dated 12.3.2008 was required.

In this view of the matter, I am of the considered opinion that there is no illegality or infirmity in the impugned orders. The petitioners are holding a transferable post. Transfer is an incident of service. They are supposed to work anywhere in the State of U.P. The petitioners have no right to claim their posting at a particular place.

For the aforesaid reasons the writ petition being devoid of merit is dismissed.

Order Date :- 26.4.2011

Arjun