Krishna Kumar Pandey, S.I. vs State Of U.P. And 02 Ors.
2013 Latest Caselaw 7539 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- WRIT - A No. - 70357 of 2013
 

 
Petitioner :- Krishna Kumar Pandey, S.I.
 
Respondent :- State Of U.P. And 02 Ors.
 
Counsel for Petitioner :- Vijay Gautam
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri Vijay Gautam, learned counsel for the petitioner and learned Standing Counsel for the respondents.

2. The writ petition is directed against the order of transfer dated 5.12.2013 transferring petitioner from Station Officer, Dildar Nagar, District Ghazipur to Crime Branch, Investigation Cell and thereafter again vide order dated 9.12.2013, he is transferred from Crime Branch to Police Station Saidpur as Senior Sub Inspector, which order has again been modified vide order dated 11.12.2013 and instead of Police Station Saidpur, petitioner's place of transfer from Crime Branch is made to Police Station Kotwali as Senior Sub Inspector.

3. Sri Vijay Gautam, learned counsel for the petitioner contended that as Station Officer, Incharge, petitioner is entitled for payment of special pay while as Senior Sub Inspector, the same would not be payable and therefore, amount to transfer of petitioner by way of punishment to place where he would be deprived of special pay, which would result in less emolument payable to the petitioner. He secondly contended that he was transferred and posted as Station Officer Incharge Police Station Dildar Nagar only on 22.8.2013 and in view of Apex Court's observation made in Prakash Singh Vs. Union of India, 2006(8) SCC 1, he could not have been shifted for a period of two years from the office of Incharge Police Station and the impugned order, in the teeth of aforesaid direction, is illegal. He also drew my attention to Government Order dated 26.12.2010 (Annexure 5 to the writ petition) whereby State Government has also provided that an officer posted as Incharge Police Station shall not be disturbed for a period of two years. In the light thereof, learned counsel for the petitioner contended that impugned transfer is in utter violation of aforesaid Government Order.

4. In other words, twin arguments advanced by learned counsel for the petitioner are that petitioner, working as Incharge, Police Station Dildar Nagar District Ghazipur having been transferred as Senior Sub Inspector has been deprived of payment of special allowance, which is admissible only when he is posted as Incharge Police Station and not otherwise. Secondly, that as per Government order dated 26.12.2010, he is entitled to continue as Incharge Police Station for at least two years and the impugned transfer having been effected within almost four months of the said posting, it is in violation of the said Government Order.

5. However, I find no force in either of the above submissions. From the record, it appears that petitioner is a Sub Inspector in Civil Police of U.P.Police Force, was posted at Ghazipur in October, 2012, where he reported joining initially at Reserve Police Line, Ghazipur and thereafter, was posted as Station Officer Incharge, Police Station, Karrda, where he joined on 12.10.2012. From Police Station Karrda he was transferred to Sohwal and then Dildar Nagar and continued to work there as Station Incharge Police Station. His contention that he has been shifted within four months of his posting as Inchage police station is apparently incorrect. About his posting in District Varanasi, wherefrom he has come to Ghazipur, he has not disclosed anything in the entire writ petition, whether there (at Varanasi) whether he was posted as Incharge Police Station or not and if yes, then for how much time.

6. Be that as it may, Government Order dated 26.12.2010, while contemplating a minimum two years period of posting as Police Station Incharge Inspector/Station House Officer, contemplates certain exceptions, whereupon even before expiry of the period of two years, such officer can be transferred and said exceptions are as under:

^^¼I½ mRrj izns'k v/khuLFk Js.kh ds iqfyl vf/kdkfj;ksa dh ¼n.M ,oa vihy½ fu;ekoyh 1991 ds vUrxZr foHkkxh; vuq'kklfud dk;Zokgh izpfyr gksus ij A

¼II½ ekuuh; U;k;ky; }kjk fdlh vijkf/kd ekeys esa nf.Mr fd;s tkus ijA

¼III½ fdlh Hkz"Vkpkj ds ekeys esa fyIr ik;s tkus ijA

¼IV½ fdlh dkj.ko'k vius in ds nkf;Roksa dk fuoZgu djus esa v{ke gksus ijA

¼V½ ;fn lEcfU/kr vf/kdkjh dk LFkkukUrj.k fdUgh fof'k"V ifjfLFkfr;ksa esa tufgr esa vko';d gksA**

(I) On departmental disciplinary proceeding being initiated under the U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) rules, 1991.

(II) On being punished in any criminal case by Hon'ble Court.

(III) On being found involved in any case of corruption.

(IV) On being incapable of discharging the responsibilities of one's post for any reason.

(V) If some specific circumstances warrant the transfer of the officer concerned in public interest."

(English Translation by the Court)

7. The above exceptions make it very clear that in public interest, an officer can be posted for shorter period as Incharge Police Station and it is not unexceptionable, inasmuch as, in certain contingencies, transfer from Incharge Police Station to elsewhere before two years is well contemplated in the said Government Order. It is not pleaded anywhere by the petitioner that none of the aforesaid exceptions are attracted in the case in hand and therefore, petitioner ought not to have been shifted from his position of Incharge Police Station.

8. Then comes the second question regarding special pay. It cannot be doubted that substantive rank and cadre of petitioner in U.P. Police Force is that of "Sub Inspector, Civil Police". It is not the case of the petitioner that his position, rank, status etc. is being affected adversely by means of impugned order. When posted as Incharge Police Station, it cannot be said that he was assigned a promotional position. The special pay, attached with the position of Incharge Police Station, is not on account of his posting in a promotional post i.e. in lieu of higher time scale pay but it is in consideration of some arduous nature of work, which one has to perform as Incharge Police Station. The special pay is of various kinds as is evident from Fundamental Rule 9(25) reads as under:

"Special pay, means an addition, of the nature of pay, to the emoluments of a post or of a Government servant, granted in consideration of,-

(a) the specially arduous nature of the duties; or

(b) a specific addition to the work or responsibility."

9. Since posting of Inspector, Incharge is neither higher in rank or in higher pay scale etc., it is not a right vested in him. On account of certain additional work or duties attached to the post of Incharge Police Station, special pay is attached with position which would attract Rule 9(25)(a) & (b). The Special Pay, therefore, when is provided keeping in view of Fundamental Rule 9(25), obviously it relates to the post having same designation or the same nature of duties, in the same time scale, though in addition to normal duties of such post, a Incharge Police Station has to perform some more duties for which special pay is provided. In such a case, it cannot be said that when one is shifted from his position as Incharge Police Station, to discharge duties as Sub Inspector or Senior Sub Inspector, it amounts to adversely affecting his status, position in any manner. The various kinds of special pay in Fundamental Rule 9(25) has been discussed and considered by Apex Court in P.G.Joshi and Ors. Vs. The Director General, Posts and Telegraphs, New Delhi, (1974) IILJ 514 SC and C.C. Padmanabhan & Ors. Vs. Director of Public Instructions and Ors., AIR 1981 SC 64, and I find support therefrom in taking the view as aforesaid.

10. In other words, special pay, defined in Fundamental Rule 9(25), as applicable in Uttar Pradesh, makes it clear that it is in lieu of specially arduous nature of duties or special nature of work or responsibility and not to confer a better or higher status on the Government servant. If a Government servant is required to perform some special arduous nature of duties or any special nature of work or responsibility, special pay, if provided, to be attracted and it will seized to be available as soon as the aforesaid duties, responsibilities, etc. is withdrawn either by withdrawing the duties etc. or on account of transfer and posting of such person to another post where such arduous nature of duties and responsibilities are not to be performed. The special pay, in the context of rule, as applicable in Uttar Pradesh, is in lieu of extra work and if no extra work is to be performed then the same is not payable. A Government servant has no right to claim that he is entitled, as a matter of right, to stay on a post attached with extra work and responsibilities etc., where, in recognition thereof, special pay is admissible, inasmuch as, the pay is only compensatory in nature to keep Government servant at par with others, inasmuch as, all other emoluments are same but for extra work of arduous nature of duties, responsibilities etc., an additional pay i.e. special pay is being given. That is how it has been interpreted by Apex Court also in the cases noted above with reference to Fundamental Rule 9(25) applicable to Central Government employees where clauses (a) and (b) were pari materia to clauses (a) and (b) of Fundamental Rule 9(25), as applicable in Uttar Pradesh.

11. In view thereof, in my view, here is not a case where transfer of petitioner from the position of Incharge Police Station to Senior Sub Inspector, Police Station Kotwali, can be said to be punitive in nature or adversely affecting his pay and admissible allowance etc. to which he is entitled as a matter of right and therefore, impugned order warrants no interference.

12. The writ petition lacks merit.

13. Dismissed.

Order Date :- 19.12.2013

KA