Shivaji Dubey vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 20629 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 8
 

 
Case :- WRIT - A No. - 3752 of 2022
 

 
Petitioner :- Shivaji Dubey
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And Others
 
Counsel for Petitioner :- Gaurav Mehrotra,Akber Ahmad,Chinmay Mishra,Rani Singh,Utsav Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Utsav Mishra, learned counsel for petitioner as well as learned Standing Counsel for respondents.

2. It has been submitted by learned counsel for petitioner that petitioner was initially appointed on the post of Constable in 36th Battalion, P.A.C., Ramnagar Varanasi on 09.10.1998. Subsequently, the services of the petitioner were transferred to mounted police on 25.01.2003 as the petitioner was a distinguished sportsman and had participated in various horse riding competitions. It is on account of his distinguished sports career that the petitioner was also given an out of turn promotion from the post of constable, Mounted Police, Cadre to the post of head constable, mounted Police on 11.04.2006. In the year 2010 while the petitioner was working on the post of Head constable, he applied for and appeared in the departmental examination for promotion to the post of Sub-Inspector (Civil Police). Despite petitioner appearing in the departmental examination in 2010 his result of the said examination was not declared and the petitioner continued to work on the post of Head Constable in the mounted police.

3. The petitioner was again recommended for out of turn promotion to the post of Sub-Inspector (Mounted Police) on 19.11.2010 and continued to work on the post of Sub-Inspector. It is only on 27.01.2018 that the result of the ranker examination for promotion on the post of Sub-Inspector in the civil police was declared where the petitioner was declared to be selected and on the basis of the said selection the petitioner was offered appointment on the post of Sub-Inspector (Civil Police). Pursuance to which he joined on 20.06.2018 and immediately after joining on the post of Sub-Inspector (Civil Police), the petitioner moved an application before the Additional Director General of Police (Establishment requesting him that he may permitted to remain in mounted police cadre rather than there being transferred to civil police. His request was even forwarded by the S.S.P., Lucknow by means of his letter dated 01.02.2019 and subsequently the petitioner preferred repeated applications on account of the fact that he was an skilled horse rider and an equestrian who had represented the Uttar Pradesh Police in various horse riding competitions and wanted to remain in mounted police cadre rather than being transferred to the civil police.

4. The applications of the petitioner remained unheeded on account of which fact the petitioner was constrained to approach this Court by means of Writ Petition No. 30912 of 2021 which was disposed of by means of judgment dated 24.12.2021 with a direction to the Director General of Police, U.P. to consider the representation of the petitioner for him being retained in the mounted police within a period of six weeks. The Director General of Police has rejected the representation of the petitioner by means of impugned order dated 10.02.2022 which has been impugned in the present writ petition.

5. The application of the petitioner has been rejected on account of two grounds. Firstly, his services have been confirmed in the civil police as he has spent two years in civil police and once his services have been confirmed he losses his lien in the mounted police and consequently there was no occasion to consider his request for transfer in the mounted police. The second reason stated is that a new set of rules known as Uttar Pradesh Mounted Police Service Rules, 2016 has come into operation where there is no provision for inter cadre transfer and accordingly bereft of any provision in this regard the representation of the petitioner could not favourably be considered and has been rejected.

6. Learned counsel for petitioner while assailing the impugned order has submitted that with regard to the fact that petitioner has been confirmed in the civil police cannot be a ground for rejection of the representation and claim of the petitioner for being transferred in the mounted police. He submits that petitioner was given out of turn promotion in the mounted police and his services were also confirmed in the mounted police on 04.09.2014. The petitioner had applied for the departmental promotion to the post of Sub-Inspector in civil police in the year 2010 at which point of time neither were the services of the petitioner confirmed and the petitioner was working on the post of head constable and for better career prospects he had made various representations. The respondents took 08 years time to consider the application of the petitioner and declared results of the ranker examination and in the meanwhile certain developments had taken place with regard to services of the petitioner in the mounted police where he had already given out of turn promotion to the post of Sub-Inspector and his services were also confirmed. Hence, it is stated that mere fact of being confirmed in civil police would not run against transfer of the petitioner back to the mounted police.

7. The second argument of learned counsel for petitioner is that immediately on joining to the post of sub-Inspector in civil police the petitioner preferred a representation through D.I.G. on 05.07.2018 and also through Senior Superintendent of Police, Lucknow who forwarded the same on 01.02.2019 for continuance of the petitioner in the mounted police. It is stated that subsequently the rules have come into operation and had the respondents considered the request of the petitioner at the time when the same was made then the rules would not have obstructed the said consideration.

8. He further submits that in any view of the matter there is no bar in the said rules for transfer of the services of the petitioner in mounted police. Lastly, it is contended by learned counsel for petitioner that according to Police Act, 1861, Section 2 provides that there shall be a single police force for state of U.P. He submits that bifurcation of the cadre into various sub cadres is for administrative exigencies and in any view of the matter the cadre remains unitary with the Director General of Police as its head. He further submits that there is no bar in transferring a person to one sub-cadre to other sub-cadre and this can always been done by the head of the department. In this regard he further submits that in a bunch of writ petitions decided by this court the leading being Writ A No. 7264 of 2022 (Sunil Kumar Chauhan and others Vs. State of U.P. & Ors.), an statement was made by the State of U.P. before the Court where the issue pertain to transfer of a police officer from civil police to P.A.C. The said petition was opposed by the State on similar grounds that it would amount to transfer to a different cadre but before the said Court a statement was made in paragraph No. 10 of the said act that all police officers and entire police establishment of State being one police force by virtue of provisions contained in Sections 1, 2 and 12 of the Act of 1861 and the Court relying upon the said submissions in paragraph No. 20 held as under:-

"20. In view of above provisions there cannot be a dispute that according to Act, 1861 there is one Police Force in the State and all other Police Force are included therein and for that Regulation 396 of U.P. Police Regulations is framed under Act, 1861. The Police Force consists of Provincial Police, Civil, Armed and Mounted, Government Railway Police and Village Chowkidars. Therefore, PAC is a part of one Police Force. UPPAC Act, 1948 and rules framed thereunder, i.e., erstwhile UPPAC Rules, 2008 and thereafter UPPAC Rules, 2015 provides procedure for selection of Constable and Head Constable, their promotion and pay etc. There are provisions already exist which has certain overlapping also between Civil Police and PAC. Regulation 525 of U.P. Police Regulations also provides transfer from Armed Police to PAC and vice versa. Section 5 of UPPAC Act, 1948 declares Members of PAC to be deemed Police Officers and accordingly it's Constables and Head Constables are definitely fall under the purview of a ''Police Officer', and as such, according to Regulation 525, they can be transferred to Civil Police and also returned back to PAC."

9. Relying upon the provisions of the U.P. Police Regulations and most specifically Regulation 525 this Court held that Police Officers according to Regulation 525 can be transferred to civil police and also return back to P.A.C. meaning there by that Police Officer can be transferred from one wing to another.

10. Learned Standing Counsel on the other hand has opposed the writ petition and submits that once services of the petitioner has been confirmed in the civil police there is no provision for him being transferred back to the mounted police and also that with regard to police officers the mounted police rules have been framed in 2016 when there is no such provision regarding his transfer as sought by the petitioner and supported the impugned order. He further submits that once the services of the petitioner has been confirmed in the civil police he looses his lien in the mounted police.

11. It is noticed that initially the petitioner was worked in the mounted police where considering his distinguished sportsmanship equestrian, he was given out of turn promotion. It is further noticed that it was a better career prospects, the petitioner has moved an application to participate in the ranker examination for promotion to the post of Sub-Inspector in civil police in the year 2010.

12. Before the result could be declared which in any case after a lapse of eight years, the petitioner was promoted to the post of Sub-Inspector in the mounted police and his services were also confirmed. When the result of the ranker examination was declared in the year 2018, immediately thereafter, he made request to transfer back in the mounted police, the representations were given to the Dy. Inspector General of police as well as S.S.P., Lucknow recommended the candidature of the petitioner for being transferred back to the mounted police. The application of the petitioner has been rejected by the Director General of Police on the ground that once the petitioner has joined in civil police, his lien in the mounted police has lapsed and consequently he cannot be sent back and that new rules for mounted police has come into effect in 2016 where there is no provision for being sent back to the mounted police. It is noticed that the State Government itself has submitted before this Court in a bunch of writ petitions that the police force is an unified single force where personnel can be transferred from one wing to another. It is on the basis of submission of the State Government that this Court returned a finding relying upon the provisions of Regulations 525 of the Police Regulations where there were no obstruction of the transfer to the civil police and P.A.C. and vis-a-vis. This court also considering to observe that present matter should have been decided immediately at the level of Director General of Police himself considering the fact that petitioner is a distinguished sportsman which fact has been recognized by the respondents themselves who have given him out of turn promotion on account of his career in distinguished sportsman caliber.

13. Needless to say that sportsman of such a caliber of the petitioner can demonstrate his skills more in the mounted police rather than in the civil police and as such it should always be endevour by the State Government to promote sports and sportsman and whenever such distinguished persons come to their knowledge they should be dealt in a positive manner rather than create obstructions in their career prospects.

14. This court has further noticed that immediately after his promotion to the post of sub-Inspector in civil police, the petitioner has made a representation which remained pending and no orders were passed thereon and it is only after intervention of the court after much lapse of time the same was rejected by means of impugned order. This court is of the considered view that considering the fact that police is one unified forceheaded by the Director General of Police and specially the finding of this court that the police officers can be transferred from civil police to P.A.C. and from any other wing of the police back to the mounted police, this Court does not find any impediment in exceptional circumstances for exercise of powers by the Director General of Police for transfer of a personnel.

15. The question of lien also does notpostulate in the present case as the mounted police and the civil police fall within the same genus of police officers and they are only units of the same force for administrative convenience. All these wings combined together at the level of Inspector General of Police/Director General of Police and this fact also clearly demonstrates that both these wings are controlled by senior officers in their administrative capacity and as well as appropriate orders and directions can be passed by them for transfer of personnel.

16. A Full Bench of this Court had a . to consider this question in the case of Constable No. 892530207 Om Prakash Singh & Ors Vs. State of U.P. through its Principal Secretary, Home Dept., Lucknow & Ors, (Special Appeal No. 616 of 2011) and it was held as under:-

"20. For these reasons, we answer the questions which have been referred to the Full Bench in the following terms:

(i) A police constable working in the civil police who has rendered service for more than ten years can be transferred to another branch, as explained above, in view of the provisions of Regulation 525 of the Uttar Pradesh Police Regulations;

(ii) The government railway police is a branch of the police force and hence the transfer of a civil police constable who has put in more than ten years' service to the government railway police would not be prohibited, subject to compliance with the norms stipulated in Regulation 525 of the U.P. Police Regulations."

16. It is for the aforesaid reasons that the impugned order is arbitrary and liable to be set side and accordingly the writ petition is allowed. The order dated 10.02.2022 is quashed. The matter is remitted back to the Director General of Police to pass a fresh order in light of the observations made by this court in the present writ petition and specially looking into the fact that petitioner is a distinguished sportsman and as such power shall always vests in the head of department.

17. Let necessary consideration be made expeditiously, say, within a period of eight week from the date a certified copy of this order is produced before him.

(Alok Mathur, J.)

Order Date :- 12.12.2022

Ravi/