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2009 DIGILAW 191 (ALL)

BHANU PRATAP v. STATE OF U P

2009-01-21

SUNIL AMBWANI

body2009
SUNIL AMBWANI, J. Heard Shri Vijay Gautam, learned counsel for the petitioner. Learned Standing counsel appears for the respondents. 2. By these writ petitions the petitioners serving as constables in civil police and posted at Ghaziabad have prayed for setting aside their transfer orders dated 2. 1. 2009 made by the Deputy Inspector General of Police, Meerut Zone-respondent No. 3; and the orders dated 6. 1. 2009 passed by the Senior Superintendent of Police, Ghaziabad-respondent 4 relieving the petitioners to join at the transferred places at Bulandshahar and Baghpat (within the Meerut Range, Meerut) by 8. 1. 2009. 3. Learned counsel for the petitioner submits that the transfer orders have not been made or approved by the police Establishment Board constituted by the State Government in terms of the Government Order dated 12th March, 2008, in compliance of the recommendations of the judgment of the Supreme Court in Prakash Singh and others v. Union of India and others, (2006) 8 SCC 1. He submits that the transfer orders are thus violative of the directions of the Supreme Court and the orders of the State Government dated 12th March, 2008 constituting the police Establishment Boards, in which in para 2, a Board consisting of (1) Inspector General of Police (Establishment) as Chairman (2) Dy. Inspector General of Police (Establishment) (3) the Superintendent of Police (Karmik) and (4) Addl. Superintendent of Police/dy. Superintendent of Police (Karmik), as members have been constituted. The transfer orders were not issued, nor have the approval of this Board, constituted for the officers of the rank of Sub- Inspectors of Police and below, including constables. 4. Learned Standing Counsel would contend, after seeking instructions from the department that the police Establishment Boards were constituted by Government Order dated 12th March, 2008. The Government Order states that so far as Indian Police Service and Provincial Civil Service, up to the level of Addl. Superintendent of Police, a civil Service Board is already in place in the State of U. P. constituted Government Order dated 19th May, 2007. With regard to subordinate police officer in para 2 the State Government has constituted four Police Establishment Board at different level for office in the categories (a) Asstt. Superintendent of Police (b) Deputy Superintendent of Police, (c) Inspectors of Police, and (d) Sub Inspectors and the officers below the rank of Sub Inspectors of Police. With regard to subordinate police officer in para 2 the State Government has constituted four Police Establishment Board at different level for office in the categories (a) Asstt. Superintendent of Police (b) Deputy Superintendent of Police, (c) Inspectors of Police, and (d) Sub Inspectors and the officers below the rank of Sub Inspectors of Police. By a subsequent Government Order dated 27th November, 2008 the State Government has after reiterating the Constitution of Police Establishment Boards by Government Order dated 12. 3. 2008, clarified that in the Inspector General Zones the Inspector General of Police, and in the Dy. Inspector General Range the Deputy Inspector General of Police of the Range shall continue to discharge their powers of transfers in their jurisdictions under para 520 of the U. P. Police Regulations. The Police Establishment Board will decide on the inter zonal transfers of these officers. 5. Shri Vijay Gautam submits that the recommendation No. 5 of the Supreme Court in Prakash Singhs case provides for constitution of Police Establishment Board, which shall decide all transfer, posting and promotions and other service related matters of the officers below the rank of Deputy Superintendent of Police. He submits that the transfer can be made only by the Police Establishment Board constituted for the purpose. The clarification in the Government Order dated 27th November, 2008 are in violation the directions of the Supreme Court in Prakash Singhs case and should not be considered for its implementation by the High Court. 6. Learned Standing Counsel submits that the Supreme Court did not provide for transfers to be made by the Police Establishment Board and that the directions have to be interpreted reasonably, in the context in which they were made. The Police Establishment Board is required to decide upon the transfers, postings and promotions and not to make or approve transfers, postings and promotions. He relies upon the definition of word decide in Oxford English Dictionary, which defines decide1 as a term to determine (a question, controversy or clause) by giving victory to one side or the other: to bring the settlement, resolve (a matter in dispute, doubt or suspense ). 7. He would submit that the State of U. P. has more than 1. 5 million men and women in police force. 7. He would submit that the State of U. P. has more than 1. 5 million men and women in police force. A Police Establishment Board cannot make each and every transfer, either within the district within the zone or in the State of U. P. If the word decide have to be interpreted as to make the transfers, the entire functioning of the police department shall come to standstill. The promotions have to be made by the statutory committees and authorities. Lastly he submits that the recommendations of the Supreme Court have persuasive value. The State Government has accepted the recommendations and has constituted the Boards and that when the difficulties were experienced the Range Deputy Inspector Generals and Zonal Inspector General of Police were allowed to make orders of transfers within their respective jurisdictions. These recommendations and orders, however, will not give the petitioners enforceable rights to challenge and to set aside the transfers on these grounds. 8. In order to appreciate the contentions raised by the parties, it will be beneficial to quote the directions in the judgment. In paras 5,11 and 12 the Supreme Court after considering the second report observed: "5. In the second report, it was noticed that the crux of the police reform is to secure professional independence for the police to function truly and efficiently as an impartial agent of the law of the land and, at the same time, to enable the Government to oversee the police performance to ensure its conformity to the law. A supervisory mechanism without scope for illegal, irregular or mala fide interference with police functions has to be devised. It was earnestly hoped that the Government would examine and publish the report expeditiously so that the process for implementation of various recommendations made therein could start right away. The report, inter alia, noticed the phenomenon of frequent and indiscriminate transfers ordered on political considerations as also other unhealthy influences and pressures brought to bear on police and, inter alia, recommended for the Chief of Police in a State, statutory tenure of office by including it in a specific provision in the Police Act itself and also recommended the preparation of a panel of IPS officers for posting as Chiefs of Police in the States. The report also recommended the constitution of the Statutory Commission in each State the functions of which shall include laying down broad policy guidelines and directions for the performance of preventive task and service-oriented functions by the police and also functioning as a forum of appeal for disposing of representations from any police officer of the rank of Superintendent of Police and above, regarding his being subjected to illegal or irregular orders in the performance of his duties. 11. The petition sets out the historical background giving reasons why the police functioning has caused so much disenchantment and dissatisfaction. It also sets out recommendations of various committees which were never implemented. Since the misuse and abuse of police has reduced it to the status of a mere tool in the hands of unscrupulous masters and in the process, it has caused serious violations of the rights of the people, it is contended that there is immediate need to redefine the scope and functions of police, and provide for its accountability to the law of the land, and implement the core recommendations of the National Police Commission. The petitioner refers to a research paper "political and Administrative Manipulation of the Police" published in 1979 by the Bureau of Police Research and Development, warning that excessive control of the political executive and its principal advisers over the police has the inherent danger of making the police a tool for subverting the process of law, promoting the growth of authoritarianism, and shaking the very foundations of democracy. 12. The commitment, devotion and accountability of the police has to be only to the rule of law. The supervision and control has to be such that it ensures that the police serves the people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures. Its approach has to be sen/ice oriented, its role has to be defined so that in appropriate cases, where on account of acts of omission and commission of police, the rule of law becomes a casualty, the guilty police officers are brought to book and appropriate action taken without any delay. Police Establishment Board (5) There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. Police Establishment Board (5) There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with the decision of the Board in exceptional cases only after recording its reasons for doing so. The Board shall also be authorised to make appropriate recommendations to the State Government regarding the postings and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotions/transfers/disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State. " 9. It is apparent from the reading of the judgment that the object of the Police Establishment Boards is to regulate transfers and to avoid political interference. The Supreme Court after considering the reports of the experts directed that there should be a departmental body dealing with the matters to decide all transfers, postings, promotions and other service related matters as these matters could not be left to serve political purpose. 10. There appears to be considerable force in the submissions raised by learned Standing Counsel that a large police force consisting of different categories of employees at different levels would require the issuance of large number of orders of transfers and postings. It will not be possible for the Boards constituted at the Headquarters to make or approve thousands of such orders but in such case the police officers if they are aggrieved can raise their grievance with the Police Establishment Board. 11. In the present case, the orders of transfers have been passed by the Deputy Inspector General of Police of the range, having powers to transfer the constables under Para 520 of the U. P. Police Regulations within the Zone. There is no pleading or complaint with regard to any arbitrariness, discrimination or political interference in these transfers. 11. In the present case, the orders of transfers have been passed by the Deputy Inspector General of Police of the range, having powers to transfer the constables under Para 520 of the U. P. Police Regulations within the Zone. There is no pleading or complaint with regard to any arbitrariness, discrimination or political interference in these transfers. Some of the petitioners have been posted at Ghaziabad for a very long period of time and that all these transfers have been made to the neighbouring district. 12. In the facts of the case, I do not find that the respondents have violated the recommendations of the Supreme Court in Prakash Singhs case. The transfers have been made within the powers conferred by the U. P. Police Regulations and the clarification issued by the Government Order dated 27th November, 2008. Even if for arguments sake it may be accepted that the transfers should have been made by the police Establishment Board1 or with its approval, there are no such directions nor can they be read in the orders, to give enforceable rights to the petitioners, to challenge the transfer orders under Article 226 of the Constitution of India on such ground. The directions of the Supreme Court are binding on all the authorities in India including the State of U. P and the police officers acting under their powers under the U. P. Police Regulations. The Supreme Court has not mandated that transfers, postings and promotions in breach of their recommendations are declared as illegal and inoperative. The Supreme Court has fixed the dates for implementation of the directions and is still monitoring the matter. 13. In case the petitioners have any grievance with regard to their individual transfers or hardships, they can invoke powers of the Police Establishment Board to decide the issues raised by them. At this stage, it will also be relevant to mention here that the Division Bench of this Court hearing Special Appeal No. 918 (S/b) of 2007 by its order dated 15. 11. 2007 has also considered the issue and has found the matter worth examining. In the decision of the learned Single Judge cited by the counsel for the petitioner the Court has not considered the effect of the implementation of the directions given by the Supreme Court. 11. 2007 has also considered the issue and has found the matter worth examining. In the decision of the learned Single Judge cited by the counsel for the petitioner the Court has not considered the effect of the implementation of the directions given by the Supreme Court. It simply held that if the transfers orders have not been passed in pursuance of the decision taken by the Supreme Court, the orders should not be implemented. In Writ Petition No. 4101 (SIS) of 2008 also the judgment was not discussed. 14. The writ petitions are accordingly disposed of with observations that in case the petitioners have any grievances with regard to their transfers, they can raise the issues for decision by the Police Establishment Board constituted for that purpose. .