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Allahabad High Court · body

2009 DIGILAW 3446 (ALL)

RISHI PAL SINGH v. STATE OF U. P.

2009-11-09

PANKAJ MITHAL

body2009
JUDGMENT Hon’ble Pankaj Mithal, J.—Petitioner who is a Sub-Inspector (Special Category) in U.P. Police has challenged the order dated 16.9.2009 passed by the Deputy Inspector General of Police (Establishment), U.P. Police Headquarters, Allahabad transferring him from district Gautam Budh Nagar to Mau in public interest with the approval of Police Establishment Board. 2. On behalf of the petitioner a supplementary affidavit and then a second supplementary affidavit has been filed. Learned Standing Counsel was earlier allowed time to obtain instructions and to file counter affidavit. A counter affidavit as well as a supplementary counter affidavit has been filed by the learned Standing Counsel on behalf of respondents No. 1 to 5 and respondent No. 7 to which even rejoinder affidavit has been filed. The counsel for the parties as such agree for final disposal of the writ petition at the admission stage itself. Accordingly, having heard Sri Vijay Gautam, learned counsel for the petitioner and the learned Standing Counsel for the respondents at length, I proceed to decide the matter finally. 3. Before addressing various points which have been canvassed by the learned counsel for the petitioner in order to assail the impugned order, it is tride to mention that under the service jurisprudence transfer of an employee who holds a transferable post is a normal feature and has been recognised throughout as an incident of service. In the matter of the transfer, the Government/employer has a wide discretion and it is the employer who is the best judge to utilise the service of its employee and to place and post him at its discretion accordingly. The employee has no legal say in the matter of his posting except to bring to the notice of the authority concerned his personal difficulty or any hardship. The employee as such, has no vested right either to insist for a particular post or to be posted at a particular place or to stick to a particular one. In fact, transfer has been considered necessary in public interest and to maintain efficiency in public administration. The employee as such, has no vested right either to insist for a particular post or to be posted at a particular place or to stick to a particular one. In fact, transfer has been considered necessary in public interest and to maintain efficiency in public administration. Therefore, it has been settled by a catena of authorities that ordinarily transfer orders are not to be interfered with on the judicial side until and unless it is shown that the order of transfer passed is without jurisdiction; is in breach of any statutory rule or it has been motivated by malice of fact or law or is proved to be punitive, vindictive or stigmatic in nature. 4. It is in the above settled legal background that I have to examine the validity of the impugned order. 5. The first submission of the learned counsel for the petitioner is that the Police Establishment Board (hereinafter referred to as “the Board”) which had granted approval to the transfer is not properly constituted as per the directions of the Apex Court in the case of Prakash Singh and others v. Union of India and others, (2006) 8 SCC 1 and, as such, there is no approval by the Board and the order of transfer stands vitiated. The only defect pointed out in the constitution of the Board is that the Director General of Police is not the Chairman of the Board as it is headed by the Inspector General of Police (Establishment). 6. In reply to this argument, learned Standing Counsel has submitted that in the case of Prakash Singh (supra) the Apex Court has merely issued guidelines for the better administration of the Police Force and one of the guidelines provides for establishment of a Police Establishment Board in each State for the purpose of transfer, posting and promotion and other matters relating to the services of the officers of the Police Force. In pursuance of the guidelines so issued by the Supreme Court, the Principal Secretary, U.P. Government vide letter dated 12.3.2008 notified six different Boards for supervising transfer, posting, promotion and other service related matters of the police department depending upon the category of officers. In pursuance of the guidelines so issued by the Supreme Court, the Principal Secretary, U.P. Government vide letter dated 12.3.2008 notified six different Boards for supervising transfer, posting, promotion and other service related matters of the police department depending upon the category of officers. The Board in respect to the officers of the Police Force of the rank of Sub-Inspector and below comprises of Inspector General of Police (Establishment), Deputy Inspector General of Police (Establishment), Superintendent of Police (Karmik) and Additional Superintendent of Police (Karmik) and Deputy Superintendent of Police (Karmik). The transfer of the petitioner has been approved by the aforesaid Board and, as such, there is no illegality. 7. No doubt, the directions/guidelines issued by the Supreme Court in the case of Prakash Singh (supra) are mandatory in nature, being one issued in exercise of power under Article 142 of the Constitution of India, but to find out the true mandate of the said guidelines it is imperative to underline the object behind issuing the same. 8. Police force is a disciplined force which comprises of persons who are not only specialised and skilled but are charged with the preservation of public order and tranquillity; promotion of public health and safety; and with prevention, detection and investigation of crime. Such persons in uniform are distinguishable from common man so that a person in need may recognise and approach them easily for necessary assistance. Therefore, the duty of the police personnel is basically to serve the public and to maintain the rule of law. Their approach has to be service oriented. The commitment, devotion and responsibility of the police personnel has to be to the rule of law so that they serve the people impartially, irrespective of their status and position. The police force therefore, has to maintain professional independence free of interference and influence of the Government. 9. Realising the importance of the police force in a democratic set up, the Government of India appointed a National Police Commission to comprehensively review the police administrative system so as to secure its professional independence and to provide a supervisory mechanism which may dispense with unhealthy interference, influences and pressure in the matter of frequent and indiscriminate transfer of officers of the police force on political considerations. The Commission so appointed submitted various reports in phases and the ultimate recommendation was to the effect that the police force be granted professional independence to enable it to work impartially as an agent of law so that the rule of law does not become a causality and the offenders are brought to book without any outside pressure or influence. It was with this object; to frame a new Act for the police force as recommended by the National Police Commission; and to constitute various boards for the purposes of ensuring that the police performs their duties and functions free from any pressure with the aim to serve the law of the land and the people that guidelines were issued by the Supreme Court in the case of Prakash Singh (supra) till appropriate legislation in terms of the guidelines so issued is framed. One of the guidelines so issued provided for the creation of the Police Establishment Board in each State comprising of Director General of Police and four other senior officers of the department to decide about the transfer, promotion and posting and other service related matters police officers up to a particular rank. Thus, in pith and substance the idea behind the creation of Police Establishment Board is to avoid frequent and indiscriminate transfers of the police officers at the behest of the Government. The guidelines issued by the Apex Court though mandatory but cannot be interpreted like a statute and in case the guidelines are principally followed and implemented in the true tenor as per the ratio decendi of the Prakash Singh case (supra) there would be no error in the constitution of the Board. 10. In view of the object behind issuing the guidelines in the case of Prakash Singh (supra) it is obvious that the purpose is to streamline the police administration and to make the police force more efficient, free from all outside pressure, particularly from the Government side. Thus, the constitution of the Board which includes senior officers of the Police Department having specialised knowledge of the police administration is sufficient compliance of the guidelines so issued by the Apex Court. The non-inclusion of the Director General of Police as its Chairman by itself would not make the constitution of the Board illegal as it is otherwise able to serve the purpose for which it has been established. 11. The non-inclusion of the Director General of Police as its Chairman by itself would not make the constitution of the Board illegal as it is otherwise able to serve the purpose for which it has been established. 11. Reliance has been placed upon a decision of a learned Single Judge of the Lucknow Bench of this Court in Civil Misc. Writ Petition No. 1525 of 2009 Sunder Singh Solanki v. State of U.P. and others decided on 4.9.2009 to the effect that the State or its instrumentality have got no right to avoid the directions issued by the Hon’ble Supreme Court. 12. The aforesaid decision, in no way helps the petitioner, inasmuch as the guidelines/directions so issued by the Apex Court have not been flouted and rather have been carried out in its true character and nature. 13. The Secretary, Government of Uttar Pradesh vide letter dated 12.8.2009 has further provided that the decisions taken by the Board so established are ultimately to be further approved by the Director General of Police before passing of any order by the superior officer/authority concerned. This is to put a further check on the exercise of any power in the matter of transfer, promotion and posting of the officers of the police force. 14. In view of the aforesaid direction so issued providing for further approval of the Director General of Police the irregularity, if any, in the constitution of the Board stands cured and the transfer would not stand vitiated on account of non constitution of the Board strictly in accordance with the guidelines of the Supreme Court. It is not the case of the petitioner that the approval of the Director General of Police was not taken before affecting the transfer. In my opinion, therefore, there is no substance in the above argument. 15. Besides the above, in the counter affidavit in paragraph 12 it has been stated that the Supreme Court itself has subsequently appointed a Committee under the Chairmanship of Hon’ble Mr. Justice K.T. Thomas, retired Justice of the Supreme Court to supervise the implementation of the guidelines laid down in the case of Prakash Singh (supra). 15. Besides the above, in the counter affidavit in paragraph 12 it has been stated that the Supreme Court itself has subsequently appointed a Committee under the Chairmanship of Hon’ble Mr. Justice K.T. Thomas, retired Justice of the Supreme Court to supervise the implementation of the guidelines laid down in the case of Prakash Singh (supra). The said Committee has not pointed out any defect in the implementation of the guidelines by the State of U.P. or in the constitution of the Police Establishment Boards in U.P. Thus, when the Apex Court itself is monitoring the implementation of the aforesaid guidelines through a Committee appointed for the purpose, the petitioner is no one to complain that the Board is not properly constituted by means of this petition and the proper forum, if any, for the petitioner to raise the issue either before the said Committee or to approach the Supreme Court itself. 16. In the aforesaid facts and circumstances, in so far as the police Establishment Board that has granted approval to the transfer of the petitioner is concerned has subserved the object with which the guidelines were laid down by the Supreme Court, the approval so granted would not stand vitiated only for the reason that the Director General of Police has not been included as one of its members specially when the approval granted by the Police Establishment Board is further required to be approved by the Director General of Police. 17. Thus, in effect the guidelines issued by the Supreme Court with regard to the creation of the Police Establishment Board have been followed and implemented by the State Government in pith and substance according to the true spirit. Any technical infraction in the implementation of the said guidelines cannot be a subject of consideration by this Court. 18. The second argument from the side of the petitioner is that the transfer of the petitioner is in violation of the Government Policy dated 6.6.2009 as there is no approval of the Chief Minister. 19. Learned Standing Counsel, to counter the said argument, has submitted that the transfer policy is not binding in nature and otherwise also the aforesaid transfer policy is not applicable to the Police Department. 19. Learned Standing Counsel, to counter the said argument, has submitted that the transfer policy is not binding in nature and otherwise also the aforesaid transfer policy is not applicable to the Police Department. In this connection he has placed reliance upon Annexure CA – 3 to the counter affidavit which is a Government Order issued by the Special Secretary, U.P. Government on 15.10.2009 clarifying that the Police Department is free from the transfer policy dated 6.6.2009 right from the inception of the policy. 20. In one of the writ petition i.e. Civil Misc. Writ Petition No. 51317 of 2009 (Narendra Sharma v. State of U.P. and others) involving the officers of the police department I had earlier referred the matter with regard to the binding nature and enforceability of the said transfer police to a larger Bench vide order dated 12.10.2009 but as to whether the said transfer policy is applicable to the police department or not is another question which I am called upon to examine herein. 21. The service conditions of the police officers, both gazetted and non gazetted are covered by the Police Act, 1961 and the U.P. Police Regulations which are said to have been framed under the said Act. The aforesaid Act and the Regulations provide a complete mechanism for the transfer of the police personnel. Further, the said mechanism has been strengthen by the guidelines issued by the Supreme Court in the case of Prakash Singh (supra). The said guidelines read with the provisions of the aforesaid Act and Regulations completely occupy the field leaving no scope for the Government to supplement them by any Government Order, Circular or any policy decision. Therefore, any policy decision governing the matter of transfer of police officers would not override the statutory provisions and the guidelines of the Supreme Court which are quasi legislative and of mandatory nature. The said policy, as such is ex facie of a general nature and is applicable only to those departments where there are no service rules and the field is not occupied. If it is allowed to run parallel it would be in direct conflict with the Regulations and guidelines of the Supreme Court. Accordingly, the said policy which is of general nature cannot be applied to the police department. 22. If it is allowed to run parallel it would be in direct conflict with the Regulations and guidelines of the Supreme Court. Accordingly, the said policy which is of general nature cannot be applied to the police department. 22. The above view taken by me also finds support by a decision of another Single Judge of this Court dated 15.10.2009 passed in Civil Misc. Writ Petition No. 51998 of 2009 Constable 289 CP Tahsildar Singh and others v. State of U.P. and others where dealing with a similar controversy in relation to transfers involving officers of U.P. Police it was observed that the transfer of officers of the police force are governed by the U.P. Police Regulations framed under the Police Act of 1961 and it is well settled that executive instruction or order cannot prevail over the statutory provision and therefore, the Government Order dated 6.6.2009 would be inoperative and inconsistent to the said Regulations. 23. It is for this reason that the Government issued a clarification on 15.10.2009 vide Annexure – 3 to the counter affidavit that the police department is not outside the preview of the transfer policy dated 6.6.2009. 24. Next submission of the learned counsel for the petitioner is that the transfer of the petitioner is a colourable exercise of power, inasmuch the same has been made on caste basis. He has submitted that from the western districts of U.P., namely, Gautam Budh Nagar, Ghaziabad, Baghpat, Meerut, Muzaffar Nagar, Saharanpur only Constables belonging to Jat and Gurjar community alone have been picked up and transferred to other districts. 25. As far as the petitioner is concerned, he has been transferred from Gautam Budh Nagar to Mau. It has come on record that from the district Gautam Budh Nagar only six transfers have been made out of more than 2000 police officers of sub-ordinate rank posted in the district. Thus, the number of officers transferred out of the district is negligible and on its basis it cannot be even imagined that any discrimination in the matter of transfer has been practised on the basis of caste. 26. In the first supplementary affidavit a completely vague averment has been made that from the Meerut Zone about 400 Police Officers have been transferred in September, 2009 and approximately all of them belong to a particular community. 26. In the first supplementary affidavit a completely vague averment has been made that from the Meerut Zone about 400 Police Officers have been transferred in September, 2009 and approximately all of them belong to a particular community. In the second supplementary affidavit, it has been stated that approximately 250 Police Officers of a particular community are transferred from Meerut Zone in September, 2009. These two averments are contradictory to each other and cannot be reconciled. Further, as per the averments made in the second supplementary affidavit, the total number of police officers posted in a particular district and the number of police officers transferred is as under : District Total number Number of Police Number of transferred of Police Officers of a Police Officers of Officers particular community particular community Meerut 1500 22% i.e. 330 65 Saharanpur 1275 20% i.e. 255 60 Baghpat 360 32% i.e. 115 24 Muzaffarnagar 1250 25% i.e. 312 59 27. The number of officers so transferred appears to be quite insignificant looking to the number of officers posted in each district. 28. The learned Standing Counsel in this regard rightly submits that the process of transfer is not complete and the possibility of transfer of other officers which may include those of other community cannot be ruled out. In such a situation, in the absence of a clear cut averment as to why the department, rather the high level committee i.e. Police Establishment Board, would choose and transfer the police personnels of a particular community alone, the contention that the transfers are in colourable exercise of power is general in nature and too remote to be accepted. 29. Apart from the above, Police Force is a disciplined force established for the purpose of maintaining law and order and for investigation of crimes. Therefore, in order to maintain strict discipline, sometimes whole sole transfers are necessary in administrative exigencies. It is a common phenomena that in such circumstances a whole Battalion or a Brigade or a Regiment is transferred, which may include generally Constables/Sepoys of a particular caste. In Army particularly there are specific Regiments for Jats, Gorakhas and Sikhs etc. Thus, where the Regiment as a whole is transferred it would result in the transfer of persons of particular community alone but such a transfer cannot be faulted on account of arbitrariness or discrimination. 30. In Army particularly there are specific Regiments for Jats, Gorakhas and Sikhs etc. Thus, where the Regiment as a whole is transferred it would result in the transfer of persons of particular community alone but such a transfer cannot be faulted on account of arbitrariness or discrimination. 30. Sri Vijay Gautam, learned counsel for the petitioner has placed reliance upon a decision reported in 2003(1) ESC 540 (All), Bishan Pal Malik and others v. State of U.P. and others in support of the contention that the transfer on caste basis is a colourable exercise of power. In the aforesaid case, though the transfers were said to have been made in administrative exigencies, the Court found that the purpose was actually to flush out the officers belonging to a particular caste due to outcome of an action which involved the father of the Chief Minister. However, in the present case no such incident has been placed on record on the basis of which it can be imagined that the transfer of the police officers of a particular community is tainted with ulterior motive. 31. In the last, a faint submission has been made that the impugned order of transfer of the petitioner is punitive in nature as is apparent from paragraph 5 of the counter affidavit. 32. A perusal of the aforesaid paragraph reveals that the petitioner had remained posted for 25 years in the adjoining districts of Bulandshahr and Ghaziabad. He was involved in case crime No. 983 of 2008 under Section 379, IPC pertaining to demand of illegal gratification in respect whereof an enquiry was conducted and a censure entry was awarded to the petitioner. It is in view of above circumstances and the conduct of the petitioner that a recommendation for his transfer was made, which on being approved by the Board has been implemented. Neither the impugned order of transfer nor the above paragraph 5 of the counter affidavit is stigmatic or punitive in nature. It only narrates the basis of award of censure entry to the petitioner which may have formed one of the grounds for his transfer. Obviously, transfers have to be made on consideration of certain aspects and the past record of the petitioner as such becomes an essential aspect within the domain of administrative exigency. It only narrates the basis of award of censure entry to the petitioner which may have formed one of the grounds for his transfer. Obviously, transfers have to be made on consideration of certain aspects and the past record of the petitioner as such becomes an essential aspect within the domain of administrative exigency. Therefore, even if such an entry has formed a part of decision making process it cannot be said to be objectionable. It is a well recognised principle of law that the legality of the order has to be judged independently only on the basis of the reasons mentioned in the order itself and more reasons can not be supplemented by material other than the order itself. 33. In view of the above discussion, I am not inclined to exercise my extra ordinary discretionary jurisdiction under Article 226 of the Constitution so as to interfere with the impugned order of transfer. There is no merit in the petition and it is accordingly dismissed with no order as to costs. Petitioner is permitted to join at the transferred place within a week. ————