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2010 DIGILAW 2513 (ALL)

VINOD KUMAR v. STATE OF U. P.

2010-08-18

ASHOK BHUSHAN, F.I.REBELLO, VIRENDRA SINGH

body2010
JUDGMENT Hon’ble F.I. Rebello, C.J.—Noticing the conflict of views in two Division Bench judgments of this Court in Shishu Pal Singh v. State of U.P. and others, 2010 (3) ADJ 241 (DB) and another in Special Appeal No. 850 of 2010, State of U.P. and others v. Jagannath Prasad Gaur and others, decided on 28.5.2010, in the matter of transfer of Constables and Head Constables and the interpretation of the U.P. (Civil Police) Constable and Head Constables Service Rules, 2008 (hereinafter referred to as ‘the Rules, 2008’), the matter was referred to a Full Bench by order dated 14th of July, 2010, to answer the following issue : “(i) Whether pursuant to framing of the U.P. (Civil Police) Constable and Head Constables Service Rules, 2008, the directions issued by the Supreme Court in the case of Prakash Singh v. Union of India, 2006 (8) SCC 1, in exercise of power under Article 142 of the Constitution of India, are no longer applicable in view of what is set out in paragraph 31 of the judgment?” 2. In paragraph 31 of Prakash Singh (supra), the Supreme Court was pleased to direct as under: “In discharge of our constitutional duties and obligations having regard to the aforenoted position, we issue the following direction to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate legislations. One of the directions was the establishment of the Police Establishment Board, being direction No. 5, which reads as follows : 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 authorized 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. The Board shall also be authorized 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.” Earlier in paragraph 29 of the judgment also, it was observed as under: “It is not possible or proper to leave this matter only with an expression of this hope and to await developments further. It is essential to lay down guidelines to be operative till the new legislation is enacted by the State Governments.” 3. In Civil Misc. Writ Petition No. 69798 of 2009: Shishu Pal Singh (supra), the learned Single Judge, in respect to the challenge of transfer order dated 10.11.2009 and relieving order dated 8.12.2009, noted the contention on behalf of the writ petitioner that the transfer order had been passed without approval of the Police Establishment Board or even the Director General of Police, Uttar Pradesh. On behalf of the State, it was submitted that for various personnel of the police department, various Police Establishment Boards have been established and the Director General of the Police is the Chairman of the Police Establishment Boards relating to police personnel other than Head Constable and Constable. The learned Single Judge was pleased to note that the transfer was effected after approval of the Police Establishment Board and, therefore, was pleased to dismiss the writ petition. The learned Single Judge was pleased to note that the transfer was effected after approval of the Police Establishment Board and, therefore, was pleased to dismiss the writ petition. The writ petitioner, being aggrieved, preferred a special appeal before the learned Division Bench of this Court, being Special Appeal (Defective) No. 148 of 2010: Shishu Pal Singh v. State of U.P. and others, 2010 (3) ADJ 241 (DB) (decided on 9th of February, 2010) wherein the learned Bench noted the contention raised on behalf of the State that the State had framed the Rules, known as U.P. (Civil Police) Constable and Head Constables Service Rules, 2008 and Rule 26 thereof, says that if any matter is not specifically covered by the aforesaid Rules, 2008, then it will be applicable as per the rules, regulations or orders applicable to the general Government servants. Therefore, the learned Bench held that there was no reason to interfere with the order impugned in the appeal. 4. In Civil Misc. Writ Petition No. 25016 of 2010: Jagannath Prasad Gaur and others v. State of U.P. and others, the writ petitioners challenged the order of transfer dated 26.4.2010 by the which the writ petitioners were transferred from one place to another. The writ petitioners also prayed for quashing of the Government Order dated 19.2.2010 as well as Clause-5 of the transfer policy dated 21.4.2010. The submission of the writ petitioners before the learned Single Judge was that the order of transfer has been effected in an arbitrary manner without adhering the policies made from time to time and also without application of mind by a common order. The stand of the State was that the transfers were effected by the Board constituted for that purpose on administrative grounds and based on Government Order of 1986 which stated that the police personnel shall not be posted near their hometown. The learned Bench found that about 300-400 police personnel had been transferred by one order on the ground that they are posted near their hometown since 1995, 1997, 1998 and 2000. After considering the minutes of the Board, which approved the transfer of the writ petitioners, it prima facie came to the conclusion that the Board has not applied its mind and, therefore, by means of an interim order dated 7.5.2010, stayed the transfer of the writ petitioners. 5. After considering the minutes of the Board, which approved the transfer of the writ petitioners, it prima facie came to the conclusion that the Board has not applied its mind and, therefore, by means of an interim order dated 7.5.2010, stayed the transfer of the writ petitioners. 5. Being aggrieved by the aforesaid interim order dated 7.5.2010, the State of U.P. preferred an appeal, being Special Appeal No. 850 of 2010: State of U.P. and others v. Jagannath Prasad Gaur and others, which came to be decided on 28.5.2010. The submission of the respondents-writ petitioners before the learned Bench was that the State Government had not constituted the Board in terms of the directions given by the Supreme Court under Article 142 of the Constitution of India. The Board constituted did not have the Director General of Police, but Additional Director General of Police/Inspector General (Establishment), who had no authority to preside over the said Board in view of the directions given by the Supreme Court, which was binding on the State Government. On behalf of the State-Appellants, it was pointed out that the State had submitted its proposal for constitution of Boards before the Supreme Court, which had not rejected to the same. Reliance was placed on the judgment of Rishi Pal Singh v. State of U.P. and others, 2009 (10) ADJ 381 , wherein the learned Bench held that the Board presided over by the Inspector General of Police (Establishment) is a validly constituted Board. The learned Bench after considering the issue, observed that if the State of U.P. wants to deviate, it is open to it to take necessary permission from the Hon’ble Supreme Court, which in the present case it had not been done. The learned Bench, further held that the Board, which had considered and approved the transfer order in question was not constituted in accordance with the specific directions given by the Hon’ble Supreme Court and, therefore, the transfer order has not been passed in accordance with law, and accordingly, dismissed the appeal. This judgment was delivered on 28th of May, 2010. The judgment in Shishu Pal Singh (supra) was not noted by the subsequent Division Bench in Jagannath Prasad Gaur (supra) as it was not brought to its notice. 6. This judgment was delivered on 28th of May, 2010. The judgment in Shishu Pal Singh (supra) was not noted by the subsequent Division Bench in Jagannath Prasad Gaur (supra) as it was not brought to its notice. 6. At the hearing of these matters, on behalf of the private respondents, it has been contended that the Supreme Court in Prakash Singh (supra) sought to insulate the police machinery from partisan political interference, in discharge of lawful function and prevention and control of crime including the investigation of cases and maintenance of law and order. In this context, the Supreme Court had been pleased to direct the establishment of the Police Establishment Board, which would consist of the Director General of Police and four other senior officers of the department. Our attention was also invited to the various efforts made by the other States giving effect to the directions issued by the Supreme Court including the State of Kerala, State of Assam as also a draft Bill by the State of Gujarat. Once there were directions under Article 142 of the Constitution of India, the State could not depart from the same and consequently, the view taken by the Division Bench in Jagannath Prasad Gaur (supra) ought to be upheld. On behalf of the original petitioners, it was sought to be contended that the Rules framed do not constitute ‘legislation’. 7. On the other hand, on behalf of the State of Uttar Pradesh, the learned Standing Counsel has drawn our attention to the strength of the police personnel from Director General to Constable as on 31.3.2010. Against the sanctioned strength of 3,83,644, only 1,88,844 are serving and there are vacancies of 1,94,604. The learned Standing Counsel pointed out that they have appointed another 35,000 and more are in the process. It has been pointed out that looking to these figures, in the State of Uttar Pradesh, 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 for various ranks. It is submitted that the Supreme Court in Prakash Singh (supra), while issuing directions under Article 142 of the Constitution of India, had made it clear that these directions would apply till such time a legislation was enacted by the States. It is submitted that the Supreme Court in Prakash Singh (supra), while issuing directions under Article 142 of the Constitution of India, had made it clear that these directions would apply till such time a legislation was enacted by the States. It is also pointed out that the State Government, pursuant to the powers conferred by Section 2 and Section 46 (3) of the Police Act, 1861 had framed the U.P. (Civil Police) Constable and Head Constable Service Rules, 2008. Our attention is invited to Rule 26 of Rules, 2008, which reads as under : “26. Regulation of other matters.—In regard to the matters not specifically covered by these rules or special orders persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government Servants serving in connection with the affairs of the State.” Transfer, it is submitted is covered by Regulations 520 to 526 of the U.P. Police Regulations, which henceforth shall be referred to as the Regulations. It is, therefore, set out that considering the rules and the regulations, the State has enacted legislation and consequently, the directions issued by the Supreme Court in Prakash Singh (supra) are no longer applicable to the State of U.P. 8. The first question, therefore, for our consideration is, as to whether an exercise in subordinate legislation can be said to be a legislation. To answer that issue, we may first consider the decided case law under the Police Act and the rules framed thereunder. In State of Uttar Pradesh v. Babu Ram, 1961 (1) Crl. L.J.773, the Supreme Court held that the rules made under the Police Act are not administrative directions. The Police Act and the rules made thereunder constitute a self-contained code providing for the appointment of police officers and prescribing the procedure for their removal. In the State of Rajasthan v. Ram Saran, AIR 1964 SC 1361 , referring to Section 2 of the Police Act, the Supreme Court was pleased to hold that under that Section, it is not the Inspector General of Police but the State Government that is empowered to frame rules regulating the conditions of service of members of the police force. In Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 , dealing with the Police Act, 1861 and rules made for the civilian employees under Article 309 of the Constitution of India, the Court was pleased to hold that the Act is a complete code insofar as the police personnel are concerned and the service conditions, which are referable to the Act, are not replaced by the general service conditions. 9. The Police Act and the Rules made thereunder were the subject matter of consideration before a Full Bench of this Court in Vijay Singh and others v. State of U.P. and others, 2004(4) ESC 2209 (All)(FB). Dealing with Section 2 of the Police Act, the Full Bench held that Section 2 enables the State Government to prescribe service conditions from time to time. It further observed that the Legislature, while enacting the provisions of Section 2 of the Police Act, 1861, itself delegated the powers to the statutory authority to fix eligibility criteria including the age etc. As the Police Act is a pre-Constitution law, that aspect was also considered and answered. We may gainfully reproduce paragraph 16 of the judgment, which is as under : “16. Police Act, 1861 is one of the earliest enactment immediately subsequent to the Indian mutiny of 1857. Preamble thereof provides that it was expedient to reorganize the police and to make it a more efficient instrument for the prevention and detection of crime. After the commencement of the Constitution into force in 1950, police became the State subject as it appears at item No. 2 of List-II of 7th Schedule, which reads as Police (including railway and village police) subject to the provisions of Entry 2A of List-I. Entry 2A of List-I provides for deployment of any armed force of the Union of India or any other force subject to the control of Union. Thus, it becomes clear that the police is a subject of State List and State Government is competent even to amend the Act and it has been amended by the States from time to time. The “pre-Constitution law continues to remain operative by virtue of provisions of Articles 313 and 372 of the Constitution. Thus, it becomes clear that the police is a subject of State List and State Government is competent even to amend the Act and it has been amended by the States from time to time. The “pre-Constitution law continues to remain operative by virtue of provisions of Articles 313 and 372 of the Constitution. A Constitution Bench of Hon’ble Supreme Court in South India Corporation Pvt. Ltd. v. Secretary, Board of Revenue, Trivendrum and another, AIR 1964 SC 207 , examined the issue of continuation and validity of the pre-Constitution laws and held that such provisions are valid and enforceable, observing that pre-Constitution law made by a competent authority, though it has lost its legislative competency under the Constitution, shall continue in force provided the law does not contravene other provisions of the Constitution. While deciding the said case, reliance had been placed upon large number of the judgments of different High Courts and also the judgment of Hon’ble Apex Court in Amalgamated Coalfields Limited and others v. Janapada Sabha Chhindwara, AIR 1961 SC 964 , wherein the Constitution Bench had held that the coal tax originally imposed under Section 51 of the Central Provinces Local-self Government Act, 1920, on 2nd March, 1935, was valid and continued to be valid after Government of India Act, 1935 and the Constitution, by virtue of Article 372 of the Constitution.” From the above, it emerges that the Police Act and the Rules made thereunder and/or statutory orders passed under Section 2 of the Police Act, constitute a self-contained code relating to the police service in the State, which is a part of the civil services of the State. 10. Do the Rules and orders form a part of legislation. In our opinion, the following observations in Babu Ram (supra) would be important : “23. ... ... ... Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation: see Maxwell “On the Interpretation of Statutes”, 10th edn., pp. 50-51. The statutory rules cannot be described as, or equated with, administrative directions. 50-51. The statutory rules cannot be described as, or equated with, administrative directions. If so, the Police Act and the rules made thereunder constitute a self-contained code providing for the appointment of police officers and prescribing the procedure for their removal.” Thus, the rules whether under Section 2 or Section 46 when made have to be read as if they are a part of the Act and have the same effect as if contained in the Act. They have to be read, therefore, as a part of the Act itself. The State Government has made the Rules, 2008 subsequent to the judgment in Prakash Singh (Supra). To the extent the rules provide for matters covered by the directions, the directions will no longer apply as the State has enacted legislation. We may also note that the Supreme Court in Prakash Singh (supra) has not held the existing legislation as to trespass invalid. The Rules, 2008, however, do not contain any provision for setting up of Boards for effecting transfers. The State has placed reliance on Rule 26 thereof, which we have reproduced earlier. Rule 26 of the Rules says that in regard to the matters not specifically covered by these rules or special orders persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to Government Servants serving in connection with the affairs of the State. By referring to the Notification issued by the State Government constituting the Boards, learned counsel had sought to contend before us that this order has been made pursuant to the power exercised under Section 2 of the Police Act. The purported order was issued by the Special Secretary. The Circular does not recite that it is pursuant to the power exercised under Section 2 of the Police Act. It is no doubt true that Section 2 does not specify the manner in which an order should be issued. This notification was issued on 12th March, 2008. The rules were notified and published in the Government Gazette on 2nd December, 2008. There is nothing on record that the notification of 12th March, 2008, if it be rules were made in terms of the Act. We are, therefore, of the opinion that it cannot be said that the said Notification is an exercise of power under Section 2 of the Police Act. There is nothing on record that the notification of 12th March, 2008, if it be rules were made in terms of the Act. We are, therefore, of the opinion that it cannot be said that the said Notification is an exercise of power under Section 2 of the Police Act. To that extent constitution of the Boards would be pursuant to the directions issued under Article 142 of the Constitution of India. 11. The power under Article 142 of the Constitution is to do complete justice in the matter. Though the Supreme Court would not pass any order under Article 142 which would amount to supplanting substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these Constitutional powers cannot in any way, be controlled by any statutory provisions. However, this power it has been held, cannot be used to supplant the law applicable to the case. The power, it has been held, has to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties. (See: Laxmidas Morarji v. Behrose Darab Madan, 2009 AIR SCW 6124). Our attention was invited to the judgment of the Supreme Court in University of Kerala v. Council of Principals of Colleges, Kerala and others, (2010) 1 SCC 353 , wherein the learned Bench of the Supreme Court was of the opinion that several issues require to be referred for consideration by the Constitution Bench, of which one is, as under : “What is the scope of Articles 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform functions of the executive wing of the State.” Until such time the Constitution Bench answers the issue, we have to proceed on the basis of the law as existing, which is, that the directions issued under Article 142 of the Constitution would be binding on all authorities till such time a legislation is enacted. 12. As we have noted earlier, the State Government, pursuant to the judgment in Prakash Singh (supra) has made the Rules, 2008. However, it has not, in the Rules, provided for the Constitution of the Boards. 12. As we have noted earlier, the State Government, pursuant to the judgment in Prakash Singh (supra) has made the Rules, 2008. However, it has not, in the Rules, provided for the Constitution of the Boards. To that extent, though a legislation has been enacted, the direction regarding constitution of the Board would be binding till such time the State enacts legislation for constituting Boards. In paragraph 25 of the judgment in Prakash Singh (supra), the Court was further pleased to observe that ‘we expect that the State Governments would give it due consideration and would pass suitable legislations on recommended lines, the police being a State subject under the Constitution of India.’ These directions by the highest Court of the land, ordinarily ought to have been considered by the State Government by giving statutory recognition to the same of course, considering the State needs and the fact that there is a large police force. Though the power of the Legislature in enacting laws is plenary and cannot be controlled by any other Constitutional Body, the views of the Highest Judicial Body, which had issued the directions in larger public interest, must be given the highest consideration. 13. Under the provisions of the Act, Regulations have been framed, which are knows as the U.P. Police Regulations. Chapter XXXIV deals with the transfers. Regulations 520 to 525, which we are reproducing below, provide for the mode of transfer. The said Regulations read 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 Policed, 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. 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 then 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 sub-inspectors, head constables and constables should not exceed five years. 521. The Inspector-General may, without the sanction of Government— (a) transfer to— (i) foreign service within the province other than to service in an Indian State, and (ii) another department of Provincial Government, any Government servant whom he can without reference to Government appoint or transfer in the ordinary course of administration and may also fill any post so vacated by promotion and enlistment when necessary, and (b) subject to the same restrictions as in clause (a) transfer as Government servant to a temporary appointment outside the province for a period not exceeding two years in the first instance and may extend the period of such temporary transfer up to a period of two years. 522. The Superintendent when proposing a transfer from the district should send the character and service roll of the officer to be transferred. With the consent of the Superintendents concerned mutual exchanges may be arranged by head constables and constables. The proposed exchanges shall be reported to the Deputy Inspector-General. Travelling allowance will not be payable on the occasion of such transfers. 523. On receipt of an order of transfer of a subordinate officer to another district the Superintendent will arrange to relieve him of his duties within ten days. Officers transferred are entitled to joining time, but the Superintendent may not grant leave to an officer under order of transfer. An inspector relieved on transfer from another district is entitled to sign a certificate of taking over charge from the date of arrival in the new district. Officers transferred are entitled to joining time, but the Superintendent may not grant leave to an officer under order of transfer. An inspector relieved on transfer from another district is entitled to sign a certificate of taking over charge from the date of arrival in the new district. If the officers to be relieved cannot be present at headquarters, the charge certificate should be signed for him by the Superintendent of Police, or, in his absence, by an Assistant Superintendent of Police or Deputy Superintendent of Police. The effect of this will be that an officiating officer will be considered to have been reverted, and permanent incumbent’s joining time or leave or discharge, will be counted from the date on which the relieving officer takes over charge. 524. The Superintendent may, within his district, transfer all officers of an and below the rank of inspector. In the case of inspectors and officers in charge of police stations, he must before passing orders obtain the approval of the District Magistrate. Should the District Magistrate and Superintendent of Police be unable to agree in regard to the transfer of any officer, the matter may be referred to the Deputy Inspector-General of range for decision: Provided that in the district where the Collector/Deputy Commissioner is Collector/Deputy Commissioner-in-charge of the Division, his functions under this sub-paragraph will be exercised by the Additional District Magistrate (Executive). Officers-in-charge of police stations shall ordinarily be retained in their charges for at least two years. Subordinate officers at police stations should not be transferred without good reason. No officer liable to station duty shall be withdrawn from that duty for a longer period than one year, except in Kumaun where the withdrawal of head constable for two years at a time from station duties is permitted. 525. Constable of less than two years’ service may be transferred by the Superintendent of Police from the armed to the civil police or vice versa. Foot police constables may be transferred to the mounted police at their own request. Any civil police constable of more than two and less than ten years’ service may be transferred to the armed police and vice versa by the Superintendent for a period not exceeding six months in any one year. Foot police constables may be transferred to the mounted police at their own request. Any civil police constable of more than two and less than ten years’ service may be transferred to the armed police and vice versa by the Superintendent for a period not exceeding six months in any one year. All armed police constables of over two years’ service and civil police constables of over two and under ten years’ service may be transferred to the other branch of the force for any period with the permission of the Deputy Inspector-General. In all other cases the transfer of Police Officers from one branch of the force to another or from the police service of other Provinces to the Uttar Pradesh Police requires the sanction of the Inspector-General.” These Regulations are an exercise in subordinate legislation. It is no doubt true that the Hon’ble Supreme Court in Prakash Singh (supra) had directed the constitution of the Police Establishment Boards as also directed that the Board is to decide all transfers below the rank of Deputy Superintendent of Police. The directions have not held that the legislations in force in the matter of transfer are illegal. The directions to an extent supplement the law in force. The said directions, therefore, have to be read alongwith Regulations in the context that if the authorities under the Regulations in exercise of the power have at the local level proposed the transfers in terms of the policy, that has to be decided by the Police Establishment Board before the transfers are given effect to. 14. The question then is, what is the meaning of the expression ‘decide’. We open with a caveat. Judgments cannot be read as statutes and so interpreted. The judgment must speak for itself. The expression ‘decide’ has to be considered in the context of direction No. 5, which is to establish the Police Establishment Boards where the Supreme Court has used the expression ‘decide’. The word ‘decide’ according to the Law Lexicon by P. Ramanatha Aiyar, 8th Edition, 1987, is as under : “Decide. To determine; to form a definite opinion; to render judgment; to give judgment for or against a party to suit or other proceeding in Court. AS APPLIED TO FUNCTIONS OF A JURY. The word ‘decide’ according to the Law Lexicon by P. Ramanatha Aiyar, 8th Edition, 1987, is as under : “Decide. To determine; to form a definite opinion; to render judgment; to give judgment for or against a party to suit or other proceeding in Court. AS APPLIED TO FUNCTIONS OF A JURY. “To decide includes the power and right to deliberate, to weigh the reasons for and against, to see which preponderate and to be governed by that preponderance.” In K.T. Aiyar, 13th Edition, 2001, the expression ‘decide’ has been set out as under : “Decide. According to Concise Oxford Dictionary ‘to decide’ means ‘settle question, issues, disputes, by giving victory to one side; give judgment (between or in favour of, against); bring ‘come to a resolution’; and ‘decision’ means ‘settlement (of question etc.); conclusion; formal judgment; making up one’s mind; resolve; resoluteness; decided character’. [Ramkrishna Gangaram Rathi v. Kishan Zingraji Madke, AIR 1971 Bom 305 (310)].” In words and phrases Vol. 2, 3rd Edition, 1989 ‘To “decide” a matter means to take it into consideration and to settle it.’ Judes v. Registrar of Mining Rights Krugerdorfs, 1907 TS 1049 per Innes CJ. Thus the expression is used in the context of a decision making process to settling questions. Thus, the Board itself need not determine every act of transfer, it could decide on the proposals before it. A learned Single Judge of this Court in Bhanu Pratap v. State of U.P. and others, 2009 (2) ADJ 607 , was considering the aspect of what would be the meaning of expression ‘decide’. The expression ‘decide’ as in Oxford English Dictionary, the Court observed means ‘decide 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). The stand of the State before the learned Single Judge was that the expression ‘decide’ cannot be read to be interpreted as to effect transfers. The State Government, pursuant to the directions issued by the Supreme Court in Prakash Singh (supra) had constituted the Boards and 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. The State Government, pursuant to the directions issued by the Supreme Court in Prakash Singh (supra) had constituted the Boards and 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. The learned Single Judge noted that the transfer orders had been passed in exercise of power in Paragraph 520 of the U.P. Police Regulations within the Zone. The learned Single Judge held that there was no violation of the recommendations of the Supreme Court. The learned Single Judge further observed that the directions cannot confer an enforceable right upon the writ petitioners and that there was no mandate that the transfers, postings and promotions in breach of the recommendations are declared as illegal and inoperative. The directions of the Supreme Court are to enable the State to enact legislation to achieve the desired objective as set out in the judgment of Prakash Singh (supra). Thus, the directions cannot be read literally, but will have to be considered in their broader aspect, which would also be to consider the ‘existing law’ and the ultimate exercise of control by the Board to effect the transfers. The expression ‘decide’, therefore, will have to be read in that context. We may only mention that once a direction is issued by the Supreme Court, in the absence of a legislation, those directions to that extent will be part of additional conditions of service, as that would be law, and any violation of law, would give right to a person in whose favour, the law has been enacted and who complains of breach thereof. To that extent, the observations by the learned Judge in Bhanu Pratap (supra) would not be correct. The direction for setting up of the Boards by itself does not mean that all transfers would be personally done by the Boards. If under the Regulations, there is specific transfer policy and the authorities have proposed the transfers, the Board will exercise its powers to decide on those transfers. The power, therefore, will have to be read in that context, meaning thereby, before effecting transfer it is the Board which must ultimately decide the transfers. If under the Regulations, there is specific transfer policy and the authorities have proposed the transfers, the Board will exercise its powers to decide on those transfers. The power, therefore, will have to be read in that context, meaning thereby, before effecting transfer it is the Board which must ultimately decide the transfers. Considering the number of police personnel in service, it is not possible to read the directions issued under Article 142 to have conferred the power on the Board alone, when there is an existing law in force or legislation has been enacted subsequently. 15. The next question, we have to answer is, what is the effect of the notification, which has constituted the four Boards. The only objection is to the constitution of one of the Boards, which is headed by the Inspector General of Police (Establishment) and not by the Director General of Police and which is empowered to consider the transfer of Head Constable and Constable. The learned Division Bench, considering the matter in Jagannath Prasad Gaur (supra), was of the opinion that the Board had not been constituted in terms of the directions in Prakash Singh (supra). It is true that the Chairman of the Board is not the Director General of Police, but the Inspector General of Police (Establishment). We have earlier quoted the sanctioned strength of the police personnel in the State of Uttar Pradesh. Insofar as the Constables are concerned, the State carried out an exercise of transfer of about 50,000 (Fifty Thousand) Constables under an ‘existing law’. The transfers have been effected by the Board, as constituted. These transfers are regular transfers in terms of the Regulations under the Police Act. The Regulations themselves provide for regular transfer after completing a particular tenure at a station on the administrative instruction in force. In other words, in respect of such transfers, question of any application of mind, really does not arise. If any person has any grievance in respect of his individual case considering the hardship, if any, on account of transfer, then the redressal mechanism provided for, will continue to govern him. 16. In other words, in respect of such transfers, question of any application of mind, really does not arise. If any person has any grievance in respect of his individual case considering the hardship, if any, on account of transfer, then the redressal mechanism provided for, will continue to govern him. 16. In Rishi Pal Singh (supra), the learned Judge was again considering the issue of transfer in the context of the directions issued in Prakash Singh (supra) and noting the object of the Act held that the Constitution of the Board, which includes senior officers of the Police Department having specialized knowledge of the police administration is sufficient compliance of the guidelines issued by the Apex Court and mere non-inclusion of the Director General of the 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. The learned Single Judge, then proceeded to hold that 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. The learned Single Judge, then observed as under: “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.” The learned Single Judge noted that the Police Act, 1861 and the U.P. Police Regulations provide a complete mechanism for the transfer of the police personnel. The guidelines issued by the Supreme Court read with the Act and Regulations occupy the field. 17. We find that another learned Single Judge of this Court in Bhanu Pratap v. State of U.P. and others, 2009 (2) ADJ 607 , considered the question of substantial compliance and then was pleased to observe in paragraph 10, which is as under : “10. 17. We find that another learned Single Judge of this Court in Bhanu Pratap v. State of U.P. and others, 2009 (2) ADJ 607 , considered the question of substantial compliance and then was pleased to observe in paragraph 10, which is as under : “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.” 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 an 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 cannot be read to mean that all existing rules and regulations in the matter of conditions of service including transfer are no longer in force. The Regulations also provide for regular transfers, which are transfers not on account of administrative exigency or in public interest. Rule 26 cannot 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. 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 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. 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. 22. The State has substantially complied with the requirement by enacting legislation, the only area, not covered by the State by such legislation, is Constitution of Board in respect of which, they have constituted the Boards in exercise of the executive power. The notification will continue to apply till the State makes a rule under Section 2 of the Police Act or any other provisions by enacting legislation to constitute the Boards. 23. In summing up and concluding, we hold that; 1.The State has substantially enacted legislation, which includes existing legislation, which are in consonance with the directions issued under Article 142 to give effect to the directions issued by the Supreme Court in Prakash Singh (supra). 2.Though there is no legislation on the aspect of constituting the Police Establishment Boards, they are governed by the administrative instructions issued by the State. The non-inclusion of the Director General of Police for the Boards for Head Constables and Constables, will not vitiate the transfers or render the transfers illegal. 24. 2.Though there is no legislation on the aspect of constituting the Police Establishment Boards, they are governed by the administrative instructions issued by the State. The non-inclusion of the Director General of Police for the Boards for Head Constables and Constables, will not vitiate the transfers or render the transfers illegal. 24. All judgments, which have taken a contrary view, are over ruled. 25. The Reference is answered, accordingly. 26. The Registry is directed to place the petitions/appeals before the appropriate Benches for their disposal. ————