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2012 DIGILAW 1186 (ALL)

Ishwar Deo Singh v. State of U. P. and Others

2012-05-15

ANIL KUMAR

body2012
Anil Kumar, J.;— Heard Shri Jai Kishan Arora, learned counsel for the petitioner, learned State Counsel and perused the record. By means of the present writ petition, the petitioner has challenged the impugned order of transfer/relieving dated 21.4.2012 (Annexure No.1) issued by opposite party no.4/Superintendent of Police, District-Unnao, Uttar Pradesh in pursuance to the transfer order dated 21.4.2012 passed by opposite party no.3/Deputy Inspector General of Police, Establishment, U.P. Police, Head Quarter, Allahabad. as mentioned therein transferring the petitioner from Unnao to Lalitpur, fixing 22.4.2012 as the date of relieving of the petitioner from Unnao to Lalitpur. Facts in brief of the present case are that the petitioner was initially appointed on the post of Constable in Uttar Pradesh Police Department in the year 1979, promoted on the post of Head Constable in the year 1986. In the year 2007, he was promoted on the post of Sub-Inspector Special Category. While the petitioner was working and discharging his duties in the said capacity at Unnao, transferred/relieved to Lalitpur by means of the order dated 21.4.2012 issued by opposite party no.4/The Superintendent of Police, District-Unnao, Uttar Pradesh in pursuance to transfer order no.5-(LR)- 2012/11697 dated 21.4.2012 passed by opposite party no.3/Deputy Inspector General of Police, Establishment, U.P. Police, Head Quarter, Allahabad. Learned counsel for the petitioner has challenged the impugned order on the ground that the same is illegal and arbitrary in nature as the petitioner has been frequently transferred and in this regard he has placed reliance on paragraph no.9 of the writ petition in which it has been mentioned that by means of the orders dated 3.4.2012, 14.11.2011 and 10.10.2011 he has been transferred to different places. In addition to the abovesaid fact, learned counsel for the petitioner has also challenged the impugned order of transfer on the ground that the same is in contravention to the Government Order dated 27.3.2012. Hence, the same is illegal and arbitrary in nature, liable to be set aside. I have heard learned counsel for the parties and gone through the records. From the perusal of the record, it is established that the impugned order of transfer/relieving dated 21.4.2012 (Annexure No.1) was issued by opposite party no.4/The Superintendent of Police, District-Unnao, Uttar Pradesh in pursuance to transfer order no.5-(LR)- 2012/11697 dated 21.4.2012 passed by opposite party no.3/Deputy Inspector General of Police, Establishment, U.P. Police, Head Quarter, Allahabad. From the perusal of the record, it is established that the impugned order of transfer/relieving dated 21.4.2012 (Annexure No.1) was issued by opposite party no.4/The Superintendent of Police, District-Unnao, Uttar Pradesh in pursuance to transfer order no.5-(LR)- 2012/11697 dated 21.4.2012 passed by opposite party no.3/Deputy Inspector General of Police, Establishment, U.P. Police, Head Quarter, Allahabad. A Full Bench of this Court in the case of Vinod Kumar & another vs. State of U.P. & Ors. (2010) 3 UPLBEC 2060 while considering the constitution of Police Establishment Board constituted vide notification dated 12.3.2008 has upheld the constitution of various Police Establishment Boards headed by the Director General of Police as well as Inspector General of Police. The Full Bench in paras 18,19,20 & 21, observed as under: "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 in 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 can not 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 can not 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 party 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." Further a division Bench of this Court in the case of State of U.P. and Others vs. C. P. Ravindra Singh and Others, 2011 (2) ADJ 177 (DB), while setting aside the judgment passed by the learned Single Judge has come to the conclusion that in case the transfer orders have been passed on the basis of approval of the Regional Police Establishment Boards there is no illegality. The said facts has been laid down by the Division Bench. After considering the law as laid down by Hon'ble the Apex Court in the case of Prakash Singh vs. Union of India, (2006) 8 SCC 1 and Full Bench of this Court in the case of Vinod Kumar and another vs. State of U.P. and Others, 2010 (7) ADJ 315 (FB). The relevant paragraph 14 is quoted herein below:- "According to us, pluralistic view in the place and instead of singular view is one of the devices to maintain transparency. It avoids possibilities of motivated action, biasness or influence in the cases of transfer. The relevant paragraph 14 is quoted herein below:- "According to us, pluralistic view in the place and instead of singular view is one of the devices to maintain transparency. It avoids possibilities of motivated action, biasness or influence in the cases of transfer. To that extent, there is no conflict between Prakash Singh (Supra) and the steps taken by the State. The only issue is whether the State has strictly complied with or sufficiently complied with the direction of the Supreme Court in Prakash Singh (Supra). According to the Full Bench of this High Court in Vinod Kumar (Supra), direction has been sufficiently complied with. Learned Chief Standing Counsel has given an explanation by saying that the position of the State of Uttar Pradesh as regards its vastness and population may not be similar with various other States. Therefore, if the Board is constituted strictly in compliance with the direction of the Supreme Court then the State will not get full time engagement of such officers to maintain the law and order situation of the State. To that, it is desirable that the State should explain such position before the Supreme Court. It is expected that by now it has been done by the State. But so far as the existing position is concerned, this Division Bench will be governed by both, Prakash Singh (Supra) and Vinod Kumar (Supra) and a conjoint reading of both the judgments speaks that a mode or mechanism of plurality has been adopted by the State, in spite of the existing law. Therefore, this Court does not find any reason to negate the orders of transfer, as were impugned in the writ petition." In view of the abovesaid facts, there is no illegality or infirmity in the impugned order of transfer/relieving dated 21.4.2012 (Annexure No.1) issued by opposite party no.4/The Superintendent of Police, District-Unnao, Uttar Pradesh which was issued in pursuance to the transfer order No. 5-(LR)- 2012/11697 dated 21.4.2012 passed by opposite party no.3/Deputy Inspector General of Police, Establishment, U.P. Police, Head Quarter, Allahabad. Further, so far as argument advanced by learned counsel for the petitioner that he has been frequently transferred is concerned, in this regard it is relevant to state that by order dated 10.10.2011 petitioner was transferred from District-Barabanki to District-Unnao, by order dated 14.11.2011, from Police Lines, Unnao to Prabhari Chowki Hajipur Thana Gangaghat, Unnao, by order dated 3.4.2012, was transferred from Prabhari Chowki Hajipur Thana Gangaghat to Thana Purva, Unnao and by order dated 21.4.2012 was transferred from District Unnao to District Lalitpur. So, I do not find any force in the arguments advanced by learned counsel for the petitioner challenging the impugned order of transfer, hence the same is rejected because the law is well settled that transfer being an exigency of service can be effected by the employer concerned in accordance with administrative exigency, in the interest of administration and public interest at any point of time and that cannot be monitored and guided by this Court unless it is shown that transfer order is vitiated on account of the contravention of the statute, or lacks jurisdiction or is mala fide. As held by Hon'ble the Apex Court in the case of Union of India Vs. S.L. Abbas, AIR 1993 SC 2444 , Hon'ble Apex Court has held as under :- "The said guideline, however, does not confer upon the Government employee a legally enforceable right." The said view has been again reiterated by Hon'ble Supreme Court in the case of Rajendra Roy Vs. Union of India another (1993) 1 SCC 148 wherein the Apex Court as under:- "It is true that the order of transfer often causes a lot of difficulties and dislocation in the family set up of the concerned employees but on that score the Oder of transfer is not liable to be struck down. Unless such order is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification the Court and the Tribunal should not interfere with the order of transfer." Further, in the case of Bank of India Vs. Jagjit Singh Mehta, 1992 (1) SCC 306 , the Hon'ble Supreme Court has held as under:- "The said observations in fact tend to negative the respondent's contentions instead of supporting them. Jagjit Singh Mehta, 1992 (1) SCC 306 , the Hon'ble Supreme Court has held as under:- "The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondent's contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can be characterized as mala fide for that reason. To reiterate, the order of transfer can be questioned in a Court or Tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions." The said view was again reiterated by Hon'ble Supreme Court in the case of National Hydro-Electric Power Corporation Ltd. Vs. Sri Bhagwan and another, AIR 2001 SC 3309 . No other points have been argued or pressed by the learned counsel for the petitioner. In view of the above said facts, I do not find any merit in the writ petition. It is accordingly dismissed. However, the petitioner if so advised may make a representation for redressal of his grievances within a period of two weeks from the date of receiving a certified copy of this order and after receiving the same, the opposite party no.3/Deputy Inspector General of Police, Establishment, U.P. Police, Head Quarter, Allahabad may consider and dispose of the same expeditiously within two weeks thereafter by speaking and reasoned order in accordance with law. No order as to costs. _____________