JUDGMENT Arun Tandon, J.
1. Heard Sri Surendra Kumar Mishra, Advocate on behalf of the petitioner and learned Standing Counsel on behalf of the respondents.
2. This writ petition has been filed by Sub-Inspector (M) of U.P. Police Subordinate Services, who was initially appointed in the ministerial cadre of the Civil Branch. By means of the order of the Deputy Inspector General of Police (Estb.), U.P. Police Head Quarter, Allahabad (respondent No. 2) dated 15th June, 2005 the petitioner was transferred to the Provincial Armed Constabulary Branch of the U.P. Police. A copy of the said order was also earmarked to the Inspector General of Police, Provincial Armed Constabulary, Lucknow.
3. On behalf of the petitioner it is contended that the said order of transfer was stayed under order of the Deputy Inspector General of Police (Establishment), U.P. Shashan Lucknow vide order dated 15th June, 2005, (however, the petitioner has not brought on record the copy of the order dated 15th June, 2005 whereby his transfer is alleged to have been stayed). Now by means of the impugned order dated 27/28th November, 2005 issued by the Superintendent of Police, Gonda, the petitioner has been relieved for joining in the Provincial Armed Constabulary branch. It is stated that that the petitioner has been relieved on 5th December, 2005, in pursuance of the aforesaid order of transfer dated 15th June, 2005.
4. Learned Counsel for the petitioner has challenged the aforesaid order of transfer dated 15th June, 2005 on the grounds that it amounts to change in cadre and therefore, such order cannot be passed without prior permission of the State Government in support thereof the Learned Counsel for the petitioner submits that the U.P. Police Organization comprises of the Branches namely, District Executive Force (ii) Fire Service (iii) U.P. Provincial Armed Constabulary and (iv) Government Railway Police and the aforesaid branches of the U.P. Police Organization have been constituted under separate statutory provisions and the said statutes are U.P. Fire Service Act, 1944, U.P. Provincial Armed Constabulary Act, 1948 and Government Railway Police Force. In the aforesaid branches recruitment/appointment is made as per the provisions of their respective Act. It is further contended that employees appointed in U.P. Civil Police cadre vis-a-vis the employees appointed in the U.P. Provincial Constabulary Armed cadre, form two different cadres under two different Acts. In the attention it is stated that order transferring the petitioner from U.P. Civil Police Branch to U.P. Provincial Armed Constabulary branch, in alleged exercise of power under Regulation 525 of the U.P. Police Regulation, without obtaining permission of Inspector General of Police, is unsustainable in the eyes of law.
5. Lastly it is contended that the petitioner is at the fag end of service career and due to retire on attaining the age of superannuation of 60 years and in the context there is a Government Order which provides that when only 2 years are left for the government servant to be retired he may not be transferred.
6. I have heard learned Counsel for the parties and have gone through the records.
7. One of the basic issues, which has arisen before this Court is as to whether the order dated 15th June, 2005, which has been passed against the petitioner by the Deputy Inspector General of Police (Establishment), Uttar Pradesh was in fact stayed by any order of of the Deputy Inspector General of Police or not. Learned Counsel for the petitioner has not able to bring on record any such order, whereby the order of transfer has been stayed. The documents which have been brought on record by the petitioner along with supplementary affidavit, only provides that 38 employees, whose transfer had been stayed earlier by the Deputy Inspector General of Police vide his order mentioned in the aforesaid letter be now proceed for transfer. Therefore, it is only in respect of those 38 persons, whose name is mentioned in the order that this Court has to presume that a stay was earlier granted (The letter dated 21.10.2005 is enclosed as Annexure SA-1 to the supplementary affidavit). The presumption of the petitioner that the transfer order passed qua him was also stayed, is totally unfounded. Normally the petitioner, who is employed in a disciplined forces, could not have been permitted to continue at his present place of posting after issuance of the order of transfer dated 15th June, 2005. It is further worthwhile to notice that after his transfer from UP. Civil Police branch to U.P. Provincial Armed Constabulary Branch an order dated 27th July, 2005 was issued allotting the petitioner to P.A.C. Sitapur II Batalion. This order has admittedly been passed subsequent to the alleged stay order relied upon by the petitioner dated 15th June, 2005. If the order of transfer had been stayed by the authority concerned, there was no occasion for the Deputy Inspector General of Police (Establishment) to have passed the order allotting the petitioner to P.A.C., Sitapur II Batalion.
8. The contention raised on behalf of the petitioner the order of transfer dated 15th June, 2005 is without authority as it changes the cadre of petition, reference may be had to the provisions of U.P. Police Regulation read with the provisions of U.P. Provincial Armed Police Act, 1948. Suffice it to refer to Rule-5 of the U.P. Provincial Armed Constabulary, which reads as follows:
5. Members of P.A.C. to be deemed Police Officers-Subject always to the provisions of Sections 6 to 8 every member of the PradeshiK Armed Constabulary shall upon his appointment and as long as he continues to be a member thereof, be deemed to be a Police Officer, and subject to any terms, conditions and restrictions, as may be prescribed, to have and be subject to. insofar as they are not consistent with this Act or any rules made thereunder, all the powers privileges, liabilities, penalties, punishments and protection as a Police officer duly enrolled has or is subject to by virtue of the Police Act, 1861. or any other law for the time being in force, or any rules or regulations made thereunder.
9. In view of the aforesaid declaration under Rule-5, it necessarily follows that all police officer appointed under the Provincial Armed Constabulary Branch are declared to be Police officers under the U.P. Police Act and subject to same terms and conditions as applicable to Police Officer under U.P. Police Act. Therefore, Rule-525 of the U.P. Manual Rules become applicable to police officers appointed under U.P. Provincial Armed Constabulary Act. For ready reference to Rule-525:
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 won 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 requires the sanction of the Inspector-General
10. From the aforesaid rule it is apparent clear that the Police officer working in one branch can always be transferred to another branch, therefore, the impugned order whereby petitioner has been transferred from U.P. Civil Police to U.P. Provincial Armed Constabulary branch is in conformity with the provisions of Rule-525 of the U.P. Police Manual Regulation, inasmuch as no permission of the State Government is required nor any change of cadre is involved, as suggested by the learned Counsel for the petitioner. Therefore the contention is rejected.
11. So far as the alternate contention raised on behalf of the petitioner is concerned, it is worthwhile to notice that under Rule-525 a power has been conferred upon the Inspector General to sanction the transfer of a police constable from one branch of the force to another branch. The word 'prior' has not been pre-fixed before the word sanction and therefore, it is open to the Deputy Inspector General of Police to obtain permission with regard to the transfer of police officer from one branch to another subsequently. The letter transferring the petitioner form U.P. Civil Police to U.P. provincial Armed Constabulary branch has already been forwarded to the Inspector General of Police and in due course of time sanction shall be considered. It is not the case of the petitioner that such sanction has been refused by the Inspector General of Police shall consider.
12. In such circumstances none of the contention raised on behalf of the petitioner deserve merit and are accordingly rejected. The writ petition is accordingly dismissed. Having regard to the fact that the petitioner has continued to function at Gonda, despite order of transfer dated 15th June, 2005, it is necessary that an enquiry may be conducted by the Deputy Inspector General of Police (Establishment) verifying the issue as to whether the petitioner continued to function at Gonda in view of any interim order passed by the authority or not. If it is found that there was no such order staying the order of transfer, the authority concerned must take suitable action for non-compliance of the lawful orders of the higher authority.
13. A certified copy of this order shall be given to the learned Counsel for the petitioner within a week.