Heard learned counsel for the parties.
By means of present writ petition, the petitioner is seeking a writ of certiorari for quashing the order of transfer dated 28.09.2009 passed by the opposite party no.3, so far as it affects the petitioner, contained in Annexure-1 to the writ petition, in the interest of justice or in alternative the petitioner be transferred to any district on the post of Reserve Inspector of Police Lines.
The submission of the counsel for the petitioner is that the petitioner was initially recruited as constable in P.A.C. and due course of time the petitioner was promoted as Head Constable and subsequently promoted on the post of Platoon Commander/ S.I. A.P. and after completing requisite training was given posting in 35 Battalion, P.A.C. Mahanagar, Lucknow. The petitioner qualified Traffic Sub-Inspector Course in the year 1994 but could not get posting of Traffic Sub-Inspector due to unavailability of post.
The further submission of the counsel for the petitioner is that petitioner participated in the selection of Reserve Sub-Inspector Course in the year 1995-96 for the next promotion from the post of Sub-Inspector, Armed Police to Reserve Inspector in pursuance to para-435 of the Police Regulations and after successfully passing the examination the petitioner undergone training for six months at A.T.C. Sitapur in the year 1996 and 11 months of prescribed training at Police Line, Lucknow in the year 1997. The petitioner's name was included in the provisional approved list of Reserve Inspector. The petitioner thereafter was posted as Company Commander in 39th Battalion, P.A.C., Mirzapur. Subsequently, he was transferred to 25th Battalion P.A.C., Raebareli and thereafter 32nd Battalion P.A.C. Lucknow as Company Commander. The Company Commander who has completed minimum of five years service, as such, are considered for being empaneled to be appointed on the post of Quarter Master and the petitioner held the charge of Quarter Master upto 12.07.2005.
It is further submitted by the counsel for the petitioner that on 13.03.2001 a Committee was formed under the Chairmanship of Director General of Police, U.P. which took a decision that for promotion as Reserve Sub-Inspector, the seniority list will be prepared of all the Company Commanders and from this list only the Reserve Inspectors will be appointed on the basis of seniority subject to rejection of unfit and only those persons will be eligible to be appointed on the post of Reserve Inspector who have completed one year minimum service on the post of Quarter Master in P.A.C. or Reserve Inspector in various organizations of police other than district force. On 13.07.2005 after completing one year service as Quarter Master, the petitioner was posted/ promoted on the post of Reserve Inspector at Police Line, Sonbhadra and due course of time the petitioner was transferred as Reserve Inspector R.T.C. Chunar in June 2006 and thereafter as Reserve Inspector, Police Line, Sultanpur on 18.07.2007 where the petitioner continued till passing of the impugned order.
Learned counsel for the petitioner vehemently argued that ones the petitioner has been posted as Reserve Inspector in district force on the basis of seniority, then he cannot be compelled to join P.A.C. without any rhyme or reason on the basis of transfer order, as on account of present transfer the petitioner will again be posted as Company Commander in P.A.C. and all experience of the petitioner and training for the post of Reserve Inspector will go in vain as well as compelling the petitioner to join P.A.C. will amount to reversion as the petitioner has already served for one year on the post of Quarter Master. The counsel for the petitioner also submitted that in the matter of transfer, the Hon'ble Apex Court held in the case of Prakash Singh and others vs. Union of India and others reported in (2006) 8 SCC 1 at 31 para (5) that there shall be a Police Establishment Board in each State which shall decide all matters relating to transfer, posting, promotion and other service matter of officers and below the rank of Deputy Superintendent of Police. The impugned order has been passed by the Inspector General of Police (Establishment), U.P., Police Headquarter and the same is contrary to law laid down by the Hon'ble Supreme Court. The impugned order of transfer amounts to reversion from the post of Reserve Inspector to Company Commander P.A.C. by way of punishment without giving opportunity of hearing and also violation of provisions of Section 7-D of Police Act 1861 and para-477 of the Police Regulations. Further the person holding the office as an Incharge of Police Line (Reserve Inspector) is entitled to special emoluments as a matter of right and removal from such office is characterized by the Act as punishment.
The para-478 and 478-A of Police Regulations prescribe the procedure to be followed before imposing punishment therein or in the Act and the petitioner will be deprived of special allowance on account of his transfer.
Sri Anil Saran, learned Standing Counsel while opposing the writ petition submitted that the petitioner has been repatriated to his parent department i.e. P.A.C., hence law laid down by Hon'ble Supreme Court in Prakash Singh's case is not applicable. However, the repatriation order of the petitioner has passed by the Police Establishment Board in its meeting held on 27.09.2009. The work and conduct of the petitioner while he was posted as Reserve Inspector in Civil Police was not proper. The petitioner has misconducted himself on several occasions and enquiry was held against the conduct of the petitioner on grave charges of taking money for deputing police personnels on duty as well as for allotting the quarter to his subordinate police personnels and also for posting the persons to the Garad, which were near to their home town. In pursuance of the enquiry report dated 09.09.2009, a show cause notice for awarding a censure entry was issued to the petitioner on 24.10.2009. It is further submitted by Sri Anil Saran that as per guidelines/ order dated 11.04.2007, the procedure for posting of Company Commander/ Quarter Master as Reserve Inspector in Civil Police have been laid down, which also provides that if the work and conduct of a person posted as Reserve Inspector in Civil Police is not proper, he would be immediately repatriated back to P.A.C. It is also pointed out by Sri Anil Saran that un-disputably the parent department of the petitioner is P.A.C. and as per the aforesaid circular the post of Company Commander/ Quarter Master in P.A.C., Reserve Inspector in Civil Police and Traffic Inspector are equivalent post carrying the same pay scale of Rs.6500-10500 and are inter transferable (Annexure-4 to the counter affidavit). It was emphatically denied that the impugned order is a transfer or punishment order. Neither the provisions of Section 7-D of the Police Act nor the provisions of paras-477, 478 and 478-A of the Police Regulations are attracted in the present case. It is also submitted by the learned Standing Counsel that the Reserve Police Inspector in Civil Police is not entitled for any special emoluments whereas on the other hand, the Company Commander and Quarter Master in P.A.C. are entitled for special emoluments of Rs.100/- and Rs.150/- respectively. The Sub-Inspectors of Civil Police, Armed Police and P.A.C., (known as Platoon Commanders) are eligible to participate in the Traffic Sub-Inspector course as well as Reserve Inspector course. The person who qualifies, can be posted as Traffic Sub-Inspector or Reserve Inspector as per the need and requirement, and by qualifying the concerned courses does not in any way change the cadre of the person and can be transferred and posted to any of the post. The posting as a Reserve Inspector is not a promotion. As per the policy, the senior Company Commanders who have completed minimum five years of service as Company Commander qualifies for the post as Quarter Master. However, the post of Company Commander and Quarter Master are equivalent post i.e. Inspector in Civil Police. Further a Quarter Master can be posted as Company Commander as per need and requirement of P.A.C. The only difference is the responsibility between two. A Company Commander moves with the Company whereas the Quarter Master remains posted at the Battalion. On account of repatriation of the petitioner to the parent department, no illegality has been committed, as such, the present petition is devoid of merit and deserves to be dismissed.
The counsel for the petitioner in his rejoinder reiterated that the petitioner has not been repatriated back to his parent department but as a measure of punishment has been sent back to P.A.C., which he had held 12 years back and later on petitioner was posted on the post of Company Commander and subsequently he was promoted as Quarter Master and then as a Reserve Inspector from 27.07.2008 the petitioner is working on the post of Reserve Inspector belongs to Armed Police of district executive force and not the P.A.C. force.
Learned counsel for the petitioner placed reliance upon the judgment reported in 2005 (1) PULBEC, 155 Amarawati and another (Smt.) vs. State of U.P. & others, which provides that there is hierarchy of laws and if there is conflict between the higher law and a lower law then the higher law will prevail. He further submits that the Police Act 1861 is the second layer and the U.P. Police Regulation is third layer of hierarchy of law and, hence, if any Government Order or instruction violate the provisions of Act or Regulations, it will be declared void. It was submitted by the counsel for the petitioner that show cause notice was issued after passing of the impugned order and the alleged complaints against the petitioner are fake.
The counsel for the petitioner, Sri Sudhir Kumar Mishra after completing his submissions requested that since he is also counsel for the petitioner of Writ Petition No.5887 (S/S) of 2009, Writ Petition No.5888 (S/S) of 2009 and Writ Petition No.4964 (S/S) of 2009 and the same question of law is involved in the aforesaid writ petitions, the arguments of the present writ petition be considered in all the writ petitions and he wants to add nothing more with regard to rest of three writ petitions.
I have considered the submissions of the counsel for the respective parties and gone through the record.
From perusal of the record, it is admitted position that the petitioner was initially recruited as constable in P.A.C. and, accordingly, his parent department is P.A.C. and in due course of time the petitioner was promoted on the post of Platoon Commander/ S.I.A.P. and after completing requisite training was given posting in 35 Battalion P.A.C., Mahanagar, Lucknow. The petitioner qualified traffic Sub-Inspector course in the year 1994 but could not get posting due to unavailability of post. The petitioner thereafter participated in the selection of Reserve Sub-Inspector Course in the year 1995-96 and after successfully passing the examination, the petitioner undergone requisite training and his name was included in the provisional approved list of Reserve Inspector. The petitioner was posted as Company Commander in 39 Battalion P.A.C. Mirzapur, thereafter in 25 Battalion P.A.C. Raebareli and 32 Battalion P.A.C. Lucknow and on account of completing five years as Company Commander, was posted on the post of Quarter Master till 12.07.2005. The petitioner was posted as a Reserve Inspector, Police Line, Sonbhadra and in due course of time was transferred to Chunar in 2006 and thereafter at Sultanpur where the petitioner was working till the passing of the impugned order.
Section 2 of the Police Act 1861 provides that the entire police establishment under a State Government shall be deemed to be one police force, and shall be formally enrolled, and shall consist of such number of officers and men, and shall be constituted in such manner, as shall from time to time be ordered by the State Government. Part-III of Police Regulation provides for internal administration and Regulation 396 provides different categories appointed and enrolled under Police Act, 1861, namely, (1) Provincial Police, Civil Armed and Mounted (2) Government Railway Police and (3) Village chaukidars. The Regulation 525 lays down that transfer of Police Officers from one branch of force to another or from the police service of other Provinces to the Uttar Pradesh Police requires the sanction of the Inspector-General.
As per guidelines / order dated 11.04.2007, the post of Company Commander/ Quarter Master in P.A.C., Reserve Inspector in Civil Police and Traffic Inspector are equivalent post carrying same pay scale of Rs.6500-10,500 and are inter transferable and the Company Commander and Quarter Master in P.A.C. are entitled for special emoluments of Rs.100/- and 150/ respectively.
The admitted position is that the petitioner was initially recruited a Constable in P.A.C. and in due course of time promoted as Company Commander and on completion of five years service as Company Commander was also posted as Quarter Master and, as such, the parent department of the petitioner is P.A.C. Since the post of Company Commander/ Quarter Master in P.A.C., Reserve Inspector Civil Police and Traffic Inspector are equivalent post carrying the same pay scale and also are inter transferable, therefore, posting of the petitioner as Reserve Inspector on qualifying prescribed examnation and undergoing training, will not change his category and the petitioner will remain to be basic employee of P.A.C.
The submission of the counsel for the petitioner that in pursuance to the judgment and order of Hon'ble Apex Court in the case of Prakash Singh vs. Union of India and others, the transfer, posting and promotion order has to be passed by the Police Establishment Board and the impugned order has been passed by the Inspector General of Police (Establishment), U.P. and not the Police Establishment Board, is not correct, as firstly, this is not the transfer order, it is repatriation of the petitioner to P.A.C., secondly, as per the Annexure-CA-1 to the counter affidavit, the order has been passed in pursuance to the decision dated 27.09.2009 of the Police Establishment Board.
The second argument of counsel for the petitioner that the impugned order amounts to reversion from the post of Reserve Inspector to Company Commander P.A.C. by way of punishment without affording opportunity of hearing and is violation of provisions of Section 7 (d) of the Police Act, 1861 and para-477 of the Police Regulation and also the submission that the person holding the office as Incharge of Police Lines (Reserve Inspector) is entitled to special emoluments and removal from such office is characterized by the Act as punishment and paras-478 and 478-A of the Police Regulations describes the procedure to be followed before imposing punishment therein or in the Act and petitioner will be deprived of special allowance on account of his transfer, is misconceived.
The perusal of the guidelines/ order dated 11.04.2007 makes it crystal clear that the Company Commander and Quarter Master in P.A.C. are only entitled for special emoluments of Rs.100/- and 150/- respectively and no special allowance is being paid to the Reserve Inspectors or Traffic Inspectors. The petitioner fairly admitted in his rejoinder affidavit that no special emolument is paid to the Reserve Inspector. The posting as Reserve Inspector is not an office of distinction rather the posting on the post of Reserve Inspector or Traffic Inspector is an exigency of service and the persons who fulfills the criteria are eligible to be posted on the said post. The Regulation 525 authorizes the authorities to transfer the Police Officers from one branch of the force to another and on account of transfer, no Police Officers can claim a vested right to be remained on the said assignment.
In the present case, neither the provision of Section 7 (d) of the Police Act, 1861 nor the provisions of paras-477, 478 and 478-A are attracted. The repatriation of the petitioner to the P.A.C. cannot be termed in any manner, by way of punishment. Apart from this, guidelines/ order dated 11.04.2007 also provides that if work and conduct of a person posted as Reserve Inspector in Civil Police is not proper, he would be immediately repatriated back to P.A.C. and as per the contents of counter affidavit, the work and conduct of the petitioner while posting as Reserve Inspector in Police Line was not proper and satisfying and the petitioner has misconducted himself on several occasions. An enquiry was held against the conduct of the petitioner on grave charges of taking money for deputing police personnels on duty as well as allotting the quarters to his subordinate police personnels and also for posting the persons in guard, which were near to their home town and in the enquiry report dated 09.09.2009 the charges against the petitioner stood proved.
It is a well recognized 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 cannot be supplemented by material other than the order itself.
In the present petition as well as in Writ Petition No.5887 (S/S) of 2009, Writ Petition No.5888 (S/S) of 2009 and Writ Petition No.4964 (S/S) of 2009 the petitioners have assailed the orders of their repatriation naming the same as transfer order from the post of Reserve Inspector to P.A.C. on the similar ground and the counsel for the petitioner, who is appearing in all the writ petitions on behalf of the petitioners, also prayed that legal submissions cover the controversy of rest of the writ petitions, and, therefore, he has to add nothing more individually with regard to other writ petitions and, as such, considering the request of counsel for the petitioner and looking into the grounds raised in other writ petitions, I found that the controversy in all the writ petitions are same, as such, the judgment and order of the present writ petition will also govern the rest of the writ petitions.
In view of the above, I do not find any illegality in the impugned order dated 28.09.2009, contained in Annexure-1 to the Writ Petition No.6254 (S/S) of 2009, order dated 10.09.2009, contained in Annexure-1 to the Writ Petition No.5887 (S/S) of 2009, order dated 10.09.2009, contained in Annexure-1 to the Writ Petition No.5888 (S/S) of 2009 and the order dated 12.08.2009, contained in Annexure-1 to the Writ Petition No.4964 (S/S) of 2009, and the same do not warrant any interference by this Court under Article 226 of the Constitution and, as such, all the aforesaid writ petitions are deserve to be dismissed.
Accordingly, all the writ petitions are hereby dismissed. No order as to costs.