Heard Sri R.K. Singh, learned counsel for petitioner, learned State counsel and perused the record.
By means of the present writ petition, the petitioner has challenged the impugned order dated 21.04.2012 (Annexure No. 1) passed by Superintendent of Police, Unnao.
Facts in brief of the present case are that petitioner was initially appointed on the post of Sub-Inspector on 05.09.2007 thereafter by an order dated 24.08.2010, transferred from Kanpur to Unnao in the said capacity. Subsequently, by an order dated 03.04.2012, he was transferred from Police Station Gangh Ghat, Unnao to Police Station Hasanganj, Unnao but could not joined his duties on the said post as he has not relieved by O.P. No. 3.
In the meantime, the petitioner has been transferred from District Unnao to Gorakhpur Zone by means of the impugned order dated 21.04.2012 (Annexure No. 1) passed by Superintendent of Police, Unnao, challenged in the present writ petition.
Learned counsel for petitioner challenged the impugned order on the ground that the petitioner has completed only one year and eight months in District Unnao, as such the impugned order of transfer is in contravention to the provisions of para No. 520 of Police Regulation as well as Government Order dated 11.07.1986, thus, liable to be set aside.
I have heard learned counsel for parties and gone through the record.
A Full Bench of this Court in the case of Vinod Kumar and others Vs. State of U.P. and others, 2010 (7) ADJ 315 (FB), after taking into consideration the law laid down by Hon'ble the Apex Court in the case of Prakash Singh Vs. Union of India, 2006 (8) SCC 1 in paragraph Nos. 18, 19, 20, and 21held 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 Articl2 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. 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. 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.
Thus, in view of the abovesaid facts, in the instant cse, the petitioner has been transferred after approval of the Regional Establishment Board, as such it cannot be said to be paid in the eyes of law.
So far as the argument raised by learned counsel for petitioner that the impugned order of transfer is in contravention to the provisions of Regulation 520 of Police Regulation is concerned in order to decide the said dispute, it is appropriate to go through the said Regulation, which provides as under:-
"Regulation 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 Police, 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.
Sub-inspectors and head constables should not be allowed to stay in a particular district for more than six years and ten 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 stay of sub-inspectors, head constables and constables should not exceed five years."
The Full Bench in the case of Vinod Kumar (supra), had examined Regulations 520 to 525 contained in Chapter XXXIV of the U.P. Police Regulations and observed as under:-
"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 along with 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."
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), held as under:--
"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."
Thus, in view of the abovesaid facts, the position which emerged out is to the effect that the regulation only provides that the transfers which result in officers being stationed far from their homes should be avoided as much as possible. It does not mean that the police officers/personnel should be posted in their home districts or the districts adjoining to the home districts. As per the said regulation the transfers which result in officers being stationed far from their homes should be avoided as much as possible. It does not even prohibit the transfer to far off places, as such, the contention raised in this regard by the learned Counsel for the Petitioners has no force.
So far as the impugned order of transfer, challenged by learned counsel for petitioner that the same is in contravention to the Government Order dated 11.07.1986 is concerned, transfer and posting is within the domain of the executive authority, who is the best judge to see as to where an incumbent should be posted and where his/her services can be best utilized. In the present case once uniform policy has been formulated and in the said direction uniform decision has been taken, then the petitioners, who are members of disciplined force, cannot have any grievance on account of passing of such transfer orders.
Law on the subject is clear. In the case of Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors. (SC), the Hon'ble Apex Court held as under:
"A Government servant holding a transferable post has no vested right to remain posted at one place or the other he is liable to be transferred from one place to the other. Transfer order issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration, which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders."
In the case of State of U.P. v. Gobardhan Lal 2004 (101) FLR 586 (SC), Hon'ble Apex Court has held as under:
"7. it is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of services. Unless the order if transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order or transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer polices at the best may afford an opportunity to the office or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with as they do not confer any legally enforceable rights, unless as noticed supra shown to be vitiated by mala fide or is made in violation of any statutory provisions."
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirement of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of Competent Authorities of the State and even allegations of mala fides when made must be such as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer.
9. The very questions involved, as found noticed by the High Court in these case being disputed questions of facts, there was hardly any scope for the High Court to generalise the situations based on its own appreciation and understanding of the prevailing circumstances as disclosed from some write ups in journals or newspapers reports. Conditions of service or rights, which are personal to the parties concerned, are to be governed by rules as also the inbuilt powers of supervision and control in the hierarchy of the administration of State or any authority as well as the basis concepts and well-recognised powers and jurisdiction inherent in the various authorities in the hierarchy. All that cannot be obliterated by sweeping observations and directions unmindful of the anarchy which it may create in ensuring and effective supervision and control and running of administration merely on certain assumed notions of orderliness expected from the authorities effecting transfers. Even as the position stands, avenues are open for being availed of by anyone aggrieved, with the concerned authorities, the Courts and Tribunals, as the case may be to seek relief even in relation to an order of transfer or appointment or promotion or any order passed in disciplinary proceedings on certain well-settled and recognised grounds or reasons, when property approached and sought to be vindicated in the manner known to and in accordance with law. No such generalised directions as have been given by the High Court could ever be given leaving room for an inevitable impression that the Courts are attempting to take over the reigns of executive administration. Attempting to undertake an exercise of the nature could even be assailed as an onslaught and encroachment on the respective fields or areas of jurisdiction earmarked for the various other limbs of the State. Giving room for such an impression should be avoided with utmost care and seriously and zealously Courts endeavour to safeguard the rights of parties.
Hon'ble Apex Court in case of Union of India and Ors. v. Janardhan Debanath and Anr. (2004) 4 SCC 245, has taken the view that transfer order should not be interfered unless same is in violation of statutory provisions or order passed is mala fide. Relevant extract is being quoted below:
"The High Court while exercising jurisdiction under Article 226 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon the peculiar facts and circumstances of the case concerned. No Government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident but a condition of service. Necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan (2001) 8 SCC 574."
Hon'ble Apex Court, in the case of S.C. Saxena v. Union of India and Ors. , 2006 (9) SCC 583 has held as follows:
"In the first place, a Government Servant cannot disobey a transfer order by not reporting at the place of posting and then go to Court to ventilate his grievances. It is his duty first to report for work, where he is transferred and make representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed."
The caution given by Hon'ble Apex Court qua transfer matters of members of Force has been given in the case of Major General, J.K. Bansal v. Union of India 2005 (107) FLR 37, in following terms:
"It will be noticed that these decisions have been rendered in case of civilian employees or those who are working in Public Sector Undertakings. The scope of interference by Courts in regard to members of armed forces is far more limited and narrow. It is for the higher authorities to decide when and where a member of the armed force should posted. The Courts should be extremely slow in interfering with an order of transfer of such category of persons and unless and exceptionally strong case is made out no interference should be made."
Hon'ble Apex Court in the case of State of Haryana v. Kashmir Singh Civil Appeal No. 8690-8701 of 2010, decided on 6.10.2010 has cautioned in matter of transfer of police personnel from one place to another, that same is purely administrative matter, and High Courts should be loath to interfere with the same, and the same should be left to the authorities concerned.
For the foregoing reasons, I do not find any infirmity or illegality in the impugned order which is under challenge in the present writ petition, as such the present writ petition lacks merit and is dismissed.
However, as prayed by learned counsel for the petitioner, in the interest of justice , it is provided that the petitioner shall make a fresh representation to opposite party No.2/Police Up Maha Nirikshak (Establishment), Police Headquarters, Allahabad within a period of two weeks from the date of receiving certified copy of this order for redressal of his grievances which he has raised in the present writ petition annexing all the relevant documents and materials in support of his case and after receiving the same opposite party no.2 shall consider and dispose of by way of speaking and reasoned order in accordance with law within a further period of four weeks thereafter.
Order Date :- 11.05.2012 Ravi/