1. The petitioners have invoked extra ordinary jurisdiction under Article 226 of the Constitution of India seeking a mandamus commanding the respondents to either treat the petitioners as full fledged Police personnel governed by provisions of Police Act 1861 (hereinafter referred to as "Act, 1861") and rules and regulations framed thereunder or a non Police personnel / civilian one and, therefore, governed by rules and regulations applicable to other holders of civil post and not partly on both the sides.
2. The facts giving rise to the present situation, so as to compel petitioners to seek mandamus, as noted above, in brief, are as under:
3. All the petitioners are Urdu Translators-cum-Junior Clerk. The Governor, in exercise of power under proviso to Article 309 of Constitution promulgated U.P. Urdu Anuwadak Sah Kanishta Lipik Sewa Niyamawali, 1994 (hereinafter referred to as "Rules, 1994") vide notification dated 9.9.1994. Pursuant thereto, Secretary (Karmik), U.P. Government created 5061 posts of Urdu Translators-cum-Junior Clerk in various offices vide Government Order dated 20.8.1995 and bifurcation of the post in the concerned office mentioned in the said Government Order is as under:
4. The recruitment was to be made in the concerned district by District Magistrates vide Government Order dated 9.9.1994. The Special Secretary, U.P. Government, issued a letter dated 17.4.1995 addressed to the Director General of Police stating that in order to accommodate/appoint Urdu Translators-cum-Junior Clerk, 1515 posts of Constables in the scale of 950-1400 shall be kept in abeyance. It also clarified that these posts (Urdu Translator cum Junior Clerk) would be other than Police rank and their appointing authority would be concerned Senior Superintendent of Police or Superintendent of Police in the district. District-wise posts allotted to 63 districts, with reference to number of Police Stations were also mentioned in the Annexure, appended to the Government Order dated 17.4.1995, which is Annexure 4 to the writ petition.
5. The concerned District Magistrates made selection by issuing advertisements, pursuant whereto petitioners were selected and recommended for appointment by concerned District Magistrate. The various selected candidates were also allocated to various departments and petitioners were allocated to Police department by concerned District Magistrate. Ultimately, Superintendent of Police issued letters of appointment to petitioners appointing them as Urdu Translators-cum-Junior Clerk.
6. The petitioners, were treated class III ministerial staff, other than officers of Police forces, and dealt with accordingly. Certain benefits, which were available to the members of U.P. Police Force, enrolled under Section 2 of Act, 1861, were not extended to petitioners since they were not treated members of U.P. Police Force. One of such order is dated 19.1.1997 issued by U.P. Police Headquarters stating that one month extra pay, food allowances, which is available to members of U.P. Police force would not be available to petitioners since they are civilian class III employees posted in Police department and, therefore, shall be entitled for leave etc., as are applicable to other Class III ministerial civilian staff.
7. However, simultaneously, another Government Order was issued by U.P. Police Headquarters on 28.7.1997, laying down guidelines for their transfers, communicating a policy decision that, Urdu Translation cum junior clerk shall not be posted in their own districts. This order discriminated petitioners vis a vis their counter parts working as Urdu Translators-cum-Junior Clerk in other departments, in respect to whom there was/is no such bar regarding posting in their home districts.
8. Consequently, one of the petitioners, protested against such decision of U.P. Police Headquarters, vide representation dated 20.8.1997. Reminders were also sent on 16.12.1997 and 4.2.1998. Thereafter this writ petition has been preferred challenging Police Headquarters' order dated 28.7.1997 and seeking declaration that petitioners, working as Urdu Translators-cum-Junior Clerk, either should be treated as Police personnel with all attending perks and benefits or should be treated as civilian employees, to whom restrictions applicable to members of U.P. Police Force should not be made applicable.
9. A counter affidavit and supplementary counter affidavit has been filed by respondent no.4. It has been stated that Government Order dated 17.4.1995 itself says that post of Urdu Translators-cum-Junior Clerk is outside Police rank post. Therefore, provisions applicable to Police rank officials and special facilities, would not be available to petitioners. Further, though petitioners are civilian, but, looking to the structure and working conditions of Police Department, it is in the interest of public that transfer policy, which helps the department in discharging duties with utmost efficiency, must be followed and in that view of the matter transfer policy in respect to Urdu Translators-cum-Junior Clerk has been laid down and they are transferable throughout the State. The petitioners, even otherwise, have no fundamental right or legal right to stake or claim posing in their own district. Such a contingency is likely to affect objectivity and impartiality of department's function, inasmuch as, working as Urdu Translators-cum-Junior Clerk, petitioners are likely to come in contact with Police personnels also if they stay for long at one place. The various noting etc. are bound to be affected. It is in these circumstances, transfer policy has been laid down at the level of Police Headquarters and no interference is called for, therein.
10. A supplementary affidavit has been filed by petitioners pointing out that a Government Order has also been issued on 8.8.2001 clarifying the position with respect to Urdu Translators-cum-Junior Clerk that these posts have been created in certain departments/offices in particular, and, therefore, these posts are not transferable and therefore, they should not be made transferable. This clarification was issued by Special Secretary, vide letter dated 13.8.2001 addressed to the Commissioner, Entertainment Tax with respect to transfer of one Jiauddin Saifi Urdu Translators-cum-Junior Clerk in that department.
11. Another clarification has been issued by Secretary, U.P. Government, addressed to all the departments on 25.8.2006, Annexure S.A. 4 that officials, working on the post of Urdu Translators-cum-Junior Clerk, normally, should not be transferred since the posts have been created specifically for certain departments and offices.
12. Besides, a Single Judge of this Court in Writ Petition No.18916 of 2004 (Razrul Rahman & Ors. Vs. State of U.P. & Ors.) decided on 8.8.2005, has also noticed this fact that Urdu Translators-cum-Junior Clerk constitute a separate cadre and cannot be merged or clubbed with other ministerial staff of Government. The cadre of Urdu Translators-cum-Junior Clerk is in reference to each Government Department or office in respect whereto the posts have been created.
13. Sri Shailendra, learned counsel for the petitioner during course of arguments, raised one more fundamental question that petitioners are governed by rules framed under proviso to Article 309 of Constitution and not the Police Act, 1861 or the rules and regulations framed thereunder, therefore, power to take policy decisions in the matter of transfer etc. also vests in the State Government and not with the Police Headquarters, since no such power has been delegated to them. The executive power under Article 162 can be exercised by State Government. It has specifically said by the Government that posts and persons, working as Urdu Translators-cum-Junior Clerk, are not transferable. The respondents, relying on a policy decision taken by Police Headquarters, cannot follow a different policy by ignoring Government Orders and that is wholly without jurisdiction.
14. Learned Standing Counsel, on the contrary, submitted that petitioners are civilian staff but so far as transfer is concerned, it is within the domain of U.P. Police Department to take a decision in this regard and it warrants no interference.
15. I have heard Sri Shailendra, learned counsel for the petitioners, learned Standing Counsel for the respondents at length and perused the record.
16. From the pleadings of the parties, it is not in dispute that respondents themselves do not treat petitioners as members of U.P. Police Force enrolled under Section 2 of the Act, 1861. In the Government Order dated 17.4.1995 also, it was clearly stated that posts of Urdu Translators-cum-Junior Clerk are outside the police rank posts. It thus cannot be doubted that petitioners are not members of U.P. Police force. Therefore, provisions and special provisions, as the case may be, which are applicable to the members of U.P. Police Force, who are governed by Act, 1961 and rules and regulations and orders issued thereunder, would not be applicable to petitioners. They are simply civilian, non Police personnel staff, posted in Police Department. They would be governed by rules and regulations framed under proviso to Article 309 of the Constitution and executive orders issued by State Government in purported exercise of power under Section 162 read with 166 of the Constitution.
17. With respect to transferability of post, it is not disputed that Rules, 1994 do not contemplate any such thing. State Government has clarified vide order dated 25.8.2006 that neither the posts nor the personnels, working as Urdu Translators-cum-Junior Clerk, are transferable or should normally be transferred. In view of this specific stand taken by respondent State of U.P., I do not find as to how Police Headquarters can take upon itself the task of laying down conditions of service or policy decision with respect to service matters of petitioners, contrary to the decision taken by State Government, who is principal body having legislative power to lay down conditions of service of these personnel. A transfer policy with respect to Urdu Translators-cum-Junior Clerk, no doubt is within the realm of State Government. If it decides to make it non transferable, U.P. Police Headquarters, in my view, does not possess any power and none has been shown by respondents-learned Standing Counsel whereby it can take a contrary policy decision. The decision taken in respect of Police personnel, is by virtue of power specifically conferred under Act, 1861 and rules and regulations framed thereunder but no such power has been conferred with respect to civilian staffs and unless such power is vested with them (U.P. Police Headquarter), I do not find that such a policy decision can be taken by it (Police Headquarters) in respect of transfer of persons working as Urdu Translators-cum-Junior Clerk. The Police Headquarters' circular dated 28.7.1997 is clearly unauthorised, without jurisdiction and illegal, particularly when State Government has already made it clear that posts and personnels making as Urdu Translator cum Junior Clerk are not transferable.
18. In view thereof, the writ petition is allowed. The impugned circular dated 28.7.1997 is hereby held illegal, inoperative and would not be enforced against petitioners.
19. The petitioners shall also be entitled to costs which is quantified to Rs.10,000/-.
Order Date :- 17.9.2014 KA