Court No. - 58
Case :- WRIT - A No. - 15869 of 2018 Petitioner :- Upendra Kumar And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Mohammad Umar Khan Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
It is not in dispute that controversy raised in this petition stands adjudicated by this Court vide order dated 6.7.2018, passed in Writ Petition No.12602 of 2018 (Rajneesh Kumar And 2 Others Vs. State Of U.P. And 4 Others), which reads as under:-
"This petition is directed against an order dated 11.05.2018; whereby, the petitioners have been transferred from Bareilly to Lucknow. The order records that transfer is being effected on compassionate grounds, on the basis of request received from concerned Constable. It further appears that the order has been issued under the signature of Deputy Superintendent of Police (Establishment) on the basis of approval obtained from the Police Establishment Board.
The order is challenged on the ground that petitioner has not made any application, nor has given his consent for being transferred and therefore, the order of transfer proceeds on false and incorrect factual premise.
While entertaining this writ petition, time was allowed to the learned standing counsel to obtain instructions in the matter. Learned standing counsel has obtained instructions and original record relating to transfer has also been produced before the Court. As per the original record, photo copy of which is retained on record, it appears that a note was put before the Police Establishment Board for effecting order of transfer, which was granted approval by the Board on 10.05.2018. The proposal, which has been approved by the Police Establishment Board, is on a computerized format. Clause 10 thereof clearly mentions as under:
"Anukampa Ke Adhar Par Sthanantaran Chahne Wale Janpad Ka Naam."
It transpires that Police Establishment Board has been apprised that Constable concerned has made an application for his transfer and three districts have been specified, as per the priority mentioned therein. It is on the basis of this intimation that the Police Establishment Board has formed its opinion and has thereby, approved the transfer resulting in passing of the order impugned.
This Court finds that information, furnished before the Police Establishment Board, itself was incorrect; in as much as, petitioner had not made any application for being transferred, as is observed in the format itself. Grant of approval by the Police Establishment Board, therefore, would be vitiated, as the Board, apparently, was misled on facts by the information furnished by the Department. Although the order of transfer is stated to have been passed in public interest, but the Board has arrived at satisfaction that transfer is in public interest, only on the basis of information, which itself is found to be incorrect. The subsequent order of 19.05.2018 is also vitiated; in as much as, no approval has been obtained by the Police Establishment Board before issuing the modified order on 19.05.2018. There is no approval by the Police Establishment Board with regard to transfer of petitioner on any other ground, apart from compassionate ground, alleged in the order itself. Apart from the approval dated 10.05.2018, there exists no other approval of the Board. It is also relevant to note at this stage that transfer in Police Department is required to be made only on the basis of approval obtained from the Police Establishment Board. Government Orders, in that regard, have been issued following the directions issued by the Apex Court in Prakash Singh Vs. Union of India and Others reported in 2006 (8) SCC 1. Once the approval of Police Establishment Board is found to have been obtained on facts, which are incorrect, and the Board has not approved transfer on the correct facts, the order of transfer dated 11.05.2018, as amended on 19.05.2018, would clearly be unsustainable.
In such circumstances, the order of transfer, in so far as it relates to the present petitioner is concerned, cannot be sustained and is, accordingly, quashed. It shall, however, be open for the Board to independently consider the question of transfer a fresh, in accordance with law, without being influenced by any of the observations made in this petition.
The writ petition stands allowed."
In this petition also, there is no request by the petitioner for his transfer, and therefore, this writ petition is also allowed in terms of the aforesaid order.
Order Date :- 30.7.2018 Anil