Allahabad High Court
Shesh Mani Dubey Son Of Sri Yagya Narain ... vs State Of U.P. Through Principal ... on 25 July, 2007
Author: V.K. Shukla
Bench: V.K. Shukla
JUDGMENT V.K. Shukla, J.
1. Petitioner in the present writ petition is questioning the validity of the order dated 30.06.2007 passed by Deputy Inspector General of Police Allahabad Region Allahabad as communicated by the Senior Superintendent of Police, Allahabad vide his order dated 09.07.2007 transferring the petitioner from District Allahabad to District Pratapgarh.
2. Brief facts giving rise to instant writ petition in brief is that petitioner who is Sub-Inspector is presently posted at Police Station Sarai Inayat District Allahabad. Petitioner has contended that he is permanent resident of District Mirzapur and has been posted at Allahabad, and while he had been performing and discharging duties, petitioner as well as seven others Sub-Inspectors who were posted at Allahabad have been transferred to other District only on the ground that they are permanent resident of their respective neighbouring District of Allahabad. Petitioner has submitted that his continuance at Allahabad was permissible and within the parameter prescribed under Regulation 520 of U.P. Police Regulation and he has been unnecessarily transferred, by taking recourse to the provision of Government Order dated 11.07.1986 which is unjustifiable as such impugned transfer order is liable to be quashed.
3. Sri Shashi Nandan, Senior Advocate, assisted by Sri Udayan Nandan, Advocate contented with vehemence that this is glaring case of arbitrary exercise of power in the matter of transfer and by ignoring the provision which covers the field of transfer, Regulation 520 which specifically provides that transfer which result in officers far from their home be avoided as much as possible and here transfer order has been passed in the present case placing reliance on government order dated 11.07.1986 which runs counter to the provisions of Regulation 520, as such no credibility could be accorded to said Government Order, and petitioner has been unnecessarily transferred as such transfer order is liable to be quashed.
4. Sri Piysh Shukla, Standing Counsel on the other hand countered the said submission by contending that in the present case Deputy Inspector General of Police Allahabad Region Allahabad is competent authority to pass order of transfer and petitioner holds transferable post and once decision has been taken in the administrative exigency as per policy decision none of the legal right of the petitioner has been infringed as such no interference is warranted and writ petition is liable to be quashed.
5. In order to appreciate respective arguments relevant Regulations as compiled under U.P. Police Regulation are being looked into Chapter-1 Regulation-1 deals with Director General cum Inspector General of Police, Regulation 1A deals with Additional Inspector General of Police and Regulation 520 to 525 of the Regulation deals with transfer. Relevant provisions is this regard are being quoted below:
Chapter 1 Superior Officers Inspector General-cum-Director General
1. The Inspector-General is the head of the Police Department and adviser of the Governor in council on all questions of police administration. All orders from the Governor in Council to a member of the police force are issued through him, except in cases of urgency when copies of any orders issued direct to subordinate officers are sent to him. No police officer may correspond with the Governor in Council except through him, unless specially authorized by rule. As a matter of administrative routine he is concerned only with gazetted officers, the general allocation of staff and the general distribution of funds, complete responsibility in regard to the non-gazetted staff being delegated to Deputy Inspector-General, except in regard to the posting transfer and grant of leave to inspectors in certain cities and stations and to the posting, transfer and promotion of the clerical staff, which can most conveniently be regulated by him.
Note The State of U.P. Had already designated the highest seat of Police Force in the State as the Director General of Police. The posts of Additional Inspector General of Police sanctioned in the year 1981 have now been raised to the rank and post of the Inspector General of Police in super time scale and the State has sanctioned similar posts to be created in other cells of the department. Several G.D.'s have been issued in this respect from time to time. The State has been divided into seven zones, each under one Zonal Inspector General of Police. The zones now functioning are given below. The powers vested in the Additional Inspector General of Police are not with the Zonal Inspector Generals and further powers may be conferred upon them as and when required. The G.O's regarding the creation of the posts of Inspector General of Police are given at the end of this Regulation.
[I-A. Additional Inspector-General of Police : The Additional Inspectors-General of Police will be the Incharge and supervising officer of the region under them and will give appropriate guidance to the Deputy Inspectors-General of Police, of their region. Their duty/powers in relation to the employees/officers of their region will be as under:
(i) To transfer non-gazetted officers of the region under them. The inter-region transfer will be done at the Police Head Quarter's level, as done earlier, but the procedure in respect to them will be that these orders will now be passed in accordance with the recommendation of the concerned Additional Inspector General of Police.
(ii) To dispose of the representation, appeals, revisions, and petitions of employees posted in the region under them.
(iii) To grant casual leave to gazetted officer of the region under them, which was granted by the Inspector-General of Police till now.
(iv) To make available their opinion, concerning the work of the gazetted officer of their region to the Inspector-General of Police for annual entries. The Deputy Inspector-General will also be in these officers.
(v) Such other work/acts/functions that may be entrusted to them from time to time, by the administration or the Inspector-General of Police.
Deputy Inspector-General
2. Certain Deputy Inspector-General are incharge of ranges of districts. Each of them is responsible for the efficiency of the police in his range, and must see that a proper level of district administration is maintained. He must always be in close touch with his Superintendents and be ready to aid, advise or control them. He must inspect the work of the Superintendent of each district at least once a year, and prepare an inspection report in the form prescribed. He need not, however, record observations under any of the printed headings of the form except VIII "Crime Working" and IX "General" if everything is in order and no action is required, and should mention in his report only matters which can most suitably be entered there for the guidance of the district staff or the information of his successor. On completing his inspection, he will at once take all such action as his powers permit to remedy defects, and will refer to the Inspector-General grave defects or questions of principle with which he himself has not the power to deal.
3. The Deputy Inspector- General is responsible for the general supervision of crime in his range; he must see that proper measures are taken to deal with serious outbreaks, and must effect co-operation between districts. For this purpose he must keep up registers of (1) dacoity (2) murder (3) robbery (4) poisoning and (5) miscellaneous cases in Inspector- General's from No. 138. He will submit to the Inspector General a fortnightly report of crime which will include any matters relating to his range of which he considers that the Inspector General should be informed. To this will be attached a statement of dacoities giving very brief particulars of each case. He will forward to the Inspector-General special reports of crime in exceptional case. Superintendents much report direct to the Inspector-General as well as to the Deputy Inspector-General matters of specially important character regarding which government may require immediate information, e.g. serious breaches of the peace, collisions between Europeans and Indians and important matters of a political nature; but so far as possible the Deputy Inspector-General will be the channel through which the Inspector-General will receive information. On receipt of district annual administration reports" the Deputy Inspector-General must prepare and submit to the Inspector-General a review for the whole of his range, which a note on cases which deserve special mention in the provincial report.
The Deputy Inspector- General of Police, Education and Training will be responsible for supervision and cooperation of work in the Range Training Centres which he will inspect from time to time. Apart from this he will keep in touch with the latest methods of training introduced elsewhere and adopt them for use in the Police Training Institutions.
He will also supervise training at the Police Training College, Moradabad the Armed Police Training Centre as well as the Police Motor Transport Workshop at Sitapur and the Wireless Station at Lucknow all of which excepting the Police Motor Transport Workshop at Sitapur will remain under his administrative control. He will undertake the revisions of the various Police Training Manuals and draft manuals when necessary.
Chapter XXXIV Transfer 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 constable and constable 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.
Transfer which result in officer being stationed far from their homes should be avoided as much as possible. Officers above the rank of constable should be 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-inspector 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 to sub-inspectors head constables and constables should not exceed five years.
Regulation 521 : The Inspector-General may without the sanction of Government.
(a) Transfer to
(i) foreign service within the provincial other than to service in an Indian State and
(ii) another department of provincial Government, any Government servant when he can without reference to Government appoint or transfer in the ordinary course of administration and may also fill any post so vacated by promotion and enlistment when necessary and.
(b) Subject to the same restrictions as in Clause (a) transfer as Government servant to a temporary appointment outside the province for a period not exceeding two years in the first instance and may extended the period of such temporary transfer up to a period of two years.
Regulation 522 : The Superintendent when proposing a transfer from the district should send the character and service roll of the officer to be transferred. With the consent of the Superintendents concerned mutual exchanges may be arranged by head constables or constables. The proposed exchanges shall be reported to the Deputy Inspector-General. Traveling allowance will not be payable on the occasion of such transfers.
Regulation 523 : On receipt of an order of transfer of a subordinate officer to another district the Superintendent will arrange to relieve him to his duties within ten days. Officers transferred are entitled to joining time, but the Superintendent may not grant leave to an officer under order or transfer.
An inspector relieved on transfer from another district is entitled to sign a certificate of taking over charge from the date of arrival in the new district. If the officers to be relieved cannot be present at headquarters, the charge certificate should be signed for him by the Superintendent of Police or in his absence, by an Assistant Superintendent of Police or Deputy Superintendent of Police. The effect of this will be that an officiating officer will be considered to have been reverted, and permanent incumbent's joining time or leave or discharge, will be counted from the date on which the relieving officer takes over charge.
Regulation 524 : The Superintendent may within his district, transfer all officer of and below the rank of inspector. In case of inspectors and officers in charge of police stations, he must before passing orders obtain the approval of the District Magistrate. Should the District Magistrate and Superintendent of Police be unable to agree in regard to the transfer of any officer, the matter may be referred to the Deputy Inspector General of range for decision:
Provided that in the district where the Collector/Deputy Commissioner is Collector/Deputy Commission-in-charge of the Division, his functions under this sub-paragraph will be exercised by the Additional District Magistrate (Executive).
Officers-in-charge of police stations shall ordinarily be retained in their charges for at least two years. Subordinate officers at Police Stations should not be transferred without good reasons. No officer liable to station duty shall be withdrawn from the duty for a longer period than one year, expect in Kumaun where the withdrawal of head constable for two years at a time from station duties is permitted.
Regulation 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 own 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 anyone 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 or 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 Police requires the sanction of the Inspector General.
6. A bare perusal of Regulation-1 of Chapter-1 would go to show that Inspector-General is the Head of the Police Department and the adviser of the Governor in council on all questions of police administration. Said Inspector-General as a matter of administrative routine is concerned only with gazetted officers, the general allocation of staff and the general distribution of funds, complete responsibility in regard to the non-gazetted staff being delegated to Deputy Inspector-General, except in regard to the posting transfer and grant of leave to inspectors in certain cities and stations and to the posting, transfer and promotion of the clerical staff, which can most conveniently be regulated by him.
7. In the State of U.P. highest seat of Police Force has been designated as Director General of Police. In principal Act of the Police Act, 1861 State Amendment has been made in Section 4 by means of U.P. Act No. 10 of 1984 by mentioning that administration of police throughout general police district shall be vested in officer to be styled Director General-cum Inspector-General of Police and such Inspector General, Deputy Inspector General and Assistant Inspector General. Posts of Additional Inspector General of Police sanctioned in the year 1981 have now been raised to the rank and post of the Inspector General of Police. Till the time Additional Inspector General of Police was not re designated as Inspector General of Police in term of Regulation-1A Additional Inspectors-General of Police was to be the Incharge and supervising officer of the region under them and entitled to give appropriate guidance to the Deputy Inspectors-General of Police, of their region. The Additional Inspector General of Police was empowered to transfer non-gazetted officers of the region under him but as far as inter-region transfer was concerned same was to be be done at the Police Head Quarter's level, as it was done earlier, but procedure qua the same which was to be followed was that such order was to be passed in accordance with the recommendation of the concerned Additional Inspector General of Police. In term of Section 4 of the Police Act 1861, qua Director General-cum Inspector General of Police, entire State of U.P. is one general police district, and he holds the highest seat. Posts of Additional Inspector General of Police have been raised to rank and post of Inspector General of Police and State of U.P. has been divided into eight Zones with each Zone headed by Inspector General of Police. By means of Government Order dated 19.08.1987, duties, responsibilities and functions have been determined. Inspector General of Police has been given free hand of transfer within his Zone. Deputy Inspector General of Police are incharge of Range.
8. Regulation 520 empowers the Inspector General to transfer Police Officers not above the rank of Inspector throughout the province. The Deputy Inspector General of Police of the range is entitled to transfer Inspectors, Sub-Inspectors, Head constable and constable within his range. Scope of Regulation 520 has been considered. Regulation 521 deals with authority of Inspector General to transfer, even without sanction of the State Government. Regulation 522 and 523 deals with obligation cast upon Superintendent of Police in the matter of transfer. Regulation 524 deals with authority of Superintendent of Police in the matter of transfer within the District of officers of and below the rank of Inspector, and provides that Officers-in-charge of police station shall ordinarily be retained in their charges for at least two years. Regulation 525 deals with transfer of Constable interse Armed Police; Civil Police; Mounted Police and to other branch. In all other cases not covered, sanction of Inspector General has been provided for.
9. At this juncture, the view point of this Court qua the provisions contained under Chapter XXXIV of U.P. Police Regulation, which covers the field of transfer, taken in the case of Moonaalal v. D.I.G. (Karmik) in Special Appeal No. 630 of 1993 decided in 24.09.1993 is being looked into which is as follows:
U.P. Police Regulations is compilation of Government Orders issued from time to time. Certain regulations are referable to Section 7 of the Police Act they have statutory force; they only certain guidance for the officers and officials concerned. A later government order supersedes the earlier Government Order on the same subject. If Government Order referable to Regulation 520 was issued subsequent to Government Order to Regulation 1, the former will prevail over the letter. There is no material on record to show that the Government order referable to Regulation 1 was issued subsequent to the Government Order referable to Regulation 520. Accordingly we are unable to sustain the appellant's plea that Regulation 520 is invalid as it is contrary to Regulation 1.
It also need to be pointed out that Regulation 1 prohibits Inspectors General of Police from delegating his power to transfer clerical staff to Deputy Inspector General of Police but it does not prohibited the State Government from making fresh prescription of the authority competent to effect transfer. In out opinion, Regulation 520 contains a fresh independent conferment of power upon the Deputy Inspector General of Police.
We have mentioned hereinabove, that the U.P. Police Regulation is mostly compilation of the Government Orders issued from time to time except a few provisions which are referable to statutory provisions. Chapter XXXII which bears the heading "Departmental Punishment and Criminal Prosecution of Police Officers," contains regulations which have been framed in exercise of powers conferred under Section 7 of the Police Act 18.61. The Regulations contained in this Chapter have therefore, statutory force as held by their Lordships of the Supreme Court in State of of U.P. and Anr. v. Babu Ram Upadhyaya . The regulations contained in Chapter XXXIV have not been framed either under Section 7 of the Police Act or under any other statutory force. Regulation 520 dealing with transfers falls under this chapter.
10. Transfer is an exigency of service. Incumbent holding transferable post has no choice in the matter of posting. In order to maintain administrative exigency and in public interest vis-a-viz the interest of the incumbents who are serving transfer policy is framed Framing of transfer policy is one of the steps towards good governance by the State Government and same is to be used as guideline, while effectuating transfer in order to maintain transparency. State Government has the authority to revise its transfer policy, based on its experience.
11. Time and again for running the administration effectively full latitude has been given to the authorities, in the matter of transfer and posting of incumbent and whenever complaint has been made, complaining violation of transfer policy guidelines, no interference has been made by Courts except in the circumstances (i) when there is violation of statutory Rule (ii) when there is malafides (iii) the incumbent who has transferred has no authority to transfer. Qua the enforcement of said transfer policy, it has been clearly held that same does not confer legally enforceable right, as same are mere guidelines without any statutory force. View point of Hon'ble Apex Court in the matter of transfer is being looked into.
12. In the case of Mrs. Shilpi Bose and Ors. v. State of Bihar and Ors. reported in 1995 (71) FLR 1011 (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.
13. In the case of State of U.P. v. Gobardhan Lal reported in 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 malafide 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 malafide 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.
14. Hon'ble Apex Court in case of Union of India and Ors. v. Janardhan Debanath and Anr. has taken the view that transfer order should not be interfered unless same is in violation of statutory provisions or order passed is malafide. Relevant extract is being quoted below:
9...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 .
14. The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceeding. For the purposes of effecting a transfer the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement, as submitted by learned Counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other.
15. 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 reported in 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.
16. Hon'ble Apex Court, in the case of S.C. Saxena v. Union of India and Ors. reported in 2006 (9) SCC, page 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.
17. On the touch stone of the provision and dictum quoted above, the fact of the present case is being adverted to Petitioner holds transferable post, the authority who has passed orders of transfer i.e. Deputy Inspector General of Police, Range, Allahabad has full authority to pass order of transfer qua the same there is no dispute. In the present case the issued being raised is that Regulation 520 provides for "Transfer 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 in districts in which they reside or have landed property"; and as per the same petitioner claims he was posted in adjoining district of his home district, and as till date said Regulation has not been rescinded, by exercising and invoking the provisions of Government Order dated 11.07.1986, petitioner could not have been transferred far from his home district and from the adjoining district of home district.
18. Division Bench of this Court, qua Regulation 520 in Special Appeal No. 630 of 1993 Moonglal v. DIG has clearly taken notice of the fact, that certain Regulations, referable to Section 7 of Police Act 861 have statutory force. Other regulations do not have statutory force, they only contain guidance for the official concerned. Section 2 of 1861 Act deals with constitution of force and authorise the State Government to determine pay and all other condition of service. Section 3 of 1861 Act deals with power of superintendence of State Government. Section 7 of 1861 Act authorises the authority to make appointment and pass order of dismissal etc. of inferior Staff, subject to the provisions of Article 311 of the Constitution and the Rules made by the State Government. Section 12 of 1861 Act deals with authority of Director General-cum Inspector General to make Rules, for amongst other purposes, preventing abuse or neglect of duty, and these Rules are subject to the approval of the State Government. Section 46(2) of 1861 Act, vests the State Government to make Rules (a) to regulate procedure to be followed by Magistrate and police officers in discharge of their duty imposed under the Act (b) qua procedure to be followed in matter of compensation under Section 15A of the Act (c) for giving effect to provisions of this Act. Regulation 520 is not at all an outcome of statutory exercise of Rule making under Section 2, 3, 7, 12, 46(2) of 1861 Act. State Government is fully empowered to frame Rules regulating the condition of service, and till date in respect of transfer which is a necessary incident of service, no statutory rules have been framed and in the absence of rules being there on the subject the competence of State Government to issue Government Order is not disputed. Regulation 520 has been introduced by way of Government Order. A latter, Government order supersedes the earlier Government Order on the same subject and will prevail over the same. Regulation 520 to the extent it contains contrary provisions to Government Order dated 11.07.1986 in respect of transfer and posting in home district/adjoining District has to be Ignored.
19. Earlier under Regulation 520, qua officers above the rank of constables it was mentioned, that they should ordinarily not be allowed to serve is Districts in which they reside or have landed property. Now by means of Government Order dated 11.07.1986, specific provision has been made not to post any sub-Inspector/Inspector in region of his home district, and also not to post in adjoining district. Earlier also in pith and substance, there was restriction in serving in home district, though not absolute one, keeping In view of impact of local links and vested interest of incumbents which may not be public interest, if he/she is posted in home district now the restriction qua non-placement in home district has been made absolute and the said area has been extended to region of home district and adjoining district also. If such a decision has been taken in administrative/public interest for public good same cannot be faulted. Authority to frame transfer policy has not been disputed. In respect of framing of policy, Hon'ble Apex Court in the case of State of Orissa v. Gopi Nath Dash reported in 2006 SC 651, took the view that policy decision must be left to the Government, as it can alone adopt which policy should be adopted after considering all the point from all the angles. In matter of policy decision or exercise of discretion of government so long as infringement of fundamental rights is not shown Courts will have no occasion to interfere, and the Court will not and should not substitute, its own judgement, for the judgment of execution in such matter. In the assessing the propriety of decision of the government, the Court cannot interfere even if second view is possible from that of government.
20. Consequently, the transfer guidelines which is in the shape of policy decision cannot be faulted, specially when there are no statutory rules creating embargo on the exercise of authority of transfer and no fundamental rights have been violated.
21. Stress has also been laid on the provision as contained in Regulation that transfer which results in officers being stationed for from their homes should be avoided as much as possible, is being rendered otiose, because of incorporation of provision not be posted in the region of home district and adjoining district. Transfer and posting is the domain of the authorities concerned and it is for the authority to see as to where an incumbent is to be posted and his services are to be utilized as transfer is not only incident of service but essential condition of service. "As much as possible" gives discretion in the authority while proceeding to exercise authority vested in it, and same inheres in built flexibility, thus, giving latitude to the authority, that strict adherence of same is not required. The said provision is clearly directory in nature and same is subject to other guidelines which have been framed keeping in view public interest and administrative exigency. This aspect of the matter already stands answered by Division Bench of this Court, in the case of Rajendra Prasad v. Union of India reported in 2005 (2) ESC 1294. Emphasis has also been laid on the fact that paragraph 6 of said Government Order dated 11.07.1986 states that amendment should be made in U.P. Police Regulation and necessary steps shall be undertaken accordingly, however, no such amendment has been made, as such Regulation 520 still holds the field. No where under 1861 Act, any particular procedure has been provided for amending the Regulation. Regulation 520 is in fact Government Order, referred to as regulation, and once on the same subject another Government Order had been issued, then by necessary implication the earlier Government Order stood superseded. In respect of Government Order notification was not required. The department based on the said Government Order has taken action as such plea taken is neither here nor there.
22. Petitioner is member of disciplined force, petitioner holds transferable post, there is no violation of any statutory rule or regulations, plea of malafide is not at all there as such there is no occasion to interfere.
23. Consequently, writ petition lacks substance and is dismissed with the observations made above.
24. No orders as to cost.