Allahabad High Court
P.T.I. Paras Nath Yadav vs State Of U.P. Thru Prin.Secy.Home Civil ... on 7 March, 2018
Author: Rakesh Srivastava
Bench: Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 6 Case :- SERVICE SINGLE No. - 6676 of 2018 Petitioner :- P.T.I. Paras Nath Yadav Respondent :- State Of U.P. Thru Prin.Secy.Home Civil Sectt.Lucknow & Ors. Counsel for Petitioner :- Surya Prakash Singh Counsel for Respondent :- C.S.C. Hon'ble Rakesh Srivastava,J.
1. On 25.08.1985, the petitioner was appointed as constable in Pradeshik Armed Constabulary (PAC) and was posted at 20th Batallian, PAC, Azamgarh. Subsequently, the petitioner underwent Physical Training Instructor (PTI) course. In the year 1992, the petitioner was posted as PTI at Regional Training Center (RTC), 30th Battalion, PAC, Gonda. In the year 1996, the petitioner was transferred from Gonda to RTC, Bahraich and since then he has continued to work at Bahraich.
2. On 09.04.2013, the Police Head Quarter passed an order wherein it was provided that all the ITI/PTI working in different Training Institutions/RTC's, who had attained the prescribed age be sent back to the district/unit/PAC battalion where they were inititally appointed. In pursuance of the said order the petitioner along with other similarly situated ITI/PTI's were relieved from Bahraich in the year 2017.
3. The relieving order of the petitioner as well as other similarly circumstanced ITI/PTI's were set aside by this Court vide order dated 10.08.2017 passed in Writ Petition No.18140 of 2017 (S/S) on account of the alleged delay in implementing the order dated 09.04.2013. It was however, left open to the authority concerned to pass a fresh order in accordance with law, if the exigency of service so required.
4. On 18.10.2017, the Superintendent of Police (Establishment) passed an order dated 18.10.2017 by means of which the petitioner has been returned back to 20th Battalion, PAC Azamgarh. The petitioner alongwith other similarly placed ITI/PTI's preferred a Writ Petition No. 25808 of 2017 (S/S) before this Court on the ground that they were being returned back to PAC in violation of the Government Order dated 30.10.2015. On 30.10.2017 the said writ petition was finally disposed of with liberty to the petitioners of the said petition to make a representation raising all their grievances alongwith the relevant documents, to the Director General of Police, Lucknow who in turn was directed to consider and decide the same in accordance with law by a reasoned and speaking order within the time mentioned therein. Till the disposal of the representation the order under challenge in the said writ petition was stayed.
5. The representation made by the petitioner in pursuance of the order dated 30.10.2017 passed by this Court has been rejected by the Director General of Police by order dated 06.12.2017 and in pursuance of the said order the petitioner has been relieved from RTC, Bahraich by the Superintendent of Police vide his order dated 19.02.2018. The relevant portion of the order dated 06.12.2017 is extracted below:
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6. The order dated 18.10.2017 whereby the petitioner has been ordered to be returned back to 20th Battalion, PAC Azamgarh, the order dated 06.12.2017 by means of which the representation of the petitioner against the said order has been rejected and the relieving order dated 19.02.2018 are under challenge in the present writ petition.
7. Shri S.P. Singh, learned counsel for the petitioner has vehemently submitted that the petitioner is 55 years of age and since a decision has been taken by the State Government to keep the PAC young and effective, instead of returning the petitioner to PAC, the petitioner be transferred to the Armed Police Wing of the District Police in accordance with the Government Order dated 30.10.2015.
8. Per contra, the learned Standing Counsel has supported the impugned order.
9. In his representation dated 05.11.2017, the petitioner has stated that, in pursuance of the order dated 30.10.2017 passed by this Court and in pursuance of the Government Order dated 30.10.2015 he may be transferred to the District Police after the end of the academic session.
10. The representation of the petitioner came to be rejected by the Director General of Police vide his order dated 06.12.2017. While rejecting the representation of the petitioner, the Director General of Police has observed that since the petitioner had attained the age limit prescribed for working in RTC's, the petitioner was ordered to be returned back to 20th Battalion, PAC, Azamgarh, which was in accordance with the departmental rule. As per clause 2(3) of the Government Order dated 30.10.2015 the future vacancies for the post of Head Constabulary Armed Police are to be filled up by Head Constable of PAC; as per the Government Orders dated 30.10.2015 and 18.02.2016, only the interested Head Constable of PAC could be transferred to District Armed Police as per their priority; as per Government Order dated 30.10.2015 the post of Constable in Armed Police had been merged with the post of Constable in Civil Police, as a result of which there was no post of Constable Armed Police in the District at present; there was no provision in the PAC Rules for transfer of a Constable in PAC to District Armed Police; since the petitioner was working as Constable in PAC, he could not be transferred to the District Armed Police; as soon as the petitioner was promoted to the post of Head Constable in PAC, his case for transfer to District Armed Police could be considered as per the prevalent rules.
11. The representation made by the petitioner has been disposed of by a well reasoned order. The learned counsel for the petitioner does not dispute the fact that the case of the petitioner is not covered by the Government Order dated 30.10.2015. The counsel also does not dispute the observations made by the Director General of Police in the order dated 06.12.2017. The counsel, however, submits that the petitioner is 55 years of age and the action of the respondents in sending him back to PAC is contrary to the policy of the State Government of keeping the PAC young and effective.
12. Transfer is an incident of service. 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. The scope of judicial review in the matters of transfer of a Government servant is very limited. Unless the order of transfer is found to be in violation of any statutory rule or is found to be an outcome of mala fide exercise of power, no interference is called for. Even if a transfer order is passed in violation of executive instructions or orders, the courts ordinarily should not interfere with the order. In matters of transfer the Courts do not sit as a court of appeal and they cannot substitute their own decisions for that of the competent authorities. It is apposite to take note of the law laid down by the Apex Court on this issue.
13. In Shilpi Bose v. State of Bihar, 1991 Supp (2) SCC 659, the Apex Court in paragraph 4 of the said report held as under:-
"In our opinion, the Courts should not interfere with a transfer Order which are made in public interest and for administrative reasons unless the transfer Orders are made in violation of any mandatory statutory Rule or on the ground of malafide."
14. In Union of India v. S.L. Abbas, (1993) 4 SCC 357, the Apex Court in paragraph 7 of the said report reiterated that:-
"Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated of by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it."
15. In N.K. Singh v. Union of India, (1994) 6 SCC 98, the Apex Court held that in matter of transfer, the scope of judicial review was limited. In paragraph 6 of the said report it was held as under:-
"....... the scope of judicial review in matters of transfer of a government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of malafides and violation of any specific provision ......."
16. In State of UP v. Gobardhan Lal, (2004) 11 SCC 402, the Apex Court held that the administrative guidelines/transfer policy do not confer upon the Government employee a legally enforceable right. In paragraphs 7 and 8 of the said report the Apex Court observed as under:-
"....... This Court has often 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 fides or is made in violation of any statutory provision."
"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 requirements 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 ......."
17. In State of Haryana v. Kashmir Singh, (2010) 13 SCC 306, the Apex Court while dealing with the case of transfer of a policemen, in paragraphs 12 and 14 of the said report observed as under:-
"....... we are of the opinion that transfer and postings of policemen must be left in the discretion of the concerned State authorities which are in the best position to assess the necessities of the administrative requirements of the situation."
"In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen......."
18. In the case at hand, neither there is violation of any statutory rule nor has any mala fide been alleged. The order whereby the petitioner has been directed to return back to PAC has been passed by the competent authority and in the exigency of service. It is not in dispute that the petitioner is not covered by the Government Order dated 30.10.2015.
19. There is no cogent reason to interfere with the impugned orders.
20. The writ petition is devoid of merit and is accordingly dismissed.
Order Date:- 7.3.2018 Pradeep-Deepak/-