Allahabad High Court
Dheeraj Kumar Yadav (Dheeraj Singh) vs State Of U.P. And 4 Others on 13 August, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - A No. - 12134 of 2019 Petitioner :- Dheeraj Kumar Yadav (Dheeraj Singh) Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Shivendu Ojha,Radha Kant Ojha (Senior Adv) Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order of transfer dated 24.07.2019, whereby petitioner has been shifted from the Special Branch Fatehpur to Civil Police at Raebareilly.
Learned Senior Counsel for the petitioner states that the petitioner is working in the Intelligence Wing and therefore, in view of the policy formulated by the respondents in the Government Order dated 19th June, 2019, petitioner ought not to have been transferred before expiry of ten years. It is also stated that petitioner had a right to be considered for extension of his term in the Intelligence Wing.
Petition is opposed by Sri S.K. Dubey, learned Additional Chief Standing Counsel. Learned counsel for the respondents submits that the petitioner holds a transferable post and transfer is an incident of service. It is stated that the order of the transfer neither violates any law nor is otherwise challenged on the ground of any malafide and therefore, the order of the transfer suffers from no infirmity.
At this juncture, it would be appropriate to rely on a full Bench judgment of this Court in Om Prakash Singh Vs. State of U.P. and others reported in 2014 7 ADJ 628. The matter was referred to full Bench on a reference made by Division Bench on 2nd November, 2011 and the following two questions were referred:
(1) Whether a police constable working in the civil police who has rendered service for more than ten years cannot be transferred to another branch in view of the provisions of Regulation 525 of the Uttar Pradesh Police Regulations in view of the decision of the Supreme Court in Jasveer Singh Vs. State of U.P. and Ors.
(2) Whether the government railway police and civil police constitute one cadre or different service cadres .
After examining the statutory scheme the reference has been answered by the Full Bench in para 20, which is extracted herein below:
(i) A police constable working in the civil police who has rendered service for more than ten years can be transferred to another branch, as explained above, in view of the provisions of Regulation 525 of the Uttar Pradesh Police Regulations.
(ii) The government railway police is a branch of the police force and hence the transfer of a civil police constable who has put in more than ten years' service to the government railway police would not be prohibited, subject to compliance with the norms stipulated in Regulation 525 of the U.P. Police Regulations."
A Division Bench thereafter in Shiva Kant Dubey Vs. State of U.P. and others in Special Appeal Defective No. 312 of 2015 has referred to the full Bench judgment to hold that entire police establishment under the State Government is deemed to be one police force and that police officers working in different branches of police force can be transferred from one branch to another. Paragraphs 5 and 6 of the Division Bench judgmnet reads as under:
"5. The appellant is a member of a disciplined force and in order to ensure compliance of the transfer order dated 6 June 2014 he had joined Sitapur on 18 August 2014. The record reveals that thereafter he made an application on 3 September 2014 before the Superintendent of Police Sitapur for being granted permission to appear before the Inspector General of Police (Establishment) to represent against his transfer. However, in the writ petition, it is asserted that the Superintendent of Police had not paid any heed to the said application and therefore, the appellant was compelled to approach this Court in the writ proceedings. The writ petition was filed in late January 2015, almost six months after passing of the transfer order. The learned Single Judge, regard being had to the decision of the Apex Court in the case of Union of India vs. S.L. Abbas (supra) permitted the appellant to make a representation before the competent authority against his transfer. In paragraph 20 of the affidavit filed in the instant appeal, it is admitted that in pursuance of the liberty so granted, the appellant had moved a representation before the competent authority on 12 February 2015, which according to the appellant has not been disposed of so far. In the representation, the grievance made is two fold (i) the appellant whose initial appointment was as a constable in P.A.C. and later on as a constable driver in the year 2006, could not have been transferred to Civil Police at Sitapur as it amounts to change of his cadre and (ii) there are other constable drivers senior to him, who had not been transferred. Admittedly, the representation filed by the petitioner is still pending and has not been disposed of so far. From the submissions made on behalf of the State-respondents, it is evident that the cadre of constable driver comprises of incumbents coming from the different branches of the police force including P.A.C. It is also clear that irrespective of the source from which an incumbent is drawn, his first posting has to be in P.A.C. and later on he could be transferred to other districts/units. Under section 5 of the Act, a member of the P.A.C. is deemed to be a police officer and is subject to all the powers, privileges and liabilities of a police officer enrolled or subject to the provisions of the Police Act, 1861 or any other law for the time being in force. A Full Bench of this Court in the case of Om Prakash Singh and others vs. State of U.P. and others4 has held that the entire police establishment under the State Government is deemed to one police force and police officers working in different branches of the police force, can be transferred from one branch to another.
6. In view of these provisions, the question whether the appellant could be transferred to the civil police or not is an issue which, in our opinion, should in the first instance be considered by the competent authority, to whom the petitioner had already made a representation, in pursuance of the liberty granted to him by the learned Single Judge. We do not find any ground to interfere with the order of the learned Single Judge at this stage, lest it may prejudice the case of the appellant in the representation pending before the competent authority. We therefore, are of the opinion that interest of justice would be met in disposing of the appeal with the clarification that the representation which is pending before the competent authority shall, if not already decided, be decided expeditiously and no later than within a period of 3 weeks from the date of production of a certified copy of this order. It is clarified that this Court has not entered into the merits of the submissions made by either side and the competent authority shall decide the representation without being influenced by any observation made hereinabove."
So far as the Government Order relied upon by the learned Senior counsel for the petitioner dated 09th June, 2019 is concerned the same at best would be regulatory/ directory in nature and any violation thereof would not justify any interference in the matter of transfer. This would be so as Hon'ble Apex Court in Union of India Vs. S. L. Abbas reported in 1993 (4) SCC 357 has made clear that transfer is an incident of service and ordinarily no interference would be required therein.
In that view of the matter no interference with the order of transfer dated 24.07.2019 is called for and the writ petition fails. It is accordingly, dismissed.
So far as the petitioner's hardship and other grievance is concerned, it would be always open for the petitioner to represent in the matter before the authority concerned, who shall examine the same within a period of six weeks.
Order Date :- 13.8.2019 Abhishek Singh