Bachcha Paswan vs State of U.P. and others

V.K. Shukla, J.—Petitioner has approached this Court questioning the validity of the order dated 30.10.2006 passed by the Inspector General of Police (Establishment), U.P., Lucknow, respondent No. 3 transferring the petitioner in public interest from Mau to Economic Offences Wing Establishment and subsequent relieving order dated 6.11.2006 issued by Superintendent of Police, Mau.

Brief background of the case as mentioned in the writ petition is that petitioner was appointed as SubInspector in the year 198081 and in the year 199697 petitioner was promoted on the post of Inspector. Petitioner has contended that immediately after his promotion he was posted at U.P. Vigilance Establishment, Lucknow on 2.7.1997. Petitioner has contended that after five years of service he was posted in District Force and was posted as Inspector in District Jaunpur, Zone Varanasi from 2.7.2002. Petitioner has contended that he was transferred from District Jaunpur to District Mau on 24.8.2003 and on 26.8.2006 he was posted as Station House Officer, Kotwali, District Mau. Petitioner has contended that thereafter he was transferred to Police Station Ghosi and again he was transferred from Police Station Ghosi to Police Station Kotwali, Mau on 7.7.2005. Petitioner has contended that riot broke out in the morning of 14.10.2005 and petitioner was placed under suspension on 15.10.2005 for not taking effective steps in riot effected area. Thereafter his suspension order has been revoked 27.12.2005 and petitioner was posted as Public Relation Officer to Superintendent of Police, Mau and thereafter on 18.4.2006 petitioner was posted as Station House Officer, Police Station Ghosi, District Mau. Petitioner has contended that in the matter of suspension dated 15.10.2005 inquiry is going on. Petitioner has given reference of notification of State Election Commission dated 25.9.2006. It has further been contended that pressure was being exerted on him by Samajwadi candidate to take action against B.J.P. candidate and as petitioner did not oblige as such petitioner has been sought to be transferred. Petitioner has contended that this transfer order is wholly unjustifiable and special allowance as payable to him has been curtailed. It has also been contended that power of transfer has been used on extraneous consideration. At this juncture present writ petition has been filed.

Sri B.N. Singh, learned Counsel for the petitioner contended with vehemence that in the present case power of transfer has been misused with impunity as Regulation 524 has been breached and this being a case of loss of emoluments which falls in the category of punishment same ought to have been preceded with enquiry and further said transfer order is in violation of policy which covers the field of posting in New District Force, Cadre post as such transfer of the petitioner is clearly unsustainable and liable to be quashed.

Learned Standing Counsel on the other hand contended mat in public interest transfer order has been made and here power of transfer has not at all been exercised as measure of punishment as such no interference is warranted by this Court.

After respective arguments have been advanced, the first issue raised that under para 524 of the U.P. Police Regulation, Officerincharges is entitled ordinarily to be retained for two years as such petitioner should not have been transferred, as has been done in the present case and as such said Regulation has been breached is being looked into.

In order to appreciate respective arguments relevant Regulations as compiled under U.P. Police Regulation are being looked into Chapter1, Regulation1 deals with Director GeneralcumInspector General of Police, Regulation 1A deals with Additional Inspector General of Police and Regulation 520 to 525 of the Regulations deals with transfer. Relevant provisions in this regard are being quoted below :

"CHAPTER 1 SUPERIOR OFFICERS

Inspector GeneralcumDirector General. The InspectorGeneral 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 nongazetted staff being delegated to Deputy InspectorGeneral, 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.D. ''s regarding the creation of the posts of Inspector General of Police are given at the end of this Regulation.

1A. Additional InspectorGeneral of Police. The Additional InspectorsGeneral of Police will be the In charge and supervising officer of the region under them and will give appropriate guidance to the Deputy InspectorsGeneral of Police, of their region. Their duty/powers in relation to the employees/officers of their region on will be as under :

(i) To transfer NonGazetted Officers of the region under them. The interregion 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 InspectorsGeneral 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 InspectorsGeneral of Police till now.

(iv) To make available their opinion, concerning the work of the Gazetted Officer of their region the InspectorGeneral of Police for anual entries. The Deputy InspectorGeneral 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 InspectorGeneral of Police.

Deputy InspectorGeneral. Certain Deputy InspectorGeneral are in charge 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 InspectorGeneral grave defects or questions of principle with which he himself has not the power to deal.

The Deputy InspectorGeneral 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 cooperation between districts. For this purpose he must keep up registers of (1) dacoity (2) murder (3) robbery (4) poisoning, and (5) miscellaneous cases in InspectorGeneral''s form 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 InspectorGeneral special reports of crime in exceptional case. Superintendents may rep rot direct to the InspectorGeneral as well as to the Deputy InspectorGeneral 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 InspectorGeneral will be the channel through which the Inspector General will receive information. On receipt of "district annual administration reports" the Deputy InspectorGeneral 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 InspectorsGeneral 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 52(X 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 InspectorGeneral of Police of the range may transfer Inspectors, SubInspectors, Head Constable and Constable within his range provided that the postings and transfers of Inspectors and Reserve SubInspectors in hill stations will be decided by the Deputy InspectorGeneral 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 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. SubInspector 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 SubInspectors, Head Constables and Constables should not exceed five years.

Regulation 521. The InspectorGeneral 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 InspectorGeneral. Traveling allowance will not be payable on the occasion of such transfers.

Regulation 523. On receipt of an order of transfer of 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 of 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. In 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 officersincharge 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 Commissionerincharge of the Division, his functions under this subparagraph will be exercised by the Additional District Magistrate (Executive).

Officersincharge 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, except 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 viceversa. 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 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 the Provinces to the Uttar Pradesh Police requires the sanction of the Inspector General."

A bare perusal of Regulation1 of Chapter 1 would go to show that InspectorGeneral is the Head of the Police Department and the Adviser of the Governor in Council on all questions of police administration. Said InspectorGeneral 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 nongazetted staff being delegated to Deputy InspectorGeneral, 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.

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 GeneralcumInspectorGeneral of Police and such InspectorGeneral, 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 InspectorGeneral of Police. Till the time Additional InspectorGeneral of Police was not designated as InspectorGeneral of Police in term of Regulation 1A Additional Inspector 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 Inspector General of Police of their region. The Additional Inspector General of Police was empowered to transfer NonGazetted Officers of the region under him but as far as interregion transfer was concerned same was to 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 GeneralcumInspector General of Police, entire State of U.P. is one general police district and the 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 19.8.1987, 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.

Regulation 520 empowers the Inspector General to transfer Police Officers not above the rank of Inspector throughout the province. The Inspector General of Police of the range is entitled to transfer Inspectors, SubInspectors, 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 State Government. Regulations 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 Officersincharge of Police Station shall ordinarily be retained in their charges for at least two years. Regulation 525 deals with transfer of Constable inter se Armed Police, Civil Poke, Mounted Police and to other branch. In all other cases not covered, sanction of Inspector General has been provided for.

Here transfer of petitioner is not within the District rather branch of petitioner has been changed. From Civil Police, petitioner has been transferred to Economic Offences Wing of the U.P. Police Force. Regulation 524 holds the field when transfer and posting is to be made within the District and here branch has been changed. Regulation 520 specifically empowers Inspector General of Police to transfer police officers not above the rank of Inspector throughout the province. Here order of transfer has been passed by Inspector General of Police (Establishment) who has full authority to transfer Inspectors, within the province. Apart from this for change of branch sanctioned from Inspector General is required and here the order of transfer has been passed by Inspector General of Police (Establishment), consequently transfer is in consonance with Regulation. Regulation 520 and Regulation 524 has not at all been breached and same is not at all attracted in the fact and circumstances of the present case.

Apart from this in the present case as Inspector General of Police (Establishment), U.P., Lucknow is the Competent Authority and as elections were going on due permission has been taken from the State Election Commission thereafter transfer order has been passed. Thus, the authority who has passed the transfer order has the authority to exercise power of transfer and the State Election Commission also concurred with the same in this background order of transfer passed by the Inspector General of Police (Establishment) cannot be termed to be exercised in arbitrary exercise of power.

It has been emphatically contended that on account of transfer special emolument of petitioner which was available to him as Station House Officer has been reduced and same amounts to punishment and without making any inquiry same could not have been done as such impugned order of transfer is punitive in nature. The case of the petitioner clearly falls within the exception which has been provided for in para 3 of the judgment of Hon''ble Apex Court in the case of State of U.P. and others v. Jagdev Singh, 1984 (Supp.) SCC 413, wherein Hon''ble Apex Court was conscious of this fact mat every transfer of police officer from one police station to another will not amount to loss of emoluments. Relevant extract of the said judgment is being quoted below :

"(3) We must make it clear that any and every transfer of a police officer from one police station to another will not amount to punishment, even if it involves the loss of a special emolument. If a police officer is transferred from one charge to another in the ordinary course of administrative exigencies, the provisions of Section 7 of the Police Act will not be attracted because a transfer simpliciter is not punishment. It is only when the transfer is made by way of punishment, as in the instant case, that Section 7 would come into play."

Here in the present case, petitioner holds transferable post and has been transferred. There is nothing to suggest that it is punishment. This is a plain and simple case of transfer. In the facts of case quoted above provisions of Section 7 (d) of Police Act, 1861 was found attracted for the simple reason, that finding of negligence was recorded against the incumbent and misconduct entry was made in the character roll. Here no negligence has been found on the part of the petitioner, no misconduct entry has been recorded, and petitioner has been simply transferred, provisions of Section 7 of Police Act, 1861 is not at all attracted in the facts and circumstances of the present case.

Much reliance has been placed on the judgment of this Court in the case of Bishan Pal Malik and others v. State of U.P. and others, 2003 (1) ESC 540 (All), for the preposition that power of transfer has been used for irrelevant and extraneous purpose. Here in the present case facts are altogether different qua the case of Bishan Pal Malik case (supra), wherein alteration has taken place between Senior SubInspector of Police and Jeep Driver belonging to father of Chief Minister, then all SubInspectors belonging to Jat/Rajpoot Community were transferred to far away palces to different Districts, not for administrative exigencies but for flushing out Police personnel from particular caste. Such a situation is not at all existing in present case, rather this is isolated case of transfer and ingredients which were present in the said case are completely lacking and missing in the present case.

None of the incumbents qua whom allegations have been levelled in Paragraphs 18 and 19 have been impleaded as respondents so that they could have rebutted the averments which has been sought to be mentioned in the writ petition. Said judgment itself in paragraph8 has carved out exceptions to the rule by laying down that transfer is a part of service condition of an employee and same is not required to be interfered with lightly by a Court of Law in exercise of its discretionary jurisdiction unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer or that the authorities who issued the orders were not competent to pass the order. Said judgment will not at all come to rescue of the petitioner as such.

Stress has also been placed, that mala fides are there in invoking and exercising the power of transfer. Here mala fides are being sought to be alleged, but same is falling short of substantiation, as except for bald statement of fact mentioned in paragraphs 18 and 19, nothing has been brought on record to substantiate it. Hon''ble Apex Court in the case of State of U.P. v. Gobardhan Lal, 2004 (101) FLR 586 (SC), has made following observation to caution the Courts while examining the plea of mala fides "even allegation of mala fide when made 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 of surmises".

Here plea of mala fide is not inspiring any confidence whatsoever, and same is based on mere ipse dixit, and there is no material to substantiate the same, as such plea of mala fide fails.

It has also been contended that petitioner has completed 53 years of age and has served for five years in NonDistrict Force Cadre post, then he cannot be again sent back from District Force to NonDistrict Force, and this action of respondents is clearly in violation of the policy which has been formulated. Before this Court the policy which has been referred to has not at all been produced, and only mention has been made that there is policy. In the absence of said policy not being produced, no reliance can be placed on the averments mentioned therein.

At this juncture the view point of Hon''ble Apex Court qua transfer matter when breach of policy is alleged and scope of interference in transfer matter is being looked into.

Hon''ble Apex Court qua transfer in the case of Mrs. Shilpi Base and others v. State of Bihar and others, 1995 (71) FLR 1011 (SC), has been 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 daytoday 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."

In the case of State of U.P. v. Gobardhan Lal, 2004 (101) FLR 586 (SC), Hon''ble Apex Court has held as under :

"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 mala fide 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 of transfer cannot lightly be interfered with as a matter of course or routine for any of every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies 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 mala fide or is made in violation of any statutory provisions."

Hon''ble Apex Court in case of Union of India and others v. Janardhan Debanath and another, 2004 (4) SCC 245, has taken the view that transfer order should not be interfered unless same is in violation of statutory provisions or order passed is mala fide. Relevant extract is being quoted below:

"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 Corpn. Ltd. v. Shri Bhagwan, (2001) 8 SCC 574."

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, 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 be 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."

Here in the present case as incumbents against whom allegations have been levelled have not at all been impleaded in individual capacity and plea of mala fide has not been substantiated and the authority who has passed the order of transfer is the Competent Authority to pass the order of transfer and as petitioner holds transferable post and has been transferred on administrative exigency after taking due permission from the State Election Commission then breach of policy if any is of no consequence.

Consequently, writ petition lacks substance and is dismissed.