Jagannath Prasad Gaur and Others vs State of U.P. and Others

Shishir Kumar, J.—Heard Sri Vijay Gautam and Sri V.K. Singh, learned Counsel for the petitioners and Sri S.G. Hasnain, Additional Advocate General, assisted by Sri B.N. Mishra as well as Sri Ravi Ranjan, Standing Counsel, for the respondents.

The present writ petition has been filed for a writ of certiorari quashing the order impugned dated 26.04.2010, passed by respondent No. 5, by which petitioners have been transferred from Gorakhpur, Kushi Nagar and other districts. A further prayer has been made regarding quashing the Government Order dated 19.02.2010 as well as Clause-5 of the transfer policy dated 21.04.2010. Learned Counsel for the petitioners submit that order of transfer has been passed in an arbitrary manner without adhering the policies made from time to time that too without application of mind by a common order transferring various police personnel from one place to another. Petitioners further submit that respondents'' case is that petitioners are being transferred in view of Government Order dated 11.07.1986. To this effect, petitioners submit that Government Order dated 11.07.1986 has been amended from time to time on 20.09.1987 and again it was modified on 25.03.1995. From 1995 till 2009 various orders of transfer were being passed on the basis of modified Government Order dated 25.03.1995, though in the year 2009, a dispute was raised that the Government Order dated 25.03.1995 has not been issued by the competent authority and, therefore, that cannot be taken into consideration. Further, it has been directed to make inquiry according to that. Further submission has been made that the Government Order dated 19.02.2010, a copy of which has been annexed to the writ petition, is discriminatory in view of the fact that it discriminates the employees of the Police Department stating therein that the police personnel who are under the security of VIPs like Ministers and other persons, policy of transfer will not be applicable to them and they cannot be transferred in view of the government policy either of 1986 or subsequent policies issued by the Government.

Further submissions has been made that a dispute was raised regarding the arbitrariness of the State regarding transfer of police personnel and the matter was raised before the apex court and ultimately in the case of Prakash Singh and Ors. v. Union of India and Ors. reported in (2006) SCC 1 the apex court has framed various guidelines and only to check the illegality, arbitrariness and discrimination has decided the issue on 22nd September 2006 directing the State Government to constitute a Board, namely, Police Establishment Board, which will be the authority to decide all the transfers, posting, promotions and other service related matters of Officers of and below the rank of Deputy Superintendent of Police. The relevant direction of the apex court is being quoted below:

(5) There shall be a Police Establishment Board in each State which shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy Superintendent of Police. The Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with the decision of the Board in exceptional cases only after recording its reasons for doing so. The Board shall also be authorized to make appropriate recommendations to the State Government regarding the postings and transfers of officers of and above the rank of Superintendent of Police, and the Government is expected to give due weight to these recommendations and shall normally accept it. It shall also function as a forum of appeal for disposing of representation from officers of the rank of Superintendent of Police and above regarding their promotions / transfers / disciplinary proceedings of their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State.

Taking support of the aforesaid judgment, petitioners submit that though the Board has been constituted, but the Board is not an authority, which only sign the proposal sent by the State Government, without application of mind. The apex court''s intention was that the Board individually consider the claim of the police personnel and after considering the claim will pass an order of transfer and posting and the State Government can interfere with the decision of the Board in exceptional cases only after recording its reason for doing so, meaning thereby the Board has to consider the cause and then the State Government will take a decision on the basis of recommendation done by the Board. But, in the present case a list of police personnel were sent, making a proposal to transfer them to various places and only counter sign has been made by the Board. The order of transfer is passed without application of mind. According to the policy, the police personnel, who are going to retire within a span of two years or three years, may not be transferred. Further, there is procedure for transfer of disabled persons who have become disabled during the course of employment, but from the perusal of the order impugned it does not appear that any satisfaction to this effect has been done by the respondent Board while passing the order of transfer, therefore, it can easily be said that action of the Board as well as the State Government is arbitrary and in total contravention of the judgment of apex court. Further submission has been made that in such circumstances, this Court in Writ Petition No. 51528 of 2009 Rishi Pal Singh v. State of U.P. and Ors. has considered the cause and after considering the cause has referred the issue to be decided by the Larger Bench.

On the other hand, learned Additional Advocate General has submitted that order of transfer of various persons have been passed only on the basis of apex court judgment. Further, the Government Order of 1995, as submitted by the petitioners, is not in existence and the order of transfer are being passed considering the Government Order of 1986 and D.O. letter issued by the Office of Director General dated 27.05.2009, which states that normally the police personnel should not be posted near their home town in view of the transparency of the functioning of the police personnel. Further, submission has been made that there is no challenge in the writ petition regarding the fact that what is the difficulty and problems to the police personnel individually while passing an order of transfer by the Board. The apex court judgment clearly states that any order of transfer of the police personnel has to be approved by the Board. The Board has been constituted and the order of transfer impugned in the present writ petition has been approved, therefore, no relief can be granted to the petitioners. Transfer being an exigency of service, nobody can challenge before this Court that he cannot be transferred from one place to another or he is entitled to remain at a particular place because unless and until it is proved from the record or it is under challenge that action of the State authority is arbitrary, discriminatory and mala fide or the order impugned or action taken is by an authority who is not competent to take such action. It is not the case of the petitioners that order has been passed by an authority that is not competent. The petitioners have challenged jointly the order of transfer. No individual cause regarding the grievance has been assailed in the writ petition. Only on the basis that Board after application of mind has passed an order or approved the order of transfer of 300 or 400 persons of a particular district, it cannot be said or held that it is an action which is arbitrary in nature. Further submission has been made that another Hon''ble Judge while considering the cause has not granted any interim order, therefore, the petitioners are also not entitled to get an interim order.

Further submission has been made that in view of Government Order dated 28.10.2009, it is made clear that the Government Order of 11.07.1986 is still in operation and the orders of transfer are being passed only on that basis. The contention of the petitioners is not correct to this effect that Government Order dated 11.07.1986 has been superseded by the Government Order dated 25.03.1995. In the said Government Order it is clearly mentioned that as regards the validity and genuineness of the Government Order dated 25.03.1995, no doubt an investigation to that effect is being made, therefore, there cannot be any two presumptions regarding effectiveness of the Government Order dated 11.07.1986. Further, various other arguments have been raised by the parties, but at this stage, in my opinion, it will not be very appropriate to discuss all the points which can only be argued subsequently.

After considering the submissions made on behalf of the parties, there is no dispute to this effect that transfer is an exigency of service and it is one of the conditions mentioned in the service rules that a government servant is liable for transfer on the wishes of the employer. No employee of the State Government can claim as a matter of right that he cannot be transferred or he can only be posted at a particular places or he has a right to remain at a particular place for a considerable period of time. It is also not in dispute that the Government Order issued from time to time by the State Government regarding fixing of the criteria of transfer is a government policy and cannot be said to have statutory force, which has been held by the apex court in various judgments, but as regards the transfer, posting and other action taken against the police personnel, matter in issue was raised before the apex court and the apex court considered the issue in view of the fact that various actions which were being taken by the police authorities were appeared in the eyes of the Court as arbitrary, therefore, in such circumstances, the apex court has directed to constitute an Establishment Board consisting of five officers who will consider the cause of transfer of police personnel. The purpose of constitution of the Board was that the action taken should not be arbitrary, discriminatory and violative to principle of natural justice, therefore, in case Board applies its mind and passes an order, in my opinion, there cannot be any interference in the matter of transfer, but as the apex court has clearly laid down the criteria of the constitution of Board, considering various government orders, which has been issued from time to time, therefore, in my opinion, there should be a subjective satisfaction while passing the order. If it has been done in a mechanical manner, then it can clearly be held that the action of the Board or State is arbitrary in nature and as soon as the Court comes to the conclusion that action appears to be arbitrary then in that case in spite of the fact that it is a case of transfer the Court cannot shut its eyes to interfere.

From the perusal of the order of transfer in the present writ petition as well as in various other writ petitions filed it is clear that about 300 or 400 police personnel have been transferred in one stroke only on the ground that they are posted near their hometown, though they are working from 1995, 1997, 1998 and 2000 on that particular place. Respondents clearly come with a case before this Court that Government Order of 1986 is still in operation and the orders are being passed only following the Government Order dated 11.07.1986. In these circumstances, whether it can be believed that employer who has selected the persons are not aware regarding their hometown and after a lapse of 12 or 13 years only on the basis that they are posted near their hometown, they are being transferred. This clearly goes to show the non-application of mind while passing the order of transfer. Further, various cases have come up before this Court in which the police personnel are going to be retired either after two months or four months or within a span of one year, but while passing the general order of transfer of 300 or 400 persons, Board has put a seal regarding their transfers which clearly goes to show that without looking into the cases individually the mass transfer order is being passed without application of mind. The intention of the apex court was that Establishment Board shall be a departmental body comprising the Director General of Police and four other senior officers of the Department. The State Government may interfere with the decision of the Board in exceptional cases only after recording its reasons for doing so, meaning thereby the Board is the first authority to judge or take a decision regarding transfer of the police personnel and subsequently the State Government will come into picture, but in the present case it appears that a list was prepared by the State and it was sent to the Board only to put a seal for transferring various persons.

In such circumstances, as there is no subjective satisfaction by the Board in view of the directions issued by the apex court as well as the Board has to take the decision first, therefore, in my opinion, in spite of the fact that this is a case of transfer of the government employee this Court can interfere, if the action of the State appears to be arbitrary and without application of mind.

In view of aforesaid facts, in my opinion, the petitioners are entitled for interim relief. Till the next date of listing, the order of transfer against the petitioners shall remain stayed.

In such circumstances, as the controversy is such which has to be adjudicated upon exchange of the counter and rejoinder affidavits, therefore, in my opinion, it will be appropriate that an opportunity be given to the parties to exchange the affidavits for the purposes of adjudication of the matter on merits. The respondents are granted two weeks'' time to file a counter affidavit. Petitioners will have two weeks, thereafter, to file a rejoinder affidavit.

List after expiry of aforesaid period.