Rizwan Ali vs State of U.P. and Others

Devi Prasad Singh, J.—By the impugned order, the petitioner who is a police constable, has been transferred from district Jyotiba Phule Nagar to Sonbhadra.

Sri Amit Bose, learned Counsel for the petitioner submits that the impugned order of transfer has not been passed by the Police Establishment Board constituted in pursuance of the order passed by the Hon''ble Supreme Court in the case in Prakash Singh and Others Vs. Union of India (UOI) and Ors, The submission is that the order should have been passed by the Board itself.

On the other hand, learned Standing Counsel submits that the impugned order of transfer has been passed with due approval of the Board.

The action of the State Government has been distinguished by the petitioner''s Counsel with the submission that the Hon''ble Supreme Court had directed that the transfer orders shall be passed by the Police Establishment Board itself meaning thereby, the Board should apply mind with regard to transfer of incumbent from one place to other. In the present case, the Board has merely granted approval and originally, the order of transfer was passed by the Deputy Inspector General of Police. Learned Counsel for the petitioner has invited attention towards para 31 (5) of the judgment of Hon''ble Supreme Court in the case of Prakash Singh (supra). For convenience, relevant portion of the said judgment is reproduced as under:

Police Establishment Board:

(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 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 posting 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 representations from officers of the rank of Superintendent of Police and above regarding their promotion/ transfer/ disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State.

A plain reading of the aforesaid provision indicates that their lordships at Hon''ble Supreme Court, have provided that the Board in each State shall decide all transfers, postings, promotions and other service related matters of officers of and below the rank of the Deputy Superintendent of Police. There is lot of difference between action taken by the decision making body and to place decision already taken before the said body for approval. The letter and spirit of Hon''ble Supreme Court''s judgment is that the decision should be taken by the Board itself. Meaning thereby, in case the Government wants to transfer a police officer, then it should refer the matter to the Board and the Board has to apply its mind for transfer of the police officer from one place to other keeping in view the fact and circumstances of a particular case. In view of the above, the impugned order seems to be violative of the judgment in the case of Prakash Singh''s case (supra). The writ petition deserves to be allowed.

The writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 19.3.2008 contained in Annexure No. 16 to the writ petition and the order dated 25.11.2008 contained in Annexure No. 1 to the writ petition with consequential benefits. In case respondents want to transfer the petitioner, liberty is given to them to refer the present controversy to the Board to take independent decision without being influenced by the recommendations of the State Government.

No orders as to costs.