Civil Misc. Writ Petition No. 2289 of 2011. Case: Pankaj Kumar and Ors. Vs State of U.P.. High Court of Allahabad (India)
| Case Number | Civil Misc. Writ Petition No. 2289 of 2011 |
| Judges | Ritu Raj Awasthi, J. |
| Issue | Police Act, 1861 - Section 2; Uttar Pradesh (Civil Police) Constables and Head Constables Service Rules, 2008 - Rule 26; Uttar Pradesh (Civil Police) Constables and Head Constables Service Regulations - Regulation 520; Constitution of India - Articles 162, 309 |
| Citation | 2011 (5) ADJ 574, 2011 (6) AWC 6196 All, 2011 (129) FLR 875, 2011 ILR (1) All 446 |
| Judgement Date | April 26, 2011 |
| Court | High Court of Allahabad (India) |
Judgment:
Ritu Raj Awasthi, J.
1. Notice on behalf of the opposite parties has been accepted by the learned Chief Standing Counsel.
2. Heard learned Counsel for the Petitioners as well as Sri Badrul Hasan, learned Standing Counsel.
3. This writ petition has been filed challenging the transfer order dated 17.4.2011 including the decision/order/approval of the Regional Police Establishment Board dated 13.4.2011 by which the Petitioners No. 1 to 5 have been transferred from Lucknow to Raebareli and the Petitioner No. 6 has been transferred from Lucknow to Lakhimpur Khiri, on the ground that they are posted in the adjoining district to the home district which is not permissible as per the Government Order dated 11.7.1986. Challenge has also been made to the Government Order dated 11.7.1986.
4. Learned Counsel for the Petitioners submits that after coming into force the U.P. (Civil Police) Constables and Head Constables Service Rules 2008 (hereinafter referred to as 'Rules 2008') notified by the notification dated 2.12.2008, the Government Order dated 11.7.1986 has been superseded. Moreover, in view of Rule 26 of the Rules 2008, the matters not specifically covered by these rules shall be governed by the rules, regulations and the Orders applicable generally to Government servants serving in connection with affairs of the State.
5. Contention is that Rule 2008 does not prohibit the posting of police personnel in the home district or the adjoining district to the home district and, therefore, there cannot be any embargo on the posting of the police personnel in the home district or districts adjoining to the home districts.
Learned Counsel for the Petitioners further submits that, in fact, Regulation 520 of the Police Regulation provides that the transfers which result in officers being stationed far from their homes should be avoided as much as possible, meaning thereby that the police personnel shall be posted near to the home districts.
6. Since Regulation 520 of the Police Regulations provided that transfers which result in officers being stationed far from their homes as far as possible should be avoided, therefore, the Government Order dated 11.7.1986 which is contrary to the Police Regulations is wrong and cannot be allowed to deal with the transfers of the police personnel.
7. Moreover, the opposite parties on the one hand vide circular dated 21.3.2011 has exempted all those police personnel posted in the V.I.P. duties from the general transfers and on the other hand have made large scale transfers on the basis of the Government Order dated 11.7.1986 which amounts to discrimination.
8. It is further contended by learned Counsel for the Petitioners that the Full Bench of this Court in the case of Vinod Kumar and Anr. v. State of U.P and Ors. 2010 (7) ADJ 315 (FB): 2010 (4) ESC 2427 (FB), while considering the constitution of the Police Establishment Board vide notification dated 12.3.2008 has observed that Rule 26 of Rules 2008, makes applicable the rules pertaining to the Government servants i.e. the persons appointed to public services and posts in connection with the affairs of the State and as Regulation 520 deals with the transfers of police personnel, who are also a part of the public services of the State, therefore, insofar as the police personnel are concerned, the regulation pertaining to the transfers would continue to apply to them. In this regard he has relied on para 20 of the judgment in the case of Vinod Kumar (Supra).
20. In our opinion, therefore, considering the fact that the Rule 26 of the Rules, 2008 makes applicable the rules pertaining to the Government servants, i.e. persons appointed to public services and posts in connection with the affairs of the State, and as Regulation 520 deals with the transfers of the police personnel, who are also a part of the public services of the State, therefore, insofar as the police are concerned, the Regulation pertaining to transfer would continue to apply to them. Therefore, though one of the Boards constituted is not strictly in terms of the directions issued by the Supreme Court in Prakash Singh (Supra), nonetheless considering the exercise that has to be done and the provisions for transfer, as contained in the Police Regulations, there has been sufficient compliance.
9. Further contention of learned Counsel for the Petitioners is that the constitution of the Regional Police Establishment Board is not as per the directions issued by the Apex Court in the case of Prakash Singh v. Union of India (2006) 8 SCC 1. The Full Bench in the case of Vinod Kumar (Supra) has only upheld the validity of constitution of four Police Establishment Boards by notification dated 12.3.2008, as such the impugned order passed on the basis of approval of the Regional Police Establishment Board are wrong and not sustainable in the eyes of law.
10. Learned Counsel for the Petitioners also submitted that...
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