# and other connected cases. Manish Kumar Dixit & Ors v. The State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 59
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-12-12
- **Case number:** Writ -A No. 34228 of 2014
- **Bench:** Manoj Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/and-other-connected-cases-manish-kumar-dixit-ors-v-the-state-of-u-p-ors-43227
- **Pages:** 18

## Headnote

Constitution of India, Art.-226-Service
law-transfer of non gazetted officers in
police force-on ground of mala fide
challenging validity of G.O. 07.06.2014 by
which earlier-G. O. 11.06.86 providing
posting just adjacent to their native place
withdrawn-under political revenge-facing
defeat in Lok Sabha election-held-G. O.
issued keeping in view of recommendation
of
D.G.P.-to
maintain
disciplineconsidering the fact most of police men
during night hours-instead of duty placeused to take sound sleep in their home-as
such decision of government can not be
arbitrary or devoid of reasons-no laxity in
maintenance of law and orderbe tolerated.
Held: Para-23
Indisputably, the Director General of Police
is the head of the police force in the State.
The recommendations contained in his
letter dated 28.5.2014 discloses valid
reasons for making suggestion to the State
Government to withdraw the relaxation
granted
by
Government
Order
dated
20.3.2012. The State Government, while
issuing the impugned Government Order
dated 7.6.2014, had rightly acted on the
recommendations made by the Director
General of Police. The action of the State
Government taken in this regard, cannot
be said to be illegal or arbitrary or devoid
of reasons. Rather, the Court is of the
opinion that the State Government was
fully
justified
in
acting
on
such
recommendations, as maintenance of law
and order should be its prime concern. No
laxity, in this regard, has to be given.
Consequently,
the
contention
of
the
petitioners that the impugned Government
Order has been issued for no justifiable
reason or that it is a result of illegal and
arbitrary exercise of power, cannot be
accepted.
(B)Police Act, 1861-Section-2-read with
Police
regulation-Regulation
525whether members of Armed police be
kept exempt from bar imposed by G.O. I
held-armed police being integral part of
police force to tackle special situation
during emergent situation-entire police
force deemed to be one and same police
force-can not claim exemption from barcontained in G.O.-petition dismissed.
Held: Para-33
Thus, Armed Police is integral part of the
police force and provides it with muscle
power to tackle special situation. The
members of the Armed Police, thus, have
to perform important role in case of
emergencies.
The
conclusions
which
impelled the Government to bring about
the impugned Government Order, as
discussed in previous paragraphs of this
judgment, applies with much greater
force to members of the Armed Police
Force
and
they
cannot
claim
any
immunity from the ban imposed thereby.
(C)Constitution of India, Art.-226-Transfer
policy-validity challenged by Inspectors and
S.I.-bar on posting adjacent district of
native place-about constable and Head
constables relaxed by G.O. 20.03.2012 but
s

## Text

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1 All]. Manish Kumar Dixit & Ors. Vs. The State of U.P. & Ors.
59
cogent reasons and, therefore, should not
be interfered with. He has, lastly,
submitted that in in any case the State
Government is not required to assign any
reason for issuing the notifications in
view of the law laid down by the Division
Bench in the case of the Industrial
Syndicate Ltd. (supra).
21. In rebuttal, learned counsel for the
petitioner has submitted that the petitioner is
aggrieved because he apprehends that the
proceedings that have attained finality during
the consolidation operations would also be
set at naught by the cancellation of the
consolidation operations by the notification
under Section 6(1) of the Act.
22.
It, therefore, emerges from the
submissions made that the petitioner is
aggrieved by the impugned notification only
because certain benefits, which have accrued to
him during the currency of the consolidation
operations and which are alleged to have
attained finality, will stand reversed. This
apprehension of the petitioner is entirely
misconceived because all disputes that have
attained finality prior to the cancellation of the
consolidation operations stand protected by
sub-section (2) of section 6. This writ petition
has, therefore, been filed on a misconception of
law and on mere apprehension. It, therefore,
deserves to be dismissed.
23. In so far as the Writ Petition No.
27137 of 2010 is concerned, a writ of
certiorari has been sought for quashing
the order dated 15.1.2010 passed by the
Consolidation Commissioner, as also for
quashing the consolidation proceedings.
24. A perusal of the order impugned in
this petition indicates that a representation
made by the petitioner has been rejected on
the ground that the petitioner is seeking
cancellation of the consolidation operations
which have been closed long back by
issuance of notification under section 52(1)
of the Act.
25. Learned counsel for the petitioner
has not been able to point out anything from
the record which would show that this
reasoning is in any way vitiated, or is
factually incorrect. This Court is, therefore,
constrained to hold that this writ petition is
entirely misconceived and merits dismissal.
26. Accordingly, and for the reasons
given above, as also the reasons given in
the judgement passed in Writ Petition
(Consolidation) No. 535 of 2013, decided
by me at Lucknow Bench, on 31.3.2014,
all the writ petition in this bunch are
dismissed.
27. Two writ petitions, namely, Writ -
B No. 15297 of 2014 and Writ-B No. 48014
of 2014, have wrongly been shown as
connected with this bunch of cases and,
therefore, they are being de-tagged from this
bunch. They will be decided along with the
bunch of cases to which they relate.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2014
BEFORE
THE HON'BLE MANOJ KUMAR GUPTA, J.
Writ -A No. 34228 of 2014
Alongwith W.P. No. 34310 of 2014, W.P.
No. 34325 of 2014, W.P. No. 34837 of 2014
and other connected cases.
Manish Kumar Dixit & Ors. ...PetitionerS
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri Vijay Gautam
60
 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.
Constitution of India, Art.-226-Service
law-transfer of non gazetted officers in
police force-on ground of mala fide
challenging validity of G.O. 07.06.2014 by
which earlier-G. O. 11.06.86 providing
posting just adjacent to their native place
withdrawn-under political revenge-facing
defeat in Lok Sabha election-held-G. O.
issued keeping in view of recommendation
of
D.G.P.-to
maintain
disciplineconsidering the fact most of police men
during night hours-instead of duty placeused to take sound sleep in their home-as
such decision of government can not be
arbitrary or devoid of reasons-no laxity in
maintenance of law and orderbe tolerated.
Held: Para-23
Indisputably, the Director General of Police
is the head of the police force in the State.
The recommendations contained in his
letter dated 28.5.2014 discloses valid
reasons for making suggestion to the State
Government to withdraw the relaxation
granted
by
Government
Order
dated
20.3.2012. The State Government, while
issuing the impugned Government Order
dated 7.6.2014, had rightly acted on the
recommendations made by the Director
General of Police. The action of the State
Government taken in this regard, cannot
be said to be illegal or arbitrary or devoid
of reasons. Rather, the Court is of the
opinion that the State Government was
fully
justified
in
acting
on
such
recommendations, as maintenance of law
and order should be its prime concern. No
laxity, in this regard, has to be given.
Consequently,
the
contention
of
the
petitioners that the impugned Government
Order has been issued for no justifiable
reason or that it is a result of illegal and
arbitrary exercise of power, cannot be
accepted.
(B)Police Act, 1861-Section-2-read with
Police
regulation-Regulation
525whether members of Armed police be
kept exempt from bar imposed by G.O. I
held-armed police being integral part of
police force to tackle special situation
during emergent situation-entire police
force deemed to be one and same police
force-can not claim exemption from barcontained in G.O.-petition dismissed.
Held: Para-33
Thus, Armed Police is integral part of the
police force and provides it with muscle
power to tackle special situation. The
members of the Armed Police, thus, have
to perform important role in case of
emergencies.
The
conclusions
which
impelled the Government to bring about
the impugned Government Order, as
discussed in previous paragraphs of this
judgment, applies with much greater
force to members of the Armed Police
Force
and
they
cannot
claim
any
immunity from the ban imposed thereby.
(C)Constitution of India, Art.-226-Transfer
policy-validity challenged by Inspectors and
S.I.-bar on posting adjacent district of
native place-about constable and Head
constables relaxed by G.O. 20.03.2012 but
so for inspectors and sub inspectors
concern-never given such relaxation hence
violation of Art. 14 of Constitution-held
misconceived-individual hardship-can not
be considered by Writ Court-but the Board
is competent to take appropriate decisionpetition dismissed.
Held: Para-42
So far as other non-gazetted officers of the
police force are concerned, i.e. Inspectors
and Sub Inspectors, similar restrictions on
their posting in bordering districts is in
place, vide paragraph 1 of the Government
Order
dated
11.7.1986.
In
case
of
constables and head constables, such
restriction was relaxed by Government
Order dated 20.3.2012, but it was never
relaxed in case of Inspectors and Sub
Inspectors. They were never permitted to
be posted in districts bordering their home
district. Thus, plea of discrimination and
violation of Article 14 is also not tenable.
Case Law discussed:
1 All]. Manish Kumar Dixit & Ors. Vs. The State of U.P. & Ors.
61
2006 (8) SCC 1; 2010(7) ADJ 315; 2011 (2)
ADJ 177; 2011; (2012) 6 SCC 502; (2008) 2
SCC 672; 2008 (2) ADJ 484; (2011) 5 SCC
435; (2001) 4 SCC 309; (1979) 2 SCC 150;
1991 Supp (2) SCC 659; (2005) 7 SCC 227;
(2010) 13 SCC 306; AIR 1968 SC 81; (2010) 7
SCC 643.
(Delivered by Hon'ble Manoj Kumar Gupta, J.)
1. The head constables and
constables are the lowest in the hierarchy
of non gazetted officers of the Police
Force. They play a vital role in
maintaining law and order, preventing and
detecting crime and in helping courts of
law punish the guilty. This bunch of
petitions is by such officers of the Police
Force, aggrieved by Government Order
dated 7.6.2014 imposing ban on their
posting in districts adjoining their home
district. The consequential transfer orders
are also under challenge. As common
questions of law and fact are involved in
these cases, same are being decided by
this common judgment.
2. Learned counsel appearing on
behalf of the petitioners contended that
the Government Order dated 7.6.2014 is
wholly illegal and arbitrary, inasmuch as
it does not contain any reason for
cancellation of the previous Government
Order
dated
20.3.2012,
whereby,
relaxation was granted in posting of
constables and head constables in districts
bordering
their
home
district,
by
amending
Government
Order
dated
11.6.1986. It was further contended that
the Government Order in question is a
result of political vendetta, as the
Government feels that its defeat in the
Lok Sabha election is on account of nonextension
of
co-operation
by
the
petitioners. In other words, the impugned
Government Order has been issued to
teach lesson to the petitioners. It was
further submitted that the transfer policy
is contained in the Police Regulations,
which has statutory force and the
Government Order in question being not
referable to any of the provisions
contained
under
Paragraph
520-526
thereof, is thus, contrary to the statutory
provisions. The impugned transfer orders
have not been issued on administrative
grounds or in exigencies of service, thus,
cannot be sustained in law. The personal
hardship of the petitioners has not been
considered. In various cases, transfer
orders have been passed in mid session,
entailing great hardship to the petitioners
and members of their family. It was
further urged that in any case, the
impugned Government Order can only be
applied prospectively and there is no
mandate for transferring the incumbents
posted in bordering districts forthwith. In
some of the writ petitions, particularly in
Writ Petition No.39723 of 2014, Sri B.C.
Rai Advocate, appearing on behalf of the
petitioners contended that the petitioners,
therein, are members of Armed Police,
who are not concerned with day-to-day
maintenance of law and order in the State.
Consequently, they cannot be brought
within the purview of the impugned
Government Order. It is further contended
that the Government Order in question is
not referable to Section 46 of the U.P.
Police Act, 1861, which confers power in
the State to make rules and thus, the
impugned Government Order is wholly
contrary to the provisions of Section 46.
The impugned transfers have been made
with the approval of the Regional Police
Establishment Boards, the constitution of
which is contrary to the directions
contained in the judgment of the Apex
Court in the case of Prakash Singh Vs.
Union of India 2006 (8) SCC 1 and thus,
62
 INDIAN LAW REPORTS ALLAHABAD SERIES
the transfers made on its recommendation,
are wholly illegal.
3. On the other hand, learned
standing counsel placing reliance on the
letter dated 28.5.2014 written by Director
General of Police to the Principal
Secretary,
Home,
U.P.
Government,
Lucknow contended that past experience
had shown that constables and head
constables posted in districts bordering
their home district were found missing
from their place of posting during nights.
They go to their home, being nearby their
place of posting. They were thus not
available
in
emergency,
adversely
affecting law and order. It was further
found that on account of their posting in
bordering districts, they were interfering
in trivial matters, being connected with
one party or the other. This impacts their
impartiality and the image of the Police
Force. Consequently, the Government, in
order to improve law and order situation
in the State and efficiency of the police
force, issued the impugned Government
Order dated 7.6.2014. The allegation of
political vendetta in issuing the impugned
Government Order is specifically denied.
It was contended that the decision has
been taken in public interest. It was
further submitted that the police force is
quite different and distinguishable from
other State services. This is borne out
from the fact that there is a separate entry
relating to 'police' being Entry No.2 in the
Seventh Schedule of the Constitution of
India. The police force is regulated by the
Police Act, 1861, the Rules framed
thereunder, the Police Regulations and the
executive instructions in the nature of
Government Orders. It is contended that
the impugned Government Order only
supplements the existing provisions under
the Police Regulations and is, in no
manner, contrary to it. It was further
submitted that the constitution of Police
Establishment Board, without Director
General of Police as its Chairman, has
been found to be valid and legal by the
Full Bench of this Court in the case of
Vinod Kumar and another Vs. State of
U.P. and others 2010 (7) ADJ 315 and the
Division Bench in the case of State of
U.P. and others Vs. C.P. Ravindra Singh
and others 2011 (2) ADJ 177. It was
further submitted that under Section 2 of
the
Police
Act,
the
entire
police
establishment is deemed to be one Police
Force, as such, the members of the Armed
Police Force cannot be treated differently,
as compared to those working under Civil
Police, as contended by the petitioners
posted in the Armed Police.
Validity
of
Regional
Police
Establishment Boards:-
4. The first question, therefore, for
consideration is whether the constitution
of Police Establishment Boards vide
Government Order dated 8.4.2010 of
which the Director General of Police is
not the Chairman, is contrary to the
dictum of the Apex Court in the case of
Prakash Singh (supra). For the said
purpose, the background in which the
Apex Court directed for constitution of
the Police Establishment Board in the
case of Prakash Singh (supra), is to be
noticed. The Apex Court issued various
directions to the Central Government,
State Governments and Union Territories
to establish Police Establishment Boards
with the object of insulating the police
from
political
pressures
and
other
extraneous considerations in the matter of
their transfers, postings, promotions and
other service related matters. Directions
contained in this regard, in paragraph 31
1 All]. Manish Kumar Dixit & Ors. Vs. The State of U.P. & Ors.
63
of the judgment, relating to establishment
to Police Establishment Board are 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 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 representations from officers
of the rank of Superintendent of Police
and
above
regarding
their
promotions/transfers/disciplinary
proceedings or their being subjected to
illegal or irregular orders and generally
reviewing the functioning of the police in
the State."
(Emphasis Supplied)
5. In order to implement the
directions given in the case of Prakash
Singh (supra), the State Government
issued Government Order dated 12.3.2008
for constitution of four different Police
Establishment Boards for regulating the
transfers and postings and others service
matters of different ranks of the police
force. The Police Establishment Board for
Sub Inspectors and officials below such
rank comprises of the Inspector General
of Police (Establishment) as its Chairman
instead of Director General of Police, as
provided under the judgment of the Apex
Court. The constitution of the Police
Establishment Board as provided under
Government
Order
dated
12.3.2008
became subject matter of consideration by
a Full Bench of this Court in the case of
Vinod Kumar (supra). The Full Bench,
after noticing the conflict between the
Division Bench Judgments of this Court,
held as under:-
"19. It is true that there may be no
strict
compliance
in
terms
of
the
directions issued by the Supreme Court in
Prakash Singh (supra) insofar as one of
the Boards is concerned. The Government
has attempted to contend that the
notification has to be read with the
exercise of power under Section 2 of the
Police Act. There is a power in the State
Government under Section 2 to have
issued
notification
constituting
the
Boards. The section does not provide for
the publication or laying of the Rules or
Regulations made thereunder before the
Legislature. In other words, the power
conferred on the Government, as a
delegate, to make Rules is not subject to
any control by the Legislature. Rules as
held by the judgment of the Supreme
Court can be made under Section 2 of the
Police Act. The Government, in the
absence of legislation, in exercise of its
power
under
Article
309
of
the
Constitution should have made rules
governing the conditions of service. In the
instant case, there is legislation governing
transfers, but there is no provision for
constitution of Boards. The Boards have
been constituted by the State in exercise
64
 INDIAN LAW REPORTS ALLAHABAD SERIES
of its executive powers. It is now well
settled that in an area, where rule or
existing law is silent in the matter of
conditions
of
service,
administrative
instructions can be issued to fill in the
void or gap, which the State has done.
However,
we
have
held
that
the
notification for reasons given cannot be
held to be an exercise of power under
Section 2 of the Police Act.
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.
21. In these circumstances, we are
clearly of the opinion that, though we
have
found
that
the
notification
constituting the Board is not traceable to
Section 2 of the Police Act, the same at
the highest, amounts to an irregularity
and not illegality and would not vitiate
the transfers, if they have been done in
terms of the Regulations and after the
approval
of
the
Board.
(Emphasis
Supplied)
6. Later came another judgment by
Division Bench of this Court in the case
of State of U.P. and others Vs. C.P.
Ravindra Singh and others 2011 (2) ADJ
177, wherein, similar plea was raised
regarding invalidity in the constitution of
the Police Establishment Board. However,
the argument was repelled by holding as
under:-
"According to us, pluralistic view in
the place and instead of singular view is
one
of
the
devices
to
maintain
transparency. It avoids possibilities of
motivated action, biasness or influence in
the cases of transfer. To that extent, there
is no conflict between Prakash Singh
(supra) and the steps taken by the State.
The only issue is whether the State has
strictly complied with or sufficiently
complied with the direction of the
Supreme Court in Prakash Singh (supra).
According to the Full Bench of this High
Court in Vinod Kumar (supra), direction
has been sufficiently complied with.
Learned Chief Standing Counsel has
given an explanation by saying that the
position of the State of Uttar Pradesh as
regards its vastness and population may
not be similar with various other States.
Therefore, if the Board is constituted
strictly in compliance with the direction of
the Supreme Court then the State will not
get full time engagement of such officers
to maintain the law and order situation of
the State. To that, it is desirable that the
State should explain such position before
the Supreme Court. It is expected that by
now it has been done by the State. But so
far as the existing position is concerned,
this Division Bench will be governed by
both, Prakash Singh (supra) and Vinod
Kumar (supra) and a conjoint reading of
both the judgements speaks that a mode
or mechanism of plurality has been
adopted by the State, in spite of the
existing law. Therefore, this Court does
1 All]. Manish Kumar Dixit & Ors. Vs. The State of U.P. & Ors.
65
not find any reason to negate the orders
of transfer, as were impugned in the writ
petition."
(Emphasis Supplied)
7.
However, Sri Vijai Guatam,
learned counsel appearing in some of the
writ petitions tried to distinguish the
aforesaid judgments by contending that the
Full Bench in the case of Vinod Kumar
(supra) and the Division Bench in the case
of Ravindra Singh (supra) were considering
the constitution of the Police Establishment
Board under Government Order dated
12.3.2008, while the Regional Police
Establishment
Boards
on
whose
recommendations, impugned transfers have
been
made,
are
constituted
under
Government Order dated 8.4.2010. It is
submitted that the constitution of Regional
Police Establishment Boards, in none of
which, the Director General of Police is the
Chairman, is contrary to the directives given
by the Apex Court in the case of Prakash
Singh (supra) and thus, the impugned
transfers effected on basis of such
recommendations, are not legally valid.
8. On the other hand, learned standing
counsel contended that the Government
Order dated 8.4.2010 was issued as a single
Police Establishment Board constituted
under
the
Government
Order
dated
12.3.2008 for police officials upto the rank of
Sub Inspector, was creating administrative
difficulties on account of large number of
such officials in the police force of the State.
It is submitted that care has been taken to
ensure independence of the Regional Police
Establishment Board, as per the objective
laid down by the Apex Court in the case of
Prakash Singh (supra).
9. The preface to the Government
Order dated 8.4.2010 mentions that Police
Establishment Board constituted under
Government Order dated 12.3.2008 and
27.11.2008 for police officials upto the
rank
of
Inspector
resulted
in
administrative and practical problems in
view of large number of police officials of
such rank in the police force of the State.
Consequently, for regulating the transfers
and postings of police officials upto the
rank of Inspector within the region,
Regional Police Establishment Boards
have been constituted as under:-
"(a) Regional Inspector General of
Police/Regional
Deputy
Inspector
General of Police as its Chairman, apart
from two senior most officers."
10. Thus, for effecting transfers at
the regional level, Police Establishment
Boards at regional level were established
with highest police officer at the regional
level
viz.
Inspector
General
of
Police/Regional Deputy Inspector General
of Police as its Chairman. The other two
senior most officers of the region are its
members. The Full Bench in the case of
Vinod Kumar (supra) and Division Bench
in the case of Ravindra Singh (supra)
have held that constitution of Police
Establishment Board without Director
General of Police as its chairman, can at
best be an irregularity and not illegality,
till its independence is ensured and the
mechanism of plurality is maintained. It
was concluded that constitution of Police
Establishment Board for police officers
below the rank of Inspectors, without
Director
General
of
Police
as
its
Chairman, is substantially in keeping with
the spirit of the directions issued by the
Apex Court in the case of Prakash Singh
(supra) and recommendations made by
such Board, cannot vitiate the transfers.
Applying these principles, I find that
66
 INDIAN LAW REPORTS ALLAHABAD SERIES
Regional Police Establishment Boards
constituted under Government Order
dated 8.4.2010 for effecting transfer at the
regional level fulfills both the criteria.
These are headed by the highest police
officials of the region and at the same
time, retains the character of pluralism,
being a multi member body.
Thus,
transfers and postings of members of the
Police Force within the region remains
under the control of an independent body
comprising of highest police officials of
the region, thereby achieving the principal
object of insulating transfers and postings
from political interference. Consequently,
the
transfers
made
on
its
recommendations cannot be held to be
illegal as to warrant interference by this
Court.
Whether Government Order dated
7.6.2014 is illegal and arbitrary:-
11. This takes the Court to the next
question as to whether the impugned
Government Order dated 7.6.2014 is
illegal, irrational, arbitrary for nondisclosure of reasons for issuance thereof
or is contrary to the Act, the Rules and the
Police Regulations.
12.

According
to
the
State
respondents, the impugned Government
Order has been issued with the object of
strengthening the law and order situation
in the State. It has been issued in larger
public interest. It is contended that
question as to how law and order can be
improved in the State, is in the exclusive
domain
of
the
executive
and
the
administrative power of the State. The
policy decision of the State, taken in this
regard, cannot be subjected to judicial
review. The impugned Government Order
is neither illegal nor arbitrary nor contrary
to the provisions of the Act, Rules or the
Police Regulations.
13.
The power of the Executive
Government to frame policies to run day-today administration and to maintain law and
order, cannot be doubted. Nay, it is the duty
of the State to regulate its policies for
common good of its people. Normally,
Courts do not interfere in the framing of
policies and their implementation but can it
be said that policies framed by the State
Government are beyond judicial review, if
not, what is the scope of interference by
Courts of law. There are line of decisions on
the subject, some of which requires to be
noted in brief, to test the argument made by
the parties.
14. The Apex Court in the case of
Brij Mohan Lal Vs. Union of India (2012)
6 SCC 502 was judging the challenge laid
to the decisions of the Government to
discontinue Fast Track Courts. After
analysing several decisions on the subject,
their Lordships of the Supreme Court
summarised the test for judicial review of
policy decisions as under:-
"100. Certain tests, whether this
Court should or not interfere in the policy
decisions of the State, as stated in other
judgments, can be summed up as:
(I) If the policy fails to satisfy the test
of
reasonableness,
it
would
be
unconstitutional.
(II) The change in policy must be
made fairly and should not give the
impression that it was so done arbitrarily
on any ulterior intention.
(III) The policy can be faulted on
grounds of mala fides, unreasonableness,
arbitrariness or unfairness, etc.
(IV) If the policy is found to be
against any statute or the Constitution or
1 All]. Manish Kumar Dixit & Ors. Vs. The State of U.P. & Ors.
67
runs counter to the philosophy behind
these provisions.
(V) It is dehors the provisions of the
Act or legislations.
(VI) If the delegate has acted beyond
its power of delegation."
15. It was ultimately concluded by
holding that no hard and fast rule can be
laid down in absolute terms and it all
depends on facts and circumstances of
each case. Somewhat similar view was
taken by the Apex Court in the case of
Delhi Development Authority and another
Vs. Joint Action Committee, Allottee of
SFS Flats and others (2008) 2 SCC 672
by laying down as under:-
"65. Broadly, a policy decision is
subject to judicial review on the following
grounds:
(a) if it is unconstitutional;
(b) if it is dehors the provisions of
the Act and the regulations;
(c) if the delegatee has acted beyond
its power of delegation;
(d) if the executive policy is contrary
to the statutory or a larger policy."
16. Applying these broad principles,
I proceed to test the argument of the
petitioners
laying
challenge
to
the
Government Order in question.
17. For appreciating the issue,
certain statutory provisions may be noted.
Section 2 of the Police Act, 1861 provides
for the constitution of the police force in
the State and it reads as under:-
"2. Constitution of the force:- The
entire police-establishment under a [State
Government] shall, for the purposes of
this Act, be deemed to be one police-force
and shall be formally enrolled; and shall
consist of such number of officers and
men, and shall be constituted in such
manner, as shall from time to time be
ordered by the State Government.
[Subject to the provisions of this Act, the
pay and all other conditions of service of
members of the subordinate ranks of any
police-force shall be such as may be
determined by the [State Government]]."
18. Section 46 of the Police Act,
1861 confers power in the State to make
rules consistent with the Act. The State
Government, in exercise of such power,
had framed U.P. Police Constables and
Head Constables Service Rules, 2008 and
Rule 26 thereof provides as under:-
"26. Regulation of other matters.- In
regard to the matters not specifically
covered by these rules or special orders
persons appointed to the service shall be
governed by the rules, regulations and
orders
applicable
generally
to
Government
Servants
serving
in
connection with the affairs of the State."
19. Paragraphs 520 to 525 of the
Police Regulations framed under the Act
lay down broad principles regarding
transfer of the officials of the Police
Force. Paragraph 520, which is relevant
for the present controversy, is reproduced
below:-
"520. 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 Inspector General of
Police
of the
range may
transfer
inspectors,
sub-inspectors,
head
constables and constables, within his
range; provided that the postings and
68
 INDIAN LAW REPORTS ALLAHABAD SERIES
transfers of inspectors and reserve subinspectors in hill stations will be decided
by the Deputy Inspector General of
Police, Headquarters.
Transfers which result in officers
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.
Sub-inspectors 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 subinspectors,
head
constables
and
constables should not exceed five years."
20. It is contended by the petitioners
that
paragraph
520
of
the
Police
Regulations does not place any restriction
in the posting of constables and head
constables in districts bordering their
home
district.
Thus,
the
impugned
Government
Order
is
contrary
to
paragraph 520 of the Police Regulations.
It is further contended that there is no
rational for placing such restriction, that
too by means of executive fiat in the
shape of a Government order, when there
is no such restriction under the Act, the
Rules or the Police Regulations.
21. The Government Order dated
11.7.1986 was issued in supersession of
earlier
Government
Order
dated
27.6.1983. Clause (1) thereof places
restriction on postings of Inspectors and
Sub Inspectors in their home districts or
districts bordering their home district.
Clause (5) of the said Government Order
places
similar
restrictions
qua
the
constables and head constables. By
Government
Order
dated
20.3.2012,
restriction regarding posting of constables
and head constables in districts bordering
their home districts was done away with,
as a result thereof, the petitioners herein
came to be posted in various districts
bordering their home district. Now, by
impugned
Government
Order
dated
7.6.2014, relaxation granted in this
regard, has been withdrawn. In other
words, the restriction placed in the
posting of the constables and head
constables vide paragraph 5 of the
Government Order dated 11.7.1986 in
districts bordering their home districts
now stands revived.
22. In the counter affidavit filed on
behalf of the State respondents, it is stated
that the impugned Government Order has
been
issued
on
the basis
of the
recommendations made by the Director
General of Police, Uttar Pradesh vide its
letter dated 28.5.2014. A copy of the said
letter has been brought on record as
Annexure CA-3 to the counter affidavit
filed in the writ petition No.34228 of
2014 Manish Kumar Dixit and others Vs.
State of U.P. and others. The letter dated
28.5.2014 by Director General of Police,
U.P. Lucknow is addressed to Principal
Secretary, Home, U.P. Administration
Lucknow. The subject matter of the letter
is transfers and postings of constables and
head constables in the State. It has been
observed
that
after
issuance
of
Government Order dated 20.3.2012, there
is no restriction on posting of constables
and head constables in districts bordering
their home district. It has been noted that
the past experience and information
1 All]. Manish Kumar Dixit & Ors. Vs. The State of U.P. & Ors.
69
received so far reveals that posting of
constables and head constables in districts
bordering their home district is resulting
in serious practical difficulties. The
constables and head constables leave their
places of posting during night, as they go
to their home in the adjoining district, and
are thus not available in case of
emergency. This is adversely impacting
the law and order in the State. It has been
further noted that because of their posting
in districts bordering their home district,
the members of the police force generally
have their relations in the same district,
impacting their impartiality. They are
found interfering in trivial matters,
adversely affecting the image of the
police department. It was concluded that
the present policy of transfer and posting
is
thus
having
adverse
effect
on
maintenance of the law and order in the
State and curbing the activities of the
criminals. It was suggested that the
relaxation granted by Government Order
dated 20.3.2012 be reviewed. The State
Government
accepted
the
recommendations made by the Director
General of Police vide its letter dated
28.5.2014 by issuing Government Order
dated 7.6.2014, re-imposing ban on
postings
of
constables
and
head
constables in districts bordering their
home district. Thus, clause (5) of the
Government Order dated 11.6.1986 stands
revived and now, constables and head
constables cannot be posted in their home
districts, in districts adjoining their home
districts and in districts where they hold
immovable properties.
23. Indisputably, the Director
General of Police is the head of the police
force in the State. The recommendations
contained in his letter dated 28.5.2014
discloses
valid reasons
for
making
suggestion to the State Government to
withdraw the relaxation granted by
Government Order dated 20.3.2012. The
State Government, while issuing the
impugned
Government
Order
dated
7.6.2014, had rightly acted on the
recommendations made by the Director
General of Police. The action of the State
Government taken in this regard, cannot
be said to be illegal or arbitrary or devoid
of reasons. Rather, the Court is of the
opinion that the State Government was
fully
justified
in
acting
on
such
recommendations, as maintenance of law
and order should be its prime concern. No
laxity, in this regard, has to be given.
Consequently, the contention of the
petitioners that the impugned Government
Order has been issued for no justifiable
reason or that it is a result of illegal and
arbitrary exercise of power, cannot be
accepted.
Whether State competent to issue
impugned Government Order:-
24. Undoubtedly, 'Police' is a State
subject as it appears at Item No.2 of list II
of Seventh Schedule, which reads as
'Police (including railway and village
police) subject to provisions of Entry 2-A
of List 1'. Thus, it is abundantly clear that
State
Government
is
competent
to
legislate
and
amend
the
existing
provisions regulating service conditions
of the Police Force. Under Article 162 of
the Constitution, the executive power of
the State extends to matters with regard to
which it has power to legislate. Thus, the
State is also competent to issue executive
orders. In the instant case, the State
having chosen to exercise its executive
power under Article 162 by issuing the
impugned
Government
Order,
had
committed no illegality. The judgment
70
 INDIAN LAW REPORTS ALLAHABAD SERIES
cited by Sri B.C. Rai in the case of
Jasveer Singh Vs. State of U.P. 2008 (2)
ADJ 484 is distinguishable. There, the
action of State in transferring police
constables of more than 10 years service
to Armed Police was held contrary to
paragraph 525 of Police Regulations and
was thus struck down. The power of State
to issue executive orders under Article
162 of the Constitution was not at all
under consideration, and would thus be of
no help to the petitioners herein.
Whether
impugned
Government
Order is contrary to Statutory Provisions
particularly paragraph 520 of Police
Regulations:-
25. Now, I proceed to examine the
other limb of the argument of the
petitioners as to whether the Government
could have provided for such restriction
by issuing impugned Government Order,
though there is no such embargo under
the Act, the Rules and the Police
Regulations.
26. Paragraph 520 of the Police
Regulations places restriction on posting
of police officers above the rank of
constables in their home district and
districts in which they own immovable
property. In case of constables, their
number is to be restricted as far as
possible. The aforesaid restriction was
placed for obvious reason. A member of
Police Force, being custodian of law and
order, are ordained with several such
powers, which have the potentiality of
impinging upon the freedom and liberty
of the citizens. Such powers are ordinarily
not possessed by other Government
servants. In order to prevent misuse of
such power, restrictions, as mentioned
above, were placed by the Police
Regulations, which are an exercise in
subordinate legislation.
27. It may be noted that Police Act,
1861
and
the
regulations
framed
thereunder,
are
pre-independence
legislations. With the country attaining
freedom, having its own Constitution and
with the development of infrastructure in
the country including better transport
facilities, it become easier to commute
between adjoining districts within short
time. As per the respondents, the
experience in the recent past showed that
with the withdrawal of restriction of
posting of head constables and constables
in district bordering their home district,
they were often found missing during
night, as they go to their home. In order to
do away with this malady which was
having adverse impact on law and order
situation in the State, it was felt necessary
to place certain additional restrictions, in
the nature of ban on posting of constables
and head constables in districts bordering
their home district.
28. This additional restriction
initially placed by Government Order
dated 11.6.1986 and revived by the
impugned Government Order does not, in
any
manner,
run
contrary
to
the
restrictions placed by Police Regulations,
particularly paragraph 520 thereof.