# Court in Shishu Pal Singh v. State of

- **Citation:** (2010) 3 ILRA 1012
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-18
- **Case number:** Special Appeal No.1093 of 2010
- **Bench:** Ferdino I. Rebello, Cj. Ashok Bhushan, Virendra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-shishu-pal-singh-v-state-of-41716
- **Pages:** 15

## Headnote

Mr. M.C. Chaturvedi, (C.S.C.)
Mr. Piyush Shukla, (S.C.)
Dr. Y.K. Srivastava, (S.C.)
Mr. M.S. Pipersenia, (S.C.).

U.P. (Civil Police) Constable and Head
Constable Service Rules, 2008-Read
with U.P. Police Act-1861-Section 2Constitution of Board without including
Director General of Police-instead of
one-four Board Constituted-held-proper
sufficient compliance of direction of
Apex Court in Prakash Singh caseconstitution
of
Board.
even
not
traceable to Act-can be termed as
irregularity-transfer of Constable and
Head Constable in terms of Service
Rules Regulation on approval of Board
not initiated.

Held Para 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.
Case Law Discussed:
[2010 (3) ADJ 241 (DB)], [2009 (10) ADJ
381], [1961 (1) Crl. L.J.773], [AIR 1964 SC
1361], [(2002) 6 SCC 127], [2005 (2) AWC
1191 (FB)], [(2010) 1 SCC 353], [2009 (2)
ADJ 607]

## Text

_Characters 0–39,766 of 45,207. This is a partial read: ask again with offset=39766 for what follows._

1012 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
APPELLATE JURISDICTIONS
CIVIL SIDE
DATED: ALLAHABAD 18.08.2010

BEFORE
THE HON'BLE FERDINO I. REBELLO, CJ.
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE VIRENDRA SINGH, J.

Special Appeal No.1093 of 2010

Constable cp 201 Vinod Kumar and
another

...Appellants
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Petitioners:
Mr. Ram Kumar Dubey
Mr. Vijay Gautam
Mr. V.K. Singh

Counsel for the Respondents:
Mr. M.C. Chaturvedi, (C.S.C.)
Mr. Piyush Shukla, (S.C.)
Dr. Y.K. Srivastava, (S.C.)
Mr. M.S. Pipersenia, (S.C.).

U.P. (Civil Police) Constable and Head
Constable Service Rules, 2008-Read
with U.P. Police Act-1861-Section 2Constitution of Board without including
Director General of Police-instead of
one-four Board Constituted-held-proper
sufficient compliance of direction of
Apex Court in Prakash Singh caseconstitution
of
Board.
even
not
traceable to Act-can be termed as
irregularity-transfer of Constable and
Head Constable in terms of Service
Rules Regulation on approval of Board
not initiated.

Held Para 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.
Case Law Discussed:
[2010 (3) ADJ 241 (DB)], [2009 (10) ADJ
381], [1961 (1) Crl. L.J.773], [AIR 1964 SC
1361], [(2002) 6 SCC 127], [2005 (2) AWC
1191 (FB)], [(2010) 1 SCC 353], [2009 (2)
ADJ 607]

(Delivered by: Justice Ferdino I. Rebello, C.J.)

1. Noticing the conflict of views in
two Division Bench judgments of this
Court in Shishu Pal Singh Vs. State of
U.P. & Others [2010 (3) ADJ 241 (DB)
and another in Special Appeal No.850
of 2010 (State of U.P. & Others Vs.
Jagannath Prasad Gaur and others)
decided on 28.5.2010, in the matter of
transfer
of
Constables
and
Head
Constables and the interpretation of the
U.P. (Civil Police) Constable and Head
Constables
Service
Rules,
2008
(hereinafter referred to as 'the Rules,
2008'), the matter was referred to a Full
Bench by order dated 14th of July,
2010, to answer the following issue:-

"(i). Whether pursuant to framing
of the U.P. (Civil Police) Constable and
Head Constables Service Rules, 2008,
the directions issued by the Supreme
Court in the case of Prakash Singh Vs.
Union of India [2006 (8) SCC 1) in
exercise of power under Article 142 of
the Constitution of India, are no longer
applicable in view of what is set out in
paragraph 31 of the judgment?"

2. In paragraph 31 of Prakash
Singh (supra), the Supreme Court was
pleased to direct as under: "In discharge
of
our
constitutional
duties
and
3 All] Constable cp 201 Vinod Kumar and another V. State of U.P. and others
1013
obligations
having
regard
to
the
aforenoted
position,
we
issue
the
following direction to the Central
Government, State Governments and
Union Territories for compliance till
framing of the appropriate legislations.
One
of
the
directions
was
the
establishment
of
the
Police
Establishment Board, being direction
no.5, which reads as follows:-

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."

Earlier in paragraph 29 of the
judgment also, it was observed as under:
"It is not possible or proper to leave this
matter only with an expression of this
hope and to await developments further.
It is essential to lay down guidelines to
be operative till the new legislation is
enacted by the State Governments."

3. In Civil Misc. Writ Petition
No.69798 of 2009: Shishu Pal Singh
(supra), the learned Single Judge, in
respect to the challenge of transfer order
dated 10.11.2009 and relieving order
dated 08.12.2009, noted the contention
on behalf of the writ petitioner that the
transfer order had been passed without
approval of the Police Establishment
Board or even the Director General of
Police, Uttar Pradesh. On behalf of the
State, it was submitted that for various
personnel of the police department,
various Police Establishment Boards
have been established and the Director
General of the Police is the Chairman of
the Police Establishment Boards relating
to police personnel other than Head
Constable and Constable. The learned
Single Judge was pleased to note that
the transfer was effected after approval
of the Police Establishment Board and,
therefore, was pleased to dismiss the
writ petition.

The
writ
petitioner,
being
aggrieved, preferred a special appeal
before the learned Division Bench of
this
Court,
being
Special
Appeal
(Defective) No.148 of 2010: Shishu Pal
Singh Vs. State of U.P. & Others, [2010
(3) ADJ 241 (DB] (decided on 9th of
February, 2010) wherein the learned
Bench noted the contention raised on
behalf of the State that the State had
framed the Rules, known as U.P (Civil
1014 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Police) Constable and Head Constables
Service Rules, 2008 and Rule 26
thereof, says that if any matter is not
specifically covered by the aforesaid
Rules, 2008, then it will be applicable as
per the rules, regulations or orders
applicable to the general Government
servants. Therefore, the learned Bench
held that there was no reason to
interfere with the order impugned in the
appeal.

4. In Civil Misc. Writ Petition
No.25016 of 2010: Jagannath Prasad
Gaur and others Vs. State of U.P. &
Others, the writ petitioners challenged
the order of transfer dated 26.4.2010 by
the which the writ petitioners were
transferred from one place to another.
The writ petitioners also prayed for
quashing of the Government Order
dated 19.02.2010 as well as Clause-5 of
the transfer policy dated 21.04.2010.
The submission of the writ petitioners
before the learned Single Judge was that
the order of transfer has been effected in
an arbitrary manner without adhering
the policies made from time to time and
also without application of mind by a
common order. The stand of the State
was that the transfers were effected by
the Board constituted for that purpose
on administrative grounds and based on
Govt. Order of 1986 which stated that
the police personnel shall not be posted
near their hometown. The learned Bench
found
that
about
300-400
police
personnel had been transferred by one
order on the ground that they are posted
near their hometown since 1995, 1997,
1998 and 2000. After considering the
minutes of the Board, which approved
the transfer of the writ petitioners, it
prima facie came to the conclusion that
the Board has not applied its mind and,
therefore, by means of an interim order
dated 07.05.2010, stayed the transfer of
the writ petitioners.

5.

Being
aggrieved
by
the
aforesaid
interim
order
dated
07.05.2010, the State of U.P. preferred
an appeal, being Special Appeal No.850
of 2010: State of U.P. & Others Vs.
Jagannath Prasad Gaur & Others,
which came to be decided on 28.5.2010.
The submission of the respondents-writ
petitioners before the learned Bench
was that the State Government had not
constituted the Board in terms of the
directions given by the Supreme Court
under Article 142 of the Constitution of
India. The Board constituted did not
have the Director General of Police, but
Additional
Director
General
of
Police/Inspector
General
(Establishment), who had no authority
to preside over the said Board in view
of the directions given by the Supreme
Court, which was binding on the State
Government. On behalf of the StateAppellants, it was pointed out that the
State had submitted its proposal for
constitution
of
Boards
before
the
Supreme Court, which had not rejected
to the same. Reliance was placed on the
judgment of Rishi Pal Singh Vs. State
of U.P. & Others [2009 (10) ADJ 381,
wherein the learned Bench held that the
Board presided over by the Inspector
General of Police (Establishment) is a
validly constituted Board.

The
learned
Bench
after
considering the issue, observed that if
the State of U.P. wants to deviate, it is
open to it to take necessary permission
from the Hon'ble Supreme Court, which
in the present case it had not been done.
The learned Bench, further held that the
3 All] Constable cp 201 Vinod Kumar and another V. State of U.P. and others
1015
Board, which had considered and
approved the transfer order in question
was not constituted in accordance with
the specific directions given by the
Hon'ble Supreme Court and, therefore,
the transfer order has not been passed in
accordance with law, and accordingly,
dismissed the appeal. This judgment
was delivered on 28th of May, 2010.
The judgment in Shishu Pal Singh
(supra) was not noted by the subsequent
Division Bench in Jagannath Prasad
Gaur (supra) as it was not brought to its
notice.

6. At the hearing of these matters,
on behalf of the private respondents, it
has been contended that the Supreme
Court in Prakash Singh (supra) sought
to insulate the police machinery from
partisan
political
interference,
in
discharge
of
lawful
function
and
prevention
and
control
of
crime
including the investigation of cases and
maintenance of law and order. In this
context, the Supreme Court had been
pleased to direct the establishment of
the Police Establishment Board, which
would consist of the Director General of
Police and four other senior officers of
the department. Our attention was also
invited to the various efforts made by
the other States giving effect to the
directions issued by the Supreme Court
including the State of Kerala, State of
Assam as also a draft Bill by the State
of Gujarat. Once there were directions
under Article 142 of the Constitution of
India, the State could not depart from
the same and consequently, the view
taken
by
the
Division
Bench
in
Jagannath Prasad Gaur (supra) ought
to be upheld. On behalf of the original
petitioners,
it
was
sought
to
be
contended that the Rules framed do not
constitute 'legislation'.

7. On the other hand, on behalf of
the State of Uttar Pradesh, the learned
Standing
Counsel
has
drawn
our
attention to the strength of the police
personnel from Director General to
Constable as on 31.03.2010. Against the
sanctioned strength of 3,83,644, only
1,88,844 are serving and there are
vacancies of 1,94,604. The learned
Standing Counsel pointed out that they
have appointed another 35,000 and
more are in the process. It has been
pointed out that looking to these figures,
in the State of Uttar Pradesh, it is not
possible to appoint one Board and
accordingly, the State by Notification
dated 12.03.2008 in exercise of its
power under Section 2 of the Police Act,
1861 had constituted four different
Boards for various ranks. It is submitted
that the Supreme Court in Prakash
Singh (supra), while issuing directions
under Article 142 of the Constitution of
India, had made it clear that these
directions would apply till such time a
legislation was enacted by the States. It
is also pointed out that the State
Government, pursuant to the powers
conferred by Section 2 and Section 46
(3) of the Police Act, 1861 had framed
the U.P. (Civil Police) Constable and
Head Constable Service Rules, 2008.
Our attention is invited to Rule 26 of
Rules, 2008, which reads 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
1016 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
serving in connection with the affairs of
the State."

Transfer, it is submitted is covered
by Regulations 520 to 526 of the U.P.
Police Regulations, which henceforth
shall be referred to as the Regulations. It
is, therefore, set out that considering the
rules and the regulations, the State has
enacted legislation and consequently,
the directions issued by the Supreme
Court in Prakash Singh (supra) are no
longer applicable to the State of U.P.

8. The first question, therefore, for
our consideration is, as to whether an
exercise in subordinate legislation can
be said to be a legislation. To answer
that issue, we may first consider the
decided case law under the Police Act
and the rules framed thereunder. In
State of Uttar Pradesh Vs. Babu Ram
[1961 (1) Crl. L.J.773, the Supreme
Court held that the rules made under the
Police
Act
are
not
administrative
directions. The Police Act and the rules
made thereunder constitute a selfcontained
code
providing
for
the
appointment of police officers and
prescribing the procedure for their
removal. In the State of Rajasthan Vs.
Ram Saran [AIR 1964 SC 1361,
referring to Section 2 of the Police Act,
the Supreme Court was pleased to hold
that under that Section, it is not the
Inspector General of Police but the State
Government that is empowered to frame
rules
regulating
the
conditions
of
service of members of the police force.
In Chandra Prakash Tiwari Vs.
Shakuntala Shukla [(2002) 6 SCC 127,
dealing with the Police Act, 1861 and
rules made for the civilian employees
under Article 309 of the Constitution of
India, the Court was pleased to hold that
the Act is a complete code insofar as the
police personnel are concerned and the
service conditions, which are referable
to the Act, are not replaced by the
general service conditions.

9. The Police Act and the Rules
made thereunder were the subject matter
of consideration before a Full Bench of
this Court in Vijay Singh and others
Vs. State of U.P. & Others [2005 (2)
AWC 1191 (FB). Dealing with Section
2 of the Police Act, the Full Bench held
that
Section
2
enables
the
State
Government
to
prescribe
service
conditions from time to time. It further
observed that the Legislature, while
enacting the provisions of Section 2 of
the Police Act, 1861, itself delegated the
powers to the statutory authority to fix
eligibility criteria including the age etc.
As the Police Act is a pre-Constitution
law, that aspect was also considered and
answered. We may gainfully reproduce
paragraph 16 of the judgment, which is
as under:-

"16. Police Act, 1861 is one of the
earliest
enactment
immediately
subsequent to the Indian mutiny of
1857. Preamble thereof provides that it
was expedient to reorganize the police
and to make it a more efficient
instrument for the prevention and
detection
of
crime.
After
the
commencement of the Constitution into
force in 1950, police became the State
subject as it appears at item No.2 of
List-II of 7th Schedule, which reads as
Police (including railway and village
police) subject to the provisions of
Entry 2A of List-I. Entry 2A of List-I
provides for deployment of any armed
force of the Union of India or any other
force subject to the control of Union.
3 All] Constable cp 201 Vinod Kumar and another V. State of U.P. and others
1017
Thus, it becomes clear that the police is
a subject of State List and State
Government is competent even to
amend the Act and it has been amended
by the States from time to time. The
"pre-Constitution
law
continues
to
remain operative by virtue of provisions
of Articles 313 and 372 of the
Constitution. A Constitution Bench of
Hon'ble Supreme Court in South India
Corporation Pvt. Ltd. v. Secretary,
Board of Revenue, Trivendrum and
another, AIR 1964 SC 207, examined
the issue of continuation and validity of
the pre-Constitution laws and held that
such
provisions
are
valid
and
enforceable,
observing
that
preConstitution law made by a competent
authority,
though
it
has
lost
its
legislative
competency
under
the
Constitution, shall continue in force
provided the law does not contravene
other provisions of the Constitution.
While deciding the said case, reliance
had been placed upon large number of
the judgments of different High Courts
and also the judgment of Hon'ble Apex
Court
in
Amalgamated
Coalfields
Limited and others v. Janapada Sabha
Chhindwara, AIR 1961 SC 964, wherein
the Constitution Bench had held that the
coal tax originally imposed under
Section 51 of the Central Provinces
Local-self Government Act, 1920, on
2nd
March,
1935,
was
valid
and
continued to be valid after Government
of India Act, 1935 and the Constitution,
by virtue of Article 372 of the
Constitution."

From the above, it emerges that the
Police
Act
and
the
Rules
made
thereunder
and/or
statutory
orders
passed under Section 2 of the Police
Act, constitute a self-contained code
relating to the police service in the
State, which is a part of the civil
services of the State.

10. Do the Rules and orders form a
part of legislation. In our opinion, the
following observations in Babu Ram
(supra) would be important:-

"23. ... ... ...

Rules made under a statute must be
treated for all purposes of construction
or obligation exactly as if they were in
the Act and are to be of the same effect
as if contained in the Act, and are to be
judicially noticed for all purposes of
construction or obligation: see Maxwell
"On the Interpretation of Statutes", 10th
edn., pp. 50-51. The statutory rules
cannot be described as, or equated with,
administrative directions. If so, the
Police
Act
and
the
rules
made
thereunder constitute a self-contained
code providing for the appointment of
police officers and prescribing the
procedure for their removal."

Thus, the rules whether under
Section 2 or Section 46 when made have
to be read as if they are a part of the Act
and have the same effect as if contained
in the Act. They have to be read,
therefore, as a part of the Act itself. The
State Government has made the Rules,
2008 subsequent to the judgment in
Prakash Singh (Supra). To the extent
the rules provide for matters covered by
the directions, the directions will no
longer apply as the State has enacted
legislation. We may also note that the
Supreme Court in Prakash Singh
(supra) has not held the existing
legislation as to trespass invalid. The
Rules, 2008, however, do not contain
1018 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
any provision for setting up of Boards
for effecting transfers. The State has
placed reliance on Rule 26 thereof,
which we have reproduced earlier. Rule
26 of the Rules says that 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.
By referring to the Notification issued
by the State Government constituting
the Boards, learned counsel had sought
to contend before us that this order has
been made pursuant to the power
exercised under Section 2 of the Police
Act. The purported order was issued by
the Special Secretary. The Circular does
not recite that it is pursuant to the power
exercised under Section 2 of the Police
Act. It is no doubt true that Section 2
does not specify the manner in which an
order should be issued. This notification
was issued on 12th March, 2008. The
rules were notified and published in the
Government Gazette on 2nd December,
2008. There is nothing on record that
the notification of 12th March, 2008, if
it be rules were made in terms of the
Act. We are, therefore, of the opinion
that it cannot be said that the said
Notification is an exercise of power
under Section 2 of the Police Act. To
that extent constitution of the Boards
would be pursuant to the directions
issued
under
Article
142
of
the
Constitution of India.

11. The power under Article 142
of the Constitution is to do complete
justice in the matter. Though the
Supreme Court would not pass any
order under Article 142 which would
amount to supplanting substantive law
applicable or ignoring express statutory
provisions dealing with the subject, at
the same time these Constitutional
powers cannot in any way, be controlled
by any statutory provisions. However,
this power it has been held, cannot be
used to supplant the law applicable to
the case. The power, it has been held,
has to be used sparingly in cases which
cannot be effectively and appropriately
tackled by the existing provisions of law
or when the existing provisions of law
cannot bring about complete justice
between the parties. (See: Laxmidas
Morarji v. Behrose Darab Madan, 2009
AIR SCW 6124).

Our attention was invited to the
judgment of the Supreme Court in
University of Kerala Vs. Council of
Principals of Colleges, Kerala and
others [(2010) 1 SCC 353], wherein the
learned Bench of the Supreme Court
was of the opinion that several issues
require to be referred for consideration
by the Constitution Bench, of which one
is , as under:-

"What is the scope of Articles 141
and 142 of the Constitution? Do they
permit the judiciary to legislate and/or
perform functions of the executive wing
of the State."

Until such time the Constitution
Bench answers the issue, we have to
proceed on the basis of the law as
existing, which is, that the directions
issued
under
Article
142
of
the
Constitution would be binding on all
authorities till such time a legislation is
enacted.
3 All] Constable cp 201 Vinod Kumar and another V. State of U.P. and others
1019

12. As we have noted earlier, the
State Government, pursuant to the
judgment in Prakash Singh (supra) has
made the Rules, 2008. However, it has
not, in the Rules, provided for the
Constitution of the Boards. To that
extent, though a legislation has been
enacted,
the
direction
regarding
constitution of the Board would be
binding till such time the State enacts
legislation for constituting Boards. In
paragraph 25 of the judgment in
Prakash Singh (supra), the Court was
further pleased to observe that 'we
expect that the State Governments
would give it due consideration and
would pass suitable legislations on
recommended lines, the police being a
State subject under the Constitution of
India.' These directions by the highest
Court of the land, ordinarily ought to
have been considered by the State
Government
by
giving
statutory
recognition to the same of course,
considering the State needs and the fact
that there is a large police force. Though
the power of the Legislature in enacting
laws is plenary and cannot be controlled
by any other Constitutional Body, the
views of the Highest Judicial Body,
which had issued the directions in larger
public interest, must be given the
highest consideration.

13. Under the provisions of the
Act, Regulations have been framed,
which are knows as the U.P. Police
Regulations. Chapter XXXIV deals with
the transfers. Regulations 520 to 525,
which we are reproducing below,
provide for the mode of transfer. The
said Regulations read as under:-

"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
transfers of inspectors and reserve subinspectors in hill stations will be
decided by the Deputy InspectorGeneral of Policed, 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 then 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.

521. The Inspector-General may,
without the sanction of Government--

(a) transfer to--

(i) foreign service within the
province other than to service in an
Indian State, and
1020 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

(ii)
another
department
of
Provincial
Government,
any
Government servant whom 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 extend the period of such
temporary transfer up to a period of two
years.

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 and constables. The proposed
exchanges shall be reported to the
Deputy Inspector-General. Travelling
allowance will not be payable on the
occasion of such transfers.

523. On receipt of an order of
transfer of a subordinate officer to
another district the Superintendent will
arrange to relieve him of 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. If
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.

524.
The
Superintendent
may,
within his district, transfer all officers of
an and below the rank of inspector. In
the case of inspectors and officers in
charge 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
Commissioner-incharge of the Division, his functions
under
this
sub-paragraph
will
be
exercised by the Additional District
Magistrate (Executive).

Officers-in-charge
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
reason. No officer liable to station duty
shall be withdrawn from that duty for a
longer period than one year, except in
3 All] Constable cp 201 Vinod Kumar and another V. State of U.P. and others
1021
Kumaun where the withdrawal of head
constable for two years at a time from
station duties is permitted.

525. Constable of less than two
years' service may be transferred by the
Superintendent of Police from the armed
to the civil police or vice versa. 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 any
one 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 for any period
with the permission of 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 other Provinces to the Uttar
Pradesh Police requires the sanction of
the Inspector-General."

These Regulations are an exercise
in subordinate legislation. It is no doubt
true that the Hon'ble Supreme Court in
Prakash Singh (supra) had directed the
constitution of the Police Establishment
Boards as also directed that the Board is
to decide all transfers below the rank of
Deputy Superintendent of Police. The
directions have not held that the
legislations in force in the matter of
transfer are illegal. The directions to an
extent supplement the law in force. The
said directions, therefore, have to be
read along with Regulations in the
context that if the authorities under the
Regulations in exercise of the power
have at the local level proposed the
transfers in terms of the policy, that has
to
be
decided
by
the
Police
Establishment
Board
before
the
transfers are given effect to.

14. The question then is, what is
the meaning of the expression 'decide'.
We open with a caveat. Judgments
cannot be read as statutes and so
interpreted. The judgment must speak
for itself. The expression 'decide' has to
be considered in the context of direction
no.5, which is to establish the Police
Establishment
Boards
where
the
Supreme Court has used the expression
'decide'. The word 'decide' according to
the Law Lexicon by P. Ramanatha
Aiyar, 8th Edition, 1987, is as under:-

"Decide. To determine; to form a
definite opinion; to render judgment; to
give judgment for or against a party to
suit or other proceeding in Court.

AS APPLIED TO FUNCTIONS
OF A JURY. "To decide includes the
power and right to deliberate, to weigh
the reasons for and against, to see which
preponderate and to be governed by that
preponderance."

In K.T. Aiyar, 13th Edition, 2001,
the expression 'decide' has been set out
as under:-

"Decide. According to Concise
Oxford Dictionary 'to decide' means
'settle question, issues, disputes, by
giving
victory
to
one
side;
give
judgment (between or in favour of,
against); bring 'come to a resolution';
and 'decision' means 'settlement (of
question
etc.);
conclusion;
formal
1022 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
judgment; making up one's mind;
resolve;
resoluteness;
decided
character'.
[Ramkrishna
Gangaram
Rathi v. Kishan Zingraji Madke AIR
1971 Bom 305 (310)]."

In words and phrases Vol. 2, 3rd
Edition, 1989 'To "decide" a matter
means to take it into consideration and
to settle it.' Judes v. Registrar of Mining
Rights Krugerdorfs 1907 TS 1049 per
Innes CJ. Thus the expression is used in
the context of a decision making process
to settling questions. Thus, the Board
itself need not determine every act of
transfer, it could decide on the proposals
before it.

A learned Single Judge of this
Court in Bhanu Pratap Vs. State of
U.P. & Others [2009 (2) ADJ 607] was
considering the aspect of what would be
the meaning of expression 'decide'. The
expression 'decide' as in Oxford English
Dictionary, the Court observed means
'decide as a term to determine (a
question, controversy or clause) by
giving victory to one side or the other:
to bring the settlement, resolve (a matter
in dispute, doubt or suspense). The
stand of the State before the learned
Single Judge was that the expression
'decide' cannot be read to be interpreted
as
to
effect
transfers.
The
State
Government, pursuant to the directions
issued by the Supreme
Court in
Prakash Singh (supra) had constituted
the Boards and when the difficulties
were experienced the Range Deputy
Inspector Generals and Zonal Inspector
General of Police were allowed to make
orders
of
transfers
within
their
respective jurisdictions. The learned
Single Judge noted that the transfer
orders had been passed in exercise of
power in Paragraph 520 of the U.P.
Police Regulations within the Zone. The
learned Single Judge held that there was
no violation of the recommendations of
the Supreme Court. The learned Single
Judge
further
observed
that
the
directions cannot confer an enforceable
right upon the writ petitioners and that
there was no mandate that the transfers,
postings and promotions in breach of
the recommendations are declared as
illegal and inoperative.

The directions of the Supreme
Court are to enable the State to enact
legislation
to
achieve
the
desired
objective as set out in the judgment of
Prakash Singh (supra). Thus, the
directions cannot be read literally, but
will have to be considered in their
broader aspect, which would also be to
consider the 'existing law' and the
ultimate exercise of control by the
Board to effect the transfers. The
expression 'decide', therefore, will have
to be read in that context.

We may only mention that once a
direction is issued by the Supreme
Court, in the absence of a legislation,
those directions to that extent will be
part of additional conditions of service,
as that would be law, and any violation
of law, would give right to a person in
whose favour, the law has been enacted
and who complains of breach thereof.
To that extent, the observations by the
learned Judge in Bhanu Pratap (supra)
would not be correct. The direction for
setting up of the Boards by itself does
not mean that all transfers would be
personally done by the Boards. If under
the
Regulations,
there
is
specific
transfer policy and the authorities have
proposed the transfers, the Board will
3 All] Constable cp 201 Vinod Kumar and another V. State of U.P. and others
1023
exercise its powers to decide on those
transfers. The power, therefore, will
have to be read in that context, meaning
thereby, before effecting transfer it is
the Board which must ultimately decide
the transfers. Considering the number of
police personnel in service, it is not
possible to read the directions issued
under Article 142 to have conferred the
power on the Board alone, when there is
an existing law in force or legislation
has been enacted subsequently.

15. The next question, we have to
answer is, what is the effect of the
notification, which has constituted the
four Boards. The only objection is to the
constitution of one of the Boards, which
is headed by the Inspector General of
Police (Establishment) and not by the
Director General of Police and which is
empowered to consider the transfer of
Head Constable and Constable. The
learned Division Bench, considering the
matter
in
Jagannath
Prasad
Gaur
(supra), was of the opinion that the
Board had not been constituted in terms
of the directions in Prakash Singh
(supra). It is true that the Chairman of
the Board is not the Director General of
Police, but the Inspector General of
Police (Establishment). We have earlier
quoted the sanctioned strength of the
police personnel in the State of Uttar
Pradesh. Insofar as the Constables are
concerned, the State carried out an
exercise of transfer of about 50,000
(Fifty Thousand) Constables under an
'existing law'. The transfers have been
effected by the Board, as constituted.
These transfers are regular transfers in
terms of the Regulations under the
Police Act. The Regulations themselves
provide
for
regular
transfer
after
completing a particular tenure at a
station on the administrative instruction
in force. In other words, in respect of
such
transfers,
question
of
any
application of mind, really does not
arise. If any person has any grievance in
respect
of
his
individual
case
considering the hardship, if any, on
account of transfer, then the redressal
mechanism provided for, will continue
to govern him.

16. In Rishi Pal Singh (supra), the
learned Judge was again considering the
issue of transfer in the context of the
directions issued in Prakash Singh
(supra) and noting the object of the Act
held that the Constitution of the Board,
which includes senior officers of the
Police Department having specialized
knowledge of the police administration
is
sufficient
compliance
of
the
guidelines issued by the Apex Court and
mere non-inclusion of the Director
General of the Police as its Chairman by
itself would not make the constitution of
the Board illegal as it is otherwise able
to serve the purpose for which it has
been established. The learned Single
Judge, then proceeded to hold that the
approval so granted would not stand
vitiated only for the reason that the
Director General of Police has not been
included as one of its members,
specially when the approval granted by
the Police Establishment Board is
further required to be approved by the
Director General of Police. The learned
Single Judge, then observed as under:
"Thus, in effect the guidelines issued by
the Supreme Court with regard to the
creation of the Police Establishment
Board
have
been
followed
and
implemented by the State Government
in pith and substance according to the
true spirit. Any technical infraction in
the
implementation
of
the
said
1024 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
guidelines cannot be a subject of
consideration by this Court."

The learned Single Judge noted that
the Police Act, 1861 and the U.P. Police
Regulations
provide
a
complete
mechanism for the transfer of the police
personnel. The guidelines issued by the
Supreme Court read with the Act and
Regulations occupy the field.

17. We find that another learned
Single Judge of this Court in Bhanu
Pratap Vs. State of U.P. and others
[2009 (2) ADJ 607], considered the
question of substantial compliance and
then
was
pleased
to
observe
in
paragraph 10, which is as under:-

"10.
There
appears
to
be
considerable force in the submissions
raised by learned Standing Counsel that
a large police force consisting of
different categories of employees at
different levels would require the
issuance of large number of orders of
transfers and postings. It will not be
possible for the Boards constituted at
the Headquarters to make or approve
thousands of such orders but in such
case the police officers if they are
aggrieved can raise their grievance with
the Police Establishment Board."

18. The judgment in Prakash
Singh (supra) was to ensure that in the
matter of transfers and promotions etc.,
the
officers
and
men
would
be
considered based on their merit and
uninfluenced by any political decision,
patronage or consideration. Merely,
because one of the functionaries named
by post in the directions of the Supreme
Court, is not in the Board, per se would
not make the entire action of transfers
void or non est.