# Rishi Pal Singh v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 1010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-11-09
- **Case number:** Civil Misc. Writ Petition No.51528 of 2009
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rishi-pal-singh-v-state-of-u-p-and-others-41447
- **Pages:** 8

## Headnote

Constitution
of
India-Article
226Transfer of Sub-Inspector-who remained
in
adjoining
District
for
24
yearsinvolved in Criminal Case offence under
379 IPC-on ground of challenge made
that
the
approving
authority-'Police
Establishment
Board'
not
properly
constituted-G.O.
dated
12.08.09
providing the approval of the decision of
Board by D.G.P.-which put further check
on exercise of power of Transfer-helddirection of Supreme Court in Prakash
Singh Case fully complied with-No scope
for technical plea-Transfer order can not
be interfered.

Held: Para 16 & 17

In the aforesaid facts and circumstances,
in so far as the police Establishment
Board that has granted approval to the
transfer of the petitioner is concerned
has subserved the object with which the
guidelines
were
laid
down
by
the
Supreme Court, 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.
3 All] Rishi Pal Singh V. State of U.P. and others
1011
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 guidelines
cannot be a subject of consideration by
this Court.
Case law discussed:
(2006) 8 SCC 1, Writ Petition No.1525 of 2009
decided on 4.9.2009, 2003(1) UPLBEC 636.

## Text

1010 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
but the respondent no. 3 also kept silence
in this matter and it is only when he was
personally summoned, took steps which
he could have taken earlier for paying the
salary to the petitioner. To this extent, the
respondent no. 3 is also guilty and is to be
held responsible.

23. In the circumstances, the writ
petition is allowed with the direction to
the respondents to pay simple interest on
the delayed payment of salary to the
petitioner at the rate of 8% p.a. from the
date the same became due till actual
payment.

24. Liberty is given to respondent
no. 1 to realize the amount of interest paid
to the petitioner under this order from the
officials concerned who, it may found
responsible after holding an appropriate
departmental enquiry in this matter.

25. In view of the above discussion,
this Court is satisfied that here is a case
where the conduct of the respondents
makes them liable for an exemplary cost
which I quantify to Rs. two lacs. This
would also be compensatory to the
petitioner. The liability is distributed to
the extent of Rs. 1.5 lacs against
respondent no. 5 and fifty thousands
against respondent no. 3. The above cost
shall be paid by them within six months
failing which it would be open to the
Registrar General of this Court to take
steps to realize the same amount as
arrears of land revenue. After realizing
the amount of cost, the same may be
released in favour of the petitioner.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2009

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No.51528 of 2009

Rishi Pal Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam

Counsel for the Respondents:
C.S.C.

Constitution
of
India-Article
226Transfer of Sub-Inspector-who remained
in
adjoining
District
for
24
yearsinvolved in Criminal Case offence under
379 IPC-on ground of challenge made
that
the
approving
authority-'Police
Establishment
Board'
not
properly
constituted-G.O.
dated
12.08.09
providing the approval of the decision of
Board by D.G.P.-which put further check
on exercise of power of Transfer-helddirection of Supreme Court in Prakash
Singh Case fully complied with-No scope
for technical plea-Transfer order can not
be interfered.

Held: Para 16 & 17

In the aforesaid facts and circumstances,
in so far as the police Establishment
Board that has granted approval to the
transfer of the petitioner is concerned
has subserved the object with which the
guidelines
were
laid
down
by
the
Supreme Court, 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.
3 All] Rishi Pal Singh V. State of U.P. and others
1011
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 guidelines
cannot be a subject of consideration by
this Court.
Case law discussed:
(2006) 8 SCC 1, Writ Petition No.1525 of 2009
decided on 4.9.2009, 2003(1) UPLBEC 636.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Petitioner who is a Sub-Inspector
(Special Category) in U.P. Police has
challenged the order dated 16.9.2009
passed by the Deputy Inspector General
(Establishment),
U.P.
Police
Headquarters, Allahabad transferring him
from district Gautam Budh Nagar to Mau
in public interest with the approval of
Police Establishment Board.

2. On behalf of the petitioner a
supplementary affidavit and then a second
supplementary affidavit has been filed.
Learned Standing Counsel was earlier
allowed time to obtain instructions and to
file counter affidavit. A counter affidavit
as well as a supplementary counter
affidavit has been filed by the learned
Standing
Counsel
on
behalf
of
respondents no.1 to 5 and respondent no.7
to which even rejoinder affidavit has been
filed. The counsel for the parties as such
agree for final disposal of the writ petition
at the admission stage itself. Accordingly,
having heard Sri Vijay Gautam, learned
counsel for the petitioner and the learned
Standing Counsel for the respondentsat
length, I proceed to decide the matter
finally.

3. Before addressing various points
which have been canvassed by the learned
counsel for the petitioner in order to assail
the impugned order, it is tiride to mention
that under the service jurisprudence
transfer of an employee who holds a
transferable post is a normal feature and
has been recognised throughout as an
incident of service. In the matter of the
transfer, the Government/employer has a
wide discretion and it is the employer
who is the best judge to utilise the service
of its employee and to place and post him
at
its
discretion
accordingly.
The
employee has no legal say in the matter of
his posting except to bring to the notice of
the authority concerned his personal
difficulty or any hardship. The employee
as such, as no vested right either to insist
for a particular post or to be posted at a
particular place or to stick to a particular
one. In fact, transfer has been considered
necessary in public interest and to
maintain
efficiency
in
public
administration. Therefore, it has been
settled by a catena of authorities that
ordinarily transfer orders are not to be
interfered with on the judicial side until
and unless it is shown that the order of
transfer passed is without jurisdiction; is
in breach of any statutory rule or it has
been motivated by malice of fact or law or
is proved to be punitive, vindictive or
stigmatic in nature.

4. It is in the above settled legal
background that I have to examine the
validity of the impugned order.

5. The first submission of the
learned counsel for the petitioner is that
the
Police
Establishment
Board
(hereinafter referred to as "the Board")
which had granted approval to the transfer
is not properly constituted as per the
1012 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
directions of the Apex court in the case of
Prakash Singh and others Vs. Union of
India and others (2006) 8 SCC 1 and, as
such, there is no approval by the Board
and the order of transfer stands vitiated.
The only defect pointed out in the
constitution of the Board is that the
Director General of Police is not the
Chairman of the Board as it is headed by
the
Inspector
General
of
Police
(Establishment).

6. In reply to this argument, learned
Standing Counsel has submitted that in
the case of Prakash Singh (supra) the
Apex Court has merely issued guidelines
for the better administration of the Police
Force and one of the guidelines provides
for
establishment
of
a
Police
Establishment Board in each State for the
purpose
of
transfer,
posting
and
promotion and other matters relating to
the services of the officers of the Police
Force. In pursuance of the guidelines so
issued by the Supreme Court, the
Principal Secretary, U.P. Government
vide letter dated 12.3.2008 notified six
different Boards for supervising transfer,
posting, promotion and other service
related matters of the police department
depending upon the category of officers.
The Board in respect to the officers of the
Police Force of the rank of Sub-Inspector
and below comprises of Inspector General
of
Police
(Establishment),
Deputy
Inspector
General
of
Police
(Establishment), Superintendent of Police
(Karmik) and Additional Superintendent
of
Police
(Karmik)
and
Deputy
Superintendent of Police (Karmik). The
transfer of the petitioner has been
approved by the aforesaid Board and, as
such, there is no illegality.

7. No doubt, the directions/guidelines
issued by the Supreme Court in the case
of Prakash Singh (supra) are mandatory
in nature, being one issued in exercise of
power
under
Article
142
of
the
Constitution of India, but to find out the
true mandate of the said guidelines it is
imperative to underline the object behind
issuing the same.

8. Police force is a disciplined force
which comprises of persons who are not
only specialised and skilled but are
charged with the preservation of public
order and tranquillity; promotion of
public heath and safety; and with
prevention, detection and investigation of
crime. Such persons in uniform are
distinguishable from common man so that
a person in need may recognise and
approach them easily for necessary
assistance. Therefore, the duty of the
police personnel is basically to serve the
public and to maintain the rule of law.
Their approach has to be service oriented.
The
commitment,
devotion
and
responsibility of the police personnel has
to be to the rule of law so that they serve
the people impartially, irrespective of
their status and position. The police force
therefore, has to maintain professional
independence free of interference and
influence of the Government.

9. Realising the importance of the
police force in a democratic set up, the
Government of India appointed a National
Police Commission to comprehensively
review the police administrative system
so
as
to
secure
its
professional
independence
and
to
provide
a
supervisory
mechanism
which
may
dispense with unhealthy interference,
influences and pressure in the matter of
frequent and indiscriminate transfer of
3 All] Rishi Pal Singh V. State of U.P. and others
1013
officers of the police force on political
considerations.
The
Commission
so
appointed submitted various reports in
phases and the ultimate recommendation
was to the effect that the police force be
granted professional independence to
enable it to work impartially as an agent
of law so that the rule of law does not
become a causality and the offenders are
brought to book without any outside
pressure or influence. It was with this
object; to frame a new Act for the police
force as recommended by the National
Police Commission; and to constitute
various boards for the purposes of
ensuring that the police performs their
duties and functions free from any
pressure with the aim to serve the law of
the land and the people that guidelines
were issued by the Supreme Court in the
case of Prakash Singh (supra) till
appropriate legislation in terms of the
guidelines so issued is framed. One of the
guidelines so issued provided for the
creation of the Police Establishment
Board in each State comprising of
Director General of Police and four other
senior officers of the department to decide
about the transfer, promotion and posting
and other service related matters police
officers up to a particular rank. Thus, in
pith and substance the idea behind the
creation of Police Establishment Board is
to avoid frequent and indiscriminate
transfers of the police officers at the
behest of the Government. The guidelines
issued by the Apex Court though
mandatory but cannot be interpreted like a
statute and in case the guidelines are
principally followed and implemented in
the true tenor as per the ratio decendi of
the Prakash Singh case (supra) there
would be no error in the constitution of
the Board.

10. In view of the object behind
issuing the guidelines in the case of
Prakash Singh (supra) it is obvious that
the purpose is to streamline the police
administration and to make the police
force more efficient, free from all outside
pressure,
particularly
from
the
Government side. Thus, the constitution
of the Board which includes senior
officers of the Police Department having
specialised knowledge of the police
administration is sufficient compliance of
the guidelines so issued by the Apex
Court. The non-inclusion of the Director
General of 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.

11. Reliance has been placed upon a
decision of a learned Single Judge of the
Lucknow Bench of this Court in Civil
Misc. Writ Petition No.1525 of 2009
Sunder Singh Solanki Vs. State of U.P.
and others decided on 4.9.2009 to the
effect that the State or its instrumentality
have not no right to avoid the directions
issued by the Hon'ble Supreme Court.

12. The aforesaid decision, in no
way helps the petitioner, inasmuch as the
guidelines/directions so issued by the
Apex Court have not been flouted and
rather have been carried out in its true
character and nature.

13. The Secretary, Government of
Uttar Pradesh vide letter dated 12.8.2009
has further provided that the decisions
taken by the Board so established are
ultimately to be further approved by the
Director General of Police before passing
of
any
order
by
the
superior
officer/authority concerned. This is to put
1014 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
a further check on the exercise of any
power in the matter of transfer, promotion
and posting of the officers of the police
force.

14. In view of the aforesaid direction
so issued providing for further approval of
the Director General of Police the
irregularity, if any, in the constitution of
the Board stands cured and the transfer
would not stand vitiated on account of
non constitution of the Board strictly in
accordance with the guidelines of the
Supreme Court. It is not the case of the
petitioner that the approval of the Director
General of Police was not taken before
affecting the transfer. In my opinion,
therefore, there is no substance in the
above argument.

15. Besides the above, in the counter
affidavit in paragraph 12 it has been
stated that the Supreme Court itself has
subsequently appointed a Committee
under the Chairmanship of Hon'ble Mr.
Justice K.T. Thomas, retired Justice of the
Supreme
Court
to
supervise
the
implementation of the guidelines laid
down in the case of Prakash Singh
(supra). The said Committee has not
pointed
out
any
defect
in
the
implementation of the guidelines by the
State of U.P. or in the constitution of the
Police Establishment Boards in U.P.
Thus, when the Apex Court itself is
monitoring the implementation of the
aforesaid guidelines through a Committee
appointed for the purpose, the petitioner is
no one to complain that the Board is not
properly constituted by means of this
petition and the proper forum, if any, for
the petitioner to raise the issue either
before the said Committee or to approach
the Supreme Court itself.

16. In the aforesaid facts and
circumstances, in so far as the police
Establishment Board that has granted
approval to the transfer of the petitioner is
concerned has subserved the object with
which the guidelines were laid down by
the Supreme Court, 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.

17. 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 guidelines
cannot be a subject of consideration by
this Court.

18. The second argument from the
side of the petitioner is that the transfer of
the petitioner is in violation of the
Government Policy dated 6.6.2009 as
there is no approval of the Chief Minister.

19. Learned Standing Counsel, to
counter the said argument, has submitted
that the transfer policy is not binding in
nature and otherwise also the aforesaid
transfer policy is not applicable to the
Police Department. In this connection he
has placed reliance upon Annexure CA -
3 to the counter affidavit which is a
Government Order issued by the Special
Secretary,
U.P.
Government
on
15.10.2009 clarifying that the Police
Department is free from the transfer
3 All] Rishi Pal Singh V. State of U.P. and others
1015
policy dated 6.6.2009 right from the
inception of the policy.

20. In one of the writ petition i.e.
Civil Misc. Writ Petition No.51317 of
2009 (Narendra Sharma Vs. State of U.P.
and others) involving the officers of the
police department I had earlier referred
the matter with regard to the binding
nature and enforceability of the said
transfer police to a larger Bench vide
order dated 12.10.2009 but as to whether
the said transfer policy is applicable to the
police department or not is another
question which I am called upon to
examine herein.

21. The service conditions of the
police officers, both gazetted and non
gazetted are covered by the Police Act,
1961 and the U.P. Police Regulations
which are said to have been framed under
the said Act. The aforesaid Act and the
Regulations
provide
a
complete
mechanism for the transfer of the police
personnel. Further, the said mechanism
has been strengthen by the guidelines
issued by the Supreme Court in the case
of Prakash Singh (supra). The said
guidelines read with the provisions of the
aforesaid Act and Regulations completely
occupy the field leaving no scope for the
Government to supplement them by any
Government Order, Circular or any policy
decision. Therefore, any policy decision
governing the matter of transfer of police
officers would not override the statutory
provisions and the guidelines of the
Supreme Court which are quasi legislative
and of mandatory nature. The said policy,
as such is ex facie of a general nature and
is applicable only to those departments
where there are no service rules and the
field is not occupied. If it is allowed to
run parallel it would be in direct conflict
with the Regulations and guidelines of the
Supreme Court. Accordingly, the said
policy which is of general nature cannot
be applied to the police department.

22. The above view taken by me
also finds support by a decision of another
Single
Judge
of
this
Court
dated
15.10.2009 passed in Civil Misc. Writ
Petition No.51998 of 2009 Constable 289
CP Tahsildar Singh and others Vs. State
of U.P. and others where dealing with a
similar controversy in relation to transfers
involving officers of U.P. Police it was
observed that the transfer of officers of
the police force are governed by the U.P.
Police Regulations framed under the
Police Act of 1961 and it is well settled
that executive instruction or order cannot
prevail over the statutory provision and
therefore, the Government Order dated
6.6.2009 would be inoperative and
inconsistent to the said Regulations.

23. It is for this reason that the
Government issued a clarification on
15.10.2009 vide Annexure - 3 to the
counter
affidavit
that
the
police
department is not outside the preview of
the transfer policy dated 6.6.2009.

24. Next submission of the learned
counsel for the petitioner is that the
transfer of the petitioner is a colourable
exercise of power, inasmuch the same has
been made on caste basis. He has
submitted that from the western districts
of U.P., namely, Gautam Budh Nagar,
Ghaziabad, Baghpat, Meerut, Muzaffar
Nagar,
Saharanpur
only
Constables
belonging to Jat and Gurjar community
alone have been picked up and transferred
to other districts.
1016 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
25. As far as the petitioner is
concerned, he has been transferred from
Gautam Budh Nagar to Mau. It has come
on record that from the district Gautam
Budh Nagar only six transfers have been
made out of more than 2000 police
officers of sub-ordinate rank posted in the
district. Thus, the number of officers
transferred out of the district is negligible
and on its basis it cannot be even
imagined that any discrimination in the
matter of transfer has been practised on
the basis of caste.

26. In the first supplementary
affidavit a completely vague averment has
been made that from the Meerut Zone
about 400 Police Officers have been
transferred in September, 2009 and
approximately all of them belong to a
particular community. In the second
supplementary affidavit, it has been stated
that approximately 250 Police Officers of
a particular community are transferred
from Meerut Zone in September, 2009.
These two averments are contradictory to
each other and cannot be reconciled.
Further, as per the averments made in the
second supplementary affidavit, the total
number of police officers posted in a
particular district and the number of
police officers transferred is as under:

District

Total number
of
Police
Officers
Number
of
Police Officers
of a particular
community

Number
of
transferred
Police Officers
of
particular
community

Meerut
1500

22% i.e. 330

65

Saharanpur

1275

20% i.e. 255

60

Baghpt

360

32% i.e. 115

24

Muzaffar
Nagar

1250

25% i.e. 312

59

27. The number of officers so
transferred
appears
to
be
quite
insignificant looking to the number of
officers posted in each district.

28. The learned Standing Counsel in
this regard rightly submits that the process
of transfer is not complete and the
possibility of transfer of others officers
which may include those of other
community cannot be ruled out. In such a
situation, in the absence of a clear cut
averment as to why the department, rather
the high level committee i.e. Police
Establishment Board, would choose and
transfer the police personnels of a
particular
community
alone,
the
contention that the transfers are in
colourable exercise of power is general in
nature and too remote to be accepted.

29. Apart from the above, Police
Force is a disciplined force established for
the purpose of maintaining law and order
and for investigation of crimes. Therefore,
in order to maintain strict discipline,
sometimes whole sole transfers are
necessary in administrative exigencies. It
is a common phenomena that in such
circumstances a whole Battalion or a
Brigade or a Regiment is transferred,
which
may
include
generally
Constables/Sepoys of a particular caste. In
Army particularly there are specific
Regiments for Jats, Gorakhas and Sikhs
etc. Thus, where the Regiment as a whole
is transferred it would result in the
transfer
of
persons
of
particular
community alone but such a transfer
cannot
be
faulted
on
account
of
arbitrariness or discrimination.

30. Sri Vijay Gautam, learned
counsel for the petitioner has placed
reliance upon a decision reported in
3 All] Naik R.K. Mahapatra V. Chief of Army Staff and others
1017
2003(1) UPLBEC 636 Bishan Pal Malik
and others Vs. State of U.P. and others
in support of the contention that the
transfer on caste basis is a colourable
exercise of power. In the aforesaid case,
though the transfers were said to have
been made in administrative exigencies,
the Court found that the purpose was
actually to flush out the officers belong to
a particular caste due to out come of an
action which involved the father of the
Chief Minister. However, in the present
case no such incident has been placed on
record on the basis of which it can be
imagined that the transfer of the police
officers of a particular community is
tainted with ulterior motive.

31. In the last, a faint submission has
been made that the impugned order of
transfer of the petitioner is punitive in
nature as is apparent from paragraph 5 of
the counter affidavit.

32. A perusal of the aforesaid
paragraph reveals that the petitioner had
remained posted for 25 years in the
adjoining districts of Bulandshahr and
Ghaziabad. He was involved in case
crime no.983 of 2008 u/s 379 IPC
pertaining
to
demand
of
illegal
gratification
in
respect
whereof
an
enquiry was conducted and a censure
entry was awarded to the petitioner. It is
in view of above circumstances and the
conduct
of
the
petitioner
that
a
recommendation for his transfer was
made, which on being approved by the
Board has been implemented. Neither the
impugned order of transfer nor the above
paragraph 5 of the counter affidavit is
stigmatic or punitive in nature. It only
narrates the basis of award of censure
entry to the petitioner which may have
formed one of the grounds for his transfer.
Obviously, transfers have to be made on
consideration of certain aspects and the
past record of the petitioner as such
becomes an essential aspect within the
domain
of
administrative
exigency.
Therefore, even if such an entry has
formed a part of decision making process
it can not be said to be objectionable. It is
a well recognised principle of law that the
legality of the order has to be judged
independently only on the basis of the
reasons mentioned in the order itself and
more reasons can not be supplemented by
material other than the order itself.

33. In view of the above discussion,
I am not inclined to exercise my extra
ordinary discretionary jurisdiction under
Article 226 of the Constitution so as to
interfere with the impugned order of
transfer. There is no merit in the petition
and it is accordingly dismissed with no
order as to costs. Petitioner is permitted to
join at the transferred place within a
week.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.10.2009

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 60367 of 2005

No.63829833 Naik R.K. Mahapatra

 ...Petitioner
Versus
Chief of Army Staff and others

 ...Respondents

Counsel for the Petitioner:
Sri Colonel Ashok Kumar
Sri Rohit Kumar

Counsel for the Respondents:
Sri K.C. Sinha, A.S.G.I.