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BASHISHT SINGH YADAV versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Bashisht Singh Yadav v. State Of U.P. And Others - WRIT - A No. 18354 of 2007 [2007] RD-AH 7066 (18 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

RESERVED ON 16.04.2007

DELIVERED ON 18.04.2007

Misc. Writ Petition   No.  18354   of  2007

Bashisht Singh Yadav  ............................................    Petitioner

Versus

State of Uttar Pradesh & others   ........................          Respondents

....................................

Hon'ble Ashok Bhushan, J.

Heard Sri Ashok Khare, Senior Advocate appearing for the petitioner,  learned standing counsel  has appeared for the respondents,  Sri B. N.  Singh for respondent no. 2 and Sri Ravi Kiran Jain, Senior Advocate for the respondent no. 5.

This writ petition  has been filed by the petitioner  challenging the transfer order on the ground that the said transfer order  has been passed at the instance of respondent no. 4  due to the fact  that the petitioner arrested the brother of the respondent no. 4 on 3rd of April, 2007 in case crime No. 36 of 2006 registered  against him.  He submits that the fact that on the same day arrest  was made and transfer order was issued clearly indicates  that the transfer order was at the instance of respondent no. 4.  Learned standing counsel  filed an affidavit bringing on record the facts and circumstances under which the transfer order dated 3rd of April, 2007 was passed.  In the affidavit filed on behalf of the State, a letter dated 29.3.2007 of the Deputy Superintendent of Police has been brought on record in which recommendation was sent for transfer of the petitioner along with other persons.  The District Magistrate as well as the Senior Superintendent of Police   vide their letter dated 31.3.2007 wrote to the  Chief Election Officer, Allahabad seeking permission for transfer.  The letter dated  3.4.2007 of the Additional  Chief Election Officer has been brought on record by which the proposal for transfer was approved.  

Learned counsel for the petitioner has filed rejoinder affidavit to the affidavit filed by the State.  It has been stated in the rejoinder affidavit that the allegations against the petitioner are not correct.  It is stated that  in case any complaint was made an enquiry ought to have been held. It has been further stated that the petitioner  has been removed from an office of distinction  which is punishment  as provided under Section 7 (d) of the Police Act, 1861.

Learned counsel for the petitioner in support of the writ petition  contended that the transfer of the petitioner has been affected on the basis of incorrect allegations  with regard to which no enquiry was held.  In view of the facts brought on the record by the  State  that the proposal for transfer of the petitioner was submitted  on 31st March, 2007, the ground taken in the writ petition  that the transfer has been affected  due to arrest of the brother of the respondent no. 4, has not been pressed.  Learned counsel for the petitioner further contended that the transfer of the petitioner in effect is removal of the petitioner  from an office of distinction which is nothing  but a punishment.  He submits that no procedure having been followed for removal of the petitioner from the office of distinction, the transfer order is bad in law.  Reliance has been placed on Division Bench judgement  of this Court reported in 1975 A.L.J.  page 223 Deputy Inspector General of Police and another  Versus  Ram Aqbal Tewari.  

Learned standing counsel appearing for the respondents supported the transfer order and contended  that no error has been committed  in transferring the petitioner.  He submits that the reports were  received from the Local Intelligence Unit that unless the petitioner is transferred free and fair assembly election are not possible.   He submits that  prior approval  of the  Chief Election Officer has been obtained which is required in accordance with the instructions of the Election Commission of India. Sri  B. N. Singh appearing for the respondent No. 5  contended  that the permission has been granted for transfer of the petitioner by the respondent no. 2 under the instructions issued by the Election Commission of India.   He submits that the transfer  of large number of police personnel  were made on the basis of  instructions issued by the Election Commission of India   which transfer was challenged by several police personnel in writ petition  No. 4142 of 2007 which has been dismissed by a learned Single Judge  vide judgement   dated 1.2.2007 against which Special Appeal No. 171 of 2007 has been filed which, too, was dismissed on 12.2.2007.

I have considered the submissions and perused the record.

It is well settled that the transfer is an incidence of service and this Court  normally does not interfere  with the transfer orders unless the transfer order has been  mala fide  passed  or has been passed in violation of statutory provisions. The apex Court in  Smt. Shilpi Bose  Versus    State of Bihar  reported in  A.I.R. 1991 SC  532 lays down as follows :-

"In our opinion the Courts should not interfere with a transfer order  which are made in public interest  and for administrative reasons in unless  the transfer orders  are made in violation of any mandatory statutory rule or on the ground of mala fide.  A Government servant holding a transferable post has no vested  right to remain posted at one place or the other, he is liable to be transferred  from one place to the other.  Transfer orders issued by the Competent  Authority  do not violate  any of his legal rights.  Even if a transfer order is passed in violation of Executive instructions or order.  The Courts ordinarily should not interfere with the  orders instead  affected partly should approach the higher authorities in the Department."  

There is no material on record to establish any mala fide  while passing the transfer order.  The case of the petitioner  as raised in the writ petition  that the transfer order  has been passed at the instance of  the respondent no. 4 due to arrest of her brother on 3rd of April, 2007, has not been pressed  in view of the facts which have come on record by way of affidavit of the State.

After elections were announced the Election Commission issued several directives for regulating free and fair assembly election.  In the directives issued by the Election Commission the transfer of police personnels of the category  as enumerated in the direction, cannot take place without approval of the  Election Commission/ Officers authorised for the purpose.  The direction of the Election Commission to obtain approval  of transfer  of such category is with object and purpose  of conducting free and fair assembly election  and is a restraint  to State authorities from transferring  the officers and employees as and when  it pleases.   The fact that the  Officer of the Election Commission has considered the proposal  sent by the District Magistrate and has approved  the same, do indicate that the justification  for transfer of the petitioner was  found.  The transfer of the petitioner having been affected in accordance with the guide lines  of the Election Commission of India , no case for any breach of any statutory provision is made out.

The submission of the petitioner is that enquiry ought to have been initiated in case complaints were received.  Suffice it to say that the  decision to transfer  an employee is an administrative decision in exigency of service.  The direction  of the Election Commission of India  for  affecting the transfer has been followed since the requisite approval has been obtained.   The Election Commission of India  is entrusted with constitutional obligation to conduct free and fair assembly election.  The State authorities  are also to  act and conduct themselves in a manner to ensure free and fair assembly election.  No exception can be taken to the action of the respondents in transferring the petitioner on administrative ground with object  of ensuring free and fair assembly election in the place concerned. It  was not mandatory  for the respondents to conduct disciplinary enquiry  and await the said disciplinary enquiry  before taking decision to transfer even on administrative ground.

The next submission of the counsel for the petitioner that the petitioner who was In-charge of the Police Station, has been removed from the office of distinction and is deprived of special emoluments hence it is punishment under section 7 (d) of the Police Act, is to be considered. Section 7 (d) of the Police Act  contains the heading " Appointment, dismissal, etc. of inferior officers".  Section 7 enumerates the punishment.   Section 7 is quoted below :-

"7. Appointment, dismissal, etc. of Inferior Officer,___  Subject to provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time make under this  Act, the Inspector General, Deputy Inspectors General, Assistant Inspectors General and District Superintendents  of Police may at any time dismiss, suspend or reduce any police officer of the subordinate ranks whom they shall think fit remiss or negligent in the discharge of his duty or unfit for the same;

or may award any one or more of the following punishments to any police officer of the subordinate ranks who shall discharge  his duty in a careless or negligent manner, or who by any Act of his own shall render himself unfit for the discharge thereof namely;

(a) fine to any amount not exceeding one month's salary;  

(b) confinement to quarters for a term not exceeding fifteen days, with or without punishment___ drill, extra guards, fatigue or other duty;

(c)  deprivation of good conduct pay;  

(d) removal from any office or distinction or special emolument.

(e) withholding of increments or promotion including stoppage at an efficiency  bar."

A bare perusal of Section 7 of the Police Act itself indicates that the said provision is subject to provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time make  under the Act.

The rules have been framed by the State Government in exercise of powers Under Section   7 namely the U.P. Police Officers of Subordinate  Ranks (Punishment and Appeal) Rules, 1991 .  Rules 1991 enumerates the  punishment  under rule 4 which is quoted as  below :-

"4. Punishment,___  (1) The following punishments may, for good and sufficient reasons and as hereinafter provided, be imposed upon a Police Officer namely :---

(a) Major Penalties :-

(i) Dismissal from service,

(ii) Removal from service.

(iii) Reduction in rank including   reduction to a lower scale or to a lower stage in a time scale.    

(b) Minor penalties :-

(i) With-holding of promotion

(ii)Fine not exceeding one month's pay,

(iii)With-holding of increment, including stoppage at an efficiency   bar.

                    (iv) Censure

(2) In addition to the punishments mentioned in sub-rule (1) Head Constable  and Constables may also be inflicted with the following punishments :-

(i) Confinement to quarters (this term includes confinement to Quarter Guard for a term not exceeding fifteen days extra guard or other duty),

(ii)Punishment Drill not exceeding fifteen days;

(iii) Extra guard duty not exceeding seven days;

(iv) Deprivation of good conduct pay.

(3) In addition to  the punishments mentioned in sub-rules (1) and (2) Constables may also be punished with Fatique duty, which shall be restricted to the following  task:

(i) Tent pitching;

(ii) Drain digging;

(iii) Cutting grass, cleaning  jungle and picking stones from parade grounds;

(iv) Repairing huts and butts and similar work in the lines;

(v) Cleaning Arms."

Under Section 7 (d) one of the punishment  was removal  from any office  of distinction or special emolument.  The said punishment  no longer finds place under rule (4)  of the U.P. Police Officers of Subordinate  Ranks (Punishment and Appeal) Rules, 1991  whereas all other punishments which were  mentioned  finds place in  rule (4).  The removal from any office of distinction or special emolument is not enumerated  in 1991 Rules.  The special  emolument /allowance , if any,  is necessary consequence  of particular posting  which follow from the posting itself.  The change of such posting automatically  changes the special emolument/allowance  attached to the said posting.

Moreover the apex Court in  State of Uttar Pradesh & others  Versus   Jagdeo Singh   reported in AIR 1984 SC 1115 after considering  Section 7 (d) of the Police Act has laid down that said provision applies only when the  transfer  is made as punishment.   Every transfer  may be of  a Station House Officer does not amount to punishment even if  it involves the loss of special emolument.  Following was laid down in paragraph 3 of the judgement :-

"3.  We must make it clear that any and every transfer of a police officer from one police station to another will not amount to punishment , even if it involves the loss of a special emolument.  If a police officer  is transferred from one charge  to another  in the ordinary course on administrative exigencies, the provisions of Section 7 of the Police Act  will not be attracted because a transfer simpliciter  is not punishment.  It  is only when  the transfer  is made by way of punishment , as in the instant case, that Section 7 would  come into play."    

In the present case the transfer of the petitioner from police station Civil Lines to Police Liens has been ordered in administrative exigencies   and not as a measure of punishment.  The present case  is fully covered under paragraph 3 of the aforesaid judgement of the apex Court.  Thus the submission of the learned counsel for the petitioner on ground of violation of Section 7(d) of the Police Act cannot be accepted.  

The Division Bench judgement relied by the counsel for the petitioner in Deputy Inspector General of Police  (supra) was a case where the Division Bench considered Section 7 (d) of the Police Act, 1861.  The Division Bench noticed in the said judgement regulations 478 and 478-A of the Police Regulations which do not prescribe any statutory procedure  for imposing  any punishment mentioned in Section 7 (d). Now after  1991 Rules special statutory procedure is provided  for imposing punishment and the punishment has also been enumerated.  After enforcement of 1991 Rules the procedure  for awarding  punishment, the nature of punishment has gone substantial change and the said Division Bench judgement does not help the petitioner  the enforcement  of 1991 Rules.

In view of foregoing discussions I do no find any error in the transfer order.  The writ petition  lacks merit and is summarily dismissed.

D/-18.4.2007

SCS


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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