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Umesh Kumar Sharma v. State Of U.P. And Others - WRIT - A No. 29013 of 2006 [2006] RD-AH 11562 (14 July 2006)


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Reserved Judgment

Civil Misc. Writ Petition No. 29013 of 2006

Umesh Kumar Sharma Vs. State of U.P. and others


Hon'ble A.P. Sahi, J

The petitioner, who has disclosed his age about 43 years in the Affidavit, has questioned the validity of the order dated 10.5.2006 whereby the petitioner has been transferred from civil police to Interstate Border Force under the orders passed by the Police Hqrs. through the Deputy Inspector General of Police (Establishment). The principal ground of challenge is that the petitioner belongs to the civil police which is a district cadre under the Uttar Pradesh Police Services and, therefore, his transfer to the Interstate Border Force amounts to conversion of his cadre which is impermissible by an administrative order and that the same is in violation of the guidelines framed by the respondents themselves.

To appreciate the controversy one has to necessarily refer to the Government Order dated 25.9.2002 whereby the Interstate Border Force came to be constituted by the State Government. A copy of the said Government Order is Annexure-2 to the writ petition. A perusal of the said Government Order clearly indicates that the constitution of the Interstate Border Force has been made under the provisions of the Police Act itself. This had become necessary because a police force had earlier been been constituted namely the U.P. State Nepal Border Police Force vide Government Order dated 19.4.1997, the utility whereof was no longer required in view of the fact that the Indo Nepal Border is now been petrolled and controlled by the Forces deployed by the Central Government. Therefore the force that was available for the Nepal Border Police was reconstituted for the purposes of protecting the borders of the State. This had become necessary on account of Interstate gangs operating and carrying out their nefarious activities which required immediate attention. The purpose for the constitution of the force has been given in detail in the operational instructions issued by the Inspector General of Police vide order dated 14/18.2.2003; copy whereof is Annexure-3 to the writ petition. Clause (1) which is a preface/introduction of the said instructions, states that a large number of dacoit gangs, terrorist infiltrations and unauthorized activities including economic offences have been on the rise which required immediate control and, as such, the Interstate Border Force was being constituted to cater to the aforesaid requirement.

The said instructions further indicate that the Force shall be functional in the same way as the Uttar Pradesh Nepal Border Police Force and it shall be constituted from amongst the police personnel belonging to the various cadres and branches of the existing Uttar Pradesh Police Force. This is provided in clause 6 of the said instructions. One of the limitations prescribed for transferring a person to such a force is that a personnel who has attained 55 years of age shall not be made a Member of this force. The other conditions are also referred to therein and the tenure of continuance in the said organization is 3 years subject to extension by 2 years. The service conditions of these police personnels will continue to be governed by 1991 Rules and after their completion of tenure, they shall be sent back to their original organization. Their repatriation to their parent organization would also be permissible in the circumstances indicated in clause 16 of the said instructions.

From a perusal of the said Government Order and the instructions, it is more than clear that no separate cadre is being created and that the constitution of the cadre is from amongst the existing cadre of U.P. Police. Section 2 of the Police Act 1861 clearly provides that the entire police establishment under a State Government shall for the purpose of the Act be deemed to be one police force and shall be constituted in such manner as shall from time to time be ordered by the State Government. The issuance of the Government Order dated 25.9.2002 and the operational instructions in pursuance thereof are, therefore, clearly within the power of the State Government and the contention raised on behalf of the petitioner that the constitution is not in accordance with the Police Act deserves clear rejection. None of the provisions as referred to herein above in any way indicate change of cadre as suggested by the learned counsel for the petitioner. It is a mere constitution of a special force within the State forces to tackle a particular mission as underlined in the instructions. In view of this, the submissions, advanced on behalf of the petitioner, cannot be accepted.

The orders of transfer have been issued by the Police Hqrs. and the Deputy Inspector General of Police (Establishment) is fully empowered to exercise such power. Learned counsel for the petitioner has failed to establish that the order is without jurisdiction. In such circumstances, the order of transfer of the petitioner Umesh Kumar Sharma does not suffer from any such infirmity nor it is in violation of the guidelines prescribed for the transfer of police personnels to the Interstate Border Force.

It is not the case of the petitioner that he is physically or medically unfit to discharge his duties in the Interstate Border Force.

Even otherwise transfer is an exigency of service and cannot be interfered with unless and until there is any violation of statutory rule or any proof of mala fides in view of the law laid down by the Apex Court in the case of Shilpi Bose Vs. State of West Bengal, AIR 1991 SC 532 and State of U.P. and others Vs. Gobardhan Lal, reported in AIR 2004 SC 2165. There is no violation of any statutory rule nor any  discernible elements of malafide in the present case.

The writ petition lacks merits and is, accordingly, dismissed.

Dt. June        2006



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