Sudhir Agarwal - (1.) HEARD Sri Vijay Gautam for the petitioners and Sri M.C.Tripathi, learned Additional Chief Standing Counsel alongwith Piyush Shukla, learned Standing Counsel for the respondents. With the consent of the learned counsel for the parties, all the petitions, which involve a common question of law and fact, are being decided finally at this stage under the Rules of the Court.
(2.) THE petitioners in this bunch of writ petitions are either Sub-Inspector or Constables in U.P. Police Force and have been transferred from one place to another by various orders of transfer which are impugned in these writ petitions. Sri Vijay Gautam, learned counsel for the petitioners assailed before this Court the impugned orders of transfer only on the ground that the same have been passed without obtaining any approval whatsoever from the Police Establishment Board pursuant to the Apex Court decision in Prakash Singh v. Union of India, (2006) 8 SCC Una Full decision of this Court in Vinod Kumar v. Stete of U.P. and others, 2010 (7) ADJ 315, this Court in paras 20 and 21 has observed : "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." Sri Gautam very fairly stated that so far as the power of the respondents to transfer the petitioners under the Regulations is concerned, Regulation 520 and onwards under Chapter 20 of the Regulation are applicable to the transfer of the police officers and therefore, it cannot be said that the orders of transfer are in violation thereof. But so long as no consultation/approval of police establishment Board is obtained, to this extent the orders of transfer cannot be said to be valid.
(3.) SRI M.C. Tripathi, learned Addl. Chief Standing Counsel submitted that in view of the Full Bench decision since the matter of approval of Police Establishment Board has been held to be a mere irregularity, it is submitted that in cases where the approval of the Board is not already obtained, if it is obtained postfacto, it will validate the orders of transfer and the orders of transfer, itself, merely for this reason cannot be held to be illegal. Sri M.C. Tripathi, learned Addl. Chief Standing Counsel, further submitted that so far as the approval of the Police Establishment Board is concerned, in case an order of transfer has been passed without such approval, it would only render the transfer order inoperative since lack of approval would be mere irregularity and it can be obtained later on. Hence it would not vitiate the order as such in its entirety to the extent of making it illegal and void ab initio. He submitted that cases in which mere approval is required and that is not the kind of "prior approval" contemplated by statute, the effect of not obtaining approval is only that, the order may not be given effect to till such approval is obtained and as and when, approval is obtained, from that date and onwards, the orders shall render valid and operative. He submits that in the Full Bench decision, this aspect of the matter has not been considered and in the present case he has no objection if the orders of transfer of the petitioners are made inoperative by this Court till approval, if any, is obtained by the Department from Police Establishment Board and thereafter the Department may be left free to give effect to such orders of transfers accordingly.;