FERDINO I.REBELLO,CJ. - (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 Union of India [2006 (8) SCC 1) in exercise of power under Article 142 of the Constitution of India, are no longer applicable in view of what is set out in paragraph 31 of the judgment?"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 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." 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. and 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 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.
(3.) IN Civil Misc. Writ Petition No.25016 of 2010: Jagannath Prasad Gaur and others Vs. State of U.P. and 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.;