- (1.) Since all the aforesaid special appeals are identically placed as are arising out of similar orders of learned Single Judge, the same have been heard analogously and decided by this common judgment and order, which will have binding effect in all the special appeals.
(2.) The Appellants herein are either Constables and/or Head Constables and/ or Sub-Inspectors in the Uttar Pradesh Police. They, by means of their respective writ petitions challenged their orders of transfer taking a common plea that when the Police Establishment Board as per the direction of the Supreme Court in Prakash Singh and Ors. v. Union of India and Ors., 2006 8 SCC 1, has not been properly constituted by the State, the transfer orders are illegal in nature, therefore, no effect of the same can be given. Learned Single Judge, by the respective orders impugned in these appeals, allowed the writ petitions and set aside the orders of transfer. Against such orders of learned Single Judge, the State of Uttar Pradesh has preferred these appeals before this Court.
(3.) At the initial stage, when no body appeared for the Respondents-writ Petitioners in the special appeals in spite of repeated calls, this Court was compelled to proceed on the basis of the materials available before it and was about to pass a final order but in order to give further opportunity to the non-appearing parties, a reasoned interim order was passed with a direction to inform the other side that in case he or they do not appear on the next day, the Court will proceed independently. The order of this Court dated 16th November, 2010 passed at that stage is as follows: Since all the aforesaid special appeals arising out of similar order of learned Single Judge are identically placed, the same are being taken up together. For the purpose of convenience, Special Appeal No. 1837 of 2010 is taken up as leading one and the order passed in such appeal will be applicable in other special appeals also. This Special Appeal No. 1837 of 2010 is arising out of an order passed by the learned Single Judge on 7th October, 2010 in Civil Misc. Writ Petition No. 49988 of 2010 (1155/379, C.P. Ravindra Singh and Ors. v. State of U.P. and Ors. following the earlier order of the learned Single Judge passed in Civil Misc. Writ Petition No. 56648 of 2010, Sanjay Kumar Tripathi v. State of U.P. and Ors. dated 7th October, 2010. By the impugned order in this appeal the learned Single Judge set aside the transfer order of the incumbents/writ Petitioners, who are employed in the police establishment, from one place to other. Normally, this Division Bench does not interfere with the order of transfer and usually passes the following order: Transfer is an incident of service. It should not be interfered with unless there is apparent illegality, mala fide or cause of exceeding jurisdiction. This is not such a case. Therefore, we do not want to interfere with the same. However, subject to joining of the Petitioner in the transferred place he/ she will be entitled to place his/her representation to the appropriate authority about his/her personal inconvenience for the purpose of due consideration, who will do the same sympathetically and take a decision preferably within one month from the date of making such representation upon giving fullest opportunity of hearing and by passing a reasoned order thereon. For the purpose of effective adjudication a copy of the writ petition and its annexures can be treated as part and parcel of the representation. The writ petition is, thus, disposed of. No order is passed as to costs. Learned Single Judge interfered with the order of transfer on the basis of ratio of the judgment of the Supreme Court in Prakash Singh and Ors. v. Union of India and Ors., 2006 8 SCC 1, wherein the Supreme Court in disposing of the writ petition under Article 32 of the Constitution of India has held that 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 authorised 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. Learned Single Judge has held that while the Board is to be constituted by the four senior officers of the Department headed by the Director General of Police, it is to be followed in toto. But the same having not been followed, the order of transfer is liable to be set aside. According to learned Single Judge, the State Government has constituted the Board of officers headed by Regional Inspector General of Police/ Deputy Inspector General of Police and the Deputy Inspector General of Police posted in the range/Senior Superintendent of Police/Superintendent of Police (two of these by seniority) as Members. According to learned Single Judge, the Board constituted by the State is entirely different from the Board to be constituted under the directions of the Supreme Court. We find that about the transfer and formation of the Board two Division Bench judgments of this Court are available before us. The earlier judgment dated 09th February, 2010, in Shishu Pal Singh v. State of U.P. and Ors., 2010 3 ADJ 241 (DB), was delivered by the Division Bench presided over by one of us(Amitava Lala, J.) and the other judgment was delivered by another Division Bench of this Court on 28th May, 2010 in Special Appeal No. 850 of 2010, State of U.P. Through Section Karmik Anubhag Lko. and Ors. v. Jagannath Prasad Gaur and Ors. Since the second judgment i.e. Jagannath Prasad Gaur (supra) did not consider the ratio of the earlier judgment i.e. Shishu Pal Singh (supra), ultimately the matter was taken up by a Full Bench of this Court, when the Full Bench in its judgment dated 18th August, 2010 in Vinod Kumar (Constable 201) and Anr. v. State of U.P. and Ors., 2010 7 ADJ 315 (FB), held that the contrary view as taken by the Division Bench in Jagannath Prasad Gaur (supra) is overruled. At the time of considering the cause, the Full Bench has taken into account the ratio of the Supreme Court judgment in Prakash Singh (supra) and held as follows: 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. 22. The State has substantially complied with the requirement by enacting legislation, the only area, not covered by the State by such legislation, is Constitution of Board in respect of which, they have constituted the Boards in exercise of the executive power. The notification will continue to apply till the State makes a rule under Section 2 of the Police Act or any other provisions by enacting legislation to constitute the Boards. According to us, the specific direction of the Supreme Court in Prakash Singh (supra) is restricted with the officers below the rank of Deputy Superintendent of Police which may not be with regard to the Constables below the rank of the officers as it seems to be unfounded. Moreover, the Full Bench in Vinod Kumar (supra) held that when the State has formed a Board as per the rules, in constitution of the Board, if any, with the Chairman and Members there might be irregularity but not illegality. It is to be seen that not only there is a provision of appeal as per the Supreme Court judgment in Prakash Singh (supra) but if such type of disputes arise, it can be approved or ratified by the appropriate authority i.e. the Director General of Police, etc. In any event, direction given by the Supreme Court is in general but proper execution of the same will vary from State to State depending upon the number of staffs and other incidentals. Had it been a case that adjudication has been made by the members of the Board who are junior to the person, whose transfer has been adjudicated, it would have been the palpable illegality on the part of the authority. No such situation is contemplated hereunder. Moreover, in neither of the judgments it has been taken into account that ratio of the Supreme Court judgment is applicable to the officers below the rank of the Deputy Superintendent of Police alone or also upto the level of Constables, whose position cannot be equated with the officers. Against this background, we were about to finally dispose of the matter, but since inspite of notice and upon being repeatedly called none of the Respondents/writ Petitioners in any of the appeals appeared before this Court, instead of final disposal, we hereby give further opportunity directing the Appellants to serve notice upon ail the Respondents, in all the aforesaid special appeals, immediately, so that there should not be any delay in disposal of the matters. The appeals will once again appear for hearing on 30th November, 2010. In view of the aforesaid circumstances, in all the aforesaid appeals there will be an order staying operation of the order impugned passed by the learned Single Judge till further order/s to be passed by this Court. It is further noted that in spite of notice on the next date if any of such Respondents is not present then it will be construed that such absence is intentional in nature and the Court will proceed finally in spite of their absence.;