- (1.) Petitioners, who are members of police force and have been transferred from one district to another in the State of U.P., have rushed to this Court, questioning the validity of transfer orders. Along with the said challenge so made, the Petitioners have also proceeded to challenge the Government Orders dated 11.7.1986 and 19.2.2010 issued by the Secretary, Home, U.P. Government, Secretariat Lucknow and further prayer has been made to stay the effect and operation of Clause-5 of the Transfer Policy dated 21.4.2010 issued by the Chief Secretary, U.P. Government, Lucknow and for quashing of Clause 2(1) of the impugned order dated 25.3.2011 issued by the Inspector General of Police, Establishment, Lucknow.
(2.) Brief background of the case as reflected from the record is that in order to ensure police reform Hon'ble Apex Court, took the initiative and framed various guidelines in the case of Prakash Singh and Ors. v. Union of India, 2006 8 SCC 1. Pursuant thereto Police Establishment Board was constituted, and transfer was sought to be effected, based on the same, then writ petition was filed wherein interim order dated 7.5.2010 was passed. The State of U.P. filed Special Appeal No. 850 of 2010 against the grant of the said interim order. In Special Appeal, it was urged by learned Counsel for the Petitioners-Respondents that the constitution of the Board for transfer of Constables was not in accordance with the directions given by the Supreme Court in Prakash Singh (supra) as it was not presided by the Deputy Inspector General of Police but by Additional Director of Police. This contention was accepted in Special Appeal and the interim order was found to be justified for this reason. The relevant observations are as follows: We have given our thoughtful consideration to the various plea raised by the learned Counsel for the parties. We find that even if the learned Single Judge has stayed the order of transfer of the Respondents on the ground that the Board has not applied its mind and has acted mechanically, the issue raised by Sri Vijay Gautam, learned Counsel for the Respondents that the Board was not properly constituted, goes to the very root of the matter and if this Court comes to the conclusion that the Board was not properly constituted in terms of the direction given by the Hon'ble Supreme Court, the entire order of transfer stood vitiated. The order passed by the learned Single Judge would be justified, though on a different ground. In view of the foregoing discussions we are of the considered opinion that the Board which had considered and approved the transfer order in question was not constituted in accordance with the specific directions given by the Hon'ble Supreme Court and, therefore, the transfer order has not been passed in accordance with law.
(3.) This decision rendered in this Special Appeal was placed before another Division Bench hearing Special Appeal No. 1093 of 2010 which, after noticing the conflict of views in two Division Bench judgments of the Court in Shishu Pal Singh v. State of U.P. and Ors., 2010 3 ADJ 241 and Special Appeal No. 850 of 2010 State of U.P. and Ors. v. Jagannath Prasad Gaur and Ors., decided on 28th May, 2010 arising out of the interim order passed on 7th May, 2010 in this writ petition, referred the matter to the Full Bench 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 v. 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?;