SUNIL AMBWANI, J. - (1.) HEARD Sri Jagannath Singh for petitioner and learned Standing Counsel for respondents.
(2.) A transfer order by which petitioner, working as Stenographer in the office of Superintendent of Police (Jamunapar), Allahabad, as Sub-Inspector (M) to P.A.C. Allahabad has been challenged on the ground that an officer working in ministerial branch of police force U.P. cannot be transferred, to Provincial Armed Constabulary and secondly on the ground that petitioner is suffering from heart trouble and has been advised treatment at Allahabad. It is contended by Counsel for petitioner that Deputy Inspector General of Police (Establishment), Police Headquarter, Allahabad has no power to transfer petitioner to P.A.C. and that such a power can only be exercised by Director General of Police, U.P. as provided in Regulation 525, U.P. Police Regulations. Petitioner has not been listed/enrolled under Section 4 of U.P. P.A.C. Act, 1948. A Government Order relied upon by the respondents cannot over-ride the provisions of Police Regulations made under the U.P. Police Act, 1861 inasmuch as the Government Orders and departmental instructions cannot over-ride statutory provisions of law. He has relied upon K. Kuppusamy and another v. State of Tamil Nadu and others, (1998) 8 SCC 469 and Union of India and others v. Arun Kumar Roy, (1981) 1 SCC 675, in support of his submission that statutory rules cannot be overridden by executive orders or executive practice and that a notification cannot over-ride statutory rules governing service condition of the employees. He submits that a representation has been made with regard to medical condition of petitioner which has not been considered by the respondents.
(3.) LEARNED standing Counsel has relied upon a notification dated 21/29 March, 1990 by which Director General of Police has, in exercise of powers under Clause-1 of Regulation 525 of U.P. Police Regulations delegated the powers of transferring a non-gazetted officers and employees of U.P. Police from one branch to another to Dy. Inspector General of Police (Personnel) Police Headquarter, Allahabad and has further delegated the powers of transfer of Head Constable/Constables level employees from one branch to another to Police Superintendent (Personnel), U.P. Police Headquarter, Allahabad. He has also relied upon a policy decision taken by Inspector General of Police (Personnel's) U.P. Police Headquarter, Allahabad dated 16-11-1989 to all the Zonal Police Inspector Generals/Police Inspector Generals, P.A.C., and others with regard to the period of posting from the non-gazetted officers and employees of police ministerial cadre with reference to his earlier letters dated 9-12-1985 and 25-1-1989. By these demi official circular letters it has been clarified that during the entire period of service employees of police ministerial cadre shall have to serve for a minimum period of 10 years in P.A.C. Battalions/Units to be divided in three stages namely 4 years in the first stage and 3 years in second and third stages, and that a posting of atleast three years shall be given at one place which could be extended upto 5 years. In paragraph 12 of this circular letter it has been provided that the orders of transfer to P.A.C. Battalion/Unit, shall be issued at the Central Level of Police Headquarter. These employees of ministerial staff shall be ordinarily allotted the concerned zone/P.A.C. Headquarter and thereafter the concerned Inspector General of Police, Dy. Inspector General of Police/P.A.C. shall allot to them the same D.I.G. area/sector who shall give them posting in the Districts and Battalions in their respective areas. In special circumstances the D.I.G. Police Headquarters, P.A.C. and D.I.G. Zone can directly transfer such officer/employees to the District/units.;