SHISHIR KUMAR, J. - (1.) THESE are three connected writ petitions involving same question and based on same facts, therefore, they are being taken together and are being decided by a common judgment. Civil Misc. Writ Petition No. 49064 of 2004 is being treated as leading case.
(2.) BY means of the present writ petition, the petitioner has approached this Court under Article 226 of the Constitution of India against the order dated 8 -11 -2004 (Annexure -1 to the writ petition) by which the petitioner has been transferred from Traffic Police, Ghaziabad to Provincial Armed Constabulary (P.A.C.) Headquarters, Lucknow. The case of the petitioner is that he is working in the traffic police posted at Ghaziabad as such the Inspector General of Police/ Director Traffic, Uttar Pradesh is not the competent authority to transfer the petitioner out of his parent cadre. It has also been submitted that the impugned order of transfer is without jurisdiction, as such, the same is void. From the perusal of the order of transfer, it is clear that the petitioner has been transferred out of his parent cadre without any administrative exigency or public interest as such the order of transfer itself reveals the arbitrariness in passing the order as such the same is liable to be quashed. It has been submitted by the petitioner that the petitioner was appointed as a Constable in the year 1981 and after completion of his graduation the petitioner was promoted on the post of Head Constable in the year 1988 and after qualifying the necessary examination, the petitioner was promoted on the post of Sub -Inspector in the year 1993 and thereafter the petitioner was posted as Sub -inspector District, Ghazipur in the year 1994. In the year 1999, the Inspector General of Police Traffic published a memorandum for Traffic Inspector in the Traffic Police for Sub -Inspectors who qualify necessary qualifications like less than 40 years of age and have completed three years in armed police as Sub -Inspectors. The petitioner along with others applied for Traffic Sub -Inspector and, after qualifying interview, was selected among 51 selected Sub -Inspectors in 125 candidates. Then the petitioner was sent for Traffic Training at Armed Training Centre and then the petitioner was posted as Traffic Sub -Inspector in the year 1999 at Allahabad and then transferred to various places and in the year 2001, the petitioner was transferred to Ghaziabad as Traffic Sub -Inspector. An order has been passed by the respondent No. 3 by which the petitioner has been transferred from Traffic Police, Ghaziabad to provincial Armed Constabulary (P.A.C.), Head Quarters Lucknow. The petitioner states that the said order of transfer is illegal and without jurisdiction. The case of the petitioner is that the petitioner was duly appointed Sub -Inspector of district Police cadre and as such he is entitle to be transferred within the State as per administrative exigencies from one district to another within the parent cadre. But when the respondents wanted to transfer him out of his cadre picked up the petitioner, no option was taken by the respondents prior to passing the impugned order of transfer nor ever look his consent. It has been submitted that the cadre of the petitioner is different than the cadre of P.A.C. hence the petitioner has been transferred to an ex -cadre post, which is impermissible in law. As 'Cadre' is defined in Fundamental Rule 9(1) of the Financial Hand Boom Volume -II, Para -6 to meaning the strength of service of part of service sanctioned as separate unit. In view of the said expression, the District Executive Force and the Provincial Constabulary (P.A.C) are two distinct and separate cadres for units and if at point of time under the cadre of administrative exigency, transfer of persons from District Executive Force to provincial Armed Constabulary is required the same cannot be done without obtaining the willingness or consent of the person concerned. The impugned order transferring the petitioner from District Police cadre to P.A.C has been passed without asking for the consent of the petitioner and as such the same is bad in law. It has also been submitted by the petitioner that prior to the transfer of the petitioner from District Police Cadre to P.A.C no sanction of the Director General of Police has been taken and the petitioner has been picked up arbitrarily for transfer to another cadre by the respondent authority. The respondent No. 3, Inspector General of Police Traffic U.P., Lucknow is not a competent authority to pass the impugned order and as such the order of respondent No. 3 is without jurisdiction and as such is not sustained in the eye of law. It has also been argued on behalf of the petitioner that the impugned order of transfer has been passed without any administrative exigency or public interest, which reveals the arbitrariness and irregularity in passing the order, hence the same is liable to be quashed.
(3.) THE Standing Counsel was granted time to file the counter affidavit annexing therewith the relevant document to show whether the order, which has been passed, is according to law or not. A detailed counter affidavit has been filed and the rejoinder affidavit has also been filed on behalf of the petitioner.;