S.I.Shriram Shukla S/O Shri Dubar … vs State Of U.P.Through Its … on 2 February, 2010

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                                                                  Court No. 24

                Writ Petition No. 325 (SS) of 2010

S.I. Shriram Shukla                                 ......     Petitioner
                                     Versus
State of U.P. and others                            ....... Opposite parties

                                    ******
Hon'ble Rajiv Sharma, J.

Heard learned Counsel for the petitioner and learned
Standing Counsel.

Through the instant writ petition under Article 226 of the
Constitution of India, the petitioner has assailed the order of
transfer dated 13.1.2010 passed by the opposite party No.3-
Director General of Police, Uttar Pradesh, Lucknow, whereby the
petitioner has been transferred from Gonda to Shrawasti on the
ground of public interest.

Learned Counsel for the petitioner submits that the
petitioner, while working as Constable, has been transferred from
Gonda to Shrawasti by the impugned order dated 13.1.2010
passed by the opposite party No. 3-Director General of Police,
Uttar Pradesh, Lucknow, without following the guidelines laid
down by the Hon’ble Apex Court in Prakash Singh and others
versus Union of India and others [(2006) 8 SCC 1], wherein
the Hon’ble Apex Court had directed that the transfer orders shall
be passed by the Police Establishment Board itself meaning
thereby, the Board should apply mind with regard to transfer of
incumbent from one place to other but in the present case,
originally, the order of transfer was passed by the Deputy
Inspector General of Police.

Learned counsel for the petitioner has invited attention
towards para 31 (5) of the judgment of Hon’ble Supreme Court in
the case of Prakash Singh (supra). For convenience, relevant
portion of the said judgment is reproduced as under:

“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
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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
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 posting 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
promotion/ transfer/ disciplinary
proceedings or their being subjected to
illegal or irregular orders and generally
reviewing the functioning of the police in
the State.”

On the other hand, learned Standing Counsel does not
dispute that the impugned order of transfer has been passed by
the Police Establishment Board but it has been passed by the
Director General of Police, Uttar Pradesh, Lucknow on public
interest.

A plain reading of the aforesaid provision indicates that their
lordships at Hon’ble Supreme Court, have provided that the Board
in each State shall decide all transfers, postings, promotions and
other service related matters of officers of and below the rank of
the Deputy Superintendent of Police. There is lot of difference
between action taken by the decision making body and to place
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decision already taken before the said body for approval. The
letter and spirit of Hon’ble Supreme Court’s judgment is that the
decision should be taken by the Board itself. Meaning thereby, in
case the Government wants to transfer a police officer, then it
should refer the matter to the Board and the Board has to apply
its mind for transfer of the police officer from one place to other
keeping in view the fact and circumstances of a particular case. In
view of the above, the impugned order seems to be violative of
the judgment in the case of Prakash Singh’s case (supra). The
writ petition deserves to be allowed.

In view of above, the writ petition is allowed. A writ in the
nature of certiorari is issued quashing the impugned order dated .
13.1.2010 (Annexure-1). The opposite parties are given liberty to
send the proposal to the Police Establishment Board constituted in
pursuance to the judgment of Prakash Singh’s case (supra) and it
shall be open for the Police Establishment Board to pass a fresh
order.

Dated :2.2.2010
Ajit/-