1 Court No. - 27 Case :- SERVICE SINGLE No. - 3745 of 2010 Petitioner :- Hc 33 Ap Shatrohan Lal Mishra & Others Respondent :- State Of U.P.,Thru. Prin. Secy.,Home & Others Petitioner Counsel :- Mohd. Saulat Wasim,Mohd. Ali I Respondent Counsel :- C.S.C. Hon'ble Devi Prasad Singh,J.
1. Heard learned counsel for the petitioner and learned
Standing counsel and perused the records.
2. Present petition has been preferred under Article 226 of the
Constitution of India against the impugned order of transfer
passed by the Inspector General of Police concerned
transferring the petitioner from one place to another place. The
submission of the learned counsel for the petitioner is that the
order of transfer could not have been passed by the D.I.G.
keeping in view the mandate of Prakash Singh’s case reported
in 2006 (8) SCC 1, Prakash Singh Vs. Union of India.
According to case of Prakash Singh (supra) transfer could have
been done only by the Police Establishment Board constituted
by the State Government. Admittedly, the impugned order has
not been passed by the Police Establishment Board.
3. Though learned Standing counsel tried to defend his cause
stating that the order of transfer has been passed within the
range by the Deputy Inspector General of Police under Para
520 of the U.P. Police Regulation, but a plain reading of the
judgement of Prakash Singh Vs. (supra) shows that their
Lordship of Hon’ble Supreme Court had not differentiated the
transfer of police officer either within the range or outside the
range.
4. A faint argument has been advanced by the learned Standing
counsel that the case of Prakash Singh (supra) shall not effect
the statutory provisions like U.P. Police Regulation and
authorities have got power to transfer the police officer from one
place to other place.
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5. Arguments advanced by the learned Standing counsel
seems to be not correct. The case of Prakash Singh (supra)
has not been decided by Hon’ble Supreme Court by reviewing
an administrative order. Hon’ble Supreme Court had issued
direction in the case of Prakash Singh (supra) in pursuance to
power conferred by Article 142 of the Constitution of India in
public interest. The Police Regulation contains the compilation
of Government order issued in pursuance to power conferred
by the Police Act. Accordingly, in case the provision contained
in the Police Regulation is contrary to judgement of Hon’ble
Supreme Court then State Government have to amend the
Police Regulation in appropriate manner in conformity with the
judgement of Prakash Singh (supra).
6. Their Lordships of Hon’ble Supreme Court in catena of
judgements while interpreting the provision contained in Article
142 of the Constitution of India held that State or its
instrumentalities have got no right to avoid the direction issued
by the Hon’ble Supreme Court. Hon’ble Supreme Court further
held that where executive failed to fill up the gap in legislation
the judiciary have to step in. Direction issued by the Hon’ble
Supreme Court under Article 142 of the Constitution of India is
mend to do justice and it enlarges the power of Hon’ble
Supreme Court for making an order to do complete justice
between parties or in public interest vide (1984) 3 SCC 549,
Azhar Ali Khan V. Commr. Municipal Corpn. Of Delhi; (1998)
1 SCC 226, Vineet Narain v. Union of India; (2006) 2 SCC
677, Ramesh Kumari v. State (NCT of Delhi); (1993) 2 SCC
703, Kashinath G. Jalmi (Dr) v. The Speaker; (2006) 1 SCC
737, Raj Kumar V. Union of India; (1991) 4 SCC 584, Union
Carbide Corpn. v. Union of India; (2005) 3 SCC 284, Kalyan
Chandra Sarkar v. Rajesh Ranjan; (2003) 6 SCC 581; (1993)
4 SCC 119, R.K.Jain v. Union of India.
7. Apart from above every judgement and order passed or
issued by Hon’ble Supreme Court is binding on the State as
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well as subordinate court, authorities and Tribunal in view of
Article 141 of the Constitution of India. State or its
instrumentalities lacks jurisdiction to defy the judgement of
Hon’ble Supreme Court by interpreting the same in the way
which suits to them. For any ambiguity it is always open to the
State Government to approach Hon’ble Supreme Court for
clarification. So far as government or its instrumentalities,
subordinate courts, High Court and Tribunal are concerned they
have to abide by the direction issued by the Hon’ble Supreme
Court. Non compliance of judgement of Hon’ble Supreme Court
shall amount to committing contempt of Hon’ble Supreme
Court.
8. Accordingly, since U.P. Police Regulation contained the
Government order issued in pursuance to power conferred by
Section 2 of the Police Act it shall be appropriate for the State
government to make appropriate amendment in the U.P. Police
Regulation to mould it in conformity with the judgement of
Hon’ble Supreme Court in the case of Prakash Singh (supra).
9. In the Case of Prakash Singh (supra) with regard to
constitution of Police Establishment Board their Lordship of
Apex Court had issued the following direction; to reproduce:-
“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 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
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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.”
10. A plain reading of mandate of Hon’ble Supreme Court with
regard to Police Establishment Board shows that the Board
shall decide the transfers, posting, promotions and other
service related matters of officers of and below the rank of
Deputy Superintendent of Police. The Board shall comprise the
Director General of Police and four other senior officer of the
department. The decision of the Board may be interfered by the
State Government only in exceptional cases after recording
reasons.
11. In view of above, it is apparent that a decision should be
taken by the Board with regard to transfer, posting, promotions
and service related matters. It is not a body to approve the
decision taken by the state Government.
12. A part from constitution of Police Establishment Board
Hon’ble Supreme Court had also directed to constitute the
Police Complaints authority. Relevant portion is reproduced as
under:-
“Police Complaints Authority:
(6) There shall be a Police Complaints Authority at the
district level to look into complaints against police officers of
and up to the rank of Deputy Superintendent of Police.
Similarly, there should be another Police Complaints Authority
at the State level to look into complaints against officers of the
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rank of Superintendent of Police and above. The district level
Authority may be headed by a retired District Judge while the
State level Authority may be headed by a retired Judge of the
High Court/Supreme Court. The head of the State level
Complaints Authority shall be chosen by the State Government
out of a panel of names proposed by the Chief Justice; the
head of the district level Complaints Authority may also be
chosen out of a panel of names proposed by the Chief Justice
or a Judge of the High Court nominated by him.
These Authorities may be assisted by three to five members
depending upon the volume of complaints in different
States/districts, and they shall be selected by the State
Government from a panel prepared by the State Human Rights
Commission/Lok Ayukta/State Public Service Commission. The
panel may include members from amongst retired civil
servants, police officers or officers from any other department,
or from the civil society. They would work whole time for the
Authority and would have to be suitably remunerated for the
services rendered by them. The Authority may also need the
services of regular staff to conduct field inquiries. For this
purpose, they may utilize the services of retired investigators
from the CID, Intelligence, Vigilance or any other organization.
The State level Complaints Authority would take cognizance of
only allegations of serious misconduct by the police personnel,
which would include incidents involving death, grievous hurt or
rape in police custody. The district level Complaints Authority
would, apart from above cases, may also inquire into
allegations of extortion, land/house grabbing or any incident
involving serious abuse of authority. The recommendations of
the Complaints Authority, both at the district and State levels,
for any action, departmental or criminal, against a delinquent
police officer shall be binding on the concerned authority.”
13. Hon’ble Supreme Court had directed to constitute Police
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Establishment Board and Police Complaints Authority so that
police personnel may not work under the political pressure or
interference and may deal with the crime independently,
honestly and fairly.
14. In the present case, at the face of record the impugned
order has been passed by the Inspector General of Police
concerned and not by the Board. Accordingly, the impugned
transfer order has been passed in utter disregard to judgement
of Prakash Singh (supra) which is not sustainable.
15. In view of above, writ petition deserves to be allowed. A writ
in the nature of certiorari is issued quashing the impugned
order dated 19.5.2010 as contained in Annexure-1 to the writ
petition to the extent it relates to petitioner with consequential
benefits with liberty to pass afresh order.
16. In a Writ Petition No. 1525 of 2009 (SS) decided vide order
dated 4.9.2009 a direction was issued to constitute Police
Establishment Board in pursuance to judgement of Prakash
Singh (supra) but it appears that the same has not been
complied with. It is expected that State government shall
proceed in terms of earlier judgement forthwith to avoid any
action by this Court on account of non-compliance of direction
issued earlier.
17. It shall be open to the Police Establishment Board to
reconsider the petitioner’s case and pass a fresh order.
18. Learned Standing counsel shall communicate the order
passed by this Court to Director General of Police as well as
Chief Secretary Government of U.P. for compliance.
Order Date :- 22.7.2010
Madhu