Vijay Pal Singh And Etc. v. State Of U.P And Others

O.P Garg, J.:— The three petitioners viz. Vijay Pal Singh, Sudhir Swaroop Bhatnagar and Dev Raj Puri, who are the Senior Prosecuting Officers (ordinary scale) have come to challenge the order of their transfer from the place of present posting to different places. Vijay Pal Singh has been transferred from Etawah to Haridwar while Sudhir Swaroop Bhatnagar and Dev Raj Puri have been transferred respectively to the Police Training College I and II Moradabad.

2. The petitioner Vijai Pal Singh is presently posted as the Senior Prosecuting Officer, Etawah. One Ghanshyam Das Sharma who was posted at Ghaziabad was transferred on administrative ground to Etawah in place of Sri Vijay Pal Singh who was transferred to Ghaziabad by the order dated 28-9-1995. The said order was cancelled on 18-12-1995. On 16-7-1996 another order was passed by which Vijay Pal Singh was transferred from Etawah to Haridwar. His grievance is that he has to attain the age of superannuation on 31st July, 1997, and, therefore, his transfer from Etawah to Haridwar is against the norms guidelines set out by the Government for implementing the transfer policy and that the change has been effected with a view to accommodate Dev Raj Puri at Ghaziabad. Sudhir Swaroop Bhatnagar, petitioner, has been transferred from Bulandshahr to Police Training College II, Moradabad by order dated 16-8-1996. According to him, he had been transferred on a teaching post and his transfer order is, therefore, violative of the provisions of the S. 25 of the Code of Criminal Procedure.

3. The petitioner Dev Raj Puri was posted at Meerut. He and his wife had made several representations to higher authorities for being posted at Ghaziabad or at a place near thereto for personal reasons which ultimately worked but by the impugned order dated 22-8-1996 Annexure-10 to his petition. Dev Raj Puri was ordered to be transferred from Ghaziabad to Police Training College-I, Moradabad. It is alleged that he has been transferred from Ghaziabad with a view to accommodate Sri P.C Trivedi respondent No. 5. According to him, the transfer was not the result of any administrative exigency and since he was posted at Ghaziabad on compassionate and humanitarian grounds, his shifting to the Police Training College, Moradabad at a short interval is arbitrary. He has also taken the additional ground that without his consent he cannot be posted on ex cadre post in a Police Training College.

4. Counter, rejoinder and supplementary affidavits have been filed. Sri V.K Jaiswal for the petitioner Vijay Pal Singh, Sri Satish Chandra Misra for the petitioner Sudhir Swaroop Bhatnagar and Sri Ravi Kiran Jain for the petitioner Dev Raj Puri as well as Sri R.K Saxena, Standing Counsel on behalf of the State were heard at considerable length.

5. From the above facts, it would appear that in all the three petitions it is common ground that the transfer orders have not been passed on account of any administrative exigency but they are the outcome of extraneous considerations. Sri Sudhir Swaroop Bhatnagar and Sri Dev Raj Puri have further taken recourse to the provisions of S. 25 of the Code of Criminal Procedure for pleading that their appointments were made to assist the court in criminal cases and since the teaching post in the Police Training College is a deputation post, the Senior Prosecuting Officers appointed to perform their duties under S. 25 of the Code of Criminal Procedure cannot be transferred without their consent as it would amount to change their service conditions.

6. To begin with, it may be mentioned that the petitioner Dev Raj had also remainded posted at Ghaziabad as a Prosecuting Officer in the year 1993. There were certain complaints against him and on the move of the Senior Superintendent of Police, Ghaziabad, he was transferred from Ghaziabad to Meerut. Since Sri Dev Raj Puri was transferred on administrative ground he could not be re-posted to Ghaziabad within a period of five years in view of the policy of transfer laid down by the State Government for the year 1996–97. After passing of the order dated 18-7-1996 by which Dev Raj Puri was posted at Ghaziabad, the Director of Prosecution took up the matter with the State Government and proposed to cancel the posting of the petitioner Dev Raj Puri to Ghaziabad. Accordingly, by the impugned order dated 22-8-1996. Dev Raj Puri was transferred from Ghaziabad to Police Training College I, Moradabad vice Sri P.C Trivedi who was posted at Ghaziabad.

7. From the various averments made in the counter, rejoinder and supplementary affidavits, it is clear that none of the three petitioners were transferred on any extraneous considerations. The transfer orders were purely on administrative grounds. It is well settled position that the transfer which is a normal incident of service is not to be interfered with by the courts unless it is shown to be clearly arbitrary or vitiated by mala fide or infraction of any professed norm or principle governing the transfer. In 1991 Supp (2) SCC 659 : AIR 1991 SC 532 Mrs. Shilpi Bose v. State of Bihar, it was held that the courts should not interfere with the transfer orders which are made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other as he is liable to be transferred from one place to other. It was further observed that even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead the affected party should approach the higher authorities in the department. In another case reported in (1993) 3 JT (SC) 678 : ((1993) 4 SCC 357 : AIR 1993 SC 2444) Union of India v. S.L Abbas, it was held that who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines, however, do not confer upon the government employees a legally enforceable right. A reference may also profitably to made to (1996) 1 UPLBEC 319 : (1996 AIR SCW 797); Abani Kanta Roy v. State of Orissa, (1994) 6 SCC 98-A; (AIR 1995 SC 423), N.K Singh v. Union of India, (1989) 2 SCC 602 : AIR 1989 SC 1433; Gujarat Electricity Board v. Atmaram.

8. In the backdrop of the various pronouncement of the Court as well as the Supreme Court the legal position is that since the transfer is an incident of service and transfers are made in exigency of service and public interest, they are not amenable to the jurisdiction of the Court until and unless the same has been passed in punitive or vindictive manner. Even in such circumstances the burden heavily lies upon the petitioner to aver in the writ petition that the transfer order has been camouflaged into the order of punishment. The order of transfer which is made pursuant to the general tone up of administration cannot be said to be actuated by mala fide. In the instant writ petitioner it has not been established that the transfer orders are in any manner actuated by mala fide or are in violation of the mandatory statutory provisions and therefore this Court would refrain from interfering with the transfer orders in the exercise of jurisdiction under Art. 226 of the Constitution of India.

9. Now it is the time to consider the other twin grounds, firstly, whether in the teeth of the provisions of S. 25 of the Code of Criminal Procedure, the petitioners Sudhir Swaroop Bhatnagar and Dev Raj Puri could be posted to police Training College to impart instructions to the probationary Assistant Public Prosecutors who are detailed for training, and secondly — whether the post of senior Prosecuting Officer (Ordinary Scale) in the Police Training College is ex-cadre post and consequently the petitioners could not be compelled to join on the said post without their consent.

10. Prior to the commencement of the Code of Criminal Procedure 1973 the Prosecuting Agency of the State was under the Police Department. The prosecution of the criminal cases was conducted by the Police Officers who were designated as prosecuting officers. These prosecutors were functioning under the administrative and disciplinary control of the superior officers of the police force or department itself. The Law Commission of India strongly felt the need of the prosecutors conducting the prosecution in Courts independently of the Police Department that had investigated the cases in respect of which prosecutions were launched or of officers of the Police Department who were very much interested in such investigations so as confirm to the basic salutary rule of proescution of criminal cases that the prosecutors must conduct the prosecution fairly and impartially.

11. Section 25 was undoubtedly inserted by the Parliament in the Code of Criminal Procedure because of the fault found by the Law Commission in the conduct of prosecutions in Magistrates' Courts by the Police prosecutors and remedial suggestion made by it in its 14th Report. Paragraphs 12 and 15 of the Report may profitably to adverted to:

“Para 12 — Police prosecutors and their functioning — It is obvious that by the very fact of their being members of the police force and the nature of the duties they have to discharge in bringing a case in Court it is not possible for them to exhibit that degree of detechment which is necessary in a prosecutor. It is to be remembered that a belief prevails amongst the Police Officers that their promotion in the Department depends upon the number of convictions they are able to obtain as Prosecuting Officers. Finally, the only control or supervision of the work of these prosecuting officers is that exercised by the Department Officials.”

“Para 15. Suggested remedial measures— We therefore suggest that as first step towards improvement, the prosecuting agency should be completely separated from the Police Department. In every district a separate prosecution department may be constituted and placed in charge of an official who may be called a ‘Director of Prosecutions’. The entire prosecution machinery in the District should be under control. In order to ensure that he is not regarded as a part of the Police Department he should be independent official directly responsible to the State Government. The departments of the machinery of the Criminal Justice, namely, the Investigation Department and the prosecuting department should thus be completely separated from each other.”

Therefore, to effectuate the aforesaid remedial measure relating to separation of prosecution agency from investigating agency, both of which earlier formed part of the police department, a statutory obligation is imposed by S. 25 on the State or the Central Government, as the case may be, to appoint one or more Assistant Public Prosecution in every district for conducting the prosecution in Magistrate Courts concerned and of making such Assistant Public Prosecutors independent of the Police Department or the officers entrusted with the duty of investigations of cases on which prosecutions are to be launched in court by constituting a separate cadre of such Assistant Public Prosecutors and creating a prosecution department for them, its head made directly responsible to Government for such department's work. In other words, a statutory obligation is imposed by sub-sec. (1) of S. 25 on the State Government, in unequivocal terms, that it shall appoint one or more Assistant Public Prosecutors in every district exclusively for the purpose of conducting the prosecution in the courts of Magistrate in each district. When Assistant Public Prosecutors are appointed under S. 25 of the Code of Criminal Procedure for conducting the prosecution in courts of Magistrates in a district fairly and impartially, separating them from the police officers of the Police Department and freeing them from the administrative or disciplinary control of officers of the police department, are the inevitable consequential actions required to be taken by the State Government which appoints such Assistant Public Prosecutors, inasmuch as taking of such actions are statutory obligations impliedly imposed upon it.

12. The contention on behalf of the petitioners is that in view of the provisions of S. 25 the Assistant Public Prosecutors, and for that matter the Senior Prosecuting Officers are appointed only to conduct the criminal cases before the courts of Magistrate and since no other work can be taken from them, the position of the petitioners for teaching work in Police Training Colleges would be in flagrant violation of the mandate of the provision aforsaid. It was also urged that since imparting of training is not part of the scheme envisaged under S. 25, posting of the Senior Prosecuting Officers in the Police Training Colleges can only be done with their consent as otherwise it would tantamount to changing their service conditions.

13. As stated above, the object of S. 25 is to create a separate and independent prosecution agency free from the interest of investigating agency. This section deals with the conduct of the Trials in the Courts of Magistrate. It specifies the duty of the Public Prosecutor while he appears on behalf of the State before the Magistrate. The submission that since the Public Prosecutions are appointed under S. 25 of the Code of Criminal Prosecute for conducting the criminal cases, they cannot be assigned any other duty is not only fallacious but wide off the mark. If the interpretation put on behalf of the petitioners is accepted then the rules governing the various service conditions, such as strength of service, recruitment and promotion to the various posts, prescription of scales etc., would be rendered otiose. A State wide independent and separate cadre of the prosecuting agency having its own hierarchy of officers made directly responsible to the State Government is not created under the provisions of S. 25 but by the Rules. Section 25 is the source of authority and power which a Prosecuting Officer enjoys to conduct the criminal cases in the courts of Magistrate. There is a difference in the expression appointment in service as contemplated by the Service Rules and the appointment to exercise a particular power or responsibility as provided in S. 25. This section does not create or regulate service conditions. It simply provides that the State Government shall appoint prosecuting Officers to conduct the criminal cases in the courts of the Magistrates. Who shall be the member of the service of the Prosecuting Officers, what are to be their qualifications (such as nationality, academic qualification, age, character, marital statuts and physical fitness), how the vacancies are to be determined, recruitment procedure, appointment, probation, training, confirmation and seniority, scale of pay, criterion for crossing efficency bar, promotion, relaxation in the conditions of service are all such matters which are beyond the sweep of the provisions of S. 25. The above matters relating to service conditions are governed by a different set of rules. It was for this reason that after the separation of the prosecution work from that of investigation of criminal cases, the U.P Prosecuting Officers' service Rules 1991 were enforced with effect from 8 June 1991. The petitioners, admittedly, are governed by the said rules. Whether a person appointed under the Rules as prosecuting officer should be posted in a district to conduct criminal cases in the courts of Magistrate or he should be posted on another cadre post is a matter which squarely falls outside the ambit of the provisions of S. 25 of the Code of Criminal Procedure. Their relationship of master and servant between the prosecuting officers and the State or the head of the department is not governed by S. 25 of the Code. If we go by the arguments raised on behalf of the petitioners and accept the same, in that event, no prosecuting officer would be entitled to exercise various administrative functions. For service conditions including the transfer and posting one has, of necessity, to look to the service rules and not to the provisions of S. 25 of the Code. The submission on behalf of the petitioners that their transfer orders are hit by the provisions of S. 25 of the Code is meritless and has to be rejected. Reliance on the said provision is mis-placed.

14. The other point to be considered is; whether the post of Senior Prosecuting Officer (Ordinary Scale) in the Police Training College is a cadre post or outside the Cadre. The petitioners were appointed to the post of Assistant Prosecuting Officers under the government orders prior to the commencement of the U.P Prosecuting Officers Service Rules, 1991 which came into force w.e.f 18 June, 1991. Under these rules a State service of prosecuting officers was constituted and all those persons substantively appointed under the orders of the State Government prior to the commencement of the Rules became the “members of the service” as defined in cl. (h) of R. 3. Part II of the Rules deals with the Cadre. Sub-rule (1) of R. 4 provides that the strength of the Service and of each category of posts therein shall be such as may be determined by the Government from time to time. Sub-rule (2) provides for the strength of the service and of each category of posts therein at the time of commencement of the Rules. The strength of service and of each category of posts are specified in the Appendix to the Rules. The 1991-Rules were amended by the First Amendment Rules of 1994. At serial No. 4 of the amended Appendix, the number of posts of Senior Prosecuting Officers (Ordinary Scale) has been specified as 90. The Senior Public Prosecutor (Ordinary Scale) is the promotional post. At the lowest rung, there is the post of Assistant Prosecuting Officer for which direct recruitment is held. The next promotional post is that of Prosecuting Officer. From amongst the Prosecuting Officers, Senior Prosecuting Officers (Ordinary Scale) are promoted. The petitioners are the Senior Prosecuting Officers of ordinary scale.

15. The stand taken on behalf of the State is that prior to the commencement of the Rules a number of posts of Senior Prosecuting Officers (Ordinary Scale) were created under the Government orders for different Police Training Colleges. Under the Government Order dated 25-2-1977, one post of Senior Prosecuting Officer (Ordinary Scale) was created at the Police Training College, Moradabad. In pursuance of the recommendations of Garey Committee, one post of Senior Prosecuting Officer (Senior Scale) and 10 posts of Senior Prosecuting Officer (Ordinary Scale) were created for Police Training College, Moradabad by Government Order dated 5-12-1979. After the commencement of the rules two new posts of Senior Prosecuting Officers (Ordinary Scale) were created; one for Shanti Suraksha Bal and others for the newly created district of Padrauna. These two posts are in addition to 90 posts of Senior Public Prosecuting Officers (Ordinary Scale) specified in the Appendix to the Rules, 1991. Annexure 5 to the second supplementary counter-affidavit filed by Sri Mohd. Usman Khan presently posted as Senior Prosecuting Officer. High Court, Allahabad gives the details of all the 92 posts. 48 posts of Senior Prosecuting Officers (Ordinary Scale) have been distributed in various districts. There are three Police Training Centres, viz. Police Training College I, Moradabad; Police Training College II, Moradabad and Police Training College III, Sitapur. These colleges respectively have 10, 10 and 9 (in all 29) posts of Senior Prosecuting Officers (Ordinary Scale). The remaining 15 post of the total 92 posts have been earmarked in various other departments and establishments, such as the C.I.D, Vigilance, Co-operative, Electricity Board, Prevention of Corruption Organisation, A.T.C Sitapur, P.T.S Moradabad and Gorakhpur, High Court Lucknow Bench, Medical Cell, Chits and Fund, Abhisuchha and Shanti Suraksha Bal. All these departments have one post each except the vigilance department in which there are three posts of Senior Prosecuting Officers (Ordinary Scale). In this manner, all the 92 sanctioned posts in the cadre and the strength as contemplated in rule 4 of the Rules have been distributed in districts and various departments including those created and sanctioned for the Police Training College. In the light of the above facts, this position admits of no doubt that the posts of Senior Prosecuting Officers (Ordinary Scale) of Police Training College, Moradabad and Sitapur are included in the cadre strength of 92 posts, The incumbents of all these 92 equivalent cadre posts are interchangeable. The posts of the Senior Prosecuting Officers (Ordinary Scale) in the Police Training College being cadre posts and included in the cadre strength cannot be treated ex cadre or deputation posts and therefore the consent of the Senior Public Prosecutors (Ordinary Scale) for their being posted in the Police Training Colleges and other various departments mentioned above, is not necessary. The contention on behalf of the petitioners that the posts of the Senior Public Prosecutors created at the Police Training Colleges are ex cadre posts is wholly unfounded and consequently merits rejection.

16. A short and swift reference may be made to the faint submission on behalf of the petitioners that since they are not well versed in the art of teaching they cannot usefully be utilised to impart instructions to the new entrants in the service. Rule 20 of the Rules provides that during the period of probation a person appointed to the post of Assistant Public Prosecutor shall be required to undergo training for six months at the Police Training Centre, Moradabad or at such other place as may be decided by the appointing authority. The petitioners being the senior officers of the Prosecution Branch have been selected for imparting training to the new entrants in the service. On the basis of their being law graduates and long standing experience, the Senior Public Prosecutors (Ordinary Scale) can always share their matured experience and rich knowledge with the new entrants. They are simply required to instruct and impart training to the new-comers in the service and this does not involve any professional teaching work. A senior officer of the department, who may not be a teacher in strict sense, is supposed to have the ordinary skill and capacity to instruct the juniors who have been taken birth in the service. On the other hand, the posting of the Senior Prosecuting Officers to instruct the new members of the service is not only necessary but desirable as an outsider is not suitable to acquaint and familiarise the newly depatised officers about the practical experience in departmental and court matters.

17. Before parting it may be mentioned that the writ petition No. 25029 of 1996 on behalf of Vijai Pal Singh has become infructuous as his transfer from Etawah to Haridwar has been cancelled. He continues to remain posted at Etawah. His grievance has thus been redressed. On a conspectus of the discussion hereinabove, all the three writ petitions fail and are dismissed.

No order as to costs is made.

18. Petitions dismissed.