SUPREME COURT IN PRAKASH SINGH CASE DIRECTED TRANSFERS/POSTINGS OF DSPS SHALL BE DECIDED BY POLICE ESTABLISHMENT BOARD, ADVOCATE HEMANT KUMAR

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On May 11, 2023 the Home Department of Haryana Government issued an Order pertaining to fresh postings and transfers of 136 officers in the cadre of Haryana Police Service (HPS) who have been posted/transferred as Deputy Superintendent of Police (DSP) in areas where there is general/traditional policing system or in other words non-Police Commissionerates and as Assistant Commissioner of Police (ACP) in Police Commissionerates.

Meanwhile, Hemant Kumar, an Advocate at Punjab and Haryana High Court said that when he read the aforementioned Order as signed by TVSN Prasad, IAS Additional Chief Secretary, Home Department, Haryana there was no mention of the Police Establishment Committee (P.E.C.) in such Order.

The Advocate told that the Supreme Court of India in Re: Prakash Singh Vs Union of India (Sep, 2006), i.e. the historic judgment on Police Reforms in which the Apex Court issued total six directions to all State Governments in the country, in Direction No. 5 therein, it mandated that  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 (DSP).

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 decisions of the Board in exceptional cases only after recording its reasons for doing so.

Further, such 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.

Hemant further told that in pursuance of the directions of the Supreme Court given in Prakash Singh's case as referred above, the State of Haryana enacted its own Haryana Police Act, 2007 which was enforced with effect from Nov, 2008. In Section 34 therein, it provided for the constitution of the Police Establishment Committee- P.E.C. (in lieu of Board) however there was no power vested in such Committee to decide transfers, postings, promotions and other service related matters of officers of and below the rank of DSP which however directed by the Supreme Court. The composition of P.E.C. was also not in full accordance as mandated by the Apex Court in Direction No. 5 in Prakash Singh's judgment as mentioned hereinabove.

Be that as it may, in Dec, 2018 the State Assembly of Haryana enacted Haryana Police (Amendment) Act, 2018 wherein earlier Sec 34 of Haryana Police Act, 2007 got completely substituted. In substituted Sec 34, the Director General of Police has been named Chairperson of Police Establishment Committee (P.E.C.) and its members include the Head of State Intelligence Wing, the Head of the Administration Wing and the Head of Law & Order Wing. It has been also provided therein that P.E.C. shall decide with respect to transfer and posting of police officers of the rank of Inspectors and make recommendation on posting/transfer of officers of rank of Deputy Superintendent of Police and Superintendent of Police.

The Advocate seriously wonders that now it remains to be seen why even in the 2018 Amendment made in Haryana Police Act, 2007 which also completely replaced earlier Sec 34, there has been still only partial compliance of Supreme Court's direction pertaining to constitution of Police Establishment Board/Committee including regarding its power to decide with respect to posting and transfer of police officers only of the rank of Inspectors and not pertaining to Deputy Superintendent of Police which was however explicitly directed by the Supreme Court.

Furthermore, when few time back, Advocate sought information under RTI from the State's Home Department regarding the copy of Gazette Notification regarding constitution of Police Establishment Committee under Sec 34 of Haryana Police Act, 2007 by the Haryana Government , he was not provided the same and it was told that no such information is available in official records neither in the Home Department nor in the State's DGP Office.

Hemant wonders that since Supreme Court has not granted any sort of exemption to the State of Haryana over mandatory constitution of Police Establishment Board/Committee including its powers and functions as directed by the Apex Court, hence non-constitution of the same by the State Government till date which has further resulted in non-exercise of powers conferred upon such Committee pertaining to deciding posting/transfers etc. of police officers of and below the rank of DSP itself amounts to clear disobedience of Apex Court's directions by the Haryana Government.