The Lucknow Bench of the Allahabad High Court, considering the Delhi Police Service as a state service, has stayed the order of the single bench cancelling the inter-district transfer of the policeman’s teacher wife.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Syed Qamar Hasan Rizvi passed this order while hearing a special appeal filed by Archana Taliyan.
In terms of the policy framed by the State Government, the appellant was transferred from Amethi to Bulandshahr. The transfer was merit based. For the purposes of calculating the merit, marks were also awarded to the appellant-petitioner in the category where the spouse is an employee of the Central Government.
The appellant’s husband was serving in Delhi Police. The authorities, therefore, opined that services of Delhi Police being a State service did not qualify for being awarded preferential marks in the category meant for Central Government employees and, therefore, the appellant was not permitted to join at Bulandshahar. Later her transfer was also cancelled. The writ petition filed against such order has been rejected.
The Court noted that,
Counsel for the appellant places reliance upon the Constitution Bench judgment of Supreme Court in Government of NCT of Delhi vs Union of India (2023) 9 SCR 493, wherein the issue relating to status of Delhi Police working in the National Capital Territory of Delhi fell for consideration. Considering the fact that the entry police and public order fell in list I, the Court observed as under in para 159 and 160 of the judgment:-
“159. But, in our context, we may not be able to read Entry 41 in relation to NCTD in the widest possible sense because all entries in List II (including Entry 41) need to be harmonized with the limitation laid down in Article 239AA(3)(a) on NCTD’s legislative and executive power by excluding matters related to ‘public order’, ‘police’, and ‘land’.
160. The legislative and executive power of NCTD over Entry 41 shall not extend over to services related to “public order”, “police”, and “land”. However, legislative and executive power over services such as Indian Administrative Services, or Joint Cadre services, which are relevant for the implementation of policies and vision of NCTD in terms of day-to-day administration of the region, shall lie with NCTD. Officers thereunder may be serving in NCTD, even if they were not recruited by NCTD. In such a scenario, it would be relevant to refer, as an example, to some of the Rules, which clearly demarcate the control of All India or Joint-Cadre services between the Union and the States. NCTD, similar to other States, also represents the representative form of government. The involvement of the Union of India in the administration of NCTD is limited by constitutional provisions, and any further expansion would be contrary to the constitutional scheme of governance.”
On the strength of the above observations, it is contended that award of marks to the appellant on the ground that her spouse is a Central Government employee was correct.
The Court observed that the matter requires consideration.
The Court granted four weeks time to file counter affidavit for the respondent and two weeks time to file a rejoinder affidavit. List thereafter.
“Till the next date of listing, the effect and operation of the order passed by the Single Judge as well as the order impugned in the writ are stayed. The appellant shall be allowed to join at Bulandshahr and shall be paid her salary, subject to ultimate orders to be passed in this appeal”, the Court ordered.