IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 WP(C).No. 17292 of 2011(J) -------------------------- PETITIONER(S): -------------------- 1. MADHU.K.V,S/O.MADHAVAN,AGED 48 YEARS, SCPO-5466,CRIME DETACHMENT,KOZHIKODE. 2. KRISHNAN KUTTY,SCPO-5869,THAMARASSERY POLICE STATION,KOZHIKODE DISTRICT. 3. SUDHARSANA KUMAR,SCPO-5406,VADAKARA TRAFFIC UNIT,KOZHIKODE DISTRICT. 4. RAMAKRISHNAN,SCPO-5204,VADAKARA POLICE STATION,KOZHIKODE DISTRICT. 5. MUHAMMED,CPO-7266,BALUSSERY POLICE STATION,KOZHIKODE DISTRICT. 6. VIJAYAN,CPO-7090,TRAFFIC UNIT, VADAKARA,KOZHIKODE DISTRICT. 7. VIJAYAN,CPO-6209,BALUSSERY POLICE STATION,KOZHIKODE DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): ------------------------ 1. THE DIRECTOR GENERAL OF POLICE (KERALA POLICE CHIEF), POLICE HEAD QUARTERS,TRIVANDRUM, PIN-695001. 2. THE SUPERINTENDENT OF POLICE (DISTRICT POLICE CHIEF),KOZHIKODE(RURAL),PIN-673301. 3. THE CITY COMMISSIONER OF POLICE, KOZHIKODE,PIN-67301. BY GOVERNMENT PLEADER SRI.SANDESH RAJA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/07/2011, ALONG WITH WPC NO. 17293 OF 2011 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17292 of 2011(J) ------------------------------------- APPENDIX ---------------- PETITIONER'S EXHIBITS ------------------------------------ EXT.P1. COPY OF THE ORDER AS DO NO.259/11 DR DATED 23.06.2011 ISSUED BY THE 2ND RESPONDENT. EXT.P2. COPY OF THE ORDER AS NO.257/11 DR DATED 23.6.2011 ISSUED BY THE 2ND RESPONDENT. EXT.P3. COPY OF THE ORDER ISSUED BY THE GOVERNMENT OF KERALA AS G.O. (MS) NO.609/1958 DATED 19.5.1958. EXT.P4. COPY OF THE ORDER ISSUED BY THE GOVERNMENT OF KERALA AS G.O. (MS) NO.231/04/HOME DATED, 30.6.2004. EXT.P5. COPY OF THE EXECUTIVE DIRECTIVE NO.01/2011 DATED 9.2.2001 ISSUED BY THE 1ST RESPONDENT. EXT.P6. COPY OF THE CHART SHOWING THE DETAILS OF EACH PETITIONRS. RESPONDENT'S EXHIBITS : NIL --------------------------------------- / TRUE COPY / P.A. TO JUDGE VK 'C.R' C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NOs. 17292, 17293, 17465, 17472, 17475, 17716 & 17840 of 2011 -------------------------------------------- Dated this the 11th day of July, 2011 JUDGMENT Untimely transfers would undoubtedly cause unrest, umbrage and above all, unbounded difficulties and inconveniences to service personnel. At times, the transferring authorities use the power of transfer as a weapon to wield at erring employees in lieu of initiation of disciplinary proceedings and sometimes, it is used to accommodate favourites. Recognizing recurrence of such profane exercise of transfer-power and with a view to eliminate the element of arbitrariness in its exercise and to have a uniform policy as far as possible Government have formulated norms and framed guidelines to be followed by transferring authorities in the matter of transfer. General transfer, transfer on public or administrative grounds, punishment transfer and request transfer are various known forms of transfer. Courts cannot adopt nonchalance when circumstances call for such interference and at times, may also have to lift the veil to see its real nature. With this prelude, I may examine the contentions raised by the petitioners in all these writ petitions wherein some enmasse transfers of police personnel involve. W.P.(C) 17292/2011 & conn. 2 2. As per Exts.P1 and P2 in W.P.(C)No.17475 of 2011, 226 Police personnel belonging to Grades of Assistant Sub Inspectors (GASIs), Senior Civil Police Officers (Sr.CPOs) and Civil Police Officers (CPOs) were transferred on administrative ground to different stations. The petitioners are some of such transferees. In W.P.(C) No.17293 of 2011 Exts.P1, P2 and P3 transfer orders issued on administrative ground are under challenge. In fact, Exts.P1 and P2 are the very same orders which are under challenge in W.P.(C) No.17475 of 2011. Ext.P3 is an order issued on the same day whereby 20 Sr.WCPOs and WCPOs were transferred on administrative ground. In W.P.(C)No.17465 of 2011 Exts.P1 and P2 are the orders under challenge. As per Ext.P1, 20 Police personnel were transferred and as per Ext.P2, 12 Police Officers belonging to the cadres of Senior Women Civil Police Officers (Sr.WCPOs) and Women Civil Police Officers (WCPOs) are placed under orders of transfer to different police stations. Unlike the impugned orders in W.P.(C)No.17475 of 2011 Exts.P1 and P2 in this writ petition did not carry any statement that they were issued on administrative ground. In W.P.(C)No.17292 of 2011 Exts.P1 and P2 are the impugned orders of transfer. 18 Sr.CPOs and CPOs were placed under orders of transfer as per Exts.P1 and P2. In W.P.(C)No.17472 of 2011 Ext.P1 order of W.P.(C) 17292/2011 & conn. 3 transfer is challenged by the petitioners. As per the same, 56 Police Officers of Sr.CPOs/CPOs ranks were transferred. In W.P.(C) No.17716 of 2011 the petitioners are challenging Ext.P1 order of transfer. As per Ext.P1, 270 Police officers belonging to different cadres viz., GASIs, Sr.CPOs and CPOs were transferred to different stations or wings. In W.P.(C)No.17840 of 2011 the petitioners challenge Ext.P1 order of transfer. As per Ext.P1, 200 Police officers belonging to the cadres of Sr.CPOs and CPOs were placed under orders of transfer. Thus, it is obvious that the impugned transfer orders in W.P.(C)Nos.17475 and 17293 of 2011 are issued on administrative ground whereas the orders assailed in the other writ petitions are not avowed transfer orders on administrative ground. In the circumstances, for the sake of convenience, I will deal with the orders of transfer in W.P.(C)Nos.17475 and 17293 of 2011 a little later. 3. As regards the impugned orders in the other writ petitions, in the absence of anything in them suggesting the reason as administrative or public grounds the respondents cannot be heard to contend that those orders are passed on administrative or public ground. Evidently, Police officers belonging to different ranks such as GASIs, Sr.CPOs, CPOs, Sr.WCPOs and WCPOs were transferred W.P.(C) 17292/2011 & conn. 4 enmasse by the impugned transfer orders. There can be no doubt with respect to the position of law that a reason which is conspicuously absent in an impugned order cannot be supplemented by way of an affidavit. Therefore, I will have to proceed with these cases on the premise that the impugned orders therein are issued on other grounds. The said orders did not partake the character of punishment transfers or transfers on request. Therefore, I am constrained to consider the norms issued by the respondents in the matter of transfer and also the relevant provisions under the Kerala Police Act, 2011 to see whether they satisfy the salient features of a general transfer. Section 97 of the Kerala Police Act, 2011 (for short `the Act') deals with minimum tenure of Police officers. Section 97 (1) of the Act provides that the Government shall ensure a minimum tenure of two years for Police officers belonging to the categories specifically mentioned thereunder. Since the petitioners in these writ petitions are not belonging to the said specified categories therein, I need not look into the said provision for the purpose of disposal of these writ petitions. I may, now, refer to Section 97(2) of the Act and the same reads thus:- “97.(2) The Government or the appointing authority may, without prejudice to the right to initiate any legal or departmental action, transfer any police officer before completing the normal W.P.(C) 17292/2011 & conn. 5 tenure of two years, on being satisfied prima facie that it is necessary to do so on any of the following grounds stated in (a) to (f), namely:- (a) the officer is subjected to disciplinary action; (b) it is found prima facie on investigation that the officer is involved in a corrupt practice or in a criminal offence involving proclivity for violence or moral turpitude. (c) the officer is physically or mentally incapable of discharging his duties; (d) a superior officer evaluating the work of an officer, reports, in writing, that the officer is not carrying out his duties efficiently; (e) cause serious dissatisfaction in the general public about efficiency of police in his jurisdiction; (f) the officer requests, in writing, for a transfer from the place where he is working.” The contention of the learned Senior Counsel appearing for the petitioners is that section 97(2) of the Act applies to the petitioners by virtue of section 14(2) and sections 2(f) and 2(h) of the Act. A perusal of section 14(2) would reveal that the grades of Police Constable and Police Head Constable that are later, re-designated respectively as Civil Police Officer and Senior Civil Police Officer are among the officers' ranks included thereunder. In other words, in terms of section 14(2) the personnel belonging to the grade of Police Constable (Civil Police Officer) Police Head Constable (Senior Civil W.P.(C) 17292/2011 & conn. 6 Police Officer) fall under the expression `Police Officer' and, therefore, necessarily the guidelines under section 97(2) are applicable to them as well, it is contended. To support the said contention the learned Senior Counsel drew my attention to the definition of `Police Officer' in section 2(h) of the Act. Section 2(h) reads thus:- “2.(h) “Police officer” means any member of the Police Force and includes in it an officer of the Indian Police Service;” It is contended that a conjoint reading of the above provisions would undoubtedly show that the petitioners in all these writ petitions are Police officers and therefore, the provisions under section 97(2) are applicable to them. In that view of the matter, transfer of the Police officers before completion of the normal tenure of two years is possible only if the transferring authority is prima facie, satisfied that it is necessary to do so on account of existence of any one of the grounds mentioned under section 97(2) of the Act, it is further contended. 4. The learned Senior Government Pleader contends that section 97(2) of the Act is inapplicable to the petitioners who belong to cadres of GASIs/Sr.CPOs/CPOs/Sr.WCPOs/WCPOs. According to the learned Senior Government Pleader, section 97(2) of the Act W.P.(C) 17292/2011 & conn. 7 applies only to those categories specifically mentioned under section 97(1) of the Act. Since it is nobody's case that the orders of transfer impugned in these writ petitions are issued based on satisfaction of any of the grounds under section 97(2), I do not think it necessary to consider the question whether section 97(2) is applicable or inapplicable in the case of the petitioners for the purpose of disposal of these writ petitions. Though the respondents have filed statements and additional statements in two of these cases viz., in W.P.(C) Nos.17475 and 17293 of 2011, the respondents have not raised a contention that transfers of the petitioners in those writ petitions are ordered based on the satisfaction of the existence of the grounds in section 97(2). As regards the other writ petitions as well, the respondents did not have such a case that the petitioners were transferred on account of the existence of any of the circumstances enumerated under section 97(2). At the same time, it is common case that during the current year general transfers were not effected on account of the General Election to the Kerala Legislative Assembly. That persuades me to consider whether the impugned orders partake the nature of a general transfer or in troth, they are deferred general transfer orders. In the said context, the norms and guidelines issued on the subject of transfer assume relevance. Those Government W.P.(C) 17292/2011 & conn. 8 orders and Executive Directives have been produced either in W.P.(C) No.17475 of 2011 or in W.P.(C)No.17292 of 2011. The first among the Government orders formulating guidelines for transfers was issued on 19.5.1958. The said order has been produced in W.P.(C) No.17475 of 2011 as Ext.P3. Thereafter, in partial modification of the said order Ext.P4 Government order dated 30.6.2004 was issued. Later, Ext.P5 Executive Directive No.1/2006 dated 5.6.2006 was issued by the first respondent. Lastly, Executive Directive No.1/2011 dated 9.2.2011 was issued and the same has been produced as Ext.P5 in W.P.(C)No.17292 of 2011. I may, now, refer to the aforementioned Government orders and Executive Directives pertaining to the subject of transfer of Police officers. Clause (ii) and (iii) in Ext.P3 in W.P.(C)No.17475 of 2011 viz., G.O.(Ms)No.609 dated 19.5.1958 are relevant according to the petitioners and they read thus:- “(ii) While no person should normally be transferred before three years, Government recognize that it will not be possible to adhere to the principle rigidly. It may be necessary occasionally to transfer officers before the end of three years on public grounds. Transfers should as far as possible be during the period of vacations for schools and colleges to avoid dislocation of education of children of the Government Servants.” (emphasis supplied) “(iii) The above rules will not apply to W.P.(C) 17292/2011 & conn. 9 Clerks, Police Constables and Last Grade Servants and other low paid officials. This category of personnel should as far as possible be posted or continued near their homes.” Obviously, as per Ext.P3, it is possible and permissible to effect transfer on public grounds even before completion of the normal tenure of three years. However, in the writ petitions referred above, except in W.P.(C)Nos.17293 and 17475 of 2011, since there is no whisper in the impugned orders that they were issued on administrative grounds or on public grounds it could only be taken that the said orders are issued not on administrative grounds or public grounds and in which event, in the absence of such grounds, there was no necessity to effect abrupt transfers that too, after the re-opening of the schools. As already noticed, Ext.P3 Government order virtually enjoins the transferring authorities to effect transfers, as far as possible, during the period of vacation for schools or colleges to avoid dislocation of education of children of the Government servants. Thus, it is obvious that even while formulating guidelines for transfers the said aspect was rightly given due attention by the Government. A common feature of the Government Orders and Executive Directives is that they postulate avoidance of transfers of low paid employees, as far as possible. Even in case of necessity, going by the said relevant orders, on W.P.(C) 17292/2011 & conn. 10 transfer they shall be given posting as far as possible near to their home circles. Executive Directive No.1/2006 dated 5.6.2006 and Executive Directive No.1/2011 dated 9.2.2011 assume relevance in the context of the contentions in these cases. Clause 02.(1) in Executive Directive No.1/2006 reads thus:- “02.(1) PCs/HCs may be transferred, as far as possible, only during the General Transfers, once in a year.” (emphasis supplied) Now, it should be read as follows:- “Civil Police Officers/Senior Civil Police Officers may be transferred, as far as possible, only during the General Transfers, once in a year.” Clause 02.(2) and clause 02.(3) are also noteworthy and they read thus:- “02.(2) Only those who have completed 3 years in a particular station need be transferred. However, this stipulation will not apply to transfers ordered on public grounds or administrative grounds. (3) Three options should be obtained in advance from all the personnel who are likely to be transferred and they may be given postings as per their places of options to the extent possible.” 5. I have already adverted to Ext.P3 Government Order. Going by the said order, as far as possible, the transfers should be effected only during the period of vacations for schools and colleges W.P.(C) 17292/2011 & conn. 11 to avoid dislocation of education of children of the Government servants. A conjoint reading of these provisions under Exts.P3 and P5 in W.P.(C)No.17475 of 2011 would suggest that as far as possible general transfers should be effected once in a year, that too, during the period of vacations for schools and colleges to avoid dislocation of education of children of the Government servants. In other words, in the absence of administrative or public grounds normally one should be allowed to complete the normal tenure at a particular station and while effecting general transfer, the guidelines prescribing granting of option to choose stations shall be followed. Resorting to such recognized procedures would enable the personnel to give care to the members of their family, more particularly to the education of their children. In view of tight and tough competitions for securing a place for higher studies, be it professional or otherwise, untimely dislocation of the vocational avenue of the parents may hamper the prospects of their children. Therefore, as contemplated under Ext.P3 it will be advisable, whenever and wherever it is possible, to effect transfers during the period of vacations for schools and colleges. Such a condition would not work out prejudicial to the administration as it would be possible and permissible to effect transfers on administrative or public grounds without waiting for the expiry of the W.P.(C) 17292/2011 & conn. 12 normal tenure. Dislocation in the family set up would certainly disturb the mind set up of personnel and in such circumstances they may not be able to put in their optimum capability. Certainly, it will not be the intention of any administration in any department to create unrest amongst its officers. In short, to extract the optimum capacity and capability of officers it would be advisable to create a congenial circumstances for them. Discontent will certainly degrade the efficiency. True that in certain unavoidable circumstances, it may not be possible to look into such aspects. There is nothing on record to show that such circumstances existed in these cases and if such circumstances were in existence, the orders of transfer would have definitely been issued only on administrative or public grounds. The Executive Directives issued by the first respondent provides for deviation from the normal rule regarding minimum tenure for transfers on public or administrative grounds. The impugned orders in these Writ Petitions would undoubtedly show that enmasse transfers have been effected. The contentions in these Writ Petitions would also reveal that most of the petitioners are yet to complete their normal tenure at their present stations, viz., the stations from where they were ordered to be transferred. In the absence of administrative or public grounds, what was the reason that prompted W.P.(C) 17292/2011 & conn. 13 the transferring authorities concerned in these cases to order such enmasse transfers? The facts obtained in these cases compel me to come to the conclusion that an element of arbitrariness infected the orders and at any rate, the issuance of the impugned orders cannot be construed as exercise of the power of transfer in the best interests of the administration. In a uniformed force like Police Department, all of them may not venture to challenge such transfers. In fact, all the transferees are not before this Court. Some of the persons have already joined the transferred place and admittedly, after the institution of these Writ Petitions, some of the petitioners were also given passport and thereupon they too were made to join at the transferred place pending these writ petitions. In certain cases, substitutes have already joined. In some cases, by virtue of the orders of this Court, transferees are still continuing in the present stations. In a department like Police department, such uncertainty cannot be permitted to prevail. Taking into account all these aspects, setting aside of all the impugned orders would undoubtedly create an unpleasant and unhealthy situation. In the circumstances, I am not inclined to set aside the orders impugned. At the same time, in the interest of justice, its impact is to be nullified as relates the petitioners and a solution to redress their genuine grievances has to W.P.(C) 17292/2011 & conn. 14 be evolved. I will deal with the same a little later. 6. Now, I may deal with W.P.(C).Nos.17293 and 17475 of 2011. Admittedly, it has been specifically stated in the impugned orders that they were issued on administrative grounds. 7. A statement and an additional statement have been filed on behalf of the second respondent in W.P.(C).No.17293/2011 and they have been adopted in W.P.(C).No.17475/2011. In the statement filed on behalf of the second respondent, it is stated that Exts.P1 and P2 viz., the common orders in both the Writ Petitions, as also Ext.P3 were issued with the sole intention for delivering optimum services to the general public and to ensure better policing in the District. It is stated therein that Ext.P3 is an order bearing No. KDO/474/11 and it is an order in continuation of KDO/434/11 dated 27.5.2011 that was kept in abeyance due to administrative reasons. It is further stated that it is the modified form of KDO/474/11. It is also stated:- “Even if this order is not a general transfer, it is submitted that there is no violation of any settled norms. If any of the transferee has got any personal grievance, he is at liberty to approach this respondent seeking appropriate redressal of his grievance.” A perusal of the statement filed on behalf of the second respondent W.P.(C) 17292/2011 & conn. 15 would reveal that apart from the statement to the effect that the orders were issued to ensure better policing in the district, it did not reveal the real administrative exigency that constrained the District Police Chief to issue the impugned orders citing administrative exigency. 7. In fact, the administrative exigencies have been attempted to be explained in the additional statement. In paragraph 4 thereunder, it is stated thus:- “It is true to the facts that Exhibit P1, P2 and P3 were issued on the basis of administrative reasons and that the District Police Chief took charge on 22.6.2011 at 10.30 a.m. It is denied that the District Police Chief was not present in his office and that he had gone to Thiruvanthapuram to attend a conference of the State Police Chief on 24.6.2011. After taking over the charge as the District Police Chief, Kottayam, he held sessions of discussions with SHOs, CIs and Dy.SPs of the district on 22.6.2011. A full pledged conference of all the officers of the district was also held on 23.6.2011 at the Police Club, Kottayam wherein the Law and Order scenario of the district, white-collar crime, mafia activities, goonda activities, money chain offences, traffic problems, road accidents etc. occurring in the district and solutions thereto were elaborately discussed. It was felt highly expedient to make certain shuffles and rearrangements urgently in various police stations for bringing in an exhaustive improvement in the existing system of policing in the district and for providing more beneficial services to the citizenry. The objective of W.P.(C) 17292/2011 & conn. 16 these transfers was to engender a more effective policing to combat the ascending trend of crimes, traffic congestions and such like problems faced by the general public. Exhibit P1, P2 and P3 orders were issued in good faith and without any malafide intention. It was genuinely for the purpose of better police administration in the district that these transfers were ordered.” 8. The impugned orders in these Writ Petitions would reveal that as per the said orders, a large number of police personnel belonging to the cadres of GASIs, Sr.CPOs, CPOs, Sr.WCPOs and WCPOs were transferred. According to the respondents, they thought it highly expedient to make certain shuffles and rearrangements urgently in various police stations for bringing in an exhaustive improvement in the existing system of policing in the district and for providing more beneficial services to the citizenry. According to the 2nd respondent, a full fledged conference of all the officers of the district was also held on 23.6.2011 at the Police Club, Kottayam wherein the Law and Order scenario of the district, white-collar crime, mafia activities, goonda activities, money chain offences, traffic problems, road accidents etc. occurring in the district and solutions thereto were elaborately discussed. I have no hesitation to say that an elaborate discussion on such matters would certainly do good to the system of policing. But at the same time, after discussing such W.P.(C) 17292/2011 & conn. 17 matters on 23.6.2011 if certain police officers are transferred out on 24.6.2011 citing the above reasons, it would convey a wrong impression as regards such personnel to the public that they are inefficient, asocial or corrupt. At any rate, people will look askance at them. In the Police Department wherein the promotional prospects are not solely dependent on the seniority, any such observation, even if it is generally made, may have its own impact. If enmasse transfers are made based on such reasons even cloaking of the expression 'administrative ground' cannot make this Court to adopt a nonchalant attitude and therefore, I am of the considered view that the issue invites a