IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 WP(C).No. 28967 of 2005(W) --------------------------------------- PETITIONERS: --------------------- 1. KUMARAN.C.K, HAVIDAR 2132, KERALA ARMED POLICE BATTALLION- II, P.O.MUTTIKKULANGARA, PALAKKAD. 2. K.M.MOHAMMED ALI, HAVIDAR 2957, KERALA ARMED POLICE BATTALLION- II, P.O.MUTTIKKULANGARA, PALAKKAD. 3. V.K.FAKRUDEEN, HAVIDAR 3209, KERALA ARMED POLICE BATTALLION- II, P.O.MUTTIKULANGARA, PALAKKAD. 4. P.V.HARIDAS, HAVIDAR 3215, KERALA ARMED POLICE BATTALLION- II, P.O.MUTTIKKULANGARA, PALAKKAD. 5. VINODKUMAR, VENGALATHUKANDI, HAVIDAR 3238, KERALA ARMED POLICE BATTALLION- II, P.O.MUTTIKULANGARA, PALAKKAD. 6. C.T.BABU RAJ, HAVIDAR 3271, KERALA ARMED POLICE BATTALLION- II, P.O.MUTTIKKULANGARA, PALAKKAD. 7. T.R.MANOHARAN, HAVIDAR 3297, KERALA ARMED POLICE BATTALLION- II, PALAKKAD, NOW ON DEPUTATION TO KERALA POLICE ACADEMY, THRISSUR. BY ADV. MR.K.G.ANIL BABU. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. W.P.(C). NO.28967/2005-W: 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 3. THE DEPUTY INSPECTOR GENERAL OF POLICE, KERALA ARMED POLICE BATTALLION, THIRUVANANTHAPURAM. 4. THE COMMANDANT, KERALA ARMED POLICE BATTALLION II, P.O.MUTTIKKULANGARA, PALAKKAD. 5. THE DISTRICT SUPERINTENDENT OF POLICE, PALAKKAD. 6. MOHAMMED RAFI, P.C.P. 4001, KONGAD POLICE STATION, PALAKKAD DISTRICT. 7. ABDUL SATHAR, P.C.4728, VALAPPAD POLICE STATION, VALAPPAD, THRISSUR. *ADDL.R8. NANDAKUMAR, HEAD CONSTABLE NO.4364, DISTRICT ARMED RESERVE, PALAKKAD. *ADDL.R9. MADHU, HEAD CONSTBALE NO.4365, DISTRICT ARMED RESERVE, PALAKKAD. *IMPLEADED AS PER ORDER DTD. 22/11/05 IN I.A. 16281/05. R1 TO R5 BY OVERNMENT PLEADER MR. T.K. VIPIN DAS ADDL.R8 & R9 BY ADV. MR.S.KRISHNAMOORTHY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.28967/2005-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O.(MS)207/68/HOME DTD. 07/06/1968. EXT.P.2: COPY OF THE G.O.(MS).NO.149/90/HOME DTD. 20/10/90. EXT.P.3: COPY OF THE G.O.(MS).3781/98/HOME DTD. 31/08/98. EXT.P.4: COPY OF THE ORDER NO. B.O.499/98/KAP2 DTD. 26/09/98 ISSUED BY THE R.4. EXT.P.5: COPY OF THE ORDER B.O. NO. 527/98/KAP 2 DTD. 16/10/98 ISSUED BY THE R.4. EXT.P.6: COPY OF THE CIRCULAR NO. 2/97/APB DTD. 08/97 ISSUED BY THE R.3. EXT.P.7: COPY OF THE CIRCULAR NO. 9/03 DTD. 06/05/2003 ISSUED BY THE R.2. EXT.P.8: COPY OF THE LETTER NO. A1 (A) 1053/03/APB DTD. 19/03/2004 OF THE R.3. EXT.P.9: COPY OF THE LETTER NO. L2-110476/2003 DTD. 27/07/2004. EXT.P.10: COPY OF THE REPRESENTATION SUBMITTED BY THE P.5. BEFORE THE R.1. THROUGH PROPER CHANNEL DTD. 04/04. EXT.P.11: COPY OF THE ORDER B.O. NO. 206/2003/KAP 2 DTD. 18/08/2003 ISSUED BY THE R.4. EXT.P.12: COPY OF THE LETTER NO. A1 (A)/232/2007/APB DTD. 31/05/2008 ISSUED BY THE I.G.P., A.P.B & T.P. EXT.P.13: COPY OF THE ORDER NO. A3/19027/2001 DTD. 03/05/2001 ISSUED BY THE S.P. PALAKKAD ALONGWITH THE RELEVANT PORTION OF THE SENIORITY LIST. RESPONDENTS' EXHIBITS: EXT.R4.A: OPTIONS FOR TRANSFER TO DAR BY P.1. EXT.R4.B: OPTION FOR TRANSFER TO DAR BY P.3. EXT.R4.C: OPTION FOR TRANSFER TO DAR BY P.4. EXT.R4.D: OPTION FOR TRANSFER TO DAR BY P.5. EXT.R4.E: OPTION FOR TRANSFER TO DAR BY P.6. EXT.R4.F: OPTION FOR TRANSFER TO DAR OF P.7. W.P.(C). NO.28967/2005-W: EXT.R4.G: LTR.NO.A1 – 12454/99/KAP2/PKD DT. 10/01/00. EXT.R4.H: COPY OF THE ORDER NO. 460/99P DT.D 03/09/99 ISSUED BY THE SUPERINTENDENT OF POLICE, PALAKKAD. EXT.R4.I: COPY OF THE ORDER NO. 377/99 KAP2 DTD. 24/09/99. //TRUE COPY// P.S. TO JUDGE. Prv. V.K.MOHANAN, J. ---------------------------------------- WPC. No.28967 OF 2005 ---------------------------------------- Dated, 3rd day of August, 2009 JUDGMENT The petitioners who are working as Havildars in the Kerala Armed Police II Battalion, Palakkad, preferred this writ petition with a prayer to issue a writ of certiorari quashing Exs.P5, P6, P8 and P9. It is also prayed for a declaration that they are entitled for a transfer from K.A.P. II Bn. to D.A.R., Palakkad and to local police in Palakkad, retaining their seniority over the 6th and 7th respondents and serial Nos. 14, 16 to 21, 23 to 29 and 31 onwards and other juniors included in Ext.P4 and B.O. 498/98 dated 26.9.98. The third prayer is to issue a writ of mandamus or any other appropriate writ, order or direction directing respondents 1 to 5 to transfer the petitioners from KAP II Bn. to D.A.R, Palakkad and Thrissur and local police in Palakkad and Thrissuer Districts retaining their seniority over serial Nos. 14,16 to 21, 23 to 29 and 31 onwards in Ext.P4 and B.O. 498/98 dated 26/9/98. 2. The case of the petitioners is that they were directly recruited Police Constables by the PSC to Kerala Armed Police II Battalion, Palakkad and they opted for transfer to District Armed WPC 28967/05 -:2:- Reserve Palakkad and Thrissur as per Ext.P1 to P3 Government Orders. According to the petitioners, in the light of Exts.P1 to P3, being eligible for transfer, by issuing Ext.P4 and B.O.498/98 they were ordered to transfer but as per Ext.P5, no passport was issued and they were retained as Training Instructors in the Kerala Armed Police II Battalion Palakkad in spite of Ext.P4 transfer order. It is their specific case that their juniors have already been transferred to DAR and local Police and the reason given by the respondents to deny their genuine right for transfer to DAR Palakkad , Trichur is arbitrary and illegal. Such arbitrary and illegal stand adopted by the respondents on the basis of Ext.P6 circular issued by the DIG, according to the petitioners, the DIG has no such authority to make substantial improvement over the government orders which contained the guidelines and conditions for transfer and for the denial of transfer on the basis of Ext.P6 is illegal and arbitrary. Thus according to the petitioners, they are entitled to get transfer to DAR Palkkad and Thrissur by retaining their seniority as per Rule 27(c) of the KS & SSR. 3. Controverting the claim and contentions raised by the petitioners, the 4th respondent has filed a counter affidavit. In the said counter affidavit , it is stated that the lock in period for WPC 28967/05 -:3:- transfer of Armed Police Battalion personnel to Armed Reserves which was 7 years was reduced to 5 and from 5 to 3 years and culminated the lock in period reduced to one year as per GO(Rt) 3781/98, Home dated 31/8/98. According to the counter affidavit, in the light of the government order, orders transferring the eligible and willing personnel of KAP 2Bn to Thrissur and Palakkad District were issued as per Ext.P4 order and B.O.498/98/KAP 2 dated 26.9.98. It is specifically stated in the counter affidavit that since the training for 417 Recruit Police Constables were beginning in KAP 2 Bn., the Havildars who stood transferred to Palakkad and Thrissur Districts were given a chance to remain in the Battalion only in order to work as Instructional Staff to the new Recruit Police Constables and they were to be relieved to their respective District Armed Reserves soon on completion of training. According to the counter affidavit, this measure was with a view to get the service of Havildars as Instructional staff and in return these retained Havildars will get the benefits of higher pay scale, i.e. of Havildars. If they wanted to go to Armed Reserve in normal course, they would be reverted as Police Constables before their relief to Armed Reserve. It is also stated in the counter affidavit that the petitioners accepted the option to remain as Instructional WPC 28967/05 -:4:- Staff so that they will not suffer pay cut due to reversion if they are relieved to Armed Reserves. Along with the counter affidavit, they produced Exts.R4(a) to R4(g). According to the counter, 6th and 7th respondents have not opted to remain in KAP 2 Battalion. So they were relieved. 4. It is the specific case stated in the counter affidavit that the petitioners who were enjoying the pay benefits as Havildars and in order to build up their career anticipating good promotion prospects opted later to remain in the battalion permanently. Government Order B.O.No.19/2000 KAP 2 dated 10.1.2000 on permitting the petitioners' permanent retention in the battalion was communicated to higher authorities and accordingly, Ext.R4(g) order was issued. It is also stated that there was no persuasion over the petitioners to opt for permanent retention in the battalion. On the other hand, the petitioners at their own will , voluntarily opted for permanent retention and the 4th respondent has accepted their option. It is also made clear in the counter affidavit that due to the flow of trained Police Personnel from Battalion to Armed Reserve and from there to local, the Battalion actually experienced dearth of trained Personnel such as Havildars. So there was a tendency not to discourage those willing personnel WPC 28967/05 -:5:- to remain in Battalion. According to the counter affidavit, the petitioners filed fresh option for permanent retention under the hope of enjoying higher pay and accrual of future benefits such as promotion etc. Therefore, according to the counter affidavit, the petitioners are not entitled to get order of transfer to Armed Reserve, Thrssur, at this highly belated stage, on the basis of their first option and Ext.P4 order . 5. I have heard Sri K.G.Anil Babu, the learned counsel appearing for the petitioners as well as the learned Government Pleader and also Sri S.Krishnamoorthy, the learned counsel appearing for the additional respondents 6. Sri Anil Babu, counsel appearing for the petitioners emphatically submitted that the second option from the petitioners was obtained on the bass of Ext.P6 circular which was issued by the Dy.Inspector General of Police, for which he has no authority and therefore, the option thus obtained has no legal validity. It is not disputed that they have given the second option. But according to the learned counsel, considering the discipline to be maintained in the Police force, and because of their inferior position in the constabulary, they were forced to make such options and actually, they were not willing to continue in the WPC 28967/05 -:6:- Battalion. On the other hand, the learned Government Pleader submitted that Ext.P6 is only a clarificatory circular issued by the DIG of Police so as to implement Exts.P1 to P3 Government Orders effectively, but without touching the soul of the Government Orders, in order to avoid future dispute. Accordingly, the petitioners have preferred to remain in the Battalion when the purpose for which they retained as per Ext.P5 order was over. It is also pointed out by the Government Pleader that persons similarly situated opted to transfer and accordingly they were given transfer. Thus, According to the learned Government Pleader, the present claim for transfer on the bass of Ext.P4 order cannot be entertained at this belated stage. 7. I have carefully considered the arguments advanced by both the counsel for the petitioners and the learned Government Pleader and also Sri S.Krishnamoorthy appearing for additional respondents. Going by Ext.P6 circular, it can be seen that there is nothing against the letter and spirit of Exts.P1 to P3 Government Orders. On the other hand, clause 2 of Ext.P6 reads as: “(ii) The personnel can exercise option either to continue in the Battalion permanently WPC 28967/05 -:7:- forgoing their right for AR transfer or opt for AR transfer under the existing rules. The option to be more specific, shall hereafter be obtained in the sample option form appended.” In Ext.P1 clause (1) reads as : “(1) Havildars (Head Constables), Naiks and Lance-Naiks who have a satisfactory record of not less than three years in the category, may be transferred to the District Armed Reserve on the conditions that only those who opt to be reverted as Constables before transfer to the District Armed Reserve on the condition that only those who opt to be reverted as Constables before transfer to the District Armed Reserve may be so transferred except where the Superintendent of Police of the District is satisfied that transfer in the rank held by them will not be prejudicial to the interests of members of the District Armed Reserve.” Clause 4 of Ext.P1 further says: “(4). Those who desire to be transferred in accordance with the provisions of Sub- paragraphs (1) and (2) above may submit application for such transfer. The names of those found eligible for transfer may be registered by the Commandant of the Unit concerned and transfers affected in the order of their applications.” From the above, one can understand that Ext P6 is a guideline WPC 28967/05 -:8:- clarificatory in nature for the purpose of effective implementation of the object behind Ext.P1. There is no amendment or deletion of Ext.P1 Government Order. If that be so, the second option obtained from the petitioners cannot be treated as illegal or arbitrary one. 8. It is true that as per Ext.P4, several among other persons, the petitioners' option were accepted and they were ordered to transfer. But under the circumstances, mentioned in Ext.P5, the petitioner's and certain other persons were retained in the Battalion as Training Instructors for the newly recruited batch in the Battalion. Ext.P5 is dated 16.10.98, i.e. immediately after Ext.P4, and within a period of one month from the date of Ext.P4. The case of the respondents is that after the training purpose was over, the petitioners were given option, that given to the other persons those who are retained as per Ext.P5 order. But the petitioners opted to remain in the Battalion. But certain other persons, those who were retained after ordered to transfer as per Ext.P4, again opted for transfer, and accordingly, they were given transfer orders. Thus, though the petitioners were seniors, persons who were juniors to the petitioner's and who opted to transfer to Palghat were allowed their option. It was under this factual WPC 28967/05 -:9:- background, the respondents declined the request of the petitioners for transfer on the ground that their juniors were already transferred. If the petitioners' requests are allowed at this belated stage, it will affect the seniority of the persons in the Palakkad Armed Reserve. 9. One of the contentions raised by the counsel for the petitioners is that the second option was made by the petitioners because of the particular circumstances that was prevailing at the time, especially, the petitioners being inferior persons in the Battalion, they have to act as per the instructions of their superior officers observing the discipline and under that circumstances, they gave the option to remain in the Battalion. The above contentions seem to be not correct in the light of the fact which I indicated earlier. Persons those who are retained as per Ext.P5 for the purpose of imparting instructions, opted to transfer when they were given option and accordingly, that option was accepted and they were accordingly transferred. Nothing is brought on record to show that the petitioners were prevented from making such option and adopting such course. Therefore, the contention of the learned counsel for the petitioners cannot be accepted 10. In the light of the above facts , circumstances and WPC 28967/05 -:10:- discussion, I am of the view that there is no merit in the writ petition and, accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- WPC 28967/05 -:11:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..