IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 WP(C).No. 23630 of 2010(C) ------------------------------------ PETITIONER(S): ---------------------- N.ABDUL RASHEED, S/O.NOOHUKKANNU, AGED 46, KOCHUMEENATHATHIL HOUSE, VENGARA, THODIYOOR NORTH P.O., KARUNAGAPPALLY, DEPUTY SUPERINTENDENT OF POLICE, PUNALUR. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY (HOME) A DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, TRIVANDRUM. 3. PRASANNAKUMAR.K., DEPUTY SUPERINTENDENT OF POLICE, KARUNAGAPPALLY. ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE FOR R3 SRI.S.SUJIN FOR R3 GOVERNMENT PLEADER MR.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/08/2010 ALONG WITH WPC NO. 23823 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ----------------------------- W.P.(C) Nos.23630 & 23823 of 2010 ------------------------------------------------- Dated this the 16th day of August 2010 J U D G M E N T W.P.(C) No.23630 of 2010 Petitioner is a Deputy Superintendent of Police. He was posted at Punalur with effect from 16.9.2009. By Ext.P1 order dated 26.7.2010, petitioner is transferred and posted as Deputy Superintendent of Police, CBCID, HHW, Kollam and the 3rd respondent is posted in his place. It is challenging Ext.P1, the writ petition is filed. 2. Petitioner states that Ext.P1 order of transfer is vitiated by malafides. According to him, one Ramabhadran, a Block President of Punalur Congress Committee was brutally murdered by the members of CPI(M), for which Crime No.314 of 2010 of Yeroor Police Station has been registered under Sec.302 of IPC. It is stated that in this case, leaders of the W.P.(C) Nos.23630 & 23823 of 2010 -: 2 :- CPI(M) and SFI, a student wing of the said party, have been arrested and were remanded. Petitioner states that he was supervising the investigation of the said crime and as the investigation was progressing in the right path, the ruling CPI (M) wanted to get rid of the petitioner and it was therefore that he was transferred. He is also referring Exts.P2, P3 and P4, good service entries, letter of appreciation and annual confidential report to substantiate his plea that he is an officer with outstanding track record. He also contends that in his transfer the provisions of Sec.4A of the Kerala Police Act and Clause 67(c) of the Kerala Police Manual have been violated. 3. The respondents 1 and 2 and the 3rd respondent have filed separate counter affidavits. 4. In the counter affidavit filed by respondents 1 and 2, they submit that it was due to administrative exigencies and public interest, that along with four others, the petitioner was also transferred by the Government as per Ext.P1. The allegation that the transfer was to get rid of the petitioner W.P.(C) Nos.23630 & 23823 of 2010 -: 3 :- from the investigation of crime No.314 of 2010 is specifically denied in the counter affidavit. The respondents have also denied the allegation that Sec.4A of the Kerala Police Act has been violated. In so far as Clause 67(c) of the Kerala Police Manual is concerned, it is stated that this manual contains general guidelines for Police officers. In so far as Clause 67 (c) is concerned, it is stated that if the instructions is strictly followed petitioner is also ineligible for the posting at the Punalur Sub-division. Further respondents 1 and 2 also state that the Government is not strictly enforcing the instructions contained in Clause 67(c) of the Manual in the case of Deputy Superintendent of Police and above and are scrupulously following the Manual in the case of Sub Inspectors and Circle Inspectors of Police. 5. The 3rd respondent has filed his counter affidavit. The plea raised by the petitioner that his brother is a leader of the CPI(M) has been denied by the 3rd respondent. He is also filed an affidavit disclosing the list of officers, who have been posted without applying the Clause 67(c). It is also stated W.P.(C) Nos.23630 & 23823 of 2010 -: 4 :- that the petitioner's mother-in-law herself is having properties within the jurisdiction of Punalur Sub-division and therefore petitioner cannot seek enforcement of Clause 67(c). 6. I have considered the submissions made. 7. The plea of malafides has been pleaded by the petitioner on the only ground that the petitioner is supervising the investigation in crime No.314 of 2010 of Yeroor Police Station and that those involved in the case wanted to get rid of him. This plea of the petitioner has been specifically denied by the Government in the affidavit filed. Apart from the assertions and counter assertions, there is no other material produced by the petitioner to substantiate his plea of malafides and in such a case, the averments of the petitioner cannot be accepted. 8. Then what remains is the plea of the petitioner that Sec.4A of the Kerala Police Act has been violated. A reading of Sec.4A shows that a minimum tenure of two years is provided to the officers, who belong to the categories mentioned therein. This does not include officers in the rank W.P.(C) Nos.23630 & 23823 of 2010 -: 5 :- of Deputy Superintendent of Police and therefore, a Deputy Superintendent of Police like the petitioner, will not get the protection of Sec.4A. This conclusion is supported by further fact that when the Kerala Police (Amendment) Ordinance was promulgated, Sec.4A of the Ordinance specifically included officers in charge of Police Subdivision, which has been omitted when the Ordinance was made the Act. 9. The learned counsel for the petitioner relied on the expression “any Police Officer” in Section 4A(2) and argued that all police officers are entitled to the benefit of Sec.4A. Having regard to the above wording of the Section 4A, I am inclined to think that the expression “any Police officer” occurring in Subsection (2), should be read in the context of the categories of officers enumerated in Sec.4A. Therefore the plea that Sec.4A of the Kerala Police Act has been violated, has to be rejected and I do so. 10. Now what remains to be considered is whether Clause 67(c) of the Police Manual is violated in this case. Clause 67(c) of the Police Manual provides that officers of and W.P.(C) Nos.23630 & 23823 of 2010 -: 6 :- above the rank of Sub Inspectors should not be transferred and posted to be in charge in the jurisdiction of which, he has house or property or very close relatives, except for good reasons. Petitioner has produced Ext.P5 voters list which substantiate the plea that the 4th respondent and his brothers live within the Punalur Subdivision and have properties. However, it cannot be forgotten that under Sec.3 of the Police Act, constitution of the Police forces is based on periodical orders issued by the Government and Sec.17 provides that police officers are to be deployed at any place as ordered by the State. These provisions enable the Government to deploy police officers, to any place they deem fit. This is all the more so for the reason that in Rule 32 of Part II KS & SSR, the Government has the power to order transfer of officers in the category of Deputy Superintendent of Police. 11. As far as Clause 67(c) is concerned, the preface of the Police Manual itself show that the instructions in the Manual are general guidelines to the police officers and it is always open to the Government to issue order deviating from W.P.(C) Nos.23630 & 23823 of 2010 -: 7 :- the Manual. Therefore the provisions of Police Manual cannot be stand in the way of the Government from issuing orders deviating from the Manual. Further, the counter affidavit filed by the Government show that they are not strictly enforcing Clause 67(c) in the case of officers from and above category of Deputy Superintendent of Police. This contention of the Government is substantiated by the facts disclosed by the 3rd respondent in his additional counter affidavit in which the details of police officers who have been posted deviating from Clause 67(c) of Manual have been furnished. Therefore if the Government choose not to scrupulously follow Clause 67 (c) in the case of Deputy Superintendent of Police and above, this Court will not be justified in finding fault with Ext.P1 on the ground of violation of Clause 67(c). This is also evident from the fact that petitioner's mother-in-law herself, is having property within Punalur Subdivision. Therefore that plea also cannot be accepted. In the result, I do not find anything vitiating Ext.P1 and the writ petition has to be dismissed and I do so. W.P.(C) Nos.23630 & 23823 of 2010 -: 8 :- W.P.(C)No.23823 of 2010 Circle Inspector of Police of Yeroor Police Station, transferred as per Ext.P1 order, has filed this writ petition, raising allegations similar to those raised in W.P.(C)No.23630 of 2010. By judgment rendered today, W.P.(C)No.23630 of 2010 has been dismissed and therefore, this writ petition also deserves dismissal and I do so. ANTONY DOMINIC, JUDGE. Jvt