IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 26TH DAY OF MARCH 2013 PRESENT THE HONBLE

MR. JUSTICE N.KUMAR AND THE HONBLE MR. JUSTICE B.MANOHAR

WRIT PETITION NO.13995 of 2013 (S-CAT) c/w WRIT PETITION NOS.10988-91 of 2013 (S-CAT)

In W.P. No.13995/2013 BETWEEN: T. Suneel Kumar, IPS S/o.T.Govindarajan Aged about 52 years Working as Inspector General of Police & Additional Commissioner of Police (Law & Order), Bangalore City Infantry Road Bangalore 560 001 & r/a Flat No.141/142 `Ranka Heights 7th Cross Domlur, Bangalore 560 071

...Petitioner

(By Sri P S Rajagopal, Senior Counsel for Sri M N Prasanna, Advocate) AND: 1. State of Karnataka, Represented by the Chief Secretary to Government, Department of Personnel and Administrative Reforms (Services-IV) Vidhana Soudha Bangalore-560 001 2. Director General & Inspector General of Police Karnataka, Nrupathunga Raod Bangalore 560 002 3. Sri Alok Kumar, I.P.S., Inspector General of Police & Commander, Anti-Naxal Forc Udupi 576 101 Karnataka State 4. Police Establishment Board Represented by its Chairman & Director General & Inspector General of Police Nrupathunga Road Bangalore 560 002 5. Union of India Represented by its Secretary Ministry of Home Affair North Block New Delhi-110 001

Respondents

(By Sri Ashok Haranahalli, Senior Counsel for Sri Siddartha H M, Advocate for R3; Smt. S Susheela, AGA for R1 and 2)

This writ petition is filed under Articles 226 and 227 of the Constitution of India with a prayer to quash the order dated 20.03.2013 passed by the Central Administrative Tribunal, Bangalore Bench, Bangalore in Original Application No.186/13, under Annexure `A to the writ petition by issue of writ in the nature of Certiorari and allow original application No.186/13, filed by the petitioner before the Tribunal as prayed for in the application and grant all consequential benefits that would flow from such order.

In W.P. Nos.10988-91/2013 BETWEEN: Dr. Pawar T.D., IPS (KN 04) Aged about 53 years, S/o Desu Pawar S.P. CID, Carlton House Palace Road Bangalore

...Petitioner

(By Sri Navkesh Batra for M/s. Nandi Law Chambers, Advocates AND: 1. The State of Karnataka, By its Secretary to Government Home Department Vidhana Soudha Bangalore 560 001

2. Smt.D.Roopa, IPS (KN-2000) Major, DCP (CAR HQ) Sirsi Circle, Mysore Road Bangalore 560 018 3. The State of Karnataka Rep. by its Principal Secretary Department of Personnel & Administrative Reforms Vidhana Soudha Bangalore 560 001

Respondents

(By Sri S. Susheela, AGA for R1 and R3; Smt. D. Roopa, Respondent-2 party-in-person)

This writ petition is filed under Articles 226 and 227 of the Constitution of India with a prayer to set-aside/quash the order dated 13.02.2013 passed by the Central Administrative Tribunal, Bangalore in OA. No.43/13 at Annexure `A.

These writ petitions coming on for preliminary hearing, this day, N.Kumar J., delivered the following: ORDER

The interpretation of Section 20B of the Karnataka Police (Amendment) Act 2012, falls for consideration, in these two petitions. Therefore, they are taken up for consideration together and disposed of by this common order.

2.

The facts in W.P.No.13995/2013 is as under: The petitioner Sri T Suneel Kumar is a member of Indian

Police Service. He joined the Service by direct recruitment in 1989. He was allotted to the Karnataka Cadre. He has worked as Assistant Superintendent of Police at Humanabad in Bidar District and Superintendent of Police at Kolar Gold Fields and Raichur. He was transferred to Bangalore as Deputy

Commissioner of Police (South), Bangalore. On his promotion as Deputy Inspector General of Police, he was posted and working as Deputy Inspector General of Police, Fire Services. On promotion to the rank of Inspector General of Police, recognizing his skills and enormous experience gained by him in field postings, he was posted as Home Secretary-II, Government of Karnataka. On completion of the said posting, he was posted and working as Additional Commissioner of Police (Law and Order), Bangalore City from 27.09.2010. The

1st respondent Government issued a notification dated 11.03.2013 transferring the petitioner as Inspector General of Police & Commander, Anti Naxal Force, Udupi and posting the

3rd respondent, who is presently holding the said post as Additional Commissioner of Police (Law and Order), Bangalore City, in place of the petitioner. The impugned transfer effected by notification dated 11.03.2013 has neither been

recommended by the Board nor the Board had any occasion to deliberate on the issue. The 3rd respondent who was working at Bangalore till August, 2011 as Joint Commissioner of Police (Crime) has now been brought back to Bangalore in violation of the decision of the Honble Supreme Court in Prakash Singhs case and in violation of the provisions of Amendment Act. The petitioner has been shifted arbitrarily by the forces against whom the Honble Supreme Court intended the Police Force to be insulated. Therefore aggrieved by the said order, he

preferred an application No.186 of 2013 before the Tribunal. The Tribunal granted an interim order of stay of the order of transfer.

3.

The 3rd respondent entered appearance, filed his

objections and contested the application. He has stated that

he has meritorious, outstanding and unblemished service and he has made sacrifice for upholding the dignity and discipline in the police force and in bringing down the terrorists, naxalites and rowdy elements and rowdy activities in the cities and towns wherever he was posted. He has received the

appreciation of his superiors and common public. The post of IGP and Commander, Anti Naxal Force is a tough post to which several officers of IPS cadre had refused to accept. When he was posted to the said post he had to leave his family at Bangalore as there was constant threat of harm being caused to his family owing to risk involved in his duty. After he took charge at Udupi, he led the force from the front and conducted several major operations in the dense forests of the Western Ghats to bring down the Naxalite Activities. In a major

operation, a major Naxal camp was raided in the forests of Western Ghats. In fact, one of the stipulations while posting him to the said post was, after successful completion of one year, he would be entitled to a reasonably good posting and accordingly as he has completed one year seven months in the

said post, he was posted in place of the petitioner herein. Therefore, he contended that there is no illegality in the order of transfer.

4.

The State has filed Statement of Objections. After

traversing the factual aspects, coming to the legal aspects, the State has stated that in view of the directions given by the Honble Supreme Court of India in the Writ Petition (Civil) No.310/1996 in the judgment dated 22.09.2006, the State Government of Karnataka constituted the Police Establishment Board (PEB) on 24.08.2009 itself. Later as the Karnataka

Police (Amendment) Act, 2012 came in to force with effect from 02.06.2012, the Police Establishment Board (PEB) was

reconstituted on 23.06.2012 and 14.02.2013. constitution, the Board has not hitherto

Since its

recommended

regarding the posting and transfers of IPS Officers. Such being the case, the Government in order to attend to the need of the day in view of the administrative exigencies, has effected the subject transfers. The list of dates on which the Police

Establishment Board (PEB) has functioned is enclosed. last meeting of the PEB was held on 28.11.2012.

The

5.

The transfers in question fall under the category of

Section 20-B (2)(c) of the Karnataka Police (Amendment) Act, 2012. As per Section 20-B (2)(c) of the Act, the Police Board (PEB) has to make appropriate

Establishment

recommendations to the Government regarding postings and transfers of officers of and above the rank of Additional Superintendent of Police. The writ petitioner herein and the

respondent Sri.Alok Kumar both fall under the category of Officers above the rank of Additional Superintendent of Police. Then, the State has given the particulars of the Constitution of the Police Establishment Board. Since some of the Additional Directors General of Police are also members of the PEB, the mode of considering the transfers of such of the ADGPs or members of the PEB was also an issue. Whether there has to be a separate body to consider such cases, is also under consideration by the Government. The procedure laid down in

10

the Karnataka Police (Amendment) Act, 2012 is not clear about the procedure to be followed in the case of the Officers, who have spent more than the prescribed tenure and the provision for consultation with PEB or with regard to the powers exercised by the Government suo motu. A communication

from the Election Commission of India dated 20.03.2013 is enclosed to show the situations under which some transfers are to be effected. In such situations it would be difficult for the Government to wait for the recommendations of the PEB. In view of all this, the Government is considering the framing of guidelines for functioning of PEB, which will streamline the process of recommendation. In view of the fact that the PEB has not given its recommendations hitherto in connection with I.P.S. Officers of the rank of Additional Superintendent of Police and above, the Government was of the view that the procedure laid down under Section 20-B of the Karnataka Police (Amendment) Act, 2012 is only recommendatory in nature and not mandatory and does not in any way limit the powers of the State Government under Section 4 of the Karnataka Police Act.

11

Officers are chosen for important and tough assignments considering their meritorious services. In the case on hand, the petitioner is in Bangalore since February 2000, when he was posted as DCP (South Zone), Bangalore City, Bangalore. has worked in different capacities in different places. He He

having completed a fairly long period of almost 2 years in the present assignment, he was transferred and the respondent No.3 has been brought in his place having regard to his experience in the earlier position. He has reported to duty and therefore, State contends that the impugned order is valid and does not suffer from any legal infirmity and does not call for interference by this Court.

6.

The

Central

Administrative

Tribunal,

by

the

impugned order dated 20.03.2013 has rejected the Original Application filed by the petitioner. The Tribunal has

categorically held that Section 20B of the Karnataka Police (Amendment) Act is mandatory and should be followed. However, after recording the said finding, it declined to set-

12

aside the order of transfer and directed that the future transfers and postings of Police Officers in the State of and above the rank of accordance with Additional SPs, should be made in the recommendations of the Police

Establishment Board.

Further direction was issued to the

Police Establishment Board to regularly meet and consider the question of transfers and postings of Senior Officers of and above the rank of Additional SPs from time to time by proper exercise of powers given under Section 20B of the Act. It accepted the explanation offered by the Government that the observation of the Tribunal in O.A. No.43/2013 that the said Section 20B of the Act is mandatory, was not brought to the notice of the Government before effecting the impugned transfer and therefore the Tribunal gave one more opportunity to the Government to effect transfers and postings following due process as prescribed in the said enactment. It also

recorded a finding that the transfer order as such does not harm either the applicant or the 3rd respondent as the applicant-petitioner has already completed 2 years and 6

13

months in the present assignment and the 3rd respondent has also completed 1 year and 7 months at the Anti Naxal Force in Udupi and he is eligible to be considered for a reasonably good posting. Accordingly, the application came to be dismissed by an order dated 20th March 2013. Aggrieved by the said order, W.P.No.13995/2013 is filed.

7. under:

The facts is W.P. Nos.10988-91/2013 are as

The petitioner Dr.Pawar T.D. is an IPS Officer of 2004 batch. By a notification dated 22.11.2012, he was transferred with immediate effect as Deputy Commissioner of Police City Armed Reserve (HQ), Bangalore City. He took charge on

26.11.2012. The post of the DCP is equivalent to and on par with the post of SPs. SP rank Officers in the Commissionerate are designated as DCPs within the city limits. Therefore, the petitioner as DCP (CAR HQ) who was posted as DCP City Armed Reserve (HQ), Bangalore City is entitled to remain in the said post for a period of 1 year in terms of the Karnataka Police

14

(Amendment) Act, 2012 and 2 years as per the Apex Courts ruling in Prakash Singhs case. However, within a span of 1 months, by notification dated 19.01.2013 he was ordered to be transferred without any posting and in his place the 2nd respondent was posted with immediate effect. It is to

accommodate respondent No.2 he is transferred from the post to which the petitioner was posted just 1 months ago. Aggrieved by the said order, he preferred an application before the Central Administrative Tribunal, Bangalore by filing O.A.No.243/2013. An interim order of stay was granted. In spite of the interim order, respondent No.2 suo motu assumed charge on the same day i.e., 23.01.2013, the date of the interim order even though petitioner had not handed over charge of the post and the procedure of Form 100 was not followed. She has illegally taken over the charge. During the pendency of the

application before the Tribunal, notification dated 07.02.2013 is issued to the effect that the petitioner is posted as SP, CID, Bangalore. The said notification is issued with a rider that it would be given effect to only after the CAT would vacate/modify

15

the interim order dated 23.01.2013 or final disposal of the application whichever is earlier.

8. objections

The State has filed a detailed statement of and contended that the duties of Deputy

Commissioner of Police, City Armed Reserve and Deputy Commissioner of Police of the Division are altogether different. The main difference between the duty of these two posts is that the primary responsibility of the Deputy Commissioner of Police of the Division is effective maintenance of law and order and prevention and detection of crime in their jurisdiction. This difference distinguishes the operational posts which are having a minimum tenure of one year and non operational posts which no specific minimum tenure is provided. Therefore the petitioner could be transferred even before the expiry of one year, as he is not holding the operational post. Therefore State contends that it has not violated the law.

16

9. statement

The private respondent has also filed a detailed of objections. She reiterates the aforesaid

contention and contends that the petitioner is in no way affected by the transfer order as he has been given posting in Bangalore itself and therefore she sought for dismissal of the writ petition.

10.

The Tribunal, after hearing the parties, in spite of

coming to the conclusion that the impugned transfer order is illegal and opposed to the statute, declined to quash the impugned transfer order and dismissed the said application on the sole ground that respondent No.2 has already taken charge. Pursuant to the said order of the tribunal dated 13.02.2013 and in terms of the notification dated 07.02.2013, Movement order dated 15.02.2013 was issued to the petitioner to take charge of the Post of SP CID, immediately. petitioner signed the Charge Transfer Certificate The on

16.02.2013. He has taken charge as SP CID on 16.02.2013.

17

Therefore aggrieved by the said order of the Tribunal, he has preferred this writ petition.

RIVAL CONTENTIONS 11. Sri P.S. Rajagopal, learned Senior Counsel

assailing the impugned order in W.P.No.13995/13 contends that, in terms of the directions issued by the Apex Court in the case of PRAKASH SINGH & OTEHRS Vs. UNION OF INDIA & OTEHRS reported in 2006 (8) SCC 1, the Karnataka State Legislature passed Karnataka Police (Amendment) Act, 2012, which came into force with effect from 02.06.2012, inserting new Chapter II A in the principal Act. Section 20B of the Act, provides for Police Establishment Board, for short, hereinafter referred to as the BOARD, which has been vested with the power of making appropriate recommendations to the

Government regarding postings and transfers of officers of and above the rank of Additional Superintendent of Police. only on such recommendation, the Government It is gets

jurisdiction to transfer and post such officers. Without such

18

recommendation, the Government has no authority to transfer and post officers of the said rank. In the instant case,

admittedly, there is no recommendation made by the Board and therefore the order passed by the Government de hors such recommendation and contrary to Section 20B of the Act is void and is liable to be set aside. If the background in which the said provisions were introduced by way of amendment is borne in mind, it is clear that in the matter of transfer, the sole objective is to prevent political interference. Therefore the said recommendation is mandatory and the Government has to give due weightage to such recommendation and then only it can make an order of transfer. defeat the object of the Act. Any other interpretation would Therefore he submits that the

impugned order of transfer is void ab initio and requires to be set aside.

12. Smt.

The Susheela

learned

Additional for

Government 1

Advocate and 2,

appearing

respondents

supporting the impugned order contends that Section 20B of

19

the Amended Act is not mandatory. It is directory. Section 4 and 7 of the Act, read together make it clear that even in the absence of recommendation from the Board, the Government has the power to effect transfers. Therefore it cannot be said that the said order is without authority of law. In fact, though the Board is constituted, it has not met and the Government cannot be a silent spectator and cannot fail to discharge its duties and therefore in public interest, the impugned orders are passed and no fault could be found with the same. She further contended that Rules are yet to be framed to give effect to the said provision and therefore during the interregnum the Government is competent to pass the impugned order. There are also some anomalies which require to be corrected.

13.

Sri Ashok Haranahalli, learned Senior Counsel

appearing for the private respondents contended that having regard to the language employed in Section 20B of the Act in respect of transfers, postings and promotions and other service grievances relating to matter of officers of and below the rank of

20

Deputy

Superintendents

of

Police,

it

is

the

Police

Establishment Board, which is authorized to decide such issues. Such a decision may be modified in exceptional cases after recording reasons for doing so by the Government, otherwise, it is to be given effect to. However, in the case of transfers, postings and promotions of and above the rank of Additional Superintendents of Police is concerned, the role of the Police Establishment Board is only advisory in nature, having regard to the language employed in clause (c) of subsection (1) of Section 20B of the Act. Such recommendations should be in the nature of broad guidelines and not in regard to transfer of individual officers. In that view of the matter, it is the Government alone, by virtue of power under Section 4 and 7 of the Act, which is authorized to make transfers and therefore the impugned order passed cannot be construed to be one without authority. Even now, if the petitioners are

aggrieved by such an order, in view of clause (6) of Section 20B of the Act, the petitioners may approach the Board and the Board has the power to consider their request and make

21

appropriate recommendations. Therefore he submits that no case for interference with the order of transfer is made out. In fact the petitioner has been working for the last 12 years in Bangalore in one post or the other and the third respondent has completed the tough task of fighting the Naxalites. His tenure in the said post is only one year and he has already completed one year seven months and was rightly posted to the present post.

14.

Sri Navakesh Batra, learned Counsel appearing

for the petitioner in the connected matter submits that facts set out in the petition makes it clear that the petitioner was transferred to Chikkaballapur as Superintendent of Police on 09.04.2010. On 22.11.2012 he was transferred from the said post to the post of Deputy Commissioner of Police, City Armed Reserve (HQ) Bangalore City and from there he is again transferred on 19.01.2013 within a span of 1 months as Superintendent of Police (CID). These facts clearly demonstrate that there is no rationale behind the said transfer. It is

22

contrary to Section 20F of the Act. The Government circular issued prescribes three years as the period of stay at Head Quarters as he is a Group-A employee. Therefore he submits that not only the said transfer is contrary to the law laid down by the Apex Court in PRAKASH SINGHs case, but also contrary to the amended statute and therefore it requires to be set aside.

15.

Per

contra,

Smt.

D.

Roopa

the

second

respondent - party in person submitted that she has completed three years of service in her previous place of posting and she has been transferred to the current post. The Government has the power to pass the order of transfer and she has no role to play in shifting the petitioner from his previous position to the present position within one and a half months and therefore it cannot be said that the order of transfer is illegal. She also

contends that Section 20B read with Section 20F of the Act, has no application, as he is not functioning in the operational post and as such Section 20F of the Act, is not attracted. Therefore he can be transferred within one year. The circular

23

on which reliance is placed has no legal effect as held by the Apex Court in the case of STATE OF UP & ORS Vs. GOBARDHAN LAL, which is disposed of on 23rd March, 2004. Therefore she submits that no case for interference is made out.

16.

In the light of the aforesaid facts and rival

contentions, the points that arise for our consideration in these writ petitions are as under:

(1)

Is Section 20B of the Act, as amended mandatory or directory in nature?

(2)

Whether the impugned orders passed are without the authority of law and therefore are liable to be set aside?

17.

In order to appreciate and interpret Section 20B of

the Act as amended, it is necessary to know the background which gave rise to the said amendment.

24

RECOMMENDATION OF THE COMMISSIONS

18. which

The Indian Police Act, 1861 was an enactment governed the police in the country prior to

independence.

The Government of India, Ministry of Home

Affairs, appointed National Police Commission to review at the National level the police system after independence as the Police Act had remained archaic despite radical changes in the political, social and economic situation in the country. A fresh examination was found necessary regarding the role and performance of the Police, both as a law enforcement agency and as an institution to protect the rights of the citizens enshrined in the Constitution. Therefore the National Police

Commission headed by Sri. Dharma Vira, a former Governor and a civil servant and five others, were constituted. Fifteen issues were referred to the Commission for consideration. The said Commission submitted its second report on 16th August, 1979, covering various issues which were referred to them.

25

The extracts of the report which are relevant for the present purpose are as under:-

15.5 The interaction of the political party in power with the civil services in general and the police in particular has also been considerably influenced by the tactics adopted by some political parties in opposition who believe in establishing their political presence only by continuously keeping up an agitationist posture. The manner in which different political parties have functioned, particularly on the eve of periodic elections, involve the free use of musclemen and Dadas to influence the attitude and conduct of sizeable sections of the electorate. Commenting on the last Bihar the local panchayat elections in the "Hindu"

correspondent of

reported as below in its issue of August 5, 1978 :

"The

Panchayat in

elections the recent

like

the

other have

elections

past

demonstrated once again that there can be no sanity in Bihar as long as politics continue to be based on caste and gangsterism. A significant pointer to this was the frank

26

confession in the Assembly the other day by the Minister of Agriculture, Mr.Kapildeo Singh that he patronized and would continue to patronize gangsters and criminals to fight and win elections as long as the existing system of fighting is not changed. Speaking in the Assembly, Shri Singh declared : 'It is well known that each one of us, irrespective of all party fighting affiliations, elections, who is serious about

patronizes

anti-social

elements and enlists their support. It is another matter that we do not admit this.'"

The involvement of each people in political activity brings in its wake anti-social elements who exploit their proximity to politicians to gain protection from possible police action under the law. The nexus between unscrupulous elements among politicians and such anti-social element particularly affect the enforcement of social and economic enactments such as those against prostitution, gambling,

smuggling, black-marketing, hoarding, adulteration, prohibition etc. whenever they involve politically influential accused. Arrest and enlargement on bail of persons involved in such offences and their

27

subsequent prosecution in court attract political attention. This also results in some places in a kind of link being established between the elected representatives and the Station House Officer in the day to day affairs of the police station in which the local Dadas frequently get involved. This link facilitates the practice of corruption and other malpractices by the police and politician acting in collusion with each other.

15.12 The statistical tables of this study support the following conclusions :

(i) Political interference is seen by the public as a major factor contributing to the poor image of the police and manifests itself in the misuse and abuse of police powers and disregard of the law by the police;

(ii) People consider political interference with police as a greater evil than even corruption; and

28

(iii)

Political

interference

appears

more

pronounced in rural areas than in urban areas.

15.14 Pressure on the police takes a variety of forms, ranging from a promise of career

advancement and preferential treatment in service matters if the demand is yielded to, and a threat of drastic penal action and disfavored treatment in service matters if the pressure is resisted. While it is not possible to punish a police officer with a statutory punishment under the Discipline and Appeal Rules, without adequate grounds and

following a prescribed procedure, it is very easy to subject him to administrative action by way of transfer or suspension on the basis of an alleged complaint taken up for inquiry. While suspension acts as a great humiliating factor, a transfer acts as a severe economic blow and disruption of the police officer's family, children's education, etc. The threat of transfer/suspension is the most potent weapon in the hands of the politician to bend down the police to his will. We have been told in several States about the frequent transfer of police personnel ordered on direct instructions from political levels in

29

Government, in disregard of the rule that the transfer of the personnel concerned fell within the normal domain of the supervisory ranks within the police. We are aware of an instance in which the Inspector General of Police himself was transferred to an inconsequential post under the State

Government immediately after he had shown his reluctance to issue orders for the transfer of a large number of police personnel as desired by the political leadership when he felt that the transfers were not justified on normal administrative grounds. A typical instance was brought to our notice in which even though the local commanding officer specifically pointed out the hardship and loss of morale that would result from the peremptory transfer ordered by a Minister, he was over-ruled and was asked to comply with the order forthwith. We were also informed of an instance in which an Inspector of Police, under orders of transfer issued by his departmental superiors, exclaimed publicly that he would soon get orders from above cancelling his own transfer order and transferring away his superior officer instead. The Inspector's transfer was in fact cancelled within the next few days and it was his superior officer who had to move out

30

under the compulsion of a politically directed transfer order! The consequent serious damage to discipline and morale of the chain of command within the police system can be easily imagined.

15.16 Political interference emanates not only from political functionaries in Government but also from others outside the Government who arc connected in any manner with different political parties including the ruling party. Further, an individual's capacity to generate political pressure on the police is not necessarily linked with his formal association with a political party. He can operate through several link that are forged by considerations of money, caste, community, regional affinity, etc.

15.17

We are also aware that the unhealthy

influences and pressures that arc brought to bear on the police do not always originate from political sources alone. Capitalists, industrialists,

businessmen, landlords and such others who form the richer and more influential sections of society have immense capacity to generate such pressures to operate at different levels in the police, either directly or indirectly through political sources, and

31

influence the course of police action. Any corrective measure to deal with this malady has, therefore, to cover this pressure group also.

15.18

Interference sources,

with

the

police the

system politic

extraneous

especially

encourages the police personnel to believe that < career advancement does not at all depend on the merits of their professional performance, but can be secured by currying favour with politicians who count Politicking and hobnobbing with functionaries outside the police system appear very worthwhile in the estimate of an average police officer. Deliberate and sustained cultivation of a few individuals on the political plane takes up all the time of a number of police personnel to the detriment of the

performance of their normal professional jobs to the satisfaction of the general public at large. This process sets the system on the downward slope to decay and total ineffectiveness.

15.19 Apart from deterioration in the quality of police performance viewed from the public point of view, the exercise of such pressure on the police system from political and other extraneous sources

32

immediately damages the control system and weakens the normal chain of command that has to operate efficiently if the discipline and health of the system are to be maintained. Interference at the operational level in police stations, police circles, etc. results in the total by-passing of the supervisory officers in the hierarchy. Subordinate officers see it in every day of their official life that their superior officers count little in the ultimate disposal of a matter which lies in the normal course within their official cognisance only. Decisions taken at a far higher levelpolitical levels to governmentare implemented without question at the operational level. The frequent by-passing of the normal chain of command results in the atrophy of the supervisory structure. It, therefore, fails to operate effectively even in matters which do not attract any such extraneous interference. This was strikingly seen in the situation arising from the policemen's stir in certain States in May-June 1979. It is also

significant that the policemen's protest activity in this period, which mostly centred round the living and working conditions of the constabulary, is reported to have been triggered off by an alleged incident in one State in which a police constable

33

was attempted to be victimised at the behest of a political functionary. The seriousness of the

situation was recognised by the conference of Chief Ministers of States convened by the Union Home Minister on the 6th June, 1979, to discuss Police Reforms, with particular reference to the First Report we had submitted to Government in February 1979. In the note circulated by the Ministry of Home Affairs for this Conference, it was noted that "there is a feeling in all States that interference not only in the matter of postings and transfers, but also in the matter of arrests, investigations and filling of charge-sheets in widespread. The principal

grievance of the policemen is that if there is any unwillingness to comply with unlawful or improper suggestions, the persons concerned are harassed or humiliated". The note went on to observe farther that "Government of India would like to impress upon the Chief Ministers that efforts should be made to ensure that there is no unlawful interference in the exercise of statutory powers. Secondly, in the matter of postings and transfers States should see to restore leadership and effectiveness of the official hierarchy with a view to ensure that the requisite rapport between the officers ;and the men is not

34

further eroded". At the end of the deliberations of this conference the participants agreed that the "problems arising out of interference will bear effective solutions at the political level". The

suggestion was noted that Chief Ministers might discuss with leaders of political parties the basis for some consensus on the issue. It was also agreed that a "similar effort at the national level would also be explored and the Home Minister will request the Prime Minister to initiate appropriate steps in this behalf'.

15.26 The increasing scope for mala fide interaction between the politician and the police has also encouraged unscrupulous policemen at different levels to forge a working relationship with the politician for gaining Undue career advantage, besides pecuniary advantage resulting from

collusive corruption. The phenomenon of political interference has thus grown to enormous proportion, assiduously fed by vested interests among the police as well as the politicians. We are conscious that any remedial measures we might think of in this context will have to contend with resistance from such vested interests on both sides.

35

15.35

We would commence our analysis of

the problem by quoting the following observations in Chapter XXIV of the Third and Final Report dated 6th August, 1978 of the Shah Commission of Inquiry:

"Para 24.10The political system that our Constitution has given to our country is such that it contemplates parties with different political ideologies administering the affairs of the Centre and the State Governments. It is necessary in the interest of the territorial, political and economic integrity of the nation to ensure that the factors which contribute to such integrity are forever and continuously strengthened and not impaired. One such factor, and a very important and decisive one, is the body of public servants at various levels and particularly those at the decision making levels belonging to the different disciplines and functioning in the States and at ^ the Center. If the basic unity and territorial integrity of the country is to be emphasized at the political level it is imperative to ensure

36

that the officials at the decision making levels are protected and immunised from threats or pressures so that they can function in a manner in which they are governed by one single considerationthe promotion of public well-being and the upholding of the

fundamentals of the Constitution and the rule of law. The Government ought to ensure this, if necessary, by providing adequate and effective safeguards to which the officials may turn if and when necessary against any y^ actual or attempted threats by the political ^"and/or administrative authorities to sway the officials from performance of their

legitimate duties.

Para 24.17.................. a recurrence of tins type of subversion is to be prevented, the system must be overhauled with a view to strengthen it in a manner that the

functionaries working the system do so in an atmosphere free from the fear of the

consequences of their lawful actions and in a spirit calculated to promote the integrity and welfare of the Nation and the rule of law.

37

This will call for considerable bean-searching both .at the political and the administrative levels. Both the groups, during the period of the emergency, sadly deviated from their respective legitimate roles of duty,

trespassing into each other's areas with the consequences that are there for all to see and many to lament. The officials on the one side and the politicians on the other do not limit their areas of operation to their accepted and acknowledged fields, this Nation cannot be kept safe for working a democratic system at Government. . ."

Our principal task in this exercise will, therefore, be to spell out as precisely as possible the areas in which political functionaries including the political executive may have legitimate facility for

interaction/intercession sad intervention with the career executive which will naturally include the police, and to further spell out the appropriate safeguards to ensure that this (acuity does not lead to unauthorised interference with the executive.

38

19.

The Ministry of Home Affairs, Government of India,

set up a Police Reforms Committee in pursuance of the directions of the Supreme Court in the context of Writ Petition (C) No.310/1996. The terms of reference of the Committee are as follows: 1. To review action taken to implement the recommendations of the National Police

Commission (NPC), National Human Rights Commission (NHRC) and the Vohra Committee.

2. To suggest ways and means to implement and pending recommendations of the above Commission/Committee.

3.

Consider and make recommendations any other matter which the

regarding

Government may refer to the Committee or which the Committee considers necessary in this behalf.

39

20.

The said Committee was headed by J.F. Ribeiro.

The relevant portion of the recommendation of the said Committee are as under:

Establishment of the Police Establishment Board The Committee has recommended that a Police Establishment Board consisting of the

Director General of Police as Chairman and four senior-most who are immediately junior to him in the police hierarchy should be set up to monitor transfers, promotions and other related matters. The Committee feels that transfers, promotions, rewards, punishments, including suspensions and all service-related matters of officers of and below the rank of Deputy Superintendent of Police should be the sole prerogative of the police hierarchy. The Police Establishment Board has been suggested to ensure this.

21.

Thereafter, yet another Committee was constituted

by the Ministry of Home Affairs, Government of India in January 2000, known as Padmanabhaiah Committee on Police

40

Reforms.

The

Committee

ascribes

the

growing

political

interference in the police administration and its work to recruitment and transfer policies/procedures, failure of

political leadership and the failure of police leadership. The Committee is of the view that most problems of police are due to arbitrary and frequent transfers of police personnel of different ranks and once the powers in this regard are given to the departmental hierarchy, political interference in policing will be reduced. For this purpose, the Committee has recommended that a Police Establishment Board, consisting of the Director General of Police as its chairman and four other members of the police department, should be constituted to decide the transfers of all officers of the ranks of Deputy Superintendent of Police and above. This idea has been borrowed from the Ribiero Committee report on Police Reforms, but modified by the Committee. While the Ribiero Committee had suggested the creation of the Board to decide transfers, promotions, rewards, punishments, including suspensions and all service related matters of officers of and below the rank of

41

Deputy Superintendent of Police, the Committee wanted the Board to deal with only transfers and that too only of officers of and above the rank of Deputy Superintendent of Police. To reduce political interference, the Committee has suggested that (i) coordination with the secretariat should be the function of the DG/Commissioner of Police or their nominee and no one else should frequent the Secretariat; and (ii) any officer approaching rewards etc. a politician should be for transfers/postings, dealt with. training, However,

severely

oral/written representation to the Chief Minister, Home Minister, Minister of State for Home would be legitimate. These suggestions are too naive to inspire confidence.

22.

The fact that the rule of law is gradually being

replaced by the rule of political expedience is a cause of concern to all who are interested in establishing good governance in the country. The Padmanabhaiah Committee too has shown this concern. However, the control of the political executive over police cannot altogether be avoided in a

42

democratic society. What is required is to put in place necessary institutional safeguards to ensure that control is exercised for legitimate purposes and for public good. If the control exercised is for malafide purposes and results in abuse of public power, rule of law will be the prime casualty. One

important reason for poor image of the police is the public perception that the police are partisan, biased in favour of the rich and powerful and when asked by their political masters to bend are generally willing to crawl. According to the

Committee, the major reason for the politicisation of the police is the lack of a proper tenure policy for posting of officers at different levels and the arbitrary transfers and postings which have been used for political interest.

23.

The

main

recommendations

made

by

the

Committee are as follows: (i) A body headed by the Chief Justice of the State High Court as Chairman, State Chief Secretary and an eminent public person as members should be constituted to recommend a panel of two names for

43

appointment to the post of the Director General of Police. (ii) A Police Establishment Board, consisting of DGP and three other members of the police force selected by him, should be constituted to decide transfers of all officers of the rank of Deputy Superintendent of Police and above. (iii) The minimum tenure of all officers should be 2 years. (iv) There should be another Committee under the Chief Secretary and with the Home Secretary and from the police DGP as members of the to rank hear of

representations

officers

Superintendent of Police and above alleging violation of rules in the matter of postings and transfers. The Committee has recommended that the transfer decisions will be taken by the Police Establishment Board headed by the DGP. While dealing with representations of officers against the transfer orders, the DGP as a member of the Committee headed by the Chief Secretary will be required to sit in judgment over his own orders. This is likely to deter the officers from representing against the orders.

44

24.

It is relevant to mention here that the said

Committee was appointed in pursuance of the directions issued by the Apex Court in W.P.(C) 310/1996 in the case of PRAKASH SINGH & OTEHRS Vs. UNION OF INDIA & OTEHRS reported in 2006 (8) SCC 1. When in spite of said recommendations, they were not given effect to, the Apex Court, after taking note of the same in the aforesaid PRAKASH SINGHs case, has observed as under:

25.

Undoubtedly and undisputedly, the

Commission did commendable work and after in depth study, made very useful recommendations. After waiting for nearly 15 years, this petition was filed. More than ten years have elapsed since this petition was filed. Even during this period, on more or less similar lines, recommendations for police reforms have been made by other high powered committees as above noticed. The Sorabjee

Committee has also prepared a draft report. We have no doubt that the said Committee would also make very useful recommendations and come out

45

with a model new Police Act for consideration of the Central and the State Governments. We have also no doubt that Sorabjee Committee Report and the new Act will receive due attention of the Central Government which may recommend to the State Governments to consider passing of State Acts on the suggested lines. We expect that the State Governments would give it due consideration and would pass suitable legislations on recommended lines, the police being a State subject under the Constitution of India. The question, however, is whether this Court should further wait for

Governments to take suitable steps for police reforms. The answer has to be in the negative.

26.

Having regard to (i) the gravity of the

problem; (ii) the urgent need for preservation and strengthening of Rule of Law; (iii) pendency of even this petition for last over ten years; (iv) the fact that various Commissions and Committees have made recommendations on similar lines for introducing reforms in the police set-up in the country; and (v) total uncertainty as to when police reforms would be introduced, we think that there cannot be any further wait, and the stage has come for issue of

46

appropriate directions for immediate compliance so as to be operative till such time a new model Police Act is prepared by the Central Government and/or the State Governments pass the requisite

legislations. It may further be noted that the quality of Criminal Justice System in the country, to a large extent, depends upon the working of the police force. Thus, having regard to the larger public interest, it is absolutely necessary to issue the requisite directions. Nearly ten years back, in Vineet Narain. v. Union of India, this Court noticed the urgent need for the State Governments to set up the requisite mechanism and directed the Central Government to pursue the matter of police reforms with the State Governments and ensure the setting up of a mechanism for selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police but also all police officers of the rank of Superintendents of Police and above. The Court expressed its shock that in some States the tenure of a Superintendent of Police is for a few months and transfers are made for whimsical reasons which has not only demoralizing effect on the police force but is also alien to the envisaged constitutional machinery. It was observed that

47

apart from demoralizing the police force, it has also the adverse effect of politicizing the personnel and, therefore, it is essential that prompt measures are taken by the Central Government.

27.

The Court then observed that no action

within the constitutional scheme found necessary to remedy the situation is too stringent in these circumstances.

28.

More than four years have also lapsed

since the report above noted was submitted by the National Human Rights commission to the

Government of India.

29.

The preparation of a model Police Act

by the Central Government and enactment of new Police Acts by State Governments providing therein for the composition of State Security Commission are things, we can only hope for the present. Similarly, we can only express our hope that all State Governments would rise to the occasion and enact a new Police Act wholly insulating the police from any pressure whatsoever thereby placing in position an important measure for securing the

48

rights of the citizens under the Constitution for the Rule of Law, treating everyone equal and being partisan to none, which will also help in securing an efficient and better criminal justice delivery system. It is not possible or proper to leave this matter only with an expression of this hope and to await developments further. It is essential to lay down guidelines to be operative till the new legislation is enacted by the State Governments.

30.

Article 32 read with Article 142 of the

Constitution empowers this Court to issue such directions, as may be necessary for doing complete justice in any cause or matter. All authorities are mandated by Article 144 to act in aid of the orders passed by this Court. The decision in Vineet Narain's case notes various decisions of this Court where guidelines and directions to be observed were issued in till absence of legislation pass and

implemented legislations.

legislatures

appropriate

25.

Therefore

the

Apex

Court

in

the

aforesaid

circumstances, issued directions to the Central Government,

49

State Governments and Union Territories for compliance till enacting of appropriate legislation. The direction which we are concerned is as under: Police Establishment Board (5) 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. 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 decision of the Board in exceptional cases only after recording its reasons for doing so. The 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/

50

disciplinary proceedings or their being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State.

26.

Instead of complying with the said directions, six

States, including the State of Karnataka filed application for extension of time. The Supreme Court by its order dated 11th January 2007, declined to extend time and observed as under:

6. Direction 2 relates to the selection and minimum tenure of the Director General of Police; Direction 3 relates to the minimum tenure of the Inspector General of Police and other officers; and Direction 5 by itself provides for the composition of the Police Establishment Board. Insofar as these three directions are concerned, they are selfexecutory and no question of grant of further time, therefore, arises. Whatever steps have to be taken should be taken forthwith and, in any case, not later than four weeks from today.

51

27.

Subsequently, an application was filed before the

Apex Court complaining of disobedience of the said order. It was only thereafter the Karnataka Legislature passed the Karnataka Police (Amendement) Act, 2012, which came into force with effect from 2nd June, 2012. Accordingly, on behalf of the State of Karnataka, the Chief Secretary filed an affidavit of compliance before the Supreme Court, which is dated

03.12.2012. At paragraph 15 of the said affidavit, it has been sworn as under:

15.

further

submit

that

Notifications

dated 23-06-2012 in No.HD 166 POSAEE 2012 and have been issued exercising the powers conferred under Section 20-B of the Act

establishing the Police Establishment Board for the purpose of exercising such functions as may be assigned to it consisting of Director General and Inspector General of Police as the Chairman and other three senior most Police Officers as members with the Additional Director General of Police (Administration) as the Convener. A copy of this Notification dated 23-06-2012 is herewith

52

produced and marked as Annexure-R5. Further, since the post of Director General of Police, CID is vacant, the senior most Additional Director General of Police has been nominated to the Board until the post of Director General of Police, CID is filled-up vide Notification No.HD166POSAEE 2012 (p-1) dated 26-11-2012. A copy of this Notification dated 26-11-2012 is herewith produced and marked as Annexure-R6.

28.

From the aforesaid facts it is clear that in

pursuance of the judgment of the Apex Court in PRAKASH SINGHs case, the Police Establishment Board was constituted on 24th August, 2009. After the amendment of the Act, it was reconstituted on 23.06.2012 and on 14.02.2013.

29.

The aforesaid material brings in to sharp focus the

utter lack of fair dealing prevailing in the Police Establishment and the atmosphere in which the policemen are working in the country. Among other factors, pressure on the police takes a

53

variety of forms, ranging from a promise of career advancement and preferential treatment in service matters if the demand is acceded to and a threat of drastic penal action and

discriminatory treatment in service matters if the pressure is resisted. A transfer acts as a severe economic blow and

disruption of the police officer's family, children's education, etc. The threat of transfer/suspension is the most potent weapon in the hands of the politician to break down the police to his will. The frequent orders of transfer of police personnel on direct instructions from political masters in Government in complete disregard of the rule and guidelines is the order of the day. There are instances of the Inspector General of Police

himself being transferred to an inconsequential post under the State Government immediately after he had shown his reluctance to issue orders for the transfer of a large number of police personnel as desired by the political leadership when he felt that the transfers were not justified on normal

administrative grounds. There are also instances of an Inspector of Police, under orders of transfer issued by his

54

departmental superiors, proclaiming publicly that he would soon get orders from above cancelling his own transfer order and transferring away his superior officer instead. The Inspector's transfer was in fact cancelled within the next few days and it was his superior officer who had to move out under the compulsion of a politically directed transfer order! The resultant serious damage to discipline and morale of the chain of command within the police system can be easily imagined. The exercise of such pressure on the police system from political and other extraneous sources irretrievably damages the control system within the police administration and weakens the normal chain of command that has to operate efficiently if discipline and strength of the system are to be maintained. Interference at the operational level in police stations, police circles, etc. results in the total paralysing of the supervisory officers in the hierarchy. The increasing scope for unholy nexus between the politician and the police has also encouraged unscrupulous policemen at different levels to forge a working relationship with the politician for gaining undue

55

career advantage, besides pecuniary advantage resulting from collusive corruption. Political interference emanates not only from political functionaries in Government but also from others outside the Government who enjoy leverage with different political parties including the ruling party. The phenomenon of political interference has thus grown to enormous proportion, assiduously fuelled by vested interests among the police as well as the politicians. In a democractic polity some amount of executive control over police is necessary, nay inevitable.

30.

The major reason for the politicisation of the police

is the lack of a proper tenure policy for posting of officers at different levels and the arbitrary transfers and postings which have been used for political interest. Transfers are made for whimsical reasons which has not only demoralizing effect on the police force but is also alien to the system of rule of law as envisaged under the Constitution. It is observed that apart

from demoralizing the police force, it has also the adverse effect of politicizing the personnel. The principal grievance of the

56

policemen is that if there is any unwillingness to comply with unlawful or improper suggestions, the persons concerned are harassed, transferred or otherwise humiliated. Most problems of police are due to arbitrary and frequent transfers of police personnel of different ranks. Political interference is seen by the public as a major factor contributing to the poor image of the police and manifests itself in the misuse and abuse of police powers and disregard of the law by the police. People may justifiably consider political interference with police functioning as a greater evil than even corruption and political interference appears more pronounced in rural areas than in urban areas. Once the powers in this regard are given to the departmental hierarchy, political interference in policing will be reduced. Therefore there was a need to enact a new Police Act wholly insulating the police from any pressure whatsoever thereby placing in position an important measure for securing the rights of the citizens under the Constitution for the Rule of Law, treating everyone equal and being partisan to none, which will also help in securing an efficient and better criminal justice

57

delivery system.

Therefore for the appointment, posting,

transfer and promotion of Police Officers, constitution of a Police Establishment Board has been recommended,

comprising of the Director General of Police of the State and four other Senior officers. The Apex Court acted on the said recommendation and constituted the Police Establishment Board. Now the Karnataka Legislature has amended the Karnataka Police Act, 1963, and has inserted Section 20B, providing for Police Establishment Board.

31.

This Court in the case of DR. B. R. AMBEDKAR

MEDICAL COLLEGE & ANR., VS. UNION OF INDIA AND OTHERS, reported in ILR 2005 KAR 1278, held as under:-

22. It is well-recognised that a Court while interpreting a statute should keep the purpose of the enactment in mind and every effort should be made to give effect to the said purpose so as to remedy the mischief or defect for which the law does not provide. The interpretation must depend upon the text and context. They are the bases of

58

interpretation. The text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the

contextual. A statute is best interpreted when we know why it was enacted. With this knowledge the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. A bare mechanical interpretation of the words and application of the legislative intend devoid of concept of purpose and object will render the legislature insane. The object of all interpretation is to discover the intention of the legislature, but the intention of the legislature must be deduced from the language used and it has to be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and

unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. Not only the intention of the legislature has to be gathered from the language used in the statute, thus paving attention to what has been said as also to what has not been said. Under the guise of purposive construction of a

59

statute the Court cannot add words or read words into the section which the legislature has

deliberately omitted to add. Then it would be case of the Court legislating and not interpreting which is its role.

32.

It is in this background we have to interpret

Section 20B, which provides for Police Establishment Board. It reads as under:

20B. Police Establishment Board.(1) The State Government shall, by

notification in the official Gazette, establish a Police Establishment Board with the Director General and Inspector General of Police as Chairman and three senior most police officers not below the rank of Additional Director General of Police working within the police department as members. Additional Director General of Police (Administration) shall be the convener. (2) The functions of the Police

Establishment Board shall be as follows, namely:-

60

(a)

Subject to the provisions of section 20F, it shall decide on transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy

Superintendent of Police. (b) It shall also make recommendation for promotion to the rank of Deputy

Superintendents of Police after duly verifying reservation and quota

prescribed for direct recruitment and promotion. For this purpose a

separate register shall be maintained by Director General and Inspector General of Police, as per orders or guidelines prescribed by Government from time to time. (c) It shall make appropriate

recommendations to the Government regarding postings and transfers of officers of and above the rank of Additional Superintendent of Police.

61

(d)

Generally review the functioning of the police force in the State.

(e)

Perform such other functions as may be prescribed.

(3)

Subject to its control and directions,

the Police Establishment Board may authorize the Superintendent of Police to effect transfers of Group C and D officials within the district and the Inspector General of Police within the Range.

(4)

The

Government

may

modify

the

decision of the Police Establishment Board in exceptional cases only after recording its reason for doing so. The and Government shall shall give accept due the

weightage

normally

recommendations made by the Board, regarding postings and transfers of officers of and above the rank of Additional Superintendent of Police.

(5)

The transfers decided and effected by

the Police establishment Board shall be strictly in accordance with section 20F and the general

62

transfer guidelines issued by Government from time to time.

(6)

The cases pertaining to transfer of

Police Officers or personnel on complaints shall be considered by the Police Establishment Board and action taken in this regard shall be reported to Government.

(7)

Copies of proceedings of the Police

Establishment Board and the transfer orders issued thereof shall be sent to Government forthwith.

33.

Sub-section (1) of Section 20B of the Act, deals

with constitution of Police Establishment Board and who should be the members of the Board. No discretion is given to the Government in the matter of the constitution of the Board. The statute specifically provides for it. It is the senior most

officers of the police force who will be the members, so that there cannot be any heartburn. This is the first step in keeping

63

the politicians at bay, so as to insulate the policemen from political interference.

34.

Sub-section (2) of Section 20B of the Act, sets out

the functions of the Police Establishment Board. Broadly speaking, the Board is vested with dual function. Firstly, subject to Section 20F of the Act, the Board shall decide on transfers, postings, promotions and other service related matters of officers of and below the rank of Deputy

Superintendent of Police. The word used is shall decide. Therefore the Board is the final authority in deciding the transfers, postings and promotions of the officers of and below the rank of Deputy Superintendent of Police. However, the first part of sub-section (4) of the Act, confers the power on the Government to modify the decision of the Police Establishment Board in exceptional cases only after recording its reasons for doing so. Sub-section (5) mandates that the transfers decided and effected by the Police Establishment Board shall be strictly in accordance with Section 20F of the Act, and the general

64

transfer guidelines issued by Government from time to time. Sub-section (7) of the Act, provides that copies of proceedings of the Police Establishment Board and the transfer order issued thereof shall be sent to the Government forthwith.

35.

The

language

employed

in

this

provision

is

unambiguous. There is no scope for confusion. It is the Police Establishment Board which will decide the transfers, postings and promotions of the aforesaid officers. Thus, by this

amended provision, the political interference in the matter of transfers is reduced to the minimum.

36.

In so far as postings and transfers of officers of and

above the rank of Additional Superintendent of Police is concerned, clause (c) of sub-section (2) of the Act, provides that the Board shall make appropriate recommendations to the Government. The word, shall decide is used in clause (a) of sub-section 2 of the Act and the words shall make appropriate recommendations is used in clause (c) of sub-

65

section 2 of the Act. On such recommendation made by the Board, the Government shall give due weightage and shall normally accept the recommendation made by the Board regarding postings and transfers of the officers of and above the rank of Additional Superintendent of Police. Therefore it is clear that though the Board was obligated to make appropriate recommendations, correspondingly a duty is cast on the Government to give due weightage and accept the

recommendation and give effect to such recommendation. Here also the copies of the proceedings of the Police Establishment Board and the transfer orders issued thereof shall be sent to the Government forthwith.

37.

The legislature has used the word shall at more The use of word

places than one in Section 20B of the Act.

shall raises a presumption that the particular provision is imperative. The word shall is ordinarily mandatory. The

legislature has used the word may in Sub-Section (3) and (4) and clause (e) of sub Section (2), and used the word shall at

66

nine other places in the same Section. It strengthens the inference that these words have been used in the primary sense and that shall should be construed as mandatory. The use of the word shall with respect to one matter and the use of the word may with respect to another matter in the same Section of a statute will normally lead to the conclusion that the word shall imposes an obligation, whereas the word may confers a discretionary power. Section 20B of the Act imposes a public duty and lays down the manner in which the duty shall be performed by the Police Establishment Board. If we keep in mind the circumstances preceding the enactment of Section 20B of the Act, and the object with which the said provision is inserted coupled with the law laid down in Prakash Singhs case by the Apex Court, and the express language employed in the provision to give effect to the said object, and the mischief sought to be remedied, the conclusion is irresistible namely the said provision is MANDATORY and not directory as contended by the State.

67

38.

The learned Senior Counsel contended that the

Court has to note the distinction between the word, shall decide and make recommendations. According to him, in the case of officers of and below the rank of Deputy Superintendent of Police, the Board shall decide on transfers, postings and promotions and transfer orders are issued by them in respect of each officer. But when it comes to the case of officers of and above the rank of Additional Superintendent of Police, what the Board is expected to do is to pass general orders so that the Government would, based on the recommendation, issue transfer orders or pass orders.

39.

A careful reading of the aforesaid provision does

not give any such indication. The language employed is clear and simple. Clause (c) of sub-section (2) of Section 20B of the Act, categorically states that the Board shall make

appropriate recommendations to the Government regarding posting and transfer of officers of and above the rank of Additional Superintendent of Police and sub-Section (7) of the

68

Act, says copies of the proceedings of the Police Establishment Board and the transfer orders issued thereof shall be sent to Government forthwith. Therefore the aforesaid statutory

provision expressly provides for the Board to recommend transfers of the officers of and above the rank of Additional Superintendent of Police. Only upon receipt of such

recommendation, the Government gets jurisdiction to order transfers, subject ofcourse to its power to differ from the recommendation for reasons to be recorded. Therefore we do not find any substance in the said contention also.

40.

In the light of the aforesaid discussion we are

satisfied that the decisions and recommendations of the Police Establishment Board enumerated in Section 20B of the Act, are mandatory in nature. In the case of officers of and below the rank of Deputy Superintendent of Police, the Board shall decide on transfers, postings and promotions and the Government has been vested with the power to modify or to deal with exceptional cases only after recording reasons for

69

doing so.

In so far as officers of and above the rank of

Additional Superintendent of Police is concerned, the Board shall make appropriate recommendations to the Government. After recommendation is made to the Government, by virtue of sub-section (4), an obligation is cast on the Government to give due weightage to the said recommendation and shall normally accept the recommendation made by the Board, regarding postings, transfers of officers of and above the rank of Additional Superintendent of Police. Probably in a given case, as in the case falling under clause (a), the Government may modify the decision of the Police Establishment Board in exceptional cases only after recording its reasons for doing so. Therefore recommendation by the Board is a sine qua non before transfer and posting is made by the Government. An

order of transfer and posting which is not preceded by such recommendation is void ab initio. The recommendation has to emanate from the Board before the Government exercises the power to transfer and posting. Any other interpretation of this provision would run counter to the object with which this

70

amendment is brought about and would have the effect of nullifying the judgment of the Apex Court, where the law on the point was declared and directions were issued to the

Government to follow the procedure prescribed therein till they form their own Regulations. As the amended Act is in

conformity with the directions issued by the Apex Court, the Government shall not act contrary to the said statutory provisions. When the Legislature has enacted amendment with definite purpose to keep away the political interference from tampering with the valuable statutory right which is now conferred on the Senior Police Officers by the Legislature, the law is to be respected. That is the essence of the rule of law.

41.

The Apex Court in the case of HUKUM CHAND

SHAYM LAL Vs. UNION OF INDIA reported in AIR 1976 SC 789, held as under: It is well settled that where a power is required to be exercised by certain authority in a certain way, it should be exercised in

71

that manner, or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe this rule where power is of a drastic nature and its exercise in a mode other than the one

provided, will be violative of the fundamental principles of natural justice.

42.

Again the APEX IN THE COURT CASE BABU

VERGHESE AND OTHERS VS. BAR COUNCIL OF KERALA AND OTHERS, reported in AIR 1999 SC 1281, reiterating the said legal position, held as under:-

31.

It is the basic principle of law long

settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor vs. Taylor (1875) 1 Ch.D 426 which was followed by Lord Roche in Nazir Ahmad vs. King Emperor 63 Indian Appeals 372 = AIR 1936 PC 253 who stated as under :

72

"Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."

32.

This rule has since been approved by

this Court in Rao Shiv Bahadur Singh & Anr. vs. State of Vindhya Pradesh 1954 SCR 1098 = AIR 1954 SC 322 and again in Deep Chand vs. State of Rajasthan 1962(1) SCR 662 = AIR 1961 SC 1527. These cases were considered by a ThreeJudge Bench of this Court in State of Uttar Pradesh vs. Singhara Singh & Ors. AIR 1964 SC 358 = (1964) 1 SCWR 57 and the rule laid down in Nazir Ahmad's case (supra) was again upheld. This rule has since been applied to the exercise of jurisdiction recognised by as courts a and has also been of

salutary

principle

administrative law.

43.

Therefore it is settled law that if the statute directs

that certain acts shall be done in a specified manner or by certain persons, their performance in any other manner other than specified or by any other person other than one specified

73

is impliedly prohibited. Normally, the discretion entrusted by the legislature to an administrative organ must be exercised by that organ itself. A statutory power must be exercised only by a person on whom it is conferred, unless the statute by express words or necessary implication permits delegation, in which case it may also be exercised by the delegate, if delegation is made in terms of the statute. A statutory power, whether it be administrative or quasi-judicial, although conferred in wide terms has certain implied limitations. The person on whom power is conferred must exercise it in good faith or in furtherance of the object of the statute; he must not proceed upon a misconstruction of the statute; he should take into account the matters relevant for the exercise of power; he must not be influenced by irrelevant matters and he must not act perversely. The statutory authority cannot travel beyond the

power conferred and any action without power has no legal validity which is void ab initio.

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44.

Therefore with this provision in the statute book

now, the transfer, posting and promotions is the exclusive domain of the Police Establishment Board. The power of the Government to effect transfer of these police officers straight away is completely taken away. They can exercise the power based on the decision of the Board or on its recommendation, as the case may be. Normally, they should accept the decision or recommendation and give effect to the same. However, only in exceptional circumstances they can differ with the said decision or recommendation. For doing so, reasons are to be recorded in writing. Thus, interference with the decisions and recommendations made by the Board, is kept at the minimum. Therefore by enacting this provision, the object sought to be achieved namely to curtail political interference, is achieved. Thus the police officers are now wholly insulated from political interference. An institutional arrangement is put in place to

ensure that control is exercised legitimately and for public good, keeping the political interference at the minimum.

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45.

Section 20F of the Amendment Act, deals with

tenure of officers incharge of police stations, circle, subdivision, district and range. Therefore the Board while

exercising its power under Section 20B of the Act, either in deciding transfers, postings and promotions or make

appropriate recommendations regarding postings and transfers shall be guided by Section 20F of the Act. If the Board were to exercise its powers and discharge the functions contrary to Section 20F of the Act, it would be a case of improper exercise of power under Section 20F of the Act and that may be one such instance the Government may decline to give effect to the decision or recommendation of the Board. However, the same may be subjected to judicial review also.

46.

Section 4 of the Karnataka Police Act, 1963

provides for Superintendence of Police Force to vest in the Government. It reads as under:

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4. Superintendence of Police Force to vest in the Government.- The superintendence of the Police Force throughout the State vests in and is exercisable by the Government and any control, direction or supervision exercisable by any officer over any member of the Police Force shall be exercisable subject to such superintendence.

47.

It was contended on behalf of the State that

notwithstanding insertion of Chapter IIA which contains Section 20B of the Act, the Superintendence of Police Force through out the State vests in and is exercisable by the Government and therefore Section 20B of the Act, does not override the power of the Government to effect transfers in the absence of recommendation. The language of Section 20B as well as the language of Section 4 of the Act, is plain and clear. Prior to introduction of Section 20B of the Act, it is by virtue of power conferred under Section 4 of the Act, the Government was passing orders of transfer. It is that action of the

Government which was found fault with and was the subject

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matter of terms of reference of not one but three Commissions. Because the said provision was abused and in spite of sufficient opportunity being given, neither the Central

Government nor the State Government came out with the Model Police Act, the Apex Court has to virtually legislate on the subject, which was to be in force till suitable legislation was passed in that regard. If we compare the directions issued by the Supreme Court with Section 20B of the Amended Act, what is contained in Section 20B of the Act, is the replica of the directions issued by the Apex Court in the matter of transfers. Therefore the entire object of the said direction and the amended provision is to place fetters on the power of the Government in arbitrarily passing orders regarding promotions, postings and transfers. Section 4 and Section 20B of the Act, has to be harmoniously construed. When a statutory authority is constituted and its functions are well defined, the

Government cannot usurp the functions of the statutory authority by invoking Section 4 of the Act. That is not the

intention of the legislature. After enactment of Section 20B of

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the Act, the power of transfer and posting is to be exercised only under the said provision. Section 4 of the Act is a general provision. Section 20B of the Act is a specific provision.

Therefore, Section 20B prevails over Section 4 of the Act. The power of transfer is traceable only to Section 20B of the Act and therefore Section 4 of the Act cannot be invoked any more.

48. that the

The justification offered for exercise of the power is board was not meeting; that it made no

recommendations and therefore the Government was left with no alternative but to pass the impugned orders. On behalf of the Board, the convener, Additional Director General of Police was personally present. He submitted that the practice is, the moment the Government gives an indication, the Board is convened and discharge functions under Section 20B of the Act. Board has decided cases of transfer, postings and

promotions of the officers of and below the rank of Deputy Superintendent of Police. As they did not receive any

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indication in respect of officers of and above the rank of Additional Superintendent of Police, they have not made any recommendations. Once such indication is given, at the

earliest point of time they would be able to make the recommendation. This belies the stand of the State. When the Government has constituted the Police Establishment Board and if that Board is not functioning as required under the statutory provisions, the Government cannot plead

helplessness.

It has ample power to activate the Board. The

Board consists of the Director General of Police and three senior most police officers immediately next to him. It is

obvious that notwithstanding the judgment of the Apex Court and the amendment to the Police Act, the Government is not prepared to give up its privilege of effecting transfers of its officers as they have been doing for more than a century. The justification given by the Government is nothing but a lame excuse. Therefore we do not find any substance in the said

contention. At the same time it is not appropriate for the Board to wait for any indication by the Government. The Board is a

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creation of statute. The function to be performed by the Board are statutorily provided. It is a public duty. It has to be

performed strictly in accordance with law. To activate them, no indication from the Government is required nor is it

contemplated. They should not wait for any such indication. If on that ground, they are not performing their statutory duty, it amounts to abdicating their solemn duty. It is not proper. A power is vested in them under the statute and they should perform their duty accordingly.

49.

It was also contended on behalf of the State that

there are certain anomalies which require to be corrected and the Rules are not yet framed and therefore the impugned orders passed during the said interregnum cannot be found fault with. We do not find any substance in the said

contention also. Once the Legislature has enacted the law and the same has come into force, on the ground of the corresponding Rules are not framed, the law enacted by the

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Legislature

cannot

be

kept

in

abeyance.

There

is

no

impediment for the Government to frame the Rules giving effect to the legislative intent as reflected in Section 20B and 20F of the Act. Similarly, if there are any anomalies the same also could be sorted out. What is required is the will to act. That is what is missing. The Government is not justified in putting forth such lame excuses and to postpone the implementation of the law which has already come into force. It does not speak of good governance.

50.

Reliance is also placed on the judgment of the Apex

Court in case of STATE OF U.P. & ORS Vs. GOBARDHAN LAL, decided on 23rd March, 2004, wherein it is held as under:

Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service.

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Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.

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51.

From the aforesaid judgment it is clear that if an

order of transfer is made in violation of any statutory provision (Act or Rule) and passed by the authority not competent to do so, then it becomes the duty of the Court to interfere with such order of transfer which is without the authority of law and hence void ab initio. In this case we have set out how the order passed by the Government effecting transfers is contrary to Section 20B of the Act and therefore the power of transfer exercised by the Government is contrary to the said statutory provision, is one without the authority of law and void ab initio. Seen from any angle, the order of transfer passed by the Government in both the cases cannot be sustained. In fact, in the second case even the earlier order of transfer of Dr. Pawar, is also one without the authority of law and is liable to be quashed. Accordingly it is quashed.

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52.

The way the Government has passed these orders

gives an impression that even though they have passed the enactment to comply with the directions issued by the Apex Court, mentally they are not prepared to give effect to the said provision. Therefore, notwithstanding the amendment brought to the Police Act by the Legislature giving effect to the decision of the Apex Court, the Government of the day still wants to drag its feet and wants to exercise the power which is not vested in it in law in the matter of effecting transfers of these superior police officers. This conduct of the Government

cannot be appreciated. It is high time the Government of the day which has an obligation to uphold the rule of law and be a model to its citizens would fall in line and obey the mandate of law and divest the power which hitherto exercised by it in favour of the Board which is constituted only for that purpose and in whom the statute confers such power. The Government has to refrain from exercising power of transferring, posting and promoting its officers and only pass orders in accordance with Section 20B of the Act, after a decision is conveyed to

85

them by the Board or an appropriate recommendation is made, as the case may be.

53.

In W.P.13995/2013, the Tribunal has held in the

earlier case that Section 20B of the Act is mandatory. It fully agrees with the said finding. It finds that the impugned order is illegal. But by strange reasoning, it refuses to set aside the order and directs that in future, the Government shall not commit the same mistake. If an order impugned is illegal and if Section 20B of the Act, is held to be mandatory, the Tribunal ought to have quashed the said order. Issuing a direction to the Government to be careful in future is not a consolation to the petitioner who was successful in showing to the Court that the order is illegal and in spite of that he is denied the relief. Therefore that reasoning is ex-facie illegal and cannot be sustained. Accordingly it is set aside.

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54.

In the other case the Tribunal has declined to

grant the relief to the petitioner on the ground that the second respondent has taken charge. Here we would like to point out

that a new service jurisprudence appears to have evolved over the years in this regard. The parties, advocates and sometimes the Judges also think in terms that if the person transferred goes to the post to which he is transferred and takes charge, then the Courts power to set aside the order of transfer does not exist. In fact, because of this understanding recently when the Government was indiscriminately passing orders of transfer contrary to statutory provisions, the Karnataka Administrative Tribunal decided not only to stay such orders but also directed that the person who is relieved of his duty should be put back, to send a message to the Government and to the officials who have managed to get these transfer orders, that though the transfer has been given effect to, charge is value in the eye of law. taken, it has no the Central

Unfortunately,

Administrative Tribunal seems to think that once charge is taken it loses its power to set aside the said order. Taking of

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charge or not taking of charge has no effect whatsoever in deciding the validity of an order of transfer. Once the order of transfer is quashed, the parties have to be relegated to the position as they stood prior to the order of transfer. Therefore, the reasoning of the Tribunal is unsustainable and it is liable to be set aside.

55.

It is submitted the Code of Conduct which has

come into force in view of the declaration of elections to the 14th Assembly in the State of Karnataka may come in the way of even the Police Establishment Board considering the case of transfer and the Government passing orders thereon. It is

needless to point out, as held by the Apex Court in the said Prakash Singhs case in its order dated 11.1.2007 that the elections ordered in any State would not be a ground not to comply with the directions in the time frame in the said order. Similarly, as the directions issued by this Court is in respect of only these 4 officials, the instructions issued by the Election Commission on 20.3.2013 would not come in the way to

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comply with the direction issued by this Court. Therefore, the same shall not be put forth as an excuse for not complying with the directions issued by this Court.

56. order:-

For the aforesaid reasons, we pass the following

(i)

Both the Writ Petitions are allowed.

(ii)

The impugned orders passed by the Tribunal are hereby set aside.

(iii)

The impugned orders of transfer passed by the Government is also hereby set aside.

(iv)

In the peculiar facts of this case, we deem it proper to direct the Police Establishment Board to consider the cases of all these persons in accordance with law and make appropriate recommendation to the Government within 7 days from the date of receipt of a copy of this order.

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(v)

The Government on receipt of such recommendation shall issue orders within 48 hours.

(vi)

Till the case of these police officers is considered by the Board and the Government passes orders on their recommendation, all these police officers who have already taken charge in the respective posts shall continue to function in the said post.

(vii)

No costs.

Sd/JUDGE

Sd/JUDGE

sps/ksp/ckl/-