respondent should have shown such character before ordering
enmasse transfers as per Exts.P1, P2 and P3. Effecting enmasse
transfer within a very short span of two days from taking charge and
then assigning the reasons extracted above cannot be construed as a
true exercise of power. Malafide in the legal sense is undoubtedly, a
fraud on power and it need not necessarily be a dishonest or
malicious act. A person can be said to be acted malafidely if he
exercised his power improperly, capriciously or unreasonably. In this
given set of facts, I have no hesitation to say that, in the legal sense,
the action is malafide and not one in the best interests of the
administration. When that be the position, the offending order is
liable to be struck down.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17292 of 2011(J)
MADHU.K.V,S/O.MADHAVAN,
Vs
THE DIRECTOR GENERAL OF POLICE(KERALA
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :11/07/2011
Citation: ILR2011(3)Kerala723, 2011 (3) KHC 462, 2011(3)KLJ750, 2011 (4) KLT(SN) 26
Untimely transfers would undoubtedly cause unrest, umbrage
and above all, unbounded difficulties and inconveniences to service
personnel. At times, the transferring authorities use the power of
transfer as a weapon to wield at erring employees in lieu of initiation
of disciplinary proceedings and sometimes, it is used to accommodate
favourites. Recognizing recurrence of such profane exercise of
transfer-power and with a view to eliminate the element of
arbitrariness in its exercise and to have a uniform policy as far as
possible Government have formulated norms and framed guidelines
to be followed by transferring authorities in the matter of transfer.
General transfer, transfer on public or administrative grounds,
punishment transfer and request transfer are various known forms of
transfer. Courts cannot adopt nonchalance when circumstances call
for such interference and at times, may also have to lift the veil to
see its real nature. With this prelude, I may examine the contentions
raised by the petitioners in all these writ petitions wherein some
enmasse transfers of police personnel involve.
W.P.(C) 17292/2011 & conn. 2
2. As per Exts.P1 and P2 in W.P.(C)No.17475 of 2011,
226 Police personnel belonging to Grades of Assistant Sub Inspectors
(GASIs), Senior Civil Police Officers (Sr.CPOs) and Civil Police Officers
(CPOs) were transferred on administrative ground to different
stations. The petitioners are some of such transferees. In W.P.(C)
No.17293 of 2011 Exts.P1, P2 and P3 transfer orders issued on
administrative ground are under challenge. In fact, Exts.P1 and P2
are the very same orders which are under challenge in W.P.(C)
No.17475 of 2011. Ext.P3 is an order issued on the same day
whereby 20 Sr.WCPOs and WCPOs were transferred on administrative
ground. In W.P.(C)No.17465 of 2011 Exts.P1 and P2 are the orders
under challenge. As per Ext.P1, 20 Police personnel were transferred
and as per Ext.P2, 12 Police Officers belonging to the cadres of Senior
Women Civil Police Officers (Sr.WCPOs) and Women Civil Police
Officers (WCPOs) are placed under orders of transfer to different
police stations. Unlike the impugned orders in W.P.(C)No.17475 of
2011 Exts.P1 and P2 in this writ petition did not carry any statement
that they were issued on administrative ground. In W.P.(C)No.17292
of 2011 Exts.P1 and P2 are the impugned orders of transfer. 18
Sr.CPOs and CPOs were placed under orders of transfer as per
Exts.P1 and P2. In W.P.(C)No.17472 of 2011 Ext.P1 order of
W.P.(C) 17292/2011 & conn. 3
transfer is challenged by the petitioners. As per the same, 56 Police
Officers of Sr.CPOs/CPOs ranks were transferred. In W.P.(C)
No.17716 of 2011 the petitioners are challenging Ext.P1 order of
transfer. As per Ext.P1, 270 Police officers belonging to different
cadres viz., GASIs, Sr.CPOs and CPOs were transferred to different
stations or wings. In W.P.(C)No.17840 of 2011 the petitioners
challenge Ext.P1 order of transfer. As per Ext.P1, 200 Police officers
belonging to the cadres of Sr.CPOs and CPOs were placed under
orders of transfer. Thus, it is obvious that the impugned transfer
orders in W.P.(C)Nos.17475 and 17293 of 2011 are issued on
administrative ground whereas the orders assailed in the other writ
petitions are not avowed transfer orders on administrative ground.
In the circumstances, for the sake of convenience, I will deal with
the orders of transfer in W.P.(C)Nos.17475 and 17293 of 2011 a little
later.
3. As regards the impugned orders in the other writ
petitions, in the absence of anything in them suggesting the reason
as administrative or public grounds the respondents cannot be heard
to contend that those orders are passed on administrative or public
ground. Evidently, Police officers belonging to different ranks such as
GASIs, Sr.CPOs, CPOs, Sr.WCPOs and WCPOs were transferred
W.P.(C) 17292/2011 & conn. 4
enmasse by the impugned transfer orders. There can be no doubt
with respect to the position of law that a reason which is
conspicuously absent in an impugned order cannot be supplemented
by way of an affidavit. Therefore, I will have to proceed with these
cases on the premise that the impugned orders therein are issued on
other grounds. The said orders did not partake the character of
punishment transfers or transfers on request. Therefore, I am
constrained to consider the norms issued by the respondents in the
matter of transfer and also the relevant provisions under the Kerala
Police Act, 2011 to see whether they satisfy the salient features of a
general transfer. Section 97 of the Kerala Police Act, 2011 (for short
`the Act') deals with minimum tenure of Police officers. Section 97
(1) of the Act provides that the Government shall ensure a minimum
tenure of two years for Police officers belonging to the categories
specifically mentioned thereunder. Since the petitioners in these writ
petitions are not belonging to the said specified categories therein, I
need not look into the said provision for the purpose of disposal of
these writ petitions. I may, now, refer to Section 97(2) of the Act
and the same reads thus:-
"97.(2) The Government or the appointing
authority may, without prejudice to the right to
initiate any legal or departmental action, transfer
any police officer before completing the normal
W.P.(C) 17292/2011 & conn. 5
tenure of two years, on being satisfied prima
facie that it is necessary to do so on any of the
following grounds stated in (a) to (f), namely:-
(a) the officer is subjected to disciplinary action;
(b) it is found prima facie on investigation that
the officer is involved in a corrupt practice or
in a criminal offence involving proclivity for
violence or moral turpitude.
(c) the officer is physically or mentally incapable
of discharging his duties;
(d) a superior officer evaluating the work of an
officer, reports, in writing, that the officer is
not carrying out his duties efficiently;
(e) cause serious dissatisfaction in the general
public about efficiency of police in his
jurisdiction;
(f) the officer requests, in writing, for a transfer
from the place where he is working."
The contention of the learned Senior Counsel appearing for the
petitioners is that section 97(2) of the Act applies to the petitioners
by virtue of section 14(2) and sections 2(f) and 2(h) of the Act. A
perusal of section 14(2) would reveal that the grades of Police
Constable and Police Head Constable that are later, re-designated
respectively as Civil Police Officer and Senior Civil Police Officer are
among the officers' ranks included thereunder. In other words, in
terms of section 14(2) the personnel belonging to the grade of Police
Constable (Civil Police Officer) Police Head Constable (Senior Civil
W.P.(C) 17292/2011 & conn. 6
Police Officer) fall under the expression `Police Officer' and,
therefore, necessarily the guidelines under section 97(2) are
applicable to them as well, it is contended. To support the said
contention the learned Senior Counsel drew my attention to the
definition of `Police Officer' in section 2(h) of the Act. Section 2(h)
reads thus:-
"2.(h) "Police officer" means any member of the
Police Force and includes in it an officer of the
Indian Police Service;"
It is contended that a conjoint reading of the above provisions would
undoubtedly show that the petitioners in all these writ petitions are
Police officers and therefore, the provisions under section 97(2) are
applicable to them. In that view of the matter, transfer of the Police
officers before completion of the normal tenure of two years is
possible only if the transferring authority is prima facie, satisfied that
it is necessary to do so on account of existence of any one of the
grounds mentioned under section 97(2) of the Act, it is further
contended.
4. The learned Senior Government Pleader contends that
section 97(2) of the Act is inapplicable to the petitioners who belong
to cadres of GASIs/Sr.CPOs/CPOs/Sr.WCPOs/WCPOs. According to
the learned Senior Government Pleader, section 97(2) of the Act
W.P.(C) 17292/2011 & conn. 7
applies only to those categories specifically mentioned under section
97(1) of the Act. Since it is nobody's case that the orders of transfer
impugned in these writ petitions are issued based on satisfaction of
any of the grounds under section 97(2), I do not think it necessary
to consider the question whether section 97(2) is applicable or
inapplicable in the case of the petitioners for the purpose of disposal
of these writ petitions. Though the respondents have filed statements
and additional statements in two of these cases viz., in W.P.(C)
Nos.17475 and 17293 of 2011, the respondents have not raised a
contention that transfers of the petitioners in those writ petitions are
ordered based on the satisfaction of the existence of the grounds in
section 97(2). As regards the other writ petitions as well, the
respondents did not have such a case that the petitioners were
transferred on account of the existence of any of the circumstances
enumerated under section 97(2). At the same time, it is common
case that during the current year general transfers were not effected
on account of the General Election to the Kerala Legislative Assembly.
That persuades me to consider whether the impugned orders partake
the nature of a general transfer or in troth, they are deferred general
transfer orders. In the said context, the norms and guidelines issued
on the subject of transfer assume relevance. Those Government
W.P.(C) 17292/2011 & conn. 8
orders and Executive Directives have been produced either in W.P.(C)
No.17475 of 2011 or in W.P.(C)No.17292 of 2011. The first among
the Government orders formulating guidelines for transfers was
issued on 19.5.1958. The said order has been produced in W.P.(C)
No.17475 of 2011 as Ext.P3. Thereafter, in partial modification of the
said order Ext.P4 Government order dated 30.6.2004 was issued.
Later, Ext.P5 Executive Directive No.1/2006 dated 5.6.2006 was
issued by the first respondent. Lastly, Executive Directive No.1/2011
dated 9.2.2011 was issued and the same has been produced as
Ext.P5 in W.P.(C)No.17292 of 2011. I may, now, refer to the
aforementioned Government orders and Executive Directives
pertaining to the subject of transfer of Police officers. Clause (ii) and
(iii) in Ext.P3 in W.P.(C)No.17475 of 2011 viz., G.O.(Ms)No.609 dated
19.5.1958 are relevant according to the petitioners and they read
thus:-
"(ii) While no person should normally be
transferred before three years, Government
recognize that it will not be possible to adhere to the
principle rigidly. It may be necessary occasionally to
transfer officers before the end of three years on
public grounds. Transfers should as far as possible
be during the period of vacations for schools and
colleges to avoid dislocation of education of children
of the Government Servants."
(emphasis supplied)
"(iii) The above rules will not apply to
W.P.(C) 17292/2011 & conn. 9
Clerks, Police Constables and Last Grade Servants
and other low paid officials. This category of
personnel should as far as possible be posted or
continued near their homes."
Obviously, as per Ext.P3, it is possible and permissible to effect
transfer on public grounds even before completion of the normal
tenure of three years. However, in the writ petitions referred above,
except in W.P.(C)Nos.17293 and 17475 of 2011, since there is no
whisper in the impugned orders that they were issued on
administrative grounds or on public grounds it could only be taken
that the said orders are issued not on administrative grounds or
public grounds and in which event, in the absence of such grounds,
there was no necessity to effect abrupt transfers that too, after the
re-opening of the schools. As already noticed, Ext.P3 Government
order virtually enjoins the transferring authorities to effect transfers,
as far as possible, during the period of vacation for schools or
colleges to avoid dislocation of education of children of the
Government servants. Thus, it is obvious that even while
formulating guidelines for transfers the said aspect was rightly given
due attention by the Government. A common feature of the
Government Orders and Executive Directives is that they postulate
avoidance of transfers of low paid employees, as far as possible.
Even in case of necessity, going by the said relevant orders, on
W.P.(C) 17292/2011 & conn. 10
transfer they shall be given posting as far as possible near to their
home circles. Executive Directive No.1/2006 dated 5.6.2006 and
Executive Directive No.1/2011 dated 9.2.2011 assume relevance in
the context of the contentions in these cases. Clause 02.(1) in
Executive Directive No.1/2006 reads thus:-
"02.(1) PCs/HCs may be transferred, as far as
possible, only during the General Transfers,
once in a year."
(emphasis supplied)
Now, it should be read as follows:-
"Civil Police Officers/Senior Civil Police Officers
may be transferred, as far as possible, only
during the General Transfers, once in a year."
Clause 02.(2) and clause 02.(3) are also noteworthy and they read
thus:-
"02.(2) Only those who have completed 3 years in
a particular station need be transferred.
However, this stipulation will not apply to
transfers ordered on public grounds or
administrative grounds.
(3) Three options should be obtained in advance
from all the personnel who are likely to be
transferred and they may be given
postings as per their places of options to
the extent possible."
5. I have already adverted to Ext.P3 Government Order.
Going by the said order, as far as possible, the transfers should be
effected only during the period of vacations for schools and colleges
W.P.(C) 17292/2011 & conn. 11
to avoid dislocation of education of children of the Government
servants. A conjoint reading of these provisions under Exts.P3 and
P5 in W.P.(C)No.17475 of 2011 would suggest that as far as possible
general transfers should be effected once in a year, that too, during
the period of vacations for schools and colleges to avoid dislocation of
education of children of the Government servants. In other words, in
the absence of administrative or public grounds normally one should
be allowed to complete the normal tenure at a particular station and
while effecting general transfer, the guidelines prescribing granting of
option to choose stations shall be followed. Resorting to such
recognized procedures would enable the personnel to give care to the
members of their family, more particularly to the education of their
children. In view of tight and tough competitions for securing a place
for higher studies, be it professional or otherwise, untimely
dislocation of the vocational avenue of the parents may hamper the
prospects of their children. Therefore, as contemplated under Ext.P3
it will be advisable, whenever and wherever it is possible, to effect
transfers during the period of vacations for schools and colleges.
Such a condition would not work out prejudicial to the administration
as it would be possible and permissible to effect transfers on
administrative or public grounds without waiting for the expiry of the
W.P.(C) 17292/2011 & conn. 12
normal tenure. Dislocation in the family set up would certainly
disturb the mind set up of personnel and in such circumstances they
may not be able to put in their optimum capability. Certainly, it will
not be the intention of any administration in any department to
create unrest amongst its officers. In short, to extract the optimum
capacity and capability of officers it would be advisable to create a
congenial circumstances for them. Discontent will certainly degrade
the efficiency. True that in certain unavoidable circumstances, it may
not be possible to look into such aspects. There is nothing on record
to show that such circumstances existed in these cases and if such
circumstances were in existence, the orders of transfer would have
definitely been issued only on administrative or public grounds. The
Executive Directives issued by the first respondent provides for
deviation from the normal rule regarding minimum tenure for
transfers on public or administrative grounds. The impugned orders
in these Writ Petitions would undoubtedly show that enmasse
transfers have been effected. The contentions in these Writ Petitions
would also reveal that most of the petitioners are yet to complete
their normal tenure at their present stations, viz., the stations from
where they were ordered to be transferred. In the absence of
administrative or public grounds, what was the reason that prompted
W.P.(C) 17292/2011 & conn. 13
the transferring authorities concerned in these cases to order such
enmasse transfers? The facts obtained in these cases compel me to
come to the conclusion that an element of arbitrariness infected the
orders and at any rate, the issuance of the impugned orders cannot
be construed as exercise of the power of transfer in the best interests
of the administration. In a uniformed force like Police Department, all
of them may not venture to challenge such transfers. In fact, all the
transferees are not before this Court. Some of the persons have
already joined the transferred place and admittedly, after the
institution of these Writ Petitions, some of the petitioners were also
given passport and thereupon they too were made to join at the
transferred place pending these writ petitions. In certain cases,
substitutes have already joined. In some cases, by virtue of the
orders of this Court, transferees are still continuing in the present
stations. In a department like Police department, such uncertainty
cannot be permitted to prevail. Taking into account all these aspects,
setting aside of all the impugned orders would undoubtedly create an
unpleasant and unhealthy situation. In the circumstances, I am not
inclined to set aside the orders impugned. At the same time, in the
interest of justice, its impact is to be nullified as relates the
petitioners and a solution to redress their genuine grievances has to
W.P.(C) 17292/2011 & conn. 14
be evolved. I will deal with the same a little later.
6. Now, I may deal with W.P.(C).Nos.17293 and 17475 of
2011. Admittedly, it has been specifically stated in the impugned
orders that they were issued on administrative grounds.
7. A statement and an additional statement have been
filed on behalf of the second respondent in W.P.(C).No.17293/2011
and they have been adopted in W.P.(C).No.17475/2011. In the
statement filed on behalf of the second respondent, it is stated that
Exts.P1 and P2 viz., the common orders in both the Writ Petitions, as
also Ext.P3 were issued with the sole intention for delivering optimum
services to the general public and to ensure better policing in the
District. It is stated therein that Ext.P3 is an order bearing No.
KDO/474/11 and it is an order in continuation of KDO/434/11 dated
27.5.2011 that was kept in abeyance due to administrative reasons.
It is further stated that it is the modified form of KDO/474/11. It is
also stated:-
"Even if this order is not a general transfer, it is
submitted that there is no violation of any settled
norms. If any of the transferee has got any personal
grievance, he is at liberty to approach this
respondent seeking appropriate redressal of his
grievance."
A perusal of the statement filed on behalf of the second respondent
W.P.(C) 17292/2011 & conn. 15
would reveal that apart from the statement to the effect that the
orders were issued to ensure better policing in the district, it did not
reveal the real administrative exigency that constrained the District
Police Chief to issue the impugned orders citing administrative
exigency.
7. In fact, the administrative exigencies have been
attempted to be explained in the additional statement. In paragraph
4 thereunder, it is stated thus:-
"It is true to the facts that Exhibit P1, P2 and
P3 were issued on the basis of administrative
reasons and that the District Police Chief took
charge on 22.6.2011 at 10.30 a.m. It is
denied that the District Police Chief was not
present in his office and that he had gone to
Thiruvanthapuram to attend a conference of
the State Police Chief on 24.6.2011. After
taking over the charge as the District Police
Chief, Kottayam, he held sessions of
discussions with SHOs, CIs and Dy.SPs of the
district on 22.6.2011. A full pledged
conference of all the officers of the district was
also held on 23.6.2011 at the Police Club,
Kottayam wherein the Law and Order scenario
of the district, white-collar crime, mafia
activities, goonda activities, money chain
offences, traffic problems, road accidents etc.
occurring in the district and solutions thereto
were elaborately discussed. It was felt highly
expedient to make certain shuffles and
rearrangements urgently in various police
stations for bringing in an exhaustive
improvement in the existing system of policing
in the district and for providing more beneficial
services to the citizenry. The objective of
W.P.(C) 17292/2011 & conn. 16
these transfers was to engender a more
effective policing to combat the ascending
trend of crimes, traffic congestions and such
like problems faced by the general public.
Exhibit P1, P2 and P3 orders were issued in
good faith and without any malafide intention.
It was genuinely for the purpose of better
police administration in the district that these
transfers were ordered."
8. The impugned orders in these Writ Petitions would
reveal that as per the said orders, a large number of police personnel
belonging to the cadres of GASIs, Sr.CPOs, CPOs, Sr.WCPOs and
WCPOs were transferred. According to the respondents, they thought
it highly expedient to make certain shuffles and rearrangements
urgently in various police stations for bringing in an exhaustive
improvement in the existing system of policing in the district and for
providing more beneficial services to the citizenry. According to the
2nd respondent, a full fledged conference of all the officers of the
district was also held on 23.6.2011 at the Police Club, Kottayam
wherein the Law and Order scenario of the district, white-collar crime,
mafia activities, goonda activities, money chain offences, traffic
problems, road accidents etc. occurring in the district and solutions
thereto were elaborately discussed. I have no hesitation to say that
an elaborate discussion on such matters would certainly do good to
the system of policing. But at the same time, after discussing such
W.P.(C) 17292/2011 & conn. 17
matters on 23.6.2011 if certain police officers are transferred out on
24.6.2011 citing the above reasons, it would convey a wrong
impression as regards such personnel to the public that they are
inefficient, asocial or corrupt. At any rate, people will look askance at
them. In the Police Department wherein the promotional prospects
are not solely dependent on the seniority, any such observation, even
if it is generally made, may have its own impact. If enmasse
transfers are made based on such reasons even cloaking of the
expression 'administrative ground' cannot make this Court to adopt a
nonchalant attitude and therefore, I am of the considered view that
the issue invites a careful scrutiny. In Kottayam District, the District
Police Chief took in charge only on 22.6.2011. The allegation of the
petitioners is that the said officer, immediately after his taking charge
went to Thiruvananthapuram on 24.6.2011 to attend a police
conference and it was in his absence that these impugned orders
were issued. In the additional statement, the said allegation was
refuted by the second respondent. However, it is admitted therein
that the District Police Chief took charge on 22.6.2011 and evidently,
Exts.P1, P2 and P3 orders were issued on 24.6.2011. The statements
would undoubtedly show that such enmasse transfers were made the
next day of the conference on 23.6.2011 ie., on the second day after
W.P.(C) 17292/2011 & conn. 18
his assumption of charge as District Police Chief. What were the
materials taken into account by the District Police Chief to arrive at a
conclusion that administrative exigencies require transfer of the
persons who are identified for that purpose by his immediate inferior
officers with a view to improve the existing system of policing in the
district are not available before this Court and there is no whisper
about such materials in the statement and additional statement as
well. In fact, in the statement filed on behalf of the second
respondent it was stated:-
"The above transfer orders have issued only for
ensuring better policing for the benefit of the public
and purely on administrative grounds".
Apart from the said statement no details whatsoever were given in
the said statement filed on behalf of the second respondent. At the
same time such reasons, as extracted earlier, have been assigned in
the additional statement. As already noticed, the District Police Chief,
issued impugned orders within two days from his taking charge and
there can be no doubt that the impact and effect that it may inflict on
the transferees were never taken into proper consideration by the
District Police Chief. The indirect way of describing certain members
of police personnel as incapable to check the social evils described in
the additional statement would demoralise them. The power of
W.P.(C) 17292/2011 & conn. 19
transfer should be exercised reasonably and fairly and above all, in
the best interest of the administration. Paragraph 7 of the additional
statement also calls for consideration. It is stated thereunder that
the District Police Chief has issued transfer orders with proper
application of mind and after holding detailed discussions with senior
officers of the district and after evaluating, guaging and assessing the
prevailing situation of the district and considering the propriety of
everyone of the transferees in their new posts. Further, it is
stated "the orders have been issued only on administrative grounds
intended to ensure optimum service to the tax payers." I am at a
loss to understand the real meaning and intention of such a
statement. The contention that the District Police Chief issued orders
after holding detailed discussions with senior officers of the district
after evaluating, guaging and assessing the prevailing situations of
the district and after considering the propriety of everyone of the
transferees in their new post also cannot be swallowed without a
pinch of salt going by the admitted facts that the District Police Chief
took charge only on 22.6.2011 and issued orders on 24.6.2011. If
the reasons assigned in the additional statement extracted above are
the reasons that persuaded the District Police Chief to effect enmasse
transfer orders, he should have spent time to take stock of the
W.P.(C) 17292/2011 & conn. 20
situation with all seriousness and at any rate, should not have taken
an undue hasty action. In the statement dated 29.6.2011 filed on
behalf of the second respondent it is stated thus:-
"If any of the transferee has got any personal
grievance, he is at liberty to approach this
respondent seeking appropriate redressal of
his grievance. This respondent is deservingly
humane and considerate to any genuine
grievance of the subordinates".
9. I am of the considered view that the second
respondent should have shown such character before ordering
enmasse transfers as per Exts.P1, P2 and P3. Effecting enmasse
transfer within a very short span of two days from taking charge and
then assigning the reasons extracted above cannot be construed as a
true exercise of power. Malafide in the legal sense is undoubtedly, a
fraud on power and it need not necessarily be a dishonest or
malicious act. A person can be said to be acted malafidely if he
exercised his power improperly, capriciously or unreasonably. In this
given set of facts, I have no hesitation to say that, in the legal sense,
the action is malafide and not one in the best interests of the
administration. When that be the position, the offending order is
liable to be struck down. As stated in the case of other Writ
Petitions, the impugned orders are also not challenged by all the
transferees. In short, on receipt of orders of transfer, some of the
persons opted to join the transfered stations. That apart, some
substitutes have already been joined the posts vacated by the
petitioners. In fact, immediately on the issuance of transfer orders
the transferees were served with passports. In view of the said
developments, if the impugned orders are set aside, it will lead to
total confusion and definitely it would affect the law and order
scenario of the district. But that cannot be the reason for ignoring
the claims and contentions of the petitioners and also the position
obtained in these cases. Even without ascertaining whether
administrative exigency exists or not enmasse transfers were
effected and in most of the cases, the transferees are yet to complete
normal stay at their respective stations. When Government thought
if fit to give due attention and weight to the educational prospects of
children of the service personnel while issuing the norms that
regulates the transfer, the transferring authorities are bound to
follow such norms and guidelines under normal circumstances. In
such circumstances, Government are also bound to oversee
implementation of its directions. As already noticed hereinbefore, the
second respondent himself stated in the statement that if any of the
transferee has got any personal grievance, he would be at liberty to
approach him. In view of my findings with respect to the reasons
assigned in Exts.P1 to P3 ie., the administrative ground, I am of the
considered view that as in the case of the petitioners in the other
Writ Petitions, the case of the petitioners in these Writ Petitions also
deserves reconsideration.
10. I am of the view that the concerned District Police
Chief in all these Writ Petitions shall reconsider the issue of transfers
ordered as per the impugned orders in so far as they pertain to the
petitioners. Such consideration may also entail reconsideration of
transfer and postings of certain other persons included in the
impugned orders. Under normal circumstances, this Court would
have definitely considered the question whether these Writ Petitions
are bad for non-joinder of necessary parties. However, as contended
rightly by the learned counsel for the petitioners the enmasse
transfers are made, in most of the cases, in such a manner that the
petitioners are incapacitated to identify their substitutes viz., the
persons transferred in their place. Moreover, the challenge in all
these Writ Petitions are virtually directed against the exercise of
power of transfer by the concerned transferring authorities.
11. As already noticed hereinbefore, in the first batch of writ
petitions viz., writ petitions except W.P.(C)Nos.17475 and 17293 of
2011 I have already found that the impugned orders of transfer were
not issued on administrative or public grounds. In the statement
filed on behalf of the second respondent in W.P.(C).No.17293/2011,
it is stated that general transfers in the Police Department would be
effected as per the Executive Directive issued by the State Police
Chief ie., in the light of Executive Directive Nos.1/2006 and 1/2011.
Considering the fact that transfer orders were issued in the said writ
petitions without giving due regard to the said Executive Directives, I
am of the view that the second respondent is bound to follow the
Executive Directive Nos.1/2006 and 1/2011 in case he is of the view
that transfers are to be effected in the case of the petitioners. In
the case of those among the petitioners who are yet to complete two
years of stay in their respective stations from where they were
transferred, as per the impugned orders, they should be given
reposting in their respective stations. In the case of others, in case it
is found transfers are necessary, it shall be done only in accordance
with the Government orders and in terms of the Executive Directives
referred hereinbefore. Needless to say that it will be open to the
respondents to seek option as envisaged thereunder, from the
petitioners and also from others, if necessary for doing so. For the
purpose of option, they shall be treated as continuing in the stations
to which they were attached at the time of issuance of the impugned
orders. In the case of petitioners who are yet to complete the
normal tenure, it will be open to them not to opt. But, that will not
defer the right of the second respondent to consider the necessity to
effect transfers.
In the case of other two writ petitions, in view of my
findings regarding the impugned orders, I am of the considered view
that the second respondent is bound to reconsider the orders issued
to the extent they pertain to the petitioners. Consideration may also
entail consideration of the transfer of some of the other transferees.
After identifying such persons who are likely to be affected by a
favourable consideration of the case of the petitioners they may also
be put on notice. It is made clear that this judgment shall not be
taken as deterrence on the powers to effect transfer on
administrative ground. I may hasten to add that such transfer on
administrative or public grounds, as and when inevitable, can be
effected in such a manner, protecting the best interests of the
administration after proper application of mind to the attending
circumstances and certainly, in such a manner averting casting
stigma on the transferees. At any rate, an enmasse transfer citing
the reasons in the additional statement, referred above, is to be
avoided. While reconsidering the issue in view of this judgment,the
petitioners and the others likely to be affected, shall be treated as
personnel attached to the station/wing to which they were attached
prior to the issuance of the impugned orders. The second respondent
shall issue appropriate orders regarding transfer and posting in all
these writ petitions, expeditiously, at any rate, within a period of one
month from the date of receipt of a copy of this judgment. In all
cases, the second respondent shall ensure, compliance with the
principles of natural justice.
All the writ petitions are disposed of, accordingly.
C.T.RAVIKUMAR
JUDGE
TKS/spc
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