®

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 26TH DAY OF MARCH 2013

PRESENT

THE HON’BLE MR. JUSTICE N.KUMAR

AND

THE HON’BLE 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

2

(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

3

(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

4

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:

O R D E R

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.

5

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

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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 Hon’ble Supreme Court in Prakash Singh’s

case and in violation of the provisions of Amendment Act. The

petitioner has been shifted arbitrarily by the forces against

whom the Hon’ble 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

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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

8

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

Hon’ble 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. Since its

constitution, the Board has not hitherto 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

9

Establishment Board (PEB) has functioned is enclosed. The

last meeting of the PEB was held on 28.11.2012.

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

Establishment Board (PEB) has to make appropriate

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. He

has worked in different capacities in different places. He

having completed a fairly long period of almost 2½ 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 Additional SPs, should be made in

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

under:

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 Court’s

ruling in Prakash Singh’s case. However, within a span of 1½

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 1½ 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. The State has filed a detailed statement of

objections 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.

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9. The private respondent has also filed a detailed

statement 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. The

petitioner signed the Charge Transfer Certificate 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. It is

only on such recommendation, the Government 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. Any other interpretation would

defeat the object of the Act. Therefore he submits that the

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

set aside.

12. The learned Additional Government Advocate

Smt. Susheela appearing for respondents 1 and 2,

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 sub-

section (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 1½ 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 SINGH’s 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.

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RECOMMENDATION OF THE COMMISSIONS

18. The Indian Police Act, 1861 was an enactment

which 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 panchayat elections in

Bihar the local correspondent of the "Hindu"

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

"The Panchayat elections like the other

elections in the recent past have

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 affiliations, who is serious about

fighting elections, 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 with the police system

extraneous sources, especially the politic

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 level—political levels to government—are

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 24.10—The 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 consideration—the 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

regarding any other matter which the

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 a politician for transfers/postings, training,

rewards etc. should be severely dealt with.” However,

“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 the DGP as members to hear

representations from police officers of the rank of

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

SINGH’s 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 absence of legislation and

implemented till legislatures pass appropriate

legislations.”

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 self-

executory 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. I 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

SINGH’s 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 Government shall give due

weightage and shall normally accept the

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

places than one in Section 20B of the Act. The use of word

“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

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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

Singh’s 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.

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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

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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

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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

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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

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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 :

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"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 Three-

Judge 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 by courts and has also been

recognised as a salutary principle of

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, sub-

division, 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

77

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. The justification offered for exercise of the power is

that the 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

79

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 Court’s 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 taken, it has no

value in the eye of law. Unfortunately, the Central

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 Singh’s 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. For the aforesaid reasons, we pass the following

order:-

(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/-