Dr. T.P.Senkumar I.P.S vs Union Of India on 21 July, 2016

[Cites 43, Cited by 9]

Kerala High Court

Dr. T.P.Senkumar I.P.S vs Union Of India on 21 July, 2016

Interference declined by the CAT to entertain the challenge raised against Annexure A1 order dated 01.06.2016, whereby the petitioner was displaced from the post of 'State Police Chief', simultaneously appointing the third respondent in that post, is under challenge. It is mainly based on the ground that the post of the 'State Police Chief' is having a fixity of minimum tenure of 'two years' as per Section 97(1) of the Kerala Police Act, 2011 (Act in short)and in the light of the ruling rendered by the Apex Court in Prakash Singh & others vs. Union of India & others [(2006) 8 SCC 1=2006 AIR SCW 5233], followed by the subsequent Bench in T.S.R. Subramanian vs. Union of O.P.(CAT)No.205 OF 2016 2 India (2013) 15 SCC 732. Constitutional validity of Section 97(2)(e) of the Kerala Police Act is also questioned, in relation to the challenge raised against Annexure A1.

2. With regard to the sequence of events, it is to be noted that the petitioner joined the 'IPS' in the year 1983 and was allotted to the Kerala cadre. After serving the State at different levels, he was promoted as 'Addl. DGP' in the year 2009 and subsequently as DGP on 01.01.2014, placing him in the Prisons and Correctional service. While continuing so, the petitioner was appointed as the 'State Police Chief', as per Annexure A2 order dated 22.05.2015. Pursuant to the above posting, the petitioner was given the apex scale of Rs.80,000/-(fixed). It is stated that the petitioner is having meritorious service record and almost in all the performance appraisal reports of different years [copies of which have been produced and marked as Annexures- A4 to A14], the merit rating has been given as 'outstanding'.

3. While continuing so, General Election was declared to the Legislative Assembly of Kerala. The Election was held on 16.05.2016 and the results were declared on 19.05.2016. On O.P.(CAT)No.205 OF 2016 3 declaring the results, the United Democratic Front (UDF in short ) who was in power, lost the battle and the Left Democratic Front (LDF) was put to power, to run the Government. The Elected Members/ Ministers were sworn in and shortly thereafter, allegedly as a measure of political interference, the petitioner was displaced as per Annexure A1 order and was virtually demoted to the post of 'Chairman and Managing Director' of the Kerala Police Housing and Construction Corporation on State Deputation basis. As per Annexure A1 order itself, it was made clear that the post of 'Managing Director of the Kerala Police Housing and Construction Limited was equivalent in status and responsibility as that of the cadre post of Director, Vigilance and Anti Corruption Bureau.

4. As disclosed from Annexure A3 details of scales of pay, the post of Director, Vigilance and Anti Corruption Bureau was situated on a lower pedestal carrying a scale of pay of Rs.75500- 80000/-, whereas the petitioner was shifted from the post having the maximum scale, i.e. Rs.80000/- (fixed scale). Contending that the displacement of the petitioner was without any regard to O.P.(CAT)No.205 OF 2016 4 the fixity of tenure of 'two years' as envisaged under Section 97 (1) of the Kerala Police Act and also against the mandate of the verdict passed by the Supreme Court in (2006) 8 SCC 1(cited supra) and further since it amounted to reduction in rank/position for having equated to the post of Director, Vigilance and Anti Corruption Bureau, carrying a lesser pay scale, the petitioner moved the CAT, Ernakulam, by filing O.A. 446 of 2016 with the following prayers:

"(i) Declare that Clause (e) of Section 97(2) of the Kerala Police Act, 2011 is arbitrary, discriminative and violative of Article 14 and 19 of Constitution of India and against the dictum laid down in Prakash Singh's case and strike down the same.

(ii) Declare that Annexure-A1 so far as the applicant is concerned is illegal, arbitrary and without authority;

(iii) set aside Annexure-A1 order so far as the applicant is concerned and permit the applicant to continue as State Police Chief in pursuance of Annexure A2 order of appointment.

(iv) issue such other appropriate direction or order this Tribunal may deem fit and order in the interest of justice.

5. Annexure A1 order was defended by the second respondent, by filing a detailed reply statement. The petitioner O.P.(CAT)No.205 OF 2016 5 filed a rejoinder, whereupon an additional reply statement was filed from the part of the second respondent. After hearing both the sides, the Tribunal declined interference and passed Ext.P5 order, sustaining Annexure A1, which is under challenge in this Original Petition.

6. Heard Mr. S. Sreekumar, the learned Sr. Counsel appearing for the petitioner, Mr.C.P. Sudhakara Prasad, the learned Advocate General on behalf of the second respondent/State and also Mr. Ajay, the learned counsel appearing for the third respondent; besides the learned Central Government Counsel, who entered appearance on behalf of the first respondent/Union of India. A counter affidavit has been filed on behalf of the second respondent, also producing a copy of the relevant G.O. dated 23.08.2016, which is to the effect that the pay packet of the petitioner stands protected, granting the relief in terms of Ext.P5 order passed by the Tribunal.

7. The contentions raised by the petitioner, as put forth by the learned Sr. Counsel, can be summarised under the following O.P.(CAT)No.205 OF 2016 6 heads:

(1) Annexure A1 order passed under Section 97 (2) (e) of the Kerala Police Act 2011 is bad, primarily for the reason that Section 97(2)(e) of the Kerala Police Act is ultra vires to the constitution of India, being against the law declared by the Supreme Court in Prakash Singh's Case [(2006)8 SCC 1].

2) No factual circumstance was prevailing to have invoked the power under Section 97(2)(e) of the Kerala Police Act. The two incidents cited against the petitioner- i.e. 'Puttingal Temple Tragedy' occurred on 09/10.04.2016 and 'Perumbavoor Jisha Murder case' occurred on 28.04.2016 were properly enquired by the Police and there was no lapse on the part of the petitioner in this regard.

3) The petitioner is having an unblemished track record. His performance Appraisal Reports O.P.(CAT)No.205 OF 2016 7 rate him as 'outstanding'.

4) The petitioner was displaced immediately after declaration of the result in the General Election to the Assembly, which was won over by the LDF and hence as a measure of political vendetta, involving malafides.

5) As held by the Apex Court, the State Police Chief could have been displaced only after consultation with the 'State Security Commission' and despite constitution of such Commission, no consultation was ever made and hence Annexure A1 order is bad in toto.

6) The third respondent is much junior to the petitioner and as such, the petitioner is made to work under his junior, which is not permissible.

5) The post to which the petitioner has been transferred, having been equated with the post of Director, Vigilance and Anti Corruption Bureau, carrying a lesser Scale of Rs.75000- O.P.(CAT)No.205 OF 2016 8 80000, it amounts to demotion.

8. Coming to the history of Legislation of the Kerala Police Act, 2011, frequent changes/transfers in the Police Force, especially at higher levels was quite rampant throughout the country, which virtually made it difficult to the honest and committed officers to work independently and they were being pressurised to yield to political interests on the threat of transfer/displacement. This was detrimental to the larger public interest and hence the issue was projected before the Supreme Court. In Vineet Narain vs. Union of India (1998) 1 SCC 226= AIR 1998 SC 889, the three member Bench, who rendered the verdict, highlighted the need to insulate the agencies like 'CBI' and 'CVC', taking them outside the purview of political clutches . After raising various points for consideration, the Bench codified 7 principles of public life as given in paragraph 56 of the said verdict, the relevant portion of which is extracted below:

"56. It is a similar perception in England which has led to the constitution of a Committee headed by Lord Nolan on O.P.(CAT)No.205 OF 2016 9 'Standards in Public Life'. In Volume I of Lord Nolan's Report (1995), the general recommendations made are :

xx xx xx The Seven Principles of Public Life are stated in the Report by Lord Nolan, thus :

"The Seven Principles of Public Life Selflessness Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends Integrity Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties. Objectivity In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

Accountability Holders of public office are accountable for their decisions and actions to the public and must submit themselves to O.P.(CAT)No.205 OF 2016 10 whatever scrutiny is appropriate to their office. Openness Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

Honesty Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership Holders of public office should promote and support these principles by leadership and example."

After discussing the principles, various directions were given, including that the Director, CBI should have a minimum tenure of 'two years'. The relevant portion is extracted below:

"59. As a result of the aforesaid discussion, we hereby direct as under :-

I. CENTRAL BUREAU OF INVESTI-GATION (CBI) AND CENTRAL VIGILANCE COMMISSION (CVC) xx xx xx xx

7. The Director, CBI shall have a minimum tenure of two years, regardless of the date of his superannuation. This O.P.(CAT)No.205 OF 2016 11 would ensure that an officer suitable in all respects is not ignored merely because he has less than two years to superannuate from the date of his appointment.

xx xx xx"

It was also observed in paragraph 61, expressing the open desire that the Union of India would impress the States for similar mechanism/tenure in respect of the post of State Police Chief/District Police Chief.

9. Nothing was transpired for quite long, which led to a writ petition filed before the Apex Court under Article 32 of the Constitution of India, calling for a direction to implement the National Police Commission Report, 1979. The Apex Court observed in paragraph 15 of the verdict passed in Prakash Singh's case (cited supra in AIR) that, besides the report submitted by the National Police Commission,various other High- Powered Committees and Commissions had examined the issue of police reforms viz., (i) National Human Rights Commission (ii) Law Commission (iii) Ribeiro Committee (iv) Padmanabhaiah Committee and (v) Malimath Committee on Reforms of Criminal Justice System. After taking stock of all the relevant materials, O.P.(CAT)No.205 OF 2016 12 the Bench observed that no concrete solution was coming from the part of the Government and that there was no point in waiting further for the Government to take suitable steps for police reforms. Observations in this regard as contained in paragraph 25 (in AIR) are relevant, which hence is extracted below:

"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 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, O.P.(CAT)No.205 OF 2016 13 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. " (Emphasis is supplied)

10. In the above circumstance, the Apex Court held that having regard to (i) the gravity of the problem; (ii) the urgent need for preservation and strengthening of Rule of Law; (iii) pendency of the petition before the Apex Court for more than ten years; (iv) the fact that various Commissions and Committees had 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, there could not be any further wait and that the stage had come for issuing appropriate directions for immediate compliance, so as to be operative till such time a new model Police Act was prepared by the Central Government and/or the State Government passed the requisite legislation. The further observations in paragraph 29 of the said verdict, expressing O.P.(CAT)No.205 OF 2016 14 hope that the State Government would rise to the occasion and give shape to 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, for securing an efficient and better criminal justice delivery system. Sensing the dire necessity to lay down guidelines in this regard and observing that mere 'expression of hope' was not enough, the Bench proceeded further in this direction by issuing the directions/guidelines to be operative till the new legislation was enacted by the State Government. The observations in this regard to the effect that such directions/guidelines were to remain as stop-gap arrangement, till proper legislations were made by the State Government, is further discernible from paragraph 30, which is reproduced below:

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 O.P.(CAT)No.205 OF 2016 15 in aid of the orders passed by this Court. The decision in Vineet Narain's case (supra) 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. " (Emphasis is supplied)

11. Specific directions were given by the Apex Court, both to the Union of India and the States, to give a minimum tenure of 'two years' to the post of DGPs, holding that the position would continue till appropriate legislations were made by the States. Direction was also given to constitute a 'State Security Commission'. The directions given by the Court in (2006)8 SCC 1 (cited supra) as contained in paragraph '31' (in AIR) are in the following terms:

With the assistance of learned counsel for the parties, we have perused the various reports. In discharge of our constitutional duties and obligations having regard to the aforenoted position, we issue the following directions to the Central Government, State Governments and Union Territories for compliance till framing of the appropriate O.P.(CAT)No.205 OF 2016 16 legislations :

State Security Commission (1) The State Governments are directed to constitute a State Security Commission in every State to ensure that the State Government does not exercise unwarranted influence or pressure on the State police and for laying down the broad policy guidelines so that the State police always acts according to the laws of the land and the Constitution of the country. This watchdog body shall be headed by the Chief Minister or Home Minister as Chairman and have the DGP of the State as its ex-officio Secretary. The other members of the Commission shall be chosen in such a manner that it is able to function independent of Government control. For this purpose, the State may choose any of the models recommended by the National Human Rights Commission, the Ribeiro Committee or the Sorabjee Committee, which are as under:

                xx     xx      xx

        .       xx     xx      xx

        -

The recommendations of this Commission shall be binding on the State Government.

The functions of the State Security Commission would include laying down the broad policies and giving directions for the performance of the preventive tasks and service oriented functions of the police, evaluation of the performance of the State police and preparing a report O.P.(CAT)No.205 OF 2016 17 thereon for being placed before the State legislature. Selection and Minimum Tenure of DGP:

(2) The Director General of Police of the State shall be selected by the State Government from amongst the three senior-most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.

Minimum Tenure of I.G. of Police & other officers:

(3) Police Officers on operational duties in the field like the Inspector General of Police in-charge Zone, Deputy Inspector General of Police in-charge Range, Superintendent of Police in-charge district and Station House Officer in-charge of a Police Station shall also have a prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction O.P.(CAT)No.205 OF 2016 18 in a criminal offence or in a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities. This would be subject to promotion and retirement of the officer.

Separation of Investigation:

                          xx     xx      xx

           Police Establishment Board:

                          xx     xx      xxi

           Police Complaints Authority:

                          xx     xx      xx

           National Security Commission:

                          xx     xx      xx

The aforesaid directions shall be complied with by the Central Government, State Governments or Union Territories, as the case may be, on or before 31st December, 2006 so that the bodies afore-noted became operational on the onset of the new year. The Cabinet Secretary, Government of India and the Chief Secretaries of State Governments/Union Territories are directed to file affidavits of compliance by 3rd January, 2007."(Emphasis is supplied) It was accordingly, that the Kerala Police Act, 2011 was brought into existence.

12. Some of the provisions in the Statute, in so far as the O.P.(CAT)No.205 OF 2016 19 issue involved herein is concerned will be worthwhile to be noted right now:

Section 18 of the Kerala Police Act deals with the appointment of State Police Chief. He shall be appointed by the Government from among those officers of the State Cadre in the IPS, who have already been promoted to the rank of DGP, taking into account the ability to lead the police force of the State, the over all history of service, professional knowledge and experience.

Section 24 of the Act deals with constitution of the 'State Security Commission' with the following members: [as given under sub-section (2)]:

24. State Security Commission.- (1) The Government shall, by notification in the official Gazette, constitute a State Security Commission for discharging such functions and duties assigned under this Act.

(2) The Commission shall consist of the following members, namely:-

(i) the Minister in-charge of Home Department who shall be the Chairman;

(ii) the Minister in-charge of Law;

(iii) the Leader of Opposition;

O.P.(CAT)No.205 OF 2016 20

(iv) a retired Judge of the High Court nominated by the Chief Justice of the High Court of Kerala;

          (v)    the Chief Secretary- ex-officio;

          (vi)    the Secretary to Government, Home Department-

          ex-officio;

(vii) the State Police Chief- ex-officio;

(viii) three non-official members, who shall be persons of eminence in public life with wide knowledge and experience in maintenance of law and order, administration, human rights, law, social service, management of public administration, nominated by the Governor of whom one shall be a woman.

Sub-section (3) of Section 24 states that the State Police Chief shall be the Secretary of the Commission and by virtue of sub- section (8) of Section 24, the Commission is given the power to regulate its own procedure and to conduct the business transacted by it.

"S.25. Functions of the Commission. - (1) The Commission shall have the following functions, namely:-

(a) to frame general policy guidelines for the functioning of the Police in the State;

O.P.(CAT)No.205 OF 2016 21

(b) to issue directions for the implementation of crime prevention tasks and service oriented activities of the Police;

(d) to prepare an annual report of the activities of the Commission and submit it to the Government; and

(e) to prepare the guidelines for the changes to be carried out, from time to time, in the state police;

(f) to discharge such other functions as may be assigned to it by the Government.

(2) The report submitted by the Commission under clause

(d) of sub-section (1) shall, on receipt, be placed before the Legislative Assembly.

(3) No act or proceedings of the Commission shall be deemed to be invalid merely by reason of any vacancy in the Commission at the time any such act or proceedings was done or issued.

(4) Notwithstanding any guidelines or directions issued by the Commission, the Government may lawfully issue such directions as it deems necessary on any matter, if the situation so warrants, to meet any emergency. (5) The directions of the Commission shall be binding on the Police Department:

Provided that the Government may, for reasons to be recorded in writing, fully or partially, reject or modify any recommendation or direction of the Commission. O.P.(CAT)No.205 OF 2016 22 "S.26. Evaluation of police performance.- (1) The State Security Commission, shall every year, appoint a panel of three experts, familiar with the functioning of the Police or public administration or sociological or criminological studies, to evaluate the performance of the Police in the previous financial year and to suggest the performance standards for the succeeding financial year. (2) The members of the panel appointed under sub-section (1) shall not be continued as members continuously for more than two terms.

(3) The State Security Commission may fix the criteria for evaluating the performance of Police activities by discouraging the preparation by Police the crime statistics by consciously limiting the registration of crimes and taking care to avoid considering such statistics as proof of reduction of crime and taking care to evolve standards of qualitative excellence in relation to manpower utilization and resource utilization in the Police Department, different services rendered by Police and Police activities in all fields.

(4) The State Security Commission shall every year fix performance standards to be attained by various units and branches in the succeeding financial year and the same shall be communicated to the concerned before the first day of March in the current financial year.

O.P.(CAT)No.205 OF 2016 23 "S.97. Minimum tenure of police officers.- (1) The Government shall ensure a minimum tenure of two years for police officers posted as State Police Chief, Inspectors General in charge of Ranges, Superintendents of Police or Commissioners in charge of Police Districts and Station House Officers:

Provided that this tenure shall not be applicable in cases of superannuation, promotion, reversion, suspension, leave, etc. (2) The Government or the appointing authority may, without prejudice to the right to initiate any legal or departmental action, transfer any police officer before completing the normal tenure of two years, on being satisfied prima facie that it is necessary to do so on any of the following grounds stated in (a) to (f), namely:-

(a) the officer is subjected to disciplinary action;

(b) it is found prima facie on investigation that the officer is involved in a corrupt practice or in a criminal offence involving proclivity for violence or moral turpitude;

(c) the officer is physically or mentally incapable of discharging his duties ;

(d) a superior officer evaluating the work of an officer, reports, in writing, that the officer is not carrying out his duties efficiently ;

(e) cause serious dissatisfaction in the general public about efficiency of police in his jurisdiction;

O.P.(CAT)No.205 OF 2016 24

(f) the officer requests, in writing, for a transfer from the place where he is working." (Emphasis is supplied).

13. According to the petitioner, he is entitled to continue as the State Police Chief for a minimum tenure of 'two years' and that he could be displaced only in consultation with the State Security Commission. Incidentally, it is also brought forth that Rule 7 of the IPS Cadre Rules 1954 dealing with postings has undergone a change and got amended by notification dated 28.01.2014. The said Rule and the different sub rules stipulate minimum tenure of 'two years' subject to some exceptions, besides constitution of Civil Service Board, also mentioning its functions. It is pointed out that a dispute is pending before the Apex Court challenging the constitution of the Civil Service Board, contending that the same is contrary to the mandate given by the Apex Court and that the Apex Court has stayed operation of Rule 7 in toto, as put forth by the learned Sr. Counsel for the petitioner.

14. With regard to one of the two incriminating instances O.P.(CAT)No.205 OF 2016 25 for invoking the power under Section 97(2)(e) of the Act against the petitioner (Puttingal Temple Tragedy], the petitioner seeks to rely on Annexure-A15 report dated 12.04.2016 of the I.G. Thiruvananthapuram referring to the facts and figures and the steps taken by the Police in Kollam district, where, as many as 33 Temple festivals were going on. Reference is also made to the "certificate" given by the I.G. as contained in the said report, that the Police force led by the petitioner as the State Police Chief had done a commendable job. With reference to the said proceedings, the petitioner submitted a report dated 13.04.2016 to the Addl. Chief Secretary (Home), the contents of which virtually blamed the District Administration for the lapses, if any.

15. The stand of the second respondent, as reflected from the reply statement is that, the impugned proceedings are strictly in conformity with the relevant provisions of law and that there is no conflict between Section 97(2)(e) of the Kerala Police Act and the verdict passed by the Apex Court, adding further that the Accountant General has already made it clear that there will not be any reduction in the pay of the petitioner. According to the O.P.(CAT)No.205 OF 2016 26 State/Department, the acts of the petitioner, in respect of 'Puttingal Temple Tragedy' and 'Jisha murder case' had resulted in serious dissatisfaction as to the ability of the Police in the general public and that the petitioner had virtually tried to protect the erring police officers. It was also pointed out that the placement given to the petitioner as the State Police Chief, vide Annexure A2 itself was not based on any consultation with the State Security Commission and further that the same was virtually superseding his senior by name Mahesh Kumar Singhla, who was serving on deputation elsewhere.

16. The petitioner filed a rejoinder, referring to the 'judicial enquiry' ordered by the State and pointing out that the entire blame cannot be mulcted on the Police alone. It is contended that Section 97(2)(e) of the Kerala Police Act is very vague and that it has been enacted only to reserve power to the political higher- ups. It is stated that there is a 'stigma' in Annexure A1 order and that the Tribunal was not correct in declining interference. It is also pointed out that public opinion cannot be the basis for disturbing the minimum tenure of the State Police Chief and O.P.(CAT)No.205 OF 2016 27 that the media reports, if any, cannot be the deciding factor. It is contended that the State Security Commission was constituted as per G.O.(Ms)No.263/2011/Home dated 26.11.2011 in consonance with the verdict rendered by the Supreme Court in Prakash Singh's case (cited supra) and as such, the State Police Chief could have been changed only with recommendation of the State Security Commission. Misuse of power and malafides are writ large on the face of the records and hence interference is sought for .

17. Shri C.P. Sudhakara Prasad, the learned Advocate General pointed out that the challenge raised by the petitioner, with reference to the vires of the provision (i.e. Section 97(2)(e) of the Kerala Police Act, 2011) is not liable to be agitated before this Court, as it was not pressed before the Tribunal and no decision was caused to be made on that point, as evident from paragraph 46 of Ext.P5 judgment. In so far as the law declared by the Apex Court on the point is that the challenge, if any, has to be raised in the Court of first instance, the petitioner having chosen not to press the said ground before the Tribunal, O.P.(CAT)No.205 OF 2016 28 is not justified in making any submission before this Court, with reference to the validity of the provision. In response to the submission made by the learned Counsel for the petitioner that the provision of law cannot be challenged before the CAT and can be made only before this Court, the learned Advocate General pointed out that, as per the law declared by the 7 Member Bench of the Apex Court in L. Chandra Kumar vs. Union of India and others [1997) 3 SCC 261], such challenge against the provision of law has to be raised before the Tribunal (except on the validity of the provisions in the statute by virtue of which, the Tribunal has been constituted).

18. On going through the above verdict, it is seen that the position stands answered against the contention mooted by the petitioner herein. Paragraphs 93 and 99 of the above verdict are relevant in this context; which are reproduced below:

"93. Before moving on to other aspects, we may summarise our conclusions of the jurisdictional powers of these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are O.P.(CAT)No.205 OF 2016 29 questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional setup, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Court. We may add that the Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the O.P.(CAT)No.205 OF 2016 30 jurisdiction of the Tribunal concerned."

xx xx xx xx "99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323A and Clause 3 (d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the exclusion of jurisdiction"

"

clauses in all other legislations enacted under the aegis of Article 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred uipon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have O.P.(CAT)No.205 OF 2016 31 been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislation (except where the legislation which creates the particular Tribunal is challenged)by overlooking the jurisdiction of the concerned Tribunal. Section 5(6)of the Act is valid and constitutional and is to be interpreted in the manner we have indicated. "

19. The matter came up for consideration before the Apex Court again in Rajeev Kumar and another vs. Hemraj Singh Chauhan and others [(2010) 4 SCC 554]. Referring to the specific observations made by the Constitution Bench of the Apex Court in L. Chandra Kumar vs. Union of India and others [1997) 3 SCC 261] with specific reference to paragraphs 93 and 99 (extracted above), the Bench held in paragraph 13 as follows:

"13. In view of such repeated and authoritative pronouncement by the Constitution Bench of this Court, the approach made to the High Court for the first time by these appellants in respect of their service disputes over which CAT has jurisdiction, is not legally sustainable. The Division Bench of the High Court, with great O.P.(CAT)No.205 OF 2016 32 respect, fell into an error by allowing the appellants to treat the High Court as a court of first instance in respect of their service disputes for adjudication of which CAT has been constituted. "

From the above, it is clear that the Apex Court has categorically declared that the litigants cannot approach the High Court directly, overlooking the jurisdiction of the Tribunal on matters including the challenge to the constitutional questions and the vires of the statutory legislations, and that, if at all there was any mistake/error on the part of the Tribunal, it was quite open for the litigant to have moved the Tribunal by way of Review, by virtue of the specific power conferred upon the Tribunal in this regard. It can be seen that the petitioner herein, though had a vague plea as to the constitutional validity of Section 97(2)(e) of the Kerala Police Act, 2011 in the O.A. and had raised the prayer to strike down the same, the said plea/relief was never pressed before the Tribunal as disclosed from paragraph 46 of Ext.P5 judgment. In the said circumstance, since it was never a moot point before the Tribunal, it cannot be agitated for the first time before this Court, in view of the law declared by the Apex Court O.P.(CAT)No.205 OF 2016 33 as above.

20. It will be worthwhile to extract the observations made by the Apex Court in similar lines, in paragraph 21 of the decision rendered in National Institute of Technology and another vs. Pannalal Choudhury and another [(2015)11 SCC 669], which is extracted below:

"21. At the threshold, it is noticed that in the writ petition, the respondent had taken several grounds to challenge the dismissal order on merits. However, a perusal of order of the writ court would show that the writ petitioner did not press any of the grounds. The only ground, which he pressed, while prosecuting the writ petition, was that the order of dismissal was passed by the Principal and Secretary of the NIT, who had no authority to pass such order. Since the authority, to dismiss the respondent vested in the BoG of the NIT under the Rules and hence the dismissal order was bad in law. In view of the fact that the respondent did not press any of the grounds before the High Court except the one mentioned above we need not go into any of the ground. The only issue the High Court was called upon to decide was whether the removal of the respondent from service was by the competent authority?"

O.P.(CAT)No.205 OF 2016 34 Applying the said law to the case in hand, the factual position revealed is that, the petitioner does not have any case that he had pressed the said question as well before the Tribunal, but it was omitted to be considered or that the observations made by the Tribunal in paragraph 46 of Ext.P5 judgment that "no arguments were addressed in that behalf", was wrong in any manner. No such pleading is raised in this Original Petition. If at all any such case was there, it may amount to an "error apparent on the face of the records" and if so, it was open for the petitioner to have moved the Tribunal by way of Review, invoking the power and procedure under Section 22(3)(f) of the Administrative Tribunals Act, 1985. No such exercise has been done by the petitioner, by virtue of which, it can be reasonably presumed that the said question was left out and the petitioner was focussing more on the other grounds. In the said circumstance, this Court is of the firm view that the legal position stands answered against the petitioner by virtue of the law declared by the Constitution Bench of the Apex Court in L. Chandra Kumar vs. Union of India and others [1997) 3 O.P.(CAT)No.205 OF 2016 35 SCC 261], followed by the subsequent ruling in Rajeev Kumar and another vs. Hemraj Singh Chauhan and others [(2010) 4 SCC 554].

21. A Division Bench of this Court had also occasion to consider whether non-parties to the proceedings before the Tribunal could directly approach this Court, invoking the power under Article 226/227 of the Constitution of India, either directly or by getting himself impleaded, by filing an I.A. in the proceedings pending before this Court. Placing reliance on the verdict passed by the Apex Court in Rajeev Kumar and another vs. Hemraj Singh Chauhan and others [(2010) 4 SCC 554] and L. Chandra Kumar vs. Union of India and others [1997) 3 SCC 261], it was held in paragraph 5 of the verdict in Gireesh Babu M.B. and others vs. Pavithran T.T.V. and others [2013(3) KHC 165 =2013(3)KLT 453] that such a course was never permissible, thus declining interference in the O.P. The very same Bench had occasion to consider the matter again in Vijayakumar T. and others vs. State of Kerala and others [2014(1) KHC 104=2014(1)KLT 186], where the O.P.(CAT)No.205 OF 2016 36 main question considered was whether the reliefs not claimed and grounds not raised before the Tribunal could be raised in the O.P. filed before the High Court. The question was answered in the 'negative', placing reliance on the verdicts passed by the Apex Court. Paragraph 6 of the said verdict is reproduced below for convenience of reference:

"6. Before us, the petitioners have sought for a further relief; that is to say; a challenge to the Special Rules. That is beyond the purview of the reliefs sought for in the original application filed before the Tribunal, and therefore, the visitorial jurisdiction under Art.227 of the Constitution of India, in the light of the law laid down by the Apex Court in L.Chandra Kumar v. Union of India & Ors.(1997 (2) KLT SN 11 (C.No.11) SC = (1997) 3 SCC

261) cannot be extended to widen the scope of this original petition to include reliefs not claimed and grounds not raised before the Tribunal. Under such circumstances, we dissuade ourselves from expressing anything on the merits of the so-called challenge that the petitioners want to place as against the statutory rules."

(Emphasis is supplied) It may be true that there is no estoppel to the question of law which can be raised at any time. But such question of law can O.P.(CAT)No.205 OF 2016 37 only be with reference to an existing/undisputed provision or a binding precedent, which was omitted to be noted and applied with regard to the given set of facts and circumstances and never with regard to the 'disputed provision'. The question whether a provision was valid or not in the constitutional perspective, requires an exercise, to ascertain whether there was any transgression at the hands of the law makers with reference to the relevant entries under the 7th Schedule of the Constitution of India and such other relevant aspects. This exercise had to be done before the Tribunal at the first instance and the role of this Court is only 'supervisory' in nature, conducting scrutiny of the verdict passed by the Tribunal. The law is crystal clear from the discussion made in the previous paragraphs, that the petitioner, having not chosen to agitate the vires of the legal provision [Section 97(2)(e) of the Kerala Police Act, 2011] before the Tribunal, as taken note of in paragraph 46 of Ext.P5 order, he cannot press it for the first time before this Court, treating this Court as the Court of first instance. We find it difficult to accept the proposition mooted by the petitioner and it is repelled O.P.(CAT)No.205 OF 2016 38 accordingly.

22. In Citizen for Justice and Peace vs. State of Gujarat and others [(2009)11 SCC 213], the Apex Court held that appointment of a Government servant is the prerogative of the Government, particularly when the appointment is to a sensitive post like the Director General of Police (DGP). The Bench held that the Court under the 'Doctrine of judicial review' would not upset such an appointment as a matter of course. The scope of judicial review with reference to the scope of transfer of a Police officer, in the context of the stipulated minimum service under section 4A of the Police (Amendment)Ordinance 2007(Kerala) came to be considered by this Court in Philipose Abraham vs. State of Kerala [2007 (4) KLT 699]. Section 4A of the Ordinance, which preceded the Act in question (i.e Kerala Police Act, 2011), stipulated a minimum tenure of 'two years' for police officers from the date of assuming charge in the post. Referring to the exception carved out by way of sub-section (2) of Section 4A, the Bench held as per the above decision, that the Government has reserved O.P.(CAT)No.205 OF 2016 39 certain powers to it, to transfer a police officer before completion of normal tenure of two years . It was further observed that the Government is the 'best judge' to decide how to distribute and utilise the services of its employees; however cautioning that this power must be exercised honestly, bona fide and reasonably, which should be in public interest; alerting further that, if the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive, it would amount to mala fide and colourable exercise of power .

23. Then the question is whether there is any instance of mala fides and whether the displacement of the petitioner was ordered as a matter of colourable exercise of power. As mentioned already, fixity of tenure was ordered by the Apex Court in Prakash Singh's case (cited supra), considering the chance of frequent displacement for yielding/not yielding political pressure, which would be detrimental to the public interest. But for the vague plea raised by the petitioner that he has been shifted only because of the change in power of the Ruling Front, nothing else is mentioned to substantiate the plea of mala fides, O.P.(CAT)No.205 OF 2016 40 if any; and nobody has been impleaded in the personal capacity as well. On the other hand, the respondent State has explained by way of specific pleading as to the circumstances under which the petitioner has been displaced, giving suitable alternate posting to him, invoking the power under Section 97(2)(e) of the Kerala Police Act, 2011. As noted already, it was made clear by the Apex Court that the guidelines framed and the directions given by the Court will continue only till legislations were made. The State of Kerala has enacted the Kerala Police Act, 2011, giving fixity of tenure by '2 years' u/s 97(1) of the Act, however carving out some exceptions to the normal tenure of two years as dealt with u/s 97(2) of the Act. Since appropriate enactment has been brought about, the guidelines and directions given by the Supreme Court have lost its significance and the field is now governed by the statute. Since the challenge against as to the vires of the provision (Sect.97(2)(e) of the Act was not pressed before the Tribunal and since we have already held that it cannot be urged before this Court treating this Court as the court of first instance, the only point to be looked into is whether the O.P.(CAT)No.205 OF 2016 41 impugned order will fit into the slot of Section 97(2)(e) of the Act

24. It is pointed out that the State Security Commission constituted under Section 24 does not cast a duty to have consultation with the Commission for selection and appointment or displacement of the State Police Chief. The functions of the Commission are explicitly dealt with under Section 25, which does not include any such power. Appointment of the State Police Chief is to be effected by the Government as mentioned in Section 18 and nothing else. That apart, the minimum tenure is given to the Police Officers concerned as mentioned in Section 97(1) of the Kerala Police Act, subject to the rider under Section 97(2). This minimum tenure is for the benefit of the public at large, and not to extend any favours or sympathy to the officers holding the post. The exceptions provided under Section 97(2) to the normal tenure of two years under Section 97(1) of the Act is in public interest. It was only for protecting the rights of the citizens, till appropriate legislations were made, that the direction was given by the Apex Court in (2006) 8 SCC

1. This is more so since, the prayer raised before the Supreme O.P.(CAT)No.205 OF 2016 42 Court was to legislate, based on the Law Commission's recommendation, but the Apex Court held that they could not do so, and would issue directions, till legislations were made; and thus the judgment in (2006) 8 SCC 1.

25. In People's Union for Civil Liberties (PUCL) and another vs. Union of India and another [(2003) 4 SCC 399 = AIR 2003 SC 2363], paragraph 129 (in AIR), laying the conclusions makes the position further clear as to the 'pro- tempore' nature of such directions, to be operative till appropriate legislations are made to govern the field; the relevant portion of which is reproduced below:

29.Finally, the summary of my conclusions :

           (I). xx xx     xx

           (2) xx xx      xx

(3) The directives given by this Court in Union of India v.

Association for Democratic Reforms ((2002) 5 SCC 294) were intended to operate only till the law was made by the Legislature and in that sense 'pro tempore' in nature. Once legislation is made, the Court has to make an independent assessment in order to evaluate whether the items of information statutorilly ordained are reasonably adequate to secure the right of information available to the O.P.(CAT)No.205 OF 2016 43 voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court, even if they be tentative or ad hoc in nature, should be given due weight and substantial departure therefrom cannot be countenanced. (4) The Court has to take a holistic view and adopt a balanced approach in examining the legislation providing for right to information and laying down the parameters of that right.

           (5)     xx      xx    xx

           (6)     xx      xx    xx

           (7)     xx      xx    xx

           (8)     xx      xx    xx

           (9)     xx      xx    xx

Similar inference can be drawn from paragraphs 56 (6) of the verdict passed by the Apex Court in Union of India vs. Association for Democratic Reforms and another (AIR 2002 SC 2112 = (2002) 5 SCC 294] as well, which is reproduced below:

56. To sum up the legal and constitutional position which emerges from the aforesaid discussion, it can be stated that:

           (1) xx xx      xx

           (2) xx xx      xx

           (3) xx xx      xx

           (4) xx xx      xx

O.P.(CAT)No.205 OF 2016
                                     44



           (5) xx xx     xx

(6) On cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest."(Emphasis is supplied)

26. Obviously, the above directions were issued to govern the field, till legislations were made and they were only to sub- serve the 'public interest' and not to satisfy any individual interest. There is no fundamental right or any other constitutional right to continue to occupy the seat of the State Police Chief, nor is there any such right to continue in a particular post or at a particular place. The right involved now is only a statutory right, which is guided by exceptions. The contention that Section 97(2) is vague and there is no machinery to have it assessed also does not hold good; which depends upon each case and the Government can very well assess the same by appropriate means, including by calling for reports from different sources. But O.P.(CAT)No.205 OF 2016 45 for a vague plea of malafides, in Ground 'F' and elsewhere, it is not specifically raised and nobody has been impleaded in the personal capacity, in the party array. It is also pointed out that the decision taken, leading to Annexure A1 order replacing the petitioner and substituting the third respondent in his place as the State Police Chief, was considered and passed by the Cabinet, though such an exercise was not necessary, presumably to have transparency. It is brought to the notice of this Court by the learned Advocate General that the 'File' originated was immediately after the two incidents ('Puttingal Temple Tragedy' which occurred on 9/10.04.2016 and the second one -'Jisha Murder case' occurred on 28.04.2016) and much prior to the declaration of results in the General Election, i.e., not after the change in the Ruling front. Two specific instances, such as 'Puttingal Temple tragedy' and Perumbavoor Jisha murder case have been cited , explaining how the action/inaction on the part of the petitioner caused serious dissatisfaction in the general public, about efficiency of Police. The relevant files were also placed before this Court for perusal, showing various proceedings, O.P.(CAT)No.205 OF 2016 46 leading to the order under challenge and showing that the pleading was absolutely devoid of any merit. Some of the observations in this regard are relevant to be referred to for formulating an opinion in this regard.

27. From the files placed before us, it is seen that reports were called for in respect of 'Puttingal Temple Tragedy' from different corners such as :

(i) State Police Chief and Director General of Police

(ii) Commandant General Fire Force

(iii) Director, State Intelligence

(iv) Additional Director General of Police, Crimes

(v) District Collector & District Magistrate, Kollam

(vi) Commissioner of Police, Kollam City.

The gist of the reports as summarised revealed that:

(1) The request made by the Temple Administration Committee for display of Fireworks was declined by the District Administration as per order dated 08.04.2016 of the ADM, Kollam and no permission of any kind, either for display of fire works or competitive fire works, was given O.P.(CAT)No.205 OF 2016 47 by the District Administration.

(2) As per the report of the State Police Chief, the CI, Paravoor was present at the site and that he had repeatedly asked the Temple authorities to stop the display of fire works . But nothing is mentioned in the said report as to whether the CI had reported this fact of conducting the fire works display in violation of the relevant provisions of law, either to the higher authorities or to the District Collector until the tragedy struck hard. (3) Though the ADM, Kollam, as per order dated 08.04.2016 had rejected the application of the Temple authorities to conduct the display of fire works and the Commissioner of Police, Kollam was specifically instructed to ensure that no violation of the order did take place, the report revealed that the Police authorities had not taken serious note of the directions given by the District Administration.

(4) As per the report, though the CI of Paravoor who was present there repeatedly asked the Temple authorities either to stop the fire works' display or to produce the O.P.(CAT)No.205 OF 2016 48 sanction order from the ADM. But the display was continued without intervention. The conduct of the CI is taken as a matter of surprise as not expected from a trained police officer in the rank of CI,waiting for orders of the ADM, believing the Temple authorities that sanction would come, instead of getting the position verified from the ADM over telephone.

28. After discussing various aspects revealed from the reports in the 'Note' put up by the Addl. Chief Secretary, the following conclusions were derived at:

i. The Commissioner of Police has been warned of the problems in Puttingal Temple by the State Intelligence , as early as 31/03/2016.

ii. Despite the warning, there has been no proactive planning towards averting the tragedy.

iii. There was a clear prohibition for the conduct of the fireworks by the District Magistrate by the order of 08/04/2016 iv. This order has been received by the Commissioner of Police, Kollam City on 08/04/2016 itself.

v. The standing advisory memo from the Chief Controller of Explosives regarding precautions under the Explosives Act was ignored. Even the follow up letter dated 31/03/2016 was also ignored.

O.P.(CAT)No.205 OF 2016 49 vi. After the order of the Collector dated 08/04/2016, the temple authorities have approached the Commissioner of Police who had conducted a meeting in his chamber at 12.30 p.m. On 09/04/2016, which was attended by the ACP Chathannur and CI of Police Paravur. This is admitted in the FIS of the FIR. The Commissioner is said to have told the temple authorities to get an order from the ADM permitting the fireworks after ensuring that there will be no competition.

vii. The efforts of the Commissioner of Police were presumably directed towards appeasing the temple authorities rather than trying to implement the order of the District Magistrate viii. The CI who was present at the site is reported to have asked the temple authorities to produce the order of the ADM permitting the fireworks. The temple authorities are reported to have told him that they will produce the order and that it is coming from Kollam. This is part of the statement given by the DGP to the Senior GP for producing before the High Court. It is also part of the FIS.

ix. The above statement is ridiculous coming from officers of a rigorously trained uniformed force. The extent of gullibility is appalling and nonsensical for any right thinking mind. x. In the age of communication revolution, m-governance and wireless transmission facilities of the police, it is difficult to buy the argument of the CI who was waiting for the order travelling from Kollam . It is sad to see this being upheld by the head of the police force (SPC) xi. There is no explanation as to why the CI did not inform any officer senior to him in the chain of command when the situation O.P.(CAT)No.205 OF 2016 50 was going out of control. This is unacceptable conduct for any uniformed officer who is expected to follow a standard protocol in such situations.

xii. The Commissioner of Police has admitted that he got information only when the tragedy struck. This is intriguing. The absence of communication between the leader of the force in the district and the officers in the field reflects very poorly on the planning and functioning of a force in charge of law and order. xiii. When the fireworks started at around 11.30 pm the order of the DM had been flouted. That a CI of police along with 11 Sis, 5 ASIs, 2 AR ASIs,, 8 SCPOs, 3 CPOs and 32 ARPCs- a total of 61 police personnel (going by the records furnished by the Commissioner of Police) were mute witnesses to that violation is a sad reflection on the force, whose leader (the CP) should have been able to step in before things escalated into a tragedy. xiv. The conclusion is therefore inescapable that the field officers have failed in implementing the order of the District Magistrate ,, in following up the field situation on a minute to minute basis so that this tragedy could have been averted, xv. There is absolute dereliction of duty and abdication of responsibility on the part of the ACP, Chathanur and DCP., Kollam City in not effectively monitoring the situation in the temple in the night of 9th April, 2016, resulting in a tragedy claiming more than 110 human lives."

Based on the above inference, the File was put up to cause O.P.(CAT)No.205 OF 2016 51 suspension of the Commissioner of Police, Kollam City, Asst. Commissioner of Police, Chathannoor and the CI of Police, Paravur pending disciplinary enquiry for imposition of major penalty, subject to getting clearance of the Election Commission before taking such action.

29. The above 'Note File' prepared on 13.04.2016 was placed for consideration before the Hon'ble Minister for Home and Vigilance on 14.04.2016, an endorsement was made that the matter may be discussed with the DGP and that the Chief Minister may please see the file. This endorsement was on 14.04.2016. It is seen that the matter was seen by the then Chief Minister on 14.04.2016 and it has been further endorsed that the File was received back after the elections. The subsequent events were also brought on record and the inaction on the part of the petitioner as the State Police Chief in taking appropriate action against the delinquent police officers, and the adverse impact caused in the minds of the general public was noted; observing that, the CI of Police obviously had shirked his duties by not exercising his authority as a police officer on duty. O.P.(CAT)No.205 OF 2016 52 As per the Note put up, if timely interference was made, implementing the order of the ADM, there would have been no fire works' display and the consequent tragedy as well. It is also observed that, if additional force/reinforcement was required, it could have been obtained and that the ACP and DCP ought to have anticipated a law and order problem and ought to have taken precautions well in advance. Despite the lapses on the part of the officers in this regard, the State Police Chief's attitude was noted as unreasonable shielding the police officers, who had shown delinquency in discharging their duties .

30. The version of the State Police Chief that 33 Temple festivals were going on in Kollam district and hence there was lack of man power, has been recorded as a lame excuse. In the report dated 06.04.2016 of the District Police Commissioner to the District Magistrate, Kollam, no such inadequacy of manpower or request for additional manpower was mentioned . If at all any such requirement was there, appropriate arrangement should have been made by informing the higher authorities like I.G., Thiruvananthapuram Range or the Addl. DGP, South Zone, if O.P.(CAT)No.205 OF 2016 53 necessary. The lapse on the part of the officers at the helm of the affairs in the police machinery of the District , however, was sought to be protected by the State Police Chief; as put forth in the Note/Report. 'Note' was also put up to the effect that the DGP, as the Head of the State Police Force, was expected to evaluate without fear or favour, the performance of his force and take to task those found remiss in the line of duty. Instead of doing this, it is stated that the petitioner, as the State Police Chief, had gone overboard to protect the erring Police officers, by sending a wrong message to the police force and also to the general public, resulting in far reaching consequences. The said 'Note' which was stated as in continuation of the earlier Report dated 13.04.2016 of the Addl.Chief Secretary was put up before the Chief Minister as borne by the endorsement dated 26.05.2016 and the File was seen by the Hon'ble Chief Minister on that day itself, when it was ordered to be discussed. The File reveals that the matter was discussed and further action was sought to be pursued.

31. With regard to the satisfaction of the ingredients under O.P.(CAT)No.205 OF 2016 54 Section 97(2)(e) of the Act, the learned Advocate General submits that 'subjective satisfaction' of the Government is supreme and that how far such subjective satisfaction of the Government can be interfered by the Court, is answered by the Apex Court in First Land Acquisition Collector vs.Nirodhi Prakash Gangoli and another.[ (2002)4 SCC 160= AIR 2002 SC 1314] (paragraph 4 in AIR ), the relevant portion of which is extracted below:

"4. The question of urgency of an acquisition under Section 17(1) and (4) of the Act is a matter of subjective satisfaction of the Government and ordinarily it is not open to the Court to make a scrutiny of the propriety of that satisfaction on an objective appraisal of facts. In this view of the matter when the Government takes a decision, taking all relevant considerations into account and is satisfied that there exists emergency for invoking powers under Section 17(1) and (4) of the Act, and issues notification accordingly, the same should not be interfered with by the Court unless the Court comes to the conclusion that the appropriate authority had O.P.(CAT)No.205 OF 2016 55 not applied its mind to the relevant factors or that the decision has been taken by the appropriate authority mala fide .

            xx     xx      xx

            xx     xx      xx

The conclusion of the Government that there was urgency even though cannot be conclusive but is entitled to great weight, as has been held by this Court in Jage Ram v. The State of Haryana and others, AIR 1971 Supreme Court 1033. Even a mere allegation that power was exercised mala fide would not be enough and in support of such allegation specific materials should be placed before the Court. The burden of establishing mald fides is very heavy on the person who alleges it. "

In 2003 (2) KLT 567 (Chandran vs. Union of India), the Apex Court held in paragraph 14 as follows:

"14. The following principles should be followed in the matter of judicial review of administrative decisions and orders:

xx xx xx (xviii) While exercising its jurisdiction under Art.226, the High Court cannot sit as an appellate authority over administrative authorities. The court O.P.(CAT)No.205 OF 2016 56 cannot substitute its judgment for that of the administrative authorities. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the court interfere.

xx xx xx"

32. The vital point to be looked into is whether a situation as envisaged under Section 97(2)(e) of the Act has been made out or not. With reference to the 'Puttingal Temple Tragedy', a detailed report dated 13.04.2016 was forwarded by the Addl.

Chief Secretary, which contains the serious lapses on the part of the Police. It is pointed out that in the course of subsequent steps, the Sub Inspector/Circle Inspector/ ACP came to be transferred. But transfer of the Police Officers by itself is not the timely action contemplated in respect of such an incident; where, as many as 113 persons lost their lives, more than 400 persons got injured and huge monetary loss was resulted to several persons, besides to the Temple. The report dated 13.04.2016 sent by the petitioner to the Addl. Chief Secretary in response to her letter dated 12.04.2016 itself shows that the O.P.(CAT)No.205 OF 2016 57 attempt and attitude of the petitioner was more to insinuate the District Administration, seeking to assert that the entire blame cannot be put on the police. The course and events clearly revealed that no adequate action was taken against the delinquent police officers or no such action was recommended by the petitioner at the appropriate time. The petitioner may be justified in doing so for his own reasons. But that is not a ground or circumstance envisaged under Section 97(2)(e) of the Act. Whether the action or inaction, whether wilful or inadvertent, has caused serious dissatisfaction about the efficiency of Police in the General Public , is the only point to be considered. That may or may not involve a misconduct. Was it a prudent/timely action or did it contribute to the dissatisfaction on the efficiency of the Police in the minds of the general public, alone is the point to be looked into.

33. Similarly, in connection with 'Perumbavoor Jisha Murder case', the incident was on 28.04.2016. But for registering the crime, the proceedings were going on 'snail pace' and it was stated as not properly reported to the Government. O.P.(CAT)No.205 OF 2016 58 The stand of the petitioner is that, daily reporting of any murder case is not the job of the State Police Chief, which may be part of the job of the Intelligence Department or such other Forum. The petitioner may be technically correct in saying so; but in a sensitive issue involving a sensational case, the petitioner, as the State Police Chief, ought not to have forgotten that every action/inaction of the Police was under close surveillance by the public, which would reflect the merit rating of the Government as well or at least would tarnish the image of the Police, if anything had gone bad or inadequate. This is more so, in view of the mandate under Section 27 of the Act, stipulating that it shall be the duty of every police officer to undertake all reasonable and lawful activities for the efficient and effective discharge of Police duties specified under the Act; with, petitioner at the helm of the affairs, as the 'Captain of the Team'. Admittedly, the Team was substituted/replaced after assuming duty by the third respondent as the State Police Chief and the culprit has been booked. It is the stand of the petitioner, that the accused was apprehended based on the very same materials collected by the 'first team' O.P.(CAT)No.205 OF 2016 59 and nothing new was collected by the second team. We are not going into the niceties in this regard. Because of the delay in taking prudent action at appropriate time, there is a chance for the loss of better evidence. 'Whether the laxity on the part of the Police in this regard, even if it be unintentional or because of other reasons, has reduced the image of efficacy of the Police in the general public', is the point to be weighed more. Based on the available materials on record, the Government has recorded a subjective satisfaction in this regard, finding that there was lapse on the part of the petitioner as the State Police Chief, which made him to be replaced and substituted with the third respondent as per Annexure A1. This being the position, we are of the view that the ingredients under section 97(2)(e) of the Act stand satisfied only for the above limited purpose.

34. As put forth by the learned counsel for the 3rd respondent, with regard to Section 97 of the Act, in the case of other officers, the efficiency has to be assessed by the superior officer, when it is an instance under Section 97(2)(d). Legislature has not assigned any superior officer to assess such O.P.(CAT)No.205 OF 2016 60 efficiency in the case of the State Police Chief and as such, it is for the Government to arrive at the subjective satisfaction in the case of the State Police Chief while dealing with Section 97 (2) (e). By virtue of Rule 34 of the Rules of Business of the Govt. of Kerala framed under Article 166 of the Constitution of India, appointment of the third respondent could have been effected by the Home Minister. But it is only in the better interest and to maintain fairness and transparency, that a Committee was constituted, whose report was placed in the Cabinet and it was the Cabinet which took the decision, leading to Annexure A1. Reliance is also sought to be placed on the verdict in Citizen for Justice and Peace vs. State of Gujarat and others (2009) 11 SCC 213 = AIR 2009 SC 1420), which also is a case of appointment of DGP in the State of Gujarat, paragraph 7 (in AIR) of which reads as follows:

7. An appointment of a government servant is the prerogative of the particular government, particularly, when it is a sensitive appointment of Director General of Police. We, under the doctrine of 'judicial review', would O.P.(CAT)No.205 OF 2016 61 not extend our hands to upset such an appointment, more particularly, in the factual panorama which is available today. We hold that the present Writ Petition has become redundant and we dispose it of as such. As for any disciplinary action against Shri Pandey, it is for the concerned government. We will not enter the fact finding exercise."

35. Yet another aspect to be noted is that the petitioner is challenging the vires of Clause 'e' alone of Section 97(2) of the Act. As mentioned already Section 97(1) stipulates the minimum period of 'two years' for the police officers, specified therein, including the State Police Chief. Section 97(2) carves out some exceptions, mentioned separately under Clauses (a) to

(f). There is no challenge with regard to the exceptions carved out under Clauses (a) to (d) and (f). In other words, the petitioner is not challenging the entire provision-Section 97(2), drawing exceptions, but only a portion of the same, as dealt with under Section 97(2)(e) contending that the said provision has not been enacted strictly in terms of the observations of the Supreme Court in Prakash Singh's case (cited supra). This Court finds it difficult to agree to the said proposition as O.P.(CAT)No.205 OF 2016 62 legislation is the primary duty of the Legislature/Parliament and not of the Court. It is not for this Court to substitute the views. It was in the absence of legislation, that appropriate directions were given by the Supreme Court to govern the field, till proper legislations were made. Once legislations are brought forth, it will hold the place and the observations and directions prior to that cannot have any valid existence, unless the legislation got successfully challenged and got set aside.

36. Similarly, with regard to the contention of the petitioner that displacement of the State Police Chief shall be made only after consultation with the State Security Commission, it is true that such a direction was given by the Apex Court in (2006)8 SCC 1, till the position was taken over by the State Legislature. The Legislature, after detailed discussion of the Bill introduced and considering all the plus and minus points has passed the Bill, giving shape to the Act, which has obtained the assent of the Governor and was published in the Kerala Gazette Ex.No.896 dated 20.04.2011. Appointment of the State Police Chief is to be made by the Government as stipulated under Section 18 of O.P.(CAT)No.205 OF 2016 63 the Act, which does not say that a consultation is necessary with State Security Commission, either for selection and appointment or for displacement. The functions of the State Security Commission constituted under Section 25 of the Act are separately dealt with under Section 26 (extracted already) which also does not envisage any such power, function, duty or responsibility to be consulted with regard to appointment or displacement of the State Police Chief. That apart, the State Police Chief is an 'Ex-Officio Member' of the State Security Commission constituted under Section 24(2) of the Act and he has to act as the Secretary to the Commission as stipulated in sub-Section (3) of Section 24. As such, the Commission cannot assess the deeds or misdeeds of its own Member and the Secretary; which can be done only by the Government. The position becomes more clear from Section 25(1)(c) which stipulates the function of the Commission to evaluate, from time to time, the performance of the Police in the State in General; i.e. not with regard to any individual performance. The residual function under Section 25(1)(f) is only as assigned to the O.P.(CAT)No.205 OF 2016 64 Commission by the Government and not its own. The 'Non- obstante Clause' in sub-Section (4) of Section 25 says that, notwithstanding any guidelines or directions issued by the Commission, the Government may lawfully issue such directions as it deems necessary on any matter, if the situation so warrants, to meet any emergency. Similarly sub-Section (5) of Section 25 while stipulating that the directions of the Commission shall be binding on the Police Department, it is specifically mentioned in the proviso that the Government may, for reasons to be recorded in writing, fully or partially, reject or modify any recommendation or direction of the Commission. This shows the authority of the Government in the subject matter involved. It is also relevant to note that the 'Evaluation of Police Performance' envisaged under Section 26 of the Act only speaks about such exercise to be conducted by the Commission every year by appointing a panel of 3 Experts to assess the performance of the Police Department in the previous financial year to suggest the performance standards for the succeeding financial year; which does not extend to assessment of individual performance or assessment of O.P.(CAT)No.205 OF 2016 65 the deeds or misdeeds of an officer. When it comes to a situation coming under Section 97(2) of the Act, dealing with individual police officer , 'need of the hour' is of paramount importance.

37. In so far as the provisions of the Kerala Police Act (as they stand now)do not envisage any such situation, the idea and understanding of the petitioner that such a consultation was necessary with the Security Commission before his displacement is not correct or sustainable. No such consultation was ever made, though State Security Commission was constituted as per G.O.(Ms)No.263/2011/Home dated 26.11.2011, when the petitioner was appointed to the post of State Police Chief as per Annexure A2 order dated 22.05.2015 and no panel of names/candidates was prepared to assess the comparative merits. Admittedly, there was a senior officer by name Mahesh Kumar Singhla, [who belonged to 1982 batch, whereas the petitioner belongs only to 1983 Batch], who was not considered, as he was serving on deputation elsewhere. This is mentioned herein only to underline that such consultation is not envisaged O.P.(CAT)No.205 OF 2016 66 under the Scheme of the Statute and hence not necessary under the Act. We are not intending to say that the petitioner is not competent to hold the post of the State Police Chief any more or that the third respondent is a better person to have been selected and appointed. By virtue of the scheme of the Statute , it is for the State Government to appoint any DGP of their choice, subject to merit, eligibility etc., as mentioned in Section 18 of the Act and nothing more.

38. The above sequence of events have been referred to by this Court only to appraise the factual position as to how the file was originated and the matter was being dealt with further. The endeavour of the Court is not to insinuate any officer, particularly the petitioner, but to see whether there is any pith or substance in the contention that the petitioner's displacement from the post of State Police Chief was resulted merely because of the change in the political scenario after the General Elections to the Kerala Legislative Assembly and declaration of the results.. It was with reference to the above aspects, that the action/inaction on the part of the petitioner in taking timely O.P.(CAT)No.205 OF 2016 67 action was considered and upon assessing the 'plus' and 'minus' points, it was found that this had tarnished the image of the police in the general public, thus attracting the circumstance envisaged under Section 97(2)(e) of the Act, in turn leading to Annexure-A1 order. This is more so, when the satisfaction to be reached by the Government under Section 97(2) of the Act is only "prima facie satisfaction" as stipulated therein and nothing more. As it stands so, it can never be stated as an instance of 'mala fides' or due to the change in the Ruling Front.

39. Another important aspect to be noted is that no specific averment has been raised by the petitioner, either in the O.A. filed before the Tribunal or in the O.P. filed before this Court, as to how he was sought to be pressurised by the Ruling Front after the General Election to yield to their demands to do or not to do any particular act/s. The very purpose of the directions given by the Apex Court in Prakash Singh's case (cited supra) to have fixity of tenure of 'two years' in top level posts, was to ensure that such officers are not made to succumb to political pressure in some or other manner and that they should be O.P.(CAT)No.205 OF 2016 68 given a free hand to work fearlessly, in public interest. There is no averment from the part of the petitioner that he was required to do any particular act or to desist from doing any particular act, in any manner, as desired by the changed Ruling Front, who came to power after declaration of the results in the General Election. As it stands so, the ingredients of alleged mala fides have not been established and hence invocation of power under Section 97(2)(e) of the Act cannot be found fault with.

40. Displacement of the petitioner ordered by the Government as per Annexure A1 is based only on the subjective satisfaction of the Government, who is the appropriate authority in this regard. At the same time, we should add that whether the action/inaction on the part of the petitioner was actually correct or sustainable in the given circumstances, is not a matter of scrutiny before this Court. Since the inference was drawn by the Government, only based on the data gathered by them without getting it tested and proved, we are of the firm view that it shall not cast any 'stigma' upon the petitioner. If at all the petitioner was actually wrong in any manner, which would O.P.(CAT)No.205 OF 2016 69 amount to a delinquency, beyond the limited requirement to be satisfied in terms of Section 97(2)(e) of the Act, unless and until it is proved, it cannot result in any adverse consequences, except displacement from the post of State Police Chief. Since the petitioner was given the 'apex scale' at Rs.80000/- (without any Grade Pay), it cannot result in any reduction of the pay packet , which otherwise will amount to demotion. This is more so, since the total emoluments of the petitioner is with reference to the apex scale given to him as per Annexure-A2 order dated 22.05.2015 and not based on any special allowance attached to the post. As there cannot be any demotion to a lower scale, the CAT has rightly ordered to protect the scale. This Court is given to understand that it has been given effect to by the Government as per G.O.(Rt)No.5518/2016/GAD dated 23.08.2016.

41. Viewed in the above circumstances, it has to be held that the issue has been approached by the Tribunal in the correct perspective and the finding and reasoning given in Ext.P5 order declining interference in the O.A. is not liable to be O.P.(CAT)No.205 OF 2016 70 intercepted. The jurisdiction of this Court, that is being exercised in respect of Ext.P5 order is under Article 227 of the Constitution of India and under such supervisory jurisdiction, this Court finds it difficult to hold that the Tribunal has gone wrong in passing Ext.P5. We find no merit in the OP. It is dismissed accordingly.

P.R. RAMACHANDRA MENON, JUDGE P. SOMARAJAN, JUDGE lk

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