Central Administrative Tribunal - Ernakulam
Zachariah George Ips vs Chief Secretary State Of Kerala ... on 19 December, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00883/2018
Wednesday, this the 19th day of December, 2018
CORAM:
HON'BLE Mr.E.K.BHARAT BHUSHAN, ADMINISTRATIVE MEMBER
HON'BLE Mr.ASHISH KALIA, JUDICIAL MEMBER
Zachariah George, IPS
Aged 57 years,
S/o late K.G.George,
Superintendent of Police,
CBCID, EOW-II, Kottayam,
Residing at Deepak Bhavan,
Kolladu P.O., Kottayam-686004. ....Applicant
(By Advocate Mr.Chandrasekhar, Sr. with Mr.C.V.Manuvilsan)
Versus
1. State of Kerala,
Represented by the Chief Secretary,
Government of Kerala,
Secretariat, Thiruvananthapuram-695001.
2. The Principal Secretary,
General Administration (Special C),
Department, Government of Kerala,
Secretariat, Thiruvananthapuram - 695 001.
3. The Additional Chief Secretary,
Home Department,
Government of Kerala,
Secretariat, Thirvananthapuram - 695001.
4. The Director General of Police and State Police Chief,
Kerala
Thiruvananthapuram - 695 001.
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5. The Secretary to Government,
Home Department, Government of Kerala,
Secretariat,
Thiruvananthapuram - 695 001.
6. Union of India,
represented by the Secretary,
Government of India,
Ministry of Home Affairs,
Jai Singh Road, New Delhi - 110 001.
7. Sabu Mathew K.M.,
Superintendent of Police,
(Crime Branch), CBCID,
Tripunithura,
Ernakulam, Kochi-682 301. ...Respondents
(By, Mr.Rajeev (GP) and Antony Mukkath for Respondents-1to5 and
Shri Tanuja for Mr.N.AnilKumar, Sr.CGSC for Respondent-6)
This application having been heard on 17th December 2018, the
Tribunal on 19 December, 2018 delivered the following :
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ORDER
HON'BLE MR.E.K.BHARAT BHUSHAN, ADMINISTRATIVE MEMBER OA No.883/2018 is filed by Zachariah George, IPS, Superintendent of Police, CBCID, EOW-II, Kottayam against the order at Annexure A1 issued by the Director General of Police and State Police Chief, Kerala, transferring him from the post to Idukki as Superintendent of Police, Crime Branch. The reliefs sought are as follows:
i. Call for the records leading to the issuance of Annexure A1, to the extent as it affects to the Applicant herein and quash Annexure A1, to the extent as it affects to the Applicant herein, as illegal, irrational and procedurally improper.
ii. Direct the 4th Respondent to consider and pass Orders on .3.
ANNEXURE A8 Representation and till an Order is passed on ANNEXURE A8, direct to keep all further proceedings pursuant to ANNEXURE A1 in abeyance, to the extent as it affects to the Applicant herein.
iii. To pass such any other orders or reliefs as this Hon'ble Tribunal, may deem fit in the interest of justice, equity and good conscience.
2. The facts of the case are as follows:
The applicant submits that he is presently working in the post referred to at Kottayam from 17.10.2018 onwards. He has been transferred as Superintendent of Police, Crime Branch, Idukki as per order No.S1/229156/2016/PHO dated 24.10.2018, copy of which is at Annexure A1.
The applicant states that he had joined his present charge as late as 17.10.2018 and the Annexure A1 order further transferring him has been issued only a few days afterwards. A copy of the Report of Transfer of Charge dated 17.10.2018 is produced at Annexure A3. It is further stated that the officer had been waiting for a posting from 19.09.2018 till 17.10.2018 after having been removed from the post of AIG Coastal Security, where he had been working till 19.09.2018.
3. It is stated in the impugned order at Annexure A1 that the said order had been issued in the background of a reorganisation/redesignation of posts under CBCID. A copy of the reorganisation issued as GO(MA)162/2018/Home dated 11.10.2018 is at Annexure A6. He submits that the only change that has been effected as a result of reorganisation is redesignation of "SP CBCID EOW-
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II, Kottayam" as 'SP CB, Kottayam'.
4. He also assails lack of competence of the authority which has issued the impugned order namely the Director General of Police, Kerala. Being an IPS officer, he submits that he is under General Administration (Special C) Department, which is directly under the Chief Secretary of Kerala (Respondent-1). Thus the transfer order has been issued without power or authority. The applicant has preferred a representation before the 4 th respondent contesting the transfer, a copy of which is at Annexure A8.
5. In the said representation, it is pleaded by the applicant that he has been frequently transferred and has not been allowed to complete the two years tenure mandated for Police Officers. In fact, he had not even completed 10 days in the present post that he is transferred from. He gives various details of personal difficulties that he is faced with, on account of his premature ejection from Kottayam. He cites the need to take care of his aged mother and that the fact that he never worked in his native place, Kottayam, in the last 20 years, among reasons as to why he may be allowed to continue in the present post.
6. As grounds, he reiterates that being an IPS Officer, the authority who issued the Annexure A1 order is not competent to do so. The fact that he was allowed to complete only 8 days in the present post is also cited as gross injustice and violation of Section 97 of the Kerala Police Act, 2011. Further in .5.
Prakash Singh & Others reported in 2006 (8) SCC 1, the Hon'ble Apex Court had ruled that Police officers on operational duty in the posts such as Inspector General of Police, Deputy Inspector General of Police, Superintendent of Police and Station House Officer should have a minimum tenure of two years. Also, in the matter of Senkumar T.P. IPS v. Union of India and others reported in 2017 (6) SCC 801, the Hon'ble Supreme Court held as below:
"the removal or displacement of any senior level officer from a tenure appointment must be for compelling reasons and must be justified by the concerned authority, if called upon to do so, on material that can be objectively tested. This is what the rule of law expects and this is what S.97 of the Act expects - the law must be faithfully implemented in a purposive manner.
7. In a reply statement filed on behalf of the Respondents-1to5, the contentions of the applicant have been disputed. It is stated therein that as per Indian Police Service (Fixation of Cadre Strength) Regulations, 1955, the IPS cadre in Kerala consists of 172 officers, out of which 7 posts have been allocated to the position of Superintendent of Police (Crime Branch, Crime Investigation Department). As to who shall hold the post, is a matter which falls within the prerogative of the Government. The applicant had been awaiting a posting as Superintendent of Police and had been posted as Superintendent of Police, CBCID, Economic Offences Wing-II, Kottayam in the existing vacancy at that time. However, as per Annexure A6 G.O., the Government had reorganised the posts under Crime Branch. The Crime Investigation Department therein redesignated the posts as Superintendent of Post, Crime Branch. There was adequate justification in doing so, as the earlier .6.
arrangement under which Superintendent of Post, CBCID was having jurisdiction over many districts, was causing great difficulty in investigation of cases and further follow up. The reorganisation and redeployment of the existing incumbent was necessitated due to this and other reasons. The area of operation of post held by the applicant namely, Superintendent of Post, CBCID, EOW-II, Kottayama was for over 5 districts. As per the reorganisation, this post has ceased to exist and none could be allowed to remain as Superintendent of Post, CBCID, EOW-II at Kottayam.
8. It is further argued that Annexure A1 order had been a temporary arrangement awaiting Government orders at appropriate level posting those officers who belong to IPS working in Crime Branch Units and Government has issued G.O.(Rt) No.7156/2018/GAD dated 31.10.2018 posting the 7 IPS officers in various posts (Annexure R1(a)). As per the said order, the applicant had been posted as Superintendent of Post, Crime Branch, Idukki, which is headquartered in Thodupuzha, which is at a distance of 55 kms from Kottayam. It is maintained on behalf of the respondents that decision in Prakash Singh & others v. Union of India and others and Senkumar T.P. IPS v. Union of India and others, have no application to the case as the said post is not a tenure post as defined under Section 97 of Kerala Police Act, 2011. Prakash Singh case refers only to Police Officers on operational duties like Inspector General of Police in charge of Zone, Deputy Inspector General of Police in charge of Range, Superintendent of Police in charge of district and .7.
Station House Officers in charge of Police Station and they alone are entitled for minimum tenure of two years. Further, in the case of Senkumar T.P. IPS, the Hon'ble Supreme Court had observed that the removal or displacement of any senior officer from a tenure appointment must be due to compelling reasons. In this case there was a compelling reason in the form of the reorganisation ordered as per Annexure A6. Further, after the promulgation of Kerala Police Act, 2011, which was in compliance with directions issued in Prakash Singh's case, the particular decision cannot have any in direct application. The post of Superintendent of Police, Crime Branch, Crime Investigation Department EOW II, Kottayam is not a tenure post and there is no fixed tenure to that post. It was a reorganisation that has necessitated posting of applicant at Idukki and it is not to be treated as transfer. The applicant is a All India Service Officer, Kerala cadre and he is liable to serve any post in Kerala Government. Further, a transfer from Kottayam to Idukki cannot be construed as a harassment, nor does it place the applicant at any great disadvantage.
9. Shri Chandrashekar appeared on behalf of the applicant and Shri Antony Mukkath appeared on behalf of the respondents and was assisted by Shri Rajeev (GP). When the matter was heard for the first time on 01.11.2018, Shri C.V.Manovilsan had appeared for the applicant. While directing reply to be filed on behalf of the respondents, this Tribunal had further directed Respondent-4 not to give effect to the impugned order in respect of the .8.
applicant until next posting date. We understand that he has not been transferred out of Kottayam due to our intervention. The respondents had approached the Hon'ble High Court of Kerala in OP (CAT) No.217/2018, wherein the Hon'ble High Court had directed this Tribunal to dispose of the OA as expeditiously as possible and at any rate, within a period of one month from the date of receipt of the order. We heard Shri Chandrashekar and Shri Antony Mukkath on behalf of the applicant and the respondents respectively. All pleadings, documentary and oral were duly examined.
10. The main contention of the applicant is that he has been posted out of his present post that he had come to occupy only a few days previously. This is in violation of tenure norms reinforced by the judgments in Prakash Singh and Senkumar T.P. IPS, he claims. He submits that the order issued by GAD at Annexure R3(a) is only a ratification without application of mind and the order at Annexure A1 which is impugned has been passed by an incompetent authority. The reorganisation was a mere renaming of the existing post from CBCID to CB and does not involve any other alterations. But it has come in handy for the respondents to play havoc with personnel working in the department. There was no justification for altering the structure in place as per G.O.(Ms) No.181/09/Home dated 17.11.2009 (Annexure A7). What the applicant seeks is what he has expressed through his representation at Annexure A8 namely to post him as Superintendent of Police, Crime Branch, Kottayam instead of Superintendent of Police, Crime Branch, Idukki.
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11. Shri Antony Mukkath arguing on behalf of the respondents submitted that the deployment of the applicant was only a corollary to a large scale restructuring of Crime Branch ordered by Government (Annexure A6). Although in Annexure A6 it is mentioned that Superintendent of Police, CBCID EOW-II, Kottayam is to be reorganised as Superintendent of Police, CB, Kottayam, Government had used its prerogative to find the most suitable persons for the two stations. From this point of view the said deployment is not open to challenge. Besides the impugned order relates to 16 officers, all of whom, with the sole exception of the applicant, have complied with the order and taken up their charges under the newly designated post. So far as the change of station is involved, it can be seen from the said order that many others also were redeployed to other stations/districts. In so far as the lack of competence of the DGP in issuing transfer order in respect of IPS officers is concerned, the General Administration (Special C) Department by order dated 31.10.2018 (Annexure R3(a)) has issued orders in respect of officers belonging to the IPS and hence the challenge on that ground would not remain.
12. We have considered the rival contentions carefully. As pointed out above, there had been lack of competence in the issuance of Annexure A1 orders as the DGP and State Police Chief exercised powers which rested with the Government, in particular with the Chief Secretary of the State, who is in charge of the GAD. However, this short coming has been remedied by the .10.
issue of the order at Annexure R3(a).
13. The applicant has cited the judgments in Prakash Singh and Senkumar T.P. IPS on the issue of his being not allowed to complete the minimum tenure of two years as Superintendent of Police, CBCID, Kottayam. With the wide ranging recommendations of the Hon'ble Apex Court contained in the Prakash Singh's judgment, various State Police establishments have acted in order to comply with the same in their respective jurisdiction. Kerala Police Act, 2011 is a response to the said judgment. The applicant has chosen to challenge his redeployment on the ground that it is a violation of Rule 97 of the Kerala Police Act.
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.
A plain reading of the said section seems to suggest that the minimum tenure of two years shall apply for Police Officers posted as State Police Chief, Inspector General of Police, incharge of Ranges, Superintendent of Police or Commissioners, incharge of districts and Station House Officers. The applicant was not working in a post, the jurisdiction of which is coterminous with that of a district, as he was looking after five districts namely Kottayam, Idukki, Ernakulam, Thrissur and Palakkad. Thus, we do not think the contention that Rule 97 of the Kerala Police Act has been violated, will stand. Thus the judgment in Prakash Singh will have no direct bearing on this case.
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14. It is important to note that the action resulting in the deployment of the applicant had been the result of a large scale reorganisation of the Crime Branch under the State Police Establishment. Apparently with a view to improve the Crime Branch work in various districts and officers have been designated as Superintendent of Police, Crime Branch. As a result of this the post of Superintendent of Police, CBCID, EOW-II, Kottayam, among others, has become redundant. This is an initiative clearly within the jurisdiction and authority of the respective Government and it would be imprudent to draw any other inference about the same. The applicant is not the only incumbent sent out to another district from his present perch. Thus no individual motive can be attributed to the Government measure. Besides being a member of an All India Service, it was not quite kosher for him to demand that he may be posted as SP, CB, Kottayam itself if the post of SP, CBCID, EOW-II, Kottayam is being reorganised.
17. With respect to the judgment of Senkumar T.P. IPS, it is seen that the applicant has assailed the Government decision on the ground that it is a violation of the principle laid down by the Hon'ble Supreme Court. In the said judgment the Hon'ble Apex Court ruled:
80. We are therefore clearly of opinion that the removal or displacement of any senior level officer from a tenure appointment must be for compelling reasons and must be justified by the concerned authority, if called upon to do .12.
so, on material that can be objectively tested. This is what the rule of law expects and this is what S.97 of the Act expects - the law must be faithfully implemented in a purposive manner.
18. While the view that this was a tenure appointment was espoused by the applicant, a contrary view is advanced by the respondents. It is stated that this was not a tenure appointment as defined under Kerala Police Act as the applicant's post cannot be defined as "as a Superintendent incharge of a Police District". Even assuming that such an argument is untenable, the Senkumar T.P. IPS judgment permits deployment of an officer if there are compelling reasons do so. In this case, the order at Annexure A6 was with intent to bring about a significant reorganisation of the State Crime Branch. The reasoning provided in the document submitted as well as the contentions raised in support of the same by the learned Counsel for the respondents is adequate justification for the same.
19. For the above reasons , we conclude that the OA lacks merit and is liable to be dismissed. We proceed to do so. No costs.
(Dated this the 19th day of December 2018).
(ASHISH KALIA) (E.K.BHARAT BHUSHAN)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
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List of Annexures in O.A. No.180/00883/2018
1. Annexure A1 - True photocopy of the Order No.S1/229156/2016/PHO dated 24.10.2018, issued by the 4th Respondent.
2. Annexure A2 - True photocopy of the Posting Order G.O.(Rt.) No.6752/2018/GAD dated 15.10.2018, issued by the 2 nd Respondent.
3. Annexure A3 - True photocopy of the Report of Transfer of Charge in K.F.C. Form 7 dated 17.10.2018.
4. Annexure A4 - True photocopy of the COB Message, vide No.Camp- 1/CBEOW II/KTM/2018 dated 17.10.2018.
5. Annexure A5 -True photocopy of the Transfer and Posting of IPS Officers, vide G.O(Rt.) No.5902/2018/GAD dated 07.09.2018, issued by the 2nd Respondent.
6. Annexure A6 - True photocopy of the GO.(MS)162/2018/Home dated 11.10.2018, issued by the 3rd Respondent.
7. Annexure A7- True photocopy of the G.O.(Ms) No.181/09/Home dated 17.11.2009.
8. Annexure A8 - True photocopy of the Representation of the Advance Copy and copy through proepr channel, preferred by the Applicant before the 4th Respondent.
9. Annexure R3(a) - A photocopy of the Government Order dated 31.10.2018.
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