2013 Supreme(Kar) 216

High Court of Karnataka
N. KUMAR & B. MANOHAR, JJ.
T. Suneel Kumar, IPS & Another
Versus
State of Karnataka, Represented by the Chief Secretary to Government & Others
Writ Petition Nos. 13995 of 2013(S-CAT) c/w 10988-91 of 2013(S-CAT)
Decided On : 26-03-2013

Headnote:KARNATAKA POLICE (AMENDMENT) ACT, 2012 - Section 20-B(1): [N. Kumar & B. Manohar, JJ] Finding of the Tribunal that Section 20B of the Karnataka Police (Amendment) Act is Mandatory - For the appointment, posting, transfer and promotion of Police Officers, constitution of a police Establishment Board has been recommended, comprising of the Director General of Police of the State and four other Senior Officers. The Apex Court acted on the said recommendation and constituted the Police Establishment Board. Now the Karnataka Legislature has amended the Karnataka Police Act, 1963, and has inserted Section 20-B, providing for Police Establishment Board. The language employed in this provision is unambiguous. There is no scope for confusion. It is the Police Establishment Board which will decide the transfers, postings and promotions of the aforesaid officers. Thus, by this amended provision, the political interference in the matter of transfers is reduced to the minimum. As the amended Act is in conformity with the directions issued by the Apex Court, the Government shall not act contrary to the said statutory provisions. When the Legislature has enacted amendment with definite purpose to keep away the political interference from tempering with the valuable statutory right which is now conferred on the Senior Police Officers by the Legislature, the law is to be respected. That is the essence of the rule of law.

        Section 20F of the Amendment Act, deals with tenure of officers in charge of police stations, circle, sub-division, district and range. Therefore, the Board while exercising its power under Section 20B of the Act, either in deciding transfers, posting and promotions or make appropriate recommendations regarding postings and transfers shall be guided by Section 20F of the Act. If the Board were to exercise its powers and discharge the functions contrary to Section 20F of the Act, it would be a case of improper exercise of power under Section 20F of the Act and tat may be one such instance the Government may decline to give effect to the decision or recommendation of the Board. However, the same may be subjected to judicial review also.

        If an order of transfer is made in violation of any statutory provision (Act or Rule) and passed by the authority not competent to do so, then it becomes the duty of the Court to interfere with such order of transfer which is without the authority of law and hence void ab initio. In this case order passed by the Government effecting transfers is contrary to Section 20B of the Act and therefore the power of transfer exercised by the Government is contrary to the said statutory provision, is one without the authority of law and void ab initio. Seen from any angle, the order of transfer passed by the Government in both the cases cannot be sustained.

       LABOUR & SERVICES - Taking or not taking of charge - Transfer: [N. Kumar & B. Manohar, JJ] - Held, New service jurisprudence appears to have evolved over the years in this regard. The parties, Advocates and sometimes the Judges also think in terms that if the person transferred goes to the post to which he is transferred and takes charge, then the Court’s power to set-aside the order of transfer does not exist. In fact, because of this understanding recently when the Government was indiscriminately passing orders of transfer contrary to statutory provisions, the Karnataka Administrative Tribunal decided not only to stay such orders but also directed that the person who is relieved of his duty should be put back, to send a message to the Government and to the Officials who have managed to get these transfer orders, that though the transfer has been given effect to, charge is taken, it has no value in the eye of law. Unfortunately, the Central Administrative Tribunal seems to think that once charge is taken it loses its power to set-aside the said order. Taking of charge or not taking of charge has no effect whatsoever in deciding the validity of an order of transfer. Once the order of transfer is quashed, the parties to the order of transfer.