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T.P. SENKUMAR, IPS V/S UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI & OTHERS, decided on Thursday, July 21, 2016.
[ In the Central Administrative Tribunal Ernakulam Bench, Original Application No. 180/00446 of 2016. ] 21/07/2016
Judge(s) : N.K. BALAKRISHNAN, JUDICIAL MEMBER & P. GOPINATH, ADMINISTRATIVE MEMBER
Advocate(s) : S. Sreekumar (Senior Counsel) along with, Saju Wahab. R2, (By General C.P. Sudhakara Prasad with Government Pleader M. Rajeev, R3, M. Ajay, R1, Mr. N.Anil Kumar, Sr. PCGC.
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    N.K. Balakrishnan Judicial MemberThe applicant was serving as the Director General of Police (DGP for short)/Head of Police Force and State Police Chief. While so he was transferred as per Annexure A1 order dated 1.6.2016 as Managing Director Kerala Police Housing and Construction Corporation Limited (KPHCC) on state deputation basis. Annexure A1 is under challenge in this case.2. Shorn of the details the case of the applicant is stated as under:The applicant was promoted as Additional Director General of Police (ADGP for short) in 2009. He was promoted as DGP on 1.1.2014 and posted at Prisons and Correction Services. While continuing in that post he was appointed as the DGP and Head of Police Force (State Police Chief) in the apex scale of Rs. 80000/- on the retirement vacancy of Shri K.S. Balasubramaniam. The applicant is the senior most Indian Police Service (IPS for short) officer of Kerala cadre. He is of 1983 batch. As per Annexure A1 order the third respondent who is an officer of 1985 batch and junior to the applicant was appointed as the DGP (Head of Police Force and State Police Chief) in the apex scale of Rs. 80000/-. The applicant has got unblemished service throughout his career. His Annual Performance Appraisal Reports (APARs) Annexure A4 to A14 would show that he was ranked outstanding throughout. He is also the recipient of President's police medal for his meritorious service in 2002. Again in 2009 he was awarded President's police medal for distinguished service. Annexure A1 the order of transfer and causing reduction from the post of DGP and State Police Chief to that of Chairman and Managing Director KPHCC on deputation basis is illegal and unsustainable. Annexure A1 order of transfer was issued in the wake of change in political scenario in the State after the LDF Ministry was sworn on 25.5.2016. Annexure A1 order is in violation of the guidelines issued by the Hon'ble Supreme Court in Prakash Singh and othrs Vs. Union of India and others b(2006) 8 SCC page 1. It is also in violation of Section 97(1) & (2) of the Kerala Police Act 2011 (K.P.Act 2011 for short) and is punitive in nature. Annexure A1 order is oppressive in nature and would cast stigma on the applicant who is an efficient police officer. It is in flagrant violation of Articles 14 and 19 of the constitution. The applicant who was holding the highest scale of pay of Rs. 80000/- has been reverted to a pay scale of Rs. 75500-80000. Thus the applicant contends that Annexure A1 is illegal and unsustainable. He seeks to quash Annexure A1 and to permit him to continue as State  Police Chief.3. The claim of the applicant is resisted by the 2 nd respondent (herein after referred to as 'the respondent') contending as follows:  The averment that Annexure A1 order has the effect of reverting him in rank is not correct. The applicant was appointed on the retirement of Shri K.S. Balasubramanian the then Police Chief. Seniority alone is not the criteria for appointment as the State Police Chief. The method of selection adopted by the respondent in appointing the third respondent as DGP and State Police Chief was in strict conformity with the provisions contained in Section 18(2) of the K.P.Act 2011 and in compliance with the principles laid down by the Hon'ble Supreme Court in Prakash Singh's case (supra). The Accountant General has intimated as per letter dted 3.6.2016 that there would not be any change in the pay (Rs. 80000/-) on the applicant joining in the transferred post. As per Section 97 (1) & (2) of the KP Act 2011 the government has the power to transfer any police officer including the State Police Chief before completing the normal tenure of two years on any of the grounds mentioned in sub clauses (a) to (f) thereof. The respondent has sufficient materials and records for effecting transfer of the applicant. The manner of involvement of the respective police officers including the applicant who is the State Police Chief in the two major incidents in the State; Puttingal Temple Fireworks Tragedy and Perumbavoor Jisha Murder case put the government in an embarrassing situation. These two cases are pronounced cases of failure of police missionary. In Puttingal Temple Fire Works case the applicant has hesitated to suspend or initiate action against the erring police officers but the applicant took an attitude of safeguarding the delinquent officers. It created great dissatisfaction among the general public and in the media. The government was thus constrained to take the matter seriously. The applicant tried to white wash the police at the expense of other departments. He was expected to evaluate without fear or favour the performance of the officers and to take to task those found remiss in the line of duty. Instead of protecting the interest of the State and acting as the protector of the people the applicant protected the erring police officers. This has sent a wrong and dangerous message not only to the police force but also to the public. Such an attitude of the applicant the State Police Chief would have far reaching and disastrous consequences. Even after the Temple Fire Works Tragedy the applicant attempted to interfere with the crime branch investigation probing the tragedy. That also raised serious concern for the State. The applicant tried to interfere in an undesirable manner in the functioning of investigating team of crime branch probing the Puttingal Temple Fire Works tragedy. Even after a request was made by ADGP Crime not to change the officers of the investigation team of Puttingal Temple Fire Works Tragedy that was not immediately done. That also showed that the applicant had an undesirable motive in it. In Jisha murder case also the 2 nd respondent took note of several serious lapses on the part of the police officers. The manner in which the officers proceeded with the investigation was a shame to the police force of the State. No measures were taken to safeguard the available evidence. The police took hasty steps to cremate the body. In the night of 29.4.2016 though the incident came to the notice of the people throughout the State it took five days for the State Police Chief to report the matter to Government that too only after the news was widely flashed in the media. That also caused wide spread criticism in the media and among the public about the police apathy. Even the report submitted by the applicant after five days did not indicate the time of registration of First Information Report (FIR). The 2nd report received by the government on 4.5.2016 also reflected the insensitivity to the gravity of the situation. A 3rd report was received on 12.5.2016. There are many willful lapses on the part of the applicant as State Police Chief he failed to act as the State Police Chief but was found enthusiastic in protecting the delinquent officers. As a result of the same the image of the State Government before the public and sense of security to the public were adversely affected.4. The rating in the applicant's APAR alone is not the criteria to retain him in the post of State Police Chief. Government had sufficient and reasonable grounds to replace him. The 2 nd respondent was very much dissatisfied with the action of the State Police Chief (the applicant) in connection with the two major incidents referred to above. The replacement of the applicant was not in violation of any of the provisions laid down or directions issued by the Hon'ble Supreme Court in Prakash Singh's case (supra). It was done in accordance with the provisions of Section 97(2) of KP Act 2011. Annexure A1 is an order of transfer of the applicant from the post of DGP and State Police Chief. It was the failure of the applicant as Head of the Police Force and State Police Chief in the two instances mentioned above which necessitated the 2 nd respondent to displace the applicant from the post of State Police Chief. It was done following the procedure prescribed. There is no repugnance between the law laid down by the Hon'ble Supreme Court in Prakash Singh's case (supra) and the provisions contained in Section 97 of the KP Act 2011. The merit and ability of the officers were considered by the committee constituted in accordance with the directives contained in Prakash Sing's case (supra) for appointment of the former DGP Mr.K.S.Balasubrmaniam and third respondent but no such procedure was followed when the applicant was appointed as the DGP (State Police Chief). The transfer of applicant has no connection with the change of the government or with the LDF Ministry coming to power. The present transfer is not at all a reduction in rank of the applicant. It is not punitive in nature. Thus the 2nd respondent prayed for dismissal of the OA.5. Respondents 1&3 did not file any reply statement.6. A rejoinder was filed by the applicant refuting some of the statements made by the 2nd respondent in the reply statement. The contention that the appointment of the applicant as DGP and State Police Chief was not in accordance with the procedure laid down in Prakash Singh's case (supra) is denied. It is also denied that the transfer or replacement of the applicant caused as per Annexure A1 is in tune with the provisions contained in KP Act 2011. Once the person has been selected and appointed minimum tenure of two years has to be given. The applicant was selected as DGP and State Police Chief on 22.5.2015 as per Annexure A2. Therefore as per the directions issued in Prakash Singh's case (supra) and also as per Section 97 of KP Act 2011 the applicant is entitled to minimum tenure of two years but he has been displaced from that post in violation of the dictum laid down by the Apex Court and in violation of Section 97 of KP Act 2011. The contention raised by the respondents that there would not be any change in the pay (Rs. 80000/-) of the applicant on joining duty in the transferred post is also not correct. The applicant was in fact downgraded to the scale of Rs. 75500-80000. The averments that as per Section 97(2) of the Kerala Police Act the government has the power to transfer any of the police officers before completion of the normal tenure of two years is also absolutely false. The displacement of the applicant and appointing the third respondent took place on 1.6.2016 within less than a week after the new political leadership assumed charge. The averment that Puttingal Temple Fireworks Tragedy and the manner in which the police acted in Jisha Murder Case brought the government in embarrassing situation are denied. Investigation in Puttingal temple Fire Works Tragedy case is monitored by the Division Bench of the Hon'ble High Court. The action taken by the police was justified. The State Police Chief has jurisdiction to take departmental action against officers only upto the rank of Circle Inspector of Police. The government was satisfied with the report of the State Police Chief. The applicant is not expected to unnecessarily recommend suspension of officers to satisfy the illegal demand of persons having political interest. The action taken by the police in Jisha Murder Case was also not found fault with by the Hon'ble High Court. Vital evidence like DNA finger print hair sample etc. were collected from the scene of crime. Those evidences were made use of by the Special Investigation Team to arrest the accused and for continuing the investigation. There is no practice of the State Police Chief reporting on any murder case to the government. All important matters are brought to the government through the daily intelligent summary which is from the State Intelligence Bureau. The then government in power did not find anything wrong in the investigation conducted in Jisha Murder Case or with regard to the role of the police in Puttingal Temple Fire Works Tragedy case. The averment that government constituted a committee as provided in Section 18 (2) of KP Act 2011 is absolutely false. Annexure A1 order is effectuated by malafide and illegal exercise of authority. He was transferred only in the wake of political scenario in the State.7. Since additional points were raised by the applicant in the rejoinder an additional reply statement was filed by the 2 nd respondent disputing the averment so raised. It is stated that the third respondent was appointed to the post of DGP and State Police Chief after following the procedure laid down in Prakash Singh's case (supra) and the provision contained in the KP Act 2011. The applicant is eligible for the pay and allowances attached to the post. On transfer also he will be getting the same pay. His transfer is not a punishment and there will be no change in his pay and allowances. What have been mentioned in para 4 and 5 of the reply statement were only the case of two important incidents which compelled the State Government to transfer the applicant. As the State Police Chief it was his duty to propose to the government to take action including suspension/transfer or other disciplinary matters in respect of erring officers but no such action was initiated by the applicant as State Police Chief when the two major incidents in the State took place which showed lapses on the part  of the applicant as State Police Chief. Government used to take action against the officers in government department as recommended by the heads of department. The 2nd respondent has sufficient grounds and records for ordering the transfer of the applicant.8. The point for consideration is whether Annexure A1 as per which the applicant who was the DGP and State Police Chief was transferred and appointed as the Chairman and Managing Director KPHCC is in violation of the guidelines issued by the Hon'ble Supreme Court in Prakash Singh's case (supra) and the provisions contained in the KP Act 2011?9. We have heard the learned Senior Counsel Shri S. Sreekumar appearing for the applicant the learned Advocate General of Kerala Shri C.P. Sudhakara Prasad and Advocate Mr. M.Ajay learned counsel appearing for the third respondent. Mr. N.Anilkumar Sr.PCGC appeared for Ist respondent.10. Referring to Annexures A4 to A14 and the fact that the applicant was awarded President's Police Medal for his meritorious service and also distinguished service in 2009 it is submitted by the learned Senior Counsel appearing for the applicant that the applicant is an officer of impeccable integrity and efficiency which fact was not hitherto disputed by any superiors and as such there was no justification for the 2 nd respondent to transfer or displace him from the post of State Police Chief. The learned senior counsel would further submit that the new LDF Ministry assumed charge on 25.5.2016 and Annexure A1 order has been passed on 1.6.2016 and so it is quite evident that this order of transfer was effected by the new ministry prompted by political considerations or by the media reports in connection with the Jisha Murder case and Puttingal Temple Fire Works Tragedy case. It is further submitted that the transfer is in blatant violation of the principles laid down and directions issued by the Hon'ble Supreme Court in Prakash Singh's case (supra) and the provisions contained in the KP Act 2011.11. The fact that in the APAR (Annexures A4 to A14) the applicant was graded as outstanding and that there were no adverse reports against him till then is not in dispute. It is also not in dispute that the applicant was awarded President's Police Medals for his meritorious and distinguished service rendered by him. But the learned Advocate General would submit that the grading in the APAR or that he was awarded Police medals are not matters germane for consideration in the particular background of this case which necessitated the transfer of the applicant from the post of State Police Chief. It is further submitted by the learned Advocate General that the applicant will continue in the cadre of DGP though he has been appointed as CMD KPHCC as per Annexure A1.12. Before adverting to other facts which have been averred by the applicant and countered by the respondents it is profitable to refer the decision of the Hon'ble Supreme Court in Prakash Singh's case b(2006) 8 SCC page 1. Respondents would contend that the principle laid down in Prakash Singh's case have been  scrupulously followed in this case. They would further contend that the transfer was effected after following the due procedure prescribed under the KP Act 2011 which was enacted in the light of and incorporating the directions contained in Prakash Singh's case as well.13. In para 29 of Prakash Singh's case (supra) the Hon'ble Supreme Court expressed the hope that the State Government would rise to the occasion and enact a new Police Act wholly insulating the police from any pressure whatsoever thereby placing in position an important measure for securing the rights of the citizens under the Constitution for the rule of law treating everyone equal and being partisan to none which will also help in securing an efficient and better criminal justice delivery system. For that purpose it was held that it is essential to lay down guidelines to be operative till the new legislation is enacted by the government. Para 31 of that judgment deals with the directions issued by the Court regrading the selection and minimum tenure of DGP. It was directed as follows:'(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. ' Though there was a direction that for the investigation better expertise and improved rapport with the people is required it is stated that nothing has been done so far. The question is whether the selection of the third respondent and replacement of the applicant from the post of State Police Chief was done in violation of the minimum tenure prescribed as per the guidelines issued by the Apex Court and also as per the provisions contained in Section 97 of the KP Act 2011. In Prakash Singh's case (supra) a State Security Commission was also directed to be constituted. The judgment says:'(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:'Who shall be the members of the Commission are also mentioned therein. It is pointed out by the learned Advocate General that the directions contained in Prakash Singh's case (supra) are operative only till the framing of the appropriate legislations as have been repeatedly stated by the Hon'ble Supreme Court in that judgment itself. Therefore since KP Act 2011 has been enacted imbibing the spirit and assimilating the ideas and scrupulously following the directions contained in Pakash Singh's case the applicant cannot bank upon his case contending that the directions contained in Prakash Singh's case are not followed. Since the State Legislature passed the enactment (KP Act 2011) as directed in Prakash Singh's case the directions contained in Prakash Singh's case would no longer be applicable but however Annexure A1 was issued following the directions contained therein as well it is further argued. 14. Regarding the selection and minimum tenure for DGP (State Police Chief) it was held in Prakash Singh's case (supra) that the State Police Chief shall be selected by the State Government from among the three senior most officers of the Government who have been empanelled by the UPSC on the basis of their length of service with very good record and range of experience for heading the Police Force. The other aspect which has been vehemently projected by the applicant is that on such appointment he should have a minimum tenure of two years. The respondents would contend that the seniority alone would not be the criteria for appointment as State Police Chief. There can be no doubt regarding that point since Prakash Singh's case also says that the promotion shall be from among the three senior most officers of the department. It is not disputed that the applicant is an IPS officer of 1983 batch whereas the third respondent is an IPS officer of 1985 batch. The crucial point is whether the applicant could be replaced or transferred from the post of State Police Chief before completing the minimum tenure of two years in that post. In this context it is contended by the 2 nd respondent that the applicant seems to be obviously oblivious of the fact that his appointment as State Police Chief was not in accordance with the procedure laid down by the Hon'ble Supreme Court in  rakash Singh's case nor was it in compliance with Section 97 and other provisions of KP Act 2011. Since the appointment of the applicant as State Police Chief is not under challenge now those factors may not be germane for consideration in this case. But the learned Advocate General has pointed out those factors as narrated in the reply only to highlight the fact that the applicant who has now come forward with a contention that the directions contained in Prakash Singh's case are not complied with cannot forget that during his appointment no such consideration was there.15. Be that as it may the crux of the issue is whether the 2nd respondent was justified in replacing the applicant before completion of the applicant's tenure of two years?16. Section 97 of the KP Act 2011 is quoted below for a proper understanding of the provision: 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;(f) the officer requests in writing for a transfer from the place where he is working.The second respondent relies upon Section 97(2)(e) of K.P. Act 2011 to justify the transfer. In Annexure A1 order of transfer also this provision has been quoted by the 2 nd respondent. Annexure A1 order says that the government invoking the power under Section 97(2)(e) of K.P.Act 2011 have decided to transfer the applicant and to appoint the third respondent as Director General of Police (Head of Police Force) and State Police Chief in the apex  cale of Rs. 80000/. Therefore the question is whether Annexure A1 order is in strict compliance of Section 97(2)(e) of the KP Act 2011. It is in this context the 2 nd respondent contends that the role of the State Police Chief in handling the Puttingal Temple Fire Works Tragedy case and the Jisha Murder case referred to earlier caused serious dissatisfaction among the general public about the efficiency of police force under his (applicant's) jurisdiction. The applicant contends that there was no room for having any such doubt regarding the correctness or probity of investigation in Jisha Murder Case or Puttingal Temple Fire Works Tragedy case. Though the applicant wanted to contend that there was no lapses or laches on the part of the Police or on the part of State Police Chief that has been strongly countered by the 2 nd respondent pointing out certain aspects which are narrated in the reply statement.17. It is argued by the learned Advocate General that transfer is an incidence of service. Any order administrative or executive is passed invariably for administrative purpose and in public interest. Those are normally outside the purview of judicial review. It is also pointed out that what is relevant for consideration is whether the government have sufficient materials to satisfy themselves to effect transfer of the applicant. That decision is not subject to  udicial scrutiny especially in view of the fact that it is not an order passed by the Chief Minister or a particular Minister but by the Council of Ministers. When it is a collective decision taken by the cabinet it can not be subject to judicial scrutiny. It cannot be found that there is flagrant violation of any fundamental right guaranteed to the citizen. It is submitted by the learned Advocate General that the Court or Tribunal is not sitting in appeal regarding the satisfaction of the government as to whether the council of ministers had sufficient materials to satisfy themselves to take that decision. That falls within the domain of the government/cabinet which decided the issue. The court cannot substitute its view.18. The 2nd respondent would contend that in Puttingal Temple Fire Works Tragedy the applicant has hesitated to suspend or initiate action against the delinquent police officers but instead the applicant took an attitude of safeguarding such delinquent officers which according to the respondents created great dissatisfaction among the general public and it was reflected in the media. According to the respondent the government was constrained to take the matter very seriously as the applicant tried to white wash or give a rosy picture of the police and tried to fasten the responsibility on the district administration/revenue department and wanted to contend that there was no lapses or laches on the part of the police at all. Respondents would contend that the applicant as the State Police Chief should have evaluated the entire matter objectively and should have acted without fear or favour and if so proceeded he could have certainly suspended or issued direction for causing suspension of such delinquent police officers. But he was so eager to protect such delinquent officers the 2 nd respondent contends. This according to the respondent gave a dangerous message to the general public. It is thus contended by the respondent that the role of police headed by applicant as State Police Chief caused dissatisfaction among the general public.19. Learned senior counsel for applicant would submit that the applicant as State Police Chief cannot act in tune with the idea or to satisfy the media people; the applicant cannot simply order or propose suspension of any police officer when they were not at fault. According to the applicant no Police officer was at fault in handling the issue regarding the Puttingal Temple Fire Works Tragedy. In this connection the applicant also relies upon Annexures A15 to A17. A15 is the report submitted by the nspector General of Police to the applicant as State Police Chief. In para 8 of A15 it is stated 'neither the Executive Magistrate (Tahsildar) nor the Circle Inspector present on the spot brought the fact that the Temple Authorities had violated the directions in the order of the ADM to any higher authority nor did ask for any reinforcements in this regard.' It is pointed out by the respondent that no permission whatsoever was given by the ADM for having fire works. Without obtaining any such permission the police officers allowed the temple authorities to have the fireworks on that fateful day. Had the police authorities been vigilant it could have been prevented by making public announcement in advance that there would be no fire works at all in which event the people would have left the place earlier. Not only that it was incumbent on the police to ensure that the required permission for fireworks had been obtained by the temple committee for display of fire works or for having a 'competition fire works'. If the temple authorities or the contractors or agents who were to perform fire works had been prevented from bringing such materials b explosives- to have the competition fire works then certainly the incident could have been avoided. No such action was taken by the police. They should not have been simply swayed by the oralrepresentation made by the temple committee that the ADM had already granted permission for conducting the fire works. When written order granting permission was necessary there was no justification for the police to simply accept such oral version.   The police was not expected to act on such oral version to allow the carrying out of the fire works. No doubt if the tragedy had not taken place everybody would have remained complacent and happy and nobody would have questioned enquired or bothered whether valid permission was there or not. Tahsildar or other authorities also might have been equally responsible but that is no reason for the Police to wriggle out of the responsibility the respondent contends. It was the bounden duty of the State Police Chief to immediately suspend such delinquent Police officers who were also responsible for the tragedy it is argued. So many other aspects are also highlighted by the respondent to contend that there was lapses on the part of the police. It was stated that such statements are made not to malign or demoralize the police force in the State but only to say that the police officers were to anticipate such a tragedy but they failed to prevent the same and so the responsible among them should not have been let at large without ordering suspension of such erring Police officers. Nonfeasance on the part of the State Police Chief in acting in that line has caused serious dissatisfaction among the  pubic it is contended. The contention that since a judicial inquiry has been ordered nothing can be said against the same is also found untenable.20. The question is whether the government have materials to satisfy themselves to justify the transfer of the applicant. It is not in any way intruding into or interfering with the inquiry being conducted by the Judicial Commission it is further submitted.21. The contention raised by the applicant that there were so many festivals going on in Kollam city and so with the limited numbers of police personnel it was not possible to deploy police personnel to each and every place and so there was no justification in finding fault with the police also has been taken exception to. The question is not whether it was necessary to deploy so many Police personnel for that purpose but the crucial point is whether sufficient measure had been taken in advance to prevent such untoward incident. The police was expected to take stern action in the matter. They could have prevented the fire works operations had they prevented bringing fireworks (explosives) to the spot and not allowed such persons to have the fireworks when there was nothing to cause the police officer to believe that permission was granted by the ADM.22. The report contained in Annexure A16 submitted by the applicant to the Government (Additional Chief Secretary) also would show that the applicant was trying to fasten the liability on the district administration and in a way the applicant wanted to white wash the commissions or omissions on the part of the police it is further argued. The stand taken by the applicant that if any action is taken that will affect the morale of the police is only a lame excuse the respondent contends. Similarly the contention raised by the applicant as can be seen from Annexure A17 that the temple authorities by violating the law and defying the lawful authorities started the fire works without any notice and so it was not possible to prevent the same is also unacceptable especially when the same letter would show that the temple authorities actually wanted to have a competitive fireworks. It could not have been lost sight of.23. The learned Advocate General would submit that all those materials placed before the government were sufficient to satisfy themselves to hold that the applicant as the State Police Chief did not act as expected of by the general pubic. In other words it  has caused dissatisfaction in the mind of the public. Whether the satisfaction of the government was correct or not is not something to be adjudged or assessed by the Tribunal as if it is sitting inappeal.24. Much has been argued on behalf of the applicant that the investigation in this case was transferred to the Crime Branch headed by Shri S.Anathankrishnan IPS ADGP Crime and all possible actions were taken by the applicant as the State Police Chief. But it is pointed out that in spite of the request made by Shri S.Ananthakrishnan (ADGP) the applicant was not inclined to retain two Dy.SPs who were members of the investigating team but transferred one as ACP Chathanaoor. It was pointed out that the presence of that officer was very much necessary for a proper investigation of the case as he was the local Dy.SP at the relevant point of time. In spite of the request made by ADGP Crime the Dy.SP and another officer who were part of the investigating team were ordered to be transferred by the applicant. When ADGP requested that those officers should be retained no action was taken by the applicant and so finally a fresh panel had to be called by the government. The fact that the applicant did not take any action on the request of the ADGP to retain those police officers but was bent upon justifying the transfer of officers of the investigating team also prompted the respondent to presume that there was an undesirable motive for the applicant it is argued. It cannot be said whether there was any such evil motive or not but the fact remains that the applicant as the State Police Chief did not act promptly and strictly if as a matter of fact a mistake had crept in ordering transfer of those police officers earlier. These aspects are also highlighted to contend that the applicant did not act effectively and promptly to tackle the situation as is expected of from a State Police Chief. The respondent would contend that the level of callousness and insensitivity with which the matter was handled by the applicant as State Police Chief is appalling and it invited wide-spread criticism from the general public and also by the media and as such on the whole the Government had no option but to replace the State Police Chief.25. In this context the learned Advocate General also refers to the second incident; Perumbavoor Jisha Murder Case. The learned senior counsel for the applicant would vehemently contend that when the matter relating to that ghastly murder was taken up before the Division Bench of Hon'ble High Court the police was cautioned not to get influenced by such sensationalism and that only because the media was conducting their own investigation the police cannot act in that line but they have to proceed with the investigation in a more scientific manner. The materials collected  from the scene of occurrence detection of finger prints foreign hair suspected knife chappals allegedly worn by the assailant the examination of bite marks etc. were made use of by the special investigation team subsequently appointed to proceed further with the investigation and to arrest the accused and so according to the applicant there was no lapses in the conduct of the investigation. It is also stated that there was elaborate verification of call details record and verification of CCTV footage; about 5000 finger prints were verified thousands of people were questioned and several DNA samples were verified and all these aspects would clearly show that the investigation was proceeding in the right direction. That the real accused could not be apprehended immediately does not mean that the investigation was at fault. The police cannot act as desired by the public or the media. A person cannot be implicated as an accused and arrested unless sufficient and strong materials are there to make the belief reasonable and firm. The police have to proceed following the procedure prescribed collecting the evidence using scientific methods to exclude any possibility of innocent being nabbed but to arrest the real assailant. It cannot be disputed that the initial investigation team had collected materials as referred to above. Those materials also might have been used by the fresh investigation team to proceed further in the matter leading to the arrest of the accused.26. The learned senior counsel for the applicant would also refer to the judgment rendered by the Hon'ble High Court when the petitions relating to the said crime were heard by the Division Bench of the Hon'ble High Court. It was held that it is too early for the High Court to make any comemnts. It is pointed out that though there was a request to hand over the case to CBI that was not allowed by the High Court. It is pointed out by the respondent that such a request was made at the initial stage of the investigation. No court used to interfere with the investigation at the initial stage unless it is a matter involving terrorist activities or persons having international links in the commission of such crimes and the alleged shortcomings are not sufficient to hand over the investigation to CBI it is argued. The 2 nd respondent would contend that those writ petitions did not merit consideration as the investigation was then in progress and as such there was no necessity to hand over the investigation to CBI. That does not mean that there was no lapse on the part of certain police officers at the relevant time. Those laches or lapses could not have escaped the notice of the applicant as the State Police Chief. It is contended that the manner in which the police officers proceeded with the investigation of the crime is a shame to the State Police. According to the respondents no measures were taken to safeguard the available evidence. It is also stated that the Police took hasty steps to cremate the body. But at the same time the applicant would contend that all materials were collected at the initial stage of investigation itself.27. The incident took place on 28.4.2016. At one place it was stated that the police got the information over phone and the police reached the place of incident at about 8.45 pm on that day. It is stated that the first information statement was given by a Member of the Panchayat was recorded at 9.30 pm on that day. It was stated that though the incident came to the notice of the people of the State on 29.4.2016 it took nearly 5 days for the applicant to report the matter to the government. It was stated that the news was widely flashed even long prior to that. There was widespread criticism in the media and among the public regarding the inaction or lapses of the police officials. Applicant contends that there is no practice of State Police Chief giving report of the  murder cases to the government. But when there was widespread agitation and criticism he was obliged to apprise the position to the Government it is contended. It is further pointed out that even in the report submitted by the applicant after five days he did not indicate the time of registration of FIR. That according to  the respondents was deliberately done to cover up the serious lapses on the part of the police. There was delay in registration of FIR. Even though a first information statement was given on the night of 28.4.2016 it was registered in the afternoon of 29.4.2016. We refrain from discussing those aspects regarding the delay in registration of FIR and delay in forwarding the first information statement to the jurisdictional Magistrate since the investigation is still in progress.28. It seems the applicant accepted the statement made by his subordinates with regard to that aspect contending that the computer of CTNS was not functioning for taking the print out and it was so recorded in the general diary of the police. Even before the computerisation FIRs were registered promptly and used to be sent to the jurisdictional Judicial Magistrate through the police officials noting it as 'Express FIR' so as to ensure noting the date and time of receipt of FIR in order to avoid a plea of concoction and deliberation. Procedure contemplated under Section 154 and 157 Cr.PC were used to be properly complied with even before computerisation. Therefore the fact that computer of CTNS was not functioning can never be an excuse. Despite all these the applicant did not state anything regarding those aspects in the report submitted by him to the Additional Chief Secretary and no action was taken or proposed by the  applicant with re gard to those omissions and commissions; the 2 nd respondent contends.29. Shri M. Ajay learned counsel for the 3 rd respondent has drawn our attention to  the decision of the Division Bench of Kerala High Court in Philipose Abraham Vs. State of Kerala - 2007(4) KLT 679. Para 26 and 31 of Parakah Singh's case cited supra were quoted by the Division Bench in the aforesaid case. In that case the appellant therein was transferred from Thiruvalla Sub Division to Idukki District. Before his transfer he was posted as Dy.SP on 22.5.2006 and he worked in the said place till he was  hifted out on 29.6.2007 by the State government by passing  Ext.P5 order therein. The correctness or otherwise of that order was the subject matter of the Writ Petition. The single judge rejected the Writ Petition against which Writ Appeal was filed before the Division Bench. It was pointed out that pursuant to the orders and directions issued by the Apex Court in Prakash Singh's case (supra) the State Government promulgated the Kerala Police (Amendment) Ordinance 2007. Section 4A was introduced by the ordinance to the Principal Act (Kerala Police Act. 1960). Section 4A of that ordinance provides minimum tenure for police officers. Sub section (2) of Section 4A of the Ordinance carves out an exemption. It was contended by the appellant before the Division Bench that the order of transfer is contrary to the observation made by the Apex Court in Prakash Singh's case (supra). It was argued before the Division Bench that the State Government had  mechanically accepted the recommendation of the Board while transferring the appellant from Thiruvalla Sub Division to Idukki district. It was further argued that the government which is the appointing authority should have considered the recommendation of the Board in the proper perspective and then only accepted the recommendation of the Board. Repelling all those contentions it was held by the Division Bench as under:'18. In any service it is said transfer is an incident of service. The Supreme Court and the High Court have consistently held that the transfer is one of the incidence  of service and it is one of the conditions of implied  service. Orders of transfer of a Government servant like  any other administrative or executive orders are passed  invariably in administrative purposes or in public  interest. Such orders are normally outside the purview  of judicial review by the Courts except under  circumstances like if an order of transfer is made by an  incompetent person or contrary to the Rules and  Regulations; if it is done on mala fides or for collateral   purpose. It is needless to say that the State Government  being an appointing authority has the inherent right to   transfer a Government employee from one place to  another depending upon the exigencies of service. It is  also well settled that it is for the appointing authority to  take a decision who is to be transferred on what ground  to be transferred and to which place is to transferred. It  is worthwhile to recall the pertinent observation made  by the Bombay High Court in Seshrao Nagorao Umap v. State of Maharashtra (1985) II LLJ 73 wherein it is stated that It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority  has a wide discretion in the matter. The Government is the best judge to decide how to distribute and utilise the services of its employees. However this power must be exercised honestly bona fide and reasonably. It should  be exercised in public interest. 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. In the  present case it is not the case of the appellant that the  order of transfer is on any one of the grounds which are  stated earlier. The main case of the appellant is that the  respondents have effected the transfer of the appellant  from one place to the other place only on the ground  that he is found to be not adequately competent and  efficient which is affecting the over all functioning of the  police force. In our opinion the language so used by  the Board while recommending the case of the appellant  for transfer is in way different from the language  employed in Sub-section (2) of Section 4A of the Act.'  It was observed in that case that the Board consisted of very senior  police officers. They had no malafide or ill will against the appellant  therein. After taking into consideration the overall performance  of the appellant the Board has thought it fit to recommend the case of the appellant therein for transfer from one place to the other place. That recommendation of the Board was accepted by the State Government and the Government after due application of its mind passed the order of transfer. Since the order of transfer so made was in accordance with the Ordinance issued by the State Government it was held that the order of transfer is not illegal or tainted with malafides or for any other collateral purpose. Hence the Writ Appeal was dismissed.30. The learned senior counsel appearing for the applicant would draw distinction between the provision contained in the Kerala Police (Amendment) Ordinance 2007 and K.P.Act 2011.Section 4A of that ordinance reads:'4A. Minimum tenure of police officers:- 1) The government may ensure a normal tenure of two years from the date of assuming charge of the post to the Director General of Police; and to all officers holding charge of Police Stations Police Circle  Police sub-divisions Police District Police Ranges  and Police Zones:Provided that the normal tenure shall not be applicable in cases of superannuation promotion reversion suspension and leave.2) The government or the appointing authority may without prejudice to any other 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 namely:-(j) public dissatisfaction with the effectiveness of policing in the jurisdiction; and(a) to (i) and (k) are omitted as it is unnecessary here.31. The learned senior counsel for the applicant submits that the words used in Section 4A are 'the Government may' whereas in Section 97(2) the words used are 'the Government shall'. (Section 97(2) is quoted in Paragraph 16 of this order). Since the word used is 'shall' and not 'may' it must be held mandatory. The word 'may' sometimes carry the same meaning as 'shall' as well. Therefore simply because the word 'may' was employed in Section 4A of the Ordinance it cannot be said that the provision is not identical. In Sub Section(2) of Section 4A it is stated 'the government or the appointing authority may without prejudice to any other 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. The words 'normal tenure of 2 years'' in Section 4A of the Ordinance are seen employed in Section 97(2) of KP Act 2011. The words were so incorporated following the dictum laid down in Prakash Singh's case. In sub section (2) of Section 97 of KP Act 2011 and Section 4A(2) of Ordinance while referring to the tenure the word used is 'may'. It was argued on behalf of the applicant that in Section 4A(2) of the Ordinance the words used is 'normal tenure' and is accompanied by the word 'may' but it is not so in Section 97(2). But it is found to be incorrect. It may be seen that even in Section 97(2) it is stated; any police officer before completing normal tenure of two years'' which are exactly the words employed in Section 4A2) of theOrdinance. On going through the provisions; namely Section 4A(2) and Section 97(2) it is seen that Section 97(2) is exactly identical to Section 4A(2) of the ordinance. Therefore the contention that the decision rendered by the Division Bench in Philip Abraham's case (supra) has no relevance is found to be untenable.32. In Philip Abraham's case (supra) the recommendation of the Board constituted for that purpose was acted upon by the Government. Of course in that case the issue was with respect to the transfer of a Dy.SP whereas here it is the transfer of the   State Police Chief. Here the recommendation of the committee constituted for that purpose was acted upon by the government. The committee consisted of the Chief Secretary Additional Chief Secretary and Law Secretary as can be be seen from Annexure R2(a). That committee was constituted by the Government on 30.5.2016. As is discernible from Section 18(2) of the K.P.Act the State Police Chief shall be appointed by the Government from among those officers of the State cadre of the Indian Police Service who have already been promoted to the rank of DGP taking into account the ability to lead the Police Force of the State. The fact that the third respondent was in the cadre of DGP is not in dispute. But the third respondent is of '1985' batch of IPS whereas the applicant is of '1983' batch of IPS. It is worthwhile to note that there is no case for the applicant that the Chief Secretary Additional Chief Secretary or Law Secretary had any axe to grind in the matter. No bias or malafides was attributed against those three officers. It was based on the recommendation of the committee constituted Annexure A1 order was passed on 1.6.2016.33. The learned Senior Counsel for applicant Shri Sreekuamr has cited the decision of the Hon'ble Supreme Court in Vineet Narain and others Vs. Union of India and another b(1998) 1 SCC 226 in support of his submission that even in 1998 the Hon'ble Supreme Court had given direction for rigid compliance till such time as the legislature take steps to substitute them for proper legislation. It is pointed out that the directions given therein were mostly for constitution of a Central Vigilance  Commission the powers assigned to that commission etc. It was also stated that the Director CBI shall have the minimum tenure of two years regardless of the years to superannuation from the date of his appointment. Certain directions were given regarding the appointment of Director CBI and also necessity to ensure the filing of charge sheet within the stipulated time etc. Ultimately in para60 it was held by the Hon'ble Supreme Court:'In view of the problem in the States being even more acute as elaborately discussed in the Report of the National Police Commission (1979) there is urgent need for the State Government also to set up credible mechanism for selection of the Police Chief  in the States. The Central Government must pursue the matter within the State Governments and ensure that a similar mechanism as indicated above is set up in each State for the  selection/appointment tenure transfer and posting of not merely  the Chief of the State Police but also all police officers of the rank of Superintendent of Police and above. It is shocking to hear a matter of common knowledge that in some States the tenure of a  Superintendent of Police is on an average only a few months and  transfers are made for whimsical reasons. Apart from demoralizing  the police force it has also the adverse effect of politicizing the  personnel.'The afore-quoted portion has been emphasized by the applicant in support of his submission that the minimum tenure of two years was emphasized by the Supreme Court in Vineet Narain case (supra) also in order to ensure that the State Police Chief should not be under the threat or fear of transfer by the Minister/government concerned. Vineet Narain case (supra) was referred to in Prakash Singh's case. Therefore it is vehemently argued by the learned senior counsel for the applicant that the paramount importance and object of fixing a tenure of two years by the Hon'ble Supreme Court is to ensure that the police force is made free from any pressure whatsoever so as to secure the rights of the citizens under the constitution. When that was the solemn object sought to be achieved it cannot be allowed to be scuttled by the subjective satisfaction of the government which as usual is guided or swayed by political and other considerations. Primarily justice to a large extend depends upon the working force. Independence of the investigation of the police is an absolute must. Frequent transfers for whimsical reasons have demoralizing effect on the police force. Hence in order to insulate the police from being transferred on whimsical or extraneous considerations directions were issued by the Hon'ble Supreme Court in Prakash Singh's case (supra). The learned counsel for the respondents would point out that the Hon'ble Supreme Court has made it clear at three or four places in the very same judgment that the directions so given are to be operative only till framing of the appropriate legislation. So much so when the KP Act of 2011 has been enacted incorporating the guidelines contained in Prakash Singh's case the applicant cannot harp upon the judgments rendered in Vineet Narain Prakash Singh and other cases.34. It is pointed out that the State Security Commission as mentioned in Section 24 of the KP Act has not been constituted so far. Section 24(3) says that the State Police Chief shall be the Secretary of the said Commission. Section 25 of the Act deals with the functions of the commission. Section 25 of the Act reads thus:'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;(b) to issue directions for the implementation of crime prevention tasks and service oriented activities of the Police;(c) to evaluate from time to time the performance of the Police in  the State in general; (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 sha ll 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. ' On going though Section 25 of the K.P.Act it is clear that State  Security Commission has nothing to do with the appointment of the State Police Chief.35. Regarding the selection and minimum tenure of DGP it was held by the Supreme Court that 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 UPSC on the basis of their length of service very good record range of experience etc. That direction is seen incorporated in Section 18 of KP Act 2011. So far as the selection of the 3rd respondent is concerned 2nd respondent has pointed out that a committee consisting of the Chief Secretary and Additional Chief Secretary (Home) and the Law Secretary was constituted. That Committee prepared a panel of three senior most officers. No malafide was attributed against the Committee or against any of the members of the Committee. It was based on the recommendation given by the committee that the 3rd respondent was appointed by the Government as the State Police Chief. The plea that since the applicant was the senior most he should not have been excluded is found to be bereft of any merit since it was to replace or transfer the applicant and for appointment of the new State Police Chief the committee was constituted.36. The two files containing the communications and correspondences pertaining to those two cases have been placed before us. The averment made by the 2 nd respondent in the reply statement regarding the transfer of two Dy. SPs who were already in the investigation team in Puttingal case and who were ordered to be transferred by the State Police Chief are seen highlighted in the report. ADGP (Crime) had addressed the State Police Chief to retain those two police officers since as they were efficient in the conduct of investigation. But still they were not allowed to be retained. It is stated by the applicant that the transfer was made on the request of the Election Commission. Later the Additional Chief Secretary had to address the Election Commission to retain those two Police Officers in the investigation team. Similarly the lapses and latches on the part of the police in the registration of the FIR and delay in forwarding it to the jurisdictional Magistrate are seen highlighted in the report submitted by the Law Secretary and Additional Chief Secretary.37. It is contended by the applicant that if the Government were of the view that there were lapses or inaction on the part of any Police Officer who had handled the Puttingal Temple Fire work tragedy or the Jisha murder case the Government could have taken action including suspension transfer or other disciplinary matters for  according to the applicant regarding the Officers upto the rank of Circle Inspector the action was to be taken by the District Police Chief and regarding officers above the rank mentioned above it is the government to take action. But that contention has been taken strong exception to by the 2nd respondent pointing out that it is the primary duty of the applicant to propose to the Government to take action including suspension transfer or other disciplinary matters in respect of such delinquent officers. No suggestion or proposal was ever made by the applicant. Therefore the applicant cannot pass the buck on to some other officers or the Government to wriggle out of the responsibility the respondent contends.38. It was stated in the report of Additional Chief Secretary that transparency and efficiency of the Police Force in general seem to have eroded the confidence of the public women in particular reflecting 'poorly on the leadership of the Force'. This report was seen by the Chief Minister on 26.05.2016. It must have certainly impelled the Ministry to take a decision regarding the replacement of the State Police Chief. It was pursuant thereto the committee consisting of hief Secretary Additional Chief Secretary and Law Secretary was constituted for the appointment of a new State Police Chief. That committee was constituted on 30.05.2016. It cannot be disputed that it was based on the recommendation of that committee the Cabinet/Council of Ministers decided to transfer the applicant from the post of State Police Chief and to appoint him as the CMD KPHCC and to appoint the 3rd respondent as the State Police Chief. Therefore the learned Advocate General would submit that the applicant's transfer was not the result of any whim or fancy of the Chief Minister or any other Minister but it was on the basis of the collective decision taken by the Cabinet. That decision was based on the reports mentioned above and other aspects which have already been highlighted earlier. No malafides can be attributed against the State Cabinet/the Council of Ministers nor was any malafides attributed against the Committee which recommended the appointment of the 3rd respondent as the State Police Chief. It is vehemently argued by the learned Advocate General that the Government is the best judge to decide how to distribute and utilize the services of its employees as has been held by the Division Bench in Philipose Abraham's case supra.39. There is nothing to show that the power was exercised by the Government based on extraneous consideration or for achieving any alien purpose or with any oblique motive nor was there anything to show that there was any malafides or colourable exercise of power. The appointment of 3rd respondent as State Police Chief was made on the recommendation of the Committee. The decision to replace/transfer the applicant from the post of State Police Chief was taken by the Cabinet/Council of Ministers after an overall assessment of the performance of the applicant. The inept or inefficient handling of the fire work tragedy and Jisha murder case were two such instances projected by them.40. The applicant contended that even earlier reports were submitted to the then Government but the then Government did not express any dissatisfaction in the functioning of the State Police Chief and so it has to be inferred that when the new Government was sworn in they did not like to retain the applicant for political or extraneous reasons. Though the transfer happened to be made within a few days after the new Government was sworn in it cannot be said that the transfer was made in violation of the principles laid down by the Hon'ble Supreme Court in Prakash Singh's case or in violation of the provisions contained in Section 18 and Section 97(2) of the Kerala Police Act 2011.41. It is submitted by the learned counsel for the 3rd respondent that the appointment of the 3rd respondent was made based on the recommendation of the Committee and that decision was taken by the Council of Ministers. When it was stated that the transfer of the applicant and appointment of the 3rd respondent was made following the procedure prescribed under Section 18 and Section 97 of the Kerala Police Act and when it was specifically stated that the Government were prima facie satisfied of the necessity to tranfer the State Police Chief as he caused dissatisfaction in the general public about the efficiency of the police in his jurisdiction Annexure A-1 order cannot be challenged at all. Though Philipose Abraham cited supra was rendered while considering Police Amendment Ordnance 2007 the observations made therein are also to be borne in mind by this Tribunal as it could be seen that the provision contained in Section 4A of the Ordinance is exactly identical to Section 97(2) of the Kerala Police Act 2011. (The aforesaid Ordinance was replaced by the Kerala Police Amendment Act 2007). Clause (j) of Section 4A(2) is almost identical to Section 97(2). The judgment rendered by the Division Bench in Philipose Abraham's case - 2004(7)KLT 649 was confirmed by the Hon'ble Supreme Court. [The SLP filed against the judgment of the Division Bench was dismissed by the Hon'ble Supreme Court in SLP (Civil) No. 20866/2007 date 19.11.2007].42. Counsel for the 3rd respondent has relied upon the judgment of the Hon'ble Supreme Court in Citizen for Justice and Peace Vs State of Gujarat and others b(209)11 SCC 213. That was a case where the appointment of PCP as Director General of Police in the State of Gujarat was challenged on the ground that the PCP's role during Gujarat carnage of 2002 was highly controversial and therefore his appointment as DGP was not conducive to fair investigation and trial. Considering the over all situation and taking note of the fact that almost all the cases mentioned therein were recommenced by the investigating agency and were dealt with by the scrutiny committee and since the PCP (Shri P.C Pandey) was going to retire on 31.3.2009 the Apex Court did not intervene in the matter. So the facts dealt with therein are not identical to the facts of this case. But the Hon'ble Supreme Court in para 11 of that judgment observed as: '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 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.'Though the facts of the case are not identical the observation made by Hon'ble Supreme Court in 2009 long after the pronouncement in Prakash Singh's case that the appointment of a government servant is the prerogative of the particular government cannot be totally ignored it is argued. No doubt the decision in Pakash Singh was not referred to by the Hon'ble Supreme Court in Citizen for Justice case (supra).43. The decision in TSR Subramanian and others Vs. nion of India and others - (2013) 15 SCC 732 has also been referred to in this connection. That was a case where some  eminent retired civil servants filed the Writ Petition before the Hon'ble Supreme Court under Article 32 of the Constitution of India for bringing up of reforms for preservation of integrity fearlessness and independence of civil servants at the Center and State levels in the country. It was observed that a minimum tenure for civil servants will help in achieving professional targets without being affected by frequent transfers on whims and fancies of political executives. It would effectively help public policy by prioritizing various socio economic policies intended for poor and marginalized sections and increasing the efficiency of officers it was argued. Frequent transfer is not in public interest it is deleterious to good governance. Therefore the necessity of having a minimum tenure of 2 years as has been mentioned in Section 97(2) of KP Act and as held in Prakash Singh's case gets support from the observation made in this decision as well the applicant contends. The Hon'ble Supreme Court observed that at present civil servants are not having stability of tenure particularly in State Government where transfers and postings are made frequently at the whims and fancies of executives actuated by political and other considerations and not in public interest. Hence the necessity of minimum tenure has been endorsed and implemented by the Union government. 13 States accepted the necessity of minimum tenure for civil servants. It was observed that fixed minimum tenure would not only enable the civil servants to achieve their professional targets but also help them to function as effective instruments of public policy. Further it was held that repeated shuffling/transfer of the officers is deleterious to good governance. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. It is pointed out by the learned counsel for respondent that those are only general observations concerning the appointments and transfers of civil servants and not particularly with respect to the transfers/appointments of the State Police Chief or about the top police officers.44. It is argued by the learned senior counsel for the applicant that Section 18(3) of KP Act would make it clear that any person who performs any functions of the police in the State of Kerala in exercise of the powers under this Act shall be officers subordinate to the State Police Chief. Therefore according to the applicant since the third respondent is appointed as the State Police Chief the applicant may become subordinate to the State Police Chief. Similarly it is also stated that when the applicant was the State Police Chief the third respondent was an officer subordinate to the applicant and if so an officer who was subordinate to the State Police Chief cannot be appointed as State Police Chief. It is pertinent to note that when the third respondent is appointed as the State Police Chief the applicant is not exercising the powers under the Kerala Police Act because he was appointed and posted as the Chairman and Managing Director of KPHCC. The Chairman and Managing Director of that corporation is not exercising the powers under the K.P.Act 2011. So long as he holds that post he will not be an officer subordinate to the State Police Chief. Therefore the contention that the appointment would be offending Section 18(3) of KP Act is also devoid of any merit.45. The conspectus of factors delineated earlier would make it manifest that the replacement or transfer of the applicant as State Police Chief was not done malafide or with oblique motive nor was the third respondent appointed as State Police Chief for extraneous or political considerations but on the ground that the Government were satisfied prima facie that the applicant's shifting was ecessary as it caused serious dissatisfaction in the general public about the efficiency of police force and on satisfying the conditions mentioned in Section 97(2)(e). Though in the rejoinder it was stated by the applicant that the transfer was malafide nothing could be pointed out to show that the action of the government was malafide. No malafides can be attributed against the cabinet or council of ministers. No malafide was attributed against any of the members of the Committee who recommended the appointment of the third respondent as the State Police Chief which was done as a consequence of the replacement of the applicant from the post of State Police Chief. But it is made clear that what have been stated by us in the course of discussion are intended only for the purpose of deciding the issue involved in this case and shall not be treated as comments touching upon the integrity of the applicant.46. Though in the O.A a declaration is sought that clause (e) of Section 97(2) of the Kerala Police Act 2011 is arbitrary discriminatory and violative of Articles 14 and 19 of the Constitution of India and is also against the dictum laid down in  Prakash Singh's case no argument has been addressed on behalf of the applicant with regard to that prayer. Since the provision contained in Section 18 and Section 97(2) are seen incorporated in compliance with and following the guidelines issued by the Hon'ble Supreme Court in Prakash Singh's case the contention that Section 97(2)(e) is discriminatory and violative of Articles 14 and 19 of the Constitution of India is found to be untenable.47. The only other ground that survives for consideration is whether the transfer of the applicant is punitive in nature. The 2 nd respondent says that the action is not punitive in nature. No disciplinary action was taken against the applicant. The appointment of the applicant as the State Police Chief was in the fixed apex scale of Rs. 80 000/- whereas now he has been transferred as the Manging Director of KPHCC. That post is equated to that of Director of Vigilance and Anti corruption Bureau. Annexure A3 would show that the Director Vigilance and Anti Corruption Bureau is just below the Director General of Police (State Police Chief). The scale of pay of Director Vigilance and Anti Corruption Bureau is Rs. 75500-80000. It cannot be said that the pay scale is exactly the same as that of the State Police Chief. So far as that of State Police Chief is concerned it is a fixed pay ie. it is the apex scale of pay. No annual increment is available to the officers holding the apex scale of Rs. 80 000/-. It is stated in the reply statement of 2 nd respondent and is submitted by the learned Advocate General that the Accountant General has informed that the pay of the applicant is not being reduced and that the applicant will continue to draw the same pay as he was drawing when he was holding the post of State Police Chief. No doubt the pay of the applicant cannot be reduced. If reduced it will amount to down-gradation of the officer. That is not permissible without resorting to the procedure established by law. No order or communication given by the Accountant General has been placed before us. Annexure A1 order shows that the post of Managing Director KPHCC is declared equivalent to the status and responsibility to the cadre post of Director Vigilance and Anti Corruption Bureau under Rule 11 of IPS (Pay) Rules 2007. It is also stated that the deputation will be governed by the terms and conditions prescribed in G.O(P) No.546/1980/GAD dated 1.12.1980 as amended. It is in view of this the learned senior counsel for the applicant referred to Annexure A3 where the scale of pay of Director Vigilance and Anti Corruption Bureau is shown as Rs. 75500-80000. The communication to the contra has not been produced.48. As has been held by the Hon'ble Supreme Court in State Bank of India Vs. K.P.Subbaiah and others AIR 2003 SC 3016 when a question of pay protection comes the basic feature is that the fitment or fixation of pay in a particular scale must be such as to ensure that the total emoluments are not reduced.49. The recommendation of the 7th Pay Commission has been accepted by the Government of India and as such it is reported that the corresponding pay of the apex scale of Rs. 80 000/- is 2 25 000/-. Unless an order protecting the pay is issued future complications are likely to arise especially in the matter of computation of pension and other benefits when the applicant is to retire on superannuation after one year. Therefore it is just and proper that the pay of the applicant drawn by him while working as State Police Chief is protected and order to that effect is issued. Hence the 2nd respondent shall issue appropriate order protecting the last pay drawn by the applicant ie. while he was holding the  post of State Police Chief. It should be done within one month from the date of receipt of a copy of this order. Except to the extent as aforesaid in all other respects the claim made by the applicant is found to be untenable.50. Except to the extent that an order should be issued by 2 nd respondent protecting the last pay drawn by the applicant while he was holding the post of State Police Chief in all other respects the Original Application stands dismissed. No order as to costs.