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Madhya Pradesh High Court · body

2019 DIGILAW 165 (MP)

Kripa Shankar Dwivedi v. State of M. P.

2019-02-22

ATUL SREEDHARAN

body2019
JUDGMENT : The present petition has been filed by the Petitioner herein by which order dated 9.2.2019, passed by the Respondent No.2 has been challenged. By the said order, the Petitioner has been transferred from the post of SDO(P) Singrauli to SDO(P) Bina, District Sagar. The main ground for contesting the said order passed by the State is the order being a direct violation of the directions of the Supreme Court in Prakash Singh Vs. Union of India (2006) 8 SCC 1. 2. Briefly, the facts are as follows. The Petitioner was holding the substantive post of the Sub Divisional Officer of Police [hereinafter referred to as “SDO(P)”] Singrauli. Vide order dated 31.8.2017, the Petitioner has been transferred to the post of Deputy Superintendent of Police (CID), Sagar [hereinafter referred to as “DSP(CID)”]. The Petitioner joined the post of SDO(P) Singrauli on 01/09/17. It is the case of the Petitioner that during his period of posting at Singrauli, he has been working to the full satisfaction of the Department and that the Respondent No.5, S.P. Singrauli has issued certificates of appreciation for the work done by the Petitioner during the 2018 Vidhan Sabha Elections in the State. By the impugned order, the Petitioner states that he has been transferred twice within a period of two years as the impugned order has been passed within one and a half years of the Petitioner’s posting as SDO(P) at Singrauli. The Ld. counsel for the Petitioner has referred to the circular dated 14/02/17 at page 20 and has specifically drawn the attention of this Court to the provision therein whereby, the minimum tenure of a police personnel posted in a district, is two years. It also provided that in the event they need to be transferred before the expiry of the two-year term, then there must be an order of the Competent Authority upon whose orders, they can be transferred. 3. The Ld. counsel for the Petitioner has submitted that the impugned order dated 09/02/19 effects the transfer of 152 officers in the State including the Petitioner who finds himself at serial No.85. It is submitted on behalf of the Petitioner that the impugned order is in gross violation of the directions of the Supreme Court passed in Prakash Singh Vs. Union of India (2006) 8 SCC 1. Specifically, Ld. It is submitted on behalf of the Petitioner that the impugned order is in gross violation of the directions of the Supreme Court passed in Prakash Singh Vs. Union of India (2006) 8 SCC 1. Specifically, Ld. counsel for the Petitioner has drawn the attention of this Court to paragraph 31 of the said judgment in which inter alia, the Supreme Court has directed that the Central and State Governments and the Union Territories shall comply with the directions given in paragraph 31 (of the judgement), till framing of the appropriate legislation. The minimum tenure for IG of Police and other officers, is the direction to which the attention of this Court has been drawn to specifically by the Ld. counsel for the Petitioner. Direction No.3 reads as hereinunder: Minimum tenure of IG of Police and other officers. “(3) Police officers on operation duties in the field like the Inspector General of Police in-charge Zone, Deputy Inspector General of Police in-charge Range, Superintendent of Police in-charge District and Station House officer in-charge of a Police Station shall also have a prescribed minimum tenure of two years unless it is found necessary to remove them prematurely following disciplinary proceedings against them or their conviction in a criminal offence or in a case of corruption or if the incumbent is otherwise incapacitated from discharging his responsibilities. This would be subject to promotion and retirement of the officer.” 4. On the basis of the said direction, the Ld. counsel for the Petitioner submits that the Petitioner being on the post of the DSP, is someone who is on operational duties on the field and, therefore, the only manner in which he could be removed before the expiry of two years if; (i) There was a disciplinary proceeding against the Petitioner or (ii) he was convicted in a criminal offence or (iii) in a case of corruption and (iv) if he was otherwise incapacitated from discharging his responsibilities. 5. The Ld. Counsel for the Petitioner submits that the impugned order does not bring the Petitioner’s transfer under any of these categories and that the transfer of the Petitioner has been effected only because of the change of government and a perceived notion that the Petitioner cannot be just in the discharge of his duties in view of his presumed affiliation to the previous dispensation. Such is the submission advanced on behalf of the Petitioner. Such is the submission advanced on behalf of the Petitioner. Attention of this Court has also been drawn to Annexure P/4, which are the certificates of appreciation issued by the S.P. Singrauli, appreciating the contribution of the Petitioner during the recently concluded elections in the State Legislature. Ld. counsel of the Petitioner has also drawn the attention of this Court to Annexure P/6 which are various orders passed by this court, whereby this Court has either set aside the transfer of the Petitioner on account of being non-compliant of the judgment of the Supreme Court in Prakash Singh (supra) or stay orders of transfer based upon the same judgment. 6. The Ld. Additional Advocate General appearing for the State has submitted that there has been no malice on the part of the State while ordering the transfer of the Petitioner and that he is not being singled out in this and has been just one of the persons who has been transferred out of 152. He has also drawn attention of this Court to various complaints that have been filed and pending against the Petitioner. The details of these cases are given along with the reply of the State at page 12 as Annexure R/12. In all there are fourteen complaints relating largely to the Petitioner not having investigated the cases mentioned therein as per the directions given. Ld. Additional Advocate General has also pointed out that in all these cases except for the last three, notices have been issued to the Petitioner by the erstwhile government and therefore, the allegation of the Petitioner that his transfer is being effected on account of his proximity to the previous political dispensation is untenable. Ld. Additional Advocate General has also submitted that the judgment of the Supreme Court in Prakash Singh (supra) are in the nature of general directions and broad guidelines given to the State to ensure the independence of the Police in the discharge of their functions. He has further stated that the said judgment ought not to be interpreted or read as a Euclidean theorem and decipher the same as laying down hard and fast rules, a departure from which cannot be sustained in the eyes of law. The Ld. He has further stated that the said judgment ought not to be interpreted or read as a Euclidean theorem and decipher the same as laying down hard and fast rules, a departure from which cannot be sustained in the eyes of law. The Ld. Additional Advocate General also submitted that, there may be situations which are not envisaged by direction No.3 of Prakash Singh (supra) and in such exigencies the State cannot have its hand tied by mechanical interpretation of Direction No.3. He has submitted that sufficient leeway must be provided to the State to ensure effective administration in the State which may necessitate the transfer of a Police officer falling in the category of direction No.3 (in Prakash Singh’s Case) for better administration. He has also argued that at the time of passing the judgment in Prakash Singh (supra) it was impossible for the Supreme Court or any other Court to think of all permutations and combinations which may arise at a later date and provide for them specifically. Under the circumstance, according to the Ld. ASG, the said judgment must be interpreted constructively to mean as laying down broad guidelines from which departure can be made if situation so warranted. 7. The Ld. Additional Advocate General has also argued that the Petitioner being a Dirs. is not included in direction No.3 and that those officers sought to be protected by the said directions are officers who are particularly “in charge” of the office of field posting. Under the circumstances, the Ld. Additional Advocate General has submitted that those ranks which are not included in direction No. 3 are not protected by the said direction. He has also referred to direction No.5 which is the establishment of a Police Establishment Board which provides for, according to him, the resolution of issues arising from transfers, by being a forum of appeal for disposing of representations from those Police Officers who feel aggrieved by their transfer before the end of the tenure of two years. 8. The Ld. Counsel for Respondent No.5 has submitted that he has been transferred in the place of the Petitioner at Singrauli and he has already taken charge and that his family has also moved there and that he would be adversely affected if the impugned order, so far as it is applicable to the Petitioner is quashed. Both, the Ld. The Ld. Counsel for Respondent No.5 has submitted that he has been transferred in the place of the Petitioner at Singrauli and he has already taken charge and that his family has also moved there and that he would be adversely affected if the impugned order, so far as it is applicable to the Petitioner is quashed. Both, the Ld. counsel for the Respondent No.5 and the Ld. Additional Advocate General have submitted that if the said order with regard to the Petitioner is quashed the same would open a flood gate of several similar petitions being filed seeking the quashment of the orders of transfer of similarly situated persons. 9. With the consent of the parties, heard finally. Perused the documents filed by the respective parties. At the outset, this Court would examine the judgment of the Supreme Court, on which reliance has been placed by the Ld. Additional Advocate General, which is State of Haryana and others Vs. Kashmir Singh and others (2010) 13 SCC 306 . It was argued that in a similar case, the Supreme Court had allowed the petition filed by the State of Haryana and set aside the judgment of the High Court of Punjab and Haryana passed in CWP No.6941, 7109, 7607, 7665, 7695, 7837, 8010, 8310, 8636, 8704,8814 and 9117/2006, by which petitions filed by the Subordinate Police Officers in the rank of Constables, Head Constables, Assistant Sub-Inspectors and Sub Inspectors challenging their transfer within a period of two years was allowed by the High Court. The challenge to their transfer was in view of the Punjab Police Rules to the extent it was applicable to Constables and Head Constables, on the ground that they could not be transferred outside the district. As far as the ASIs’ and SI’s are concerned it was contended that they could not be transferred outside the Range. The contentions on behalf of the Petitioner were upheld by the Division Bench of the High Court of Punjab & Haryana against which the appeal was preferred before the Supreme Court. In paragraph 10 of the said judgment, the Supreme Court held that the provisions of the Police Act and Rules reveal that the entire Police Establishment under the State Government is one integrated Police Force. Though for better administration, the State had subdivided them into Districts and Ranges. In paragraph 10 of the said judgment, the Supreme Court held that the provisions of the Police Act and Rules reveal that the entire Police Establishment under the State Government is one integrated Police Force. Though for better administration, the State had subdivided them into Districts and Ranges. Thereafter, the Supreme Court referred to Rule 1.5 of the rules and held that Police Officers in question, constitute one Police Force and are liable to be posted anywhere in the State and that the said rule clearly stipulates that no sub division of the force, territorially or by classes affect this principle. Therefore, the Supreme Court held that the Punjab Police Rules provide for transfer from one district to another district or even to another range and that there is no absolute prohibition for doing so. The only caveat added by the Supreme Court was that in such cases, the seniority of the Constables and the Head Constable at the District level and the ASI’s and SI’s in the Range level was to be maintained in the parent district/range despite the transfer. Ld. Additional Advocate General had emphasised much on paragraph 12 of the said judgment in which the Supreme Court had held that transfer ordinarily is an incidence of service and the Court should be very reluctant to interfere in transfer orders as long as they are not clearly illegal. It further held that transfers and postings of Policeman must be left to the discretion of the State authorities concerned, which are in the best position to assess the necessities of administrative requirement of the situation and thereafter, it concluded by holding that, transfers are purely administrative matters and that it is well settled that Courts must not ordinarily interfere in administrative matter and should maintain judicial restrained. 10. After having drawn the attention of this Court to the aforementioned Judgment, the Ld. Additional Advocate General has summed up that here also it is purely a transfer which has been done for the purpose of administrative exigency and that there is no malice against the Petitioner or any of the other transferees and that the judgment of the Supreme Court in Prakash Singh’s case (supra) does not come in the way of the impugned order. 11. The crux of the case lies in the judgment of the Supreme Court in Prakash Singh (supra). 11. The crux of the case lies in the judgment of the Supreme Court in Prakash Singh (supra). It would be essential to briefly refer to the background of the case in order to appreciate why the Supreme Court considered it necessary to pass the directions in paragraph 31 of the judgment. The petition was filed pro bono public by Mr. Prakash Singh, who was a retired officer of the Indian Police Service and had served in various states for thirty-five years and was the Director General of Police of Assam and Uttar Pradesh, besides serving as the Director General of the Border Security Force. 12. The main reason for filing the said petition before the Supreme Court was on account of the perceived political interference with the functioning of the police which had grossly undermined their efficiency and independence. It was argued before the Supreme Court that the police had been reduced to a mere tool at the hands of their political masters. The Supreme Court, to start with, traced the genesis of the National Police Commission, which was appointed on 15/11/1977. The Commission was called upon to examine afresh the role and performance of the police, both as a law enforcing agency and as an institution protecting the rights of the citizens. The terms of reference of the Commission were wide ranging and required the Commission to define the role, duties, powers and responsibilities of the police with special reference to prevention and control of crime and maintenance of public order. It was also called upon to evaluate the performance in the system, identify the basic need of weaknesses and inadequacies, examine if any changes were necessary in the method of administration, disciplinary control and accountability. The Supreme Court observed that the commission was also required to enquire into the system of the investigation and prosecution, the reason for delay and failure and suggest how the system may be modified and made more efficient and scientific. In all, the Supreme Court observes in paragraph No.3 that eight reports were submitted by the said Commission between February 1979 and May 1981. 13. In all, the Supreme Court observes in paragraph No.3 that eight reports were submitted by the said Commission between February 1979 and May 1981. 13. In paragraph No.5 of the judgment, the Supreme Court observed “in the second report, it was noticed that the crux of the police reforms is to secure professional independence for the police to function fully and efficiently as an impartial agent of the law of the land and, at the same time, to enable the Government to oversee the police performance to ensure its conformity to the law. A supervisory mechanism without scope for illegal, irregular or malafide interference with police functions has to be devised. It was earnestly hoped that the Government would examine and publish the report expeditiously so that the process for implementation of various recommendations made therein could start right away. 14. Thereafter, in paragraph 7, the Supreme Court observes that the recommendations of the National Police Commission were not implemented and that they met the same fate as the recommendations of many other Commissions. It further observes that the petition before it was filed about ten years back and inter-alia it prayed for the issuance of directions to the Government of India to create a new police Act on the lines of the model Act drafted by the Commission in order to ensure that the police is made accountable essentially and primarily to the law of the land and the people. Thereafter, in paragraph 8 the Supreme Court glowingly observes about the antecedents of the first Petitioner Mr. Prakash Singh who, the Supreme Court describes as someone known for his outstanding contribution as a police officer and that in recognition of his outstanding contributions, he was awarded the “Padma Shri” in 1991. 15. In paragraph 11, the Supreme Court dwells into the historical background set out in the petition which gives reasons why the police functioning has caused so much “disenchantment and dissatisfaction”. It also sets out recommendations of various committees which were never implemented. 15. In paragraph 11, the Supreme Court dwells into the historical background set out in the petition which gives reasons why the police functioning has caused so much “disenchantment and dissatisfaction”. It also sets out recommendations of various committees which were never implemented. It further stated that since the misuse and abuse of police has reduced it to the status of a mere tool in the hands of unscrupulous masters and in the process, it has caused serious violations of the rights of the people, the Petitioners contended that there was an immediate need to re-define the scope and functions of the police force and provide for its accountability and implement the core recommendations of the National Police Commission. The Supreme Court, in the same paragraph, also observes that the petition referred to a research paper “Political and Administrative Manipulation of the Police” published in 1979 by the Bureau of Police Research and Development (hereinafter referred to as “BPR&D”) warning that excessive control of the political executive and its principal advisers over the police, has the inherent danger of making the police a tool for subverting the process of law, promoting the growth of authoritarianism, and shaking the very foundation of democracy. 16. In paragraph 12, the Supreme Court holds that commitment, devotion and accountability of the police has to be only to the Rule of Law and that its supervision and control has to be such that it ensures that the police serve the people without any regard, whatsoever, to the status and position of any person, while investigating a crime or taking preventive measures. In paragraph 13, the Supreme Court observes that the Petitioner has prayed that the Union of India be directed to redefine the role and functions of the police and frame a new Police Act on the lines of the model Act drafted by the National Police Commission in order to ensure that the police is made accountable essentially and primarily to the law of the land and the people. Thereafter, in paragraph 31, the Supreme Court, before giving its seven directions has observed “with the assistance of the Ld. counsel for the parties, we have perused the various reports. Thereafter, in paragraph 31, the Supreme Court, before giving its seven directions has observed “with the assistance of the Ld. counsel for the parties, we have perused the various reports. In discharge of our constitutional duties and obligations, having regard to the aforesaid noted position, we issue the following directions to the Central Government, State Governments and Union Territories for compliance till framing of “appropriate legislation”. Ld. counsel for the Respondent No.5 had argued in the course of his submission that the directions given in Prakash Singh’s case have come to an end on account of “appropriate legislations having been made by the State of Madhya Pradesh”. This submission shall be adverted to and discussed elsewhere in this judgement. 17. It is in the aforementioned backdrop of facts that the Supreme Court issued the seven directions to the Central Government, State Governments and the Union Territories. In the backdrop of what has been stated, the court shall now examine the submission put forth by the Ld. Additional Advocate General for the State and see if the directions given in Prakash Singh v. Union of India are in the nature of broad guidelines and not hard and fast directions and that sufficient leeway must be given to the State Government to go beyond the four circumstances given in direction No.3 else, administration of the police in the State would come to a grinding halt. 18. Having examined the judgment thread bare, with great deference to the view put forth by the Ld. Additional Advocate General, this court begs to differ. A run up to paragraph No.31 itself discloses what was working in the mind of the Supreme Court. Its extensive reference to National Police Commission, which was constituted in the year 1977, the eight reports submitted by it between February 1979 and May 1981 and the fact that the said reports were never acted upon and gathered dust and that even the petition in Prakash Singh v. Union of India had been pending for ten years before the Supreme Court before the judgment was passed and the observations of the Supreme Court how the role of the police has been undermined and why it was necessary to issue the directions till appropriate legislation were made, adequately sums up the concern of the Supreme Court with regard to the dismal condition in which the police works in this country. 19. The Ld. 19. The Ld. Additional Advocate General’s submission that judgments cannot be read as statute, is appreciated in the correct prospective by this court. Undoubtedly, the judgments of superior courts are not to be interpreted as statutes. They are not to be considered as Euclidean theorem whereby a strict and a mechanical application of the judgments should be given effect to. Judgments of the Supreme Court elucidate the law where it interprets a statute and in cases like Prakash Singh’s case sets the law to be scrupulously followed by the executive till such time legislation to that effect is brought about. Direction No.3 makes it very clear that a police officer on operational duties in the field shall have a prescribed minimum tenure of two years and from which he can only be removed prematurely if there is (1) disciplinary proceedings initiated against him, (2) he is convicted for a criminal offence, (3) there is a case of corruption pending against him, or (4) he is incapacitated from discharging his responsibilities. These four-condition precedents, have been laid down by the Supreme Court after much deliberation. If the same is not followed in letter and spirit, then the protection given to the police officer on operational duties in the field will be rendered superfluous. 20. The contention of the Ld. Additional Advocate General that there were fourteen notices that were issued to the Petitioner to show cause out of which eleven were during the time of the previous Government and, therefore, there was a necessity to remove him from the said place of posting, cannot be appreciated as none of the show cause notices have culminated in any disciplinary proceedings against the Petitioner. Under the circumstances, the notices that have been issued to the Petitioner allegedly appear to have been on account of lapses in the discharge of his professional duties of not following instructions with regard to investigations in certain cases. None of those cases go to show that any of those notices are in relation to a case of corruption or that the Petitioner is incapacitated from discharging his responsibilities. 21. The other contention of the Ld. Additional Advocate General that the Petitioner being a Dy. SP was not “In-charge” either of a zone, range, district or of a police station which, according to the Ld. 21. The other contention of the Ld. Additional Advocate General that the Petitioner being a Dy. SP was not “In-charge” either of a zone, range, district or of a police station which, according to the Ld. Additional Advocate General, is a condition precedent to be satisfied before the protection of two years continuous service at the place of posting can be accorded to the Petitioner. According to the Ld. Additional Advocate General, the Petitioner being a Dy. SP, his position is in between a Station House Officer and the Superintendent of Police of a district and, therefore, he does not occupy a post where he is In-charge of any field operational duties. Yet again, with great respect, this court begs to differ. Direction No.3 commences with the words “police officers on operational duties in the field” even in the position of a Dy.SP, the Petitioner was on operational duties in the field and this stands is established by the document filed by the State itself in its reply, which is Annexure R/3 at page 12, which is a list of fourteen cases in which notices have been given to the Petitioner. All those cases relate to the conduct of the investigation in criminal cases by the Petitioner. Investigation falls in the category of operational duties in the field as it is not purely administrative. Therefore, even though the Deputy Superintendent of Police and the SDO(P) have been omitted, by necessary implication they were also police officers on operational duties in the field. 22. The judgment cited by the Ld. Additional Advocate General reported in (2010) 13 SCC 306 - The State of Haryana and others v. Kashmir Singh and another would not be applicable as what the Supreme Court in that case was examining was the ambit and scope of the Punjab Police Rules, 1934 in the backdrop of transfer of subordinate police officers in the rank of Constables, Head Constables, ASI’s and SI’s. In that case, the Supreme Court never even considered the applicability of Prakash Singh’s judgment in order to find out whether the transfer of the policemen in that case was legitimate. 23. The Ld. 23. The Ld. Additional Advocate General has submitted that the judgment in Prakash Singh v. Union of India provides for an appeal which can be preferred by the Petitioner before the Police Establishment Board and, therefore, the Petitioner may avail that relief and it would not be necessary for this court to quash the impugned order itself. As regards that option, it is a discretion of the Petitioner whether he wants to exercise the same or not? Besides, in Direction No.5 with regard to the appeal before the Police Establishment Board, the Supreme Court held “it shall also function as a Forum of Appeal for disposing of representations from officers of the rank of Superintendent of Police and above regarding their promotions/ transfers/disciplinary proceedings or were being subjected to illegal or irregular orders and generally reviewing the functioning of the police in the State”. It is clear that the Supreme Court had provided this Forum of Appeal for those officers who are in the rank of Superintendent of Police and above. The said option is not available to officers below the rank of Superintendent of Police. However, the said judgment also does not preclude the Police Establishment Board from entertaining representations of officers below the said rank also, if made to them. However, as already stated herein above, that would be a discretion with the Petitioner. 24. Coming back to the submission of the Ld. counsel for the Respondent No.5 that the directions given by the Supreme Court in Prakash Singh’s case has expired as the same was to be in effect till framing of appropriate legislations. Ld. counsel for the Respondent No.5 has drawn the attention of this court to the order dated 14/02/07 issued by the State Government by which a policy was framed and guidelines put in place in the light of the judgment of the Supreme Court in Prakash Singh’s case with regard to transfers of police personnel. Ld. counsel for the Respondent No.5 has thus submitted that as the said order dated 14/02/07 has been passed by the Supreme Court’s direction that the order shall be in force till the framing of appropriate legislation has been fulfilled and, therefore, the said directions now come to an end. A reference to paragraph No.13 of Prakash Singh’s case would reveal why the said contention is incorrect. A reference to paragraph No.13 of Prakash Singh’s case would reveal why the said contention is incorrect. In paragraph No.13, the Supreme Court held that the Petitioner has sought that the Union of India be directed to re-define a role and function for the police and frame a new Police Act on the lines of the model Act drafted by the National Police Commission. The appropriate legislation that the Supreme Court was referring to in its judgment in paragraph No.31 is the drafting of a new Police Act on the lines of the model Act drafted by the National Police Commission and not of summary orders, circulars and guidelines drafted by the State. Legislature necessarily means a Statute or any Subordinate Legislation made thereunder which creates substantive rights/liabilities and has enforceability in a Court of Law. 25. The judgment of the Supreme Court in Prakash Singh’s case was passed in the year 2006. Precious little has been done since then and the appropriate legislation voiced with great concern and hope by the Supreme Court, still awaits to see the light of day even after the passage of thirteen years. Thus, the directions given by the Supreme Court in Prakash Singh’s case are to implemented in letter and spirit and are not to be seen as mere guidelines to be broadly construed by the State and the courts. 26. The facts in the case also raise another question with regard to colourable exercise of executive discretion. When the law of the land required that the Petitioner ought to be posted at a particular place for a minimum of two years to be removed earlier from there upon any of the four conditions precedent being applicable, and where the Petitioner has been removed before the expiry of the two years without being able to fit the Petitioner under any of the four condition precedents, the question arises whether the discretion has been exercised fairly? In Uddar Gagan Properties Limited v. Sant Singh and others (2016) 11 SCC 378 the Supreme Court held in paragraph No.23 “it is well-settled that the use of power for a purpose different from the one for which power is conferred is colourable exercise of power. Statutory and public power is trust and the authority on whom such power is conferred is accountable for its exercise. Fraud on power voids the action of the authority. Statutory and public power is trust and the authority on whom such power is conferred is accountable for its exercise. Fraud on power voids the action of the authority. Malafides can be inferred from undisputed facts even without naming a particular officer and even without positive evidence. In the present case, abuse of power in dealing with matters by functionaries of the State is more than clear as rightly found by the High Court. Challenge to acquisition may not be confined to those who have not accepted the amount of compensation or consideration. Once such order/transaction is vitiated, there could be no estoppel on the ground that compensation/consideration has been received, as the land loser has little choice in the face of acquisition”. The Supreme Court clearly lays down that the executive is clothed with the power of discretion, but the same is held in trust and the authority on whom such power is conferred is accountable for its exercise. Where the Supreme Court in Prakash Singh’s case had given detailed directions having the force of law till legislation was brought about, in such a situation, the power to transfer the Petitioner before the end of two years of his tenure, though done with authority, has been exercised in derogation to the four conditions laid down in direction No.3 of Prakash Singh’s case. In such a situation, a right accrued to the Petitioner, though not an absolute right, not to be transferred before the end of two years. If the same was sought to be departed from, it was essential for the authority to at least issue notice and hear him. The manner in which the order has been executed clearly reveals that it is a colourable exercise of the discretion vested in the Executive. 27. Ld. Additional Advocate General has also submitted that the order of transfer of the Petitioner does not reveal any malice and neither has malice been averred in the petition. The said submission is partly correct. Malice can be malice in law or malice in fact. Where Malice in Fact is specific, it needs to be pleaded in the petition against a particular person whose action is indicted. Malice in Law is affected by the very non-observance of the law while passing an order. The said submission is partly correct. Malice can be malice in law or malice in fact. Where Malice in Fact is specific, it needs to be pleaded in the petition against a particular person whose action is indicted. Malice in Law is affected by the very non-observance of the law while passing an order. In this regard, the judgment of the Supreme Court in Ratnagiri Gas and Power Pvt. Ltd. v. RDS Projects Ltd. and others (2013) 1 SCC 524 is relevant. With regard to the same proposition, the judgment of the Supreme Court in Srinivasa Cooperative House Building Society Ltd. v. Madam Gurumurthy Shastri and others (1994) 4 SCC 675 is relevant. In paragraph No.13, the Supreme Court held “………It would, thus, be clear that when an act is done by the State under colour of authority of law it must be for the lawful purpose envisaged under the Act. If the purpose, namely, public purpose envisaged under the Act is not served then the exercise of the power of the declaration under section 6 must be held to be colourable exercise of the power, though not with evil motive”. Thus, the Supreme Court makes it clear that where authority is vested in a particular office, its exercise same may be bad in law even though there was no malice, if the power was exercised for a purpose which was not lawful. 28. Under the circumstances, the directions given by the Supreme Court in Prakash Singh’s case has the force of law and has to be observed in letter and spirit. The protection that has been given in direction No.3 of the said judgment is available to the Petitioner herein who admittedly has not completed his tenure of two years at Singrauli. 29. Thus, the impugned order being bad in law is set aside so far as it relates to the Petitioner, and the petition is finally disposed of.