The State of Andhra Vs. Gaddam
Venkatappayya [1960] INSC 278 (8 December 1960)
AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR
P.(CJ) DAS, S.K.
SARKAR, A.K.
MUDHOLKAR, J.R.
CITATION: 1961 AIR 779 1961 SCR (3) 45
ACT:
Police Service-Officiating
Sub-Inspector-Order of reversion as Head Constable-Validity-Rules rotating to
the Madras Police Subordinate Service, rr. 3, 4 and 5.
HEADNOTE:
The respondent, holding the substantive rank
of a Head Constable in the Madras Police Service, was promoted to officiate as
a probationary Sub-Inspector and, on the completion of the period of probation,
placed in the category of approved probationers for confirmation when
substantive vacancies arose. Instead of being confirmed he was, for administrative
reasons, reverted to his substantive post as the number of vacancies in the
post of SubInspectors was not sufficient to include him. Having failed to
obtain redress from the Government, he moved the High Court under Art. 226 of
the Constitution.
Annexure 1 of r. 3 of the service rules
provided that the percentage of promotions from therank of Head Constable to
that of Sub-Inspector was to be "upto not more than 30% of the
cadre", but provided no limitation for direct recruitment, r. 4 provided
that no vacancy shall be filled by the appointment of a person who had not yet
commenced his probation when an approved probationer or a probationer was
available; cl. (a) of r. 5 provided that, for want of vacancy, the probationers
were to be discharged first in order of juniority and thereafter the approved
probationers in order of juniority and cl. (b) provided that this order of
discharge might be departed from in cases involving, among others, exceptional
administrative inconvenience.
The Single judge, who heard the matter, held
that there was a violation of r. 3 of the Service Rules and directed the State
not to give effect to the order of reversion if by virtue of his seniority he
could be included within the 30% prescribed for rank-promotees by that rule.
The Division Bench, on appeal, disagreed with the trial judge as to the scope
of r. 3 but dismissed the appeal holding that the rule as to juniority
prescribed by r. 5 of the service rules had not been strictly observed. The
State filed an appeal on a certificate granted by the High Court.
Held, that the words "upto and not more
than 30% Of the cadre" in the Annexure 1 to r. 3, construed in the context
of the provision relating to direct recruits which prescribes no limitation,
clearly fix 30 as the maximum percentage of promotions 46 from the rank of Head
Constables to the post of SubInspectors and leave the appointing authorities
free to adopt any other percentage below that figure. There could, therefore,
be no infraction of the rule if the percentage of rank-promotees was less than
30% of the total number of the Sub-Inspectors on' the date of the reversion in
question.
Rule 4, which regulates the right of
probationers and approved probationers to confirmation, applies only to the
stage prior to confirmation when the integration of the rank-promotees and the
direct recruits takes place so as to form a united service and the proportion
prescribed by r. 3 has effect. That rule has to be separately applied to thetwo
classes and, consequently, there was no violation of that rule in appointing
direct recruits to substantive posts in preference to the respondent.
Under r. 5(a) the juniority for purposes of
reversion has, on the same reasoning, to be determined separately for the
direct recruits and the rank-promotees who constitute separate classes.
Even otherwise, the impugned order could be
sustained under r. 5(b) in view of the case of administrative inconvenience
made by the Government and accepted by the Courts below.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 506 of 1957.
Appeal from the judgment and order dated July
21, 1955, of the High Court of Andhra, Guntur, in Writ Appeal No. 122 of 1954.
K. N. Rajagopala Sastri and D. Gupta, for the
appellant.
T. V. B. Tatachari, for the respondent.
1960. December 8. The Judgment of the Court
was delivered by AYYANGAR., J.-This appeal by the State of Andhra is from the
judgment of the High Court, Andhra, dated July 21, 1955, on a' certificate
under Art. 133(1) (c) of the Constitution.
The respondent joined the Madras Police Force
as a Constable on September 1, 1939. He became a permanent Head Constable in
1946 and was promoted to officiate as a Sub-Inspector on October 1, 1947, when
his probation commenced. By order dated September 24, 1950, he was declared to
have satisfactorily completed his period of probation and was brought to the
"A" list with effect from September 10, 1950.
He 47 was still merely officiating as a
Sub-Inspector, the effect of his being placed in List "A" being that
he came into the category of an "approved probationer", i.e., fit for
being confirmed as Sub-Inspector when substantive vacancies arose.
On August 3, 1952, the District
Superintendent of Police, Krishna, issued an order reverting the respondent to
the rank of Head Constable with effect from August 14, 1952, i.e., to the post
which he substantively held, for the reason that there was not a sufficient
number of vacancies in the post of Sub-Inspectors for being filled by him. It
may be mentioned that such reversion was not confined to the respondent alone
but extended to 'a very large number of officiating Sub-Inspectors, who were
similarly promoters from the rank of Head Constables. The reverted officers
petitioned to the Inspector-General of Police and in reply thereto and in
further explanation and clarification of the reasons for the reversions the
Inspector-General of Police, Madras, issued a memorandum on January 15, 1953,
in the following terms:
"MEMORANDUM.
Sub: Officiating Sub-Inspector Reverting as
Head Constables-Seniority over direct recruits Petitions.
As direct recruits are recruited against
vacancies specially reserved for them and cannot be reverted for want of
vacancies, seniority between directly recruited SubInspectors and promoted
Sub-Inspectors should be determined separately. Their contention that they
should not have been reverted in preference to direct recruits is not,
therefore, correct. Their reversion as Head Constables is in order." The
respondent thereafter submitted a memorial to Government in which the principal
challenge was to the view of the Government that the directly recruited
Sub-Inspectors formed a category distinct from the promotee-Sub-Inspectors as
not being countenanced by the relevant rules relating to the constitution of
the Police Establishment. Not having obtained any redress by reason of his
memorial, the respondent 48 filed before the High Court of Madras a petition
under Art.
226 of the Constitution (Writ Petition No.
524 of 1953) and prayed therein that the State of Madras may be directed by the
issue of a writ of mandamus to refrain from enforcing the order reverting him
as Head Constable but to consider his claim to be confirmed as Sub-Inspector on
the basis of his seniority in the list of approved probationers.
Balakrishna Iyer, J., who heard the petition
allowed it and issued a direction to the State "to forbear from giving
effect to the' order of reversion if the petitioner by virtue of his seniority
among promoters can be included in the 30 per cent. already referred to".
We shall be dealing in detail with the nature and scope of the rule as to the
30 per cent. referred to here, which formed the basis of the learned Judge's
order in its proper place and will not interrupt the narration of the events which
have led to the appeal now before us. The State preferred an appeal from this
judgment which was transferred to the High Court of Andhra after that Court.
was formed. The learned Judges who heard the appeal differed from the learned
Single Judge in his view as to the scope of the rule as to 30 per cent. but
dismissed the appeal holding that the Government in directing the reversion of
the promotee-probationers had not observed strictly the relevant rule as to
juniority prescribed in rule 5 of the Service Rules, to which rule we shall
refer in due course. The State of Andhra thereafter moved the High Court for
the grant of a certificate and having obtained it, has filed this appeal.
Though in his petition under Art. 226 filed
before the High Court of Madras, the petitioner had alleged that his reversion
from the officiating post of Sub-Inspector to his substantive post as Head
Constable was a reduction in rank within the meaning of Art. 311(2) of the
Constitution, i.e., a reduction by way of punishment effected without giving
him an opportunity to show cause therefor, this contention was abandoned early
in the proceedings before the Court and the case has proceeded throughout on
both sides on the footing that the reversion was effected solely for
administrative 49 reasons and not for any misconduct by way of punishment.
Indeed, it may be mentioned that when the
respondent was normally due for promotion to the substantive post of SubInspector-without
reference to the judgment of the High Court-he was duly promoted to that post
and he now occupies the post of a Sub-Inspector drawing the increments and
salary fixed therefor.
Article 311(2) being out of the way. the
questions that arise fall under two heads: (1) Was there a violation of the
Service Rules when the respondent was reverted as Head Constable? (2) If there
was such a violation, do breaches of Service Rules by themselves constitute an
infringement of the legal rights of officers to whom they apply, entitling them
to seek remedies therefor before Courts.
The rules on the construction of which the
answer to the first point depends are those framed, inter alia, under s.
243 of the Government of India Act, 1935,
entitled "Rules relating to the Madras Police Subordinate Service".
Rule 3 which relates to recruitment and which was held to be violated, by the
learned Single Judge ran in these terms:
"Rule 3. Method of appointment and
promotions:(a) Appointment to the several classes and categories shall be made
as indicated in Annexure 1.
ANNEXURE I Category 2 Method of Limitation
Appointing appointment authority (1) (2) (3) (4) Sub-Inspecsil mofustors Promotion
Up to not In the from Head more than the D.I.G.
Constables 30% of the Police concerned Cadre Direct
recruitment Nil do This is followed by rules 4 and 5 which read:
"Rule 4. Right of probationers and
approved probationers to appointment to vacancies:-A 7 50 vacancy in any class
or category shall not be filled by the appointment of a person who has not yet
commenced his probation in such class or category when an approved probationer
or a probationer therein is available for such appointment." "Rule 5.
Order of discharge of probationers and approved probationers:(a) The order in
which probationers and approved probationers. shall be discharged for want of
vacancies shall be first, the probationers in order of juniority;
and ,second, the approved probationers in
order of juniority.
(b) The order of discharge laid down in subrule(a)
may be departed from in cases where such order would involve excessive
expenditure on traveling allowance or exceptional administrative
inconvenience." The other rules merely carry out the principles underlying
those extracted and do not need to be set out.
To appreciate the points urged before us by
the learned counsel for the appellant-State on the proper interpretation of
these rules, it is necessary to set out the contentions respectively urged by
the two parties in the Courts below and how they were dealt with. On behalf of
the respondent the points urged were:
(1) That on a proper construction of Rule 3,
promotee-SubInspectors referred to in departmental parlance as rank promotees,
as distinguished from those directly recruited were entitled to be appointed to
a minimum of 30 per cent.
of the cadre strength and that this rule was
violated in that at the time of the respondent's reversion the force consisted
only of less than 25 per cent. of rank-promotees and more than 75 per cent. of
those directly recruited. If the rule as to the proportion of appointments as
laid down in Rule 3 had strictly been followed there would have been no
necessity for reverting the respondent as Head Constable.
(2) The3O per cent. and the 70 per cent. laid
51 down in r. 3 applied only at the stage of the initial recruitment of Sub-Inspectors
and that when once that recruitment was made and the probation of the officers
started, no difference could under the rules be thereafter made between the two
classes of appointees but that both of them constituted one unified force the
members of which were entitled to be appointed to substantive posts as full
members of the Service solely on the basis of their inter se seniority (apart
from misconduct or inefficiency, etc.). The appointment to substantive posts of
officers directly recruited in preference to persons like the respondent whose
probation had commenced at an earlier date was therefore a violation of r. 4 of
the Service Rules.
(3) If at any time the cadre strength was
reduced by the abolition of temporary posts there might have, to be reversions,
but in reverting officers the rule as to juniority laid down by r. 5(a) had to
be strictly followed.
This rule made no distinction between
Sub-Inspectors appointed directly and rank-promotees. Both formed a single
category and among them those who had not completed their probation had to be
reverted first and thereafter the approved probationers in the order of their
juniority. In the present case the respondent urged that approved probationers
like himself who were senior to several of the officiating Sub-Inspectors
directly recruited had been reverted out of turn in violation of r. 5(a).
(4) If in the circumstances stated by the
Government (which would be mentioned later), the directly recruited Sub Inspectors
could not properly be reverted because of the assurances given to them,
Government were bound to retain all rank-promotee approved probationers as
officiating Sub Inspectors until they could be appointed in substantive
vacancies as full members thereof.
In answer to these contentions the case which
the State put forward was as follows:(1) The rule as to the proportion between
the rank promotees and direct recruits laid down by r. 3 read with the
Annexure, fixed only the maximum percentage of rank promotees. The words
"up to, not 52 more than" meant and could in the context mean only,
that the maximum proportion of rank-promotees could be only 30 per cent. This
was made clear by there being no limitation placed on the proportion of direct
recruits. In other words, the 30 per cent. was the ceiling fixed and not any
minimum and the rule in effect guaranteed direct recruits a minimum proportion
of 70 per cent. There was therefore no violation of this rule when the,
proportion of rankpromotees fell to a little below 25 per cent. at the relevant
date.
(2) Even if r. 3 had been strictly followed
the respondent would have derived no benefit from the operation of that rule
because he was well below the level of rank-promotees who would even then had
to be absorbed. It may be mentioned that it was because of this feature that
the order of Balakrishna lyer, J., took the form of directing the
Government" to forbear from giving effect to the order of reversion if the
petitioner by virtue of his seniority among promotees can be included among 30
per cent." (3) On a proper construction of the rules, the proportions laid
down in r. 3 applied whether or not at the stage of the initial recruitment,
certainly at the stage of appointments to substantive posts, i.e., absorption
as full members of the permanent strength of the cadre. It was their further
contention based on the above, that for considering confirmations provided for
by r. 4 the category of direct recruits had to be treated as a class different
from the category of rank-promotees and there was no question of seniority as
between members of the two groups but only within each group. On this basis the
State Government urged that at the stage of absorption governed by r. 4 the
rule as to proportion had to be worked out and that consequently there had been
no violation of that rule.
(4) There had been no violation of r. 5
either, on two grounds (1) based on denying that there was a unified category
of Sub-Inspectors and in putting forward that the two classes which made up the
Service, viz., direct recruits and rank-promotees formed 53 different
categories, and (ii) that even if they formed a single category of officers
after their initial appointments, there had been no violation of the rule fixed
for reversion by r. 5(a) by reason of the special circumstances of the case
which brought their action within the specific provision in r. 5(b). In
connection with this last submission it was pointed out that at the time of the
police action in Hyderabad a large number of persons were recruited direct as
Sub-Inspectors to whom an assurance had been given that they would not be
reverted. A large number of such temporary appointments were made and these
directly recruited Sub-Inspectors had to be provided with posts when temporary
posts were getting abolished. This introduced an administrative problem which
could be solved only by reverting the rank-promotees.
We shall now proceed to a consideration of
the points thus in controversy between the parties and which were urged on
either side before us. The first point to be dealt with is as to whether there
had been an infraction of r. 3 of the Service Rules by reason of the proportion
of rank-promotees being less than 30 per cent. of the total number of Sub Inspectors
in service at the date of the respondent's reversion. As has already been
pointed out, the learned Single Judge had rested his decision in favour of the
respondent on an infraction of this rule, but the learned Judges of the High
Court in appeal had taken a different view. Learned Counsel for-the respondent
sought to support the view that the words "up to, not more than 30 per
cent" in the rule meant up to a minimum of 30 per cent. the effect of the
addition of the words " not more than" being merely to eliminate
fractions and permit the number to be rounded off to the nearest lower integer.
It would be seen that the learned Single Judge had stressed the use of the
words "up to" and practically gave no effect to the words " not
more than" in arriving at the construction that he adopted. We consider
that this construction is erroneous, particularly in the context of the
provision as regards direct recruits, in regard to whom there is no limitation
placed on the proportion which they 54 could have in the Service. Taken in
conjunction with this provision it is clear that the words "up to, not
more than" merely fix the maximum percentage of rank-promotees in the
category, leaving it to the appointing authorities to adopt any percentage
below this figure. We consequently endorse the view which the learned Judges of
the Andhra High Court took in dissenting from the construction which the
learned Single Judge placed on the scope of r. 3. The reversion of the
respondent cannot, therefore, be challenged on the ground that there had been
an infraction of r. 3 of the Service Rules.
The next question is as to whether r. 4 of
the Service Rules by which confirmations were regulated, had been violated in
promoting the more junior direct recruits to substantive posts in preference to
rank promotees like the respondent who were senior to them in service in the
sense that the latter's probation as officiating Sub-Inspectors commenced
earlier. The application of these rules in the context of the facts of this
case depends largely on whether rank promotees and officers directly recruited
form or do not form the same class or category becoming integrated into, one
Service on their initial appointment to the Service. It is common ground that
the two classes become integrated as members of a unified Service after appointment
as full members of the Service. The point in controversy is limited to the
period between the date of their initial appointment and their absorption as
full members. If up to that date they formed two categories and the seniority
in each group ha,,; to be reckoned separately, the order of the Government
would be perfectly in order and constitute no breach of the rules. But if on
the other hand officers recruited by either of the two modes-promotions from
the rank of Head Constables and Sub-Inspectors directly recruited-form an
integrated and unified force from the very commencement of their appointments,
then on the application of r. 4 confirmations ought to depend on mere seniority
(subject to factors relevant to merit or demerit) as officiating Sub Inspectors
without regard to the manner in which they were originally appointed. Though
the 55 learned Single Judge did not directly pronounce on the effect of r. 4,
the Andhra High Court held that the rule of seniority. prescribed by the rule
had been violated. After expressing their disagreement with the learned Single
Judge in his view that the minimum of 30 per cent. laid down by r.
3 had been violated, they observed:
"Nor does it follow that we can
countenance the argument of the learned Government Pleader that irrespective of
the percentage of promoters on the cadre at a given time, all vacancies can be
filled up, if the Government so chooses, only with direct recruits. We think
that from both the classes of approved probationers, be it direct recruits or
be it candidates from the ranks, selection should be made without any
distinction, provided of course that so far as promotees are concerned the
percentage of 30 is not exceeded. Now, it is admitted by the Government that
the percentage of promotees, was only 24.5 at the time when the petitioner was
sent back as Head Constable. That being so, it cannot be contended for the
State that the ceiling will be exceeded if the petitioner is promoted. As we
read the rules, when once an officer qualifies as an approved probationer, no
distinction can be made between him and a direct recrui t approved
probationer." We are unable to agree with the reasoning or the conclusion
here expressed. It would be seen that the learned Judges have, though tacitly,
accepted the case put forward by the Government, and in our view correctly,
that the integration of the two groups is only after the stage of absorption as
full members of the Service, and that at that stage the rule as to the
proportion laid down in the annexure to r. 3 comes into operation. If the 30%
which is the limit set for rank promotees for absorption as full members is
merely a ceiling imposed for the benefit of direct recruits, as rightly held by
the learned Judges, it is difficult to see how the rule could be Held to be
violated because the proportion of rank promotees confirmed fell below the
figure of 30. We, therefore, consider that there was no violation of the rule
as to seniority 56 prescribed by r. 4 in the appointment of the direct recruits
to substantive posts before the absorption of rank promotees like the
respondent.
We shall next proceed to deal with r. 5 which
deals with the power of Government to effect reversions and the conditions and
limitations prescribed there for.
It would be seen that cl. (a) of r. 5
substantially reverses for the purpose of discharge or reversion the order in
which confirmations are to be made as set out in r. 4. We have held that the
respondent had no right under the rules to insist on his being confirmed, on
the terms of r. 4 read in the light of r. 3. On the same line of reasoning it
would follow that as direct recruits and rank-promotees belonged to distinct
classes the juniority for reversion had to be determined separately for each
class and not on the basis of the two classes forming part of a unified force
before confirmation. If' this test were applied, it cannot be contended that
the reversion of the respondent infringed r.
5(a).
But this apart, the impugned order could also
be sustained on the basis of the provision contained in cl. (b) of r. 5 which
reads:
"The order of discharge laid down in
sub-rule (a) may be departed from in cases where such order would involve
excessive expenditure on travelling allowance or exceptional administrative
inconvenience." In the present case the Government explained their reason
for the order for reversion of rank-promotees in the affidavit which they filed
to the writ petition in these terms:
"His reversion was necessitated by the
fact that a large number of Sub-Inspectors on other duty in Hyderabad State
reverted to this Stat e and that a number of temporary posts created for
special purposes during the disturbed period immediately following the police
action in Hyderabad had to be abolished and that the direct recruited
Sub-Inspectors had necessarily to be absorbed as Sub-Inspectors as they cannot
be asked to work in any lower 57 post being direct recruits to a particular
category, viz., that of the Sub-Inspector.
This reversion of rank-promoted
Sub-Inspectors was rendered absolutely necessary in the exigencies of service
and for administrative purposes and as such, it cannot be deemed to be
arbitrary or contrary to rules or in the nature of punishment as alleged by the
petitioner." It was this circumstance that was stated before the High
Court of Madras in the Writ Petition as that which brought the impugned order
of reversion within "exceptional administrative inconvenience"
provided for by the last words of the rule. The learned Single Judge accepted as
correct the facts stated by the Government as the reason for the reversion,
stating:
"Mr. Seshachalapathi explained that
Government were in a difficult position as a consequence of the members taken
in connection with the police action in Hyderabad. A large number of persons
were directly recruited as Sub-Inspectors on the assurance that they would not
be ousted. I do not suggest that Government should go back on any assurance
that they may have given to these direct recruits. Far be it from me to
encourage anything that might savour of bad faith on the part of
Government...... But I would still say that in order that Government may keep
faith with those whom they recruited directly as Sub-Inspectors they cannot
break faith with or ignore the rights of those who were promoted as
Sub-Inspectors." If the facts were accepted as correct, and we might point
out that their accuracy was never challenged at any stage either in the High
Court or before us, it appears to us that the order of reversion passed would
be justified as being covered by the last words of cl. (b) even if the order
laid down in r. 5(a) were infringed. In these circumstances it is not clear why
the learned Judge should have observed:
"The Government do not rest their case
on Rule 5(b)" when the facts stated by Government and accepted by 8 58 him
brought their action well within the scope of that clause. In their memorandum
of grounds in Writ Appeal No.
122 of 1954 which the State filed to the High
Court the appellants urged: "The learned Judge failed to appreciate the
special circumstances of the situation which rendered the reversion necessary
in the instant case". When the matter was before the High Court of Andhra
the learned Judges observed" The learned Judge stated in his, judgment
that the Government do not rest their case on Rule 5(b)".
In their turn they too accepted the case of
the Government as regards the circumstances which necessitated the order of
reversion and observed: "The Government frankly stated, however, that they
were in a difficult position because of certain measures which they were
compelled to take in connection with the police action in Hyderabad when a
large number of persons were directly recruited as Sub-Inspectors with the
assurance that they would be entertained permanently. In order to keep that
assurance with such persons they were constrained to revert the rank-promotees
but there is no rule which enables the Government to do so." We must
express our dissent from the last sentence extracted above, because r. 5(b) makes
specific provision for an order of discharge laid down in cl. (a) being
departed from in cases where such order would entail "exceptional
administrative inconvenience" and on the facts accepted both by the
learned Single Judge and by the High Court of appeal the words extracted were
attracted.
Before leaving r. 5 there is one other matter
to which we desire to advert and that relates to the observation of the High
Court in the judgment now under appeal which seems to imply that if the
Government found itself in difficulty owing to the assurances given to the
officers directly recruited, they could under the rules have solved it, not by
ordering the reversion of the rank-promotees but by continuing them in their
officiating posts until they could be absorbed as full members of the Service.
This was one of the contentions urged by the respondent and the learned Judges
say:
59 "It seems to us clear that whether
they imposed merely a ceiling or whether there is an obligation upon the
Government to fill up 30 per cent. of the vacancies from among promotees, the
State cannot say, on the facts, before us, that there are no vacancies for
promotees as such." It looks to us impossible to support this view on any
construction of the rules. In effect it means either that temporary posts could
not be abolished, or that approved probationers could not be reverted. The
first alternative could not obviously have been meant and the other is plainly
contrary to the terms of r. 5(a) which makes provision for the reversion of approved
probationers. Of course, as a measure of relief to their subordinates and to
avoid hardship to them Government might retain people in their officiating
posts, but it is quite a different thing to import a legal and enforceable
obligation on their part to do so.
In the view that we have taken that there has
been no breach of the Service Rules in ordering the reversion of the respondent
as a Head Constable, the question as to whether an infraction of a Service Rule
confers a legal right which could be agitated in Court does not arise. We do
not propose, therefore, to consider that question and indeed we did not call
upon learned counsel for the appellant to argue that part of his case.
The appeal is accordingly allowed, the
judgment of the High Court set aside and Writ Petition No. 524 of 1953
dismissed.
In view of the order of the High Court dated
February 3, 1956, by which the appellant was granted a certificate under Art.
133(1)(c) of the Constitution subject to the condition that the respondent would
be entitled to his taxed costs incurred in this Court in any event from the
appellant, there will be an order that the appellant will pay the costs of the
respondents in the appeal, in this Court.
Appeal allowed.
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