Prabhakar & Ors Vs. State of
Maharashtra & Ors [1975] INSC 267 (22 October 1975)
UNTWALIA, N.L.
UNTWALIA, N.L.
GOSWAMI, P.K.
CITATION: 1976 AIR 1093 1976 SCR (3) 315 1976
SCC (2) 890
ACT:
Bombay Police Officers (Combined Cadre)
Conditions of Service Order, 1954-Clause 7(1) (a)-Rule of fixation of seniority
by taking the date of the commencement of training is constitutionally valid,
not discriminatory and does not offend Art. 14 and 16 of the Constitution.
HEADNOTE:
Appointments to the posts of sub-inspectors
(either to the Distt. Police Force or the Police Force of Greater Bombay) in
the State of Bombay, prior to 1st of May 1939, were after a training of 18
months at the Police Training School at Nasik. Between the period 1st May 1939
and 1st of June 1949, a new training school at Naigaum a part of Greater Bombay
was started wherein the period of training varied from 3 to 8 months and after
the short training the cadets were appointed straight away as Sub-Inspectors of
Police in Greater Bombay. Separate seniority lists were maintained for the
Distt. force and the city force. The Nasik school continued to exist side by
side with 18 months training. On the general principle of fixation of seniority
when the combined cadre service order came into force w.e.f. 1-8-54 the two
seniority lists were maintained on the basis of their passing out the training
and in order of merit obtained at the passing examination. After the formation,
when transfers were to be made, a difficulty arose in fixing the inter-se seniority
of the officers appointed after full 18 months training and one appointed after
training for a shorter period and to avoid anomaly and hardship a provision was
made in clause 7 whereby for the purpose of seniority (i) in the case of
officers whose training commenced on any date from 1-5-39 to 1-6-1949, the date
of commencement of the training was taken and (ii) in other cases, the dote of
successful completion of such a course and inter-se the place occupied in the
results of the examination held at the end of such a course was taken.
When the constitutionality of Clause 7(1)(a)
was challenged, the High Court of Bombay declared Clause 7(1)(a) of the order
void, being violative of Articles 14 and 16 of the Constitution on three
grounds:
(1) That the Government had reduced the
period of training at Naigaum School as against the resolution dated April 6,
1940 providing for the establishment of a Training School at Naigaum.
(2) That according to the said clause of the
Order the commencement of the training period of the Mofussil officer was to be
taken for determination of his seniority whereas in case of the officer
belonging to the Greater Bombay Police Force, the date of his appointment was
to be taken and in the opinion of the High Court, this was clearly
discriminatory.
(3) That in case of a cadet whose period of
training had been extended on account of his failure at the examination the
impugned clause gave an advantage even to such a bad officer.
Dismissing the appeal appellant No. 3 and
allowing the appeal of appellants Nos. 1 and 2. the Court ^
HELD: (i) The High Court has committed an
error in the interpretation of the provision contained in clause 7(1) (a) of
the Bombay Police Officers (Combined Cadre) Conditions of Service Order. On
transfer of any police officer from Greater Bombay to the District and
vice-versa, if his training had com- 316 menced on any date between the period
of 1st May 1939 to 1st June 1949 then his seniority was to be determined
vis-a-vis the police officer of the force to which he was transferred with
reference to the dates on which their training commenced. It is not that in one
case it will be the date of commencement of the training and in the other it
will be date of appointment. [319-C-D].
(ii) Ordinarily and generally method of
fixation of seniority as provided in sub-clause (b) of clause 7(1)(a) of the
order was the correct and proper method to be followed.
But because of the special situation of
appointment of some police officers during the period of 10 years on a shorter
period of training, a departure was made as provided in clause (a). There was
nothing wrong, illegal or unreasonable in making a provision in sub-clause (a)
that in such a situation the commencement of the period of training will be
taken as the date for the purposes of fixation of seniority.
There was a reasonable nexus between the
object and the rule. [319-H, 320 A-B] (iii) It was for the rule making
authority to decide and to choose in such a situation-either the date of
commencement of the training or the date of appointment.
Taking the former date in the special
circumstances is reasonable and justified. Such a provision is not violative of
Art. 14 and 16 of the Constitution. [320 B-C] (iv) To hold clause 7(1) as ultra
vires on the ground that it gives any advantage even to such a bad officer
whose period of training had been extended on account of his failure in the
examination may be theoretically correct.
Clause 7(1)(a) was not meant to give any
undue advantage to a non-deserving police officer who failed to pass the
training examination at the proper time. [320 C-D] (v) Clause 7(1)(a) of the
order is constitutionally valid and not discriminatory. [320-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 721 of 1974.
Appeal by Special Leave from the Judgment and
Order dated the 25th August 1972 of the Bombay High Court in Spl. Civil Appln.
No. 1831 of 1968.
V. M. Tarkunde, Sharad Manohar, V. N. Ganpule
and P. C.
Kapoor for the Appellant.
M. N. Shroff for Respondents 1-3.
K. K. Singhvi, R. K. Garg, E. C. Agarwal and
V. J.
Francis for Respondent No. 4.
The Judgment of the Court was delivered by
UNTWALIA, J.-The only point which falls for our determination in this appeal by
special leave is whether clause 7(1)(a) of the Bombay Police Officers (Combined
Cadre) Conditions of Service Order, 1954-hereinafter called the Order, made by
the Government of Bombay in exercise of the powers conferred by clause (b) of
Section 5 of the Bombay Police Act, 1951 is constitutionally invalid being violative
of Articles 14 and 16 of the Constitution of India as has been held by the
Bombay High Court in the Writ Petition filed by respondent no.4.
In the Province or the State of Bombay, there
were two separate police forces-the Mofussil police force governed by the
Bombay District Police Act, 1890 and the City Police of Bombay governed by the
317 City of Bombay Police Act, 1902. Some steps for inter-mixing and
inter-transfer of officers of one force to the other were taken by making some
provisions in Bombay Act XVI of 1949 called the Police Forces (Control and
Direction) Act, 1949. The Bombay Police Act of 1951 repealed the earlier Acts.
Under the Order which came into force on and from the 1st August, 1954,
provision was made in clause 4 empowering the State Government whenever it
thought fit to order the transfer of any police officer belonging to the
combined cadre from Greater Bombay to any District and vice-versa.
The combined cadre was sought to be formed
under clause 3 of the Order. Two separate lists of the officers in accordance
with their respective seniority were, however, maintained even under clause 3
of the Order. Previously there was one Police Training School at Nasik where
cadets for training were sent. The period of their training was 18 months. On
passing out the training the cadets were appointed to the posts of
Sub-Inspectors of Police. Some were appointed to the District Police Force and
some were sent to the Police Force of Greater Bombay. In the year 1939 due to
certain exigencies of administration such as introduction of the scheme of
Prohibition and the impending second World War more Sub-Inspectors were needed
to be appointed for Greater Bombay. A new Training School was opened at Naigaum
a part of Greater Bombay. This new Training School remained in existence for
about a decade from the 1st of May, 1939 to 1st of June, 1949. The period of
training was reduced from 18 months to a much shorter period varying from 3 to
8 months. Thus cadets of particular batches after completion of training for a
shorter period were straightaway appointed as Sub-Inspectors of Police in
Greater Bombay. This went on for a period of about 10 years as already stated.
On the other hand, almost invariably, the training period at Nasik School
remained of 18 months. On the general principle of fixation of seniority, the
two seniority lists which were maintained separately even under the Order, were
maintained on the basis of their passing out the training and in order of merit
obtained at the passing examination. But since after the formation of the
combined cadre under the Order transfers were to be made under clause 4, a
difficulty was felt in the matter of fixation of seniority vis-a-vis the
officer who had been appointed after completion of full training period and the
one who had been appointed on the training of a shorter period. To avoid this
anomaly and difficulty, a provision was made in clause 7 of the Order thus:
"7. (1) When an officer who was in
service immediately before the formation of the Combined Cadre is transferred
under clause 4, his seniority among Police Officers of equivalent ranks in
Greater Bombay or in the Districts, as the case may be shall be determined in
the case of an officer who was appointed to a post either in Greater Bombay or in
the Districts after a course of training at a Police Training School,- (a) if
the training commenced on any date between the period from Ist May 1939 to 1st
June 1949 (both inclusive) with reference to the date on which training
commenced;
318 (b) in other cases, with reference to
successful completion of such a course and inter se the place occupied in the
results of the examination held at the end of such a course." Respondent
No. 4 was a Police Officer appointed in the year 1948 after a short training period
at Naigaum School.
He challenged by a writ application the vires
of the entire Order on certain grounds. He prayed for a direction to
respondents 1 to 3 for not giving affect to the Order and for re-fixation of
seniority. There was some dispute as to the seniority of a police officer
appointed in a regular manner and the one appointed to the police force from
the Excise Department. The High Court allowed the writ application in part,
declared clause 7(1)(a) of the Order as constitutionally invalid and also
directed the adjustment of places of seniority as between the police officers
who came by regular appointments and those who came from the Excise Department.
Some officers of the Department were impleaded as respondents in the writ
application in their respective capacity. The two such officers made parties in
the writ application were respondents 4 and 5 of the Mofussil Police Force.
Respondents 6 and 7 therein were police officers who had come from the Excise
Department. Appellants 1 and 2 in the present appeal are two other police
officers of the Mofussil Police Force and appellant No. 3 is a Police officer
who came from the Excise Department. He was respondent 6 in the writ
application. The order of the High Court made against appellant No. 3 could not
be assailed before us. Appellant No. 3, is not, therefore, entitled to any
relief in this appeal.
So far the case of appellants 1 and 2 is
concerned, it must be noted that the High Court has declared clause 7(1) (a) of
the Order void being violative of Articles 14 and 16 of the Constitution on
three grounds:
(1) That the Government had reduced the
period of training at Naigaum School as against the resolution dated April 6,
1940 providing for the establishment of a Training School at Naigaum.
(2) That according to the said clause of the
Order the commencement of the training period of the Mofussil officer was to be
taken for determination of his seniority whereas in case of the officer
belonging to the Greater Bombay Police Force, the date of his appointment was
to be taken and in the opinion of the High Court, this was clearly
discriminatory.
(3) That in case of a cadet whose period of
training had been extended on account of his failure at the examination the
impugned clause gave an advantage even to such a bad officer.
In our opinion, none of the grounds forming
the basis of the judgment of the High Court is sustainable. The attack on Rule
7(1)(a) was not specifically made in the writ application as originally
presented 319 by respondent No. 4. He laid the foundation for the attack in his
re-joinder application. A counter-affidavit thereafter was filed by the State
stating the facts which led to the framing of clause 7(1)(a). Respondent No. 4
filed a further rejoinder. It was not disputed, rather, admitted on all hands
that at Naigaum School the training period was much shorter than the period of
18 months which continued at Nasik. If during the period of 10 years cadets on
the basis of a shorter period of training were appointed to the Bombay Police
Force without any specific order of the Government (although it must not be the
case) it might have affected the validity of their appointment but not the fact
that they had been so appointed on a shorter period of training.
The High Court has committed an error in the
interpretation of the provision contained in clause 7(1) (a) of the Order. On
transfer of any police officer from Greater Bombay to the District and vice
versa, if his training had commenced on any date between the period of 1st May,
1939 to 1st June, 1949, then his seniority was to be determined vis- a-vis the
police officer of the force to which he was transferred with reference to the
dates on which their training commenced. It is not that in one case it will be
the date of commencement of the training and in the other it will be the date
of appointment, as seems to have been wrongly thought by the High Court. To
explain, we may take an example. Suppose a Sub-Inspector A whose training had
menced-say on 1st April, 1947 resulting in his appointment on 1st on 1st
November, 1947 was transferred to the Mofussil where, let us suppose again, a
police officer B was there whose training had commenced-say on lst April, 1947
resulting in his appointment on 1st October, 1948 then in such a case B will be
senior to A because his training commenced earlier even though he was appointed
later. But if there be an officer, suppose C, in the Mofussil whose training
commenced-say on 1st April, 1947 resulting in his appointment on 1st December,
1948, then he cannot be senior to A by taking 1st June, 1947 as the date of
commencement of his training and comparing with 1st November, 1947 the date of
appointment of A. This interpretation of the rule which we have put was
accepted to be the correct interpretation on all hands including the
Government. Learned counsel for respondent No. 4, however, submitted that the
impugned seniority list had not been prepared by the Government on such an
interpretation of clause 7(1)(a), but the list prepared is on the basis of the
interpretation given by the High Court. On behalf of the State we were informed
that it was not so. We have no doubt in our mind that even if there be any
mistake or discrepancy in the seniority list which is found to be not in
conformity with the interpretation put by us to clause 7(1)(a), then that
mistake or discrepancy will have to be removed sooner than later and the
seniority list will be set at right accordingly.
Ordinarily and generally the method of
fixation of seniority as provided in sub-clause (b) of clause 7(1)(a) of the
Order was the correct and proper method to be followed.
But because of the special situation of
appointment of some police officers during the period of 320 10 years on a
shorter period of training a departure was made as provided in sub-clause (a).
A cadet who received his full training for 18 months at Nasik for no fault of
his was appointed later than a cadet who started training later at Naigaum but
was appointed earlier than the former. There was nothing wrong, illegal or
unreasonable in making a provision in sub-clause (a) that in such a situation
the commencement of the period of training will be taken as the date for the
purposes of fixation of seniority. There was a reasonable and rational nexus
between the object and the rule. It was for the rule making authority to decide
and to choose in such a situation-either the date of commencement of the
training or the date of appointment. Taking the former date in the special
circumstances seems to be reasonable and justified. Such a provision cannot be
said to be violative of Articles 14 and 16 of the Constitution.
The third ground for declaring clause 7(1)(a)
ultra vires given by the High Court theoretically was correct but materials
were placed before us from the various affidavits to show that hardly there was
such a case which had got the advantage of the clause even after failure in the
examination. There was one such case of hardship of not passing out the
examination in time due to reasons beyond the control of the cadet. Clause
7(1)(a), in our opinion, was not meant to give any undue advantage to a
non-deserving police officer who failed to pass the training examination at the
proper time. No specific instance was brought to our notice where such
advantage had been accorded.
For the reasons stated above, the appeal of
appellants 1 and 2 is allowed and that of appellant No. 3 is dismissed.
It is held that clause 7(1)(a), of the order
is constitutionally valid and not discriminatory. The directions given to
respondents 1 and 3 to set right the seniority list by the High Court on the
basis of the alleged invalidity of clause 7(1)(a) of the order is set aside. In
the circumstances, we shall make no order as to costs.
S.R. Appeal allowed in part.
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