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2000 DIGILAW 645 (PAT)

Baidyanath Ram v. State Of Bihar

2000-04-27

AFTAB ALAM, RAVI S.DHAVAN

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Judgment Aftab Alam, J. 1. There are fifteen petitioners before this Court who are posted as Reserve Sub Inspectors and Reserve Inspectors (posts previously known as Sergeant and Sergeant Major respectively). They seek to challenge the notification, dated 26.2.1992 (Annexure 1) introducing certain amendments in the Bihar Police Manual, a Compendium of rules framed under Article 309 of the Constitution. The main challenge is to the amendment in rule 660 by which relaxation is made in academic qualification for promotion from the post of Reserve Inspector, Training (previously known as Subedar) to the post of Deputy Superintendent of Police. In terms of the amended rule it would be sufficient for a Reserve Inspector, Training to be a matriculate only and he need not have passed a degree examination from an Indian University for promotion to the post of Deputy Superintendent of Police. The challenge to the amendment is on the ground that it is calculated to undo a direction given by the Supreme Court on the basis of the statements made before it on behalf to the State Government in Teerth Narain Mallick and others. V/s. State of Bihar and others, AIR 1987 S.C. 1195 : 1987 PLJR (SC)21. 2. This case has a history behind it, which is required to be stated briefly in order to properly appreciate the true scope and nature of the present controversy. Some time in the year 1979 the State Government created 118 posts of Subedars to be filled up on promotion from Jamadars (presently known as Reserve Sub Inspector, Training). The additional 118 posts of Subedar were created professedly because Jamadars had no promotional avenue and it was for that reason that those additional posts were decided to be filled up by promotion only from Jamadars. 3. At that stage 75 persons posted as Sergeants came to this Court in C.W.J.C. No. 3678 of 1979. They made a grievance against their being excluded from consideration for promotion to the newly created posts of Subedars and sought a direction that they should also be taken into consideration for promotion against those posts. It was their case that Sergeants and Jamadars constituted one class in which Jamadars ranked junior to the Sergeants. They made a grievance against their being excluded from consideration for promotion to the newly created posts of Subedars and sought a direction that they should also be taken into consideration for promotion against those posts. It was their case that Sergeants and Jamadars constituted one class in which Jamadars ranked junior to the Sergeants. It followed, therefore, that in case Jamadars alone were considered for promotion as Subedars, which was a post higher than Sergeant, it would be an act of patent discrimination against the Sergeants in as much as following the promotion Jamadars would be put above Sergeants and a Sergeant will have to work under a Jamadar after his promotion as Subedar. It was further stated by the Sergeants that this could also affect their chances of future promotion in the rank of Deputy Superintendent of Police. 4. This Court rejected the claim of the Sergeants and dismissed the writ petition by judgment and order dated April 1, 1980 (Annexure 4). In that judgment though this Court held that the Sergeants and Jamadars did not constitute the same cadre, it found that the apprehensions of the Sergeants concerning the anomalous consequences of giving promotion to Jamadars alone were not wholly unfounded. However, those apprehensions were met on the basis of certain statements made on behalf of the State Government. The State Government stated before this Court that no part of the work of a Sergeant would be required to be performed under the supervision of a Subedar nor would Subedars be the controlling authority of the Sergeants. It was further stated on behalf of the State Government that Jamadars who were promoted to the newly created posts of Subedars would not become eligible by virture of becoming Subedars to earn promotion to the rank of Deputy Superintendent of Police in the State Police Service or to any other higher rank. 5. The Sergeants aggrieved by the judgment and order passed by this Court dismissing their writ petition, went to the Supreme Court in S.L.P. (Civil No. 7440 of 1980). 5. The Sergeants aggrieved by the judgment and order passed by this Court dismissing their writ petition, went to the Supreme Court in S.L.P. (Civil No. 7440 of 1980). It appears that before the Supreme Court also a statement was made on behalf of the State that "there will be no question of promotion from the rank of Subedars to the post of Deputy Superintendent of Police and higher posts" and in view of such statement being made the Supreme Court by order, dated 10.2.1982 (Annexure -5) dismissed the S.L.P. by passing the following order: "Mr. K.G. Bhagat learned counsel appearing on behalf of the Respondent-State states that Subedars will not be given precedence over the Sergeants in the Police Lines or in the Parade Ground and there will be no question of promotion from the rank of Subedars to the posts of Deputy Superintendents of Police and higher posts. The writ petition and the Special Leave Petition are dismissed." 6. It however, appears that later on a prayer made before it the Supreme Court by order, dated 23.9.1986 (Annexure F) recalled its earlier order and directed the S.L.P. to be placed for admission on 16.10.1986. Thereupon the S.L.P. was re-heard and it was finally disposed of by order, dated 10.2.1987 reported as Teerth Narain Mallick & Others V/s. State of Bihar & Others, A.I.R. 1987 S.C. 1195 : 1987 PLJR (SC)21. From that order it appears that the Supreme Court was pursuaded not to put a total prohibition on promotion of Subedars to the rank of Deputy Superintendent of Police and the Supreme Court, accordingly, granted that the Subedars might be in future promoted to the rank of Deputy Superintendent of Police but subject to the condition that they possessed the same educational qualification which was prescribed for Reserve Sub Inspector. The relevant extract from the order of the Supreme Court is re- produced below : "At one stage, the State of Bihar had taken the stand before the High Court that from Subedars further promotion to the rank of Deputy Superintendent of Police would not be admissible, but Mr. Jai Narain pointed out in the course of the hearing before us that to provide such a restriction may not be appropriate. Jai Narain pointed out in the course of the hearing before us that to provide such a restriction may not be appropriate. As we have already pointed out, there would be no necessity of further promotion of Havildars to Jamadars; therefore, the present problem is a passing phase and would not re-occur. Keeping that aspect in view, we think it reasonable and in the interest of the service that the promotional prospect to the post of Deputy Superintendent of Police may not be totally banned for Subedars. On the other hand, the same educational qualification which is prescribed for Reserve Sub-Inspectors should be provided as the requisite qualification for considering the claim of promotion to the rank of Deputy Superintendents out of Subedars. (Emphasis added) 7. It is undeniable that at that time the relevant provision regarding educational qualification as contained in rule 658 of the Police Manual was as follows : 658 (iii). He must have passed the Degree examination of an Indian University or an equivalent examination recognised by the State Government (Appendix 38). He must be able to speak Hindi fluently. 8. It was about five years after the Supreme Court passed the above quoted order that the impugned notification was issued on 26.2.1992 by which a number of amendments were introduced in the police manual one of which related to academic qualification for promotion from the post of Reserve Inspector, Training to the post of Deputy Superintendent of Police. The provision under challenge as it stands after amendment reads thus : Educational qualification for promotion from the post of Reserve Inspector, Training to the post of Deputy Superintendent of Police, shall be similar as in the case of promotion as Inspector from Sub Inspector. 9. It is an admitted position that the educational qualification for promotion from the post of Sub Inspector to that of Inspector is matriculation. In other words, for promotion from the post of Reserve Inspector, training to the post of Deputy Superintendent of Police it is now matriculation which is the requisite qualification in place of passing of a degree examination from an Indian University. 10. In other words, for promotion from the post of Reserve Inspector, training to the post of Deputy Superintendent of Police it is now matriculation which is the requisite qualification in place of passing of a degree examination from an Indian University. 10. According to the petitioners this was intended solely to undo the order passed by the Supreme Court in the case of Teerth Narain Mallick (supra) where the Supreme Court though leaving it open for the Subedars for being considered for future promotion as Deputy Superintendent of Police, had put the rider that the same educational qualification which is prescribed for Reserve Sub-Inspectors should be provided as the requisite qualification for considering the claim of promotion to the rank of Deputy Superintendent of Police out of Sudedars. On behalf of the petitioners it is pointed out that instead of providing the same educational qualification, the State Government flying in the face of the Supreme Court order brought an amendment in the rule providing a lower educational qualification for promotion of Subedars as Deputy Superintendent of Police. 11. It may be noted here that this writ petition was filed in this Court on 7.5.1992 and on 2.7.1992. When it was first taken up for admission this Court passed an interim order prohibiting any promotion contrary to the order given by the Supreme Court. The interim order passed by this Court on 2.7.1992 is reproduced below : "In the meanwhile, no promotion is to be given which would be contrary to any order or direction of the Supreme Court." 12. When this case was taken up for hearing on 26.4.2000 a question arose how far the action of the State Government could be legally justified in introducing an amendment in the set of rules framed under Article 309 of the Constitution which was contrary to the direction of the Supreme Court and which thus sought to undo the direction of the Supreme Court that formed the condition for grant of permission for future promotion of the Subedars to the post of Deputy Superintendent of Police. In other words what the State Government was trying to do was to provide the benefit of promotion to the Subedars on the basis of the permission granted by the Supreme Court but at the same time to abandon the condition attached by the Supreme Court to the permission granted by it. 13. In other words what the State Government was trying to do was to provide the benefit of promotion to the Subedars on the basis of the permission granted by the Supreme Court but at the same time to abandon the condition attached by the Supreme Court to the permission granted by it. 13. For hearing on this question the Court required the assistance of the Advocate General and the matter was adjourned for today. 14. Today when this case was called out the Advocate General plainly stated that he considered the impugned amendment introduced by the notification, dated 26.2.1992 as quite indefensible and he did not propose to defend the amended provision lowering the academic qualification for promotion from the post of Reserve Inspector, Training to the rank of Deputy Superintendent of Police. The Statement made by the Advocate General should have been the end of the matter and one should have thought that in view of the stand taken by the Advocate General this writ petition could be allowed without much ado. But counsel for the private respondents and some intervenors insisted on making submissions in support of the amended rule and wanted the Court to give them a hearing on the plea that certain vested rights had accrued to the respondents and the intervenors. 15. One fails to appreciate the plea of accrual of vested rights. It is already noted that at the very initial stage in the case this Court had directed that no promotion was to be given which would be contrary to any order or direction of the Supreme Court. There is, therefore, no question of any promotion having been given on the basis of the impugned amended rules. Hence, the statement of the Advocate General, coupled with the stay order passed at the very initial stage in this case would leave no scope for any arguments on behalf of the private respondents and the intervenors. 16. Yet this Court heard Mr. Kapildeo Singh, Counsel for private respondents, and Dr. Sadanand Jha, Senior Counsel appearing for the intervenors so that they may not suffer from a feeling of being shut out unheard. 17. Dr. Sadanand Jha submitted that the impugned amendment in the rules was not contrary to the direction given by the Supreme Court in Teerth Narain Mallick (supra) but it was in fact in conformity with the direction. Sadanand Jha, Senior Counsel appearing for the intervenors so that they may not suffer from a feeling of being shut out unheard. 17. Dr. Sadanand Jha submitted that the impugned amendment in the rules was not contrary to the direction given by the Supreme Court in Teerth Narain Mallick (supra) but it was in fact in conformity with the direction. Learned counsel submitted that the Supreme Court order did not state in so many words that the minimum qualification for promotion would be graduation or that a Reserve Inspector, Training (Subedar) must have passed the degree examination for being eligible to promotion as Deputy Superintendent of Police. Learned counsel further submitted that what was said by the Supreme Court was simply that the Subedars must possess the same qualification which was prescribed for Reserve Sub Inspectors for promotion to the rank of Deputy Superintendent of Police. Learned Counsel also pointed out that there were two channels for appointment to the post of Reserve Sub Inspector; one was direct recruitment in which case indeed the candidate was required to possess a Bachelors Degree but the other channel, according to him, was by promotion and through the channel of promotion even a matriculate could become, on promotion, reserve Sub Inspector. According to Dr. Jha in the Supreme Court order the reference to the educational qualification prescribed for Reserve Sub Inspectors could equally be construed as matriculation having regard to the mode of appointment to the post through promotion. 18. The submission is wholly unacceptable to us for more reasons than one. In the case of Teerth Narain Mallick (supra) all the Jamadars promoted as Subedars whose case was before the Supreme Court possessed matriculation qualification and that being so no further condition was required to be attached for their further promotion in future. Secondly, the State Government had been consistently giving this assurances to the Courts (to the High Court and later to the Supreme Court) that the Jamadars promoted as Subedars would not be considered for further promotion in the rank of Deputy Superintendent of Police. It is noted above that on such assurance being given the S.L.P. was earlier rejected by the Supreme Court but the order was later recalled and the S.L.P. was taken up for re-hearing. It is noted above that on such assurance being given the S.L.P. was earlier rejected by the Supreme Court but the order was later recalled and the S.L.P. was taken up for re-hearing. On re-hearing, the Supreme Court agreed not to impose a complete prohibition against further promotion of Subedars in the rank of Deputy Superintendent of Police but while granting permission for future promotion of Subedars, the Supreme Court imposed the condition of parity of educational qualification. It is, therefore, plain and clear to us that the direction of the Supreme Court is not capable of any other meaning and it simply requires that passing the degree examination from an Indian University should be provided as the requisite qualification for considering the claim of promotion to the rank of Deputy Superintendent of Police out of Subedars. 19. As noted above, the Advocate General has plainly declined to defend the impugned amendment and he stated that he considered it to be unsustainable for being contrary to the direction given by the Supreme Court. This writ petition is, therefore, bound to succeed and it is accordingly, allowed. The impugned amendment in the notification dated 26.2.1992 is declared inoperative and unenforceable and the position as directed by the Supreme Court in the decision in Teerth Narain Mallick stands restored. 20. In the result, this writ petition is allowed but with no order as to cost. Ravi S.Dhavan, J. 21 I agree.