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2013 DIGILAW 448 (CAL)

K. A. Karthikeyan v. UNION OF INDIA

2013-07-15

MURARI PRASAD SHRIVASTAVA, SUBHRO KAMAL MUKHERJEE

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Judgment :- Subhro Kamal Mukherjee, J. On the prayers of the learned advocates appearing for the parties, we consider WPCT No.44 of 2013 with W PCT No.127 of 2013 analogously. The writ petitioners are all Assistant Sub-Inspectors. Some of them joined as constables. Thereafter, they were promoted to the post of Head Constable. Finally, they reached to the position of Assistant Sub-Inspectors. The Administration issued an advertisement to fill up 56 posts of Sub-Inspectors by direct recruitment. The Andaman and Nicobar Police Manual, 1963, came into effect from June 01,1963 Under chapter 1 of the Part-I of the said regulation, the administration of the Andaman and Nicobar Police vests with the Inspector General of Police. Chapter 2 of the said regulation provides that appointments to the posts of the ranks of upper subordinates are to be made by the Inspector General of Police, normally by promotion, but, there shall be no bar to fill up those vacancies either by direct recruitment or by securing the services of suitable officers on deputation if the Inspector General of Police considers the same desirable in the interests of efficiency. Under regulation 2.3 the minimum educational qualification for direct appointment to the rank of Sub-Inspector shall be a degree of a recognised university and that to the rank of Assistant Sub-Inspector shall be higher secondary, pre-university or equivalent standard, with good knowledge of English and Hindi. Regulation 5.1 provides that promotion from one rank to another and from one grade to another shall be made by selection tempered by seniority, efficiency, honesty and general conduct shall be the main factor governing the selection. However, where specific qualification in the nature of training course or practical experience is required, the same shall, also, be carefully considered in each case. Under chapter 5 for promotion in the regular executive force seven lists shall be maintained by the Superintendent of Police. In one such list, that is, the list D, names of the Assistant Sub-Inspectors considered fit for promotion as Sub-Inspector are maintained. Under chapter 5 for promotion in the regular executive force seven lists shall be maintained by the Superintendent of Police. In one such list, that is, the list D, names of the Assistant Sub-Inspectors considered fit for promotion as Sub-Inspector are maintained. Under Regulation 5.6, which was amended subsequently, no Sub- Inspector shall be considered eligible for promotion to the selection grade unless he has put in at least five years service in the rank of Sub- Inspector and, unless he is fully efficient and competent to hold the charge of a police station of importance or he is fully efficient and competent to hold the charge of a platoon as platoon commander. In the said regulation, although, minimum period of five years was prescribed as the eligibility criteria for promotion of a Sub-Inspector to the selection grade, there are no such criteria for promotion of an Assistant Sub-Inspector to the post of Sub-Inspector. Under Section 12 of the Police Act, 1861, the Inspector General of Police is empowered to frame such orders and rules, from time to time, as he shall deem expedient, in relation to the organisation, classification and distribution of the police force. But, all such orders and rules are subject to the approval of the State Government. The Inspector General of Police issues standing order No.2544 dated March 27, 2000, deciding induction of young officers in police through direct recruitment in the rank of upper subordinates so as to meet the growing challenges of the modern world. He suggests that in the Andaman and Nicobar Islands Police Service, direct recruitment was primarily confined to the rank of constables and 57% per centum of staff in the said rank was below matriculates. Only 25% per centum were matriculates. He holds that when a constable becomes Head Constable and later Assistant Sub-Inspector and, thus, becomes eligible for promotion to the post of Sub-Inspector, he is over-aged for undertaking heavy field duty, especially, that of Station House Officer or In-charge of outposts. In the said standing order, it was suggested that 50% per centum of the vacancies in any recruitment year would be filled up by selection from amongst the qualified candidates by method of direct recruitment. In the said standing order, it was suggested that 50% per centum of the vacancies in any recruitment year would be filled up by selection from amongst the qualified candidates by method of direct recruitment. Remaining 50% per centum of the vacancies occurred in any recruitment year would be filled up by promotion from amongst the departmental Assistant Sub-Inspectors on the basis of senioritycum-fitness, provided at the time of consideration, the Assistant Sub-Inspector concerned must complete five years qualifying service as Assistant Sub-Inspector and successfully completed a course of training for Sub-Inspector from the Police Training College. The Inspector General of Police issued standing order No.15092 dated December 10, 2001, which provides 50% per centum of the vacancies in the rank of Sub-Inspector shall be filled in by selection by direct recruitment and 50% per centum of the vacancies shall be filled up by promotion amongst the departmental Assistant Sub-Inspectors on the basis of seniority-cum-fitness. It is provided that this method of appointment as provided in standing order No.2544 would be adhered to in future appointment of Sub-Inspectors. The standing order No.15092 dated December 10, 2001 was amended by issuing standing order No.156 dated January 09, 2004. Certain reservations were provided. By way of such amendment, 10% per centum of direct recruitment is reserved for departmental candidates in group-C category from various units of the Andaman and Nicobar Police, that is, executive branch, fire service, island communication etc., who have completed five years regular service and possessing prescribed educational qualifications and physical standard. The age limit was fixed at 37 years. The reservation quota in direct recruitment as prescribed by the Government of India’s guidelines, including for sports persons, shall be maintained. 10% per centum of direct recruitment was reserved for wards of police personnel killed in the performance of duties as recommended by the Padmanabhaiah Committee on police reforms. In the standing order No.1075 dated February 24, 2006, it was provided that the departmental candidates, who apply against the reserved quota of the vacancies, need not undergo process of physical measurement and physical endurance tests. However, departmental candidates, who apply against general category, will not be given the above relaxation. In the standing order No.1075 dated February 24, 2006, it was provided that the departmental candidates, who apply against the reserved quota of the vacancies, need not undergo process of physical measurement and physical endurance tests. However, departmental candidates, who apply against general category, will not be given the above relaxation. By issuing the standing order No.9048 dated October 3, 2008, the Inspector General of Police directs that an Assistant Sub-Inspector at the time of consideration of his name must complete minimum five years of regular service and pass the upper school course from any police training institute. The departmental promotion committee for promotion to the post of Sub-Inspectors assembled on September 28, 2010. The departmental promotion committee took into consideration the draft recruitment rules prepared on the recommendations of the Sixth Pay Commission. The Sixth Pay Commission recommended six years experience for promotion from the feeder post to the promotional post. The departmental promotion committee recommended the names of 27 senior-most Assistant Sub-Inspectors for considering promotion to the post of Sub-Inspectors on adhoc basis. However, as none of there commended Assistant Sub-Inspectors possessed the required minimum qualifying service of six years, it was decided to take up the matter with the Administration for seeking approval of the competent authority for relaxation. Subsequently, however, the recruitment rules for the post of Sub- Inspector (Executive) have been framed and notified on August 29, 2011, inter alia, prescribing minimum qualifying service of six years for promotion. Ms. Anjili Nag, learned advocate appearing in support of these writ petitions, submits that in the WPCT No.44 of 2013 the challenge is both to the proposal of direct recruitment in the post of Sub-Inspectors and imposition of minimum five/six years eligibility criteria for promotion from the cadre of Assistant Sub-Inspector. In WPCT No.127 of 2013, the imposition of five/six years qualifying service is challenged. Ms. Nag strenuously argues that the Administration cannot impose the condition of five years or six years qualifying service for promotion from the post of Assistant Sub-Inspector to Sub-Inspector contrary to the Police Manual. Further, Ms.Nag submits there cannot be any direct recruitment in the post of Sub-Inspector prior to the framing and notification of the recruitment rules in the post of Sub-Inspector (Executive) on January 30, 2011, that is, when the recruitment rules of 2010 was notified. Further, Ms.Nag submits there cannot be any direct recruitment in the post of Sub-Inspector prior to the framing and notification of the recruitment rules in the post of Sub-Inspector (Executive) on January 30, 2011, that is, when the recruitment rules of 2010 was notified. She submits that all vacancies prior to January 30, 2011 are to be filled in according to the Police Manual. Mrs. Nag submits that the departmental promotion committee while considering the promotions considered the standing orders including the standing order of 2008, but, the standing orders are not in existence in the eye of law. The departmental promotion committee ought to have followed the Police Manual only. She submits that all the standing orders were illegal as they were not approved by the State Government. She suggests that as this is a Union Territory, all the standing orders ought to have been approved by the Lieutenant Governor. In support of her contention she cites an unreported decision of the Division Bench in W PCT No.251 of 2011 (Shri Paritosh Malo –versus- The Union of India and others) dated March 16, 2010. The Division Bench in Paritosh Malo (supra) held that the standing orders could not be given effect to in the absence of approval as required under section 12 of the Police Act, 1861. She, also, cites another unreported decision dated February 28, 2007, in the case of W PCT No.143 of 2006 ( Union of India and others –versus- Anoop Singh ), where the Division Bench of this Court observed that unless and until the posts are created and sanctioned and the recruitment rules are amended, intermediary posts could not have come to effect. Ms. Nag finally submits that assuming that the standing orders are lawful for the sake of argument, though not admitting, the standing orders were issued without any application of mind inasmuch as there is no finding by the Inspector General of Police that efficient Assistant Sub- Inspectors are not available for promotion to the post of Sub-Inspectors and the direct recruitment is, therefore, desirable in the interests of efficiency. Mr. Santosh Kumar Mandal, learned Government Pleader, on the contrary, submits that in the W.P.C.T. No.127 of 2013, the decision of the authorities to recruit 50% per centum of the Sub-Inspectors by way of direct recruitment was not challenged. Mr. Mr. Santosh Kumar Mandal, learned Government Pleader, on the contrary, submits that in the W.P.C.T. No.127 of 2013, the decision of the authorities to recruit 50% per centum of the Sub-Inspectors by way of direct recruitment was not challenged. Mr. Mandal submits that the concept of direct recruitment is not unknown in the police manual. Mr. Mandal submits that the original applications were filed in April, 2012 challenging the standing orders issued by the Inspector General of Police in 2008. Therefore, the applications were time barred. Mr. Mandal draws our attention to regulation 5.1 of the Police Manual and submits that there is emphasis for practical experience for upper subordinate police officers. He, referring to a list, being Annexure R/5 at page 42 of the affidavit-in-opposition in W PCT No.44 of 2013, submits that all the petitioners were promoted as Assistant Sub- Inspectors of police only couple of years back and, thus, they have not gained sufficient practical experience for going to the higher post. Mr. Mandal submits that standing orders were issued under regulation 2.1. This is the power vested with the Inspector General of Police. Approval is routine mater. He submits that had the standing orders been placed before the Lieutenant Governor, the Lieutenant Governor would have immediately approved it. The allegations of non15 approval of the standing orders, is a rouse to stall the entire recruitment drive on technical grounds. He submits that the standing orders were issued from time to time. The first standing order was issued in relation to this matter in 2000. The petitioners were in service when those standing orders were issued. They have never challenged those standing orders prior to April, 2012. Mr. Mandal submits, it is true that the recruitment rules for the post of Sub-Inspector (Executive) was not framed and notified on the date when the departmental promotion committee held its meeting, but, the departmental promotion committee was right in taking into consideration the proposed recruitment rules in the absence of a formal recruitment rules as the draft of the rule was complete and there was a clear intention on the part of the administration to give effect to those rules in near future. Mr. Mr. Mandal, finally, draws our attention to the memorandum dated July 3, 1971 issued by the Superintendent of Police, seeking approval for filling up of at least 50% per centum of the vacancies of Sub-Inspectors by direct recruitment. The Assistant Secretary from the Secretariat of the Chief Commissioner by memorandum dated July 24, 1971 communicated the approval as per the proposal contained in the said memorandum dated July 3, 1971. Therefore, Mr. Mandal submits that as this is a Union Territory, the approval of the Chief Commissioner was sufficient in terms of the provisions under section 12 of the Police Act, 1961. Mrs. Nag submits, in her reply, that the approval sought for was for the particular year. Such approval cannot be utilised for all future appointments. Moreover, she submits that the condition of five years experience in the post of Assistant Sub-Inspector was never approved by the Administration. She submits, further, that draft recruitment rules could not have been considered by the departmental promotion committee when there was an existing recruitment rules, that is, the Police Manual, 1963. The petitioners challenged the action of the authorities to recruit Sub-Inspectors of Police (Executive) by direct recruitment and by imposing the condition of five/six years work experience in the feeder post, as illegal. We are, therefore, of the opinion that merely because the standing orders were issued from time to time, and, the last one was issued in 2008, the original applications filed in April, 2012 before the Central Administrative Tribunal cannot be held to be time barred inasmuch as when the petitioners were affected by action of the Administration, they approached the Tribunal. The meeting of the departmental promotion committee was held on September 28, 2010. The departmental promotion committee could not find eligible candidates in the feeder post as none had work experience of six years. Therefore, the departmental promotion committee referred the matter to the Administration for relaxation. We are informed that the Administration, upon relaxation of the requirements, appointed 17 persons on adhoc basis. The departmental promotion committee could not find eligible candidates in the feeder post as none had work experience of six years. Therefore, the departmental promotion committee referred the matter to the Administration for relaxation. We are informed that the Administration, upon relaxation of the requirements, appointed 17 persons on adhoc basis. In our opinion, we are invited to decide the two questions: A. Whether the Administration, before the promulgation of the recruitment rules, that is, the Andaman and Nicobar Administration (Police Department) Group ‘B’ (Non-Gazetted) posts Recruitment Rules, 2010, could recruit Sub-Inspectors by way of direct recruitment; and B. Whether the Administration was right in imposing condition of working experience of five years or six years for consideration for promotion from the feeder post of Assistant Sub-Inspectors to the post of Sub-Inspectors. We are at one with Mr. Mandal that the concept of direct recruitment was not unknown even in the Police Manual. The Police Manual was framed in 1963. It was felt even that time that there could be direct recruitment or appointment by securing services on deputation basis in the interests of efficiency. In 1971, it was felt that direct recruitment was necessary. Therefore, by memorandum dated July 3, 1971, the Superintendent of Police, who was the then head of the police administration of the Andaman and Nicobar Police, sought for the approval to fill up at least50% per centum of the posts of Sub-Inspectors by way of direct recruitment. The then Chief Commissioner, the Administrator of the Union Territory, felt at one with the said Superintendent of Police and his Assistant Secretary by memorandum dated July 24, 1971 conveyed the approval of the Chief Commissioner of the proposal of direct recruitment. From the reading of the aforementioned memoranda dated July 3, 1971 and July 24, 1971, it is not crystal clear whether this was for the vacancies mentioned in the memorandum dated July 3, 1971 or it was for future too. We have taken into consideration the apprehension expressed by the Inspector General of Police in the standing order No.2544 dated March 27, 2000 that the prevailing security scenario in the country with heightened threats emanating from various militant outfits, fundamentalists, have thrown open new challenges for police. The growing unrest, rise of terrorism and organised crimes, narcotic smuggling etc. We have taken into consideration the apprehension expressed by the Inspector General of Police in the standing order No.2544 dated March 27, 2000 that the prevailing security scenario in the country with heightened threats emanating from various militant outfits, fundamentalists, have thrown open new challenges for police. The growing unrest, rise of terrorism and organised crimes, narcotic smuggling etc. have made the policing highly challenging profession and specialised tasks, requiring services of both experience as well as young energetic, able and talented police personnel. He expressed that the need of the hour has been, therefore, to induct young officers in police through direct recruitment in the ranks of upper subordinates in the Andaman and Nicobar Police so as to meet the growing challenges of the modern world. He noticed that 57% per centum of the staff in the rank of constables is below matriculate, whereas 24% per centum of the staff is matriculate. The constables are promoted to the post of Head Constables and, later, as Assistant Sub-Inspectors of Police. Therefore, it cannot be said that the Inspector General of Police did not apply his mind in proposing to fill up 50% per centum of post by direct recruitment. We have noticed carefully the list referred to by Mr. Mandal being Annexure R/.5. We noticed that none of the Assistant Sub-Inspectors are graduates. When two interpretations are possible, we prefer to adopt the interpretation, which is beneficial to the interest of the security of the State. Thus, we hold that the proposal of the police department to recruit at least 50% per centum of Sub-Inspectors by direct recruitment was approved by the Administration and the approval was not only for the year 1971. The second question is whether the departmental promotion committee was justified in imposing six years qualifying service for promotion to the post of Sub-Inspectors from the post of Assistant Sub-Inspectors. The departmental promotion committee while considering the candidature of the Assistant Sub-Inspectors for promotion to the post of Sub-Inspectors considered the draft recruitment rules of 2011 and noticed that excepting two of the candidates none of the aspirants completed six years of regular service as Assistant Sub-Inspectors of Police in Andaman and Nicobar Islands. The departmental promotion committee while considering the candidature of the Assistant Sub-Inspectors for promotion to the post of Sub-Inspectors considered the draft recruitment rules of 2011 and noticed that excepting two of the candidates none of the aspirants completed six years of regular service as Assistant Sub-Inspectors of Police in Andaman and Nicobar Islands. Mr.Mandal cites a decision in the case of High Court of Gujarat and another –versus-Gujarat Kishan Mazdoor Panchayat and others, reported in 2003 (4) Supreme Court Cases 712, Union of India and another –versus-V.Ramakrishnan and others, reported in 2005 (8) Supreme Court Cases, 394 and Vimal Kumari – versus- State of Haryana and others reported in (1998) 4 Supreme Court Cases 114 in support of his contentions that the departmental promotion committee was justified in taking into consideration the draft recruitment rules when draft rules prepared on the basis of the recommendation of the Sixth Pay Commission were ready and the administration has decided to give effect to such draft rules in near future. The departmental promotional committee sat for consideration in September 28, 2010. The first recruitment rules of 2010 were notified on January 3, 2011 and the second recruitment rules, that is, Recruitment Rules of 2011 was notified on August 29, 2011. In the Recruitment Rules of 2011 the requirements of six years regular service in the grade of Assistant Sub-Inspectors of Police (Executive) was introduced for the first time. The rules were notified in August, 2011. Therefore, it is not possible to hold that the departmental promotion committee on September 20, 2010 took the draft rules of 2011 in consideration expecting that the said draft rules would be approved by the authorities in near future as at the relevant time Rules of 2011 were not drafted as in January 3, 2011 the rules of 2010 were notified. In V. Ramakrishnan (supra), the Supreme Court of India held that the recruitment rules could not be given retrospective operation. The Supreme Court of India in Marripati Nagaraja and others –versus- Government of Andhra Pradesh and others reported in (2007) 11 Supreme Court Cases 522 held that it has been well settled principle of law that the rules, which would be applicable for selecting the candidates would be the one, which had been prevailing at the time of notification for inviting applications for recruitment. The Supreme Court of India in Vimal Kumari –versus- State of Haryana and others reported in (1998) 4 Supreme Court Cases 114, also, held that draft rules lying in nascent state could not be treated as to be the rules made under Article 309 of the Constitution of India and could not legally exclude the operation of any existing executive or administrative instructions on the subject covered by the draft rules. Moreover, it is not true, that there were no recruitment rules in the field prior to the Recruitment Rules of 2010 and 2011. The police manual was operating the field till the said rules were framed. There is no material on record to show that the Administration has ever granted approval of imposition of conditions of six years of regular service in the grade of Assistant Sub-Inspectors of Police (Executive) for consideration for promotion in the grade of Sub-Inspector of Police (Executive) prior to framing of the Rules of 2011. The Apex Court in State of Rajasthan –versus- R.Dayal and others reported in (1997) 10 Supreme Court Cases 419 held that the vacancies to be filled by promotion were to be filled under the rules, which were in operation on the date when the vacancies had occurred. Therefore, till the recruitment rules for recruitment of Sub-Inspector of Police (Executive) came into force, the posts of Sub- Inspector of Police (Executive) are to be filled in 50% per centum by promotion and 50% per centum by direct recruitment, but imposition of condition of six years regular service in the feeder grade could not be imposed in the absence of any provisions in the Police Manual in as much as the Recruitment Rules of 2010 came into operation only in January, 2011. Subsequently, however, the Recruitment Rules of 2010 were replaced by the Recruitment Rules of 2011 with effect from August, 2011. Thus, we hold, in modification of the orders of the Tribunal, that imposition of the condition of six years regular service in the feeder grade by the departmental promotion committee was without jurisdiction. Therefore, the orders impugned stand modified. The recommendations of the departmental promotion committee ignoring the candidature of these petitioners, on the ground of not having six years of regular service in the grade, is set aside. Therefore, the orders impugned stand modified. The recommendations of the departmental promotion committee ignoring the candidature of these petitioners, on the ground of not having six years of regular service in the grade, is set aside. Fortunately, the Administration has given only ad hoc promotions to 17 persons out of 27 persons, who have been selected by the departmental promotion committee. Therefore, no right has, yet, been accrued to the persons, who have been promoted on ad hoc basis The Administration is, therefore, directed to take steps for filling up the posts of Sub-Inspectors (Executive), in accordance with law expeditiously. The writ petitions are, thus, disposed of. We make no order as to costs. Murari Prasad Shrivastava, J. I agree.