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2014 DIGILAW 537 (UTT)

Man Singh Negi v. State of Uttarakhand

2014-11-26

SUDHANSHU DHULIA

body2014
JUDGMENT : Sudhanshu Dhulia, J. 1. The petitioners before this Court are Head Constables and Constables in Uttarakhand Civil Police. Some of the petitioners in Writ Petition (S/S) No. 741 of 2014 have already been given a designation of Sub-Inspectors (Special Category) though according to the petitioners’ counsel Mr. K.P. Upadhyaya for all practical purposes they continue to remain as Head Constables and are also liable to be considered for promotion to the post of Sub Inspector. 2. In both the writ petitions there is a challenge to the advertisement dated 12.02.2014 by which the Police Headquarter had advertised vacancies of “Ranker” Sub-Inspectors, which have to be filled by way of promotion from Head Constables and Constables in the Police Force. 3. In WPSS No. 741 of 2014, apart from the said challenge, the petitioners also seeks certain directions from this Court by way of mandamus to command the respondents to frame proper Rules for promotion of Head Constables and Constables to the post of Sub-Inspectors. In both the writ petitions, by means of the amendment, the petitioners are also seeking for quashing of the decisions dated 07.09.2010, 17.01.2014 and 26.12.2014 of the Police Establishment Committee, as the entire exercise of promotion with which the petitioners are presently aggrieved are in pursuance of the said decisions taken by the Police Establishment Committee. 4. Though, both these writ petitions decided together as primarily the subject matter is the same. However, for particular reference, the facts being mentioned, which are once being in WPSS No. 741 of 2014. 5. In Prakash Singh & others Vs. Union of India & others reported in (2006) 8 SCC 1, the issue raised before the Hon’ble Apex Court was regarding “Police reforms” as it was urged that the same are urgently required throughout the country. The Act, which was in force at the relevant time, was the Police Act of 1861, which had become archaic, and was not able to deal with the present modern conditions. It was also brought to the notice of the Hon’ble Apex Court that one of chief reasons for violation of Fundamental Rights and Human Rights of citizens is the non-enforcement of the laws. It was also brought to the notice of the Hon’ble Apex Court that one of chief reasons for violation of Fundamental Rights and Human Rights of citizens is the non-enforcement of the laws. Therefore, according to the petitioners, in the matter before the Hon’ble Apex Court, (which was filed under Article 32 of the Constitution of India), the distortion and aberrations in the functioning of the Police Force had its roots in the Police Act of 1861, and it was argued that the structure and organisation of the Police had basically remained unchanged all these years and a change was required in the laws. 6. The Hon’ble Apex Court came to the conclusion, after taking cognizance of various reports, including report of the National Human Rights Commission on Police Reforms that certain directions need be given to the Central Government as well as to the State Governments. The Hon’ble Apex Court also hoped that the State Governments will enact its new Police Act in tune with the times, but till such is accomplished certain guidelines were given by the Hon’ble Apex Court in the said judgment, such as establishment of State Security Commission, minimum tenure of Director General of Police (in short “D.G.P”) and minimum term for Inspector General of Police (I.G) & other Officers, Separation of Investigation with normal police functions and the establishment of Police Establishment Board and Police Complaint Authority. 7. Subsequent to the said judgment, this Court has been informed that the State of Uttarakhand also enacted Uttarakhand Police Act of 2007 (hereinafter referred to as “Police Act”) being Act No. 1 of 2008. The preamble to the Act states as under:- “To provide for establishment, regulations and management of the police, redefine its role, duties and its responsibilities and to enable it to function as an efficient professional effective, accountable and people friendly and responsive agency by taking into account the emerging challenges of policing, enforcement of rule of law, the concern for the security of the State and the people, good governance and human rights…. 8. Under Section 29 of the Police Act, the State shall establish a Police Establishment Board (hereinafter referred to as “Board”) and under Section 38 of the Police Act the State Government has to constitute a Police Establishment Committee (hereinafter referred to as “Committee”). 9. 8. Under Section 29 of the Police Act, the State shall establish a Police Establishment Board (hereinafter referred to as “Board”) and under Section 38 of the Police Act the State Government has to constitute a Police Establishment Committee (hereinafter referred to as “Committee”). 9. There is a slight change of nomenclature, as in the judgment of Hon’ble Apex Court (in Prakash Singh case) instead of State Security Commission, we have a State Police Board and instead of Police Establishment Board we have a Police Establishment Committee. 10. Since we are presently concerned with the duties, functions and powers of the Police Establishment Committee on whose decisions and directions the entire exercise of promotion of Head Constables and Constables to the post of Sub-Inspector has been undertaken, we shall refer to the relevant provision of law (Police Act 2007). Section 38 of the Police Act which reads as under:- “38. (1) The State Government shall, as soon as may be, constitute a Police Establishment Committee (hereinafter referred to as the ‘Committee’) with the Director General of Police as its Chairperson and two other senior most police officers in the Department, not below the rank of Inspector General of Police, as members. (2) Establishment Committee shall perform the following functions and duties, namely:- (a) lay procedures for the selection and promotions in the Subordinate Ranks; (b) transfer of subordinate officers from one Range to another; (c) transfer of officers of the rank of Deputy Superintendent of Police/Assistant Superintendent of Police; (d) recommend to the State Government, regarding the transfer and posting of police officers of the rank of Additional Superintendent of Police and above; (e) prescribe guidelines and instruction for transfer of subordinate Officers from one Police District to another; and (f) analyse and redress the grievances of the police personnel and wherever necessary, suggest remedial measures to the State Government. (3) The State Government may, in such matters as it may deem fit, for reasons to be recorded in writing, alter or amend the decisions of the Committee,” 11. We find that under Section 38(2)(a) of the Police Act, it is a function and duty of the Committee to lay procedures for the selection and promotion in the sub-ordinate rank. (3) The State Government may, in such matters as it may deem fit, for reasons to be recorded in writing, alter or amend the decisions of the Committee,” 11. We find that under Section 38(2)(a) of the Police Act, it is a function and duty of the Committee to lay procedures for the selection and promotion in the sub-ordinate rank. Under Section 2(y) of the Police Act subordinate rank has been defined as under:- “2 (y) “Subordinate Rank” means all ranks, below the rank of Assistant or Deputy Superintendent of Police.” 12. Sub Inspector is a rank below that of Assistant or Deputy Superintendent of Police. Clearly, therefore, it is the function and duty of the Committee inter alia to lay down procedures for the appointment/selection and promotion to the post of Sub-Inspector as well as Rankers Sub-Inspectors, as the case may be. It is admitted by the petitioners that the State Government has constituted a Police Establishment Committee in the State, which comprises of Director General of Police and the next two senior most Police Officers. There is a notification dated 07.11.2008 also to this effect whereby the Police Establishment Committee has been constituted, comprising of Director General of Police as its Chairman, Additional Director General of Police - Administration and Additional Director General of Police (CID) as a member. It is a body of three High Ranking Officers, in fact the senior most officers of the Police department of the State. 13. The Committee so constituted took a decision to fill up such posts that have to be filled by way of promotion from amongst the Head Constables and Constables in the police force. The decision to this effect was taken on 07.09.2010 by the Committee, which is Annexure 1A to the writ petition (WPSS No. 741 of 2014). The Committee further amended and modified its report/decision vide orders dated 17.01.2014 and 26.02.2014. All these three decisions, taken by the Committee, are under challenge before this Court. 14. The first ground of challenge by the petitioners is regarding the powers of the Committee itself. According to the petitioners, it does not have powers to frame Rules for recruitment or promotion in police service. Such powers can only be exercised by the State Government by framing Rules under Section 87 of the Police Act, which reads as under:- “87. The first ground of challenge by the petitioners is regarding the powers of the Committee itself. According to the petitioners, it does not have powers to frame Rules for recruitment or promotion in police service. Such powers can only be exercised by the State Government by framing Rules under Section 87 of the Police Act, which reads as under:- “87. (1) The State Government may make Rules for carrying out the purposes of this Act. (2) All rules made under this Act shall be laid, as soon as may be, before the House of the State Legislature. (3) The Director General of Police may frame Regulations, with the approval of the State Government, in respect of matters, specified in this Act. (4) State Government may direct the Director General of Police to amend any Regulation made by him in such manner, as it may direct and thereupon, the Director General of Police shall amend the Regulation in the manner as directed. (5) Every Rule and Regulation made this Act shall be notified by the State Government in the Official Gazette.” 15. According to the learned counsel for the petitioner Sri K.P. Upadhyay, though Section 87(1) of the Police Act uses the word “may” as regarding making of rules, but the entire Act has to be seen in its totality. He would also argue that “Rules” are a sine qua non of service, hence they have to be mandatorily framed by the Government and it is the mandatory duty to frame Rules, and it has to be read as “shall”, instead of “may”. 16. As far as reading of Section 38 of the Police Act is concerned, where such powers have specifically been given to the Committee, (i.e. the power to lay down procedure for recruitment or promotion), the learned Counsel would argue that what has been given to the Committee are only the powers to lay down “procedures” for selection and promotion. Presently what has been done by the Committee is that they have not only laid down procedures but have also exercised powers by making provisions such as the eligibility and other qualifications of the candidates, powers which have not been given to the Committee by the Police Act. Presently what has been done by the Committee is that they have not only laid down procedures but have also exercised powers by making provisions such as the eligibility and other qualifications of the candidates, powers which have not been given to the Committee by the Police Act. Extending his argument it has been submitted that a bare reading of Section 38 of the Police Act shows that the powers given to the Committee under Section 38(2) of the Police Act have to be read along with Section 38(3) of the Police Act where the overriding powers lie still with the State Government, as under Section 38(3) of the Police Act the State Government can alter or amend the decisions of the Committee. This would logically mean that a Committee has to place its decision before the State Government and only after the approval of the State Government, as the State Government has powers to alter or amend the provisions of the Committee, any decision of the Committee can take a final shape. Moreover, such “procedure” should also be known to the public and this can only be known by way of a formal notification. 17. The learned counsel for the State Mr. V.B.S. Negi, learned Additional Advocate General, rebutting the arguments of the petitioners submits that when a particular Statute has a clear and unambiguous meaning, no other meaning can be derived from it. Under Section 38(2) of the Police Act the powers to lay down the procedure for selection and promotion in the Police Force has been given to the Committee. The reliance of the petitioners under Section 87 (1) is misplaced, as under Section 87(1) of the Police Act, the State “may” make Rules, therefore, it is not mandatory for the State to make Rules since the Legislature has deliberately not used the word “shall”, which means the State may make Rules or may not make Rules. Moreover, the learned counsel would also argue that a broad meaning to the word procedure has to be given, which would not only include “how” but also “who”. Moreover the Statute does not give these powers to any other authority specifically and lastly it could not be the intention of the Legislature to give the powers of fixing eligibility requirement to any authority and leaving only the procedural aspect such as how to set the “standards” to another authority. Moreover the Statute does not give these powers to any other authority specifically and lastly it could not be the intention of the Legislature to give the powers of fixing eligibility requirement to any authority and leaving only the procedural aspect such as how to set the “standards” to another authority. As such the words “lay procedures for the selection and promotions in the Subordinate Ranks”, has to be interpreted broadly. 18. The next argument of the petitioners is that the procedure, which has been laid down by the Committee is bad and done without first identifying the “ranks” and “members” of the police force, as it was bound to under Section 3 (2) of the Police Act whereby only by general orders or by special orders the State Government would have shown that its police force consist of such and such ranks and members and have such and such organisations. Only after this exercise was completed, could the next exercise for laying down the procedure for recruitment and promotion be done? This the learned counsel points out has resulted in a great anomaly as well as injustice to the members of the civil police in Uttarakhand, inasmuch as, not only the Head Constables and Constables of Civil Police are eligible for promotion to the post of Sub-Inspectors in Civil Police but even Head Constables and Constables in Provincial Armed Constabulary (in short “PAC”) and Indian Reserve Battalion (in short “IRB”) are now eligible for promotion to the post of Sub Inspector in Civil Police, though such promotional posts are outside their cadre! 19. The learned counsel would argue that members of PAC and IRB are from different cadre and their channel of promotion should be in their cadre alone. Moreover, he would also argue that inclusion of IRB in the decision of the Committee finds place in the advertisement, alone, and not in the decisions of the Committee, and therefore, it is not clear as to whether this decision has been taken by the Committee or it is a decision of the Government, but in any case it is wrong. 20. The learned counsel for the petitioner has also brought to the notice of this Court the Rules framed in the neighbouring State of U.P. wherein the Government has framed Rules setting a procedure for promotion of Head Constables and Constables on the post of Sub-Inspector. 20. The learned counsel for the petitioner has also brought to the notice of this Court the Rules framed in the neighbouring State of U.P. wherein the Government has framed Rules setting a procedure for promotion of Head Constables and Constables on the post of Sub-Inspector. The Rules of U.P. Sub-Inspector and Inspector Civil Service Rules, 2008 which earlier made Head Constable of PAC as eligible, later by an amendment in the year 2013 only Head Constables and Constables of Civil Police were made eligible for promotion to Sub Inspector in Civil Police. 21. The learned counsel reverting back to his earlier argument that it is only the State Government which can frame Rules under Section 87 of the Police Act and therein prescribed the procedure and make Rules, both procedural and substantive, for recruitment and promotion in the Police Force, as under Section 13 of the Police Act, it has been stated that the constitution, recruitment, training, deployment and administration of such “reserve battalion” shall be as per the Rules made under this Act. Section 13 of the Police Act reads as under:- “13. To assist the civil police in enforcement of law and maintenance of order or in situations of likely breach of peace or in disaster management functions, in escort or prisoners, or to discharge such other duties, which may require special weapons and tactical teams or presence or armed police, the State Government shall create Armed Police Units or Special Armed Police Units with appropriate manpower strengths in the form of an Armed Police Reserve for each Police District and Armed Police Battalions for the State. The constitution, recruitment, training, deployment and administration of such Reserve Battalions shall be as per rules made under this Act.” 22. The learned counsel would argue that it could not be the intention of the Legislature that on one hand the constitution, recruitment, training, deployment and administration for a Reserve Battalion, which includes PAC, would be only under the Rules framed by the State, but for recruitment of Sub-Inspector there would be no Rules and the entire authority in this matter has been given to the Committee. 23. At this juncture, we must note that pursuance to the decisions taken by the Committee and the advertisement dated 12.02.2014 recruitment process had been initiated in the month of June this year. 23. At this juncture, we must note that pursuance to the decisions taken by the Committee and the advertisement dated 12.02.2014 recruitment process had been initiated in the month of June this year. The present writ petition has been filed challenging the said advertisement. By the interim order dated 27.06.2014 of this Court, the respondents were restrained from further proceedings with the promotional exercise. 24. As far as the first contention of the petitioner that the Court should read the word “may” as “shall”, in Section 87 of the Police Act, since it is a Statutory obligation of the State Government to frame Rules for recruitment and promotion in the Police Force, this Court is of the opinion that this submission is unacceptable. It is undoubtedly true that under the settled Rules for interpretation, there may be a given contingency where “may” has to be read as “shall”. These contingencies may arise where a particular Statute gives powers to an authority enabling it to refer a matter to a higher authority. He “may” refer, may be the language. Here the word “may” can be read as “shall” in a given situation, where the authority may have no other option but to refer the matter to a higher body. And then it becomes the duty of the concerned authority to do what the law enables him to do and in that sense, in a given situation, the word “may” has to be read as “shall” (as referred in Justice G.P. Singh’s Principles of Statutory Interpretation, 11th Edition 2008 at page nos. 446-447). 25. Justice Gajendragadkar in a case (State of U.P. Vs. Jogendra Singh), AIR 1963 SC 1618 , explains this aspect, as follows: “There is no doubt that the word “may” generally does not mean “must” or “shall”. But it is well-settled that the word “may” is capable of meaning “must” or “shall” in the light of the context. It is also clear that where a discretion is conferred upon a public authority coupled with an obligation, the word “may” which denotes discretion should be construed to mean a command. Sometimes, the Legislature uses the word “may” out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed”. 26. Sometimes, the Legislature uses the word “may” out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed”. 26. But where powers have been given to one authority and also to another authority as well, the use of the word “may” shows the clear intention of the Legislature, which is that that particular authority may make the Rules, or it may not. The legislature having deliberately used the word “may”, it cannot be read as “shall”. In Section 87 (1) of the Police Act, the words used are clear and unambiguous. It says, “the State Government may make rules for carrying out the purposes of the Act”. The plain interpretation of English language here is that “may” has to be read as “may” alone, considering the context in which it has been stated. The State was enabled by the above provision to make rules, but the State is not duty bound to make rules nor is it obligatory upon the State to make rules, the word “may” would only mean “may”. That is the plain, clear, and unambiguous interpretation of the above provision. Therefore, as far as the first proposition of the petitioner is concerned, the same is rejected. 27. All the same, there must be a certainity in service. This Court is also of the view that even under the old Police Act, 1861 no formal Rules were framed. The State Government whether it was in Uttar Pradesh or in Uttarakhand had never made any Rules, which could have given a definite and clear picture to the members of the force, as to their chances of promotion, and more particularly, to their condition of service. Therefore, though it is not obligatory on the part of the State to make Rules, yet it would certainly be desirable. 28. The other contention of the petitioner is that the decision taken by the Committee in any case is no decision, as it has nowhere been notified. Therefore, though it is not obligatory on the part of the State to make Rules, yet it would certainly be desirable. 28. The other contention of the petitioner is that the decision taken by the Committee in any case is no decision, as it has nowhere been notified. Although the rebuttal to this argument of the learned Additional Advocate General of the State was that the counsel for the petitioner filed a copy of the decision, which is freely available in the website and at least two promotional exercises have already been taken place, under the procedures laid down by the Committee, hence it is totally wrong to say that this decision which they are presently challenged in the writ petitions were never in their knowledge. 29. The petitioner, however, relies upon Section 38(3) of the Police Act and submits that the Statute itself accepts that the decisions taken by the Committee have to be placed before the State Government for its approval, as unless it is formally placed before the State Government, the State Government would be in no position to take decision in under Section 38(3) of the Police Act. Under Section 38(3) of the Police Act the State Government has powers to alter or amend the decisions of the Committee. 30. This Court is in agreement with the petitioner on the above point as since the decision of the Committee was never formally placed before the State Government, the State Government had no opportunity to exercise its discretion or apply its mind, as provided under Section 38(3) of the Police Act. It does not have formal approval of the State Government as visualised by the Statute itself. 31. As regarding Constables and Head Constables of other branches of the Police being made eligible, this Court is in no position to take a formal stand, which is for various reasons, but primarily as the entire facts are not before this Court, as to what is the organisation of the police and what are the different cadres, what is the strength of different cadres, and more particularly, these Constables or Head Constables who have now been made eligible under the decision of the Committee are also not before this Court . Yet, this aspect needs consideration, both by the Committee as well as by the State Government, which is whether members of outside cadre (though of the same police force), can be included in the “feeding cadre” to the promotion of Sub Inspectors in Civil Police. 32. Let the decisions of the Committee be placed before the Principal Secretary (Home), Uttarakhand, who shall examine the decisions of the Committee and the entire procedures laid down by the Committee, and thereafter pass a formal order therein, which should then be made public and will be in the knowledge of entire Police Force so that they are well aware of the recruitment or promotional exercise. Subject to the above, this Court is presently not interfering with the decision of the Committee. However, this Court directs the Director General of Police, Uttarakhand to place its decision (under which the promotion exercise was to take place) before the State Government, which should then exercise its power under Section 38(3) if need be, and in the light of the observation of this Court formalise the “decisions”. 33. It is made clear though the stay orders passed in the petitions are being vacated, but the State Government shall not take any further steps for recruitment or promotion till such a final decision is taken by the State Government, as directed above.