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Madhya Pradesh High Court · body

2016 DIGILAW 912 (MP)

Pavan Kumar Jain v. State of Madhya Pradesh

2016-10-07

SUJOY PAUL

body2016
ORDER : Sujoy Paul, J. In this petition filed under Article 226 of the Constitution, the petitioner has prayed for issuance of direction to the respondents to consider the case of the petitioner for the post of Constable (GD). 2. Briefly stated the relevant facts are that petitioner submitted his candidature for the post of Constable (GD) pursuant to the advertisement (Annexure P-1). Before submission of candidature, petitioner has already rendered 3 years and 11 month's service as Constable in department of Home Guards (M.P). The core issue is as to whether petitioner is entitled to get age relaxation upto the age of 40 years. This is not in dispute between the parties that the candidates are entitled to get age relaxation to the extent they have rendered services as Volunteer in Home Guard subject to maximum of eight years. In the present case, the petitioner has rendered three years and 11 months services in the said department and, therefore, he is not entitled to get age relaxation for the aforesaid period subject to maximum age limit. The point of controversy is as to which provision relating to age relaxation will apply. Shri Dhagat, learned counsel for the petitioner submits that petitioner is entitled to get age relaxation as per GAD circular dated 24/02/1987 (Annexure R-2) and GAD circular dated 4th June, 2010 (Annexure R-3). Shri Dhagat by taking this Court to the said circulars contended that said circulars are issued to all the departments including police department of Government of M.P. Circular (Annexure R-3) dated 4th June, 2010 was circulated to police units by DGP (Selection). He relied on circular dated 4th June, 2010 to contend that earlier circulars on the subject were superseded by this circular. It was made clear that maximum age relaxation would be upto 40 years (for UR category). He submits that in view of the GAD circular, the earlier GOP dated 02/04/1987 (Annexure R-1) has lost its shine. Shri Dhagat also relied on additional documents to show that under the RTI Act, petitioner was informed by the police department that aforesaid GAD circulars are applicable and circulated to the entire police department. 3. Shri Giresh Kekre, learned G.A advanced two fold contentions. Shri Dhagat also relied on additional documents to show that under the RTI Act, petitioner was informed by the police department that aforesaid GAD circulars are applicable and circulated to the entire police department. 3. Shri Giresh Kekre, learned G.A advanced two fold contentions. Firstly, it is submitted that circular of GAD dated 24/02/1987 (Annexure R-2) and circular (Annexure R-3) dated 4th June, 2010 are general circulars which did not deal with the specific post of Constable. Whereas, GOP No.78/92 dated 02/04/1997 (Annexure R-1) is specifically issued for selection for the post of Constable. Thus the special provision will prevail over the general provision. Secondly, Shri Kekre submits that full form of GOP is Gazetted Orders of Police. By taking this Court to Regulation 973 of M.P Police Regulations, it is submitted that said notification is published in consonance and as mandated in Regulation 973. Thus, GOP has statutory force and colour. Hence, it will prevail over the instructions issued by GAD on executive fiat. 4. In view of the diametrically opposite stand taken by the parties on the question of applicability of governing provision, the spinal issue needs to be decided in this case is as to which provision would apply for the purpose of determining the eligibility and age relaxation of the petitioner. Parties confined their arguments on the aforesaid points. 5. I have heard learned counsel for the parties and perused the record. 6. I deem it proper, to first deal with the second contention of learned Government Advocate. Mr. Kekre, who has contended that GOP dated 02.04.1987 (Annexure-R-1) is published in Police Gazette. Hence, it has a statutory backing and colour as per regulation 973 of Police Regulations. This argument on the first blush appears to be very attractive. Regulation 973 provides that two gazettes can be published by Police Department, viz., (1) the M.P. Police Gazette and (2) the M.P. Criminal Intelligence Gazette. The Clause (a) provides the details of the police gazette. Section II provides that the gazette may be in relation to orders by Inspector General of Police and Deputy Inspector General of Police concerning, leaves, postings, promotions, reservations, transfers, etc. Mr. Kekre, contended that the language of Section II shows that it is wide enough to include the question of recruitment because at the end of said provision the word "etc" is used. Mr. Kekre, contended that the language of Section II shows that it is wide enough to include the question of recruitment because at the end of said provision the word "etc" is used. On deeper scrutiny it is found that the said contention does not have much force. Interestingly, in 1996 (9) SCC 728 [K. Dayanandalal & others v. State of kerala & others] the contention before the Supreme Court was that the gazette issued by the Police Department under section 69 of Kerala Police Act, 1960 has a statutory force. As per section 69 of the said act, the police department was authorised to make rules and notify it in the police gazette. The Hon'ble Appex Court in paragraph No.10 of the judgment expressed its inability to accept the contention that such publication in gazette will give the provision the statutory force. It is held that Kerala Police Gazette cannot be equated with the publication of gazette by State Government. It was further held that the rules published in Kerala Police. Gazette must be treated as an executive order only. In the light of this judgment, it cannot be said that GOP has any statutory force. Thus, second contention of Mr. Kekre is rejected. 7. Reverting back to the first contention wherein it is contended that GOP is a special provision whereas circulars issued by General Administration Department are general provisions, it is noteworthy that General Administration Department is the nodal department of the Government of M.P. The circular/instructions issued by this nodal department are applicable to all the departments of Government of M.P. The executive instruction dated 24.02.1987, is issued in the name of Governor of M.P., in exercise of power under Article 162 of the Constitution of India. A combined reading of GAD circulars dated 24.02.1987 & 04.06.2010, makes it clear that these circulars are applicable to all the departments including police department. Interestingly, police department itself has circulated these instructions to all police units in M.P. In information obtained under RTI Act, 2005, petitioner was informed that this circular is applicable to police department. In other words, the circular issued by GAD is on a higher footing than the executive instruction dated 02.04.1987, (GOP) 78/1997. 8. Accordingly, in my view, the circulars issued by GAD will have precedence over the circular issued by the police department. In other words, the circular issued by GAD is on a higher footing than the executive instruction dated 02.04.1987, (GOP) 78/1997. 8. Accordingly, in my view, the circulars issued by GAD will have precedence over the circular issued by the police department. Resultantly, petitioner is entitled to get age relaxation as per GAD circular dated 04.06.2010. As per the aforesaid analysis, the petitioner deserves to succeed. Resultantly, the respondents are directed to consider the case of the petitioner as per circular of GAD dated 04.06.2010, and if he is found eligible as per that circular, he be considered for the post in question. The entire exercise of consideration shall be completed within 60 days from the date of communication of this order. The outcome of such consideration shall be communicated to the petitioner within aforesaid time. 9. Petition is allowed to the extent indicated above. No cost.