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2017 DIGILAW 2099 (JHR)

Mukesh Kumar v. State of Jharkhand

2017-12-06

APARESH KUMAR SINGH, B.B.MANGALMURTI

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JUDGMENT : 1. Heard learned counsel for the parties. 2. The petitioners laid a challenge to the vires of Rule 7 (ka) and (kha) of the Jharkhand State Police Sub-Inspector Limited Departmental Competitive Examination Appointment Rules (Recruitment a Procedure), 2016 inter-alia grounds which have been usefully referred to in our order dated 14.11.2017. For better appreciation the order dated 14.11.2017 is quoted hereunder: "Learned counsel for the petitioner urged two main grounds to question the vires of Rule 7 (ka) and 7(kha) of Jharkhand State Police Sub-Inspector Limited Departmental Competitive Examination Appointment Rules (Recruitment Procedure), 2016: (i) that the rule is in teeth of the existing provisions of Police Manual contained in Rule 726 (III) which lays down Disqualification for admission to a promotion list or retention thereon in case any incumbent has faced any major punishment in any rank within last three years (ii) the impugned Rule 7(k) renders a candidate ineligible in case he has faced any major punishment from the date of entry in service till appointment letter is issued or in case a Departmental Proceeding/Judicial Proceeding is pending or charge-sheet have been filed. 7(kha) on the other hand, prescribes bar of consideration in case there are adverse entries in the confidential roll of the police personnel in the last five years. 2. We usefully refer to Rule 726(III) which falls under Chapter-23 of Police Manual relating to Promotions and Allowances. Rule 721 provides that all promotions of Gazetted Officers including promotion from Non-Gazetted rank to Gazetted rank rests with Government but the Public Service Commission will also be consulted under Article 320 of the Indian Constitution. However, for promotion to the rank of Inspector (including Reserve Inspector) which is Gazetted, as per Appendix-2 of Bihar Service Code, the consultation with Bihar Public Service Commission is not required. Rule 726 of Police Manual is quoted hereunder:- "726.(I) Next Below Rule - While making selection for any promotion course or for promotion list for officers on deputation to any department in any rank, their record in that department should also be considered (See Bihar Service Code, Rule 282). Deputationists, who are on promotion lists, are entitled in case their juniors are promoted in the parent cadre to get the benefit of the Next Below Rule. Deputationists, who are on promotion lists, are entitled in case their juniors are promoted in the parent cadre to get the benefit of the Next Below Rule. (II) Conduct under enquiry - The case of an officer, whose conduct is under enquiry and who is otherwise considered in every respect fit for promotion shall be dealt with as follows:- (a) If no case has been established till the date of promotion of the officer, this shall not be stopped. If, however, enquiries are in progress regarding misconduct of the officer, one post of appropriate seniority should be kept vacant till the final disposal of the enquiry - Memo No. CS/M3-1062/61-623, dated 9.2.1961 sent from Chief Secretary to all departments. (b) Where a prima-facie case has been established on a preliminary investigation of the complaint and actionable material under the relevant punishment rules applicable to the officer concerned has been brought out and it is intended to take action against him under rules, he should not be promoted during the pendency of such enquiry whether the allegation relates to a period before the due date of promotion or afterwards. (c) The above principle also applies for confirmation and crossing Efficiency Bar. (III) Disqualification for admission to a promotion list or retention thereon - The infliction of any major punishment in any rank within the last 3 years may ordinarily be a bar to admission in any of the promotion list. A gap of three years is necessary after the infliction of major punishment before an officer is retained or considered or reconsidered for any promotion list. For special reasons to be recorded, this disqualification may be relaxed by the competent officer who gives the promotion." 3. A conjoint reading of Rule 726 with Rule 721 shows that disqualification prescribed under sub-clause-III thereof is in relation to major punishment inflicted in respect of an officer who is to be retained or considered or reconsidered in any promotion list. The impugned rules does not relate to promotion to the post of an officer. It relates to the appointment through limited departmental competitive examination to the post of Sub- Inspector which is not a Gazetted post. Prima-facie, we are of the view that this contention is not tenable in law. 4. Learned counsel for the petitioner then pressed his challenge on the second ground. It relates to the appointment through limited departmental competitive examination to the post of Sub- Inspector which is not a Gazetted post. Prima-facie, we are of the view that this contention is not tenable in law. 4. Learned counsel for the petitioner then pressed his challenge on the second ground. He submits that imposition of even one black mark is considered to be a major punishment as per provisions of Rules 834 and 835 of Police Manual under Chapter-25 dealing with the Departmental Punishment. He submitted that effect of one black mark ceases after the period of three years. However, the impugned rule renders the intending candidate ineligible for to appointments for all times to come. This does not stand the test of rationality. 5. Learned counsel for the State seeks short time to obtain instruction in the matter and offer his response. 6. Accordingly, two weeks time is allowed. List the case thereafter." 3. Prima-facie we did not find much substance in the first ground of challenge as the provisions of Rules 721 and 726 fall under Chapter-23 of the Police Manual relating to promotions and allowances and deal with the cases of officers. The impugned Rule does not relate to promotion to the post of an officer. It relates to the appointment through Limited Departmental Competitive Exam to the post of Sub-Inspector which is not a gazetted post. In fact the instant Rule is altogether new Rule framed under the provisions of Article 309 of the Constitution of India by the State Government read with Section 46(3) of the Police Act, 1861. It has been notified on 28.1.2016 vide Notification No. 252 of the Home, Prison and Disaster Management Department, Government of Jharkhand. This Rule creates a channel of appointment to the post of Sub-Inspector through limited departmental competitive exam for 25% of the post of the promotional quota out of 50% post meant for the cadre of Sub-Inspector to be filled up from the rank of Constable and Havildar. The respondent-State in its affidavit have clarified that the instant rule was further amended through Notification No. 3796 dated. 12.7.2017 by deleting the effect of minor punishment from Rule 7(ka) and 8 of the original Rules of 2016. However, as per the appointment rule, a candidate visited with major punishment during his/her service career shall not be eligible to appear in the Limited Departmental Competitive Examination. 12.7.2017 by deleting the effect of minor punishment from Rule 7(ka) and 8 of the original Rules of 2016. However, as per the appointment rule, a candidate visited with major punishment during his/her service career shall not be eligible to appear in the Limited Departmental Competitive Examination. The Advertisement No. 09/2017 published by Jharkhand Staff Selection Commission is under the instant Rules for appointment to the post of Sub-Inspector of Police through limited departmental exam. 4. According to the respondents, forfeiture of six months increment with non-cumulative effect is equivalent to one black mark which is a major punishment under Rule 824 and 828A of the Police Manual. Any personnel of the rank of the Constable or Havildar who has been inflicted with a major punishment, is rendered ineligible to appear in the limited departmental exam as per the rule. According to the learned counsel for the State, the provisions of Rule 726(III) of the Police Manual relied upon by the petitioners is inapplicable to the limited departmental competitive exam as it is only applicable in case of promotion. Therefore, whether the effect of major punishment remains for three years from the date of incidence or not is immaterial for the purposes of eligibility to compete under the limited departmental competitive exam for appointment to the post of Sub-Inspector .under the impugned rules. That is why the respondents have not found any substance in the representation of the petitioners also earlier made. Learned counsel for the State submits that the rules are not susceptible to challenge on the ground raised by the petitioners. The writ petition is fit to be dismissed. 5. Learned counsel for the petitioners in his turn has questioned the rationality of the impugned rules which in effect debars a candidate ineligible for appointment by limited departmental exam to the higher post of Sub-Inspector for all times to come, though the punishment of one black mark which is equivalent to withholding of one increment for six months ceases after a period of three years only. The impugned rule is, therefore, arbitrary and irrational. 6. We have considered the submissions of the learned counsel for the parties, gone through the relevant materials on record and also the relevant provisions of the Police Act 1861, Police Manual and the impugned Rules itself. 7. The impugned rule is, therefore, arbitrary and irrational. 6. We have considered the submissions of the learned counsel for the parties, gone through the relevant materials on record and also the relevant provisions of the Police Act 1861, Police Manual and the impugned Rules itself. 7. We may, at the outset, observe that the instant Rules are altogether new Rules framed by the employer State for giving an opportunity for appointment to the serving Police Personnel of the rank of Constable and Havildar for appointment to a post of Sub-Inspector through limited departmental competitive exam. The Police Manual does not provide for direct appointment through limited departmental competitive exam to a Police Personnel of the rank of Constable/Havildar to the post of Sub-Inspector. Police Manual, apart from laying down other provisions in relation the service of a Police Personnel, also makes provisions for promotion to higher post. It also lays down the punishment, major or minor to be imposed in case of established misconduct. It also lays down the provisions of appeal and memorial against such orders of punishment. The comparison of the Rules relating to promotion as provided under the Police Manual with that of the impugned Rules which lay down a quota and eligibility criteria for appointment to the post of Sub-Inspector through limited departmental competitive exam, is therefore far-fetched. While there is enough rational on the part of the employer to provide the period during which the effect of major or minor punishment may operate and may be a criterion for consideration to higher promotions during the entire service career of an employee, the impugned rules also have a definite rational in laying down the eligibility criteria as such. 8. There is a conscious decision on the part of the employer-State to lay down more stringent eligibility criteria for appointment directly to the post of Sub-Inspector from the rank of Constable or Havildar of a personnel who not only competes on merits but has otherwise a complete clean service record. The significance of having a clean service record of a Police Personnel holding a post of Sub-Inspector cannot be lost sight of as he exercises authority over the subordinate rank of personnel like Constable, Havildar or Assistant Sub-Inspector in the Police Force. The significance of having a clean service record of a Police Personnel holding a post of Sub-Inspector cannot be lost sight of as he exercises authority over the subordinate rank of personnel like Constable, Havildar or Assistant Sub-Inspector in the Police Force. It may also happen that a meritorious candidate with a rather unclean service record (having faced a major punishment) can still be appointed as a Sub-Inspector and exercises authority on the subordinate Police Personnel who may otherwise have clean service record but may not have competed on merits. In a uniformed Police Force such a situation would have a demoralizing effect on the subordinate Police Personnel who otherwise has a clean service record. The instant issue can be looked at from another angle as well. By the ordinary channels of promotion the post of Sub-Inspector is perhaps 3rd in hierarchy to the rank of Constable while through the instant limited departmental exam the Police Personnel at the bottom of rank as a Constable does have a chance to get appointed as a Sub-Inspector through the limited quota of 25% of that cadre. The rules for limited departmental competitive exam therefore in a larger perspective provides incentive to the Police Personnel to maintain a clean record and creates a disincentive for Police Personnel who are unable to maintain clean service record even on the rank of Constable or Havildar. 9. From the perspective of the Police Force it will also be desirable that the personnel of a rank of Sub-Inspector of Police or Inspector of Police is not only meritorious and physically fit, but has an absolutely clean service record. It adds to the image of the Police Force and creates a sense of respect amongst the junior Police Personnel towards his superior as well. 10. The categorization of major punishment is not a question to be decided in the present application. If imposition of one black mark also operates as a major punishment, so be it. The employer does not intend to draw distinctions in the category of major punishment for laying down the criteria for eligibility. Major punishment per se operates as a bar for competition under a limited departmental competitive exam to a considerably higher post of Sub-Inspector of Police from the rank of Constable or Havildar. 11. The employer does not intend to draw distinctions in the category of major punishment for laying down the criteria for eligibility. Major punishment per se operates as a bar for competition under a limited departmental competitive exam to a considerably higher post of Sub-Inspector of Police from the rank of Constable or Havildar. 11. Petitioners have not been successful in questioning the impugned Rules on the lack of jurisdiction or power of rule making authority or that it violates the fundamental rights guaranteed under the Constitution or are in teeth of the parent Police Act of 1861. Comparison of the provisions of the Police Manual as referred to above are also far-fetched and inapplicable to the challenge. The instant Rules 2016 are totally new rule which provides for appointment through limited departmental competitive exam to 25% of the promotional quota of 50% in the cadre of Sub-Inspector. The existing rules relate to promotional avenue. We do not find any lack of rational nexus to the object sought to be achieved to render the impugned rules vulnerable to challenge on that count as well. 12. There is a presumption in favour of the constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. In the case of State of T.N. and Another vs. P. Krishnamurthy and Others, (2006) 4 SCC 517 , the Apex Court has laid down the well recognised grounds under which a subordinate legislation can be challenged. Paragraphs 15 to 17 of the report are apposite for being quoted hereunder: "15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds:- (a) Lack of legislative competence to make the subordinate legislation. (b) Violation of fundamental rights guaranteed under the Constitution of India. (c) Violation of any provision of the Constitution of India. (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. (e) Repugnancy to the laws of the land, that is, any enactment. (b) Violation of fundamental rights guaranteed under the Constitution of India. (c) Violation of any provision of the Constitution of India. (d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act. (e) Repugnancy to the laws of the land, that is, any enactment. (f) Manifest arbitrariness/unreasonableness (to an extent where the Court might well say that the Legislature never intended to give authority to make such rules). 16. The Court considering the validity of a subordinate legislation, will have to consider the nature, object and scheme of the enabling Act and also the area over which power has been delegated under the Act and then decide whether the subordinate legislation conforms to the parent statute. Where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the Court is simple and easy. But where the contention is that the inconsistency or non-conformity of the rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the parent Act, the Court should proceed with caution before declaring invalidity. 17. In Indian Express Newspapers (Bombay) Pvt. Ltd. vs. Union of India this Court referred to several grounds on which a subordinate legislation can be challenged as follows: "75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary." (Emphasis supplied) 13. Considered in totality, thus, we do not find any merit in the writ petition. Accordingly the writ petition is dismissed. Petition dismissed.