Prabhakar & Ors. v. State of Maharashtra & Ors.

UNTWALIA, J.-The only point which falls for our determination in this appeal by special leave is whether clause 7 ( 1) (a) of the Bom-bay Police Officers (Combined Cadre) Conditions of Service Order, 1954-hereinafter called the Order, made by the Government of Bom-bay in exercise of the powers conferred by clause (b) of Section 5 of the Bombay Police Act, 1951 is constitutionally invalid being viOlative of Articles 14 and 16 of the Constitution of India as bas been held by the Bombay High Court in the Writ Petition filed by respondent no. 4.

In the Province or the State of Bombay, there were two separate police forces-the Mofussil police force governed by the Bombay Dis-trict Police Act, 1890 and the City Police of Bombay governed by the City of Bombay Police Act, 1902. Some steps for inter-mixing and inter-transfer of officers of on('. force to the other were taken by mak-ing some provisions in Bombay Act XVI of 1949 caHed the Police Forces (Control and Direction) Act, 1949. The Bombay Police Act of 1951 repealed the earlier Acts. Under the Order which came into force on and from the 1st August, 1954, provision was made in clause 4 empowering the State Government whenever it thought fit to order the transfer of any police officer belonging to the combined cadre from Greater Bombay to any District and vice-versa: The combined cadre was sought to be formed under clause 3 of the Order. Two separate lists of the officers in accordance with their respective seniority were, however, maintained even under clause 3 of the Order. Previously there was one Police Training School at Nasik where cadets for train-ing were sent. The period of their training was 18 months. On passing out the training the cadets were appointed to the posts of Sub-Inspec-tors of Police. Some were appointed to the District Police Force and some were sent to the Poliee Force of Greater Bombay. In the year 1939 due to certain exigencies of administration such as introduction of the scheme of Prohibition and the impending second World War more Sub-Inspectors we1e needed to be appointed for Greater Bombay. A new Training School was opened at Naigaum a part of Greater Bombay. This new Training School remained in existence for about a decade from the 1st of May, 1939-to 1st of June, 1949. The p~riod of training was reduced from 18 months to a much shorter period varying from 3 to 8 months. Thus cadets of particular batches after completion of training for a shorter period were straightaway appoint-ed as Sub-Inspectors of Police inl Greater Bombay. This went on for a period of about 10 ye~rs as already stated. On the other hand, almost invariably, the training period at Nasik School remained of 18 months. On the general principle of fixation of seniority, the two senioritJ lists .which were maintained separately even under the Order, were maintained on the basis of their passing out the training and in order of merit obtained at the passing examination. But since after the formation of the combined cadre under the Order transfers were to be made under clause 4, a difficulty was felt in the matter of fixation ~f seniority vis:a:vis the. officer who had been appointed after comple-tion o~ ~11 trammg penod .and the one. who. had been appointed on the tra~ng of a shorte~ penod. To avoid this anomaly and difficulty, a prov1s10n was made m clause 7 of the Order thus :

"7. ( 1) When an officer who was in service immediately before the formation of the Combined Cadre is transferred under clause 4, his seniority among Police Officers of equiva-lent ranks in Greater Bombay or in the Districts, as the case may be shall be determined in the case of an officer who was appointed to a post either in Greater Bombay or in the Dis-tricts after a course of training at a Police Training School,-

(a) if the training commenced on any date between the period from 1st May 1939 to 1st June 1949 (both inclusive) with reference to the date on which training commenced;

( b) in other cases, with reference to successful comple-tion of such a course arid intoc se the place occupied in the results of the examination held at the end of such a course." Respondent No. 4 was a Police Officer appointed in the year 1948 after a short training period at Naigaum School. He challenged by a writ application the vires of the entire Order on certain grounds. He prayed for a direction to respondents 1 to 3 for not giving affect to the Order and for re-fixation of seniority. There was some dispute as to the seniority of a police officer appointed in a regular manner and the one appointed to the police force from the Excise Departme.nt. The High Court allowed the writ application in part, declared clause 7 ( 1 )(a) of the Order as constitutionally invalid and also directed the adjustment of places of seniori.ty as between the police officers who came by regular appointments and those who came from the Excise Department. Some officers of the Department were impleaded as res-pondents in the writ application in their respective capacity. The two such officers made parties in the writ application were respondents 4 and 5 of the Mofussil Police Force. Respondents 6 and 7 therein were police officers who had come from the Excise Department. Appel-lants 1 and 2 in the present appeal are two other police officers of the Mofussil Police Force and appellant No. 3 is a Police Officer who came from the Excise Department. He was respondent 6 in the writ application. The order of the High Court made against appellant No. 3 could not be assailed before us. Appellant No. 3, is not, there-fore, entitled to any relief in this appeal.

So far the case of appellants 1 and 2 is concerned, it must be noted that the High Court has declared clause 7(1)(a) of the Order void being violative of Articles 14 and 16 of the Constitution on three grounds :

( 1) That the Government had reduced the period of train-

ing at Naigaum School as against the resolution dated April 6, 1940 providing for the establishment of a Training School at Naigaum.

(2) That according to the said clause of the Order the

commencement of the training period of the Mofussil officer was to be taken for determination of his senio-rity whereas in case of the officer belonging to the Greater Bombay Police Force, the date of his ap-pointment was to be taken and in the opinion of the High Cour.t, this was clearly discriminatory.

(3) That in case of a cadet whose period of training had

been extended on account of his failure at the exami-nation the impugned clause gave an advantage even to such a bad officer.

JI In our opinion, none of the grounds forming the basis of the judg-

ment of the High Court is sustainable. The attack on Rule 7(1) (a) was not specifically made in the writ application as originally presented by respondent No. 4. He laid the fo~ation for the attack in his re-joinder application. A counter-affidavit the~eafter was filed by the State stating the facts which led to ~~ frammg of cla~se 7p) (a). Respondent No. 4 filed a further re1omder. It was np~ . d1sput~, rather admitted on all hands that at Naigaum School the trammg penod was n'.iuch shorter than the period of 18 months· which contil1;ued at Nasik. If during the period of 10 years cadets on the ~asis of a shorter period of training were appointed to the Bombay ~olice Force without any specific order of the Govemm~n~ (althou~ 1t ~ust not be the case) it might have affected the validity of their appomtment but not the fact that they had been so appointed on a shorter period of training .

The High Court has committed an error in the interpretation of the provision contained in clause 7 (1) (a) of the Order. On transfer of any police officer from Greater Bombay to the District and vice versa, if his training had commenced on any date between the period of 1st May, 1939 to 1st June, 1949, then his seniority was to be deter-mined vis-a-vis the police 0:fficer of the force to which he was trans-ferred with reference to the dates on which their training commenced. u It is not that in one case it will be the date of commencement of the training and in the other it will be the date of appointment, as seems to have been wrongly thought by the High Court. To explain, we may take an example. Srtppose a Sub-Inspector A whose training had menced-say on 1st April, 1947 resulting in his appointment on 1st on 1st November, 1947 was transferred to the Mofussil where, let us suppose again, a police officer B was there whose training had com-menced-say on let April, 1947 resulting in his appoinment on 1st October, 1948, then in such a case B will be senior to A beeause his training commenced earlier even though he was appointed later. But if there be: an officer, suppose C, in the Mofussil whose training com-menced--say on 1st April, 194 7 resulting in his appointment on 1st December, 1948 then he cannot be senior to A by taking 1st June, 194 7 as the date of commencement of his training and comparing with 1st November, 1947 the date of appointment of A. This interpretation of the rule which we have put was accepted to be the correct inter-I pretation on all hands including the Government. Learned counsel

f?r respondent No. 4, however, submitted that the impugned seniority l~st had not been prepared by the Government on such an interpreta-tion of clause 7 (1 )(a) , but the list prepared is on the basis of the interpretation given by the High Court. On behalf of the State we were informed that it was not so. We have no doubt in our mind tha.t e".en if there be any mistake or di~crepancy in the seniority list which 1s found to be not in confmmity with the interpretation put by us to clause7(1)(a), then that mistake or discrepancy will have to be removed sooner than later and the seni0rity list wi11 be set at right accordingly. ·

\)rdin'.11'ilY and generally the method of fixation of seniority as provided m sub-clause (b) of clause 7 ( 1) (a) of the Order was the C?ITeJ?t and prop~r method to be followed. But because of the special situation of appomtment of some police officers during the period of 10 years on a shorter period of training a departure was made as pre>-- vided in sub-clause (a) . A cadet who received his full trainting for 18 months at Nasik for no fault of his was appointed later than a cadet who started training later at Naigaum but was appointed earlier than the former. There was nothing wrong, illegal or unreasonable in making a provision iill sub-clause (a) that in such a siWa~on the commencement of the period of training will be taken as the date for the purposes of fixation of seniority. There was a reasonable and rational nexus between the object a~d the rule. It was for the rule making authority to decide and to choose in such a situation-either the date of commencement of the training or the date of appointment. Taking the former date in the special circumstances seems to be rea-sonab~e and justified. Such a provision cannot be said to be violative of Articles 14 and 16 of the Constitution.

The third ground for declaring clause 7(1)(a) ultra vires given by the High Court theoretically was correct but materials were placed before us from the various affidavit~ to show that hardly there was such a case which had got the advantage of t!he clause even after failure in the examination. There was one such case of hardship of not passing out the examination in time due to reasons beyond the control of the cadet. Clause 7(1) (a), in our opinion, was not meant to give any undue advantage to a non-deserving police o~ who failed to pass the trainiQg examination at the proper time. No specific instanee was brought to our notice where such advantage had been accorded.

For the reasons stated above, the appeal of appeHants 1 and 2 is allowed and that of appellant No. 3 is dismissed. It is held that clause 7(1) (a) of the order is constitutionally valid and not discriminatory. The directions given to respondents 1 and 3 to set right the seniority list by the High Court on the basis of the alleged invalidity of clause 7(1)(a) of the order is set aside. In the circumstances. we sha11 make no order as to costs.