PETITIONER:
PRABHAKAR & ORS.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ORS.
DATE OF JUDGMENT22/10/1975
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
GOSWAMI, P.K.
CITATION:
1976 AIR 1093 1976 SCR (3) 315
1976 SCC (2) 890
ACT:
Bombay Police Officers (Combined Cadre) Conditions of
Service Order, 1954-Clause 7(1) (a)-Rule of fixation of
seniority by taking the date of the commencement of training
is constitutionally valid, not discriminatory and does not
offend Art. 14 and 16 of the Constitution.
HEADNOTE:
Appointments to the posts of sub-inspectors (either to
the Distt. Police Force or the Police Force of Greater
Bombay) in the State of Bombay, prior to 1st of May 1939,
were after a training of 18 months at the Police Training
School at Nasik. Between the period 1st May 1939 and 1st of
June 1949, a new training school at Naigaum a part of
Greater Bombay was started wherein the period of training
varied from 3 to 8 months and after the short training the
cadets were appointed straight away as Sub-Inspectors of
Police in Greater Bombay. Separate seniority lists were
maintained for the Distt. force and the city force. The
Nasik school continued to exist side by side with 18 months
training. On the general principle of fixation of seniority
when the combined cadre service order came into force w.e.f.
1-8-54 the two seniority lists were maintained on the basis
of their passing out the training and in order of merit
obtained at the passing examination. After the formation,
when transfers were to be made, a difficulty arose in fixing
the inter-se seniority of the officers appointed after full
18 months training and one appointed after training for a
shorter period and to avoid anomaly and hardship a provision
was made in clause 7 whereby for the purpose of seniority
(i) in the case of officers whose training commenced on any
date from 1-5-39 to 1-6-1949, the date of commencement of
the training was taken and
(ii) in other cases, the dote of successful completion
of such a course and inter-se the place occupied in the
results of the examination held at the end of such a course
was taken.
When the constitutionality of Clause 7(1)(a) was
challenged, the High Court of Bombay 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
training 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 seniority whereas in
case of the officer belonging to the Greater
Bombay Police Force, the date of his
appointment was to be taken and in the
opinion of the High Court, 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 examination the impugned
clause gave an advantage even to such a bad
officer.
Dismissing the appeal appellant No. 3 and allowing the
appeal of appellants Nos. 1 and 2. the Court
^
HELD: (i) The High Court has committed an error in the
interpretation of the provision contained in clause 7(1) (a)
of the Bombay Police Officers (Combined Cadre) Conditions of
Service Order. On transfer of any police officer from
Greater Bombay to the District and vice-versa, if his
training had com-
316
menced on any date between the period of 1st May 1939 to 1st
June 1949 then his seniority was to be determined vis-a-vis
the police officer of the force to which he was transferred
with reference to the dates on which their training
commenced. It is not that in one case it will be the date of
commencement of the training and in the other it will be
date of appointment. [319-C-D].
(ii) Ordinarily and generally method of fixation of
seniority as provided in sub-clause (b) of clause 7(1)(a) of
the order was the correct and proper method to be followed.
But because of the special situation of appointment of some
police officers during the period of 10 years on a shorter
period of training, a departure was made as provided in
clause (a). There was nothing wrong, illegal or unreasonable
in making a provision in sub-clause (a) that in such a
situation the commencement of the period of training will be
taken as the date for the purposes of fixation of seniority.
There was a reasonable nexus between the object and the
rule. [319-H, 320 A-B]
(iii) 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 is
reasonable and justified. Such a provision is not violative
of Art. 14 and 16 of the Constitution. [320 B-C]
(iv) To hold clause 7(1) as ultra vires on the ground
that it gives any advantage even to such a bad officer whose
period of training had been extended on account of his
failure in the examination may be theoretically correct.
Clause 7(1)(a) was not meant to give any undue advantage to
a non-deserving police officer who failed to pass the
training examination at the proper time. [320 C-D]
(v) Clause 7(1)(a) of the order is constitutionally
valid and not discriminatory. [320-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 721 of
1974.
Appeal by Special Leave from the Judgment and Order
dated the 25th August 1972 of the Bombay High Court in Spl.
Civil Appln. No. 1831 of 1968.
V. M. Tarkunde, Sharad Manohar, V. N. Ganpule and P. C.
Kapoor for the Appellant.
M. N. Shroff for Respondents 1-3.
K. K. Singhvi, R. K. Garg, E. C. Agarwal and V. J.
Francis for Respondent No. 4.
The Judgment of the Court was delivered by
UNTWALIA, J.-The only point which falls for our
determination in this appeal by special leave is whether
clause 7(1)(a) of the Bombay Police Officers (Combined
Cadre) Conditions of Service Order, 1954-hereinafter called
the Order, made by the Government of Bombay 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 has 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 District Police Act, 1890 and the City Police of
Bombay governed by the
317
City of Bombay Police Act, 1902. Some steps for inter-mixing
and inter-transfer of officers of one force to the other
were taken by making some provisions in Bombay Act XVI of
1949 called 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 training
were sent. The period of their training was 18 months. On
passing out the training the cadets were appointed to the
posts of Sub-Inspectors of Police. Some were appointed to
the District Police Force and some were sent to the Police
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 were 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 period 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 appointed
as Sub-Inspectors of Police in Greater Bombay. This went on
for a period of about 10 years 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 seniority 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 of seniority vis-a-vis the
officer who had been appointed after completion of full
training period and the one who had been appointed on the
training of a shorter period. To avoid this anomaly and
difficulty, a provision was made in 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 equivalent 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 Districts
after a course of training at a Police Training
School,-
(a) if the training commenced on any date between
the period from Ist May 1939 to 1st June 1949 (both
inclusive) with reference to the date on which training
commenced;
318
(b) in other cases, with reference to successful
completion of such a course and inter 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 Department. 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 seniority 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 respondents 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. Appellants 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, therefore, 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
training 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 seniority whereas in
case of the officer belonging to the Greater
Bombay Police Force, the date of his
appointment was to be taken and in the
opinion of the High Court, 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 examination the impugned
clause gave an advantage even to such a bad
officer.
In our opinion, none of the grounds forming the basis
of the judgment of the High Court is sustainable. The attack
on Rule 7(1)(a) was not specifically made in the writ
application as originally presented
319
by respondent No. 4. He laid the foundation for the attack
in his re-joinder application. A counter-affidavit
thereafter was filed by the State stating the facts which
led to the framing of clause 7(1)(a). Respondent No. 4 filed
a further rejoinder. It was not disputed, rather, admitted
on all hands that at Naigaum School the training period was
much shorter than the period of 18 months which continued at
Nasik. If during the period of 10 years cadets on the basis
of a shorter period of training were appointed to the Bombay
Police Force without any specific order of the Government
(although it must not be the case) it might have affected
the validity of their appointment 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
Ist June, 1949, then his seniority was to be determined vis-
a-vis the police officer of the force to which he was
transferred with reference to the dates on which their
training commenced. 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. Suppose a Sub-Inspector A whose training had
menced-say on Ist April, 1947 resulting in his appointment
on Ist on Ist November, 1947 was transferred to the Mofussil
where, let us suppose again, a police officer B was there
whose training had commenced-say on lst April, 1947
resulting in his appointment on 1st October, 1948 then in
such a case B will be senior to A because his training
commenced earlier even though he was appointed later. But if
there be an officer, suppose C, in the Mofussil whose
training commenced-say on 1st April, 1947 resulting in his
appointment on 1st December, 1948, then he cannot be senior
to A by taking 1st June, 1947 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 interpretation on
all hands including the Government. Learned counsel for
respondent No. 4, however, submitted that the impugned
seniority list had not been prepared by the Government on
such an interpretation 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 that even if there
be any mistake or discrepancy in the seniority list which is
found to be not in conformity with the interpretation put by
us to clause 7(1)(a), then that mistake or discrepancy will
have to be removed sooner than later and the seniority list
will be set at right accordingly.
Ordinarily and generally the method of fixation of
seniority as provided in sub-clause (b) of clause 7(1)(a) of
the Order was the correct and proper method to be followed.
But because of the special situation of appointment of some
police officers during the period of
320
10 years on a shorter period of training a departure was
made as provided in sub-clause (a). A cadet who received his
full training 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
in sub-clause (a) that in such a situation 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 and 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 reasonable 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 affidavits
to show that hardly there was such a case which had got the
advantage of the 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 officer who failed to pass the training examination
at the proper time. No specific instance was brought to our
notice where such advantage had been accorded.
For the reasons stated above, the appeal of appellants
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 shall make no order as to costs.
S.R. Appeal allowed in part.
321