JUDGMENT
N. Pandey, J.
1. This petition under Article 226 of the Constitution of India, has been filed for an appropriate writ/order for quashing advertisement No. 1 of 1998, issued under the signature of the Director-General-cum-Inspector-General of Police (respondent No. 3) published in the daily newspaper ‘AAJ’ dated 28-8-1998 whereby and whereunder, applications were invited from eligible candidates for selection to the post of constables in different districts of this State. A prayer has also been made to command the respondents that steps for selection for the constables be taken strictly in terms of clause 663 of the Bihar Police Manual (In short the Manual).
2. I have heard the learned Counsel for the parties, therefore, this writ petition is disposed of at the stage of admission itself.
3. Before adverting to the facts of this case, I feel proper to answer the objection of the learned Additional Advocate-General regarding maintainability of the writ application filed on behalf of the Bihar Police Men’s Association and another. He contended that such a body of Association cannot agitate the cause of those who are yet to be appointed. It was contended that an uncorporated body like the petitioner – union which is not a juristic person, cannot get right of other persons to enforce through the machinery of the Court. In support of such a contention, Mr. Singh also relied on a decision of the apex Court in the case of State of Orissa v. Ram Chandra Dev and Ors. and yet another decision in the case of D. Nagaraj etc. v. State of Karnataka and Ors. etc. .
4. In my view, the facts of the abovementioned cases and the reliefs sought for are quite different. These cases may not be applicable to the facts of the present case. In this case, as averred in the writ petition and not controverted in the counter-affidavit, the petitioner-Union has already been recognised by the State Government. The main object of the Association is that candidates having qualification as prescribed under clause 663 of the Manual should be appointed to the Police Force. In the present case, the petitioners are also the members of Police Force. Their primary object is that best candidates of requisite height and merit be recruited and appointed to the Police Force. Therefore, to my mind since the petitioners besides their cause, are also highlighting the grievance of other members of Police Force, therefore it would not proper to hold that the writ application on their behalf is not maintainable. Accordingly, I find no merit in this submission.
5. Now coming to the facts and circumstances of this case, one of the relevant questions raised on behalf of the petitioners for consideration is whether the criterian prescribed under clause 663 of the Manual, for appointment of the constables can be substantially changed, altered or subtracted by Police Order No. 202/88 without prior approval of the Cabinet.
Learned Additional Advocate-General, on the other hand, laying emphasis on the expression “organisation” as used under Section 12 of the Police Act (V of 1861) (In short “the Act”) contended that the Legislatures have delegated full authority to the Director-General of Police to amend such rules or order, as he may deem expedient for appointment, etc. to organise a Police Force. Therefore, either to make any change or to alter the provisions enumerated under clause 663 of the Manual, approval of the Cabinet was not necessary.
6. Undisputedly, the procedure and process for appointment of the constables and the disciplinary actions, etc. against the members of force are to taken up on the basis of the criteria enumerated in the Police Manual. This is also not in dispute that the Police Manual was issued under the authority of the State Government enumerated under Sections 7 and 12 of the Police Act after approval of the Cabinet. As per Section 7 of the Act, the State Government may from time to time confer power on the Director-General of Police-cum-Inspector-General, Deputy Inspector-General and certain others classified therein for dismissal, suspension, removal, discharge, etc. of any subordinate officer. Section 12 confers power upon the Director-General of Police-cum-Inspector-General to frame rules from time to time, subject to the approval of the State Government, which he may deem expedient relating to the organisation, classification and distribution of Police Force, places at which the members are to reside and all other such rules for determining abuses or neglects of duty and for rendering such force efficient in discharge of its duty.
7. As per Clause 663 of the Police Manual, which exclusively deals with the procedure for selection, a strong, healthy, young man between the age of 19 and 27 years and having passed secondary (i.e. Matriculation) examination, shall be selected as recruits as far as possible. But, endeavour should be made to get a man of higher standard: (i) for general height: 163 cms., chest: 80 cms., and (ii) for Scheduled Castes and Scheduled Tribes, height: 158 cms. and chest 78 cms.
8. As noticed above the main attack is with respect to Police Order No. 202/88 which prescribes the minimum qualification for a constable as class VII and further that a preference is to be given to the height of a candidate over and above all other criteria. In other words, a tallest man even having the minimum qualifications up to class VII is to be preferred in comparison to those who had the qualifications of the matriculation as required under Clause 663 of the Manual,
9. Mr. Shahi contended that as would appear from the Police Act, conditions prescribed for appointment, dismissal or organisation of the Police Force as enumerated under Sections 7 and 12 of the Act are subject to prior approval of the Cabinet.
But, no prior approval of the Cabinet was obtained before issuance of the Police Order No, 202/88 as was done while publishing the Police Manual. Hence, the letter of the Secretary to the Government dated 25-8-1998 for change of the criteria for appointment prescribed earlier under Clause 663 is quite illegal, arbitrary and beyond and delegated power.
10. As I have already noticed that Section 12 of the Police Act empowers the Director-General of Police to frame such rule as he may deem expedient for the organisation, classification and distribution of Police Force, etc. but no authority has been delegated under the instant provision to the Director-General to frame rule or issue order in order to prescribe the mode and criterion for appointment. In this context, it would also be useful to refer to a judgment of the apex Court in the case of State of Rajasthan v. Ram Saran , where a question identical to the present was raised for consideration whether Section 12 of the Police Act empowers the Inspector-General of Police to issue standing orders prescribing condition of service of Police Force. Their Lordships while holding that the expression “Organisation” referred to under Section 12 of the Act, has nothing to do with the determination of service conditions of the officers recruited to the Police Force and concluded in these words:
It is clear that the orders and rules referred to in this Section have nothing to do with the determination of the service conditions of the officers recruited to the police force. The expression “organisation” cannot, in our opinion, include within its fold the conditions of service of those in the Police Force.
11. A reference in this regard will also be relevant to the provisions of Section 2 of the Police Act which says that Police Force shall for the purpose of the Act, will be constituted in such a manner as prescribed by the State Government. Material portion of it is the second paragraph which reads thus:
Subject to the provisions of this Act, the pay and all other conditions of service of members of the subordinate ranks of any police force shall be such as may be determined by the State Government.
Thus, it is further clear from the aforesaid provisions that the Director-General of Police has no power to frame rules regulating condition of service of the members of the Police Force. I, therefore, find no merit in the submission of the learned Additional Advocate-General that the State Government has delegated its power to Director-General to make rules or regulation to determine the service condition of the Police Force. It is well settled that a power to make rules cannot be delegated without express statutory provisions therefor.
12. The Addl. Advocate-General then contended even assuming that the Director-General has no power under Section 12 to frame rules regarding service condition of a Police Force, since undisputedly, under Sections 2 and 7 of the Police Act, the State Government is conferred with power to frame rules from time to time regarding service condition of Police Force, therefore, there is nothing wrong if by the Police Order No. 202/88 the requisite eligibility criteria was changed.
13. In my view, from a bare reference to the provisions of Sections 2 and 7 of the Act, there cannot be two opinions that the State Government has the full competence to prescribe rules regarding service condition of the members of the Police Force. But, it has been noticed that criteria of eligibility of a candidate was prescribed under Clause 663 after getting prior approval of the Cabinet which requires that a strong, healthy young man between the age of 19 and 27 years and having passed secondary (i.e. Matriculation) examination shall be recruited as far as possible. By the instant amendment by the Police order, the requirement of requisite qualification of matriculation has been reduced to Class VII standard without any approval of the Cabinet of Ministers. Therefore, to my mind such an alteration or change of the provision appears directly in conflict with the provision which was approved by the Council of Ministers.
14. That apart, as would appear from Annexure-2, a letter of the then Director-General of Police dated 24-1-1997, that having visualised inherent defects in the Police Order No. 202/88, he recommended before respondent No. 2 for evolving some scientific and prudent criteria for selection and appointment of the Police constable. He had also suggested that different points should be allotted to the educational qualification of the candidates besides the points on the basis of height and chest. The State Government also, as would appear from Annexure-4 vide letter dated 29-6-1997, had approved such recommendations and decided to change the police order. But, all of a sudden by the letter contained in Annexure-A dated 25-8-1998, the Director-General of Police was informed by the Addl. Secretary to the Government to adopt the old criterion as was prescribed under Police Order 202/88.
15. In my view, the respondents have failed to appreciate that there appears no laudable object behind such a change to reduce eligibility of a candidate from Matriculation to Class VII. It should not be undermined that Clause 663 of the Police order was framed as back as in the year 1978 prescribing the requisite qualification for a constable as matriculate. Therefore, there cannot be any justification to reduce the qualification from Matric standard to Class VII, particularly when the stage is set for the country to step into the 21st century as also having regard to the growing literacy amongst the general masses. In my view, such a decision would not only be ridiculous rather unreasonable to reduce the qualification to Class VII standard, a certificate of which, as I have heard, can be contained by anybody even without going to the classes: To select a candidate of better height and chest, there cannot be any justification, to reduce the requisite qualification of Matriculation. In case, two candidates are having some qualifications, preference can be given to the candidate having better height and chest. Therefore, in my view these are the basic circumstances which should be considered by the State Government before taking such a drastic and unreasonable decision.
16. A grievance was further made that as would appear from the advertisement that the woman candidates of general category have not been allowed to apply for appointment to the post of constable whereas such candidates belonging to the Backward classes have not only been permitted to make applications rather reservation was also provided.
17. Although a counter-affidavit has been filed on behalf of the State but no statement whatsoever has been made under what circumstances women candidates of general category are not entitled to apply for appointment whereas other women of the backward classes are being allowed nor any statutory rules or Government instruction was brought to my notice to justify such a discrimination. Because unless and until there are justifiable reasons for such restrictions for a particular section of women candidates such a restriction has to be held illegal, arbitrary and discriminatory violative of the principles of Articles 14 and 16 of the Constitution. Therefore, I have no option but to declare such a restriction unreasonable, arbitrary and without any nexus to the object.
18. Mr. Shahi then contended that in view of the judgment of the apex Court in the case of Indira Sawhney v. Union of India 1992 Supp (3) SCC 217 and a later judgment in the case of Ashok Kumar Thakur v. State of Bihar and Ors. , the decision of the Government to extend benefit of reservation to the candidates of Backward Classes is against the mandate of the apex Court. Because such a privilege cannot be granted unless there is specific identification and exclusion of the affluent or creamy layer amongst the Backward Classes. In other words, unless there is distinct identification of a creamy layer, disparities are bound to occur in the class itself.
19. It has to be noticed that undisputedly, the State Government having the command of the apex Court in the case of Indira Sawhney (supra) had fixed a criteria for identification of creamy layer vide an Ordinance called The Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Ordinance, 1995 (V of 1995). But, the said criteria for identification of “creamy layer” adopted by the State Government was found violative of Article 16(4) of the Constitution as wholly arbitrary and against the law laid down in Mandal’s case and, therefore, was struck down by the apex Court in the case of Ashok Kumar Thakur (supra).
20. It would further appear while striking down such criteria, the State of Bihar was also directed that unless and until, a fresh criterion is fixed, the criterion laid down by the Government of India for the relevant academic year i.e. 1995-96 be followed. Nothing has been brought before me by the State Government that any fresh criterion was laid as directed by the apex Court. In the facts, and circumstances, therefore, to my mind it was mandatory on the part of the State Government to identify the “creamy layer” amongst the Backward Classes to extend the benefit of reservation to the class which remains after such exclusion. The Supreme Court, as noticed above, had specifically directed the State Government to adopt the criterion afresh for the subsequent years in accordance, with law. But unfortunately, nothing has been done so far to comply with such a decision. Therefore, to my mind the State Government has no option to prescribe such a criterion positively failing which a question will arise whether appointments made without determining the criteria are illegal as violative of the provisions of Article 16(4) of the Constitution.
21. For the reasons stated above, I dispose of the writ petition with the following directions to the State Government; (a) to prescribe the criterion to fix the “creamy layer” as directed by the apex Court positively within a period of “six months” from the date of receipt/production of this order and (b) within the same time as indicated above, suitable amendment of the Police order must be made in accordance with law and in conformity with Clause 663 of the Police Manual and also having regard to the recommendations of the then Director-General of Police, vide his letter dated 24-1-1997, contained in Annexure-3, failing which no advertisement can be made thereafter. I am sure while redetermining such a criterion, the State Government will also keep in mind the observations made in this order.
22. But, in the facts and circumstances of the case, since the Police Order No. 202/88 was brought into service long back, therefore, what is already done, cannot be undone in this case save and except as discussed above. With these directions/observations, this writ application is thus disposed of.