JUDGMENT
S.K. Keshote, J.
1. These are two sets of petitions. In fact one set
is counter to the other. The parties are also common and
the matters relate to the same controversy and as such
these are taken up for hearing together and are disposed
of by this common judgment.
2. Learned counsel for the parties made arguments
with reference to the special civil application No.10594
of 1999 and for deciding these matters, the facts are
also taken from this petition.
3. The petitioners challenge by this petition the
action of the respondents of not allocating the
petitioners to the category of Unarmed Police Constable
in spite of the fact that the petitioners are, in all
respects, satisfying all the criteria for being allocated
to the category of Unarmed Police Constable and are ahead
in the merit list prepared for recruitment to Police
Constables , of some of the persons who have been
allocated in the Unarmed Police Constable category. Out
of these four matters, three arise from Banaskantha
District and one from Kutch District. In the special
civil applications No.10594/99 and special civil
application No.3061/98, the petitioners are praying for
their allocation on the post of Unarmed Police Constable
whereas in other petitions, the petitioners therein have
come up before this Court with the grievance that they
may not be sent as Armed Police Constable. In view of
the admitted facts it is not necessary to digest on the
facts of these cases in detail.
4. It is not in dispute between the learned counsel
for the parties that recruitment to the post of Armed and
Unarmed Police Constables is to be made in accordance
with the recruitment rules by a common recruitment.
However these two i.e.Unarmed and Armed Police Constables
are separate and distinct categories. It is also not in
dispute that these posts are not interchangeable.
Learned counsel for the parties are further in agreement
that the training programme for these two posts is
different. The syllabus for written examination for
confirmation on these two posts during training period is
also to certain extent different. So it is a case where
these two are separate posts which are not
interchangeable. So also avenues of promotion are
separately provided. However, the recruitment has to be
made by a common selection. Learned counsel for the
parties are in agreement that the candidates have to give
option whether they want to go to the category of Unarmed
constable or Armed Constable and they have to be
allocated to the Armed or Unarmed Constable category, as
far as possible, as per their option but as per their
merit. It is to be made clear that if a candidate gives
option for Unarmed Police Constable but another candidate
who is higher in merits has also opted for this category
then the person at lower in merits will not get this
category and he has to go to Armed Constable category.
In the first set of petitions, the petitioners, 12 in
number, who have come up before this Court for their
allocation to Unarmed Police Constable category are
represented by Shri Y.N. Oza, Sr. Advocate assisted by
Shri Nirzar S. Desai, advocate. The 17 persons who are
the petitioners in other set are represented by Shri I.S.
Supehia, advocate who are allocated as Unarmed Police
Constables and when they are sought to be allocated as
Armed Constables have filed the petitions. It is also
not in dispute that all the petitioners, i.e. 12 have
been confirmed as Armed Police Constables and 17 have
been confirmed as Unarmed Police Constable. There is
consensus amongst the advocates appearing for the parties
that these petitions have been filed by the petitioners
only after they have been confirmed on the post of
Unarmed or Armed category, as the case may be, on
completion of their training and on passing of the
examination.
5. Learned counsel for the petitioners, in one set
of petitions, Shri Y.N. Oza, Sr. Advocate, contended
that in this case while making allocation of the
candidates for Unarmed Police Constable, merits and
options given by the meritorious candidates have been
given total go-bye. The petitioners, 12 in number, are
placed at higher in number than 17 petitioners in the
other set of petitions in common select list. These 12
petitioners have given option for their appointment as
Unarmed Police Constables but ignoring their options and
merits, 17 petitioners in other set of petitions were
posted as Unarmed Police Constables. These 12
petitioners were posted as Armed Police Constables. This
is what, Shri Oza contended, is contrary to the
provisions of Articles 14 and 16 of the Constitution.
6. Learned counsel for the respondents, State of
Gujarat, Home Department and Police Department, and Shri
I.S. Supehia, appearing for the petitioners in other set
of petitions, in contra contended that the 17 persons
were given posting as Unarmed Police Constables as they
were Graduates as Unarmed Police Constables have to do
written work where more qualified persons are required
and though they were lower in merits in the merit list,
have been preferred and allocated to the category of
Unarmed Police Constables.
7. I have given my thoughtful consideration to the
submissions made by the learned counsel for the parties.
The weightage to educational qualifications may be given
while preparing the merit list. It is not the case of
the learned counsel Shri I.S. Supehia that his clients
(17 petitioners in the petitions filed by him) acquired
this higher qualification after their selection. They
were possessing this qualification on the day on which
they applied for the post and merit list has been
prepared. It is difficult to accept that while preparing
the merit list, the Selection Committee would not have
been known of and taken note of this higher qualification
possessed by these persons. The petitioner, 17 in
number, represented by Shri I.S. Supehia, were despite
of possessing this qualification were placed at lower in
number than the petitioners, 12 in number, who are
represented by Shri Y.N. Oza, Sr. Advocate, and so
whatever weightage could have been given for this higher
qualification would have been given at that point of
time. After preparation of the selection list, no
weightage can be given of this higher qualification
possessed by these persons. That stage has gone. The
allocation of the selected candidates has to be made in
order of their merits as per their options. If 12
petitioners who stand at higher merits than these 17
petitioners in second set of petitions and opted for
Unarmed Constables, should have been given the posts
accordingly. The action of the State of Gujarat and its
Officers in Police Department to give weightage to the
qualification possessed by the petitioners, i.e. the 17
petitioners, ignoring the merits and posting them as
Unarmed Police constable is wholly arbitrary and
unjustified and violative of Articles 14 and 16 of the
Constitution. There is all possibility that these
persons are favoured by the Department for some
consideration or for undisclosed reasons. The grounds
given for favouring these persons in the matter of
allocation to them on the post of Unarmed Police
Constables is not tenable in the eye of law. No
weightage could have been given for this higher
qualification in the matter of allocation after
preparation of the final panel/merit list. This action
of the State of Gujarat and its officers to allocate
these 17 petitioners as Unarmed Police Constables cannot
be allowed to stand.
8. Shri I.S. Supehia, learned counsel for these
petitioners contended that these petitions deserve to be
dismissed only on the ground of delay and laches. In
support of this contention, he placed reliance on the
decision of the Apex Court in the case of Ramchandra
Shankar Deodhar and Ors. vs. State of Maharashtra and Ors.
reported in AIR 1974 SC 259. He contended that by
allocation of these petitioners as Unarmed Police
Constable they acquired a right to continue on the post.
It is further stated that by this reshuffling their
accrued rights on the post of Unarmed Police Constable
will be disturbed. In his submission, it will result in
causing serious prejudice to these petitioners and they
will be put to risk of termination of their services
because they have to undergo training and pass
examination during the training for Armed Police
Constable for which a separate syllabus is there. In his
submission, the petitioners have already undergone the
training and passed the examination for Unarmed Police
Constable and by virtue of that they have also been
confirmed in that category. By their transfer this
confirmation shall go.
9. I find merits in some of the grievance made by
the learned counsel for these 17 petitioners but the
contention raised for dismissal of the petitions on the
ground of delay and laches is difficult to accept. It is
not in dispute that both set of the petitioners are now
Armed Constables. They have come up before this Court
after considerable delay. It is a modus-operandi,
particularly, in the Police Department where employees
and officers first take all their service benefits and
then they make the claim for other benefits. They are
very calculated in their approach and that is what they
did in the present case also. Both these sets of
petitioners have not raised any voice till they completed
their training, passed the examination and have been
confirmed on the post. Thereafter they started to raise
their claim for their appointments as Unarmed or Armed
Constables, as the case may be. Otherwise also, these
matters have been admitted. Both the counsel for the
parties made arguments on merits. It is a case where
grievance has been made that the appointing authority has
given total go-bye to the merits of the candidates in
selection and on their whims and wishes they have made
the appointments. Delay in every case may not be a
ground for dismissal of the petition. These two matters
cannot be dismissed only on the ground of delay. It is
also important to consider by the Court while examining
the plea taken by the other side for dismissal of the
petition on the ground of delay and laches whether the
petitioners have any case on merits or not. In this
case, the petitioners who are claiming for their
appointment as Unarmed Police Constables have strong case
on merits and in case this delay is taken to be fatal and
the petitions are dismissed it will certainly result in
not only causing prejudice to them but a seal to be put
on unconstitutional and illegal action of the respondents
to give total go-bye to the merits of the candidates.
As stated earlier, the training programme and
syllabus for the examination for these posts are
different. These persons have already been confirmed
after successfully undergoing the training and passing
the examination in the cadre of Unarmed Police Constable.
Now by their transfer to the category of Armed Police
Constable they have to undergo the training and pass the
examination and there may be possibility of their failure
in the training or the examination and as a result of
which, their termination of the services. However, Shri
S.P. Hasurkar, learned counsel for the respondents,
State of Gujarat and its Officers, very fairly submitted
that this Court may give direction that these persons on
their allocation to Armed Police Constable category, be
exempted from undergoing the training and passing of the
examination.
10. Shri Supehia then made another contention that
these petitioners, 17 in number, will suffer the loss of
seniority. Shri Hasurkar made a statement that this
Court may also give direction to protect their seniority.
11. Shri Supehia, learned counsel then submitted that
in L.P.A. filed against the interlocutory orders passed
in these matters, the Division Bench has given out that
some solution may be found out by the State of Gujarat
and its Officers so that all the petitioners 12 + 17 may
continue as Unarmed Police Constables. The separate
cadres are there of Unarmed and Armed Constables and
accordingly the merits have been determined though
combined recruitment is made but allocation of candidates
is to be made to the extent of posts available in these
two categories. In case what it is suggested by Shri
Supehia is accepted then the posts exceeding the number
of posts available of Unarmed Police Constables are to be
filled in, meaning thereby, there will be excess posts in
Armed Police Constable category and then that posts will
have to be filled in by giving fresh advertisement and
merely because these two category persons are fighting
these posts cannot be permitted to be exhausted by
adjusting these persons. This is an illegality committed
by the respondent – State of Gujarat and its
functionaries and for which it cannot come as a gift or
lottery to these persons and they cannot be permitted
more so when their services are not likely to be
terminated and whatever apprehension which has been
shown, will no more be there as this Court will protect
all of their service conditions. Secondly, in case, such
a course is adopted then it will give licence and free
hand and liberty to the Officers of the Police Department
to act contrary to the recruitment rules as well as
constitutional provisions and make appointment in excess
of posts available of one category. There is an
attraction amongst the candidates to go for Unarmed
Police Constable in preference to Armed Police
Constables. The incentives and attraction for the post
of Unarmed Police Constable is a matter of realisation
and not for discussion. However, any action of the
respondents which is contrary to recruitment rules as
well as the constitutional provisions and which has also
been done in total ignorance of merits of the candidates,
cannot be allowed to stand, otherwise it will result in
perpetuating illegality. Delay is certainly there in
approaching to this Court by these 12 constables but if
we go by this delay and illegality committed by the
authorities and the benefit which these 17 candidates got
and more so there may not be any endanger to any of their
service conditions which the Court is going to protect,
only on this ground, this petition cannot be rejected.
12. In the result, the special civil applications
No.10594/99 and 3061/98 succeed and the same are allowed.
It is hereby declared that the petitioners therein are to
be posted as Unarmed Police Constables. As a result of
this declaration, the special civil applications
No.6432/2000 and 7403/2000 are dismissed. However, it is
made clear that the 12 petitioners in the first set of
petitions and 17 petitioners in the second set of
petitions who are to be posted now as Armed Police
Constables and Unarmed Police Constables respectively are
not required to undergo training and pass the examination
for the cadre for which they are now to be posted in case
they have already undergone the training and passed the
examination for the category in which they were initially
appointed. It is also made clear that the seniority in
the respective cadres of Armed and Unarmed Police
Constables where they have to be posted now has to be
counted from their initial date of appointment. Rule in
the special civil application Nos. 10594/99 and 3061/98
is made absolute accordingly and in the two other
petitions it is discharged. The parties are to bear
their own costs. The respondent-State of Gujarat and its
Officers are directed to pass consequential orders of
posting of these petitioners i.e. 17 petitioners in the
first set of petitions as Unarmed Police Constables and
12 petitioners in second set of petitioner as Armed
Police Constables within a period of one month from the
date of receipt of writ of this order. Further orders as
to exempting these persons from undergoing training and
passing of the examination may also be passed
simultaneously. Next order to protect their seniority is
also to be made.
