IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5004 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? @ SUDHAKAR SHRIDHAR PATIL Versus DY COMMISSIONER OF POLICE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5004 of 1991 MR YN OZA for Petitioner No. 1-4 MR LB DABHI ASSTT GOVT PLEADER for Respondent No. 1-4 -------------------------------------------------------------- CORAM : MR.JUSTICE J.R.VORA Date of decision: 04/09/2002 ORAL JUDGEMENT #. Learned advocate Mr.Saurabh J. Mehta on behalf of Mr.Y.N.Oza, learned Senior Advocate is heard for petitioners, while Learned AGP Mr.L.B.Dabhi was heard for respondents. #. This petition is filed by the Police Constables invoking jurisdiction of this Court under Article 226 of the Constitution of India against the cancelling of the select list prepared for transferring the Police Constables from Armed Branch to Unarmed Branch vide order dated 4th August, 1988. #. By Circular of the Police Commissioner, Surat dated 28th October, 1985, it was decided that Armed Police Constables of Surat District were to be transferred to Unarmed Branch of Police Department. Therefore, a select list dated 5th October, 1987 was prepared of 14 Constables including petitioners for transferring them to unarmed Department from Armed Department. The said select list is Annexure-A. This circular dated 28th October, 1985 came to be cancelled vide Circular dated 4th August, 1988 annexed as Annexure-C to the petition from retrospective effect and hence the petitioners are before this Court challenging the actions of the respondents cancelling Circular dated 28th October, 1985 and select list dated 5th October, 1987 [ Annexure-A ] with retrospective effect as illegal, void and arbitrary. The main grievance which was voiced pertains to legality of canceling the Circular dated 28th October, 1985 and select list prepared in pursuance of the said Circular dated 5th October, 1987 from retrospective effect. It was also vehemently urged that the petitioners suffered arbitrary and discriminatory treatment by the respondents inasmuch as except the persons mentioned in select list dated 5th October, 1987, Constables earlier so selected had already undergone training and were transferred to unarmed branch from armed branch. It was urged that appropriate Writ be issued for quashing and setting aside the order dated 4th August, 1988 [Annexure-c] which in turn came to be confirmed by order dated 31st May, 1991 and a further direction is also sought to direct the respondents to impart training to the constables shown on select list dated 5th October, 1987 [ Annexure-A ]. #. Learned AGP Mr.Dabhi has drawn the attention of this Court to Affidavit-in-reply filed by the Additional Commissioner of Police [Administrative], Surat City and the Annexures thereto. Annexure-1 to the Affidavit-in-Reply is the notification, by which, the Government of Gujarat has made Rules for regulating recruitment to the post of Constable [ Armed Branch, Unarmed Branch and Women Branch ] in Gujarat Subordinate Services in 1979. Annexures-2 & 3 are subsequent circulars issued by the respective Police Commissioners. #. Having perused the record and having considered the contentions raised by both sides, it is clear that there are different recruitment Rules viz. Constable [ Armed branch, Unarmed branch, Women branch ] Recruitment Rules, 1979 which is annexed to the Affidavit-in-reply of the respondents for the post of armed branch, unarmed branch and women branch. Any recruitment in violation of the Rules, would be illegal and cannot be sustained. However, by circular dated 28th October, 1985, the Police Commissioner, Surat city issued circular to transfer armed police constable to unarmed police branch and prepared the select list which is at Annexure-A. Having regard to Annexure-1 to the affidavitin-reply which are Rules for the recruitment, it clearly appears that those circulars were in violation of statutory provisions. Benefit claimed by the petitioner on the basis of illegal or invalid action of the authority especially to the extent to validate the illegal action of the concerned authority which is clearly in violation of statutory provisions, cannot be granted. It can never be said that any arbitrary or discriminatory treatment was given to the petitioners in cancelling Circular dated 28th october, 1985 and select list prepared thereunder, for simple reason that a Constable gets right to be recruited in Armed or Unarmed department only on the basis of Recruitment Rules as placed on record as Annexure-1 to the affidavit-in-reply. Except recruitment in this channel, the petitioners cannot be heard to say that they had right to be transferred to unarmed branch and cancelling such transfer which was in violation of statutory provisions would be imparting them with discriminatory or arbitrary treatment. No such right of the petitioners is violated as to entitle them to have relief claimed. #. Administrative authorities have powers to correct their mistakes even by retrospective effect, if the same comes to their knowledge, that itself, would not give cause of action to the petitioners to be entitled to be granted the relief under Article 226 of the Constitution of India, especially where such error is committed in contravention of Statutory provision. In the petition, though it is mentioned that some other persons are recruited in the same manner and were given training, learned advocate for the petitioners failed to show that who are those constables. However, the position is made clear by circular i.e. Annexure-3 of the affidavit-in-reply of the respondents. The basic difference between the present petitioners and the other constables, even if we assume that such constables were transferred to unarmed branch, is, the other previously transferred Constable had started the training before the petitioners went for training, when this fact came to the knowledge of the concerned authority that action was in violation of concerned Regulations, the order came to be cancelled before petitioners started training for the same and therefore, this could not be said to be any discriminative treatment to the petitioners. Learned advocate for the petitioners cited the cases of this Court in the matter of PANDYA JASHWANTLAL M. & ORS VS. DIST SUPERINTENDENT OF POLICE, SABARKANTHA AND ORS. as reported in 1990 [1] GLR 515 and in the matter of KANTIBHAI PARMABHAI VANKAR AND OTHERS AND DIST SUPERINTENDENT OF POLICE, SABARKANTHA reported in 1990 [2] 1259. Both these matters deal with select list prepared as per the Recruitment Rules and appointment made from such select list. The ratio laid down therefore is not relevant to the present controversy. Learned advocate for the petitioners also cited a case of the Apex Court in the matter of SUKHDARSHAN SINGH V. STATE OF RAJASTHAN reported in AIR 1990 SC 404, wherein the Apex Court ruled that no provisions of the statute became operative from retrospective effect unless so expressly provided for by such legislation. The question here is to correct the error committed by the administrative authority. Here in this case, the action under which the benefit is claimed by the petitioner is void ab initio. The circular dated 25th October, 1987 itself was in violation of Recruitment Rules and therefore was void ab initio, hence, Ratio as laid down in the above said case of the Apex Court does not help the petitioners. #. In above view of the matter, this petition stands dismissed. Rule discharged. Interim Relief, if any, stands vacated. No order as to costs. Date : 4-9-2002 [ J. R. Vora, J.] #kailash#