IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 10532 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE P.B.MAJMUDAR ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 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 Civil Judge? : NO -------------------------------------------------------- SAMRATHDAN DAJIBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR MUKUL SINHA for Petitioner No. 1-2,4 MR IS SUPEHIA for Petitioner No. 1,6-7 DELETED for Petitioner No. 3,5,8 Mr.Joshi, Assistant GOVERNMENT PLEADER, for Respondent No. 1-2 -------------------------------------------------------------- CORAM : MR.JUSTICE P.B.MAJMUDAR Date of decision: 20/07/2001 C.A.V. JUDGEMENT 1. By way of this petition, the petitioners are praying for necessary orders against the respondents, for directing them to treat the petitioners, for promotion / posting, on the same terms and conditions as are issued to the other candidates who have been selected for the posts of Police Sub Inspector along with the petitioners, treating them all equally for all purposes. 2. The facts and controversy involved in the petition are summarized as under :- The petitioners were originally appointed as Police Constables in the State Service. The Home Department of the State Government issued a Resolution on 3.11.1990, by which in order to see that the State Crime Investigation Department (Intelligence Bureau) becomes more effective and officer oriented and also with a view to seeing that the staff working in the State C.I.D. (IB) gets more incentive, the Government was pleased to reorganise the State CID (IB) and redesignate various posts. So far as the post of Head Constable is concerned, the same is mentioned at serial No.7 in the said Resolution and certain posts of Head Constable were redesignated as Assistant Intelligence Officer (of Head Constable's rank). It is provided in Clause 3 of the said Resolution that the promotion given as per paragraph 2 of the Resolution shall be only for the period of service in the State CID (IB) and shall be treated as purely fortuitous when the Officer reverts to his parent cadre. On promotion, the pay in the higher pay scale should be fixed as per the relevant rules in the B.C.S.R. Thereafter, by an order dated 17.8.1991, the Director General and Inspector General of Police, Gujarat State, Ahmedabad, passed an order, by which one step promotion was given to certain constables on the post of Assistant Intelligence Officer (equivalent to Head Constable) in the pay scale of Rs.975-1660. It is mentioned in the said order that the designation of the Head Constable is now redesignated as Assistant Intelligence Officer. According to the said order, 127 constables were promoted to the post of Assistant Intelligence Officer, which was treated as equivalent to Head Constable. It is also mentioned in the said order that such promotion will be absolutely temporary. Accordingly, the petitioners were promoted by the said Circular at Annexure `B' to the post of Assistant Intelligence Officer (equivalent to Head Constable). 3. Initially, this petition was filed by 8 petitioners. However, names of original petitioner Nos. 3, 5 and 8 were subsequently deleted, as they were promoted on the post of P.S.I. By Notification dated 7.12.1991, which is at Annexure `D' to the petition, rules governing recruitment to the post of Assistant Intelligence Officer (equivalent to Head Constable Grade I) in the State Crime Investigation Department were published. In paragraph 2, it is provided that appointment to the post of Assistant Intelligence Officer (equivalent to Head Constable Grade I) in the State Crime Investigation Department (Intelligence Bureau) Class-III shall be made by transferring persons from amongst the Head Constables Grade-II (Armed Branch or Unarmed Branch or Wireless Branch) and constables working in the Gujarat Subordinate Service Class-III Police Department to the State Crime Investigation Department (Intelligence Bureau). It is also provided in paragraph 3 that appointment mentioned in paragraph 2 shall be made on merits and suitability. By another Resolution dated 15.2.1995, which is at Annexure `E' to the petition, the pay of the A.I.O. was fixed as that of the Head Constable Grade I. As per the said order at Annexure `E', the pay scale Rs.975-1660 of Assistant Intelligence Officer (equivalent to Head Constable Grade II) was ordered to be revised as per the Resolution of the Home Department of the State of Gujarat and it was decided that their pay should be revised to Rs.1320-2040, treating as a promotion in the cadre of Head Constable Grade I. Respondent No.2 therafter invited applications from the Head Constables who were in service as Head Constables since last five years and who have not crossed the age limit of 54 years for the purpose of allowing them to appear at the examination which was to be held for appointment to the post of Police Sub Inspector. The said letter / circular is produced at Annexure `F'. It is the say of the petitioners that since they were serving as A.S.I., which is equivalent to Head Constable's Grade and since in the said post of A.S.I., their experience was more than five years, they were eligible to be considered for promotion to the post of P.S.I. and accordingly, they also applied for such appointment. It is not in dispute that their applications were sent to the concerned authorities and subsequently, the petitioners were permitted to appear in the examination. 4. The Additional Director General of Police, Computer, Gandhinagar, addressed a letter to the Additional Director General, C.I.D. (I.B.) on 1.10.1997, asking him to submit information regarding eligible candidates, who were in the cadre of Head Constables (Unarmed), and stating that such Head Constables may be informed that they are given permission to appear in the examination. Therafter, by another letter at Annexure `H', dated 17.10.1997, the petitioners were informed that they are permitted to appear at the examination and they were also informed about the examination centre. There is a reference about 16 candidates in the said letter at Annexure `H', which includes the names of the present petitioners also. It is not in dispute that the petitioners appeared in the said written examination and were declared successful in the same. One Mr.R.D. Thamne, Chairman and Director General of Police, Computer-cum-State Crime Record Bureau, Gujarat State, Gandhinagar, sent the names of the selected candidates to the concerned office, with a request that the selected candidates may be informed accordingly. At the bottom of the said letter, it is also mentioned that the copy of the same is also given to the Additional Director General of Police, I.C., Gujarat State and D.S.P. Office. Accordingly, the petitioners have cleared the written examination successfully and thereafter, letters were issued to them for appearing for personal interview. It is averred in the petition that as per their information, the petitioners came out successful in the oral interview also. Thereafter, on the basis of such written and oral examinations, the Department, by its order dated 24.11.1998, gave posting order to 342 selected candidates. It is the say of the petitioners that the said 342 candidates appeared along with the petitioners in the written and oral tests. However, the petitioners were left out from the benefit of getting such posting orders and the selected candidates were also sent for training of P.S.I. and the petitioners were not sent for such training of P.S.I. On enquiry, some of the petitioners came to know that they were deprived of such posting orders on the ground that they were not eligible for appointment on the post of P.S.I. as they cannot be treated as Head Constable in the State Service and that their service as A.I.O. cannot be considered as experience as a Head Constable, though, of course, there was no written communication in this behalf. It seems that, initially, the petitioners filed Special Civil Application No.10188 of 1998. However, this Court, vide its order dated 30.11.1998, rejected the same on the ground that the petitioners had approached the Court without making a formal representation and that there was merely an assertion in the petition that they came to know that they were not selected on a particular ground. Therafter, the petitioners made a representation to the authority, which was, subsequently, turned down on 5.12.1998. The said order rejecting their representation is produced at page 58 as Annexure `N'. It is stated in the said order that as per the provisions of Rule 165 of the Gujarat Police Manual, those unarmed Police Head Constables, who are not above 54 years of age on 31.12.1997 and those who have completed five years will be treated as eligible. It is stated in the said order that those Unarmed Head Constables who continued for five years in the State Cadre only will be eligible for appearing at the examination. It is also further stated that those who have got the benefit of one step promotion in C.I.D. as I.O./A.I.O. and such other categories of employees mentioned in the said order, like Wireless and Radio operators, are not eligible to appear at the examination for promotion to the post of P.S.I. It is also stated that since the duty which is being performed by them is of a limited nature and since they have not got practical experience in performing duties like investigation of crime, maintenance of law and order, etc. they may not be very useful in Unarmed Force. One Mr.C.P. Singh, Director General and Inspector General of Police, passed the said order. It was also mentioned in the said order that the predecessor of Mr.Singh (who passed the earlier order) has committed mistake in allowing the petitioners to appear in the examination. Accordingly, by the aforesaid order, the representation of the petitioners was rejected, with detailed reasoning, as mentioned in the said order. The petitioners, therefore, ultimately challenged the said action by way of filing the present Special Civil Application. 5. It is the say of the petitioners that for all purposes, the petitioners are Head Constables and accordingly, they were eligible for appearing at the examination for promotion to the post of P.S.I. and, therefore, permission was rightly given to them by the earlier Officer and they have come out successful in both the written and oral tests. It is also the say of the petitioners that the post of A.I.O., which they were holding, was treated as equivalent to Head Constable, and on the said post of A.I.O., they have served for more than five yeas and accordingly, they were eligible for appearing at the examination for promotion to the post of P.S.I. By amendment in the petition, paragraph 14-A was added and it was averred in the said paragraph that the petitioners were sent on deputation on one-step promotion basis as Head Constables equivalent to A.I.O., initially for a period of three years. However, subsequently, by virtue of Notification dated 7.12.1991, they were deemed to have been appointed as A.I.O. on permanent basis. It is stated that the fact that they were still continued as A.I.O. after the period of three years from 17.8.1991 goes to show that they were deemed to have been appointed on permanent basis. It is also averred that Rule 165 of the Gujarat Police Manual makes no distinction between temporary or permanent Head Constables or Head Constables on deputation. It is also further stated that the petitioners, having been found to be more suitable on scrutiny, were, ultimately, considered for promotion to the post of A.I.O. (equivalent to Head Constable) and at that time, they were selected on merit and accordingly, were appointed as A.I.O. The petitioners have also annexed Annexure `O' dated 20.11.1990, wherein it is mentioned that on completion of five years on deputation as a Head Constable, one can appear in departmental examination for promotion to the post of P.S.I. It is the say of the petitioners that they having been found more suitable and having successfully come out in the suitability test and having completed five years' continuous service on the aforesaid post of A.I.O., which is recognised as equivalent to Head Constable, they were eligible to be promoted to the post of P.S.I. It is also averred by way of amendment in the petition that assuming that the petitioners are only constables and not Head Constables, then also, persons holding lower ranks are eligible for appearing in the examination for promotion to the post of P.S.I. and in that way, they were eligible to appear in the said examination. Reference to Rule 61(1) of the Gujarat Police Manual is made in this behalf to substantiate the aforesaid say. It is also stated that the interpretation of the earlier Director General and Inspector General was absolutely legal and proper and that the respondent had no authority to review his order and to take a contrary view. 6. This Court (Coram : R.M. Doshit, J.), while admitting the matter on 9.2.1999 passed the following order :- " ... ... ... Therefore, by way of interim relief, it is directed that the respondents shall permit the petitioners Nos.3, 6 and 8, i.e. those who have been promoted as head constable in their parent department, to take necessary training and if otherwise found fit for promotion, shall promote them as sub inspectors. It is, however, clarified that the promotion given to the petitioners nos. 3, 6 and 8 pursuant to this order shall be ad-hoc and subject to the final order that may be made by this Court. Further, said petitioners nos. 3, 6 and 8 shall not be entitled to further promotion from the post of sub inspector, if they are so promoted, on the basis of such promotion without express order of this Court. Interim relief to rest of the petitioners is refused. ... ... ...." Accordingly, original petitioner Nos. 3, 6 and 8 were permitted to go for training, because, it seems that, in the meanwhile, they were promoted as Police Sub Inspector in the parent Department. The remaining petitioners, who were not permitted to appear in the written examination, filed Letters Patent Appeal No.272 of 1999 before this Court and the said Letters Patent Appeal was allowed and it was found by the Division Bench that all the appellants were permitted to appear in the written test as well as oral examination and they have successfully undergone the same. On the aforesaid basis, while allowing the Letters Patent Appeal, the Division Bench permitted the remaining petitioners also to undergo the training. The Order of the Division Bench in Letters Patent Appeal No.272 of 1999 is reproduced as under :- " ... ... ... 9. From the above portion, it is clear that interim relief was granted in favour of petitioner Nos. 3, 6 and 8 and they were ordered to be sent for training subject to the final order which may be made by the Court. It was also clarified that they will not be entitled for further promotion from the post of Sub-Inspector even if they were promoted without express order of the Court. The interim relief to the rest was refused by the learned single Judge. 10. At that stage, a prayer was made on behalf of the AGP to stay the operation of the order and the learned Single Judge granted stay for a period of five days from the date of the order. It is stated by Mr.Hasurkar that the above order is not challenged so far by the State Government. 11. Out of the remaining five petitioners, four appellants, i.e. original petitioner nos. 1, 2, 4 & 5 have filed present LPA. Mr.Mukul Sinha, learned Counsel for the appellants contended that when the petition was admitted, obviously the learned Single Judge was of the view that prima facie case was made out. Rule was, therefore, issued. Regarding interim relief, the Counsel submitted that interim relief was granted by the learned Single Judge in favour of petitioner nos. 3, 6 & 8. Though nothing was stated in the impugned order as to why interim relief was refused qua present appellants were probably in view of the fact that the appellants were not Head Constables in the parent department and were granted accelerated promotion in CID (IB). Mr.Sinha submitted that if under the relevant rules both the conditions were required to be satisfied for the purpose of treating a person eligible to promotion to the post of Police Sub Inspector; i.e. (1) Promotion as Head Constable and (2) Completion of five years of service, they were not fulfilled even by petitioner nos. 3, 6 & 8. Yet the learned Single Judge granted interim relief in their favour considering a letter - communication Annexure "O" dated 26.11.90. In the said Annexure, it was stated that armed-unarmed police constables - Head Constables will be given accelerated promotion in one step and that if they would complete a period of five years on deputation, they will be permitted to appear in the departmental examination for Sub Inspector of Police. Admittedly, the petitioner nos. 3, 6 & 8 have not completed 5 years after they were permitted as Head Constables. In fact, looking to the affidavit in reply of A.K. Bhargava, Additional DGP (Administration), in Para 5 & 6, the petitioner no.3 was promoted as Head Constable on 9.8.95 (wrongly shown as 9.8.98) and Mohammed Hanif Vora petitioner no.8 on 24.11.95. Thus neither of them had completed five years. Regarding petitioner no.6, it was stated that he was originally appointed as Constable. However, at his own will, he got his cadre changed to that of Wireless Operator and got enhanced promotion for better prospects. The learned Single Judge was of the view that though they had not completed five years on promotional post of Head Constables, they should be considered eligible for promotional post of PSI and can be sent for training by invoking the doctrine of estoppel as reflected in a communication dated 26.12.90. The learned Counsel submitted that the same principle would apply to the case of the appellants also. 12. In our opinion, the contention is well founded. It is true that the present appellants got accelerated promotion in view of their showing willingness to go to CID (IB) but Annexure "O" is clear and provides for accelerated promotion as Head Constables and after completion of five years as Head Constable on deputation, they can be permitted to appear at the departmental examination conducted for the post of Sub Inspector of Police. As stated in the petition, all the appellants were permitted to appear at the written test as well as oral test and they have successfully undergone them. In this view of the matter, in our view, the learned single Judge, by refusing interim relief in favour of the appellants, has committed an error of law which requires to be corrected. 13. In the result, the appeal is allowed and the respondent authorities are directed to extend all the benefits which are ordered to be extended by the learned single Judge in para 5 of the order dated 9.2.99. It is, however, clarified that the said order would be subject to the final outcome of Special Civil Application No.10532 of 1988. It was stated that the training has already commenced and it may not be proper to permit the appellants to join such training at the mid-way. It would also not be appropriate to direct the authorities to allow the appellants to give incomplete training. We see substance in the submission. It is, therefore, directed that the respondents will permit the appellants to impart such training in the next batch. 14. It is open to the authorities to request the learned single Judge to take the main matter for final disposal in view of urgency and important question which is agitated. As and when such a prayer would be made the learned Single Judge would consider the same and take appropriate action. The appeal is accordingly allowed to the extent indicated above. There shall be no order as to costs. ... ... ...." Accordingly, all the petitioners have undergone training which is required for the post of P.S.I. 7. Mr.Sinha, learned Advocate for the petitioners, argued that absolutely on irrelevant ground, respondent No.2 denied the claim of the petitioners for promotion to the post of P.S.I. It is submitted that, subsequently, original petitioner No.3, Sabbir Mohmmad Islamkhan, who was not at the relevant time serving as a Head Constable Grade I, was still promoted to the post of P.S.I. on the basis of his passing written and oral examinations. He submitted that even though those candidates who have not completed five years' service as Police Head Constable are promoted to the post of P.S.I., there is no reason why the petitioners should not have been given similar treatment. Mr.Sinha further submitted that so far as A.I.O. is concerned, it is equivalent to Head Constable and accordingly, they were rightly permitted by the predecessor of the respondents to appear in the written and oral examinations. According to Mr.Sinha, it was not open for the respondents to review the predecessor's decision, especially when the petitioners were not only permitted, but they appeared in the written and oral tests and successfully cleared them. Mr.Sinha also further submitted that some of the Head Constables in the State cadre had filed Special Civil Application No.5199 of 1998, challenging the decision, by which the petitioners were allowed to appear in the written and oral test on the ground that the petitioners are not having experience of Head Constable on the Parent Department, i.e. in the State Service itself, and, therefore, they were not eligible for promotion to the post of P.S.I. This Court (Coram : N.N. Mathur, J.), by his order dated 6.9.1999, rejected the said petition by observing as under :- " ... ... ... Heard the learned Advocate for the petitioners. The petitioners have challenged the selection of respondents No.3 to 11 on the post of Police Sub-Inspector on the ground that they were Constables in their original cadre and they were on deputation on the basis of one step promotion as Head Constable in CID (I.B.) branch, and, therefore, they lack their minimum qualification for promotion on the post of Police Sub-Inspector. In my view, there is no substance in the contention raised by the petitioners. The requisite qualification is certain experience on the post of Head Constables. There is no requirement that a person should have experience on Head Constables only in the parent cadre. I do not find any merit in this Special Civil Application and the same is accordingly rejected. ... ... ...." According to Mr.Sinha, when this Court also negatived such contention which was raised at the instance of the contesting rival Police Head Constables, there was absolutely no reason worth the name for the respondent No.2 subsequently to cancel the decision made by his predecessor as if he was reviewing that decision. It is stated by Mr.Sinha that when the selection of these very petitioners was upheld by this Court by rejecting the said Special Civil Application, it was not proper on the part of the respondent No.2 thereafter to cancel the selection of the present petitioners. This Court has specifically observed in the said order that the requisite qualification is certain experience on the post of Head Constables. There is no requirement that a person should have experience of Head Constable only in the parent cadre. Ultimately, therefore, this Court has upheld the selection of the present petitioners by dismissing the aforesaid Special Civil Application filed by the contesting rival candidates. It is, therefore, submitted by Mr.Sinha that when the petitioners have put in experience of more than five years as A.I.O., which is equivalent to Head Constable's rank, and even as per the order