t-* —' m..3»:. .»t.K«P»_ W*K ^m- /s tifc Stt^tetSttft Ba2.». t W,I>» 2* 13|@u^i6B^t3B^h^<t W.sfesjlte Stearf«s'^ :.8Bt*Stllatt, %*?< 3» Itosfee^ef^tws&S. 9t VB Eip-^f??^ R S » Hahendra Sin^a, S/o fiampal Singh, aged about 36 years, R/oVillage Dhongabal, P.0. Ratangaon, 'Bahsil Mhowganj, District Re^"a, M.P. <rt" L T)• •f J2l^ i -J 1 8, N® eo •-S- PrP^ HIGH COHRT OF JODICATORE CHH&TTISGARH AT BIIASPOR Writ Petitioa No. 6117 of 20QQ CwnnBaBdant lltbBn.& others VS. Maheadra Siagh & anor. 0 R D E R The followiag order of the Court was passed by R.S. Garg.iJ.- • By this petition uader Article 227 of the 1 Constitutloa of India, the petitionersseek to challenge-the correctness, validity and proprlety o£ the order dated l8.2.2o00 passed in O.A.No.1207/89 (Mahendra Singh v. CoBuaandant llth Battalian); O.A. No.3163/89 (HemIalTbapav. CoBimandant lltb Battalian); and O.A.No. 82/93 (Pooran Bahadur v. Caamandant llth Bn.). This judgment staall dispose o£ W.P.NO.S117/2000, 6119/2000 and 6120/2000 as ttie above referred Origiital Applications - were disposed of by tbe conauon order dated 18.2.2000. 2. The employee in each of tbe case was enployed by ttae petltioners as a recruit and in accordance witb Rule 37 of the Visbesh Sahastra Bal Niyam, 1973 they were reqalred to pass eertaia trainings. As each of the respoadeBt/recrait could not pass withln a period of nine moaths, tbe period was extendedby s.bc moaths ia accordance with Rule 37 anfl as each of ttae eaployee coald npt aequire the required prefic.i.ency witttin fcbe extended period, they were disel'iarged from thel.r services. Each of the eiagloyee ^ -2- being aggrieved by tbe erder of dlscharge/termination issued ©n18.2.2000, terminaling their services w.e.f. 10.3.1989, filed Original Applicatioiis before the State Adninistrative Tribana3.at Jabalpur. 3. In support ef thelr petitioa, each o£ ' the employeesubnltted that-the said Rule 37 whi.eh required the employee to attain the required prefi- cJ.ency within the extended period has beea differently interpreted by different ConBnara<3ants aad the I.G.P. and as in case of soae of the recruits a third opportunity was provided to them, these recruits could not be treated differently, they could not be discbarged frcn service aad tbey were also entitled to tfaird opportuaity. In support of tbeir eontention they f-tled the eopy o£ the order dated 20.7.95 passed by I.G., Special Armed Force, Bhilalsetting aside tbe order passed by tbe Cominaa^ant of 33rdBattalion. 4. Tbe {a:eseat petitioners iii their capacity as the respondents st.baitted before •bbe Trlbnnal that in accordaace witb Rale 37 of M.P.Visbesb SasbasfcrettBal; 'Niy<un» 1973 if the recruit does not acctui.re tbe required proficiency withiR nine months or tfae extended period, then the authorlty is gfati'tled to reaove bim froa aervice or discbarge bim. They aecordingly prayed to the Trlbuaal tbat. the petitions filed by the recruits deserved dismissal. 5. The Trlbunal after heartng th®partles came to the cenclusion that in case of seme of the employees/reeruits Rule 37 has been differently interpreted and eertaia persoas vere retaiaed in servi'ee even wben they eould not attaia tfae reqalred <\^ proficiency in second attempt, tberefore, the petitloners werealso entitled to be retaiaed in service. Granting tbelr petitloxis , the Tribanal directed that the said reeruits be taken back on duty, but lookiag to tfae long ferealt ia servlee and in the peculi.ar circunstances of the case, the matter relatlng to grant of back wages shall be dealtwltia under the disGretlon af the respondents/ pcesent. petitioners, but each of tbe recruit shall lae deemed to toe contJlnuous In sesvice for other servtGe beaeflts. Being aggrieved toy tbe sald order passed ii» favour of each o£ tbe recrult, the pe-titieners l.e. CoBBiaadant of lltti Battalioa and ikwo others have filed these petitions. 6. Dr.N.K.Shukla, learaed Dy. Advocate Geaeral, referring tc> Rales 37 and 38 of 1973 Rules submits that as Rule 37 dees aofe perait any thlrd opportunity in favour ef the unsuecessfui reeruit, In eaeh of fehe case the reeruit was rigfatly discharge froa servlce. Referring to Rule 38 he subnlts that a Coasta&le oa passi.ng the reerait's test shall be appointed to aaactive company and no person who has not served fac a period of 12 moaths in an active cempany shall be eliglble for aray agpoiiatment in special section sueb as Stores, Armourers. According to him, If Rule 37 does not talk of any thJLrd opportuaity then graat of an opportunity in favotir of soae otber reeruits would not clothe tbe recruit with sueti a rlght nor would confey Jurisdictlon apon tbe Tribanal to interfere w.l.th. the order of di&eharge. —4— 7. OB tbe etber hand, shri Prasbaat Nishra tearaed couBSel for the recruits subnit-s that Rule 37 J.f 1s read in its trae perspective woald clearly indicate ttaat it is not neeessary for tbe Ccamiandant/ appoiating authority to discharge the maa frora service because the laaguage employedin Rule 37 is that Jf the reerait again fails tp pass the recruit's test at the end of •fche extended period be 'may be' discharged by tbe Commandaiat^ Takl.Hg shelter uader the wocds "be may be discharged", leanaed cotuisel-for the recruits submits thafe -it is not mandatory upon tbe CcBamandant to disctaarge the reeruit and it would be within tbe discretion of the Ccaunandant to dlscharge or tetaia the recruit la servlce. 8. The Madhya Pradesh Vlshesh Sashastra Bal Adhiniyam, 1968 (No.29 of 1968) recel.ved the assent o£ tbe Sovernor on the 25th Noventoer, 1968. ThJs Act provldes for the coastitation and regulation of the Special Arned Force in the State of Madhya Pradesh. Seetion 3 of 1968 Act provides fer constitu- tion of ;the Si>ecial Armed Force. Subsection (2) of Section 3 pcoviSes t&at S.A.F. (Special Armed Force) sball be constitut.ed of sueb personal and maintained in sucb maaner as.»nay be prescribed. Aecerding to Section 4 of ttoe&ct. the superintendence, coatroland adminlstrataioa of the Special A-Ened Force sball, ia aceordance with the preivis.tons o£ the Act and any Rales made tbereunder vest in the Iiispeetor Geaeral aridAssinstaat InspectAr Geaeral as tbe State GAverianent raay authorj.se in tbls befaalf. Sectioa 27 of tbe Aet eonfers power upon tt»e State Ggvernment to aake ^ -5- rules for earrying oat tbe pucpose of tbe Act. Subsectioa (2) of SeetJ-on 27 provides tbat in partlcular and wi-thout prejadice to the geaerality o£ tfae forgoing pEovisioas sucb rules may provi.de £or all or any of tbe aatters referred la sub- sect-ion (2). Seetlon 27 (2), Clause (e) refers toreeruitment, organisation, classifl.cationand di.sci.plJ.ne of mefnbers of the subordinate ranlos. 8« In accordance with tt»e p®werscpnferred upoa ttae State Government; under Seetion 27, Sab- seetions (1) a*»d (2) of the Act, the State Government had aa.Se rales kaown as "The Madhya Pradesh Visbesb Sashastra Bal Niyam, 1973'*. Chapter IV of tbe Rules refers to reeruitment. Cbapter VII of tbe Rules refers to tralning. For ttae parpos® o£ tbe present peti-tioHS, we may refer to Rales 34 to Rule 38 o£ the said Rules. The said Rules read as uader : "34. Tralning BattalioBS.- The State SowerB- inent will earmarlt a few Battalioas as Traiiiing Battalioas where the tralnlng of recruits and other offL cers will be earried ottt accord- ing to the direetions of tbe Police Head- quarfeers. ^esldes this the CorBmandaats will be respoflsible £or easuring tfae maximun effj.cl.ency of tbeir subordiaates by organls- ing varlous courses in their owa Ba'ttall.ons. Officers will be liable to be sent. within or outslde the State la any Traiiiing Ceatres or lastltutions fcc speelal trainlng as and when required. Each Coapaay of the BattaJ.ioa will be called and kept at the Head-<iaarters -for at least two iaontfas £or collective training tarn and dariag this^ -6- period the Compacy will aot be called eat fer aay daties outside the Battalion exeept wJ.th ttae sanetion of the Inspector-General of Poli.ee, 36. Subject of tralnitig for recruits .-Every recruit shall be trained In such subjects as are sgecified by the Xaspeetor General of Pollce froa tiae to time. 36. A recrul.t to be tes'ted bv a CcmBiittee.- A reeruit shall fee given tra.i.niag for a period of aiae moaths in a Tral.nlag Battalioa at tbe end of which he staall be tested by a Conni.ttee appolnted by the CeBBnandant of the Training Battalioa. The tes-t sball be so earried out as to see whether -the reeruit has Gbtai-Bed proficieacy ia tfae subject of traiaing . On his having attaiaed pcof.i.ciency, he shall be reported fit and oa tbe flnal orcters of the CQnimandant shall be consldered as trained Constable aad put in a section in an aetive Compa^. 37. Exteasion ef the training period. If the recruit fails to attaln tbe reqaired proficiency within a period o£ aine months, the period of trainiBgtnay be extended for a furtber period laot exceediag slx monttas tinless there are special reasons o If he fails again to pass the recrujts test at the ead of tbe extended period he may be disebarged by ttae Commandant. 38. AppQintmeat to aa Aet.Lye Comsany.- A constable on passing tt>e reerult's test shall be appointed to an Ac&ive Cerepany. No perso^ whp has not served for a perlod of 12 months ia aa Active eompany sball be eligible for any appointnieBt ia Special sectieBSueh as Stores, Anaeurers.'' 10. Aceordiag to Rule 35 every recrixitshall be trained in such subjee'fcs as are specifiedbythe laspector Oeneral ofc Poll.ee from time to ttoe. Rule 36 •7- 1 says •that a recru.i.t shall be glven training for a period ef iilae moaths in a Training Battaliom, a test stiall l»e carried eat to see whether the recruit has obtaiaed proficieney in the subject of trainlng and on his hav.iag attained pcoficiescy he shall be repaBfceel-'.fit and on the final orders of the CoaamaBdaBt shall be consi.dered as trai'ned constable and put ia a seetioa in an Active Campany. 11. If tbe reeruit does net aequire or attaiaast-tbe requlred proflcleacy witfain the period oS aine moatbs, tben in aecordance with Rule 37 the perlod of training taay be exteaded for a further period not exGeeding six months ualess there are specJ.al reasoas. If ttae recruJlt falls again to pass tbe reeruit's test at tbe ead of the extended perlod he raay be discharted by tbe Ccainandaat. Rule 38 says that on passiag the recruit's test a constable shall be appointed to an Active Conpany but ao person whe has aot served fer a.period of 12 montbs iQ an Active Corapany shall be eltgijgle for any appolatmeat ia speeial sectien such as Stores, Armourers. 12« Dr. El.K.shukla. learned Bepaty Advoeate General, submits tbat a eohjoint reading of Rules 36 aad 37 would make it clear tfaat a recruit has to attaia tbe reguired proficiency withln a period of njlne monttas and taas to pass the test and if he Js uaable to pass tbe test then he aiay be given an extenslon of six montbs aad if tbe perlod 1s to be extended beyond six nonttis ttisn spedal reasons are to be givea. Accerding to hiia a jiax-tapose -8- reading of Seetioa 36 and 37 would make it abundantly clear that the 1973 Rules do aot taUt of a third opportuaity. On -the other hand, Shri Prashant Mishra, learned counsel for tbe recruits, submits that a fair readlng of Rule 37 wouldmake it clear that the Ccaunandant is not ebliged to discharge the recruit and as Rule 37 used'tbe words "he may be discharged", the C<aiimandant can grant third opportunity, He further sybmlts tbat ia view of the interiaretatioa put forth by Inspector Oeneral, S.A.F. Bhilai a third opportunity could always be granted. 13. Rule 36 quoted above clearlystipulat.es that a reeruit shall be given training for a pericid of nine months aad at tbe end of the said traini.ng t» shall be tested by a eomaittee appolnted by the Caamandant of tlae training battalioB. The test sball be so carried out as to see wbettaer the recrait has obtalned proficiency in the subject of traiaJ.Rg<> It 1s only on a recruit attainlng profi- ciency that -fee shall be reported fit aBfi on tbe final orders o£ the Coiaraaadant be shall be eoasidBred as trained constable and put ia a section in aa Active Conpany. Rale 37 is virtually corollary to Kvle 36. It provides yet anotber opportanity to a recrui-t who fails In the test and could aot show that he attaiae el the requir ed laTofieieney in the' .sabject o£ training. Aecordlng to Rale37, the period o£ training may be extended for a further period not exceediDg six nontbs uialess there are speeial reasons. The wor<3s_ "unless there are speclal reasons" are te be read wi-fch the w<r ds "not exceeding slx months". Tbe escigencies may require tbe authbrlties ^ -9- to fix the extended perlod beyond the period o£ slx montlas. In aay ease, after the recruit fails in ttae first test he would be given another ehanee and witbin the extended perlod he has to pass the test aiad pcove tbat he had attained -the reqyired proficiency in the sttoject of traiaing. ^ 14. The prineiples of ejus dem -generis would inake it clear that the words"unless there are special reasons" are fco be read witb the'period of six inonths and not with tbe oppertuni.ty. Aecording to shri. Prashant Mishra, on secoad failure tbe recruifc is not required to be termlBated or discbarged by the Ccamandaatt because Rule 37 pcovides that the reeruit 'may be discharged by the eomnandant*. He submits that ase of tbe word 'iaay' daes aofc Btake the Rule mandatoey and does not eblige tbe Coaimaadant to discharge tlae tfecruit. Dr. Sbakla, on tbe other hand, submits that tliougii ttae word 'Baay' has been used in the rule, bat the word has to be read as 'sball'. 15. A perusal of Rule 37, espeeially the words "he may be discfaarged by the CQDaaanclaiat" would oa cursory reading show'that it 1s not ebligatory upon •tbe CoBB)aadaat*to discharge the reeruit on h,Ls A) a»-^>,».-fe- seeond failure, but a proper reading^deep prcbe into Rule 37 and the iatention o£ the legislatare beblnd Rule 37 woald make it clear tbat though the wortl 'may' has been used but it bas been used as glviag a aanGlateagaiast tbe CcmiBandaat. Ru]e 37 tal^cs of extenslon of tbe training period. a- \> ';-. • • "pie period ean be extencted for six monttas, or mace under speclal eircuastances, and if ths rule does notsay that OB seeoad failure tfae trainliag Eeriod -10- can furtber be exteaded tbea the Canmandaitt cannot co^tinue sueb a recruit in the training. Tbe word 'Biay' has been used t@ sbow an heraour or respect to tbe Ccaamandant but if Rale 37 does not talk of the seeond exteasl®nor thArd opportunity tben in case ef the second failiire the CcgffinandaBt has no authority, rigbt or power to grant second extension or require the recruit to pass tbe tbtrd test. The Ccanmandant on second failure o£ •tbe recruit has to dlseharge tbe reerul-t. la our eoasidered opinion, the words 'he may be discbarged' are to be read in the context ia which they are used. Br. Shukla thougb has referred to Rule 38, but in our opinion, the same has no relevance at this stage because we are reqaired to eonsider tbe effec-t and impact of Rale 36 and Rule 37 of 1973 Rules. 16. Chapter IX of 1973 Rules rfeiates to discipli.ne. Rule 47 provides for procedure for awarditig punislaaeBt. Rule 48 talks o£ powers of punistameat which could be exercised by ttie offieers o£ varioas grades. Rale49 Baadates that punistaments are to be entered in ordsrly Rooa register aad servlce roll. RuleSO talks of rigbt ofappeal. &a officer to whom any panishment has been awarded shall have a right o£ appeal to ttie D.I.G. Rale 51 says ttaat the aatters of <aepaEtmental punishment, and appeals and petitj-oias against departmental ptiaishments staall be goveraed by the prowisions laid <3own In Rules 262 to 275-A o£ the M.P. Police Regulatioas. 1.7. At this sfage it wouldbe aecessary to refer t6 tbe order dated 20.7.1995 passed by tbe 1 -—• -11- Inspeetor General, Visbesh Sasbastra Bal, Bhilai ia case of as naay as 10 persons. The sald order A^aua^ *dys- that tbe laspector Qeneral bael exercised tt*s powers conferred upon hia under Police Regulation Noo270(1). Polica Regalation 270 gives the revisional powers eittaer on an applicatioa or suo raotu' to ttae autbority superior to the atttlaority making the or<ter. Regalation 270 finds plaee in Ctaapter X of the PollceRegalatlons. Regiilatioa 262 refers to the appeals. Sach an appeal may be ^iled by awy 4»aAli-t.'s'^-1^ officer against whom an orGler^ipass'ed ander Regulatiea 214. Police Regulation 214 flnds plaee in chapter VIII of the M.P. Poliee Regulatlons and relates to ttae panl.stameats and their kirads . Aecording to Police Regulatlon 278, the revisl.ag au'thori'ty may for'.i ceasons to be recorded in writing exonerate, remit, vary or enhance the punisbment Inposed or may order a fresb eaquiry or the takiag of further evideaee in tbe case; provided tfaat it sball no-t vary or reverseaay order ualess notice bas been served on the party iaterested and opportuma.l.ty givea fco tbeia for hearing. Tbe order passed by the Inspec'tor General^Attsr taking sbelter under Poliee Regulation 27(^, Ganaot be approved. Chapter X o£ Police Regalatloas refers to ttae apgeals by ttaose persons agaiast whcn seaae puiiishroent taas been awarded. Rule 51 of 1973 Rules read with Rule 50 would also shcw that rlght of appeal is given to a person agalnst whcam some order awarding punJ.sbment has been maae. In the present case, no authorlty, bowsoever Iwr or higfa, has passed aay order awau:ding any paalshiRent to the recraits. It 1s not even tbe case of the recrults that_ -12- award of sama paaisha»nt tbeir serviees were terminated or Uiey were.di.scbargedfroa tfae duties. la fact, the order o£ tbe I.G. is not in accordanee with law. 18. We have beea •fcold tbat Btunber Qf the authorltles have beea exercising power conferred upon thein uiader Poliee RegulatioBi270 and granting 'fehJ.rd opportunity to the reeri.iJ.ts • We make 1-t clear that Poliee Regulation 270 caanot everrule Rule 37 of 1973 Rules, fisst.ly beoaase Rule 37 does not tallc of any punlstaent but talks o£ asituatl.on where a recrQit S-a. to be diseharged on his not attaining tbe profleiency» and secondly because Pollee Regulation 270 applies to a ease where a, partieular paalshneat has been awarded to a person and ttae authorlty wants to exerej.se the revisional pcwers. In our eonsidered opiaion, Rule 37 pf 1973 Rules is final and(aano'fe be ovec-sbadowed by any aatbority by exere.lsj.ag the appellate or revlsional powers. The discharge of the persoB. if tte law permits, can be challengedbefore tbe competeat aatborJ.ty/foroBi oa tlie groands o£^^y^^ malafides or sueh» but interference in such a discharge order caiaraot be made en ttae grouad that sueta disebarge taataiaou&ts to a puaishmeat. As in eases of certain reeruits a tlaird opportuaity was given, «eare of t.he view tba-t the TrU»unal was not iinjuetifjbed i.n granting tbird opportunity to these reeruits. We should aot be .•aaderstood to laean that fer all tbe times to Coiae we are dtrecting fefaat Rale 37 may be Iposely interpretated and third opportuaity to pass tbe test can be graated by the coneerBed authorities. ^ Tbe interpretatiea made by us 1s final . In these matters we do not propose to iBterfere because in case of certaln persoas the Inspee-tor General, S.A.P. af-ter exereising hls diseretion graated third opportunity to scaae aieeraxts. Wbea the respondents are siabaittiBg befere this.Court that they be treated eqaai.ly and the Trlbunal directed that tbey be treated eqaally, tben JLt would aot ba Biecessary for us to Interfere in tlie matter. We, however, nake it clear thafc the opperti.iai'ty givea in favoar o£ the respondents/recruits 1s sinply oa tfae ground of parity and not on the j.aterpretation of law. 19. At this stage, learned eoaasel foc tbe petl.tAoaers subin.i.-ts tbat if the deeunent on whJt.ch the recrults had plaeed relJ.ance is to be used In •their favourj reliefs in tenas as granted by tbe Tribunal eould not be granted in favour of the respondeata/reGxruits . Shri Prashant Ml.stira, lear&ed counsel for the recrults was anable to eontend anytbing coatrary to the siibinissions made by tfae learaed Deputy Advecate Geisral. Reliefs granted in favour of "the reeruifes are modified to the followiag extent : (a) Ttae reerul.ts/respondents sball be taken baclc iato servlce ; . (b) Lookiag to tbeir long break in sereice, the aatter of grant ef back wages shall be witbiB ttie discretion o£ the peti- tioaers wtao shall deeide tbe saiae in accardance witb rules ; -14- (c) The respondents reeruits after they are taken back in service shall be given traiaing for a period of six moaths in accordaace with Rule 37 and oa expiry of the sai-d period they shall be required to pass tbe test to be beld by the authorifcy in accordaace witb Rule 36. If tbis time the recru-Lts fail in passing the test or ia showing that they have a-fctaiaed the reguired proficlency In the subject the eeiniaaadaat shall be eatitled to pass arders in accoadance wit.b Rttle 37 and discbarge tbe reeruits frcm serviee. 20. The petitions are disposedof with the aforesaid dlrections. Xntbe eireuBis tanees of t he bear their own coets. case parties_s Sd/- R.S. Garg Judge 27.3.2001 Nair/* --"'\\» •^