IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1359 of 1984 with SPECIAL CIVIL APPLICATION No 4218 of 1992 with SPECIAL CIVIL APPLICATION No 4695 of 1992 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 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 -------------------------------------------------------------- GIANI RAM RAMCHANDRA Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 1359 of 1984 MR IS SUPEHIA for Petitioners MR VM PANCHOLI, AGP for Respondent Nos. 1 & 2 MR NN PRAJAPATI for Respondent No. 3, 4 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH Date of decision: 11/02/2000 COMMON CAV JUDGEMENT The petitioners of these petitions were at the relevant time working as constables in the Gujarat State Reserved Police Force (hereinafter to be referred to as "the SRP Force"). In Special Civil Application No. 1359 of 1984, petitioner No. 1 is the President of SRP Constable Association of Group 9 and also the Joint Secretary of the Gujarat State Police Constable Association which is registered and recognized by the Government of Gujarat. Petitioner No. 2 is the General Secretary of SRP Constable Association of Group 9 and also Joint Secretary of the Gujarat State Police Constable Association. The other petitioners were at the relevant time working as constables. 2. In all these petitions, the petitioners have challenged the office memorandum dated 22.8.1977 issued by the Dy. Inspector General of Police, Armed Units, Gujarat State, Ahmedabad regarding the qualifying tests for promotion in SRP Force. The petitioners have also prayed for a declaration that the qualifying examinations taken by the respondents-State of Gujarat and Inspector General of Police, Gujarat State and their subordinates for SRP constables in the State of Gujarat for promotion to the posts of Head Constables Grade-I and Grade II are illegal and ultra vires. The petitioners have also prayed for a direction not to promote any such constable on that basis alone to the post of Head Constable Grade I and II, if not already promoted and the petitioners have also prayed for a direction to the respondents to promote the SRP constables in the State as if there is no qualifying examination prescribed for constables for promotion to the post of Head Constable Grade I and II. The petitioners have also challenged Rules 57 to 60 of the Bombay State Reserve Police Force Rules, 1959 (hereinafter referred to as "the SRP Rules") and have prayed for a writ for holding that promotions in the SRP Force from the constables to Head Constables Grade I and II should be governed by the Head Constables Grade I and II (Armed Branch, Unarmed Branch and Women Branch) Recruitment (Amendment) Rules, 1981. 3. Under the Bombay Police Act, 1951 the police force is constituted and is divided into three branches known as Armed Branch, Unarmed Branch and Women Branch. Under the Bombay State Reserve Police Act, 1951 (hereinafter referred to as "the Act" or "the SRP Act"), the State Reserve Police Force is divided in separate units, each unit to be called a Group. The location of each group and the number of such groups is decided by the State Government from time to time. Section 3 of the Act provides that the superintendence and control over the Reserve Police Force shall, subject to the authority of the State Government, be exercised and carried on or be administered through the Inspector General of Police or through an Additional Inspector General of Police who may be assisted by one or more of the Deputy Inspector Generals of Police selected from time to time by the State Government. Ordinarily the superintendence and control over the SRP Force is exercised and carried on by the Additional Director General of Police (Armed Units). Each group is headed by the Commandant equivalent to a District Superintendent of Police, assisted by Assistant Commandant equivalent to a Dy.S.P. Each group has two battalions consisting of four Active Companies each. The battalion is commanded by the Battalion Commander who is of the rank of an Inspector of Police. Each Active Company is commanded by a Company Commander who is equivalent to a Sub-Inspector of Police. Each Active Company consists of three Platoons. Each Platoon is commanded by Platoon Commander (Jamadar). Each Platoon has sections and each section is commanded by a Section Commander (Havildar). The Company Commanders, Platoon Commanders and section Commanders are responsible for the efficiency, well-being and health of the men under their command. 4. Chapter IV of the SRPF Rules provides for the mode of recruitment of various categories of the personnel in the SRP Force including constables and head constables. Chapter XI of the Rules provides for promotions and examinations. In these petitions, we are concerned with Rules 56 to 60 which read as under :- "56. Promotion to the rank Assistant Station Commanders (Naiks), Section Commanders (Havildars), Platoon Commanders (Jamadars) and Company Commanders (Sub-Inspectors0 shall be made from amongst those who are fit and have passed the qualifying examinations. in judging the fitness for promotion the candidate's record of service character and ability to command the unit, of which he is going to be incharge shall 57. The details regarding the rank of candidates who can appear for various qualifying examinations and the personnel of the Examination Board are given below :- ________________________________________________________________ Sr. Rank of the Examination Personnel of the Board of No. Examinee. for promotion Examiners to the rank of - ________________________________________________________________ 1. Constables Assistant Assistant Commandant with the Section assisted by two officers minimum service Commanders not below the rank of of 3 years. (Naiks). Police Inspectors. 2. 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Constables with a minimum of 7 years' service. 3. Section Platoon Commanders Commanders with a mini- (Jamadars). mum of two years' service and Havildar Majors. 4. Platoon Company Deputy Inspector General Commanders Commanders of Police in charge of the (Jamadars) and Force assisted by two Havildar Majors Commandants to be nominated with a minimum by the Inspector General ofof fofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofo ofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofof fofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofo ofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofof fofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofo ofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofof fofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofo ofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofof fofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofo ofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofof fofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofo ofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofof fofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofofof of 2 years' Police. service. _________________________________________________________________ 58. Promotion to the rank of Havildar Majors shall be made from amongst Havildars according to the seniority, provided they are fit. 59. The qualifying examinations mentioned in rule 57 shall be held once a year at the place and on the dates fixed by the Commandants concerned in the case of examinations referred to in serial Nos. 1 to 3 and by the Deputy Inspector General of Police in charge of the Force in the case of examination referred to in Serial No. 4, in the statement given in the said rule. 60. The qualifying examinations for promotion to Assistant Section Commanders, Section Commanders, Platoon Commanders and Company Commanders, shall be in three parts. Part I shall be a written test in which simple questions on the subject mentioned in the following tables shall bet set. Marks shall be allotted in subjects in Part II and III on the parade ground after putting necessary questions to the candidate and after he has completed the various items of drill and replied to practical questions put regarding those items. The list of subjects and the maximum marks allotted in each subject are given in Tables I to IV below. For passing the qualifying examination a candidate must obtain at least 50 per cent, marks in each Part individually and 60 per cent, of the total marks. TABLE I Qualifying examination for promotion to Assistant Section Commanders. xxx xxx xxx xxx xxx xxx TABLE II Qualifying examination for promotion to Section Commanders xxx xxx xxx xxx xxx xxx TABLE III Qualifying examination for promotion to Platoon Commanders xxx xxx xxx xxx xxx xxx TABLE IV Qualifying examination for promotion to Company Commanders xxx xxx xxx xxx xxx xxx 5. In the year 1977, the then Deputy Inspector General of Police (Armed unit), Gujarat State who was heading the SRP Force in the State issued office memorandum dated 22.8.1977 which reads as under :- No. A/3294 Office of the Dy.I.G. of Police, Armed Units, G.S., Ahmedabad - 16. Dated : 22nd August, 1977. MEMO Sub: Qualifying tests for promotion in SRP Force. Promotions and examinations in the SRPF groups are laid down in Rule 57 of the SRPF Rules 1959 and the table laid down in Rule 60. The applicability of these rules was under examination. However, it is found that in the present set up of SRP, it is no longer possible to .J In order, therefore, to regulate rules for promotion to the rank of H.C. Grade II, HC Grade I and PSI, the following instructions are hereby issued :- 2. The details regarding eligibility of examined personnel of the Board etc. are given below :- ________________________________________________________________ Sr. Rank of the Examination Personnel of the Board of No. Examinee. for promotion Examiners to the rank ________________________________________________________________ 1. Constable H.C. Grade II Assistant Commandant, with the assisted by 2 officers minimum service not below the ra of 5 years. Police Inspector. 2. H.C. Grade II H.C. Grade I Commandant assisted by witn 2 years Assistant Commandant and continuous Officer not below the service. rank of Police Inspector. 3. H.C. Grade I Platoon The DIGP in charge of with 2 years Commanders SRP assisted by 2 continuous i.e. P.I. Commandants nominated service. by the IGP. years' service _________________________________________________________________ The qualifying examination for promotion to the rank of H.C. Grade II, H.C. Grade I and Platoon Commander (i.e. PSI) shall be in three parts. TABLE I Qualifying examination for promotion to rank of Head Constable Grade II. xxx xxx xxx xxx xxx xxx TABLE II Qualifying examination for promotion to the rank of Head Constable Grade I. xxx xxx xxx xxx xxx xxx TABLE III Qualifying examination for promotion to the rank of Platoon Commander (i.e. PSI) xxx xxx xxx xxx xxx xxx Necessary draft rules on above lines for amending the existing rules pertaining to the promotion and holding of examination etc., in SRP contained in Rule 57-60 of SRPF Rules have been sent to Govt. The instructions given in this circular should be followed strictly. The instructions will come into force from the date of issue of this Memo. Sd/- Dy. Inspector General of Police, Armed Unit, Ahmedabad." 6. In this group of petitions, the petitioners have challenged the qualifying examinations being held by or on behalf of the respondents for promotions of constables in the SRP Force to the higher cadres on the ground that the examinations held in accordance with the instructions contained in the said Memorandum dated 22.8.1977 cannot be treated as qualifying examinations held in accordance with Rules 56 to 60 of the Bombay State Reserve Police Force rules, 1959 and, therefore, the respondents be directed to promote constable in the SRP Force to the higher posts of Head Constable Grade II and further promoted to the post of Head Constable Grade I on the basis of seniority-cum-fitness and in accordance with the Rules for promotion to the posts of Head Constables Grade II and Head Constable Grade I in the Armed branch of the State Police Force. 7. Before proceeding to narrate the contentions urged on behalf of the petitioners, it is necessary to state at the outset that the draft Rules referred to in the aforesaid memorandum were not finalized by the State Government until the petitions came up for final hearing. This Court had, therefore, adjourned the hearing of these petitions on a number of occasions to enable the respondents to produce the amended Rules on the record of these petitions. Finally, on 3.7.1999 the State Government has issued the notification containing the Bombay State Reserve Police Force (Amendment) Rules, 1999 for amending Rules 56 to 60 and the tables below the said Rules regarding qualifying examinations for the appointment to the post of Head Constables Grade II, Head Constables Grade I, Platoon Commander or Armed Police Sub-Inspectors. Rules 56 to 60 as amended by the said Amendment Rules read as under :- "56.(1) Appointment to the post of Head Constable Grade II, Head Constable Grade I, Platoon Commander or Armed Police Sub-Inspector shall be made :- (a) in case of Head Constable Grade II, by promotion of a person of proved merit and efficiency from amongst the persons working in the cadre of constables on the basis of seniority. (b) in case of Head Constable Grade I, by promotion of a person of proved merit and efficiency from amongst the persons working in the cadre of Head Constables Grade II on the basis of seniority, and (c) in case of Platoon Commander or Armed Police Sub Inspector, by promotion of a person of proved merit and efficiency from amongst the person working in the cadre of Head Constable Grade I on the basis of seniority. (2) To be eligible for appointment by promotion to posts mentioned in sub rule (1), a candidate shall.J qualifying examination referred to in rule 60. 57. The persons specified in column (2) shall be eligible to appear in the examination for the posts specified in column (3) to be conducted by the members of the Board specified in column (4) of the table below. ________________________________________________________________ Sr. Persons eligi- Examination Members of the Board No. ble for Exami- for promotion nation to the post of - 1 2 3 4 ________________________________________________________________ 1. Constables Head Consta- 1 Commandant and two with the ble Grade II Armed Deputy Superintendents minimum service it of 7 years. 2. Head Consta- Head Constable 1 Commandant and two Armed ble Grade II Grade I Deputy Superintendents with minimum of Police. service of two years 3. Heade Consta- The Platoon Inspector General of Police/ ble Grade-I Commander or Deputy Inspector General of with minimum Armed Police Police incharge of the force service of Sub-Inspector assisted by two or more five years. Commandants nominated by the Director General of Police/Additional Director General of Police (Arms Un ( rms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms n (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arm Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (A ms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms U (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Ar s Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un ( rms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms n (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arm Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms Un (Arms & Training). _________________________________________________________________ 3. In the said rules, the rule 58 shall be deleted. 4. In the said rules, for rules 59 to 60, the following shall be substituted, namely :- "59. The qualifying examination referred to in rule 57 may be held once in a year at such place and on such date as may be fixed by the members of the respective Board." 60.(1) The syllabus of the qualifying examination for promotion to the post of Head Constable Grade II, Head Constable Grade I and Platoon Commander or Armed Police Sub Inspector shall be such as specified respectively in Table I, II and III below :- (2) The candidate appearing at qualifying examination specified in the table shall require to pass the examination with 50 per cent of marks in each PART and 60 per cent marks in aggregate. TABLE I Qualifying examination for promotion to the post of Head Constable Grade II xxx xxx xxx xxx xxx xxx TABLE II Qualifying examination for promotion to the post of Head Constable Grade I. xxx xxx xxx xxx xxx xxx TABLE III Qualifying examination for promotion to the post of Platoon Commander or Armed Police Sub Inspector xxx xxx xxx xxx xxx xxx 8. After perusing the aforesaid Amendment Rules, Mr IS Supehia, learned counsel for the petitioners has urged the following contentions :- (i) The Amendment Rules of 1999 are prospective and, therefore, the challenges made in the present group of petitions to the qualifying examination held so far will still survive. (ii) The Bombay State Reserve Police Force Rules, 1959 are framed under Section 21 of the Bombay State Reserve Police Force Act, 1951 and, therefore, Rules 56 to 60 as contained in the Rules prior to amendment held the field before 3.7.1999 and the said statutory rules could not have been modified by the Deputy Inspector General of Police (Armed Unit). Hence, the memorandum dated 22.8.1977 was ultra vires the provisions of the Bombay State Reserve Police Force Act, 1951 and the Rules framed thereunder. Hence, the memorandum was illegal and all the qualifying examinations held in accordance with the instructions contained in the said memorandum were also illegal. (iii) Since the qualifying examinations held so far were illegal, all the promotions granted on the basis of the results of such qualifying examinations were also illegal and promotions from the cadre of constables to Head Constables Grade II and from the cadre of Head Constable Grade II to the cadre of Head Constables Grade I in the SRP Force in the State are required to be rearranged on the basis of seniority-cum-fitness by looking at the date of joining service in the cadre of constables in the SRP Force and by ignoring the results of the qualifying examinations. 9. On the other hand, Mr VM Pancholi, learned AGP appearing for the respondents has vehemently opposed the petitions and has submitted that the qualifying examinations were held in accordance with Rules 56 to 60 as contained in the SRPF Rules, 1959 prior to amendment and that the instructions contained in the memorandum dated 22.8.1977 were not inconsistent with the statutory Rules which were in force at the relevant time, but the said instructions merely restricted the zone of consideration in view of large number of eligible candidates and supplied more details to the scheme of qualifying examinations and such instructions were necessary to hold the examinations in a more practical and meaningful manner. The State Reserve Police Force is an entirely distinct and separate force which a paramilitary force and the same cannot be compared with the regular police force constituted under the Bombay Police Act. Promotions to the posts of Head Constable Grade II and Head Constable Grade I and all other higher posts in the SRP Force are governed by the Rules contained in the SRPF Rules, 1959 and the same cannot be governed by the Rules for promotion to the posts in the Armed branch of the police force constituted under the Bombay Police Act. 10. Since the amendment Rules of 1999 do not appear to be retrospective, the first question which arises for consideration is whether the instructions contained in the memorandum dated 22.8.1977 of the Deputy Inspector General of Police, Armed Units were inconsistent with Rules 56 to 60 in the SRPF Rules, 1959. 11. Mr Supehia has submitted that the memorandum contained instructions which were inconsistent with the Rules in the following respects :- (i) Under the original Rules of 1957 prior to amendment, a constable with three years service was eligible for appearing at the examination for promotion to the post of Assistant Section Commanders (Naiks) which promotional post is now treated as equivalent to the post of Head Constable Grade II, but by the impugned circular dated 22.8.1977, the eligibility criteria was entirely changed and the constables were required to put in minimum five years service for being eligible for appearing at the qualifying examination. The memorandum thus made the persons eligible under the statutory rules ineligible for appearing at the qualifying examination and, therefore, the memorandum was required to be quashed as illegal and ultra vires. (ii) The designation of all the promotional posts were changed by the circular without amendment of the rules and, therefore, also the memorandum was illegal. (iii) Under the Rules prior to amendment, Assistant Section Commanders and constables with a minimum of seven year service were eligible for promotion to the rank of Section Commanders (Head Constable Grade I). By the impugned circular the Dy.I.G.P. took away the right of the constables with seven years experience to appear at the qualifying examination for promotion to the post of Section Commanders which post is now treated as Head Constable Grade I. (iv) Even the syllabus of the qualifying examination and the allotment of marks were also changed by the Dy.I.G.P. through the aforesaid memorandum purporting to change the scheme of the examination rules for which the Dy.I.G.P. had no authority under the law. 12. As far as the first ground of challenge to the circular is concerned, it is true that under the Rules, constables with minimum service of three years were eligible to appear at the qualifying examination while the Dy.I.G.P. instructed to restrict the zone of consideration to constables with minimum service of five years. Now the provision made in the preamended Rules was "constables with minimum service of three years". The Rule by itself, therefore, did not confer any indefeasible right on the constables to appear at the qualifying examination immediately after completion of three years service. All that the rule contemplated even before the amendment was that a constable with less than three years service could not be permitted to appear at the qualifying examination. Apart from this interpretation of the Rule, as per the settled legal position, when the number of eligible candidates as per the rules is large compared to the number of vacancies available, it is open to the appointing authority to curtail the zone of consideration by laying down reasonable