Police personnel cannot be appointed as jail Superintendents: Uttarakhand High Court

RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL THE HON’BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN AND THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA WRIT PETITIONNo. 25 OF 2021 JUDGMENT RESERVED : 24th MARCH 2021 JUDGMENT DELIVERED : 12th APRIL 2021 …Petitioner Between: Sanjeev Kumar Akash. and State of Uttarakhand and others. Counsel for the petitioner. Ms. Kamini Counsel for the respondents. …Respondents learned Senior Counsel assisted by Mr. Rahul Consul learned counsel. Jaiswal Mr. N.S. Pundir learned Deputy Advocate General with Mr. Anil Kumar Bisht learned Additional Chief Standing Counsel for the State of Uttarakhand. The Court made the following: JUDGMENT :Mr. Sanjeev Kumar Akash the petitioner has filed the present Public Interest Litigation in order to challenge the order dated 12.02.2021 passed by the Secretary Department of Home the respondent no. 2 whereby the Officers of the Police Department have been given the additional charge of the office of the Senior Superintendent Superintendent of Jail at Sitarganj Haldwani Haridwar Dehradun and Roorkee. The petitioner has further challenged the consequential order dated 12.02.2021 passed by the Inspector General of Prisons the respondent no. 3 whereby the Officers of the Police Department have been transferred and posted Superintendent Superintendent of Jail at various prisons in the State of Uttarakhand. Briefly stated the facts of the case are that as per the structure in the Department of Prison in the State of Uttarakhand there are three sanctioned posts of Senior Superintendent of Jail and nine sanctioned posts of Superintendent of Jail. Out of the nine sanctioned posts of Superintendent of Jail four posts are to be filled up by way of direct recruitment and five posts are to be filled up by way of promotion from the post of Jailor. Presently one post of Senior Superintendent of Jail and four posts of Superintendent of Jail have been filled up. Therefore currently two posts of Senior Superintendent of Jail and five posts of Superintendent of Jail are lying vacant. According to the State Government considering the difficulties faced in running the Jails properly it has taken a conscious decision to give additional charge of Senior Superintendent of Jail and Superintendent of Jail to officers of the Indian Police Servicefurther stresses on the need for appointment of prison personnel “on a full time basis”. Rule 75(2) states that “before entering on duty all prison staff shall be provided with training tailored to their general and specific duties which shall be reflective of contemporary evidence based best practice in penal sciences”. Rule 76 further states that the training referred to in Rule 75(2) shall include at a minimum training on “rights and duties of prison staff in the exercise of their functions including respecting the human dignity of all prisoners and the prohibition of certain conduct in particular torture and other cruel inhuman or degrading treatment or punishment.” Rule 79 further states that “the Prison Directorshall devote his or her entire working time to official duties and shall not be appointed on a part time basis. He or she shall reside on the premises of the prison or in its immediate Relying on the Nelson Mandela Rules the learned Senior Counsel has emphasised Superintendents of Jail are required to undergo a particular training which will inculcate a sense of dignity of all the prisoners will make them humane and sensitise them to the plight of the prisoners to their families and to the prison conditions. The learned Senior Counsel has further stressed on the need for appointing the Senior Superintendent Superintendent of Jail on a full time basis rather than on a part time basis. Fourthly referring to the Uttar Pradesh Jail Group A and B) Service Rules 1982 the learned Senior Counsel has submitted that Rule 3(k) defines the post of "Superintendent District Jail" to mean “the whole time Superintendent Jail appointed in accordance with the 1982 Rules”. According to Rule 5(6) of the Rules 1982 the post of Superintendent of District Jail is to be filled up fifty percent by direct recruitment and fifty percent by promotion from amongst the regularly appointed Deputy Superintendents Jailors with a minimum of five years’ service as Deputy Superintendents or Jailors or both. Moreover Rule 14 deals with “determination of vacancies”. Rule 15 deals with the “procedure for direct recruitment”. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent District Jail”. Therefore according to the learned Senior Counsel the procedure for making an appointment to the post of Senior Superintendent Superintendent of Jail is clearly prescribed by Rules 14 15 and 16 of the Rules 1982. These Rules do not permit ad hoc appointment of Superintendent Superintendent of Jail. Therefore the impugned orders are clearly in violation of the Rules 1982. Fifthly even the Code of Criminal Procedure prevents the keeping of an undertrial prisoner in police custody beyond a stipulated period of time. According to Section 167 of Cr.P.C an accused cannot be detained in police custody beyond a period of fifteen days. In case the investigation is not completed within a period of ninety days for offences punishable with death imprisonment for life or imprisonment for a term of not less than ten years the offender would have to be granted bail under Section 167(2)(a)(i) Cr.P.C. Therefore even the Cr.P.C. does not envisage keeping of undertrial prisoners in police custody for too long a period. Even otherwise while keeping an offender in judicial custody he she cannot be kept beyond a period of sixty days or ninety days in case the investigation were not completed within the stipulated period of time. Moreover in case the investigation were to be completed within the stipulated period of sixty days or ninety days and in case bail were not granted by a competent Court an undertrial is required to be kept in judicial custody. But by appointing police personnel as Senior Superintendent Superintendent of Jail for all practical purposes the custody is suddenly changed from a judicial one to a police one. Therefore the learned Senior Counsel submits that the impugned orders violate the letter and the spirit of Section 167 Cr.P.C. Lastly despite the fact that a prisoner loses the freedom of movement he she continues to enjoy the other rights as guaranteed by Constitution of India. Therefore Article 21 of the Constitution of India guaranteeing protection of Life and personal liberty continues to shine even in the dark corners of a prison cell. According to the learned Senior Counsel once a procedure has been established by law that too a procedure backed by certain penological philosophy it cannot be violated by the State. Therefore the State is legally bound to implement the service rules as contained in the Rules 1982 to implement the requirements of Cr.P.C to implement the constitutional philosophy as embodied in the Preamble of the Constitution of India and to implement the “Nelson Mandela Rules”. Hence according to the learned Senior Counsel the impugned orders deserve to be set aside by this Court. Court : On the other hand Mr. Anil Kumar Bisht the learned Additional Chief Standing Counsel for the State has raised the following counter contentions before this Firstly in the order dated 17.11.2006 issued by the Principal Secretary Uttaranchal Administration it was clearly mentioned that the Inspector General of Prisons would either be the Secretary Home or IAS officers or of equivalent posts. Similarly Additional Inspector General of Prisons would be from the post of Additional Secretary Home Joint Secretary Home or from PCS Cadre. In fact even presently the post of the Inspector General of Prisons is occupied by a person belonging to the IPS cadre. Therefore the appointment of Senior Superintendent Superintendent of Jail can certainly be made from Police Officers. Secondly considering the fact that presently there are two posts of Senior Superintendent of Jail and five posts of Superintendent of Jail which are lying vacant considering the fact that direct recruitment to these posts would require some time considering the fact that there is no one in the post of Jailors who has completed five years of required service for being Superintendent Superintendent of Jail the State justified in making Police Officers incharge of these two posts on a temporary basis. Therefore the learned counsel has supported the impugned orders. In rejoinder Ms. Kamini Jaiswal the learned Senior Counsel for the petitioner has pleaded that the letter dated 17.11.2006 does not support the case of the State. For while the post of Inspector General of Prisons and Additional Inspector General of Prisons may be permitted to be filled up from IPS Officers the post of Senior Superintendent Superintendent of Jail is covered by the Rules 1982. Once the Rules 1982 have been promulgated they cannot be diluted by a mere letter issued by the Principal Secretary. In fact the Superintendent Superintendent of Jail has to be strictly in accordance with the Rules 1982. learned counsel perused impugned orders. Prisons are as ancient as human civilization. Initially prisons were created as detention centres for detaining those who were threat to the political power. According to the Bhagavata Purana an ancient text on the life of Lord Krishna his parents Devaki and Vasudeva were imprisoned by Kansa the King of Mathura. However over the centuries prisons were constructed for the purpose of punishing those who violate the law. Soon the purpose of prisons was changed from detention to punishment. In ancient Athens Socrates was imprisoned for punishing him for having corrupted the minds of the youth. Long imprisonment sentences catered to the retributory and deterrent theories of punishment. In the eighteenth century Europe in the age of Enlightenment John Locke the great English political theorist claimed that although men are basically good but laws and prisons were still needed to keep down “the few desperate men in society”. Therefore prisons were needed to protect the society from molestation of others. However in the 1700’s British Judges like Sir William Blackstone criticized the use of executions and other harsh punishments being meted out to the people. In 1777 the British reformer John Howard published his book called “The State of the Prisons in England and Wales”. For the first time he introduced the theory of reformation i.e. to make the prisoners aware of their guilt and to motivate them to do penance for their wrongful act thereby cleansing their soul and mind so that they may reform themselves as individuals. Because the prisoners were motivated to feel penitent the prisons came to be known as “penitentiaries”. 10. On the other side of the Atlantic in 1787 the founders of Philadelphia a city in the United States the Quakers formed the “Philadelphia Society for Alleviating the Miseries of Public Prisons” All State Governments UTs DGs IGs incharge of prisons All State Governments UTs wherein it had emphasised the large number of judgments delivered by the Hon’ble Supreme Court with regard to the prison administration and the jail system prevalent in India. It had further made certain recommendations as under: infrastructure in the State with adequate skilled and well qualified instructional staff to cater to the normal needs of basic and in service training for the prison staff in different discipline. Creating adequate posts for prison staff as per in different categories commensurate with operational needs of custody reformation rehabilitation health care legal assistance etc. iii) 18. Filling up all the vacancies presently running up to 17.58% within time bound frame and ensure proper cadre management trainings promotions recruitments etc. Over the decades the Hon’ble Supreme Court has rushed to the rescue of the prisoners. The Apex Court has not only given the protection of Article 21 of the Constitution of India to the prisoners but has also emphasised on the penological philosophy of reformation and rehabilitation of the prisoners. It has thus stressed on the need for having a well trained prison staff who would cater to the needs of the prisoners on a full time basis. 19. Recently in the case of Inhuman Conditions In 1382 Prisons In re18 SCC 777] keeping in mind the dire necessity of reforming in prison administration and the prison management the Hon’ble Supreme Court has constituted a Supreme Court Committee on “Prison Reforms” consisting of :Hon ble Mr Justice Amitava Roy a former Judge of the Supreme Court as its Chairperson Inspector General of Police Bureau of Police Research and Development as its Member and Director General Tihar Jail New Delhi as its Member. The Committee has made the following recommendations with regard to the staffing patterns in the jails: “Recruitment of Staff The Hon ble Court may issue following directions in this regard: a) All State Governments will hold special recruitment drives to fill up the existing vacancies in different ranks with the following timelines. i) In case of regular recruitment against permanent vacancies the recruitment process should start within three months and should be completed within one year in the maximum. ii) All promotional vacancies should be filled up within six months”. 20. At the International level the United Nations has issued the “Nelson Mandela Rules” which deal with the “Standard Minimum Rules for the Treatment of Prisoners”. As mentioned hereinabove these Rules prescribe the accepted good principles and practices in the treatment of prisoners and prison management. Rules 74 to 82 deal with “Institutional Personnel”. 21. Rule 74 is as under : “Rule 74 1. The prison administration shall provide for the careful selection of every grade of the personnel since it is on their integrity humanity professional capacity and personal suitability for the work that the proper administration of prisons depends. 2. The prison administration shall constantly seek to awaken and maintain in the minds both of the personnel and of the public the conviction that this work is a social service of great importance and to this end all appropriate means of informing the public should be used. 3. To secure the foregoing ends personnel shall be appointed on a fulltime basis as professional prison staff and have civil service status with security of tenure subject only to good conduct efficiency and physical fitness. Salaries shall be adequate to attract and retain suitable men and women employment benefits and conditions of service shall be favourable in view of the exacting nature of the work.” Rule 75 is as under : 1. All prison staff shall possess an adequate standard of education and shall be given the ability and means to carry out their duties in a professional manner. 2. Before entering on duty all prison staff shall be provided with training tailored to their general and specific duties which reflective of contemporary evidence based best practice in penal sciences. Only those candidates who successfully pass the theoretical and practical tests at the end of such training shall be allowed to enter the prison service. shall be 3. The prison administration shall ensure continuous provision of in service training courses with a view to maintaining and improving the knowledge and professional capacity of its personnel after entering on duty and during their career.” 22. “Rule 75 23. Rule 76 is as under : “Rule 76 1. Training referred to in paragraph 2 of rule 75 shall include at a minimum training on: inhuman or degrading a) Relevant national legislation regulations and policies as well as applicable international and regional instruments the provisions of which must guide the work and interactions of prison staff with inmates b) Rights and duties of prison staff in the exercise of their functions including respecting the human dignity of all prisoners and the prohibition of certain conduct in particular torture and other cruel treatment or punishment c) Security and safety including the concept of dynamic security the use of force and instruments of restraint and the management of violent offenders with due consideration of preventive and defusing techniques such as negotiation and mediation d) First aid the psychosocial needs of prisoners and the corresponding dynamics in prison settings as well as social care and assistance including early detection of mental health issues. 2. Prison staff who are in charge of working with certain categories of prisoners or who are assigned other specialized functions shall receive training that has a corresponding focus.” “Rule 79 1. The prison director should be adequately qualified for his or her task by character administrative ability suitable training and experience. 2. The prison director shall devote his or her entire working time to official duties and shall not be appointed on a part time basis. He or she shall reside on the premises of the prison or in its immediate vicinity. 3. When two or more prisons are under the authority of one director he or she shall visit each of them at 24. Rule 79 is as under : frequent intervals. A responsible resident official shall be in charge of each of these prisons.” Emphasis added). 25. Since India is a member of the United Nations these Rules are equally binding on the country. Therefore neither these Rules nor the recommendations of the various Committees nor the letter issued by the Ministry of Home Affairs Government of India dated 17.07.2009 can possibly be ignored by the State. 26. All these recommendations and Rules are in conformity with the great transformation which has occurred in the theory of punishment : from the theory of “Retribution And Deterrence” we have come to the age of “Reformation and Rehabilitation of Prisoners”. These Committee recommendation and the Nelson Rules emphasize the need for carefully selecting the prison personnel for providing rigorous training both prior to their joining the service and subsequent thereto of the appointment being a full time regular appointment. It is only when these factors are inculcated in the prison administration that the prison system succeeds in protecting reforming and rehabilitating the prisoners. Otherwise it is a self defeating proposition. 27. Needless to say the purpose of the Police is not to reform or to rehabilitate but to prevent the occurrence of crime and to punish the criminals. Therefore the very training of a police personnel is carried out with a different purpose in mind and with different goals prescribed by law. Thus there is a vast difference in the philosophy that permeates the police administration and the jail administration. Hence even their training and the psychology of the police personnel and prison personnel are poles apart. 28. Keeping the differences in two systems the Rules 1982 clearly provide the post of Superintendent District Jail should necessarily has to be filled up in accordance with the Rules 1982. Rule 5(6) of the Rules 1982 is as under : “5(6) Superintendents District Jails. 50 per cent of posts in the cadre by direct recruitment through the Commission. ii) 50 per cent of post in the cadre by Superintendents Jailors with a minimum of 5 years services as Deputy Superintendents of Jailors or both.” the Commission 29. Rule 14 of the Rules 1982 is as under : “14. Determination of vacancies. The appointing authority shall determine and intimate 30. Rule 15 of the Rules 1982 is as under : to the Commission the number of vacancies on the posts of Superintendents District Jails to be filled during the year of recruitment as also the number of vacancies candidates belonging to the Scheduled Castes Scheduled Tribes and other categories under Rule to be “15. Procedure for direct recruitment. 1) Application for permission to appear in the competitive examination for direct recruitment shall be invited by the Commission in the prescribed form which may be obtained from the Secretary to the Commission on payment if any. 2) No candidate shall be admitted to the examination unless he holds a certificate of admission issued by the Commission. 3) After the results of the written examination have been received and tabulated the Commission shall having regard to the need for securing due representation of the candidates belonging to the Scheduled Castes Scheduled Tribes and others under Rule 6 summon for interview such number of candidates as on the result of the written examination have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination. 4) The Commission shall prepare a list of in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidate obtain equal marks in the aggregate the name of the candidate the written examination shall be placed higher in the list. The number of names in the list shall be larger but not larger by more than 25 percent of the number of vacancies. The Commission shall forward the list to the appointing authority. higher marks Note. The syllabus and rules for the competitive examination shall be such as may be prescribed by the Commission from time to time. 31. Rule 16 of the Rules 1982 is as under : “16. Procedure for recruitment by promotion to the post of Superintendent District Jail. Recruitment by promotion to the post of Superintendent of District Jail shall be made on the basis of seniority subject to the rejection of the unfit in accordance with the Uttar Pradesh Promotion by Selection in Consultation with Public Service Commission Rules 1970 as amended from time to time.” 32. A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment or by promotion (fifty percent). The Rules do not permit an ad hoc appointment from any other service much less the police service. Therefore the post can be filled up either directly from candidates from the open market of Deputy Superintendents Jailors having a work experience of minimum of five years. Hence the appointment of the police personnel by the impugned orders is clearly illegal. 33. Although the learned counsel for the State has tried to support the impugned orders ostensibly on the ground that the Inspector General of Prisons and the Additional Inspector General of Prisons can be appointed from the IPS cadre the said argument is clearly untenable. For once the Rules 1982 which deal with Group A and B services clearly provide a procedure for determination of vacancy and selection and promotion for filling up the post the said Rules cannot be deviated from. After all it is a settled position of law that once a procedure has been established by law it cannot be circumvented from. Therefore merely because the post of Inspector General of Prisons and Additional Inspector General of Prisons can be filled up from persons belonging to the IPS cadre it does not empower the State to fill up the post of the lower echelons by posting Superintendent Superintendent of Jail. 34. For the reasons stated above the impugned order dated 12.02.2021 passed by the Secretary Department of Home respondent no. 2 and the consequential order dated 12.02.2021 passed by the Inspector General of Prisons respondent no. 3 are hereby set aside. The State is directed to immediately fill of Senior Superintendent Superintendent of Jail either through direct recruitment or through promotion. Since the Rules permit ad hoc promotion as a temporary measure even ad hoc promotions may be granted by the State till regular promotions are made. The said exercise shall be carried out as expeditiously as possible and preferably within one month from the date of receiving the certified copy of this judgment. 35. The Writ Petition is hereby allowed. RAGHVENDRA SINGH CHAUHAN C.J. ALOK KUMAR VERMA J. Dt: 12th April 2021 

Summary: The purpose of the Police is not to reform, or to rehabilitate, but to prevent the occurrence of crime, and to punish the criminals. Therefore, the very training of police personnel is carried out with a different purpose in mind, and with different goals prescribed by law. The judgment was passed by The High Court of Uttarakhand in the case of Sanjeev Kumar Akash vs the State of Uttarakhand and others [Writ Petition (PIL) No. 25 of 2021] by a single bench consisting of Justice Sri Raghvendra Singh Chauhan. The facts of the case are that, out of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor. Presently, one post of Senior Superintendent of Jail, and four posts of Superintendent of Jail, have been filled up. According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge to the Senior Superintendent of Jail. Hence, the present Public Interest Litigation before this Court. Learned Senior Counsel for the Petitioner that the duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other. Learned counsel on the corollary the fact that presently there are two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail, which is lying vacant, considering the fact that direct recruitment to these posts would require some time, considering the fact that there is no one in the post of Jailors, who has completed five years of required service for being promoted to the post of Senior Superintendent of Jail, the State is justified in making Police Officers in charge of these two posts on a temporary basis. The Court while referring to the Uttar Pradesh Jail Service Rules, 1982, “the post of Superintendent of District Jail is to be filled up fifty per cent by direct recruitment, and fifty per cent by promotion from amongst the regularly appointed Deputy Superintendents/Jailors with a minimum of five years’ service as Deputy Superintendents, or Jailors or both. Moreover, Rule 14 deals with the determination of vacancies. Rule 15 deals with the procedure for direct recruitment. Rule 16 deals with the “procedure for recruitment by promotion to the post of Superintendent, District Jail.”