Andhra Pradesh High Court - Amravati

B. Ramakoteswara Rao, vs The State Of Andhra Pradesh on 7 May, 2021

Bench: Kongara Vijaya Lakshmi

                                      1
                                                                          KVL, J
                                                               WP No.3198 of 2021




            HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI

                     WRIT PETITION No.3198 of 2021

ORDER:

This writ petition is filed to "declare the action of respondents in

placing services of the petitioner by way of deputation as a faculty

member of Police Training College, Anantapuramu, as illegal and

arbitrary and contrary to the law laid down by the Hon'ble Supreme

Court and a consequential direction was sought to set aside the

R.O.Rt.No.219 Home (Courts-A) Department dated 27.02.2020 and to

direct the respondents to place the petitioner as full additional charge

of Director of Prosecutions'.

2. Case of the petitioner is that, the prosecution officers were

organized as cadre in the State of Andhra Pradesh and Rules were

framed vide G.O.Ms.No.188 called as 'The Andhra Pradesh state

Prosecution Services rules, 1992' (for short 'the Rules'); these rules

provide for (i) seven categories of posts in Prosecution Services of

Andhra Pradesh (ii) the method of recruitment and (iii) the qualifications

etc.; petitioner practiced as an Advocate for more than seven years and

was appointed as Assistant Public Prosecutor category-7 cadre on

06.11.1998; in the year 2000, the 1st respondent notified vacancies for

the posts of Additional Public Prosecutors - Grade-II (Category-5) and the

petitioner participated in the said selection and stood first in the

combined State of Andhra Pradesh and was selected for the said post

and later was promoted as Public Prosecutor, Grade-II (Category-4) on

12.01.2012; he was promoted as Public Prosecutor/Joint Director, which

is Category-3 post, on 09.01.2018 and as Additional Director, which is

category-2 post on 21.02.2019; while working as Joint Director i.e., in

KVL, J WP No.3198 of 2021

Category-3, since he was the senior most, he was placed as full

Additional charge of the post of Additional Director (Category-2) and

also was kept in charge to look after the administrative work of the

Directorate, vide Govt. Memo dated 15.02.2018; while working as

Additional Director, category-2, he was placed as Full Additional Charge

of the post of Director, (Category-1) on 21.02.2019; while so, the 1st

respondent issued G.O.Rt.No.219 Home (Courts-a) Department dated

27.02.2020, placing the services of the petitioner to work on deputation

in the Police Training College, Anantapuramu, as a faculty member duly

relieving him from holding the post of full additional charge of Post of

director of Prosecutions; there is only one post of Faculty Member in the

Police Training College, Anantapuramu, which is manned by Category-6

of the Prosecution cadre; petitioner was holding the post of Category-2

i.e., four posts above the said post in the hierarchy of posts of

Prosecution cadre, which is the second highest post in the hierarchy; no

consent was obtained from the petitioner, which is mandatory for all

deputations; pursuant to the impugned order, petitioner joined in Police

Training College on 02.03.2020 and went on leave from 03.03.2020; the

Principal, Police Training College, vide letter dated 05.09.2020 informed

the 2nd respondent that there is no deputation post of Additional

Director of Prosecution to work as Faculty Member in the Police Training

college and that there is only one post of faculty member, which is of

the rank of Senior Assistant Public Prosecutor (category-6) in the said

college and the same is filled and that there is no vacancy; Rule 3 of the

Service Rules have been amended vide G.O.ms.No.24 dated 04.02.2020,

providing for appointment of an Advocate, who has been in practice for

not less than 10 years, including a Public Prosecutor/Additional Public

Prosecutor/Assistant Public Prosecutor, who has put in not less than ten

KVL, J WP No.3198 of 2021

years of service to the post of Director of Prosecutions and the said

amendment is contrary to the very object and scheme of Section 24 read

with Section 25-A of Cr.P.C.; petitioner submitted representations dated

10.08.2020, 30.09.2020, 30.11.2020 and on 29.12.2020 protesting

against the action of the 1st respondent in posting the petitioner to a

post which is four cadres below the present cadre, that too by

deputation, without consent and requested for rectifying the said

irregularity, but there is no response from the respondents. Hence, the

writ petition.

3. Counter-affidavit is filed by the 2nd respondent stating inter-

alia that the writ petition is filed after lapse of one year and that on the

said ground alone, the writ petition is liable to be dismissed, by relying

upon the judgment of the Hon'ble Supreme Court in 'Chairman/Managing

Director, UP Power Corporation Limited vs. Ram Gopal1'; police training

college is one of the wings of the Home Department and the Directorate

of Prosecutions shall function under the administrative control of the

Head of Home Department in the State and the services of the petitioner

are being utilized in the Police Training College to train the Prosecutors

and the Police; the 1st respondent is competent to utilize the services of

its employee to work on deputation and no consent is required from the

employee, as his pay and other allowances are protected; the 1st

respondent sent a panel for the post of Director of Prosecutions to the

Hon'ble High Court for its consideration and the same is pending and in

the stopgap period, the 1st respondent is competent to place any

suitable person as full additional charge of Director of Prosecutions; the

judgments relied upon by the petitioner does not apply to the facts of

the case, as the service rules are different.

2020(4) SCJ 242

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4. Reply-affidavit is filed by the petitioner stating inter-alia that

there is no request to depute the services of the petitioner in the Police

Training College and no special reasons are assigned for deputing the

petitioner; it is for the competent authority to establish the power in

law to depute an employee to foreign service leave alone the other

aspects of obtaining consent of the employee and posting four levels

below the post held; Rule 110(a) read with Rule 9(4) of the Fundamental

Rules and Section 2(8) of A.P. State and Subordinate Service Rules

prohibits such deputation against the will of the employee and that too

to an non equivalent post; petitioner belongs to the prosecution

services, which is a separate unit/wing/cadre/service and one among

other such cadres under the control of Home Department and the Home

Department has no power to depute an Officer of one cadre to another

cadre, without there being need or request; the object and importance

behind creation of such separate and distinct cadre is evident from the

preamble of the said rules and hence, the respondents have no power to

post or transfer the petitioner to any other service of their choice

merely because such foreign service is also under the control of Home

Department; petitioner was born and appointed in the cadre of A.P.

Prosecution Services and his services have to be utilized in the cadre of

Prosecution only and not in any other cadre service under the control of

Home Department; no limitation is prescribed for filing a writ petition

and that the petitioner approached this court within one year of the

impugned proceedings; post of Faculty Member in the police training

college is in the cadre of Senior Assistant Public Prosecutor, which is

category-6 post and the post of Additional Director of Prosecution is

State level post, which is in the category-2; the Principal of the police

training college also expressed his inability to implement the impugned

KVL, J WP No.3198 of 2021

proceedings; petitioner is entitled to be appointed as Director of

Prosecutions on full additional charge, but no reasons are assigned for

cancellation of full additional charge of the post of Director of

Prosecution.

5. IA No.3 of 2021 is filed to receive the additional material

papers, which was allowed. In the affidavit filed in support of the said

I.A., it is stated that subsequent to filing of the writ petition, the 1st

respondent has issued Memo No.1297065/Courts.A/A.1/2020 dated

17.02.2021. A perusal of the Memo reveals that there is no suitable

cadre post existing in the Police Training College, Ananthapuramu for

the petitioner and the Director of Prosecutions (FAC) was instructed to

take necessary action in the matter.

6. Heard Sri M Ravindranath Reddy, learned counsel for the

petitioner and the learned Government Pleader for Services-I Sri N.

Aswartha Narayana. Perused the record.

7. Learned counsel for the petitioner reiterated the contentions

raised in the writ petition and in support of his contentions, he relied

upon the following decisions.

1. Umapati Choudhary vs. State of Bhihar2';

2. State of Punjab vs. Inder Singh3';

3. Bhagwati Prasad vs. State of Gujarat4';

4. Ashok Kumar Ratilal Patel vs. Union of India5;

5. Sub Inspector Rooplal vs. Lt. Governor Delhi6';

6. P.S. Sadasivaswamy vs. State of Tamilnadu7';

7. Krishan Singh Kundu vs. State of Haryana8';

8. Jiwan Lal Sharma vs. S.S. Parmar9 and

9. S.B. Shahane vs. State of Maharashtra.10'

1999(4) SCC 659

1997(8) SCC 372

1977(2) SLR 551

2012(7) SCC 757

2000(1) SCC 644

1975(1) SCC 152

ILR 1990(1) P & H 211 = 1989 Crl.L.J. 1309

2006 SCC online HP 66

1995 Supp. (3) SCC 37

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8. Learned Government Pleader relied upon Ram Gopal's case

(supra).

9. As per A.P. State Prosecution Services Rules, 1992, the

hierarchy of posts is as follows:

Category     Post                       Promotion from                      Service to be
No.                                                                         put in feeder
                                                                            post (Col.3)
1            Director              of   Category 2 i.e., Additional         2 years
             Prosecutions               Director
2            Addl.    Director     of   Catgegory-3      i.e.,   Joint      2 years
             Prosecutions               Director/Public Prosecutor
3            P.P./Joint Director        Category-4 i.e., Addl. PP -         2 years
                                        Gr.I/Deputy Director
4            Addl.PP         Gr.I/Dy.   Category-5 i.e., Addl.PP Gr.II      3 years
             Director
5            Addl.PP Gr.II              (i)70% by promotion from            2 years
                                        Category-6 i.e., Sr.Asst.PP
                                        (ii)30% by direct recruitment
6            Sr. Asst. PP               Category - 7 i.e. Asst. PP          2 years
7            Asst. PP                   Advocate      practicing    in      3 years
                                        Criminal courts by direct
                                        recruitment by selection.

10. The dates of promotion of the petitioner in the respective posts

are as follows:

Sl.    Post from which promoted                   Post   to     which    Date    on     which
No.                                               promoted               promotion       was
                                                                         accorded
1      Direct recruitment by selection            Addl.PP     Grade-II   08.08.2007
       process                                    (Category-5)
2      Addl.PP - Grade-II (Category-5)            Addl. PP Grade I       12.01.2012
                                                  (Category-4)
3      Addl. PP - Grade-I                         Public Prosecutor /    09.01.2018
       (Category - 4 Post)                        Joint Director
                                                  (category-3)
4      Public Prosecutor/Joint     Director       Addl.       Director   21.02.2019
       (Category-3 Post)                          (Category-2)

Since the petitioner was senior most Joint director in the Directorate of

Prosecutions he was placed as full additional charge of the post of

Additional Director, which is Category-2 post and was also kept in charge

to look after the administrative work of directorate vide Memo dated

15.02.2018. While working as Additional Director, Category-2, he was

placed as full additional charge of the post of Director of Prosecutions

(Category-1) on 21.02.2019. There is only one post of Additional

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Director. The above mentioned facts are not disputed by the

respondents in their counter-affidavit.

11. Vide impugned G.O.Rt.No.219 Home (Courts. A) Department

dated 27.02.2020, the services of the petitioner were placed on

deputation at Police Training College, Ananthapuramu, as a Faculty

Member and he was relieved from holding full additional charge of the

post of Director of Prosecutions. The Principal of Police Training College,

Ananthapuramu addressed a letter to the Director of Prosecutions on

05.09.2020 stating that there is no deputation post of Additional Director

of Prosecutions to work as Faculty Member in the Police Training

College. Copy of the said letter, which is filed along with the writ

petition reads as follows:

"Government of Andhra Pradesh : Police Department From To Sri Kanthi Rana tata, IPC The Director of Prosecutions Dy. Inspr. Genl. Of Police, Vijayawada Ananthapur Range HAC of Principal, Police training College Ananthapuramu

RC No.51/A1/2020 Dt.5.09.2020

Sub: Police Department - Police Training College, Ananthapuramu - Reporting of Sri Rama Koteshwar Rao Byra, Addl. Director of Proscutions in PTC, Ananthapuramu - remarks - sending - Regarding.

Ref: 1. G.O.Rt.No.219 Home (Courts.A) Dept. Dt.27.02.2020 of the Govt. of Andhra Pradesh.

2. Reporting Lr.of Sri Rama Koteswara Rao Byra, Addl. Director of Prosecutions dt.02.03.2020.

-o0o-

With reference to the 1st cited it is to submit that Sri B.Rama Koteshwar Rao Byra, Addl. Director of Prosecutions, submitted his reporting letter vide reference 2nd cited to join in the Post of Faculty member as Addl. Director of Prosecutions and went on medical leave from 02.03.2020 to till date.

In this regard, it is to submit that there is no deputation post of Addl. Director of Prosecutions to work as Faculty member in Police Training College, Ananthapuramu. There is only one post of Sr.APP in PTC, Ananthapuramu and the same is filled. At present there is no vacancy post of Judicial Department in PTC, Ananthapuramu. Hence, the same is hereby informed to the Hon'ble Officer for taking further necessary action at your end."

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Yours faithfully, Dy. Inspr. Genl. Of Police, Ananthapur Range HAC of Principal, Police training College Ananthapuramu"

12. The 1st respondent also issued a Memo No.1297065/

Courts.A/A1/2020 dated 17.02.2021 instructing the 2nd respondent to

take necessary action, as there is no suitable cadre post in the Police

Training college to the petitioner. Copy of the said memo is filed along

with IA No.3 of 2021 filed by the petitioner, which reads as follows:

"GOVERNMENT OF ANDHRA PRADESH HOME (COURTS.A) DEPARTMENT

MEMO NO.1297065/Courts.A/A1/2020 dated 17.02.2021

Sub: Directorate of Prosectuions - Sri Rama Koteswara Rao Byra, Additional Director of Prosectuions now working on deputation as a faculty member in Police training College Ananthapuram - certain instructions issued - Reg.

Ref: 1.G.O.Rt.No.219 Home (Courts.A) Dept. Dt.27.02.2020

2. From the Director of Prosectuions (FAC) Vijayawada, vide Lr.No.1244928/A2/2020. Dated: 01.10.2020.

...

The attention of the Director of Prosecutions (FAC) is invited to the reference 1st cited, wherein Sri Rama Koteswara Rao Byra, Additional Director of Prosecutions was placed to work on deputation in Police Training College, Ananthapuramu as a faculty member. His pay and allowances is being drawn from the Director of Prosecutions only.

Hence, it is clarified that suitable cadre post may not exist in the police training College, Anantapuramu to perform his duties as faculty member.

The Director of Prosecutions (FAC), Vijayawada is instructed to take necessary action, accordingly in the matter.

KUMAR VISHWAJEET PRINCIPAL SECRETARY TO GOVERNMENT"

13. The letter of the Principal of Police Training College dated

03.09.2020 and the Memo dated 17.02.2021 OF THE 1st respondent are

also not disputed by the respondents.

14. Petitioner was holding full additional charge of the post of

Additional Director, which is a Category-2 post and was also working as

full additional charge of the Director of Prosecutions, which is category-I

KVL, J WP No.3198 of 2021

post, since 20.02.2019. Through impugned order, the services of the

petitioner were placed on deputation in the Police Training College, as a

faculty member, which is manned by Category-6 of the prosecution

cadre, when the petitioner was holding category-2 post i.e., four posts

above said post in the hierarchy of the prosecution services. The fact

that there is only one Senior Assistant Public Prosecutor post in the

Police Training College, is evident from the letter of the Principal of the

Police Training College dated 05.09.2020, which is addressed to the 2nd

respondent and is not denied by the respondents. Admittedly, senior

Asst. PP is in category-6 and the Memo of the 1st respondent dated

17.02.2021 also clarified that there is no suitable cadre post in the

Police Training College to the petitioner's cadre.

15. Learned counsel for the petitioner contends that no consent

was obtained from the petitioner before issuing the impugned

G.O.Rt.No.219 dated 27.02.2020, which is contrary to Rule 110(a) read

with 9(4) of the of Fundamental Rules and Section 2(8) of the A.P. State

and Subordinate Service Rules. Admittedly no consent was obtained

from the petitioner.

16. Rule 110(a) of the A.P. Fundamental Rules read as follows:

"no government servant may be transferred to foreign service against his

will, provided that this sub rule shall not apply to the transfer of a

government servant in the service of (i) a body, incorporated or not,

which is wholly or substantively owned or controlled by the government,

and (ii) an autonomous District Council." Section 2(8) of the A.P. State

and Subordinate Rules, defines the ''cadre'' as "Cadre" means the posts

in various classes, categories and grades in a service'. 'Fundamental

Rule 9(4) defines 'cadre' which means the strength of a service or a part

KVL, J WP No.3198 of 2021

of service sanctioned as separate unit. As seen from the above,

deputation against will of an employee is prohibited.

17. In Inder Singh's case (supra), the Hon'ble Supreme Court, at

para 18, held as follows:

"Concept of "deputation" is well understood in service law and has a recognised meaning. 'Deputation' has a different connotation in service law and the dictionary meaning of the word 'deputation' is of no help. In simple words 'deputation' means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry of period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per Recruitment Rules.

Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed and he would, therefore, know his rights and privileges in the deputation post. The law on deputation and repatriation is quite settled as we have also seen in various judgments which we have referred to above. There is no escape for the respondents now to go back to their parent departments and working there as Constables or Head Constables as the case may be."

18. In Umapati Choudhary's case (supra), the Hon'ble Supreme

Court held that the concept of deputation is consensual and involves a

voluntary decision of the employer to lend the services of his employee

and it was further held as follows:

"Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on

KVL, J WP No.3198 of 2021

deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. It also involves the consent of the employee to go on deputation or not. In the case at hand all the three conditions were fulfilled."

19. In Bhagawati Prasad's case, the Hon'ble Supreme Court held

as follows:

"Question is whether the petitioner, a Police Inspector, could be, without his consent, deputed to the Civil Defence Organisation? Therefore, the question is can a person holding civil post be sent on deputation outside the cadre or parent department to which he belongs without his consent? Ordinarily, a person belongs to a cadre serves in the cadre and discharges duties assigned to the officers of that cadre; a Mamlatdar is a Mamlaldar, and a teacher is a teacher-one belongs to Revenue Department and another belongs to Education Department. Both undoubtedly may be holding civil posts under the State. Both are civil servants of the State. Could it be said that they are interchangeable? Even if their pay is protected could they be interchanged. Is pay protection the only necessary indicia for sending any civil servant holding one post to any other post for which not only he is not qualified, but he is least competent to discharge duties of that post. It is just not conceivable. We head in the old princely States that a police officer could be a Judge or a guard could be an Education Officer. In the present day this is just not thinkable.

What are the obligations of the holder of a civil post? He is bound to discharge the duties assigned to that post He can be promoted, if he is qualified. He can be reverted either by way of punishment or on account of exigencies of service. He can be transferred 'in the same cadre to an equivalent post He can be asked to discharge all the duties assigned to all such other members of the cadre performing their normal duties of the post. But is it possible even to envisage that any member of the civil service of the State can be sent to any other post outside his parent department or outside the cadre? Even on first principle, the answer must be negative and it must be for obvious reasons.

KVL, J WP No.3198 of 2021

Today when specialisation is the order of the day, when specific educational academic and experience qualifications are prescribed for various posts and aptitude for certain type of work is taken into consideration a man may apply for a post looking forward, if he is appointed, to efficiently discharge the duties assigned to that post. A practising lawyer may be willing to be appointed as a Judge. Now. once he becomes a Judge up to the level of District Judge he is a State servant. Can the State say that he should be asked to work as Police Prosecutor without his consent on the only assurance that his lien is retained and his pay is protected? Man applied for the post of a Judge because he had the aptitude for discharging duties of a Judge. He may turn out to be a good Judge but not be a good lawyer. Could he be asked against his wish to do something for which he never applied. He looked forward to be in the cadre and move up vertically. He took into consideration the duties assigned to the post for which he opted and accepted the employment. Could he be subsequently said no, because you are a government employee. Rule 17 of the Bombay Civil Services Rules permits State Government to employ you in any manner as Government thinks proper?

With minor variation this Rule has been in the Civil Services Rules since much prior even to the introduction of the Constitution. In fact in the Bombay Civil Services Rules, 1938 Rule 17 was in identical language except last one line which is only a consequential amendment. Mr. Takwani urged that Rule 17 permits the Government to direct any government servant to work in any manner required by the proper authority and the expression 'to work in any manner' permits the Government to employ him anywhere as Government think proper notwithstanding that he belongs to one cadre or is qualified for certain type of work only. Expression 'in any manner' cannot be interpreted in such a broad manner as to nullify the guarantee of Article 16 as well as the provisions of Article 309, 310 and 311. Rule 17 appears to be a relic of the past. It was a pre- Constitution provision. It must be understood within the light of the provisions of the constitution. Expression 'in any manner' would only mean anything permissible by relevant rules or by relevant conditions of service. That is all the meaning that can be assigned to the expression 'in any manner' In Rule 17. If the meaning which Mr. Takwani wanted to give to the expression 'in

KVL, J WP No.3198 of 2021

any manner' were to be accepted, it would mean that any employee can be taken outside the cadre, outside the parent department in on a post lower than the post he was holding and when he is asked to do any work for which he may not be competent which would not be befitting the dignity of the last office that he held. In this connection, it would be advantageous to refer to E.P. Reyappa v. State of Tamil Nadu, A.I.R. 1974 S.C. 555 at page 579. Observations made therein are in the context of a member of the Indian Administrative Service, yet they hold good even in respect of a holder of any other civil post under the State. A member of Indian Administrative Service could not be appointed to a non-cadre post unless the Government makes a declaration about the equivalence of the post. Making such a declaration is a sine qua non of the exercise of power under the relevant rules. It was not considered an idle formality which can be dispensed with at the sweet will of the Government. Then comes the pertinent observations which reads as under:-

"It has a purpose behind it and that is to ensure that a member of the Indian Administrative Service is not pushed off to a non-cadre post which is inferior in status and responsibility to that occupied by him. So far as cadre posts are concerned, their hierarchy would be known, but a non-cadre post created by the Government would be stranger in the hierarchy, and that is why sub-r (1) requires that before appointing a member of the Indian Administrative Service to such non-cadre post, the Government must declare which is the cadre to which such non-cadre post, is equivalent in status and responsibility so that the member of the Indian Administrative Service who is appointed to such non-cadre post, would know what is the status and responsibility of his post in terms of cadre posts and whether he is placed in a superior or equal post or he is brought down to an inferior post. If it is the latter, he would be entitled to protect his rights by pleading violation of Art. 311 or Arts. 14 and 16 of the Constitution, whichever may be applicable. That would provide him effective insulation against unjust or unequal or unlawful treatment at the hands of the Government. The object of this provision clearly is to ensure that the public services are, in the discharge of their duties, not exposed to the demoralising and depriving effects of personal or political nepotism or victimisation or the vagaries of the political machine."

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Examining the content of the guarantee enshrined in Article 16 it was said that the basic principle which informs both Arts. 14 and 16 is equality and inhibition against discrimination. Court examined the content and reach of this great equalizing principle and said that Articles 14 and 16 strike at arbitrariness and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. If such is the fetter on State action, can it ever be said that Rule 17 of the Bombay Civil services Rules would permit Government to employ a Government employee in any manner meaning thereby wherever and in whatever post for whatever duty the proper authority considers him fit to employ? Such an approach would strike at the root of Article 16 and must be negatived.

The Court posed a question-thus: Has the Government right to transfer a confirmed permanent Government servant against the latter's will outside his cadre? The answer was in the negative. On behalf of the Union of India reliance was placed on Fundamental Rule 15 which confers power on the proper authorities to transfer Government servants from any post to a post even outside the cadre. Rejecting this contention the Court held that it does not stand to reason that a person who is recruited to a particular cadre should be compelled against his wish to serve outside the cadre even when the permanent post to which he holds a lien exists within the cadre.Thus on principle and authority, it appears clear that a person belonging to a cadre cannot be deputed or transferred outside the parent department and outside the cadre. He can be sent on deputation but that too with his consent Deputation cannot be without the consent of the person to be deputed. Viewed from this angle, order Annexure 'C' dated 9th January 1973 posting the petitioner a Police Inspector in the Civil Defence Organisation is illegal and invalid."

20. A single Judge of the Gujarath High Court held "that it does

not stand to reason that a person who is recruited to a particular cadre

should be compelled against his wish to serve outside the cadre even

when the permanent post to which he holds a lien exists within the

KVL, J WP No.3198 of 2021

cadre and the person belonging to a cadre cannot be deputed or

transferred outside the parent department and outside the cadre. He

can be sent on deputation but that too with his consent deputation

cannot be without the consent of the person to be deputed."

"Question is whether the petitioner, a Police Inspector, could be, without his consent, deputed to the Civil Defence Organisation? Therefore, the question is can a person holding civil post be sent on deputation outside the cadre or parent department to which he belongs without his consent? Ordinarily, a person belongs to a cadre serves in the cadre and discharges duties assigned to the officers of that cadre; a Mamlatdar is a Mamlaldar, and a teacher is a teacher-one belongs to Revenue Department and another belongs to Education Department. Both undoubtedly may be holding civil posts under the State. Both are civil servants of the State. Could it be said that they are interchangeable? Even if their pay is protected could they be interchanged. Is pay protection the only necessary indicia for sending any civil servant holding one post to any other post for which not only he is not qualified, but he is least competent to discharge duties of that post. It is just not conceivable. We head in the old princely States that a police officer could be a Judge or a guard could be an Education Officer. In the present day this is just not thinkable."

"Today when specialization is the order of the day, when specific educational academic and experience qualifications are prescribed for various posts and aptitude for certain type of work is taken into consideration a man may apply for a post looking forward, if he is appointed, to efficiently discharge the duties assigned to that post. A practising lawyer may be willing to be appointed as a Judge. Now. once he becomes a Judge up to the level of District Judge he is a State servant. Can the State say that he should be asked to work as Police Prosecutor without his consent on the only assurance that his lien is retained and his pay is protected? Man applied for the post of a Judge because he had the aptitude for discharging duties of a Judge. He may turn out to be a good Judge but not be a good lawyer. Could he be asked against his wish to do something for which he never applied. He looked forward to be in the cadre and move up

KVL, J WP No.3198 of 2021

vertically. He took into consideration the duties assigned to the post for which he opted and accepted the employment. Could he be subsequently said no, because you are a government employee. Rule 17 of the Bombay Civil Services Rules permits State Government to employ you in any manner as Government thinks proper?"

21. The plea taken in the said case was that the rules framed by

the government provide to 'work in any manner'. The said expression to

work in any manner was discussed in the said judgment and held that

'expression in any manner' cannot be interpreted in such a broad

manner as to nullify the guarantee of Article 16 as well as the provisions

of Article 309, 310 and 311."

22. In Ashok Kumar Ratilal Patel's case, the Hon'ble Supreme

Court held that "ordinarily transfers on deputations are made as against

equivalent post from one cadre to another, one department to another,

one organisation to another''

23. Contention of the learned Government Pleader for Services-I

Mr. N. Aswathanarayana is that as the pay scale of the petitioner is

protected, petitioner cannot have any grievance. In Sub Inspector

Rooplal's case (supra), the Hon'ble Supreme Court held that

equivalency of two posts is not judged by the sole fact of equal pay.

While determining the equation of two posts many factors other than

'pay' will have to be taken into consideration, like the nature of duties,

responsibilities, minimum qualification etc. The Hon'ble Supreme Court

further observed as follows:

"Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than 'Pay' will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in

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the case of Union of India and Anr. v. P. K. Roy and Ors. (1970)ILLJ633SC . In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganisation Act, 1956. These four factors are : (i) the nature and duties of a post, (ii) the responsibilities and powers exercised by the officer holding a post; the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criterion. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different, would not in any way make the post 'not equivalent''.

"We are further supported in this view of ours by another judgment of this Court in the case of Vice-Chancellor, L.N. Mithila University v. Dayanand Jha AIR1986SC1200'. wherein at para 8 of the judgment, this Court held:

Learned Counsel for the respondent is therefore right in contending that equivalency of the pay-scale is not the only factor in judging whether the post of Principal and that of Reader are equivalent posts. We are inclined to agree with him that the real criterion to adopt is whether they could be regarded of equal status and responsibility, xxx The true criterion for equivalence is the status and the nature and responsibility of the duties attached to the two posts."

24. Learned Government Pleader while relying upon the judgment

in Ram Gopal's case (supra), contends that the petitioner has slept over

his right for a long time and the writ petition has to be dismissed on that

ground alone.

25. As seen from the facts of the said case, petitioner therein was

terminated from services on 1978. Another similarly situated person

approached the court and his writ petition was allowed in 1989. Then

the petitioner in the said writ petition filed Writ Petition in 1990

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challenging his termination order of 1978. In those circumstances at para

16 it was held as follows:

"Whilst it is true that limitation does not strictly apply to proceedings Under Articles 32 or 226 of the Constitution of India, nevertheless, such rights cannot be enforced after an unreasonable lapse of time. Consideration of unexplained delays and inordinate laches would always be relevant in writ actions, and writ courts naturally ought to be reluctant in exercising their discretionary jurisdiction to protect those who have slept over wrongs and allowed illegalities to fester. Fence-sitters cannot be allowed to barge into courts and cry for their rights at their convenience, and vigilant citizens ought not to be treated alike with mere opportunists."

26. As seen from the affidavit filed in support of the present writ

petition, petitioner made representations on 10.08.2020, 30.09.2020,

30.11.2020 and on 29.12.2020 ventilating his grievance. According to the

petitioner, pursuant to the impugned order, he reported to duty on

02.03.2020 and then went on leave and as there was lock down from

23.03.2020 to 31.05.2020 and after partial lifting of lock down, he made

representations to the Government. These facts are not disputed by the

respondents. As the petitioner was pursuing his remedies by way of

representations all through, it cannot be said that the petitioner has

slept over his right. Therefore, the judgment relied upon by the

Government Pleader does not apply to the facts of the present case.

27. Learned counsel for the petitioner relied upon the decision of

the Hon'ble Supreme Court in P.S Sadasivaswamy's case (supra), wherein

it was held that 'there is no period of limitation for the Courts, to

exercise their powers under Article 226 of the Constitution of India. It

was further held that 'a person aggrieved by an order of promoting a

junior over his head should approach the court at least within six months

or at the most a year of such promotion'. In the present case, petitioner

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approached this Court on 08.02.2021 i.e., within one year from the date

of the impugned proceedings.

28. Though learned Government Pleader contends that the

petitioner is under the control of Home Department and that he may be

sent anywhere cannot be accepted, because, petitioner was not sent to

an equivalent post.

29. As seen from the impugned order, period of deputation is also

not specified in the impugned order. As seen from the correspondence,

there is no equivalent post in the Police Training College. Admittedly,

there is no request from the Police Training College to depute any

faculty member to the college.

30. Counsel for the petitioenr also relied upon the decision in

Krishnan Singh Kundu's case (supra), wherein it was held as follows:

"The intention of the Legislature underlying the enactment of Sections 24 and 25 of the Code had been made clear in no uncertain terms by impressing upon the State Governments that a Prosecutor who has to conduct cases in the Courts on behalf of the State should not be a person other than an advocate having seven years' standing at the bar. This command of the Parliament was not intended to be complied with only at the stage of filling the posts of Public Prosecutors and to be flouted at the stage of manning the office of the Chief Prosecutor of the State known as Director of Prosecution. If a police officer is allowed to be appointed as Director of Prosecution, who is head of the Prosecution Agency, then it was a wholly futile exercise and pointless pursuit in the matter of reforms in the Administration of Justice, to prohibit police officers from manning the subordinate posts of Assistant Public Prosecutors and Public Prosecutors, This would in fact amount to defeating the very purpose behind the enactment of Sections 24 and 25 of the Code and throwing the recommendations of the Law Commission, which have since been accepted by the Central Government as well as the State of Haryana, to the winds.

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The action of the respondent in appointing a police officer as Director of Prosecution, that is, in charge of the Prosecution Agency of the State, is wholly illegal and violative of the very letter and spirit of Sections 24 and 25 of the Code of Criminal Procedure. We, therefore, by issuing a writ of certiorari, quash the appointment of the Director of Prosecution, Haryana, who happens to be an officer of the Police Department, and by issuing further a writ of Prohibition, we forthwith restrain the State of Haryana from permitting any police officer to occupy the office of the Director of Prosecution. By issuing a writ of mandamus, we command the State of Haryana to fill the post of Director of Prosecution only by appointing a senior officer belonging to the Prosecution Agency, having sufficient experience of actual working as a Public Prosecutor.

31. For the proposition that the post of Director of Prosecution,

shall be filled up only by an Advocate of 10 years standing, he relied

upon Jiwan Lal Sharma's case (supra), wherein, the Division Bench of

Himachal Pradesh High Court held as follows:

"The law is that no one can be appointed or be allowed to hold the charge of the post of Director Prosecution or a Deputy Director Prosecution unless he has been in practice as an Advocate for not less than 10 years."

A combined reading of Sub-section (1) and Sub-section (2) clearly suggests that whether a Directorate of Prosecution is already in existence or it is to be established after the commencement of the aforesaid Code of Criminal Procedure (Amendment) Act, 2005, no person can be permitted to hold the charge of the office of Directorate of Prosecution until he conforms with the eligibility requirements as contained in Sub- section (2) of Section 25-A after the coming into force of this provision of law. A bare look at Sub-sections (3) to (8) of Section 25-A clearly indicates the legislative intent behind this requirement. The legislative intent is that since the Director of Prosecution performs statutory duties akin to judicial or quasi- judicial functions, functions in the nature of being a Public Prosecutor, Additional Public Prosecutor and a Special Public Prosecutor and the functions include the conduct of cases in the High Court as well as in the Courts subordinate to the High

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Court, only a person with a legal and a juristic background should be considered eligible and suitable to hold this post. The Parliament understandably enacted the aforesaid provision of law keeping in mind the fact that persons other than those mentioned in Sub-section (2) are not equipped with the necessary wherewithal as well as the bent of mind to perform the functions of the Director Prosecution."

32. For the proposition that the prosecution shall be free from

police force, he relied upon the decision of the Hon'ble Supreme Court

in S.B. Shahane's case (supra).

33. Admittedly, petitioner was holding Category-2 post in the

cadre of the prosecutions as Additional Director and was also kept full

additional charge of the post of Director of Prosecutions, which is

category-1 post and through the impugned order he was deputed to the

Police Training College, as a faculty member, which is manned by

Cateogry-6 person. As seen from the Memo dated 17.02.2021 of the

Government, it was clarified that suitable cadre post may not exist in

Police Training college and the 2nd respondent was instructed to take

necessary action in the manner. This clarifies that the post to which the