Bombay High Court
Shri. Sampat Mahadeo Jadhav And ... vs The State Of Maharashtra Through ... on 21 December, 2016
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition NO. 4078 OF 2015
The State Of Maharashtra, ...Petitioners
Vs
Shri. Ashok Laxman Sawant & Ors. ...Respondents
WITH
Writ Petition NO. 8919 OF 2014
Pradip Murlidhar Sonawane ...Petitioner
Vs
Government Of Maharashtra & Ors. ...Respondents
WITH
Writ Petition NO. 10877 OF 2014
Mr. Shivdatta Ganpat Malandkar ...Petitioner
Vs
The Additional Chief Secretary & Ors. ...Respondents
WITH
Writ Petition NO. 8843 OF 2014
Shri. Suresh Baburao Kandekar & Ors. ....Petitioners.
Vs.
The State of Maharashtra & Ors. ....Respondents.
WITH
Civil Application in WP NO. 562 OF 2016
IN
Writ Petition NO. 4078 OF 2015
Shri Nisar Abdul Shaikh & Ors. ...Applicants.
Vs
The State Of Maharashtra & Ors. ...Respondents
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WITH
Civil Application in WP NO. 1074 OF 2015
IN
Writ Petition NO. 4078 OF 2015
Vasant Bajirao Kesarkar & Ors. ...Applicants.
Vs
Government Of Maharashtra & Ors. ...Respondents
WITH
Civil Application in WP NO. 1593 OF 2015
IN
Writ Petition NO. 4078 OF 2015
Vijay Tryambak Nemade & Ors. ig ...Applicants.
Vs
Government Of Maharashtra & Ors. ...Respondents
WITH
Civil Application in WP NO. 1721 OF 2015
IN
Writ Petition NO. 4078 OF 2015
Pradip Vasantrao Patil & Ors. ...Applicants.
Vs
Government Of Maharashtra & Ors. ...Respondents
WITH
Civil Application in WP NO. 1922 OF 2016
IN
Writ Petition NO. 10877 OF 2014
Mr. Sanjay Balaji Shinde & Ors. ...Applicants.
Vs
Mr. Shivdatta Ganpat Malankar ...Respondents
WITH
Civil Application in WP NO. 2552 OF 2015
IN
Writ Petition NO. 4078 OF 2015
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Subhash Raosaheb Khandagale & Ors. ...Applicants.
Vs
The State Of Maharashtra & Ors. ...Respondents
WITH
Civil Application NO. 2080 OF 2016 IN WP/4078/2015
WITH
Civil Application No. 3024/2016 in WP/4078/2015
WITH
CIVIL APPLICATION NO. 3203 OF 2015
IN
Writ Petition NO. 10877 OF 2014
Mr. Shivdatta Ganpat Malandkar ...Applicant.
Vs
The Additional Chief Secretary & Ors. ...Respondents
Mr. Abhinandan B. Vagyani, Government Pleader a/w Mr.
Chandrakant P. Yadav, Asstt. Govt. Pleader, Advocate Ms. Tintinaka
Hazarika for Petitioner in WP No. 4078 of 2015 and for the
Respondents in WP Nos. 8919 of 2014, 8843 of 2014 and 10877 of
2014 and in all Civil Applications.
Mr. Subhash V. Gutte for the Applicant in CAW 1074 of 2015, CAW
1721 of 2015, CAW 2552 of 2015 & CAW 1593 of 2015 in WP 4078 of
2015.
Mr. Ajit Pitale for applicant in CAW 2080 of 2016 in WP No.4078 of
2015.
Mr. Ravindara S. Pachundkar for applicant in CAW 3024 of 2016 in
WP 4078 of 2015.
Mr. R.M. Kelge for the Petitioner in WP No. 8843 of 2014.
Mr. Sandeep Dere for the Petitioner in WP No. 8919 of 2014.
Mr. G.S. Godbole a/w Mr. G.M. Savagave for the Petitioner in WP No.
10877 of 2014.
Mr. Prashant R. Suryawanshi for applicant in CAW 1922 of 2016 in
WP 10877 of 2014.
Dr. Ramdas Sabban Spl. Counsel a/w AGP for the Respondents
Authorities in WP No. 8919 of 2014, WP 8843 of 2014 & WP 10877 of
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2014.
Mr. P.A.Pol i/by Pol Legal Juris for Applicant in CAW 562 of 2016 in
WP 4078 of 2015.
CORAM : ANOOP V. MOHTA AND
A.S. GADKARI, JJ.
DATE : 20 DECEMBER 2016 AND
21 DECEMBER 2016
ORAL JUDGMENT (PER ANOOP V. MOHTA, J.):-
Rule. Rule made returnable forthwith.
All these matters heard together finally, as the issues based
upon the facts and circumstances and so also the prayers are similar in
nature, therefore, this common Judgment.
3 The State Government in Writ Petition No. 4078 of 2015
has challenged the common Judgment and order passed by the
Maharashtra Administrative Tribunal (for short, "Tribunal") dated 9
July 2014, whereby, Original Application Nos. 767 of 2013 and 284 of
2014 filed by the Respondents (Original Applicants) have been
allowed. The challenge is also made to Judgment and Order dated 21
August 2014 passed in Review Applications No. 21 of 2014 and 24 of
2014. The operative part of the common order is as under:-
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"11. Having regard to the aforesaid facts and
circumstances, Rule 3(a) as amended by order dated
29.6.2013 is quashed as being arbitrary and
against the principles of equality enshrined in
Articles 14 and 16 of the Constitution of India. As
a result, the appointment to the post of PSI from
25% quota for promotion can be made as per
unamended Rule 3(a). However, promotion
should be made only from the post of ASI and
not from the post of Havaldar. It is also held that
the Departmental Qualifying Examination is just
that i.e. Qualifying Examination. Any Police
personnel from the level of Police Constable to ASI
may appear for the same and once qualified would
be eligible for being considered for promotion on
acquiring necessary seniority after promotion to
intermediate posts. Original Application is
accordingly disposed of with no order as to costs."
(Emphasis added)
4 The Respondents-Original Applicants have also made
restricted (emphasis portion) challenge to the impugned order.
5 The basic events of these case are as under:-
On 20 July 1995, the State Government ("the State") framed the
Recruitment Rules for regulating recruitment to the post of Sub-
Inspectors of Police in the "Police Force", in exercise of the powers
conferred by clause (b) of Section 5 of the Maharashtra Police Act,
1951. On 29 June 2013, the State issued an impugned order in
exercise of the powers conferred by clause (b) of Section 5 of the
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Maharashtra Police Act, 1951, whereby amended rule 3(a) of the
Police Sub-Inspector (Recruitment) Rule 1995, (the amended Rule).
On 21 August 2014, Original Application Nos.767 of 2013 and 284 of
2014 (O.As.) were filed by one Ashok Laxman Sawant and Anr. and
Raju Shivshankar Deshpande and 26 Ors. before the Tribunal, Mumbai
and challenged Order dated 29 June 2013 passed by the State
amending Rule 3(a) of the P.S.I. (Recruitment) Rules, 1995. The same
was declared bad in law by the Tribunal. On 21 August 2014, Review
Application No. 21 of 2014 in O.A. Nos. 284 of 2014, with Review
Application No. 24 of 2014 in O.A. No.767 of 2013 (R.As.) were
dismissed by the Tribunal, Mumbai. On 18 September 2014, Pradip
Murlidhar Sonawane filed Writ Petition No. 8919 of 2014 before the
High Court, Mumbai against the order passed by the Tribunal,
Mumbai in the matter of O.A. and R.A. On 9 October 2014, an
interim order was passed by the High Court in the Writ Petitions. On
12 January 2015, another interim order was passed by this High Court
in W. P. Nos. 8919, 8843 and 10817 of 2014. On 5 February 2015, the
aforementioned W.P.s i.e. 8919, 8843 and 10817 of 2014 were heard
by the High Court, Mumbai and the interim order was passed. On 23
March 2015, a reply in Writ Petition No. 8919 of 2014 filed on behalf
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of the D.G.P., M.S., Mumbai. On 8 April 2015, the Writ Petition No.
4078 of 2015 was filed by the State challenging order dated 9 July
2014 and 21 August 2014 in the O.As. And R.As.
6 There is a challenge and a counter challenge to the
impugned order. So far as the decision on the impugned rule is
concerned, the Original Applicants are supporting the impugned order.
The interveners in Application Nos. 2552 of 2015, 1074 of 2015, 1721
of 2015, 1593 of 2015, 562 of 2016 and 3024 of 2016 filed in the Writ
Petition No. 4078 of 2015 of the State, however, supporting the
amended action/Rule 3(a) and all consequential actions arising out of
the same. The Respondents-Original Applicants and the Interveners
are basically Police Constable, Police Naik, Police Head Constable and
Assistant Sub-Inspector. In some Petitions the challenge is made to the
Rule by the Writers. Most of the intervenors are Head Constables.
Impugned amended rules:-
7 The amended rule 3(a) of the Police Sub-Inspector
(Recruitment) (Amendment) Rules, 2013, is reproduced:-
"ORDER
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Home Department, Mantralaya
World Trade Centre, Centre-I,
Cuffe Parade, Mumbai-400 005.
Date: 29th June, 2013.
Maharashtra
Police Act
No. Police-1113/CR-440/Pol-5A.- In exercise
of the powers conferred by clause (b) of section-5 of
the Maharashtra Police Act (XXII of 1951), and of
all other powers enabling it in that behalf, the
Government of Maharashtra hereby makes the
following rules further to amend the Police Sub-
Inspector (Recruitment) Rules, 1995 as follows,
namely-
These rules may be called the Police Sub-
Inspector (Recruitment) (Amendment) Rules,
2013.
2. In rule 3 of the Police Sub-Inspector
(Recruitment) Rules, 1995 for clause (a), the
following clause shall be substituted:-
"(a) by promotion of a suitable person on
the basis of seniority subject to fitness from
amongst the persons holding the post of
Police Constable or Police Naik or Police
Havaldar or Assistant Police Sub-Inspector
in the Police Force having not less than ten
years continuous regular service from the
date of appointment in the Police Force and
who qualify in the departmental
examination held by the Director General of
Police as per the Examination Rules
prescribed by the Government, by special or
general order, from time to time."
By order and in the name of the Governor
of Maharashtra.
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Sd/-
(Medha Gadgil)
Principal Secretary (Appeal and Security)"
8 Unamended rule 3(a) of "PSI Recruitment Rules, 1995" is
as under:-
"3(a) by promotion of a suitable person on the basis
of seniority subject to fitness from amongst the
persons holding the posts of Police Havaldar &
Assistant Police Sub-Inspector in the Police Force who
have completed not less than five years continuous
regular service or seven years broken service and who
qualify in the departmental examination held by the
Director General of Police...."
Hierarchy of the cadre of Police Personnel in question:-
9 The controversy so revolved in these Petitions, therefore,
required to be considered from the point of view of virus/validity of
the amended Rule so framed by the State and related aspects. There
is no issue with regard to the hierarchy of cadre/employees.
"Step by Step Posts and Regular Promotions in Police
Force-(From bottom to top)
"Asstt. Sub Inspector (ASI)
Head Constable (HC)
Police Naik (PN)
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Police Constable (PC)
1) A personnel joined in Police Force as a "PC" at
initial stage and can get promotions as per above up to
the age of 58 yrs as per below provisions.
2) GAD circular No. SRV-1088/109/XII, Dt.
25.8.1988 & No. SVR-1088/109/P. No.1/88/XII, Dt.
4.9.1990
3) Minimum 3 yrs. Of continuous service as a
condition for promotion to higher posts."
Recruitment for the post of Police Sub-Inspector
I Direct Recruitment 50% Open for all
Exam. held by MPSC PC can be eligible till
(Competitive) at the age of 28 yrs.
& 31 yrs. for
reserved category.
II Direct Deptt. Exam. 25% PC & PN eligible till
held by MPSC at the age of 35 yrs.
(Competitive) & 40 yrs. for
reserved category.
III Qualifying Deptt. 25% HC & ASI
Exam. held by DGP Who hold the post of
HC for 5 yrs
continuous and 7
yrs broken service
Over aged
candidates.
Limit 3 Chance for
open and 4 chance
for reserved
category.
The present Provision for Qualifying Departmental
Examination is not in issue.
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• G.R. No. PSB. 0390/CR-408/Pol.5, Dated 5th July, 1994;
• Police Sub-Inspector (Recruitment) Rules, 1995, Un-
amended rule 3(a);
• Bombay Police Manual Vol. I, Rule No. 180 (1) & (2)
and;
• Police Manual Part I, Rule No.90."
Relevant provisions as referred-
10 Admittedly, the appointments of the police Constables are
made as per the provisions of the Police Act, respective rules and
circulars made there under. The other connected rules and
regulations, which the counsel have relied and referred are-
• The Maharashtra Government Rules of Business General
Administration Department, and the Instructions issued
there under. Relevant Rules 9 , 10 and 13 are as under:-
"9. All cases referred to in the Second Schedule shall be
brought before the Council-
(i) by the direction of the Governor under Clause © of
Article 167;
(ii) by the direction of -
(a) the Chief Minister; or
(b) the Minister-in-charge of the case with the
consent of the Chief Minister;
Provided that, no case in regard to which the
Finance Department is required to be consulted under
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rule 11 shall, save in exceptional circumstances under the
directions of the Chief Minister, be discussed by the
Council unless the Finance Minster has had opportunity
for its consideration."
"10. (1) Without prejudice to the provisions of rule 8,
the Minister-in-charge of a Department shall be primarily
responsible for the disposal of the business appertaining
that Department or part of the Department.
(2) Every Minister, every Minster of State, every
Deputy Minister and every Secretary shall transmit to the
Chief Minister all such information with respect to the
business of the Government as the Chief Minister may
from time to time require to be transmitted to him."
"13. Every order or instrument of the Government of
the State shall be signed either by a Secretary, an
Additional Secretary, a Joint Secretary, a Deputy
Secretary, an Under Secretary or an Assistant Secretary
or such other officer as may be specifically empowered in
that behalf and such signature shall be deemed to be
proper authentication of such order or instrument."
Clause 12 and 23 of Second Schedule, framed under Rule 9, are also
relevant.
11 The reference is also made to the provisions of the
Maharashtra Police (Amendment) Ordinance of 2015 (amendment to
the Maharashtra Police Act) and specifically clause 4(A), which reads
thus:-
"(4A) "constabulary" means Police Constable, Police
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Naik, Police Head Constable and Assistant Sub-
Inspector"
thereby, the reference is also made to the Competent Authority, with
regard to the Police personnel.
12 The Police Manual, and basically Regulations 56 (1), (2),
(4) and (5) (Recruitment of Sub-Inspectors) are also referred.
Government Resolution dated 12 February 2013, is also
referred to throw the light on the hierarchy and the power of the
Competent Authorities to initiate action and/or to take steps against
the concerned officers, based upon their hierarchy.
14 The definition of "Police Force" as defined under the Police
Sub-Inspector (Recruitment) Rules, 1995 reads thus-
"(e) "Police Force" means the Police Force of the
Governments of Maharashtra."
15 The Maharashtra Civil Services (Regulation of Seniority)
Rules, 1982 also read and referred to submit their respective
submissions.
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16 Section 156 of the Maharashtra Police Act, as relevant is
reproduced as under:-
"156. Rules and order not invalidated by defect of
form or irregularity in procedure
No rule, order, direction, adjudication, inquiry or
notification made or published, and no act done under
any provision of this Act or of any rule made under this
Act, or in substantial conformity to the same, shall be
deemed illegal, void, invalid or insufficient by reason of
any defect of form or any irregularity of procedure."
The definition of "Rule" as defined under Section 21 of the
General Clauses Act 1897, as applicable to the Bombay, which is pari-
materia and reproduced as under, also referred-
"Rule: shall mean a rule made in exercise of a power
conferred by any enactment, and shall include a
Regulation made as a rule under any enactment."
18 Both the parties have placed reliance on their respective
Judgments, apart from the provisions of Rules so referred above, on
the various aspects, including Rule making power, validity of Rule and
aspects of promotions, based upon such rules. Some Judgments are
also placed and cited to support their contention with regard to the
statutory interpretation of Rules and Regulations and/or sub-ordinate
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legislation.
The promotional right within the law-
19 There is no issue with regard to the power of the State to
frame rule with regard to the promotion and/or related aspects, which
required to be taken note of in such service jurisprudence. The Police
personnel are fully aware of their entitlement based upon the
appointment letters and the accepted terms and conditions of service
of the relevant date/time. The promotion is always subject to the
power and the rules and regulations and/or the circulars, if any, based
upon the policy decision taken by the State, considering the scope,
purpose and their requirement. This State exclusive domain,
therefore, needs to be respected and accepted unless a case is made
out, based upon the material placed on record that the State has acted
highhandedly, arbitrarily, indiscriminately against the Constitutional
provisions and the governing statute/provisions. The right of
promotion, and/or to be considered for promotion, based upon the
service conditions and the related rules and regulations, is always the
issue in every State departments. The State's such decision, is always
on a foundation of their departmental requirement to encourage
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and/or assess the merits and demerits for future promotions. It is
difficult for the Court to give particular guidelines and/or issue
directions regulating the promotions. The scope and power of the
Court in service jurisprudence is only to test, whether the State has
acted while framing the promotion policy and/or making such rule, is
against the constitutional provisions and/or in breach of any statute.
The Tribunal's power and jurisdiction-
20 The Tribunal is constituted under the provisions of
Administrative Tribunals Act-1985 ("The Act"). The Supreme Court in
L. Chandra Kumar Vs. Union of India & Ors. 1 has elaborated the scope
and power of the Tribunal to deal with even the validity of service
rules and regulations, if the case is made out. The right of individual
employees and/or related dispute, falls within the ambit of the Act.
The jurisdiction of the Tribunal being the original Court, for deciding
such issues, based upon on the material and the facts placed on
record. Therefore, we have to see the facts and the material which
were placed before the Tribunal, when the challenge was raised to the
validity of the amended rule.
1 (1997) 3 SCC 261
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21 We are inclined to discuss these issues, as in service
jurisprudence, it is necessary for the Tribunal to consider the facts and
circumstances first, before going into the validity of the statute/rules.
The Constitution Bench of Supreme Court in Naresh Shridhar Mirajkar
v. State of Maharashtra2, has observed as under :
"38 The argument that the impugned order affects
the fundamental rights of the petitioners under Art.
19(1), is based on a complete misconception about the
true nature and character of judicial process and of
judicial decisions. When a Judge deals with matters
brought before him for his adjudication, he first
decides questions of fact on which the parties are at
issue, and then applies the relevant law to the said
facts. Whether the findings of fact recorded by the
Judge are right or wrong, and whether the conclusion
of law drawn by him suffers from any infirmity, can be
considered and decided if the party aggrieved by the
decision of the Judge takes the matter up before the
appellate Court. ........
39 .................. On this view of the matter, it seems
to us that the whole attack against the impugned order
based on the assumption that it infringes the
petitioners' fundamental rights under Art. 19 (1), must
fail."
The Tribunal's power to entertain and/or to accept the
constitutional challenge of the rules and regulations is not the issue,
but the requirement is to consider such validity, as presumption is
2 AIR 1967 SC 1
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always in favor of the constitutional validity of the statures/rules, is
the settled law. The burden of proof shifts upon basically on who
raises such constitutional validity to show how the statute is bad in
law on the specified proved material/data, covering Articles 14, 16
and others of the of the Constitution of India.
22 The Apex Court has provided the basic principles in Cellular
Operators Association of India and Ors Vs. Telecom Regulatory Authority
of India and Ors.3 and has dealt with in the matter of the Judicial
Review of the sub-ordinate legislation and expressed as under:-
"34. In State of T. N. v. P. Krishnamoorthy (2006) 4
SCC 517, this Court after adverting to the relevant case
law on the subject, laid down the parameters of judicial
review of subordinate legislation generally thus: (SCC pp.
528-29, paras 15-16)
"15. There is a presumption in favour of
constitutionality or validity of a subordinate legislation
and the burden is upon him who attacks it to show that
it is invalid. It is also well recognized that a subordinate
legislation can be challenged under any of the following
grounds:
(a) Lack of legislative competence to make the
subordinate legislation.
(b) Violation of fundamental rights guaranteed
under the Constitution of India.
(c) Violation of any provision of the Constitution of
India.
3(2016) 7 SCC 703
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(d) Failure to conform to the statute under which
it is made or exceeding the limits of authority
conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any
enactment.
(f) Manifest arbitrariness/unreasonableness (to an
extent where the court might well say that the
legislature never intended to give authority to
make such rules)."
In the present case, we have noted that no above ingredients have
been made on facts and law, apart from no pleadings and supporting
reasons for the same. In all, no case is made out of Judicial Review of
the amended Rule, in question.
Qualifying Examination has been part of cadre for promotion-
23 In the case in hand, the Original Applicants appointee, 30
in numbers, have challenged the validity of the amended rule. In some
Petitions, the Head Constables and Police Constables, who are
appointed initially as unarmed Police Constables, were posted as
Police Constables Writers, after passing the written examination and
subsequently, promoted as Head Constables and writers on different
dates. Other Applicants, after joining as Police Constable, promoted
as Police Head Constables and ASI. Other Petitioners-interveners' are
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in support of the amended rules, are Head Constables. The challenge
to the amended rule, therefore, by these employees/Police Constables,
in our view, ought to have been based upon the data and material,
how they are actually affected and how it is taking away the rights of
the promotion. There is no issue with regard to the recruitment to the
post of Sub-Inspector of Police in ratio of 50:25:25, by direct
recruitment, on the nomination of limited departmental competitive
examination and/or by promotion of Head Constable and ASI based
upon the Police Sub-Inspector (recruitment) Rules 1995. The
qualifying departmental examination has been part of their promotion
ladder at every point of time from the date of their basic appointment
as a Police Constable itself. Therefore, whosoever had passed this
examination and eligible for the respective consideration of promotion
have been regularly considered according to the old rules.
No factual data made available to prejudice-
24 Admittedly, except by giving their respective submissions
and the background of the rules and regulations, there is no data
placed on record to show how actually the Petitioners are affected by
the amended rules of promotions. It is only decided to give the
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opportunity to all the concerned, including the Police Constable and
Police Naik, which were admittedly not under the unamended Rules
1995. This inclusion for the first time by this amendment is the main
bone of contention in the Petition.
25 No chart and/or material even read and referred and/or
discussed by the Tribunal while deciding the validity of amended rule
3(a). Once the power of the State to frame rules and/or decide the
policy to bring in some new mechanism to give importance to
everyone from the respective class of the said cadre, keeping in mind
the basic requirement of "Police force" in every related field, the
validity of such rules therefore, ought to have been based upon the
actual and proved data, material and the actual prejudice to the
respective persons/parties. Admittedly, all the materials and data are
missing in the present case.
26 The amended rule, permits to participate them in the
qualifying examination, thereby treating all these Police Constables,
Police Naik, Police Havaldar and Assistant Sub-Inspector of police,
based upon the basic of, 10 years of continuous service, in their
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respective cadre. However, this requirement is with a foundation that
they will be in a position to appear in the qualifying examination,
based upon which the department will consider to promote them to
the post of PSI. However, this is again on a foundation of giving
importance to the respective seniority, based upon the initial
appointment as Police Constable. Therefore, even if all have appeared
for the examination and/or passed the examination, but based upon
the seniority, the department will promote them to the post. The plain
rule as well as, the submission so made by the parties itself, shows
that at this stage, there was no occasion to prepare the seniority list.
The same was not at all published. The rule therefore, only permits
the department/State to bring all these together and allow them to
participate in the examination. Therefore, it is difficult to accept, the
challenge when the rule was published, there was no data and/or
material to justify the challenge raised to the constitutional validity of
rule 3(a) in the background of settled service law of jurisprudence.
The declaration that the amended rule is arbitrary, contrary to the
provisions of law and the Act, including the observation that such rule
violates the principle of equality by treating the Police Constable,
Police Naik, Police Havaldar and ASI, as equal though were unequal,
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is unacceptable.
27 The strength of the Police department with regard to the
posts of P. S.I. are as under-
Category Sanction Total Present s
ed .
Strength
Enrolled Probationary Total
on P.S.I. Present
Gradation
List of
P.S.I.
25% 2422 258 00 258 2164*
Promotees.
25% 2422 1560 00 1560 0862
Department
al Direct
Nominees.
50% direct 4843 2711 986 3697 1146
nominees.
Total P.S.I. 9687 4529 986 5515 4172
Seniors have participated and passed the qualifying examinations-
28 There is no specific challenge raised by the Police
personnel, who are brought in, in rule 3(a) for the first time. The
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same rules, by which they are brought in, in a given case and as there
is no specific challenge raised, supports the class of senior employees
who are willing to participate in the examination, as this amended
rule permits all of them to appear. The other senior Police Constables,
who have reached the respective stage, by passing the examinations,
though based upon the earlier rules of 1995, have also participated in
the recruitment process and in fact have been supporting the rules in
every aspect. Merely because some Petitioners, minority in numbers,
have raised the challenge, based upon the assumption and
presumption, on vague and unclear pleadings and material, in our
view, cannot be the test to decide the validity of the provisions by
treating the same to be as arbitrary, unconstitutional and bad in law.
We are inclined to observe that in a given case, if the case is made out,
the tribunal and/or such authority, after considering the rival
contentions of such affected persons, based upon the objected
seniority list and if they are affected, would be decided for enforcing
their individual rights.
Premature challenge-
29 Even if we consider the case of the Original Applicants as
ssm 25 1-wp-4078-15 gp-judgment-27-12-16.sxw
they are supporting the orders passed by the Tribunal, it was difficult
for the Court and/or for the Tribunal to direct the State to decide the
seniority list and/or promotion list as admittedly even on the date of
challenge, there was no case of preparing promotion list as the
examinations were never held, as required under the amended rules.
There was no question of setting aside any list of promotion. There
was no question even to ask the department to promote anyone
without conducting the examination without allowing the candidates
to participate in the process.
The Tribunal has not considered actual data of examinations results and
orders passed-
30 The submission is also made that all the candidates had
appeared in the examinations, pending the Original Applications, and
even on the date of order 9 July 2014, the results were already
declared. This Court also by order dated 9 October 2014, passed in
Writ Petition Nos.8843 of 2014 and 8919 of 2014, permitted the
Havaldars, to appear in the examination and observed in paragraph
No.6 as under:-
"6. We observe that the Havaldar would be entitled
to participate along with A.S.I. in the selection process
for the post of P.S.I. under the unamended rule 3(a) of
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the said Rules. It is clarified, in view of the statement
made by learned A.G.P., that the Hawaldar need not first
be promoted as A.S.I. for participating in the selection
process for the post of P.S.I. Obviously, it would be for the
selecting authority to decide independently as to whether
an applicant/ candidate is entitled to participate in the
selection process being Hawaldar or A.S.I. The
observations of the Tribunal to the effect that only A.S.I.
can be promoted as P.S.I. and the promotional post for
Hawaldar is A.S.I. and not P.S.I. made in the impugned
order dated 9th July 2014 would not be operative."
(Emphasis added)
The subsequent orders are passed by the Division Bench including the
last order of 5 February 2015.
The Tribunal's wrong approach-
31 The Tribunal, therefore, was fully aware of the order
passed by it whereby, all such Police personnel were permitted to
appear in the examinations. There was no stay to the amended rule,
at any point of time. The submission is made that all the Police
Constables, who participated in the examinations, have been declared
passed and therefore, they are now required to be regularized on the
promotional post, based upon the seniority. The rules are clear on this
issues.
ssm 27 1-wp-4078-15 gp-judgment-27-12-16.sxw
32 The Tribunal, therefore, inspite of above background has
passed the impugned order by declaring amended rule 3(a) as
unconstitutional, being arbitrary and against the principle of equality
under Articles 14 and 16 of the Constitution of India. It is further
ordered that the appointment to the post of PSI from 25% quota for
the promotion, can be made as per unamended rule 3(a). Having
permitted the department to proceed with the examinations and in
fact the examinations have been conducted, based upon the amended
rule 3(a), but without observing anything on this aspect and without
taking note of the data and the results of such examination, the
Tribunal has passed the impugned order. The whole approach is
wrong and impermissible.
The common challenge by both the parties-
33 The common challenges, which even the Respondents-
Original Applicants have raised with regard to the observations in
para 11 whereby, though there was no specific rule and/or circular,
ordered that "promotion should be made only from the post of ASI and
not from the post of Havaldar". The Original Applicants, therefore,
are aggrieved by the same and so also the State, as the Tribunal
ssm 28 1-wp-4078-15 gp-judgment-27-12-16.sxw
cannot direct and bring in some new rule, which was never
contemplated, even by the State. The rule, if is declared ultra-virus,
then there was no question of any leverage and/or interpretation and
above observations as made in paragraph No. 11. Such finding, in our
view, is not within the purview of power and the jurisdiction of the
Tribunal.
The Tribunal order is difficult to implement-
34 The actual scenario now is that the candidates, who
appeared in the examinations, have passed their respective
examinations. The Respondent-Department required to consider the
same, based upon the amended rules and the future action of
promotion, but by the impugned order everything is disturbed and
delayed and so also the future promotions. The Tribunal order,
therefore, in our view, is difficult to implement, as nothing is observed
about the earlier orders for those who appeared in the examinations.
The consequential order is required to be passed to avoid the
confusion and for proper implementation of the amended rules and
earlier orders so passed even by the High Court.
ssm 29 1-wp-4078-15 gp-judgment-27-12-16.sxw
First time issue of not placing the amended rules for approval of
Legislative Council-
35 The new issue that the amended rule was never got
sanctioned and/or approved from the legislative Council/Cabinet,
which according to them is mandatory requirement of law.
Admittedly, all these rules were never placed for such
approval/sanction. The submission of the learned GP for the State
that it is not the requirement in view of the specific nature of Post, in
question. The submissions and counter submissions are made based
upon the Judgments referring to the statutory interpretations and its
related laws. The provisions of law, so referred, need no discussion,
as the law with this regard is settled. However, this is always subject
to the facts and the requirement of statutes. Admittedly, unamended
1995 rule, so framed earlier, was also never placed before the cabinet.
There was no such challenge raised earlier. Every concerned have
been acting upon the same since 1995.
No procedural irregularity- Amended rule is validly made-
36 The issue, that such amendment in pleading should be
ssm 30 1-wp-4078-15 gp-judgment-27-12-16.sxw
allowed at this stage, in Writ Petitions, in the present facts and
circumstances, we are not discussing further, as we have heard the
parties on the issue by allowing the amendment. Those defective
procedures, even if any, that itself cannot be the ground to declare the
amended rule as invalid and/or bad in law. Section 156 of the Police
Act as reproduced above, makes the position very clear, which
provides in the background of this nature that the "Rules and order not
invalidated by defect of form or irregularity in procedure". Section 156,
in our view, has protected the situation even if any and in the present
case, there is no case made out to accept this contention for the first
time, though it was not the reason for the Tribunal to pass the order of
declaring the said rule, bad in law.
Such procedure, even if any, is directory-
37 Even after reading rule 9 read with clause 23 of the
Second Scheduled of Maharashtra Government Rules of Business
General Administration Department dated 26 June 1975, in the
background of added Section 4(A)-1 of the Maharashtra Police Act,
1951 dated 16 February 2015, whereby the definition of
"constabulary" means the Police Constable, Police Naik, Police Head
ssm 31 1-wp-4078-15 gp-judgment-27-12-16.sxw
Constable and Assistant Sub-Inspector, as elaborated, the amended
rule cannot be stated to be bad in law or unconstitutional. It is clear
that as per the rules all cases referred to in the Second Schedule
required to be brought before the Council, which covers the proposal
involving any important alterations in the condition of service of the
members of any All India Service or the State Service or in the method
of recruitment to the Service or post to which the appointment is
made by the State. The amended rule, cannot be stated to be
alteration of the conditions of the service to the respective position, to
which the appointment is made. There is force in the contention that
the posts of PSI group, non-gazette post and the appointing authority
is not the State. It is as per the Maharashtra Police Manual Rule 56
which defined the "competent authority" for the posts which is Deputy
Inspector General of Police. For want of contra material, we are
inclined to accept the case/submission on behalf of the learned GP
that the amended rules need not be placed before the Council of
Minister or before the financial department as submitted by the
Original Applicants. This is in the background, as already recorded
referring to Section 21 of the General Clause Act, 1897, which
mandates that power to issue, to include power to add to,
ssm 32 1-wp-4078-15 gp-judgment-27-12-16.sxw
amend, vary or rescind notifications, orders, rules or bye-law. The
power is also provided in the Maharashtra Government Rules of
Business General Administration Department dated 26 June 1975,
whereby the Minister-in-charge to take decision for the disposal of the
business appertaining that Department, which in a given case, may
include the amendment of the condition of service, which are not
falling with the mandate of Rule 9 read with Clause 23 of the Second
Schedule.
38 Rule 4 also provides that, the business of the Government
shall be transacted in the Departments specified in the First Schedule
and shall be classified and distributed between those Departments as
laid down therein. Rule 7 and Rule 10 define the respective role of
the Departments of Mantralaya. Therefore, taking overall view of the
matter and considering the scheme and object of the Rules, including
rule 10(1) of the Maharashtra Government Rules of Business General
Administration Department dated 26 June 1975, the Minister-in-
charge of a Department of the State is empowered to give sanction to
the amendment to the amended Rule 3(a) of the PSI (Recruitment)
Rules, 1995. Such approval of the Minister was obtained before the
ssm 33 1-wp-4078-15 gp-judgment-27-12-16.sxw
amendment dated 29 June 2013. Therefore, there is no force in the
contention so raised in this regard.
39 We are inclined to accept the submissions so made by the
learned GP for the State that the requirement of placing such rules
before cabinet is not mandatory, in every aspect, in such matters.
There is nothing placed on record to show that there was any such
challenge raised earlier with the supporting material. Even if there is
any requirement, still it is not mandatory and if it is directory, then
also for want of such irregularities of procedure, the rule cannot be
declared bad in law, in the present facts and circumstances,
specifically in view of the Full Bench Judgment of this Court in
Chandrakant Sakharam Karkhanis & Ors. Vs. State of Maharashtra &
Ors.4.
40 The additional factor, in these matters, is that such
challenge so raised in the present Petition, was not raised earlier
though earlier they participated and acted upon without any
objection, so far as this issue is concerned. Therefore, taking overall
view of the matter, we see there is no reason to accept the contention
4AIR 1977 Bom. 193
ssm 34 1-wp-4078-15 gp-judgment-27-12-16.sxw
of the learned counsel appearing for the Original Applicants that the
rule required to be declared bad in law for want of so called no
council sanction/approval as contended.
41 Even prior to the State amendment, the hierarchy is well-
known and established, i.e. Police Constable, Police Naik, Police Head
Constable and Assistant Sub Inspector. This is in the background that
there are rules prescribed specifically for the PSI (Recruitment) Rules,
1995. The definition of "Police force" as quoted above, reflects that all
these Police personnel are part of the Police for all the purposes, right
from their appointment till the respective promotions.
Basic Seniority has been given importance for the promotions-
42 The seniority in all these matters has been respected, even
the unamended provision/rule and also by the amended
provision/rule. The definition of "constabulary" and the submission
so raised surrounding the same are also of no assistance to maintain
the impugned order so passed, as on the date of filing of Original
Applications and/or passing of the orders, the definition of
"constabulary" was not in existence. It is very clear, even otherwise,
ssm 35 1-wp-4078-15 gp-judgment-27-12-16.sxw
the definition has been inserted in the context of regulating the
transfers of all the Police personnel. The submission is made and as
recorded even by the learned Tribunal that by inserting these two
cadres through this amendment, amount to treating unequal equally
and the action is discriminatory and arbitrary and it causes great
injustice, hardship and prejudicial to the senior members of the Police
personnel. It is for the State, considering the requirement of the
department, to take appropriate policy decision. When we talk about
the Police department/home department, the requirement of the
Police strength and the physical force, physic, read with mental
intellectual capacity, just cannot be overlooked. The aspects of
departmental qualifying examination for promotion has been regular
features even under the unamended rule. The Police Constable, even
after appointment, needs to go through the qualifying examination for
future promotions apart from the departmental ACR and/or physical
health so required. This mechanism was never challenged, at any
point of time, even the earlier rules, in this background, as recorded in
the findings. The State classification, by taking into consideration
the various factors, though there was some discussion about
its side-effects on some of the group/classes, that itself cannot
ssm 36 1-wp-4078-15 gp-judgment-27-12-16.sxw
be the reason to overlook the amended rules framed. The Court
and/or Tribunal required to see the rules, its plain, simple meaning
and its actual effect. The validity and/or legality, if any, and if it
causes prejudice and/or injustice to the seniority list, then only based
on the facts, the Court will pass and/or interfere in such rules and
regulations, not on presumptions and assumptions.
The amended rule is clear and valid-
43 We are clear that the rules so framed in no way can be
stated to be vague or unclear and/or there is any ambiguity. The
issue of delegation of power and/or framing of such rules, by adopting
the procedure of law and as already recorded above, is well within the
framework of law and the power of the State. There is no question even
otherwise, in the present facts and circumstances, to accept the case and
the reasons given by the learned Tribunal of declaring the rule
unconstitutional and/or bad in law. The Supreme Court recently in Horal P.
Harsora and Ors. Vs. Kusum Narottamdas Harsora & Ors. 5 while dealing with
the aspect of validity of any provision has observed in paragraph 48 as
5(2016) 10 SCC 165
ssm 37 1-wp-4078-15 gp-judgment-27-12-16.sxw
under:-
...... "However, when the provision is cast in a definite
and unambiguous language and its intention is clear, it
is not permissible either to mend or bend it even if such
recasting is in accord with good reason and conscience.
In such circumstances, it is not possible for the court to
remake the statute. Its only duty is to strike it down
and leave it to the legislature if it so desires, to amend
it. Furthermore, if the remaking of the statute by the
courts is to lead to its distortion that course is to be
scrupulously avoided."
The impugned rule is not arbitrary, discriminatory and/or contrary to
the basic statute/provisions of law. (Cellular Operators Association of
India and Ors.(Supra).
44 The Judgments, therefore, so cited by the learned counsel
appearing for the Original Applicants-Respondents, so far as, the law
is concerned, needs no further discussion in view of above. On facts,
as there is no case made out, those Judgments are of no assistance to
even uphold the order and/or the submissions so raised.
Amended rule is not unreasonable and contrary to the law-
45 It is relevant to note here that the Supreme Court in
Maharashtra State Board of Secondary and Higher Secondary Education
ssm 38 1-wp-4078-15 gp-judgment-27-12-16.sxw
and Anr. Vs. Paritosh Bhupeshkumar Sheth & Ors. 6, while considering
the various aspects of sub-ordinate legislation and its reasonableness
and whereas the virus of legislation is raised, recorded as under:-
"21. The legal position is now well-established that even
a bye-law cannot be struck down by the Court on the
ground of unreasonableness merely because the Court
thinks that it goes further than "is necessary" or that it
does not incorporate certain provisions which, in the
opinion of the Court, would have been fair and
wholesome. The Court cannot say that a bye-law is
unreasonable merely because the Judges do not approve
of it. Unless it can be said that a bye-law is manifestly
unjust, capricious, inequitable, or partial in its operation,
it cannot be invalidated by the Court on the ground of
unreasonableness."..............
The classification is just and proper-
46 The classification, therefore, in the present facts and
circumstances, so made, is well within the purview and the power of
the State. This is basically to keep in mind the particular object to be
achieved to strengthen the department, in every aspect. In any way,
the scope, power of the Court is limited, once we have recorded
that on facts, as well as, on the law by this amendment, there
is no prejudice actually caused and in view of the subsequent
6 (1984) 4 SCC 27
ssm 39 1-wp-4078-15 gp-judgment-27-12-16.sxw
development and the facts that all the Police personnel in pursuance
to the orders passed by this Court, subject to rider/conditions have
already appeared and passed the examinations. There was no
prejudice, as shown and/or placed on record to justify the reasons so
given by the learned Tribunal, based upon the submission made by the
Original Applicants, that such amended rule is prejudicial and/or
discriminatory and/or takes away any rights of the senior and/or
junior, in the hierarchy in question.
47 At this stage, we are inclined to observe that, had the
learned Tribunal noted the actual results and the decisions so reflected
in the background of permitting them to appear in the examinations,
based upon the amended rules, the reasoning and/or the
shortcomings so recorded in paragraph 9, would not have been
reflected. The importance has given by the Department, to the senior
members in every aspects. Merely because the juniors and/or the
other Police personnel have been permitted to participate in the
qualifying examination,that itself in our view, should not have been
the reason to held that the rule is bad in law,as observed by giving wrong
reasons. The seniority is the foundation for giving any promotion,
ssm 40 1-wp-4078-15 gp-judgment-27-12-16.sxw
even if the junior or senior, Police personnel permitted to be appeared
in the examinations. Giving opportunity only to 25% of the total
Police force, to appear along with the other seniors, that itself cannot
be the reason to declare it bad in law. The permissions, therefore,
based upon the amended rules to appear in the qualifying
examination, in no way, can be stated to be unreasonable,
discriminatory and/or takes away any rights of any personnel. It is
clear that once the Police personnel, appeared in the examination
based upon the amended rules and if they have qualified by passing
the examination the "select list" required to be prepared, based upon
the seniority as stated and submitted, and further promotions are
required to be given by the department. Therefore, even on the date
of passing of the order, there was no such case made out of any
prejudice, injustice and/or hardship by declaring the rule bad in law.
There was no such case and/or material observed and/or recorded,
though the examinations were conducted during 30 August 2013 to 1
September 2013. The interim relief was granted by Tribunal on 28
August 2013, whereby even the Constables and the Police Naik, who
completed more than 10 years of service, had been allowed to appear
in that examinations, however, that was subject to the further orders
ssm 41 1-wp-4078-15 gp-judgment-27-12-16.sxw
of the Tribunal. The examinations were accordingly conducted. The
provisional result of the aforesaid examinations was declared by
Additional Director General of Police, Mumbai on 7 September 2013
and the final result was declared on 8 October 2013. On the basis of
final declared result, more than 32 orders of promotions to the post of
PSI were issued by the Department, by which in all 1907 have been
given temporary/ad-hoc promotions during the period from 13
December 2014 to 9 July 2014. As noted, the common impugned
order was passed on 9 July 2014 and thereby the amended rule was
quashed and set aside. The point, which remained to be considered
that no actual prejudice and/or any breach of seniority rule, based
upon the amended rule, is made out, however, based upon the
averments made some Police personnel, amended rule is declared
bad in law, by the learned Tribunal.
48 The impugned order, as it was based upon no data and
material and on the assumption and presumption, is unsustainable
and requires to be interfered with. We are inclined to observe that as
and when the occasion arises and/or affected person and/or inspite of
this mechanism, based upon the amended rules, if able to demonstrate
ssm 42 1-wp-4078-15 gp-judgment-27-12-16.sxw
the prejudice and/or injustice caused to a group and/or an individual,
the learned Tribunal and/or the Court may consider such submissions,
on its own merits.
49 In continuation, it is also necessary to note at this stage
itself that the State had filed review against the order which was
dismissed on 21 August 2014. The Police Head Constables, Original
Applicants, had also filed review and the same resulted into the
dismissal. The restricted challenge was made by the Original
Applicants in Review Application No. 21 of 2014 in O.A. No. 767 of
2013 (A. Sawant). On 17 September 2014, Writ Petition No. 8919 of
2014 was filed by P.M. Sonawane. On 9 October 2014, interim order
was passed by this Court in the Writ Petition No. 8919 and 8843 of
2014 as stated earlier.
50 It is recorded that no other examination was conducted
other than in question as per the amended rule during the period of
30 August 2013 to 1 September 2013. The State through the
Department, however issued a corrigendum by giving regular
ssm 43 1-wp-4078-15 gp-judgment-27-12-16.sxw
promotion orders of 1907 from the passed candidates in the
Examination held in 2013 as earlier promotion orders were issued on
ad-hoc/temporary basis on 31 December 2014.
51 The amendment was allowed on 13 January 2015, as the
Original Applicants had challenged the order of regular promotions
dated 31 December 2014. On 3 February 2015, the queries were
raised by the High Court with regard to issuance of corrigendum
dated 31 December 2014, despite order passed on 9 October 2014.
The effect and operation of the corrigendum was stayed by order
dated 5 May 2015, however permitted those 1907 PSI to continue
purely on ad-hoc basis. So till this date, all these PSIs have been
working on ad-hoc basis on their respective promotional posts.
52 The submission is also made through the affidavit that out
of 2164 vacancies for the promotees, 1907 posts are required to be
adjusted and there are 257 vacancies available from 25% quota of the
promotees. It is submitted that 257 Police personnel as per the
amended rule, required to be promoted on the basis of departmental
qualifying examinations, in question.
ssm 44 1-wp-4078-15 gp-judgment-27-12-16.sxw
53 The Supreme Court in P. Mohan Reddy Vs. E.A.A. Charles &
Ors.7, while dealing with the aspect of giving the importance to
seniority, in service jurisprudence, has declared that the seniority need
to be respected. Everybody has a right to get the seniority
determined. In the present case, even the earlier unamended rules
and the practice so adopted by giving promotion has always been in
keeping in mind the seniority of the respective promotees. The
impugned rule, therefore, in no way stated to be bad in law and
contrary to the provisions of law.
The Tribunal reasons are unacceptable and wrong-
54 The rules, therefore, as declared bad in law by overlooking
these basic aspects, by referring to the shortcomings in Para 9, is
unacceptable and totally wrong/erroneous. There was no automatic
promotion, based upon the amended rule. The definition of
"promotion" is no way disturbed and/or misconstrued by the
Department. On the contrary, that has taken care of, while framing
the rule, as recorded above. There is no data and/or material placed
on record to show that this rule has affected the seniority of Havaldar
7AIR 2001 SC 1210
ssm 45 1-wp-4078-15 gp-judgment-27-12-16.sxw
and/or ASI. The earlier promotions, even if any, of the Police
Constables based upon the continuous service in the force, that in
view of the plain reading of the rule, would not affect the promotions,
as the seniority is the foundation. By this rule to the extent of 25%, by
keeping other promotion avenue open for remaining 75%, such
insertion in no way can be stated to be unjust, unreasonable and/or
prejudicial to any senior. The observation that the amended rule will
affect or lose the seniority, which is punishment under the
Maharashtra Civil Services Disciplinary Rules 1979, is unacceptable
position. The recommendations, even if any, of the Departmental
Promotion Committee, would be after the preparation of promotion
list, keeping in mind the Police rules and the amended provisions,
apart from the Statutes in question. The conduct of qualifying
examinations by the Director General and not by MPSC, in no way,
can be the foundation to hold that the amended is akin to nomination
on the basis of limited departmental examination.
55 The reference, though was made to circular dated 26
March 1970, we have to see the totality of the reasons and the
background, while deciding the constitutional authority of any such
ssm 46 1-wp-4078-15 gp-judgment-27-12-16.sxw
rules. If there is such issue, it requires to be considered, but not on
such vague and unclear pleadings. The law, in this regard, is very
clear that for deciding the rights, flowing from any service conditions,
the specific breach required to be put in and the concerned Tribunal
and/or Court required to deal with it, by giving opportunity to all the
concerned. The observations by the Tribunal, so made for want of
pleadings and particulars that itself, in our view, is unacceptable.
(Union of India Vs. R. Bhusal8).ig
56 We are declined to accept that the present amended rule,
is contrary to the provisions of any earlier circular and/or any State
policy. The Constable, who have put in more than 20 or 25 years of
service and/or the Police Naik and/or Havaldar who have put in only
10 years of service, but still permitted to appear in qualifying
examinations only to the extent of 25% is not against the law. The
importance is given to the seniority of the Police Constables, and
therefore, such rule on the contrary, takes care of every aspects of
Department and the Police personnel. This is in the background that
there is no challenge made and/or raised by the junior Police
personnel's, who have been permitted to appear in the examination.
8(2006) 6 SCC 36
ssm 47 1-wp-4078-15 gp-judgment-27-12-16.sxw
57 The Supreme Court in P. Mohan Reddy (Supra), has in fact
reiterated the aspect of issue of seniority. By this amended rule, there
is no disturbance to the seniority in Police force, which is based upon
the date of appointment of joining the Police force. It is wrong to
observe that, any seniority would be predetermined, based upon this
amended rule 3(a) as the amended rule is prospective in nature.
There is no retrospective effect given to the same, therefore, we are
declined to accept the reason that this affects the seniority of Havaldar
and/or ASI. Ultimately, the department needs to take note of their
need and requirement and accordingly they have a right to have a
policy and requisite rules of promotions. The Police personnel's right
of promotion, therefore, ultimately depends upon the service rules,
conditions, which may be amended from time to time. However, in
the present case, there is no prejudice, as such, made out and/or
shown, therefore, merely because the State has brought four cadres
eligible for promotion on the basis of initial date of entry in the Police
force, cannot be stated to be caused great prejudice to the personnel
in the cadre of Havaldar and ASI, as observed. This is, in the
background, as recorded above, there is no such actual data and/or
ssm 48 1-wp-4078-15 gp-judgment-27-12-16.sxw
material placed on record in the present matters, in hand. If the case
is made out in a given case, the Tribunal and/or the Court may
consider this facet, but not in the present case, as done by the
Tribunal.
58 The finding that amended rule 3(a) violates the principles
of prudent cadre management, service law on promotion and is totally
arbitrary, is unacceptable. It is erroneous in the present facts and
circumstances. We are not inclined to accept the finding that this
amended rule, violates the principles of equality merely because, they
have been permitted to appear for qualifying examinations. The
learned Tribunal ought to have noted the basic foundation of
importance so given to the seniority at the time of giving promotion
from the select list, if any, after holding the examinations. There is no
question of treating the police Constable, Police Naik, Police Havaldar
and ASI, as equal for the purpose of promotion to the post of PSI. In
the present case, the service conditions of Police force and Police
personnel are governed by the provisions of the Maharashtra Police
Act and various rules so made thereunder apart, from the Maharashtra
Police Manual and the circulars so issued, from time to time. The
ssm 49 1-wp-4078-15 gp-judgment-27-12-16.sxw
reasoning's, therefore, that the unamended rule is contrary to the
circulars, is unacceptable and wrong in law.
59 The concluding Para 11, made the impugned order
vulnerable, on various aspects, while declaring rule 3(a)
unconstitutional. The learned Tribunal by enlarging the scope and
power, has legislated the provisions by adding the emphasized words.
The law in this regard is very settled. (Horal P. Harsora (supra). The
Original Applicants, themselves have challenged this part basically, the
directions that the permission should be made only from the post of
ASI and not from the post of Havaldar. The learned counsel appearing
for the respective parties have placed judgments in support of the
same stating that the Tribunal/Court cannot legislate the law. The
further findings, having once declared rule 3(a) bad in law, was also
uncalled for. It is settled that, any order passed by the Court
and/or the Tribunal required to be executable/workable, in
accordance with law. The impugned orders, therefore, need to be
quashed and set aside by allowing all the Petitions.
Conclusion-
60 Therefore, taking overall view of the matter and for the
ssm 50 1-wp-4078-15 gp-judgment-27-12-16.sxw
reasons so recorded above, we are inclined to allow the State Petition
and quash and set aside impugned order dated 9 July 2014 passed in
OA Nos. 767 of 2013 and 284 of 2014 and order dated 21 August
2014 passed in Review Application Nos. 21 of 2014 and 24 of 2014.
We are also inclined to observe, that the amended rule 3(a) Police
Sub-Inspector (Recruitment) (Amendment) Rules, 2013, is legal and
valid. The action based upon the same therefore, is also within the
framework of law and the record. The State/concerned Department
is required to proceed on the basis of amended rule and take further
appropriate steps and action accordingly, at the earliest, after taking
into consideration the interim order dated 5.2.2015 in
WP/8919/2014. The timely examinations/related steps need to be
followed without delay. The order/Judgment passed, based upon the
earlier unamended rules, need to be complied with, as we have
touched only the aspects of amended rule 3(a). It is desirable for the
State to consider the situation of the Head Constables, when even
after 20 to 25 years of service, they are not getting any requisite
promotion, though they are otherwise eligible for the same. It is for
the State to frame policy in such situation.
ssm 51 1-wp-4078-15 gp-judgment-27-12-16.sxw
61 Resultantly, we pass the following order:-
ORDER
a) The State Writ Petition No. 4078 of 2015 is allowed.
b) Impugned common order dated 9 July 2014 passed by
the Tribunal in OA Nos. 767 of 2013 and 284 of 2014
is quashed and set aside and order dated 21 August
2014 passed in Review Application Nos. 21 of 2014
and 24 of 2014.
c) The amendment to Rule 3(a) of Police Sub-Inspector
(Recruitment) (Amendment) Rules, 2013, is not ultra-
virus. It is valid.
d) Writ Petition Nos. 8919 of 2014, 8843 of 2014, 10877
of 2014 are allowed to the extent of the restricted
prayers and in view of above clauses (a) and (b).
e) The State to take early steps in view of the amended
rule 3(a) of Police Sub-Inspector (Recruitment)
(Amendment) Rules, 2013 and the related circulars
and the policy decisions, in accordance with law.
f) In view of the disposal of Writ Petitions, all
ssm 52 1-wp-4078-15 gp-judgment-27-12-16.sxw
intervention Applications are also disposed of.
g) No costs.
62 Mr. Savagave, the learned counsel appearing for the
Respondents in WP No. 4078 of 2015 and Petitioner in WP No. 10877
of 2014, orally submitted to stay the effect and operation of the
Judgment/Order, which we have passed today in the open Court. Mr.
Vagyani,the learned GP has opposed such stay of this Judgment/Order.
Considering the reasons so given and as no case is made out, we reject
the oral prayer so made.
(A.S. GADKARI, J.) (ANOOP V. MOHTA, J.)
