Page No.# 1/13 vs Page No.# 2/13
2024 Latest Caselaw 5678 Gua

Gauhati High Court

Page No.# 1/13 vs Page No.# 2/13 on 8 August, 2024

Author: Suman Shyam

Bench: Chief Justice, Suman Shyam

                                                             Page No.# 1/13

GAHC010260392017




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                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/2986/2017

         F. LALHMINGLINA and 3 ORS.
         INSPECTOR ARMED BRANCH, 1ST BATTALION MIZORAM ARMED POLICE,
         ARMED VENG, AIZAWL, MIZORAM.

         2: LALRINTLUNGA

          INSPECTOR
          ARMED BRANCH
          5TH INDIA RESERVE BATTALION
          LUNGVERH
          AKAWRTUICHHUN
          AIZAWL
          MIZORAM.

         3: R. LALRINMAWIA

          INSPECTOR ARMED BRANCH
          1ST BATTALION
          MIZORAM ARMED POLICE
          ARMED VENG
          AIZAWL
          MIZORAM.

         4: F. LALROTLUNGA

          INSPECTOR ARMED BRANCH
          1ST BATTALION
          MIZORAM ARMED POLICE
          ARMED VENG
          AIZAWL
          MIZORAM

         VERSUS
                                                       Page No.# 2/13

THE STATE OF MIZORAM AND 4 ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF MIZORAM, AIZAWL,
MIZORAM.

2:THE PRINCIPAL SECRETARY

DEPTT. OF PERSONNEL and ADMINISTARTIVE REFORMS
GOVT. OF MIZORAM
AIZAWL
MIZORAM.

3:THE PRINCIPAL SECRETARY

HOME DEPTT.
GOVT OF MIZORAM
AIZAWL
MIZORAM.

4:THE DIRECTOR GENERAL OF POLICE
 MIZORAM

AIZAWL
MIZORAM.

5:THE MIZORAM POLICE SUBORDINATE OFFICERS ASSOCIATION MPSOA

AIZAWL
MIZORAM.

6:SHRI LALJOHANA
 INSPECTOR OF POLICE
 KOLASIB DEF
 MIZORAM

7:SHRI LALTHANFALA

S/O ZANEIHTHANGA(L)
INSPECTOR OF POLICE
CID(CRIME)
MIZORAM
AIZAWL.

8:SHRI RAMFANGZAUVA

INSPECTOR OF POLICE
AIZAWL DEF
MIZORAM.
                                                                           Page No.# 3/13

            9:SHRI LALCHANGLIANA

             INSPECTOR OF POLICE
             AIZAWL DEF
             MIZORAM.

            10:SHRI LALHMANGAIHA

            INSPECTOR OF POLICE
            POLICE HEADQUARTERS
            AIZAWL
            MIZORAM.

            11:SHRI H. NGUNLUAIA

             INSPECTOR OF POLICE
             SECURITY
             MIZORAM

Advocate for the Petitioner   : Mr. K.N. Choudhury, Sr. Advocate
                                Mr. N. Gautam, Advocate


Advocate for the Respondent : Mr. B. Dev, AG, Mizoram

Ms. P. Bhattacharya, Addl. AG, Mizoram Mr. S. Das, Advocate

BEFORE HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE SUMAN SHYAM

JUDGMENT & ORDER (CAV) Date : 08-08-2024

(Suman Shyam, J)

Heard Mr. K.N. Choudhury, learned Sr. counsel assisted by Mr. N. Gautam, learned

counsel appearing for the writ petitioners. Also heard Mr. B. Dev, learned Advocate

General, Mizoram assisted by Ms. P. Bhattacharyya, learned Addl. Advocate General,

Mizoram appearing for the respondent Nos. 1 to 4 and Mr. S. Das, learned counsel Page No.# 4/13

appearing for the private respondent Nos. 6 to 11.

2. The four writ petitioners, who are serving as Inspector (Armed Branch) under the

Mizoram Police, have approached this Court by filing the instant writ petition challenging

the proviso to Rule 6(1) of the Mizoram Police Service Rules, 2008 on the ground that the

same is ultra vires the constitution.

3. The conditions of services of the Inspectors serving under the Mizoram Police used

to be governed by the provisions of the Mizoram Police Service Rules, 1997 (hereinafter

referred to as the Rules of 1997) framed under the proviso to Article 309 of the

Constitution of India. Rule 6 of the Rules of 1997 laid down the procedure for filling up

the substantive vacancies in the Junior Grade of Mizoram Police Service. Rules 6 of the

Rules of 1997 is reproduced here-in-below for ready reference:-

"6. Recruitment to the service after commencement of these Rules shall be by the following methods only, namely:

1) 50% of the substantive vacancies in the Junior Grade of the Service which occur from time to time shall be filled up by Selection from amongst the officers who have served in the cadre of Inspector of Police under the Government of Mizoram not less than 5 (five) years in the Grade, provided that out of this percentage, one post of Assistant Commandant from each Mizoram Armed Police Battalion/ Indian Reserve Battalion shall be exclusively earmarked as the promotional posts of Inspectors of Mizoram Armed Police Battalion/ Indian Reserve Battalion.

Promotions shall be made by Selection from Inspectors of MAP Battalion/ Indian Reserve Battalion who have served not less than 5 (five) years in the Grade.

2) 50% of another substantive vacancies shall be filled up by direct recruitment through Competitive Examinations as provided in these Rules."

4. The Rules of 1997 was replaced by the Mizoram Police Service Rules, 2008

(hereinafter referred to as the Rules of 2008) framed under proviso to Article 309 of the

Constitution. In the amended provision of Rules 6(1) of the Rules of 2008, a proviso has Page No.# 5/13

been added. According to the writ petitioners, proviso to Rule 6(1) has been added with a

view to restrict the promotional avenue of Inspectors of the Armed Branch of the Mizoram

Police only to the 08 (eight) posts of Assistant Commandant pertaining to the Mizoram

Armed Police Battalion/ Indian Reserve Battalion. The provisions of Rules 6(1) of the

Rules of 2008 are reproduced herein below for ready reference:-

"6. Recruitment to the service after commencement of these Rules shall be by the following methods, namely:-

1) 50% of the total sanctioned strength of the posts in the Junior Grade of the Service shall be filled up by selection from amongst the officers who have served in the cadre of Inspector of Police under the Government of Mizoram for not less than 5(five) years regular service in the Grade, provided that out of this percentage, one post of Assistant Commandant from each Mizoram Armed Police Battalion/ India Reserve Battalion shall be the promotional posts of Inspectors of Mizoram Armed Police Battalion/ India Reserve Battalion. Promotion shall be made by Selection from Inspector of Mizoram Armed Police Battalion/ India Reserve Battalion who have served not less than 5(five) years in the Grade.

2) The other 50% of the total sanctioned strength of the posts in the Junior Grade of the Service shall be filled up by direct recruitment through Competitive Examination as provided in these Rules."

5. According to the petitioners, although there are more than 54 posts of Assistant

Commandants in the Junior Grade, yet, after the introduction of Rule 6(1) of the Rules of

2008, the Inspectors belonging to the Armed Branch of Mizoram Police can be promoted

only against the 08 (eight) posts of Assistant Commandants earmarked under proviso to

Rule 6(1) and no further. As such, the provisions of Rule 6(1) of the Rules of 2008,

according to the writ petitioners is per-se unfair, discriminatory and hence, liable to be

struck down by this Court.

6. Mr. K.N. Choudhury, learned Sr. counsel appearing for the writ petitioners, by

referring to the decision of the Supreme Court rendered in the case of Dwarka Prasad Page No.# 6/13

Vs. Dwarka Das Saraf, reported in (1976) 1 SCC 128 has argued that the proviso to

Rule 6(1) of the Rules of 2008 seeks to unfairly take away the right conferred upon his

clients under the principal provision in a manner which is impermissible in the eyes of law.

According to Mr. Choudhury since the Inspectors of Armed Branch and Unarmed Branch,

forming the feeder cadre for filling up 50% of promotional posts, from a composite cadre,

there is no scope for any further discrimination amongst them for the purpose of

promotion. As such, submits Mr. Choudhury, proviso to Rule 6(1) is violative of the

principles of equality embodied in Articles 14 and 16 of the Constitution of India.

7. Opposing the said submission Mr. B. Dev, learned Advocate General, Mizoram has

invited the attention of this Court to the judgment and order dated 18-06-2012 passed by

the learned Single Judge in W.P.(C) No. 32/2012 whereby, a similar argument made on

behalf of the Inspectors of Armed Branch of Mizoram Police was negated, so as to submit

that the judgment and order dated 18-06-2012 having attaining finality in the eyes of law,

the petitioners cannot now take a stand which is contrary to the aforesaid decision of this

Court.

8. By referring to two decisions of the Supreme Court rendered in the cases of State

of Madhya Pradesh Vs. Rakesh Kohli &Ors. reported in (2012) 6 SCC 312 as well

as in the case of A.P. Cooperative Oil Seeds Growers Federation Ltd. Hyderabad,

Andhra Pradesh Vs. D. Achuta Rao & Ors. reported in (2007) 13 SCC 320, Mr. Dev

has further argued that merely because a particular service rule may cause hardship to a

category of employees, the same cannot be a justifiable ground to strike down the same.

It is also the submission of the learned Advocate General, Mizoram that unless it is found Page No.# 7/13

to be a glaring case of violation of constitutional provisions, the law made by the

Parliament or State Legislature ought to be upheld by the Court.

9. Mr. S. Das, learned counsel appearing for the private respondents, by referring to

the pleadings brought on record, has submitted that if the proviso to Rule 6(1) of the

Rules of 2008 is interfered with by this Court, then in that event the promotional avenues

of his clients belonging to the Unarmed Branch would be significantly reduced, thus

prejudicially affecting their interest. Contending that no case for interference with the

proviso to Rules 6(1) has been made out by the petitioners, Mr. Das has prayed for

dismissal of the writ petition.

10. We have considered the submission made at the Bar and have also carefully gone

through the materials available on record. As has been noticed hereinabove, the primary

grievance of the petitioners in this writ petition is to the effect that proviso to Rule 6(1) of

the Rules of 2008 has the effect of discriminating the Inspectors of Armed Branch as

against their counter parts from the Unarmed Branch for the purpose of extending the

benefit of promotion, without any reasonable basis, thus treating equals unequally. As

such, according to the writ petitioners, proviso to Rule 6(1) of the Rules of 2008 militates

against the basic philosophy of equality enshrined under Articles 14 and 16 of the

Constitution of India. From a careful examination of the relevant provisions of the Rules of

1997 as well as the Rules of 2008, we find that the rules recognize as many as 05 (five)

different grades in the Mizoram Police Service, which are (a) Sr. Administrative Grade

(Functional and Non-functional); (b) Selection Grade (Functional and Non-functional); (c)

Junior Administrative Grade; (d) Sr. Grade; (e) Junior Grade. The posts of Assistant Page No.# 8/13

Commandants belongs to the Junior Grade. The post of Inspectors forms the feeder cadre

for filling up the posts in Junior Grade by way of promotion.

11. Rule 17 of the Rules of 1997, which prescribe the promotional parameters, is

quoted here-in-below for ready reference:-

"17. PROMOTION TO HIGHER GRADE:

1) Promotion of members of the service to the Senior Grade, Junior Administrative Grade, Selection Grade and Senior Administrative Grade shall be made in consultation with the Commission by selection method.

2) A member of the service in the Junior Grade with a minimum period of 5 (five) years of service in the Grade and who is confirmed and has passed departmental examination will be eligible for consideration for promotion to the Senior Grade.

3) A member of service in the Senior Grade with a minimum of 5 (five) years service in the Grade or with a minimum of 10 (ten) years of service in the Mizoram Police Service will be eligible for promotion to the Selection Grade.

4) A member of the service in the Selection Grade, with a minimum of 5 (five) years of service in the Grade will be eligible for consideration for promotion to the Senior Administrative Grade."

12. The aforesaid provisions in the Rules of 1997 have remained unchanged even

under the Rules of 2008. We find that the only notable difference between the Rules of

1997 and 2008 for the purpose of this case, is in respect of Rule 6(1). As has been

mentioned hereinabove, by adding a proviso to Rule 6(1) of the Rules of 2008, the

number of posts in the rank of Assistant Commandants that can be filled up by promoting

the Inspectors from the Armed Branch have been restricted only to 08 (eight) posts

whereas, for the Inspectors of the Unarmed Branch their promotional avenues have been

kept open in respect of all other posts in the Junior Grade. This was, however, not the

position under Rule 6(1) of the Rules of 1997 wherein 08 (eight) posts of Assistant

Commandants had been exclusively reserved for being filled up by promoting the Page No.# 9/13

Inspectors of the Armed Branch, without imposing any restriction on the right of those

Inspectors to be considered for the additional promotional posts in the Junior Grade.

13. Thus, from a comparative analysis of Rule 6(1) under both the Rules, we find that

whereas, under the provisions of Rule 6(1) of the Rules of 1997 there was a provision so

as to ensure that at least 08 (eight) posts of Assistant Commandants would always be

filled up by promoting the Inspectors from the Armed Branch, subject to their fulfilling the

other requirements under the Rules, by adding the proviso to Rule 6(1) of the Rules of

2008, the authorities have now restricted the scope of promotion of the Inspectors of

Armed Branch only to those 08 (eight) posts of Assistant Commandants. However, from a

careful reading of the provisions of the Rules, we are of the view that proviso to Rule 6(1)

of the Rules of 2008 does not appear to be in consonance with the object sought to be

achieved by the main provision of Rule 6(1) which lays down that 50% of the total

sanctioned strength of the posts in Junior Grade shall be filled up from amongst the

Inspectors of Police serving under the Govt. of Mizoram having not less than 05 (five)

years of regular service in the cadre. In other words, we are of the opinion that there is

an element of repugnancy and to that extent, ambiguity in the rules when Rule 6(1) of

the Rules of 2008 is read along with the proviso thereto. It is to be noted herein that Rule

6(1) per se does not make any distinction amongst the Inspectors of Armed Branch and

Un-armed Branch for the purpose of filling up 50% of the vacancies in Junior Grade by

way of promotion but the proviso to the said rule does so.

14. It is be borne in mind that one of the dominant purpose of framing service rules

under the proviso to Article 309 of the Constitution of India is to give effect to the Page No.# 10/13

principles of equality, as enshrined under Articles 14 and 16 of the Constitution of India.

In the present case, as noted above, the Rules of 6(1) of the Rules of 2008 clearly

provides that 50% of the posts in Junior Grade would be filled up by promoting eligible

officers from the cadre of Inspectors of Police having the requisite length of service. It is,

therefore, evident that the cadre of Inspectors, as envisaged under the Rules of 2008, is a

composite cadre. If that be so, we are of the considered opinion that it will be highly

discriminatory and unfair to restrict the promotional avenues of the Inspectors of the

Armed Branch to only the 08 (eight) posts of Assistant Commandants while leaving all the

other promotional posts in the Junior Grade open for being filled up by the Inspectors

from the Un-armed Branch.

15. Further more, from a meticulous examination of Rule 6(1) of the Rules of 2008, we

are also of the opinion that the proviso to the rules have been added so as to introduce a

distinction between two categories of Inspectors, one belonging to Armed Branch and

other to the Unarmed Branch, even though the principal provision of Rule 6(1) does not

admit of any such distinction between the two categories of Inspectors. Therefore, we

find force in the submission of Mr. K.N. Choudhury, learned Sr. counsel appearing for the

petitioners that the proviso to Rule 6(1) seeks to unconstitutionally limit the promotional

avenues of his clients, thus extending an unfair and discriminatory treatment to them.

16. It is no doubt correct that ordinarily the Court would presume constitutionality of

any legislation. Unless the piece of legislation suffers from want of competence or the

same abridges the Fundamental Rights enumerated under Part III of the Constitution,

ordinarily, there would be no occasion for the Court to strike down such rules. However, Page No.# 11/13

as noted hereinabove, we find that proviso to Rule 6(1) of the Rules of 2008 seeks to

violate the fundamental rights of the writ petitioners, who are serving as Inspectors of the

Armed Branch, by restricting their promotional avenue to only 08 (eight) posts of

Assistant Commandants thus meting out a discriminatory treatment to them. Therefore,

proviso to Rule 6(1) of the Rules of 2008, in our opinion, would be in conflict with Part III

of the Constitution of India, if the interpretation sought to be given to the proviso to Rule

6(1) by the State of Mizoram is accepted by this Court.

17. In the case of Indra Das Vs. State of Assam, reported in (2011) 3 SCC 380,

the Supreme Court has held that in a case where a particular statute violates the

constitutional provision, primary attempt should be to read down the same so as to make

it constitutional as otherwise the provision of the statute has to be declared as

unconstitutional.

18. As has been noted in the forgoing paragraphs, under Rule 6(1) of the Rules of

1997, an attempt had earlier been made to reserve as many as 08 (eight) posts in the

Junior Grade for being filled up exclusively by the Inspectors of the Armed Branch.

However, the said position has not only been reversed by inserting the proviso to Rule

6(1) of the Rules of 2008 but by using the expression "shall be the promotional posts of

Inspectors of Mizoram Armed Police Battalion/ Indian Reserve Battalion", the promotional

avenues of this category of Inspectors have also been restricted to only 08 (eight) posts.

After a comprehensive analysis of the rules, we are of the view that proviso to Rule 6(1)

of the Rules of 2008 is wholly inconsistent with the object sought to be achieved by the

Rules of 2008, more particularly, Rule 6(1) of the Rules of 2008.

Page No.# 12/13

19. It appears that the object of the Rules of 2008 is to promote and protect the

interest of the Inspectors serving under the Mizoram Police in both Armed Branch and Un-

armed Branch. Therefore, unless the proviso to Rule 6(1) of the Rules of 2008 is read

down by this Court, the said provision would have to be declared unconstitutional and

accordingly struck down by this Court.

20. It is a salutory principle of law of interpretation of statute that Court should make

every effort to preserve the validity of a legislation and should only declare a law invalid

as a last resort. By adopting a harmonious construction of the rules, we are of the opinion

that proviso to Rule 6(1) is required to be read down so as to render the same

constitutionally valid. The rules ought to be interpreted in a manner which provides equal

opportunity of promotion to the Inspectors of Armed Branch as well as Un-armed Branch

of the Mizoram Police. Such an interpretation of the rules, in our opinion, would not only

make the Rule 6(1) workable but the same will also prevent the rules from being struck

down by the Court on the ground of the same being in conflict with Part III of the

Constitution of India.

21. Mr. Dev has placed heavy reliance on the decision of the learned Single Judge

rendered by the judgment and order dated 18-06-2012 in W.P.(C) No. 32/2012 so as to

argue in support of validity of the Rules. However, on a careful reading of the said

judgment, we find that it was not a case where the validity of Rule 6(1) was under

challenge. Therefore, the decision rendered in the aforesaid case, in our opinion, has to

be understood to be rendered to the facts of that case.

For the reasons stated hereinabove, this writ petition stands allowed. The petition is Page No.# 13/13

disposed of in the lights and observations made hereinabove by reading down the proviso

to Rule 6(1) of the Rules of 2008.

Consequently, it is provided that the petitioners, being Inspectors belonging to the

Armed Branch of the Mizoram Police, shall be entitled to be considered for promotion

against the earmarked vacancies in the Junior Grade, in addition to the 08 (eight) posts

envisaged by proviso to Rule 6(1) of 2008 Rules and at par with the Inspectors of the Un-

armed Branch, subject to their fulfilling the eligibility norms and any other conditions laid

down by the Rules of 2008.

Writ petition stands disposed of accordingly.

Parties to bear their own cost.

                          JUDGE                                    CHIEF JUSTICE

GS


Comparing Assistant