Jharkhand High Court

Santosh Kumar Rana vs The State Of Jharkhand on 20 April, 2021

                                            1

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No.2334 of 2009
Santosh Kumar Rana                                        .....   Petitioner
                                Versus
1. The State of Jharkhand
2. Director General of Police, Jharkhand, Ranchi
3. Addl. Director General of Police, C.I.D, Ranchi
4. Superintendent of Police, C.I.D.
  Jharkhand, Ranchi                                    ..... Respondents
                                -------
CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                -------
For the Petitioner              : Mr. Indrajit Sinha, Advocate
For the Respondents             : Mr. Devesh Krishna, Advocate
                                 -------
                                JUDGEMENT

CAV on: 05/02/2021 Pronounced on:20/04/2021

Heard Mr. Indrajit Sinha, learned counsel for the petitioner and

Mr. Devesh Krishna, learned counsel for the Respondents State through V.C.

2. The instant writ application has been preferred by the petitioner

for following reliefs:

                         I) For        issuance        of         appropriate
                         Writ/Order/Direction     in        the   nature   of
                         Certiorari for quashing the Order dated

13.05.2004 passed by the Director General of Police-cum-Inspector General of Police vide Memo No.215 D dated 13.05.2004 whereby and whereunder the respondent concerned has quashed the Order of dismissal and passed the Order of removal from service of the Petitioner.

II) For issuance of a Writ of or in the nature of mandamus commanding upon the respondents for reinstatement of the service of Petitioner with all consequential benefits;

3. The case of the petitioner is that he was appointed as

Constable on 06.04.1998 by Superintendent of Police, CID, Patna. His

appointment was made in a special circumstance. During the year 1996-

97, the city of Patna was infested with criminal activities and same was

a source of immense misery, plight and fear for the common residents

of Patna City and the Police Force was very desperate to check and

curve down their activities which were in vogue. The Petitioner at that

time was a mere student but he helped the Department by supplying

information relating to their activities which was applauded not only by

the superior authorities of the Police Department, but also by the Police

at large.

Subsequently, the then Director General of Police and

Inspector General of Police, CID, Patna being impressed upon the

petitioner's such help encouraged the petitioner to join the Police Force

and recommended his case. On such recommendation, the Respondents

after observing formalities of test including medical examination,

appointed the petitioner vide order dated 06.04.1998.

All of a sudden, the petitioner received a show-cause

notice dated 14.11.2000 as to why his appointment be not terminated to

which he duly replied. Again after bifurcation; since his services were

allocated in the successor State of Jharkhand, the petitioner received

another show-cause notice dated 20.12.2002 and also show-cause

notice dated 29.03.2003. The petitioner duly replied the same giving

reasons as to under what circumstances, he was appointed. However, a

departmental proceeding being D.P. No. 10/2003 was initiated and

finally, the petitioner was terminated vide order dated 26.04.2003.

Thereafter, the petitioner filed a writ application before

this Court being W.P.(S) No. 4188 of 2003 and the same was disposed of

with a direction to the petitioner to file a detailed representation and the

Respondents were directed to dispose of the same.

Pursuant thereto; vide order dated 13.05.2004 issued by the

Deputy Inspector General of Police, Ranchi on the directions of Director

General of Police; the order of termination was converted in his removed from

service.

4. Mr. Indrajit Sinha, learned counsel for the petitioner assailed the

order of removal and submits that the order impugned has not been

passed in true spirit in the light of the order dated 26.08.2003 passed in

W.P.(S) No. 4188 of 2003. The authority has reiterated the same thing as

it has been indicated in the earlier order dated 26.08.2003 passed in

W.P.(S) No. 4188 of 2003 and simply converted the order of termination

into order of removal.

Learned counsel further submits that similarly situated

persons whose cases were based on identical footing, approached this

Court and their cases have been allowed by this Court. He further draws

attention of this Court towards Annexure - 6 series which are the orders

passed by this Court in the case of similarly situates persons. He lastly

submits that the specific averment made in paragraph 15 of the writ petition

that the cases of similarly situated have been allowed by this Court has not

been denied at paragraph 30 of the counter-affidavit; as such, the

respondents may be directed to reconsider the case of the petitioner, if he

is otherwise eligible, after age relaxation as he is aged about 43 years.

5. In order to buttress his argument, Mr. Sinha relied upon

the judgment passed by the Hon'ble Supreme Court in the case of Nihal

Singh and Others versus State of Punjab and Others reported in (2013)

14 SCC 65 wherein the Hon'ble Apex Court has held that the

appointment of the petitioner cannot be termed as illegal. At best it

could have been termed as irregular. Further in the said case the

appointments were done in accordance with the provisions laid down

under Section 17 of the Police Act.

Paragraph Nos. 19, 20, 21, 26, 28, 29, 31 and 32 of the case of

Nihal Singh supra are quoted herein below.

"19. No doubt that the powers under Section 17 are meant for meeting the exigencies contemplated under it, such as, riot or disturbance which are normally expected to be of a short duration. Therefore, the State might not have initially thought of creating either a cadre or permanent posts.

20. But we do not see any justification for the State to take a defence that after permitting the utilization of the services of a large number of people like the appellants for decades to say that there are no sanctioned posts to absorb the appellants. Sanctioned posts do not fall from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need.

21. The question is whether this Court can compel the State of Punjab to create posts and absorb the appellants into the services of the State on a permanent basis consistent with the Constitution Bench decision of this Court in Umadevi (3) case. To answer this question, the ratio decidendi of Umadevi (3) case is required to be examined. In that case, this Court was considering the legality of the action of the State in resorting to irregular appointments without reference to the duty to comply with the proper appointment procedure contemplated by the Constitution:

"4. ... The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out

those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned. The courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme. Such orders are passed apparently in exercise of the wide powers under Article 226 of the Constitution. Whether the wide powers under Article 226 of the Constitution are intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognised by our Constitution, has to be seriously pondered over."

(emphasis supplied)

It can be seen from the above that the entire issue pivoted around the fact that the State initially made appointments without following any rational procedure envisaged under the scheme of the Constitution in the matters of public appointments. This Court while recognising the authority of the State to make temporary appointments engaging workers on daily wages declared that the regularisation of the employment of such persons which was made without following the procedure conforming to the requirement of the scheme of the Constitution in the matter of public appointments cannot become an alternate mode of recruitment to public appointment.

26. It is also asserted by the appellants that pursuant to the requisition by the Police Department options were called upon from ex-

servicemen who were willing to be enrolled as Special Police Officer (SPOs) under Section 17 of the Police Act, 1861.

28. The abovementioned process clearly indicates it is not a case where persons like the appellants were arbitrarily chosen to the exclusion of other eligible candidates. It required all able-bodied persons to be considered by the SSP who was charged with the responsibility of selecting suitable candidates.

29. Such a process of selection is sanctioned by law under Section 17 of the Act.

Viewed in the context of the situation prevailing at that point of time in the State of Punjab, such a process cannot be said to be irrational. The need was to obtain the services of persons who had some experience and training in handling an extraordinary situation of dealing with armed miscreants.

31. Therefore, we are of the opinion that the process of selection adopted in identifying the appellants herein cannot be said to be unreasonable or arbitrary in the sense that it was devised to eliminate other eligible candidates. It may be worthwhile to note that in Umadevi case, this Court was dealing with appointments made without following any rational procedure in the lower rungs of various services of the Union and the States.

32. Coming to the other aspect of the matter pointed out by the High Court that in the absence of sanctioned posts the State cannot be compelled to absorb the persons like the appellants into the services of the State, we can only say that posts are to be created by the State depending upon the need to employ people having regard to various functions the State undertakes to discharge.

"Every sovereign government has within its own jurisdiction right and power to create whatever public offices it may regard as necessary to its proper functioning and its own internal administration."

6. Mr. Devesh Krishna, learned counsel appearing for the

respondent State submits that the petitioner was provided appointment by

C.I.D., Bihar Patna by the Order No.709/98 dt. 6.04.1998 on temporary basis

and was terminated on 9.04.2002 by order No. 470/2002 vide Memo No.

787. Thus, petitioner was in service for hardly four years.

Learned counsel further referred the Police Manual -- Volume I,

which reads as follows:

"Rule 661(b) - Constables shall be appointed by district Superintendent of Police for which a list will be prepared by the selection Board duly constituted for the purpose.

Rule 663(d) - The recruitment shall be made twice a year in such a way that recruits are ready to go to Constables Training School before the start of the session. There shall be no necessity for training in district Headquarters. The Superintendent shall publish notice of selection of candidates in newspapers giving the exact number of vacancies and also advertise through employment exchange. He shall endeavour that selection is completed and results are laid before the candidates the same day or on the following day so that they are not made to stay unnecessarily. No waiting list of candidates beyond the number advertised except for few extra men for possible unfitness in medical test is to be kept."

Relying upon the aforesaid provisions of the Police Manual, Mr.

Krishna contends that it is apparent from aforementioned Rules, that only

Superintendent of Police is competent authority for appointment of

Constables and that too after following due selection procedure and

recommendation of duly constituted Selection Board. However, in the present

case; neither there was any advertisement, nor any selection board

constituted. Merely by the order of then DGP, appointment letter was issued

in the name of petitioner by the then S.P.

7. Learned counsel further referred Rule 663(c) of the manual and

contended that the selection board is not precluded from selecting men over

27 years of age or for special reasons, men beneath the standard of

measurement, but it shall do so only on good grounds. Further, the Deputy

Inspector-General can give relaxation in height and chest by 2.5 cms. only

and not beyond. However, in the instant case, Petitioner belongs to Backward

Caste and minimum height required for qualification for B.C. is 165 C.M. but

height of petitioner is 161.5 and to provide him employment, he was given

relaxation of 3.5 C.M. which is contrary to this Rule.

8. Learned counsel further argued that the contention of petitioner

that he was awarded by the erstwhile DGP for his exemplary courage by

relaxing the rules of selection procedure is not acceptable, inasmuch as, the

petitioner was appointed as temporary constable on the recommendation of

erstwhile D.G.P. - A.K. Saxena without any advertisement and without

following rules & regulations of the appointment and such appointments were

found to be illegal by State of Bihar.

Moreover, Annexure-1 of the writ petition which has been relied

upon by the petitioner is merely with respect to relaxing the minimum

requirements for measurement of height & chest for candidates belonging to

Chhotanagpur & Santhal- Pargana Area and it has nothing to do with not

following the selection procedure and not advertising the post as per the

Police Manual.

9. Learned counsel further controverted the statement made at Para

15 of writ petition; the ground of parity at Para 8 of the supplementary

counter affidavit filed on 15.12.2020 stating therein that all 25 police

officers/personnel were dismissed. In the said list none of the constable had

been reinstated whose appointment was found illegal appointment.

Learned counsel further submits that the judgments relied upon

by the petitioner vide Annexure-6 Series are not applicable under the facts &

circumstances of the instant case. He further submits that in the case of

petitioner there has been full-fledged fresh departmental enquiry in the State

of Jharkhand, after providing ample opportunity to the petitioner and

providing him all the documentary evidences adduced in support of charges

levelled against him and further on each stage, he was directed to submit

explanation and was also supplied copy of conclusion report by the

Disciplinary Authority before passing order of punishment on 17.04.2003.

10. Learned counsel lastly submits that reliance of petitioner on S. 17

of the Police Act has got no relevancy under the facts & circumstances of the

instant case, since this section empowers nearest Magistrate to appoint so

many of the residents of the neighborhood as police- officers may require to

act as special police- officers for such time and within such limits as he shall

deem necessary for a limited purpose of avoiding any riot or disturbance of

the peace.

Accordingly, no illegality has been committed by any of the

respondents by terminating the services of the petitioner whose appointment

was void ab initio, in complete violation of the Rules of Police Manual and

the appellate authority following the Judgment of this Court as well as Apex

Court converted the order of dismissal of service to that of simpliciter

termination, so that future right of petitioner for appointment could not be

affected.

11. Having heard learned counsel for the parties and after going

through the averments made in the respective affidavits and also various

provisions of the Police Manual; it appears that the petitioner was

appointment by C.I.D., Bihar, Patna by the Order dated 06.04.1998 on

temporary basis and was terminated vide order dated 26.04.2003. It further

transpires form the appointment letter (Annexure-2) that no procedure as laid

down in the Police Manual has been followed. In other words; it was an

illegal and irregular appointment.

Further, Rule 663(c) of the manual further stipulates that the

selection board is not precluded from selecting men over 27 years of age or

for special reasons, men beneath the standard of measurement, but it shall do

so only on good grounds. Before enlistment the Deputy Inspector-General can

give relaxation in height and chest by 2.5 cms only. However, in the instant

case, this petitioner belongs to Backward Caste and minimum height required

for qualification for B.C. candidate is 165 C.M. but height of petitioner is

161.5 and to provide him employment, he was given relaxation of 3.5 C.M.

which is contrary to this Rule.

In the instant case, only Superintendent of Police is competent

authority for appointment of Constables and that too after following due

selection procedure and recommendation of duly constituted Selection Board.

However, in the present case; neither there was any advertisement, nor any

selection board constituted. Merely by the order of then DGP, appointment

letter was issued in the name of petitioner by S.P.

12. Learned counsel for the Petitioner heavily relied upon the

Judgments of Nihal Singh (supra); however, the said judgment is not

applicable in the instant case, inasmuch as, in the said case the appointments

were made in exercise of statutory power u/s 17 of the Police Act and further

all the petitioners of the said case were ex-servicemen. Further in the said case

in the appointment letter itself it was stipulated that the candidates will be

entitled for all privilege under the Act (reference may be made to para-15 &

16 of the said judgment).

Further, in the said case, pursuant to the requisition by the Police

Department, options were called upon from ex-servicemen who were willing

to be enrolled as Special Police Officer (SPOs) under Section 17 of the Police

Act, 1861.

However, in the instant case, the petitioner was appointed as

temporary constable on the recommendation of erstwhile D.G.P. - A.K.

Saxena without any advertisement and without following rules & regulations

for the appointment and such appointments were found to be illegal by State

of Bihar.

13. Even otherwise, it is not a case where the petitioner had served

for decades in the police department; as in the case of Nihal Singh (supra);

rather he worked only for about four years and the 1st show-cause notice was

issued only in the year 2000 i.e. within less than two years of appointment.

However, due to bifurcation of State, petitioner was again show-

caused and there has been full-fledged fresh departmental enquiry in the State

of Jharkhand, after providing ample opportunity to the petitioner and

providing him all the documentary evidences adduced in support of charges

levelled against him and further on each stage, he was directed to submit

explanation and was also supplied copy of conclusion report and principles of

natural justice was duly followed before passing order of punishment on

17.04.2003.

14. At the cost of repetition; in the present case; neither there was

any advertisement, nor any selection board constituted. Merely by the order of

the then DGP, appointment letter was issued in the name of petitioner by S.P.

In the case of Nagendra Chandra & Ors. V. State of Jharkhand

& Ors. reported in (2008) 1 SCC 798 wherein it has been held at Para 5 & 9

as under:

"5. Thus, the question that falls for our consideration is as to whether the appointments of the appellants being in infraction of Rule 663(d) of the Bihar Police Manual were irregular or illegal.

9. In view of the foregoing discussion, we have no option but to hold that if an appointment is made in infraction of the recruitment rules, the same would be violative of Articles 14 and 16 of the Constitution and being nullity would be liable to be cancelled. In the present case, as the vacancies were not advertised in the newspapers, the appointments made were not only in infraction of Rule 663(d) of the Bihar Police Manual but also violative of Articles 14 and 16 of the Constitution, which rendered the appointments of the appellants as illegal; as such the competent authority was quite justified in terminating their services and the High Court, by the impugned order, was quite justified in upholding the same."