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CASE NO.: Appeal (civil)  7384-7388 of 2003

PETITIONER: Govt. of A.P. &  Anr

RESPONDENT: G. Jaya Prasad Rao  & Ors

DATE OF JUDGMENT: 21/03/2007

BENCH: A.K.MATHUR & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

               These appeals are directed against the order dated  4th  October, 2002 passed by the Division Bench of the High Court  of  Judicature, Andhra Pradesh at  Hyderabad in  batch of  Writ Petitions  filed by the State  against the common order passed by  Division  Bench of the  Andhra Pradesh Administrative Tribunal (hereinafter to  be referred to   as ’the Tribunal’) in batch of original applications   on   12th July, 2002 in OA No. 9461/2001 & others.         The respondents herein were the petitioners before the  Tribunal. They   were all  Inspectors of Police  working at various  places  and in various wings in  the police Department in the  State of  Andhra Pradesh.  Most of them were working as Inspectors of Police  in the city of Hyderabad.   They  approached  the Tribunal with a  prayer to  declare   insertion of Note-2 of Rule 3 and proviso to Rule 6   of the Andhra Pradesh Police (Civil) Service Rules, 1998 (hereinafter  to be referred to as  ’Rules of 1998’)  issued  by G.O. Ms. No. 267,  Home (Police-E) Department, dated 26th November, 2001 by  amendment of Rule as arbitrary and discriminatory  being violative of  Articles 14,16, 21 and  311  of the Constitution of  India.         By this amendment a scheme was introduced  for  accelerated  promotion for the outstanding work in the field of  anti extremist  operation . The  Note 2 appended to Rule 3   reads as under:          "Note 2: The Government may consider the cases of  deserving Inspectors of Police and Deputy  Superintendents of Police (Civil),  for accelerated  promotions to the next higher ranks in recognition of their  outstanding work in the field of anti-extremist operation  irrespective of their seniority as an incentive by following  the relevant procedure as specified by the Government  from time to time in this regard."

And the Proviso to Rule 6 reads as under:

"Provided that in the case of the accelerated promotions,  the minimum service as specified above shall not apply."

By virtue of these amendments  in Service Rules of 1998,  some Officers  got accelerated  promotions on account of their  performance in extremist areas.   The tribunal after elaborate   consideration of the matter acceded to the prayer of the  petitioners (respondents herein) and declared  Note 2 to  Rule 3  of the Rules and Proviso to Rule 6  being violative  of Articles  14 & 16 of the Constitution and struck it down.

Aggrieved against this Order, a batch of writ petitions

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were filed before the High Court.         The stand taken  by the State  before the Tribunal  as well  as before the High Court was that the State of Andhra Pradesh  in order to tackle  the menace of terrorism conceived  this  scheme as an incentive for the officers so that more and more  officer could come forward to meet this menace to the society   and therefore,  as a measure of  incentive this scheme was  conceived by the State.   It was pointed out that the scheme is  neither arbitrary nor discriminatory and it is a scheme for a  special class/category of persons who do the daring job in   containing the menace of terrorism by naxal groups.  Therefore,   it is not discriminatory.  It was also pointed out that a scheme  had been prepared  whereby the cases of such persons were  screened at two to three levels and the guideline was  issued  by  Government Order Ms No. 280 on  17.9.2002. As per this  guideline, the Unit Officers/ Superintendents of  Police/Commissioners of Police shall assess the outstanding  work done in the  Anti-Extremist Operations by the  Police  Officers working under them.   They shall recommend the   cases to the Director General & Inspector General of Police for   consideration through their immediate superior Officer.     The  Unit Officers/Superintendents of Police/ Commissioners of  Police  while  forwarding the recommendations  of deserving  cases shall broadly  be  guided by the  under mentioned  conditions, viz.,  that the Police Officer  shall have; i) been an  approved Probationer; ii) performed outstanding work in the filed  of Anti,  Extrimist Operations,  (here the quality of work turned out  shall be taken as criteria); iii) uniformly satisfactory records; and iv) clean defaulter sheet for the  last (6) years without any  major Punishments  through out the service. These are  the guiding  factors.  The recommended cases  shall  be reviewed by the  Superior Officers and shall be forwarded to  the Director General & Inspector General  of Police with his  remarks.   The Director General & Inspector General of Police  shall  send all such cases  received from  the various Unit  Officers/Superintendents of Police/Commissioners of Police to  the Additional Director General of Police/Inspector General of  Intelligence Department for scrutiny and his remarks.  The  Additional  General of Police/Inspector General of Police  of  Intelligence department will in turn send such cases to the   Special Intelligence Branch (SIB)  of the  Intelligence  Department which exclusively monitors the Anti-Extremists  Operations of the State  for  scrutiny  and recommendations.   Thereafter, the  Inspector General/Deputy Inspector  of Police  of the Special Intelligence Branch will scrutinize  all such cases  thoroughly as to the  quality of each such case and forward  back  the  special  remarks.   The same shall be forwarded to  the  Director General & Inspector General of Police by the  Additional  Director General of Police/Inspector General of  Police, Intelligence Department  with  his remarks.    All such  cases shall  be placed  before a Departmental Committee   which shall have the; 1.      Additional Director General of Police/Inspector  General of Police (L&O),                ... Chairman

2.      Additional Director General of Police/Inspector  General of Police(Admn.)              \005 Member

3.      Additional Director General of Police/Inspector  General of Police (Intelligence)       \005 Member

4.      Additional Director General of Police/Inspector  General of Police (Grey House)    \005 Member

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5.      Additional Director General of Police/Inspector  General of Police (Special Intelligence Branch)                                                                    \005 Member

After scrutiny  by the High Level  Committee the matter   will be referred to State Government.  It was also  clearly   mentioned that the aforesaid committee while forwarding the  cases will keep  in mind the guidelines mentioned above.   The  Additional Director General of Police/Inspector General of  Police may order accelerated promotion on the basis of  such  recommendation from the rank of Police Constable to Sub- Inspector of Police to the next higher  rank.   The cases of the  Police Officer  and above  the rank of Inspector of Police shall  be  forwarded to the Government by the  Director General &  Inspector General of Police   for consideration of  Accelerated  Promotions and that  shall be  considered by a High Level  Committee constituted by the Government.  That Committee  shall be  headed by  (i) Chief Secretary to Government  as  Chairman, (ii) Principal Secretary to Government, Home  Department as Member, (iii) Secretary to Government, Home  Department as member, (iv) Secretary to Government  (Services), General Administration Department as member and  (v) Director General & Inspector General of Police, Andhra  Pradesh, Hyderabad as member.  The Deputy Secretary  or  Joint Secretary or Additional Secretary who is dealing with the  police subject  in Home Department shall function  as   Secretary to this Committee.   This Committee shall also be  guided by the following eligibility conditions namely;  the  concerned Police Personnel shall have; i) performed  outstanding work in the field of Anti- Extremist.

ii)  uniformly satisfactory record; and iii) a clean defaulter sheet for  the last  six  years  without  any Major Punishments through out the service.

This committee shall meet once in three months  to review such  cases. These  guidelines  were issued for the  performance of  accelerated promotions.  It is also pointed out that despite these  incentive,  few officers were prepared to accept the  highly risky and  challenging job.  The Police Personnel right from the  Constable to  IPS Officer were targeted by the naxals more than 480 laid down their  lives including an I.P.S. Officer.  It was also pointed out that after  introduction of accelerated promotion scheme  naxal activities have  considerably decreased to the extent of 1/3rd from 1997-2001.          

                       Though the Tribunal as well as the High Court found that  the amendment in Note 2 to Rule 3 as well as proviso to Rule 6 are  held to be ultra vires as it has been observed by the High Court that it  creates a class within  class.  The High Court held that  the  amendment did not satisfy the test of reasonable classification and it  further observed that fortuitous circumstance cannot be made a basis  for creating a separate class within the class. Therefore, the High  Court came to the conclusion that the classification made upon such  basis cannot be treated as a reasonable classification.  It was also  observed that  fortuitous circumstances cannot be made the basis for  creating class out of large number of persons similarly situated.   It  was also pointed out that just because some persons were lucky  enough to get a posting in the  naxal affected area , they got  accelerated promotion but others who were not fortunate to get a  posting in the naxal affected area, they were denied promotion.  It  was submitted that even the officers  posted in same unit  may not  get  posting in the Police-station where there is naxal affected area  and others are lucky enough to get the posting, then they stand to

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gain and others who are not  lucky enough to get  posting in that area   they will be denied the opportunity.  Therefore, it is discriminatory as  there is a class within class, similarly situated persons are treated  dissimilarly i.e. equals are treated unequally. Therefore,  this  classification, according to the  High Court is not reasonable   classification and it is not founded on intelligible differentia which  distinguishes one group from the other.

Learned counsel for the appellant-State has pointed out  that the reasoning given by the High Court is not correct.  It is pointed  out that the classification is based on intelligible differentia  that   those persons who have faced the bullets and did the outstanding job  to check the naxal menace then they form class in itself and in order  to confer the benefit to such persons the scheme was conceived. The  object was to encourage more and more persons to  come forward  for this daring job. Therefore, it was submitted that the amendments  have objects sought to be achieved and two class of persons can be  distinguished with each other. The rational basis to distinguish one  class from the other class is sacrifice of people  to accept  the  challenge of naxal menace. Those who dare need to be  rewarded. In  order to substantiate his submissions learned counsel invited our  attention to the decisions of this Court in Ravi Paul & Ors. v. Union of  India & Ors. [ (1995) 3 SCC 300] & Havaldar Bhagat Singh & Ors. v.  State of Haryana & Anr. [ (1996) 8 SCC 649].

In the case of   Havaldar Bhagat Singh and Ors  Vs.  State of  Haryana and Anr reported in   {(1996) 8 SCC 649},    the question  was that the State Government issued a circular dated 7.10.1991 in  respect of ex-servicemen who  had entered military service before  emergency,  prohibiting the  withdrawal of the benefits from them if  they  had joined the State Government service before the date of the  amendment of the  Rules and  directing to withdraw the benefits from  such of them as had joined the service of the State Government  subsequent to the date of amendment of the rules. This withdrawal of  the benefits were challenged  that  it was  arbitrary  and  discriminatory.  Considering the  validity of this  circular by the State  of Haryana, their Lordships observed  as under:

       "It  was open to the State to withdraw the offer, but not  qua those who had already accepted the offer and joined  the State Government service.  Hence was rendered the  decision in K.C. Arora case.  The State Government did  not withdraw the offer wholly but  restricted it to those who  had enrolled or were commissioned in the armed forces  during the emergency.  The State Government was  entitled   to do so.  In our view, there is a clear and  intelligible difference between those  who had already  chosen the armed forces as a career when the  emergency was declared and those who, in response to  the nation’s call, joined  the armed forces after the  emergency was declared.  It was in the country’s  interest   at that critical juncture to make  service in the armed  forces attractive and compensate those who would   otherwise have chosen other vocations.  The grant of  benefits  to the latter class while denying them to the  former  class is in no way arbitrary or discriminatory."          

       In another case  of   Ravi Paul and Others  Vs.   Union of  India and Ors  reported in {(1995) 3 SCC 300}  their Lordships   observed as under:

               "The  ECOs       who were absorbed/appointed to  the BSF during the  period 1967-71 had joined the

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Army during the emergency in the wake of the  Chinese aggression.  By joining the Army when the  country needed their services  they had made a  sacrifice.   Moreover,  they were absorbed in the  BSF at a time when there was need for competent  officers in the BSF and in order to attract such   officers in the BSF it was considered necessary  to   give the  benefit of the service of the Army for the   purpose of seniority in the BSF to the officers who  were appointed/absorbed in the BSF during 1967- 71.  The SSCOs had joined the  Army as a career   after the emergency resulting from the Chinese  aggression was over.  When they were  absorbed/appointed to the BSF during the period  1974-78 there was a change in the  policy of the  Government of India and the benefit of the service  in the Army was not to be given to the SSCOs who  were absorbed/appointed in the BSF after release  from the Army.  This condition was expressly  mentioned in their letters of appointment and they  opted to join the  BSF knowing  fully well that their  Army  service would not be counted for seniority in  the BSF.   The ECOs who were absorbed/appointed  in the BSF during the  period 1967-71 and the  SSCOs who were absorbed/appointed in the BSF  during the  period 1974-78 are officers belonging to  two different categories and they cannot be  regarded as persons similarly situate."

                Therefore, in view of the fact that Officers who have joined  the service to the  State  have been  rewarded for their past   service rendered during Chinese aggression and such class of  persons  were found to be treated as class apart.                  Learned counsel for the respondents submitted that the  respondents have nothing against the scheme and accelerated  promotion  but it is going to operate in a very discriminatory and  arbitrary fashion.  It was pointed out that in one unit if there are  ten  Police-stations and only three are naxal affected area and one of the  Inspectors gets a chance to serve in that naxal affected area, he  stands to benefit. Therefore, learned counsel for the respondents  submitted that  there is no criteria for  posting  person in any naxal  affected area it gives unbridle power in the hands of  unit head in  choosing persons for such posting.    He pointed out that so far as the  condition for serving for two years in naxal affected are who had   benefit of accelerated promotion is understandable but the question is  how to pick such persons for posting in that area  where he can show  his chivalry or bravery.                  We have heard  learned  counsel for the parties and  perused the records.  Before we advert to decide the issue on merits,  it may not be out of place to mention the scheme of the Rules of  1998.  The Rules of 1998 laid down the method of recruitment to the  posts mentioned in the Andhra Pradesh Police service.  Rule 2  contemplates the constitution of service.  The service  is divided into  three categories. Category (1) consists of Additional Superintendent  of Police (Non-Cadre) including Officer-on-Special Duty and  Additional Deputy Commissioner of Police. Category (2) consists of  Deputy Superintendent of Police including Assistant Commissioner of  Police other than Assistant Commissioner of Police (Headquarters  and City Armed Reserve). Category (3) consists of  Inspector of  Police and Inspector of Police (Women).  Rule 3 deals with method of  recruitment.  Rule 3 with appended Note 2 is reproduced under : " 3.    Method of appointment:         Subject to the other provisions in these rules, the method of

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appointment for the several categories mentioned in column (1) shall  be by the method specified in the corresponding column (2) of the  Table below:                         TABLE Category   (1) Method of appointment  (2) 1, Additional Superintendent of  Police including Officer on  Special Duty and Additional  Deputy Commissioner of Police By promotion of Deputy  Superintendent of Police  (Category -2) 2. Deputy Superintendent of  Police  including Assistant  Commissioner of Police other  than Assistant Commissioner of  Police (Headquarters and City  Armed Reserve) (i)   By direct recruitment; and (ii)  By promotion of Inspector of  Police (Category-3) 3(a)  Inspector of Police By appointment by transfer of  Sub- Inspector of Police in the  Andhra Pradesh Police (Civil  Police) Subordinate Service. 3(b)  Inspector of Police (Women) By appointment by transfer of  Sub-Inspector of Police  (Women)in the Andhra Pradesh  (Civil Police) Subordinate  Service.

Note 1: In every cycle of ten vacancies, the appointment to the  post of Deputy Superintendent of Police shall be as follows namely:- 1st vacancy                     By Direct Recruitment 2nd vacancy             By Promotion 3rd vacancy                     By promotion 4th vacancy                     By Direct Recruitment 5th vacancy                     By Promotion 6th vacancy                     By Promotion 7th vacancy                     By Direct Recruitment 8th vacancy                     By Promotion 9th vacancy                     By Promotion 10th vacancy            By Promotion.

       Provided that appointment  by transfer to the posts of  Inspectors of Police including Hyderabad City Police shall be made  by the Deputy Inspector General of Police concerned, or as the case  may be by the Commissioner of Police from a list of candidates  approved by the Director General of Police in the order indicated  therein.  

       Note 2: The Government may consider the cases of  deserving Inspectors of Police and Deputy  Superintendents of Police (Civil),  for accelerated  promotions to the next higher ranks in recognition of  their outstanding work in the field of anti-extremist  operation irrespective of their seniority as an  incentive by following the relevant procedure as  specified by the Government from time to time in  this regard."

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So far as the method of recruitment is concerned,  a Deputy  Superintendent of Police is entitled to be promoted to the post of  Additional Superintendent of Police and the Deputy Superintendent of  Police is to be recruited by two methods i.e. by direct recruitment or  by promotion from the Inspector of Police.  The Inspector  of Police   can be appointed by transfer of Sub-Inspector of Police in the Andhra  Pradesh Police (Civil Police) Subordinate Service and Inspector of  Police (Woman) can be posted  by transfer of Sub-Inspector of Police  (Woman) in the Andhra Pradesh Police (Civil Police) Subordinate  Service.  Note 2 contemplates  additional method of recruitment by  way of accelerated promotion out of the Inspectors of Police and  Deputy Superintendents of Police to the next higher rank i.e. Deputy  Superintendent of Police and Additional Superintendent of Police in  recognition of their outstanding work in the field of anti-extremist  operation irrespective of their seniority as an incentive  measure as  per the procedure laid down by the Government of Andhra Pradesh  from time to time. Rule 4 makes reservation of appointment. Rule 5  lays down age and qualification with which we are not  concerned.  Rule 6 deals with minimum service which will be relevant for our  consideration.  It reads as under :

                "6.    Minimum Service :                         No person shall be eligible for  appointment by transfer or promotion unless he is an  approved probationer and has put in service in the  category from which promotion or transfer is made as  specified below :                 (a)     not less than five years for a Deputy  Superintendent of Police to be promoted as  Additional Superintendent of Police (Non-cadre),                 (b)     not less than six years for Sub- Inspector of Police and for Inspector of Police to be  promoted as Inspector of Police and Deputy  Superintendent of Police respectively.                 Provided that in the case of the accelerated  promotions, the minimum service as specified above  shall not apply."

As per Rule 6, a Deputy Superintendent of Police will not be entitled  for promotion as Additional Superintendent of Police unless he has  put in five years of service and not less than six years of service for  Sub-Inspector of Police and Inspector of Police to be promoted as  Inspector of Police and Deputy Superintendent of Police respectively,  meaning thereby that a Sub-Inspector of Police in order to be  promoted as Inspector of Police will have to put in six years of service  and likewise an Inspector of Police will have to put in six years of  service to be promoted as Deputy Superintendent of Police.  The  proviso to Rule 6 reads as under :

               " Provided that in the case of the  accelerated promotions, the minimum service as  specified above shall not apply. "

Therefore, for accelerated promotion, the requirement of minimum  service has been dispensed with.   Rule 7 deals with probation and  for direct recruitment to the post of Deputy Superintendent of Police  (Category-2) the period of probation shall be two years and six  months on duty within a continuous period of three years.  Rule 9  deals with tests which are not relevant for our purpose in the present  controversy. Rule 10 deals with  the unit of appointment. It has  relevant bearing on the issue involved in the present case. Therefore,  it is reproduced as under :

       " 10.   Unit of appointment                 For purposes of recruitment, appointment, discharge for

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want of vacancy, re-appointment, seniority, promotion, transfer and  posting and appointment as full member to the posts specified in  column (2) of the table below, the unit of appointment shall be as  specified in column (3) thereof-                                 TABLE Category                             Post                       Unit of appointment         (1)                             (2)                             (3) 3.      (a) Inspector of Police    Zone-I       Comprising Srikakulam                                                         Vizianaragam and                                                          Visakhapatnam districts

       (b) Inspector of Police   Zone-II       Comprising East Godavari,                 (Woman)                         West Godavari and                                                         Krishna Districts                                           Zone-III       Comprising Guntur, Prakasam and Nellore Districts.                                                  Zone-IV Comprising Chittor,                                                         Cuddapah, Anantapur and                                                         Kurnool Districts.                                                          Zone-V  Comprising Adilabad,                                                         Karimnagar, Warangal                                                         And Khammam Districts.

                                       Zone-VI Comprising Nizamabad,                                                         Mahaboobnagar, Medak, Nalgonda and Ranga Reddy         Districts.

Area under the jurisdiction Of the Commissioner of  Police, Hyderabad."                                                       

Rule 11 deals with transfer and postings which reads as under : "       11.      Transfer and postings:                    (a)         A member of the service shall be liable to serve  in any part of the State of Andhra Pradesh or when so ordered by the  State Government in any part of India, outside in the said State:                     Provided that nothing contained in this sub-rule shall  effect the operation of the provisions of Chapter-XII in Part-VII of the  Fundamental Rules in regard to transfer of officers to Foreign  Service:

                    Provided further that no such member shall be posted or  transferred to any post unless he possesses such special  qualifications and has passed such special tests as may be  prescribed for such post in these rules.

                     (b)       A direct recruit Deputy Superintendent of Police,  Category-2 shall be transferred and posted at Assistant  Commandant, Andhra Pradesh Special Police Battalions and shall  remain in the Battalions compulsorily for a period of three years. The  Service rendered in the Andhra Pradesh Special Police Battalion  shall be counted for the purpose of reckoning qualifying service for  select list.

                   )      The transfers and postings in the case of Additional  Superintendent of Police ( Non-Cadre) and Deputy Superintendent of  Police, shall be made by the Government.

                  (d)        In the case of Inspectors of Police, the transfers

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and postings shall be made within the unit specified in rule-10, by the  Commissioner of Police and the Deputy Inspector General of Police  concerned except in the case of Units IV and V. The transfer and  postings in the case of Inspectors of Police in Units-IV and V shall be  made by the Deputy Inspector General of Police, Kurnool and  Warangal, respectively."

Reading of Rules 10 and 11 says that there are six zones  in the  State comprising of various districts and so far as posting of Deputy  Superintendent of Police and Additional Superintendent of Police is  concerned,  it has to be made by the State Government though there  is no bar to posting any member of the service in any part of the State  of Andhra Pradesh but for the convenient administrative control  the  State has been divided into various zones and each zone is headed  by Deputy Inspector General of Police or Inspector General of Police,  as the case may be.  So far as the transfer and posting of Inspector  of Police is concerned, it has to be made within the unit as specified  in Rule 10, by the Commissioner of Police and Deputy Inspector  General of Police concerned except in the case of Units IV and V.  The transfer and postings in the case of Inspectors of Police  in Units  IV and V shall be made by the Deputy Inspector General of Police,  Kurnool and Warangal, respectively. Rule 12 lays down uniforms  grant etc. We are not concerned with other part of the Rules.                 Now, in this backdrop of the administrative set up we will  have to examine the amendment and the guidelines which have been  issued by the Government of Andhra Pradesh by G.O.Ms. No.267  dated 26.11.2001. So far as the posting of the Deputy Superintendent  of Police  and Additional Superintendent of Police is concerned that is  within the power of the State Government and so far as the Inspector  of Police is concerned, it is within the power of Inspector General of  Police i.e.  the Police Commissioner or by the Deputy Inspector  General of Police.  We are primarily concerned  in the present case  with regard to the accelerated promotion of the Inspectors of Police to  the post of Deputy Superintendent of Police and Additional  Superintendent of Police. The State of Andhra Pradesh is divided into  various zones as pointed out above and some of them are very  sensitive areas.  It has been pointed out that some zones i.e. Zones  V & VI are by and large affected by the extremist operations.  Therefore, it was submitted that some who could get posting in naxal   area, he may stand to benefit and on account of that fortuitous  circumstance he may get accelerated promotion and march over the  persons similarly situated.

               Now, coming to the question whether this amendment of  the rules and insertion of Note 2 in Rule 3 as well as proviso to Rule   6, could be declared ultra vires of Articles 14 & 16 of the Constitution  of India.   It may be said at the outset that these rules were amended  looking to the dire need of the State  in order to give some incentive  to the Police Officers for voluntarily coming forward to meet the  menace of extremist operations. The purpose is laudable one and  nobody can take exception to this.  In order to provide this incentive  service Rules had to be amended. Those persons who are prepared  to volunteer and take more risk in life why such kind of persons  should not stand to gain as against those persons who do not want to  take risk in their life.  As a matter of fact those who take risk  in their  life and prefer to face hazardous duties, such kind of persons forms a  class and  such class of persons stand differentiated from other class  of  persons who are not prepared to take risk in their life and want to  continue with  the normal police duties and seek their promotion in  due course of time. It is true that the Inspectors of Police form one  category but in the same category it can have two classes, one who  is desirous of taking risk in their life and do service to the society by  taking hazardous assignment as against other persons who want to  continue  with their usual police duties.  Such Classification cannot be  looked down as arbitrary or violative of Articles 14 & 16 of the

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Constitution of India.  The classification is apparent which can be  differentiated from the class of persons who are prepared to sacrifice  their life as against the persons who want to do the routine policing  duties. This cannot be said to be fortuitous classification. The  classification is based on rational principle. Thus the object which is  sought to be achieved in the present case is to meet  the challenge of  the naxals and to invite youth and courageous persons to accept this  challenge.  It is true that some may get an opportunity to serve and  some may not but that is exigencies of service. Wooden equality is  not possible.  Similarly placed person cannot be treated dissimilarly.  But that is not the case here.             We have already highlighted  above the scheme/ guidelines  issued under the Rules by the State Government.  The guidelines are  properly insulated against arbitrariness or discrimination. Principally  four guidelines have been laid down, namely that a person who  becomes eligible for accelerated promotion should be an approved  probationer and he has performed outstanding work in the field of  anti-extremist operations ( here the quality of work turned out shall be  taken as criteria); has uniformly satisfactory record and lastly, clean  defaulter sheet for the last six years without any major punishments  throughout the service.  These factors are sufficient guidelines where  any individual action can be tested. At one point of time, Mr. Verma,  learned senior counsel appearing for the respondents submitted that   the proviso to Rule 6 which dispenses with the minimum period of  service  would operate as arbitrary and it will give rise to picking  and  choosing. But one of the guidelines  clearly lays down  that a person  should have at least last six years very good Annual confidential roll   meaning thereby that he should have  at least put in six years of  service  though under proviso to Rule  6, the minimum period of  service for promotion has been dispensed with but nonetheless  in  the guidelines it has been clearly laid down that a person should have  very good ACR for the last six years.  That means though the rule  provides that there is no necessity of minimum period of service yet   in the guidelines criteria has been laid down that a person should  have  at least six years clean service record.  Not only this, in order to  promote a person on accelerated promotion the recommendations by  the Unit Officers are filtered at various stages. After receipt of such  recommendations it will go to the Committee of high ranking police  officers and in that his performance in extremist area will be  examined by the high power committee headed by the Director  General  and Inspector General of Police  and proper  investigation  will be done by the Intelligence Branch and they will examine the  detailed performance of the incumbent as to how he has performed.   Proper investigation is to be done by the Intelligence Branch who are  monitoring  anti-extremist operation in the State. After proper scrutiny  the matter will be placed before a still higher committee headed by  the Chief Secretary with Home Secretary and Director General of  Police. Therefore, in order to  consider  the case of accelerated  promotion the matter has to be examined at various channels, first at  the Unit head, thereafter a Committee constituted by the Police  Department and then a Committee headed by the Chief Secretary  to  the State Government at the State level and after his prolonged  examination  a person will be eligible for accelerated promotion.  Therefore, these guidelines have been made in order to check that   there should not be any arbitrary promotion and there should not be  any picking  and choosing  among the persons belonging to the same  category. At one point of time, impression was sought to be created  that there are no guidelines for giving such accelerated promotion but  after going through the detailed G.O.Ms. No.280 dated 17.9.2002 as  discussed above, we are satisfied that there are sufficient guidelines  which check the arbitrary picking and choosing  of the persons for  accelerated promotion.  After going through these guidelines we are  of opinion that there is least possibility of picking and choosing of the  persons under accelerated promotion scheme.               However, learned counsel for the respondents submitted

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that notwithstanding the fact that the amendment  may not be ultra  vires of Articles 14 & 16 of the Constitution, it is capable of being  operated in an arbitrary fashion because the whole of the State of  Andhra Pradesh is not naxal affected area and Zones V & VI are the  only naxal affected areas  and he tried to  illustrate  his point by an  example that suppose an incumbent is working in Warangal district  which comes under Zone V, which is said to be naxal affected area  and in that zone some of the Police-stations may be ear-marked as  extremist prone  areas, incumbent may not get an opportunity of  being posted in that Police-Station for showing his chivalry though he  may be willing to work there. Therefore, there is no criteria laid down  that how one can  secure a posting in that particular area in order to  show his chivalry and secure accelerated promotion.   There is some  truth in his submission but  that is more imaginative than real. It  depends upon the In-charge   of the Unit, be it Commissioner of  Police or the Deputy Inspector General of Police  who has to see the  worth of the incumbent who can deliver the goods.  It will not be  proper to interfere with his discretion  as to who is suitable and who is  not suitable to be posted in such naxal affected areas. Much depends  upon his wisdom and suitability of the incumbent.  It is true that  sometime it may operate as fortuitous circumstance that some gets  an opportunity and some may not get the same.  But by that  fortuitous circumstance  the rule cannot be held to be bad.  It is  possible that in implementation of the rule, some arbitrariness or  some favouritism may be shown, that can be challenged as an  individual action. Therefore, one has to make distinction between the  validity of the Rules and the misuse of the Rule. In case of misuse of  the rule, that individual action can be challenged and it can be  challenged on its merits but by that  the whole scheme which has  been introduced for the laudable purpose, cannot be said to be bad.

                 In this connection, learned counsel for the appellant- State  has invited our attention to a decision of this Court in  Ram Sharan v.  The Dy. Inspector General of Police, Ajmer & Ors. [ AIR 1964  SC  1559]. This was a case which arose from the Rajasthan Police. In  that three tier system  of the Police administration  was there in the  State  headed by the Inspector General of Police, Deputy Inspector  General of Police and Superintendent of Police. It was pointed out  that under Section 2 of the Police Act, one Police force is in the State  and the Police administration under the Inspector General of Police  could have ranges headed by the Deputy Inspector General of Police  and the districts are headed by the Superintendents of Police. It was  pointed out that it was necessary for efficient functioning of the Police  force.   It was pointed out that looking to the local conditions and for  efficient functioning of the police force recruitment at the Constable  level is done district-wise basis  and promotion as Head Constable is  also done on district-wise basis  by the Superintendent of Police who  is expected to know their work.  Same idea  was apparent at the  second tier by which Head Constables in a Range are treated as one   unit for promotion to the rank of Sub-Inspector which is vested with  the Inspector General of Police. By providing promotion  within the  range,  the area is a little widened as compared to a district.  It is only  when  one reaches the third tier and come to promotion of Sub- Inspectors of Police as Inspectors of the Police that local knowledge  is not insisted upon so much as  the work of Inspectors of Police and  those above them is more of a supervisory nature It was pointed out  that because the Constable, Head Constable and Sub-Inspector deal  with the public directly and in such a situation local knowledge  certainly plays an important part in the matter of efficiency of the  Police force and in that background their Lordships considered that if  the police administration works in three tier system then such  administration in three tier system cannot be struck down being  discriminatory. However, the Court was cognizant of the fact that  abuse of the power  of transfer by Inspector General of Police for one  Sub-Inspector from one range to another, a case of glaring denial of

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equality before the law or glaring denial of equal opportunity for  employment  in the service of the State may arise. But the Court  cannot strike down a system on the supposition that an Inspector  General of Police may abuse his power and create glaring instances  of denial of equality before the law or of equal opportunity of  employment in the service of the State. In case of abuse in individual  case same can be struck  down and not the system.  Therefore,  simply because  a particular provision is capable of being abused is  no ground to strike down  the whole system.  

                In the case of S.I.Paras Kumar & Ors. V. S.I. Ram Charan  & Ors. [ (2004) 6 SCC 88]  the question arose with regard to out of  turn promotion  on the performance of some of the Constables, Head  Constables and Assistant Sub-Inspectors of Police  in the anti- terrorist areas of Punjab though there was no such provision  under  the Rules. Their Lordships observed that though the rule does not  permit such promotions out of turn for such activities, or for sports  activities but in order to recognize  the services rendered by such  persons  Government shall  frame necessary rules for such kind of   services rendered by the personnel in the anti-terrorist operation.  Therefore, this Court recognized that though the rule does not   contemplate such promotion,   the courage shown by the persons in  anti-terrorist operations  should be recognized by framing necessary  rules. There is no gainsaying that  those who have performed in  extreme situation  they deserve better treatment but this has to be  done within the four corners of the Rules. In order to achieve that  objective  in view, this accelerated promotion was conceived and  necessary amendments were made in the Rules and  scheme/  guidelines were issued by the State of Andhra Pradesh. Therefore,   reading the amended rules with scheme/ guidelines together it leaves  no manner of doubt that such amendment cannot be said to be  discriminatory or arbitrary.                 Learned counsel for the appellant- State has invited our  attention to the pleadings to show that none of the Inspectors of  Police who  filed  the petitions before the Andhra Pradesh  Administrative Tribunal has nowhere alleged that at any point of time   one of them came forward to go to the naxal affected area and their  request  had been turned down.  We examined the matter  and we  found that  there is no such allegation  made in the original  application nor learned counsel for the respondents could give us any  satisfactory reply whether any of these respondents came forward for  going to the naxal affected area and  his request  has met with  refusal.  But the learned counsel for the respondents only submitted  that it is not for the incumbent to make a request  but it should come  from the State. Be that as it may, learned counsel for the State has a  point  that  when the respondents have not come forward for going to  the naxal affected areas, it does not lie in their mouth to challenge the  scheme.  However, we  have examined the validity of the amendment  in the  light of the submissions made by parties and our answer is in  negative.

               Before parting with the matter, in order to further safeguard  that in case of postings, though Rule 10 covers,  but especially when  the postings are done in specially naxal affected areas out of the  persons posted in that zone,  the concerned Unit in charge, be it   Inspector General of Police or  the Deputy Inspector General of  Police or Police Commissioner, may informally seek  voluntary option  from the Officers working in that zone whether they are willing to be  posted in the naxal affected  police-stations so that even  the remote  possibility of picking  and choosing  can be avoided. However,  it is  still discretion of the concerned Unit in charge, he may after going  through the records may turn down the option of the incumbent if he  finds that he may not  come up  to the expectation in that area. But  the grievance of the person that  he was willing to go for an-extremist  operation  still  he was not chosen by the Unit in charge, could be

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redressed.  This could be done by issuing a circular  seeking  the  option for such preferential posting in the unit but   the last choice  remains with the Unit head and he may, for reasons to be recorded,  come to the conclusion that the incumbent may not be suitable for the  job and  may turn down the request  but at least the incumbent will  have the choice to serve in anti-extremist operation.           An allegation was also made by some of the persons who have  been given ad hoc promotion under  the scheme of accelerated  promotion for not being made parties. However, they were permitted  as intervenors.  Learned counsel for the intervenors  was also heard  in the matter. He invited our attention to a decision  of this Court in  Union of India & Ors. v.  E.S.Soundara Rajan etc. [ AIR 1980 SC 959]   on the question of discrimination and  in that case the argument of  discrimination among the Railway Officials was not upheld.  It was  also pointed out by learned counsel for the intervenors that  the  present appeals as well as the original applications filed before the  Andhra Pradesh Administrative Tribunal and High Court should be  dismissed on the question of non-joinder of necessary  parties.  Mr.  Verma, learned senior counsel for the respondents submitted that  since  the validity of the rule has been challenged, therefore the  petition before the A.P. Administrative Tribunal  or the writ petition  before the High Court cannot be dismissed on the ground of non- joinder of necessary parties. It was also submitted by him that when  the  question of validity of the rules are concerned, it is not necessary  to implead  all the persons likely to be affected while challenging   the  validity of the rules and in support thereof  Mr.Verma invited our  attention to the following decisions of this Court.  

      i)        1971(1) SCC 749                   Makhanlal Waza & Ors. v.                    State of Jammu & Kashmir & Ors

      ii)        (1974) 4 SCC 335                  The General Manager, South Central Railway,                   Secunderabad & Anr. v. A.V.R.Siddhantti & Ors.              iii)        (1983) 3 SCC 601                    A. Janardhana v.Union of India & Ors.

            It is true that when the validity of the rules is challenged  it is  not necessary to implead all persons  who are likely to be affected as  party.  It is not possible to identify who are likely to be affected and  secondly, the question of validity of the rule is a matter which is  decided on merit and ultimately, if the rule is held to be valid or  invalid, the consequence automatically flows.  Therefore, the original  application filed before the Andhra Pradesh Administrative Tribunal or  for that matter before the High Court does not suffer from the vice of  non-joinder of necessary party.                    Since we have already held the rule to be valid, therefore,  there is no question of setting aside the promotions which have  already been made.  Hence, as a result of our above discussion, we  find that the judgment and order of the High Court cannot be  sustained and consequently the orders passed by the Andhra  Pradesh Administrative Tribunal and  the High Court  of Andhra  Pradesh are set aside. The appeals are allowed with no order as to  costs.