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PETITIONER: PRABHAKAR & ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT22/10/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. GOSWAMI, P.K.

CITATION:  1976 AIR 1093            1976 SCR  (3) 315  1976 SCC  (2) 890

ACT:      Bombay Police  Officers (Combined  Cadre) Conditions of Service Order,  1954-Clause 7(1)  (a)-Rule  of  fixation  of seniority by taking the date of the commencement of training is constitutionally  valid, not  discriminatory and does not offend Art. 14 and 16 of the Constitution.

HEADNOTE:      Appointments to  the posts of sub-inspectors (either to the Distt.  Police Force  or the  Police  Force  of  Greater Bombay) in  the State  of Bombay,  prior to 1st of May 1939, were after  a training  of 18  months at the Police Training School at  Nasik. Between the period 1st May 1939 and 1st of June 1949,  a new  training school  at  Naigaum  a  part  of Greater Bombay  was started  wherein the  period of training varied from  3 to  8 months and after the short training the cadets were  appointed straight  away as  Sub-Inspectors  of Police in  Greater Bombay.  Separate  seniority  lists  were maintained for  the Distt.  force and  the city  force.  The Nasik school  continued to exist side by side with 18 months training. On  the general principle of fixation of seniority when the combined cadre service order came into force w.e.f. 1-8-54 the  two seniority lists were maintained on the basis of their  passing out  the training  and in  order of  merit obtained at  the passing  examination. After  the formation, when transfers were to be made, a difficulty arose in fixing the inter-se  seniority of the officers appointed after full 18 months  training and  one appointed  after training for a shorter period and to avoid anomaly and hardship a provision was made  in clause  7 whereby  for the purpose of seniority (i) in  the case of officers whose training commenced on any date from  1-5-39 to  1-6-1949, the  date of commencement of the training was taken and      (ii) in  other cases, the dote of successful completion of such  a course  and inter-se  the place  occupied in  the results of  the examination held at the end of such a course was taken.      When  the   constitutionality  of  Clause  7(1)(a)  was challenged, the High Court of Bombay declared Clause 7(1)(a) of the  order void, being violative of Articles 14 and 16 of the Constitution on three grounds:           (1)  That the Government had reduced the period of

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              training at  Naigaum School  as  against  the                resolution dated  April 6, 1940 providing for                the establishment  of a  Training  School  at                Naigaum.           (2)  That according  to the  said  clause  of  the                Order the commencement of the training period                of the  Mofussil officer  was to be taken for                determination of  his  seniority  whereas  in                case of  the officer belonging to the Greater                Bombay  Police   Force,  the   date  of   his                appointment  was  to  be  taken  and  in  the                opinion of  the High  Court, this was clearly                discriminatory.           (3)  That in  case of  a  cadet  whose  period  of                training had  been extended on account of his                failure  at   the  examination  the  impugned                clause gave  an advantage  even to such a bad                officer.      Dismissing the  appeal appellant No. 3 and allowing the appeal of appellants Nos. 1 and 2. the Court ^      HELD: (i)  The High Court has committed an error in the interpretation of the provision contained in clause 7(1) (a) of the Bombay Police Officers (Combined Cadre) Conditions of Service Order.  On  transfer  of  any  police  officer  from Greater Bombay  to  the  District  and  vice-versa,  if  his training had com- 316 menced on any date between the period of 1st May 1939 to 1st June 1949  then his seniority was to be determined vis-a-vis the police  officer of the force to which he was transferred with  reference   to  the  dates  on  which  their  training commenced. It is not that in one case it will be the date of commencement of  the training  and in  the other  it will be date of appointment. [319-C-D].      (ii) Ordinarily  and generally  method of  fixation  of seniority as provided in sub-clause (b) of clause 7(1)(a) of the order  was the correct and proper method to be followed. But because  of the special situation of appointment of some police officers  during the  period of 10 years on a shorter period of  training, a  departure was  made as  provided  in clause (a). There was nothing wrong, illegal or unreasonable in making  a provision  in sub-clause  (a) that  in  such  a situation the commencement of the period of training will be taken as the date for the purposes of fixation of seniority. There was  a reasonable  nexus between  the object  and  the rule. [319-H, 320 A-B]      (iii) It  was for  the rule  making authority to decide and to  choose  in  such  a  situation-either  the  date  of commencement of  the training  or the  date of  appointment. Taking the  former date  in  the  special  circumstances  is reasonable and  justified. Such a provision is not violative of Art. 14 and 16 of the Constitution. [320 B-C]      (iv) To  hold clause  7(1) as ultra vires on the ground that it gives any advantage even to such a bad officer whose period of  training had  been extended  on  account  of  his failure in  the examination  may be  theoretically  correct. Clause 7(1)(a)  was not meant to give any undue advantage to a non-deserving  police  officer  who  failed  to  pass  the training examination at the proper time. [320 C-D]      (v) Clause  7(1)(a) of  the order  is  constitutionally valid and not discriminatory. [320-E]

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JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 721 of 1974.      Appeal by  Special Leave  from the  Judgment and  Order dated the  25th August 1972 of the Bombay High Court in Spl. Civil Appln. No. 1831 of 1968.      V. M. Tarkunde, Sharad Manohar, V. N. Ganpule and P. C. Kapoor for the Appellant.      M. N. Shroff for Respondents 1-3.      K. K.  Singhvi, R.  K. Garg,  E. C.  Agarwal and  V. J. Francis for Respondent No. 4.      The Judgment of the Court was delivered by      UNTWALIA,  J.-The   only  point  which  falls  for  our determination in  this appeal  by special  leave is  whether clause 7(1)(a)  of  the  Bombay  Police  Officers  (Combined Cadre) Conditions  of Service Order, 1954-hereinafter called the Order,  made by  the Government of Bombay in exercise of the powers  conferred by  clause (b)  of Section  5  of  the Bombay Police  Act, 1951  is constitutionally  invalid being violative of Articles 14 and 16 of the Constitution of India as has  been held  by the  Bombay High  Court  in  the  Writ Petition filed by respondent no.4.      In the  Province or the State of Bombay, there were two separate police forces-the Mofussil police force governed by the Bombay  District Police Act, 1890 and the City Police of Bombay governed by the 317 City of Bombay Police Act, 1902. Some steps for inter-mixing and inter-transfer  of officers  of one  force to  the other were taken  by making  some provisions  in Bombay Act XVI of 1949 called  the Police  Forces (Control and Direction) Act, 1949. The  Bombay Police  Act of  1951 repealed  the earlier Acts. Under  the Order which came into force on and from the 1st August,  1954, provision was made in clause 4 empowering the State  Government whenever  it thought  fit to order the transfer of  any police  officer belonging  to the  combined cadre from  Greater Bombay  to any  District and vice-versa. The combined cadre was sought to be formed under clause 3 of the Order.  Two separate lists of the officers in accordance with their  respective seniority  were, however,  maintained even under  clause 3  of the Order. Previously there was one Police Training  School at  Nasik where  cadets for training were sent.  The period  of their  training was 18 months. On passing out  the training  the cadets  were appointed to the posts of  Sub-Inspectors of  Police. Some  were appointed to the District  Police Force  and some were sent to the Police Force of  Greater Bombay.  In the  year 1939  due to certain exigencies of  administration such  as introduction  of  the scheme of  Prohibition and  the impending  second World  War more Sub-Inspectors  were needed to be appointed for Greater Bombay. A  new Training  School was opened at Naigaum a part of Greater  Bombay. This  new Training  School  remained  in existence for  about a  decade from  the 1st of May, 1939 to 1st of  June, 1949.  The period of training was reduced from 18 months  to a  much shorter  period varying  from 3  to  8 months. Thus  cadets of  particular batches after completion of training for a shorter period were straightaway appointed as Sub-Inspectors  of Police in Greater Bombay. This went on for a  period of  about 10  years as  already stated. On the other hand,  almost invariably, the training period at Nasik School remained  of 18  months. On  the general principle of fixation of  seniority, the  two seniority  lists which were maintained separately  even under the Order, were maintained on the  basis of their passing out the training and in order of merit  obtained at  the passing  examination.  But  since

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after the  formation of  the combined  cadre under the Order transfers were  to be  made under clause 4, a difficulty was felt in  the matter  of fixation  of seniority vis-a-vis the officer who  had been  appointed after  completion  of  full training period  and the  one who  had been appointed on the training of  a shorter  period. To  avoid this  anomaly  and difficulty, a  provision was  made in  clause 7 of the Order thus:           "7.  (1)  When  an  officer  who  was  in  service      immediately before  the formation of the Combined Cadre      is transferred  under clause  4,  his  seniority  among      Police Officers  of equivalent  ranks in Greater Bombay      or in  the Districts,  as the  case  may  be  shall  be      determined in  the case of an officer who was appointed      to a  post either in Greater Bombay or in the Districts      after  a  course  of  training  at  a  Police  Training      School,-           (a) if  the training commenced on any date between      the period  from Ist  May 1939  to 1st  June 1949 (both      inclusive) with reference to the date on which training      commenced; 318           (b) in  other cases,  with reference to successful      completion of  such a  course and  inter se  the  place      occupied in  the results of the examination held at the      end of such a course."      Respondent No.  4 was a Police Officer appointed in the year 1948  after a  short training period at Naigaum School. He challenged  by a writ application the vires of the entire Order on  certain grounds.  He prayed  for  a  direction  to respondents 1  to 3  for not  giving affect to the Order and for re-fixation  of seniority.  There was some dispute as to the seniority  of a  police officer  appointed in  a regular manner and  the one  appointed to  the police force from the Excise  Department.   The  High   Court  allowed   the  writ application in part, declared clause 7(1)(a) of the Order as constitutionally invalid and also directed the adjustment of places of  seniority as between the police officers who came by regular  appointments and  those who came from the Excise Department. Some  officers of  the Department were impleaded as respondents  in the  writ application in their respective capacity. The  two such  officers made  parties in  the writ application were  respondents 4 and 5 of the Mofussil Police Force. Respondents  6 and 7 therein were police officers who had come  from the  Excise Department. Appellants 1 and 2 in the present  appeal are  two other  police officers  of  the Mofussil Police  Force and  appellant  No.  3  is  a  Police officer  who   came  from  the  Excise  Department.  He  was respondent 6  in the writ application. The order of the High Court made  against appellant  No. 3  could not  be assailed before us.  Appellant No.  3, is not, therefore, entitled to any relief in this appeal.      So far  the case of appellants 1 and 2 is concerned, it must be  noted that  the High Court has declared clause 7(1) (a) of  the Order void being violative of Articles 14 and 16 of the Constitution on three grounds:           (1)  That the Government had reduced the period of                training at  Naigaum School  as  against  the                resolution dated  April 6, 1940 providing for                the establishment  of a  Training  School  at                Naigaum.           (2)  That according  to the  said  clause  of  the                Order the commencement of the training period                of the  Mofussil officer  was to be taken for                determination of  his  seniority  whereas  in

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              case of  the officer belonging to the Greater                Bombay  Police   Force,  the   date  of   his                appointment  was  to  be  taken  and  in  the                opinion of  the High  Court, this was clearly                discriminatory.           (3)  That in  case of  a  cadet  whose  period  of                training had  been extended on account of his                failure  at   the  examination  the  impugned                clause gave  an advantage  even to such a bad                officer.      In our  opinion, none  of the grounds forming the basis of the judgment of the High Court is sustainable. The attack on Rule  7(1)(a) was  not  specifically  made  in  the  writ application as originally presented 319 by respondent  No. 4.  He laid the foundation for the attack in   his   re-joinder   application.   A   counter-affidavit thereafter was  filed by  the State  stating the facts which led to the framing of clause 7(1)(a). Respondent No. 4 filed a further  rejoinder. It  was not disputed, rather, admitted on all  hands that at Naigaum School the training period was much shorter than the period of 18 months which continued at Nasik. If  during the period of 10 years cadets on the basis of a shorter period of training were appointed to the Bombay Police Force  without any  specific order  of the Government (although it  must not  be the  case) it might have affected the validity of their appointment but not the fact that they had been so appointed on a shorter period of training.      The  High   Court  has   committed  an   error  in  the interpretation of the provision contained in clause 7(1) (a) of the Order. On transfer of any police officer from Greater Bombay to  the District  and vice versa, if his training had commenced on any date between the period of 1st May, 1939 to Ist June, 1949, then his seniority was to be determined vis- a-vis the  police officer  of the  force  to  which  he  was transferred with  reference to  the  dates  on  which  their training commenced.  It is  not that  in one case it will be the date of commencement of the training and in the other it will be  the date  of appointment,  as seems  to  have  been wrongly thought  by the  High Court. To explain, we may take an example.  Suppose a  Sub-Inspector A  whose training  had menced-say on  Ist April,  1947 resulting in his appointment on Ist on Ist November, 1947 was transferred to the Mofussil where, let  us suppose  again, a  police officer B was there whose  training   had  commenced-say   on  lst  April,  1947 resulting in  his appointment  on 1st  October, 1948 then in such a  case B  will be  senior to  A because  his  training commenced earlier even though he was appointed later. But if there be  an officer,  suppose  C,  in  the  Mofussil  whose training commenced-say  on 1st  April, 1947 resulting in his appointment on  1st December, 1948, then he cannot be senior to A by taking 1st June, 1947 as the date of commencement of his training  and comparing with 1st November, 1947 the date of appointment  of A.  This interpretation of the rule which we have put was accepted to be the correct interpretation on all hands  including the  Government.  Learned  counsel  for respondent No.  4,  however,  submitted  that  the  impugned seniority list  had not  been prepared  by the Government on such an  interpretation of  clause  7(1)(a),  but  the  list prepared is  on the basis of the interpretation given by the High Court.  On behalf of the State we were informed that it was not  so. We have no doubt in our mind that even if there be any mistake or discrepancy in the seniority list which is found to be not in conformity with the interpretation put by us to  clause 7(1)(a), then that mistake or discrepancy will

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have to  be removed sooner than later and the seniority list will be set at right accordingly.      Ordinarily and  generally the  method  of  fixation  of seniority as provided in sub-clause (b) of clause 7(1)(a) of the Order  was the correct and proper method to be followed. But because  of the special situation of appointment of some police officers during the period of 320 10 years  on a  shorter period  of training  a departure was made as provided in sub-clause (a). A cadet who received his full training for 18 months at Nasik for no fault of his was appointed later  than a  cadet who started training later at Naigaum but was appointed earlier than the former. There was nothing wrong, illegal or unreasonable in making a provision in sub-clause  (a) that in such a situation the commencement of the  period of training will be taken as the date for the purposes of  fixation of  seniority. There  was a reasonable and rational  nexus between  the object and the rule. It was for the  rule making  authority to  decide and  to choose in such a  situation-either the  date of  commencement  of  the training or  the date of appointment. Taking the former date in the  special circumstances  seems to  be  reasonable  and justified. Such  a provision  cannot be said to be violative of Articles 14 and 16 of the Constitution.      The third  ground for  declaring clause  7(1)(a)  ultra vires given  by the High Court theoretically was correct but materials were  placed before us from the various affidavits to show  that hardly there was such a case which had got the advantage  of   the  clause   even  after   failure  in  the examination. There  was one  such case  of hardship  of  not passing out  the examination  in time  due to reasons beyond the control  of the  cadet. Clause  7(1)(a), in our opinion, was not meant to give any undue advantage to a non-deserving police officer  who failed  to pass the training examination at the  proper time. No specific instance was brought to our notice where such advantage had been accorded.      For the  reasons stated above, the appeal of appellants 1 and 2 is allowed and that of appellant No. 3 is dismissed. It  is   held  that   clause  7(1)(a),   of  the   order  is constitutionally   valid   and   not   discriminatory.   The directions given  to respondents  1 and  3 to  set right the seniority list by the High Court on the basis of the alleged invalidity of  clause 7(1)(a)  of the order is set aside. In the circumstances, we shall make no order as to costs. S.R.                                 Appeal allowed in part. 321