TMI Blog2002 (5) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... or Sub-Inspectors who had a totally unblemish service record - the appellate Bench in a very detailed judgment recorded an affirmation to the judgment of the learned Single Judge though for different set of reason to wit, that the criteria for selection seniority subject to the rejection of the unfit as laid down in the Rules was not followed and secondly that Selection Committee failed to prepare the list for each year, keeping in view the number of vacancies in that year after considering the Sub-Inspectors of police who were eligible and fell within the zone of consideration for selection that year. The records depict that the select list of 1996-97 stood challenged both at Allahabad and at Lucknow under various writ petitions and as against the orders of the learned Single Judge there were pending a large number of appeals. The learned Single Judge who was in seisin of the matters at Lucknow, however, thought it fit to refer the matters to a larger Bench and scripted the following questions. 1. Whether the Departmental Selection Committee constituted for the purpose of selection of Sub-Inspectors, Civil Police for promotion to the rank of Inspectors, Civil Police, having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) The existing quota system by which a certain number of Sub Inspectors are at present selected from each Range should be abolished. Sub Inspectors Civil Police who have put in not less than 10 years service as such (and are below 50 years of age) on the 1st day of January of the year in which the selection is made will now be eligible for promotion to the post of Inspector. The range Deputy Inspector General of Police will send to the Police Headquarters every year the following list. (i) Lists of Sub Inspectors, Civil Police considered suitable for officiating promotion as Inspector in order of seniority in a prescribed form, which may be laid down by the Police Headquarters. (ii) Lists of Sub Inspectors, Civil Police, who are not considered fit for officiating promotion with brief reasons. The Departmental Selection Committee will thereafter have a final consolidated list prepared of Sub Inspectors Civil Police, considered suitable for officiating promotion arranged in the order of their seniority. From the final consolidated list, four times the number of Inspectors required to be approved for officiating promotion will be called for interview by the Departmental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: 4. Criterion for recruitment by promotion - Recruitment by Promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay scale, the maximum of which is ₹ 6700 or above, shall be made on the basis of merit, and to rest of the posts in all services to be filled by promotion including a post where promotion is made from a non-gazetted post to a gazetted post or from one service to another service, shall be made on the basis of seniority subject to the rejection of the unfit. Dr. Rajiv Dhawan with his usual erudition and eloquece in support of the appeals rested his submissions principally on two counts - the first being field being already occupied by a statutory rule or order and subsequent rule though framed under Article 309 cannot but give into the special and specific rule or order - it is under the first count, however, another incidental issue was also high-lighted by Dr. Dhawan, to writ: applicability of the doctrine of estoppel by conduct. Referring to the first count as above Dr. Dhawan drawing inspiration from the factual status submitted that in the light of the clari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India Service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution. In this context. Section 46 and in particular sub-sections (2) and (3) may also be noticed here being germane to the issue presently : (2).............the State Government may, from time to time, by notification in the Official Gazette, make rules consistent with the Act - (a) ..................... (b) .................... (c) generally for giving effect to the provisions of this Act. (3) All rules made under this Act may from time to time, be amended added to or cancelled by the State Government. There are thus an administrative order said to have been issued under the Police Act of 1861 and which stands clarified by issuing amendment notes thereto and a subsequent General Rule framed under Article 309. We shall presently deal with Article 309 but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncture, have a look at Article 309 of the Constitution which provides as under. 309. Recruitment and conditions of service of persons serving the Union of a State - Subject to the provisions of this Constitution, Acts of the Appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State : Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of the service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article and any rules so made shall have effect subject to the provisions of any such Act. It is in this context as well the decision of this Court in A.B. Krishna (A.B. Krishna and Ors. v. State of Karnataka and Ors., [1998] 3 SCC 495 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is not to be held indirectly repealed, altered or derogated from merely by force, of such general words, without any indication of a particular intention to do so. 12. Vera Cruz case (supra) was followed in Eileen Louise Nicolle v. John Winter Nicolle (1992) 1 AC 284 as under: 'It is no doubt a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law, expressed in general terms and by the apparent generality of its language applicable to and covering a number of cases of which the particular law is but one. 13. To the above effect, is also the decision of this Court in Maharaja Pratap Singh Bahadur v. Thakur Manmohan Day, AIR (1966) SC (193 1), in which it was indicated that an earlier special law cannot be held to have been abrogated by mere implication. That being so, the argument regarding implied supersession has to be rejected for both the reasons set out above. The issue at this stage thus arises as to the true effect of the Government Order of 1965-is it a mere circular without any effect and succumb to rules under Article 309?: A further question may also arise in this context, name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pport of the appeals, has, in the first place, urged that the State and Subordinate Services Rules are not applicable to the members of the police force in Kerala. The learned counsel has pointed out that initially in the Kerala Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as the 1957 Rules ), Kerala Police Service was included in Schedule I and Kerala Police Subordinate Service was included in Schedule II, and the said Rules were applicable to the Kerala Police Service and the Kerala Police Subordinate Service. Subsequently, by notification dated 26.5.1958, the 1957 Rules were amended and Kerala Police Service was deleted from Schedule I and the Kerala Police Subordinate Service was deleted from Schedule II. The submission was that since the members of the Kerala Police Subordinate Service were no longer governed by the 1957 Rules, the members of the said service were also not governed by the State and Subordinate Services Rules which were made on 17.12.1958, after the aforementioned notification dated 26.5.1958. We do not find any merit in this contention. Merely because the Kerala Police Subordinate Service had been excluded from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Rules are rules made under Section 69 of the Act. This contention of Shri Poti cannot be accepted for the reason that Section 69 of the Act requires that the rules should be notified in the Gazette and it has not been shown that the order dated 17.5.1963 was published in the Gazette. Shri Poti has invited our attention to certain circulars making amendments in the rules issued under order dated 17.5.1963 which were published in the Kerala Police Gazette . The submission is that the publication of these circulars in the Kerala Police Gazette indicates that the rules issued under order dated 17.5.1963 were in the nature of statutory rules made under Section 69 of the Act. We are unable to accept this contention. The Kerala Police Gazette is a publication of the Office of Inspector General of Police issued for departmental use only. It contains various circulars and standing orders issued by the State Government as well as the circulars issued by the Inspector General of Police and other useful information or the members of the police force. The said Kerala Police Gazette cannot be equated with the State Gazette published under the authority of the State Government. The require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the subsequent rules made on 13.6.1978 under proviso to Article 309 of the Constitution fusing Accountants and Head Clerks as eligible for promotion to the post of superintendent, it would be obvious that in view of the fact that higher scale of pay was given to the Assistants, Head Clerks in the scale of pay of ₹ 620-1200 while that of the respondents remained to be ₹ 570-1080, by necessary implication they cannot be treated to be of the same class for the purpose of enabling them to seek promotion to the post of Gazetted Class II. Moreover, the statutory rues do not include Accountants as a feeder post for promotion as Gazetted Class II. Considered from these perspectives, we are of the view that the Tribunal was in clear error in directing the Government to consider Respondents 3 and 4 as senior to the appellants and in giving promotion over the appellants. The Decision in Shish Ram (supra) in our view, however, not lend any support to the contentions, more, so by reason of the fact that the statutory rules which stand engrafted later came to be made increasing their scale of pay and making them eligible for promotion directly to the post of Gazetted cadre C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne or more of the following punishments to any police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who by any act of his own shall render himself unfit for the discharge thereof, namely:- (a) fine to any amount not exceeding one month's pay; (b) confinement to quarters for term not exceeding fifteen days, with or without punishment-drill, guard, fatigue or other duty; (c) deprivation of good conduct pay; (d) removal from any office of distinction or special emolument. The opening words subject to the provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time make under this Act is not only relevant but is of utmost importance. It is true that the Section is restrictive in nature but under the same heading itself gives guidance that the same includes appointments as well and the Rules spoken of is to be under the Police Act only. Section 12 of the Act needs also mention at this juncture which reads as below:- 12. Power of Inspector-General to make rules:- The Inspector-General of Police may, from time to time subject to the approval of the State Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds the inquiry for applicability of the Service Rules of 1994 to the Police personnel. Subsequently, on 13th April, 1998, the Secretary, Home (Police) Section, UP Admn. in consultation with the Personnel Department intimated all concerned the following:- 2. In the matter in question this situation has become clear in consultation with the personnel department and after full consideration that since the rules of service of personnel in the police department have been framed under the Police Act, hence the rules framed by the personnel department under Article 309 of the Constitution are not applicable to them. There is yet another communication on 26th April, 1999 from the Home Police Section of U.P. Administration to the Deputy Inspector General of Police, UP Police Headquarters, Allahabad stating therein that there is a provision in Section 2 of the Police Act, 1861 that subject to the provisions of the Act, the State Government shall stipulate the pay and all the conditions of service of members of the subordinate rank of any Police Force and if the same is read with Section 46(2), the State Government stands vested with the power to frame Rules and it has been the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the issue of estoppel by conduct rather exhaustively and one of us (Banerjee, J) in paragraphs 20 and 21 stated the law pertaining thereto as below:- 20. Estoppel by conduct in modern times stands elucidated with the decisions of the English Court in Pickard v. Sears (1837:6Ad. E1.469) and its gradual elaboration until placement of its true principles by the Privy Council in the case of Sarat Chunder Dey v. Gopal Chunder Laha, (1891-92)19 I.A.203) whereas earlier Lord Esher in the case of Seton, Laing Co. v. Lafone, (1887: 19QBD 68 evolved three basic elements of the doctrine of Estoppel to wit: Firstly, where a man makes a fraudulent misrepresentation and another man acts upon it to its true detriment: Secondly, another may be where a man makes a false statement negligently though without fraud and another person acts upon it: And thirdly, there may be circumstances under which, where a misrepresentation is made without fraud and without negligence, there may be an estoppel. Lord Shand, however, was pleased to add one further element to the effect that there may be statements made, which have induced other party to do that from which otherwise he would have abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an act of this sort was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences followed. [Lyon v. Reed, (1844) 13M W.285, 309] The doctrine has however, in modern times, been extended so as to embrance practically any act or statement by a party which it would be unconscionable to permit him to deny. The rule has been authoritatively stated as follows: Where one by his words or conduct willfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the later a different state of things as existing at the same time. [Pickard v. Sears (1837) 6Ad. El. 469, 474] And whatever a man's real intention may be, he is deemed to act willfully if he so conducts himself that a reasonable man would take the representation to be true and believe that it was meant that he should act upon it. (Freeman v. Cooke: 1848 (2) Exch. 654, 663). Where the conduct is negligent or consists wholly of omission, there must be a duty to the person misled. Mercantile Bank v. Central Bank (1938) AC 287, 304 and National ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves selected to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla, [1986] Supp SCC 285 it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examinat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framing of Rules dealt with more fully hereinbefore, which would prevail over any other Rule. Since no other rule stands formulated and the Government Order of 1965 being taken as the existing rule pertaining to the subject matter presently under consideration with recent guide-lines as noted above, its applicability cannot be doubted. Unless the General Rule specifically repeal the effectiveness of the special rules, question of the latter rule becoming ineffective or inoperative would not arise. In order to be effective, an express mention is required rather an imaginary repeal. It is now a well settled principle of law for which no relation is further required that law Courts rather loath repeal by implication. The General Rule framed under Article 309 has been for all State Government officials on and since 1994. List II (State List) of the 7th Schedule specially refers to the powers of the State Legislature to frame Rules specially for the Police. In this context Item 2 thereof would be significant which reads as follows: List II-State List 2 Police (including railway and village police) subject to the provisions of entry 2A of List I. Police force admittedly has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, be held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, the Selection Committee is required to meet every year for the purpose of making the selection from amongst the State Civil Service Officers who fulfil the conditions regarding eligibility on the first day of January of the year in which the Committee meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service Officers who were eligible and fell within the zone of consideration for selection in that year. It cannot thus be treated to be void but any irregularity which is of curable nature and can be cured. Dr. Dhawan made some comments as regards the situation in Uttar Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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