TMI Blog1976 (7) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-inspector of Police with effect from 1st January, 1954. On his satisfactorily completing the period of probation by an order dated 17th August, 1965, petitioner was absorbed as temporary Sub-Inspector of Police with effect from 1st July, 1965 and was continued in Kutch District. Petitioner served in that capacity at various place in Gujarat State upto January, 1973 when he was posted in Baroda city. By the first impugned order dated 9th January, 1973, petitioner was temporarily promoted to officiate as Police Inspector and was posted in Civil Defence Organisation as Instructor. Petitioner took over as Instructor in Civil Defence Organisation. In February, 1973, the petitioner made a representation to the second respondent requesting him to repatriate him in the Police Department but this representation was rejected on 31st March, 1973. He made a second representation on 2nd July, 1973 and it was submitted through proper channel meaning thereby Director of Civil Defence Organisation who declined to forward it as per his endorsement dated 30th July, 1973. On 16th April, 1974 the petitioner made a direct representation to the State Government questioning even the legality and valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowance is admissible to higher officers and denying simultaneously to the lower ranks. 4. Bombay Police Act was enacted to consolidate and amend the law for the regulation of the Police Force in the State of Bombay. Selection 3 provides for setting up of Police Force for the whole State of Gujarat. Section 4 confers powers of superintendence on the State Government over the Police Force throughout the State of Gujarat. Section 5 provides for constitution of the Police Force. The Police Force for shall consist of such number in the several ranks and have such organisation and such powers, functions and duties as the State Government may by general or special order determine. Clause (b) of S. 5 provides that recruitment, pay, allowances and all other conditions of service of the Police Force shall be such as may from time to time be determined by the State Government by general or special order. Section 14 provides that every Police Officer of the grade of Inspector or below shall on appointment receive a certificate in form provided in Schedule II. The certificate shall be issued under the seal of such officer as the State Government may be general or special order direct. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict Magistrate to command such Corps, to be known as Controller of Corps. Sub-section (2) provides for appointment of Director of Civil Defence for coordinating the activities of the Controller within the State. Then comes S. 5 which is material. It reads as under : 5. (1) The State Government may appoint as members of the Crops persons who are fit and willing to serve as such and the Controller may appoint any member so appointed to such office or command in the Corps, as such member is, in the opinion of the Controller, fit to hold. (2) Every person appointed to be a member of the Corps shall be given a certificate of membership in such forms as may be prescribed Section 9 confers power on the Central Government to make regulations for carrying out the purpose of Chapter III of the Act and without prejudice to the generality of the foregoing power so conferred the Central Government may make regulations amongst others for regulating the organisation, appointment, conditions of service, discipline, accoutrement and clothing of members of any or all of the Corps. 6. It is not in dispute that the petitioner was selected for the appointment as Sub-Inspector of Police an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Government Pleader told me that it is not possible for the Government to repatriate the petitioner and, therefore, petition was, again set down for hearing. The fact remains that the petitioner is on deputation, period of deputation now not being fixed, to the Civil Defence Organisation. 8. Members of the Police Force of the State of Gujarat are primarily governed by the Bombay Police Act and by special and general orders issued by the Government in exercise of the various powers conferred on the State Government and other higher Officers of the Police Force, viz., Commissioner of Police and Inspector-General under various provisions of the Bombay Police Act. The orders made in exercise to these powers have been printed in the form of Bombay Police Manual and all the relevant orders are collected therein. In other words, Bombay Police Manual is a compilation of various orders made by the State Government, Inspector-General or Commissioner of Police in exercise of powers conferred upon them under different provisions of the Bombay Police Act. This manual is not available in the market and it is treated as a close preserve of the Police Department. Whatever that may be, whenev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost under the State or member of the civil service of the State holds office during the pleasure of the Governor of the State, it would enable the Governor or officers exercising the powers conferred on the Governor to deal with the holder of the office or member of the State civil service in any manner as he or they like. Since the introduction of Art. 16 as well as part XIV of the Constitution, it is quite well-settled that the State can deal with the employees subject to relevant Act made in that behalf on the rules and regulations and such Act and rules and regulations would be such as not to be violative of Art 16. Article 16 has been interpreted to cover not only the initial entry into service, but also the guarantee of equality of opportunity enshrined therein covers the stage of promotion also. Now, where such is the guarantee the person joining service in a department looks forward to move vertically upward and would be entitled to be considered for the post filled in by promotion. This led to categorisation of posts. To allay apprehension of nepotism or arbitrariness in the matter of appointment to public service, ordinarily recruitment rules either statutory or be execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in addition, one or more Circle Police Inspectors attached to it. Police Inspector when he is in charge of a circle is called a Circle Police Inspector. Under him there are Sub-Inspectors of Police attached to various police stations. Under various police stations there can be out-posts in charge of Police head Constable. This is the organisational setup of district Police Force. Police Inspector is a member of the police force. He belongs to the police force and when he is Police Inspector he belongs to the cadre Police Inspectors strength of which is required to be prescribed. 11. Petitioner as Police Inspector was serving and was bound to serve in the police force of the State of Gujarat. It may be that he may be assigned to a district. It is open to the State Government to direct him to render service in any part of the State and he cannot complain that he is being sent outside his district, but that duty must be limited to police duty. Unfortunately, no one made clear to me what constitutes police duty and hence a broad meaning will have to be attached to it; but even if we give broad interpretation to the expression police duty could it involve a duty as Instructor in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed could they be interchanged. Is pay protection the only necessary indicia for sending any civil servant holding one post to any other post for which not only he is not qualified, but he is least competent to discharge duties of that post. It is just not conceivable. We heard in the old princely States that a police officer could be Judge or a guard could be an Education Officer. In the present day this is just not thinkable. 14. What are the obligations of the holder of the civil post ? He is bound to discharge the duties assigned to that post. He can be promoted, if he is qualified. He can be reverted either by way of punishment or on account of exigencies of service. He can be transferred in the same cadre to an equivalent post. He can be asked to discharge all the duties assigned to all such other members of the cadre performing their normal duties of that post. But is it possible even to envisage that any member of the civil service of the State can be sent to any other post outside his parent department or outside his cadre ? Even on first principle, the answer must be in the negative and it must be for obvious reasons. 15. Today when specialisation is the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ywhere as Government think proper notwithstanding that he belongs to one cadre or is qualified for certain type of work only. Expression in any manner cannot be interpreted in such a broad manner as to nullify the guarantee of Art. 16 as well as the provisions of Arts. 309, 310 and 311. Rule 17 appears to be a relic of the past. It was a pre-Constitution provision. It must be understood within the light of the provisions of the Constitution. Expression in any manner would only mean anything permissible by relevant rules or by relevant conditions of service. That is all the meaning that can be assigned to the expression in any manner in Rule 17. If the meaning which Mr. Takwani wanted to give to the expression in any manner were to be accepted, it would mean that any employee can be taken outside the cadre, outside the parent department even on a post lower than the post he was holding and when he is asked to do any work for which he may not be competent which would not be befitting the dignity of the last office that he held. In this connection, it would be advantageous to refer to E. P. Rayappa v. State of Tamil Nadu, [1974-I L.L.J. 172]; A.I.R. 1974 S.C. 555 at page 579. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. If such is the fetter on State actions, can it ever be said that Rule 17 of the Bombay Civil Services Rules would permit Government to employ a Government employee in any manner meaning thereby wherever and in whatever post for whatever duty the proper authority considers him fit to employ ? Such an approach would strike at the root of Art. 16 and must be negatived. 17. Mr. Takwani said that the petitioner's lien is retained in the parent department and he is merely deputed to Civil Defence Organisation. Word deputation itself connotes service outside the cadre or outside the parent department in which he is serving. One is never deputed in his own department. He can be deputed to other department. If a person is holding an office and is bound to render duty it must be in the cadre and the post to which he is appointed. If he is to be taken away from that post and sent to another department it is said that he is being deputed to that de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication. As S. 5 of the Bombay Police Act provides for prescribing the strength of each rank. Rule 74 prescribed the concept of strength of rank including therein a training or deputation reserve required for training all officers necessary for its normal work and accordingly the occasion for recruitment by transfer from another department or service should be rare. The expression of which the Court should take notice is the occasion for recruitment by transfer from another department or service should be rare . Bombay Police manual deals with various aspects governing conditions of service, duties, recruitment, pay, allowances of the members of the police force. Now, recruitment here referred to must be recruitment to various ranks of the police force. Recruitment by transfer would mean transfer from another department to police department and occasion for such recruitment by transfer into police department should be considered rare. It provides that when, however, such an occasion actually arises the principles laid down in Rule 74 may as far as possible be adhered to. Now we are here not concerned with the recruitment of a person from another department to police departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on deputation as Instructor and he is not a member of the Corps and, therefore, Regulation 5(2) would not be attracted. It is difficult to understand this submission because if the petitioner and several others are sent to Civil Defence Organisation as Instructors, unless they are members of the Corps. I fail to see how they would belong to the organisation and they are under a disability from becoming a member of the Corps. It is thus crystal clear that the petitioner could not have been sent to the Civil Defence Organisation. 21. Having examined the matter on principle, it is now necessary to look at some of the decided cases to which my attention was invited at the hearing of this petition. In State of Mysore v. Papanna, 1971(2) Service Law Reporter p. 48, a question arose whether the services of a person belonging to Mysore Civil Service would stand transferred to the University set up under the University of Agricultural Sciences Act, 1963. The answer was in the negative. Mr. Takwani, however, urged that in that case on the transfer of services, the petitioners ceased to be in civil service of the State and that weighed with the Supreme Court. In the Present case, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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