RAMSINGH SITARAM CHAVAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The grievance in this petition filed under Articles 226 and 227 of the Constitution is to the appointment of respondent No. 3 to the post of Inspector General of Prisons, Maharashtra State. The Chief Secretary, Mr. B.G. Deshmukh, by order dated May 9, 1986, informed respondent No. 3 that a decision is taken to transfer and post him as Inspector General of Prisons, Maharashtra State, and he should relinquish charge his present assignment and assume charge of his new assignment in consultation with Mr. Dravid, who was holding the charge of Inspector General of Prisons. Rules for appointment to the post of Inspector General of Prisons are framed by the Government of Maharashtra in exercise of powers conferred by the proviso to Article 309 of the Constitution and are known as "Inspector General of Prisons and Director of Correctional Services (Recruitment) Rules, 1985."

(2.) Rule 2 provides that appointment to the post of Inspector General of Prisons shall be made either (a) by promotion of suitable person on the basis of selection from amongst the person holding a post in the cadre of Deputy Inspector General of Prisons; or (b) by transfer of an officer from the Indian Administrative Service in the super time scale of pay. The grievance of the petitioner is that respondent No. 3 was not eligible for appointment as he did not fall in either of the requirements under Rule 2. Respondent No. 3 was not in the cadre of Deputy Inspector General of Prisons nor an officer from the Indian Administrative Service in the super time scale of pay. Respondent No. 3 was holding the post of Commissioner, C.I.D. (Intelligence) at the time of his selection. The petitioner, therefore, claims that the appointment of respondent No. 3 is contrary to law and is, therefore, vitiated. In answer to the petition, Smt. Anita Jayawant Phadnis, Section Officer, Home Department has filed return sworn on November 10, 1986 and it is claimed that respondent No. 3 was appointed by order dated August 26, 1986 and the Chief Secretary had merely given intimation on May 9, 1986 to respondent No. 3 of his selection. The return further claims that the Rules for selection of Inspector General of Prisons were amended on May 20, 1986 and recruitment was permitted by transfer of an officer from the Indian Police Service holding the rank not below that of Special Inspector General of Police. The return claims that respondent No. 3 was an officer from the Indian Police Service and was holding the rank above that of Special Inspector General of Police.

(3.) Mr. Gursahani, learned Counsel appearing for the petitioner, submitted that respondent No. 3 who belongs to the cadre of Indian Police Service was not eligible for selection prior to May 20, 1986. The learned Counsel urged that the selection of respondent No. 3 was prior to May 20, 1986 and therefore, the selection was neither valid nor legal. It is not possible to accede to the submission of the learned Counsel because what was done on May 9, 1986 was mere intimation to respondent No. 3 of his selection and this intimation cannot amount to an appointment. The appointment can take effect only on the date when respondent No. 3 took over charge of the post and the charge was taken over by respondent No. 3 on July 10, 1986 i.e. long after the rules were amended. In these circumstances, therefore, even though respondent No. 3 was not entitled to be selected prior to May 20, 1986, we are not inclined to disturb his selection.