K N GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE two writ petitions before me being of identical nature were called on for hearing together and it is convenient to dispose them of by one judgment. THE petitioners, who are Superintendents of Police in the State of Rajasthan, question a Government order whereby their previously fixed seniority in the I. P. S. Cadre has been altered by the Government vis-a-vis the contesting respon-dents Servashri J. K. Balani and H. N. Kak, respondents Nos. 3 and 4 respectively. It will be convenient to state the facts with reference to the writ petition of Shri K. N. Gupta. I

(2.) PETITIONER Shri K. N. Gupta belonged to the former covenanting stats of Jodhpur and he graduated in commerce from the Agra University in 1947 and post graduated in Commerce and graduated in Law from the Lucknow University in 1949. After the formation of Rajasthan he came to be appointed as Deputy Superintendent of Police. In January, 1951, Shri Gupta as also Shri Bajranglal, the writ petitioner in the other case, were sent for training as Deputy Superintendents of Police to Moradabad Police Training College and on the completion of their training they joined as Deputy Superintendents of Police Shri Gupta was appointed as a member of the Rajasthan Police Service in 1953 when such service was constituted by the State. Subsequently Shri Gupta came to be appointed in the Indian Police Service. He claims that in pursuance of Indian Police Service ( Appointment by Promotion} Regulations, 1955, a Committee was constituted by the Central Government in January, 1957, and it consisted of the Chairman, Union Public Service Commission, the Chief Secretary of the State Government, the Home Secretary of the State Government, the Inspector General of Police Rajasthan and the Deputy Inspector General of Police, Headquarters, and he was selected for inclusion of his name in the special selection list for being appointed to the Indian Police Service. The following officers, according to him, were selected in the order in which their names are shown: (1) Shri J. P. Singha (2) Shri P. C. Bhatia (3) Shri Bhagirath Ram Bishnoi (4) Shri Bajranglal (5) Shri K. N. Gupta (petitioner) (6) Shri Shishram Sharma. Out of these officers according to the petitioner, Nos. 1, 2, 3 and 6 were already officiating as Superintendents of Police, but the petitioner was placed higher in the order of merit in comparison to Shri Shishram Sharma who was senior to him in the Rajasthan Police Service and was already officiating as Superintendent of Police at the time. The list was prepared in this order because Shri Gupta was considered to possess special merit in comparison to Shri Shishram Sharma and other senior officers in the R. P. S. Cadre who were not taken on the Select List. The petitioner proceeds to say that at the time of his selection there were many officers belonging to the Rajasthan Police Service who were officiating as Superintendents of Police, but they were not considered fit. He has pointed out the names of Servashri P. L. Banerjee, Kundanlal and Madanlal. The recommendations of the Selection Committee were placed before the Cabinet of Ministers and, according to Shri Gupta, the Cabinet decided that both Shri Gupta and Shri Bajrang Lal be appointed as officiating Superintendent of Police whenever any future vacancies occurred. It is claimed that as the petitioner was given a higher position in the Select List on account of his merit in comparison to those who were already officiating as Superintendents of Police. , the idea was that whenever any post would fall vacant in future he was to be appointed on a permanent basis and was to be given preference over those who were kept lower in the list. The version of the petitioner further is that he was considered fit to hold the post of Superintendent by the then Inspector General of Police and the latter had recommended for appointing the petitioner as such on 18-2-57. Though the selection of the petitioner for inclusion of his name in the Select List was held in January, 1957, yet the list was not notified in accordance with rule 5 of the Indian Police Service (Special Recruitment) Regulation, 1957, because the list had to be on an All India basis and selections for other States had to take time. Even so, according to Shri Gupta, on account of his fitness for holding the post he was appointed as officiating Superintendent of Police on 3-9-57. He had brought on record the Government order Ex, 2. It is dated 9-3-57 and by it he was appointed as officiating Superintendent of Police ( G. I. D.) S. B.) At that time, according to Shri Gupta, respondents Nos. 4 and 5 Servashri Balani and Kak, respectively who were direct recruits, were not appointed and the petitioner was given preference over them. This appointment was for a month only to start with, but eventually it was continued right upto 25-9-57. In between Shri Gupta was transferred on 13-7-57. , as officiating Superintendent of Police, Tonk, but as in the meantime the post of Superintendent, G. I. D. Grimes Branch had fallen vacant due to the transfer of one Shri Kartar Singh from G. I. D. to Government of India, the petitioner who was previously working as Deputy Superintendent of Police, G. I. D. Special Branch, Jaipur was appointed to officiate as Superintendent of Police G. I. D. ( S. B.) from 6-8-57 to 21-9-57 ( vide Ex. 6 ). Servashri Balani and Kak were also appointed as officiating Superintendents of Police at Jaisalmer and Bharatpur on 25-5-57 and 4-6-57 respectively against the leave vacancies of the Superintendents of Police at the two respective places. However, with effect from 25-9-57 Shri Gupta was reverted as Deputy Superintendent of Police. The grievance of Shri Gupta was that this was wrong as persons who had subsequently been appointed against leave vacancies should have been reverted and thus he asserts that there was denial of equal opportunity under Article 16 of the Constitution to him. Shri Gupta applied for leave with effect from 25-9-57 after handing over his charge as officiating Superintendent of Police and then went on leave. The Inspector General of Police granted him leave in anticipation of Government's sanction and allowed him to proceed on leave. Shri Gupta avers that at the time he was granted this leave five posts from leave reserves were unoccupied. While on leave Shri Gupta came to be appointed again as officiating Superintendent of Police on 29-11-57. On his being so appointed he joined his post at the place where he was appointed namely, Bundi and his remaining leave which was in all for 60 days was got cancelled. The Inspector General of Police had requested the Government vide his letter dated 16-12-57 (Ex. 5) that Shri Gupta be granted leave as applied for i. e. , 30 days' P. L. From 25-9-57 to 24-10-57 and 30 days' extension from 25-10-57 to 23-11-57. The Inspector General also requested the Government to issue orders that Shri Gupta may be treated as Superintendent of Police during the leave period as he had again been promoted as officiating Superintendent of Police, Bundi without joining as Deputy Superintendent of Police on reversion. The Inspector General of Police again reminded the Government vide his letter dated 24-4-58 (Ex. 7) that action be taken as per his previous letter and on this second occasion he requested the Government that as required under rule 31 (b) (b) of R. S. R. Government may give a certificate in favour of Shri Gupta to the effect that he would have continued to officiate as S. P. , but for his proceeding on leave sanctioned under Government orders and also to convey the same direct to A. G, It appears that on 9-5-58 the Government had issued the following order: "government OF RAJASTHAN Appointments (A) Department, No. D. 5657/58/f. 3 (4) Apptts (A) 57. Jaipur, the 9th May, 1958. The Accountant General Rajasthan, Jaipur. Sub: - Grant of leave to Shri K. N. Gupta, R. P. S. Officiating Superintendent of Police, Bundi. Ref:- This Department order No. D. 465/58/f. 3 (4) Apptts (A)/57, dated 4-2-1958. Under Rule 31 (b) (b) of the R. S. R. the Government have been pleased to certify that but for his proceeding on 60 days leave with effect from 25-9-1957, Shri K. N. Gupta, R. P. S. , would have continued to officiate as Superintendent of Police. BY ORDER SD/- Assistant Secretary to the Government of Rajasthan" This order, according to Shri Gupta, showed that for purposes of explanation No. 2 to rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954, the Government treated the petitioner as Superintendent of Police from 9-3-57 to 29-11-57 and consequently in accordance with rule 3 of these Rules the petitioner was allotted the year 1952 as the year of his allotment for the purposes of Indian Police Service and placed above respondents No. 3 and 4. The gradation list was published by the Government of India on 1-1-59 and subsequently continued to be published from year to year as no objections had been filed by any body against the fixation of the petitioner's seniority. This repetition of the order of seniority in the gradation list continued till 1962. The events, according to the petitioner, had then taken a turn on account of the appointment of Shri Balani as Personal Assistant to the Inspector General of Police who came to exercise influence with the Inspector General and seized of the opportunity to make a representation against the higher seniority assigned to the petitioner and the Inspector General of Police forwarded the representation of Shri Balani. On receipt of this representation the Special Secretary to the Government Shri G. K. Bhanot informed the petitioner on 9-4-63 vide E. 19 to show cause why the representation of Shri Balani be not accepted and the petitioner's seniority revised as the same was found to be wrongly fixed and likewise the certificate, Ex. 9 was also said to have been wrongly issued. The petitioner submitted a detailed reply to this Government communication (Ex. 19), but it had no effect and eventually in the next gradation list the petitioner's name was put below those of respondents Servashri Balani and Kak. It is this order of alteration of seniority that is challenged by the present writ petition,

(3.) ACCORDING to the standing order made by the Chief Minister under rules 21 and 22 of the Rules of Business of the State Government made by the Governor on 6-3-56, the question of determination of seniority of All India Service was to be dealt by the Additional Secretary and the Chief Secretary in the first instance and then by the Chief Minister and the Home Minister, so far as I. P. S. Officers, were concerned. Is it to be taken that the question of fixation of seniority at the out set which culminated in the first gradation list was dealt with otherwise than by this standing order? The proposal is required to be examined at a sufficiently high level of the Government. The reply of the State Government shows that they have just tried to take shelter behind the simple plea of a mistake. How that mistake was committed, what were the circumstances under which it was so committed, whether the proposal was dealt with by the Additional Secretary, the Chief Secretary, the Home Minister or the Chief Minister, has not at all been clarified. Am I also to presume that the Government of India who had eventually to approve the seniority had done so without looking into the matter whether the State Government had, in fact, given any certificate as required by explanation 2, or the conditions of explanation 1 were fulfilled in the present case or not. On the one side there is no clear averment as to whether any certificate was issued by the State Government; on the other side, the position has been left shrouded in mystery and no light whatsoever was thrown as to how the seniority of Shri Gupta came to be fixed above that of Servashri Balani and Kak, and how this would have been done otherwise than by resorting to the two explanations.