Andhra HC (Pre-Telangana)
The Government Of Andhra Pradesh ... vs G. Jaya Prasad Rao And Ors. on 4 October, 2002
Equivalent citations: 2002(6)ALT81
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER B. Sudershan Reddy, J.
1. This batch of writ petitions may be disposed of by a common order since all of them are directed against the common judgment dated 12-7-2002 made in O.A. No. 9461 of 2001 and Batch by the Andhra Pradesh Administrative Tribunal.
2. Aggrieved by the said common Judgment of the Tribunal, the Government of Andhra Pradesh represented by its Principal Secretary to Government together with the Director General and Inspector General of Police, Andhra Pradesh invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India and accordingly pray for issuance of a writ of Certiorari after calling for the records relating to and connected with the said common judgment of the Tribunal and quash the same.
3. In order to consider the correctness of the judgment rendered by the Tribunal, it may be necessary to notice the relevant facts leading to filing of this writ petition:
4. The respondents in this batch of writ petitions are the Inspectors of Police working at various places and in various wings in the Police Department in the State of Andhra Pradesh. Most of them are working as Inspectors of Police in the city of Hyderabad. They have invoked the jurisdiction of the Andhra Pradesh Administrative Tribunal with a prayer to declare Note-2 of Rule 3 of the Andhra Pradesh Police (Civil) Service Rules issued in G.O.Ms. No. 267, Home (Police-E) Department, dated 26th November, 2001 as arbitrary and discriminatory being violative of Articles 14, 16, 21 and 311 of the Constitution of India. They have also prayed to declare proviso to Rule 6 of the aforesaid Rules as bad in law being violative of Articles 14 and 16 of the Constitution of India.
5. The Tribunal after an elaborate consideration of the matter agreed with the various contentions of the respondents-applicants and accordingly declared the Note-2 of Rule 3 of the Rules and proviso to Rule 6 of the Rules as arbitrary being violative of Articles 14 and 16 of the Constitution of India. They were accordingly set aside. All the Original Applications filed by the respondents-applicants were accordingly allowed. Hence this batch of writ petitions by the State of Andhra Pradesh challenging the legality and correctness of the common judgment passed by the Tribunal.
6. The Andhra Pradesh Police (Civil Police) Service Rules, 1998 (for short 'the Rules') are made in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India relating to the posts mentioned in the service. The service consists of the categories of posts, viz., Additional Superintendent of Police (Non-Cadre) including Officer-on-Special Duty and Additional Deputy Commissioner of Police; Deputy Superintendent of Police including Assistant Commissioner of Police other than Assistant Commissioner of Police (Headquarters and City Armed Reserve); and Inspector of Police and Inspector of Police (Woman). The Rules provide for method of appointment, eligibility criteria for appointment in respect of each of the categories and other allied matters relating to the posts mentioned in the service.
7. According to the said Rules, the post of Additional Superintendent of Police including Officer on Special Duty and Additional Deputy Commissioner of Police fall under Category-1 and are to be filled by promotion of Deputy Superintendent of Police (Category-2). The post of Deputy Superintendent of Police including Assistant Commissioner of Police other than Assistant Commissioner of Police (Headquarters and City Armed Reserve) fall under Category-2 and are to be filled (i) by direct recruitment; and (ii) by promotion of Inspector of Police (Category-3).
8. The post of Inspector of Police falls under Category-3 (a) and the method of appointment for filling up of this post is by appointment by transfer of Sub-Inspector of Police in the Andhra Pradesh Police (Civil Police) Subordinate Service. The post of Inspector of Police (Woman) falls under Category-3 (b) and the said post is to be filled in by appointment by transfer of Sub-Inspector of Police (Woman) in the Andhra Pradesh Police (Civil Police) Subordinate Service.
9. Rule 3 of the said rules prescribes the method of appointment for the several categories referred to hereinabove. Under Note-1 to Rule 3 of the said Rules a cycle of ten vacancies is prescribed for appointment to the post of Deputy Superintendent of Police, according to which the first vacancy, fourth vacancy and seventh vacancy are to be filled in by direct recruitment and the remaining by way of promotion.
10. Rule 4 of the Rules provides for reservation applicable to appointment by direct recruitment. Rule 5 prescribes the eligibility criteria including the age and qualifications for appointment as Deputy Superintendent of Police by direct recruitment.
11. Rule 6 similarly prescribes the eligibility criteria for appointment by transfer or promotion from one category to the other category. It is relevant to notice the same, which is as under:
"6. Minimum Service: No person shall be eligible for appointment by transfer or promotion unless he is an approved probationer and has put in service in the category from which promotion or transfer is made as specified below:-
(a) not less than five years for a Deputy Superintendent of Police to be promoted as Additional Superintendent of Police (Non-cadre);
(b) not less than six years for Sub-Inspector of Police and for Inspector of Police to be promoted as Inspector of Police and Deputy Superintendent of Police respectively."
12. The rule making authority made amendments to the said special rules and notified the same in G.O.Ms. No. 267, Home (Police-E) Department, dated 26-11-2001. Those amendments are questioned by the respondents-applicants on various grounds before the Tribunal. The amendments read as under:
"In the said rules,-
(i) in rule 3, after the Table, the Note-1, the following Note shall be added, namely:-
"NOTE-2: The Government may consider the cases of deserving Inspectors of Police and Deputy Superintendents of Police (Civil), for accelerated promotions to the next higher ranks in recognition of their outstanding work in the field of anti-extremist operation irrespective of their seniority as an incentive by following the relevant procedure as specified by the Government from time to time in this regard."
(ii) in rule 6, the following proviso shall be added, namely:-
"Provided that in the case of the accelerated promotions, the minimum service as specified above shall not apply".
13. The amended Rules confer discretion upon the Government to consider the cases of deserving Inspectors of Police and as well as the Deputy Superintendents of Police for accelerated promotion to the next higher ranks in recognition of their outstanding work in the field of anti extremist operation. The accelerated promotions may be made by the Government by following the procedure as specified by it from time to time in this regard. Such accelerated promotion is stated to be an incentive. In all such cases of accelerated promotions, the minimum service as is prescribed in Rule 6 is dispensed with, thereby meaning that the Deputy Superintendents of Police need not put in service of five years to be promoted as Additional Superintendents of Police and so also the Inspectors of Police need not put in six years of service to be promoted as Deputy Superintendents of Police. An automatic exemption from the operation of the Rule 6 is carved out in the case of such accelerated promotions.
14. The case of the respondents-applicants is that the impugned amendments are irrational. By the impugned amendment a separate class in the cadre of Inspectors and also among the Deputy Superintendents of Police is created on the ground that a particular officer did an outstanding work in the field of anti extremist operation. The Inspectors of Police working in the department of Police in whatever branch, irrespective of their posting, constitute one distinct class. There cannot be any further classification within the class. It is their case that under fortuitous circumstances one may get an opportunity to work in an extremist infested area and such posting which is nothing but accidental itself cannot constitute a ground for according accelerated promotion ignoring the seniority and merit. The impugned amendments, according to the respondents-applicants, are highly discriminatory and violative of fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India. The requirement of putting in a minimum service for promotion in accordance with the said rules ensures equality of opportunity to all the individuals within the class and the same is dispensed with under the impugned amendments whereby a class within the class is constituted. It is also contended that the impugned amendments give scope to an unbridled power to the authorities, as the discretion is conferred to pick and choose a candidate of their own choice and accord him accelerated promotion. It is contended that the seniority and as well as the merit are made to be the victims. It is also contended that since there are no guidelines for evaluating the outstanding work done by any individual officer in the field of anti extremist operation and in the absence of guidelines the discretion to be exercised is likely to result in favouritism.
15. The State filed a common counter affidavit inter alia denying and disputing the allegations and averments made in the Original Applications filed by the respondents-applicants herein in the Tribunal. The case of the State is that the Government have introduced the accelerated promotion scheme to improve the morale and to encourage the force to more effectively undertake operations in the extremists' field. As per the experience for the last two decades unless there is some encouragement and incentive nobody will come forward to work in the extremists' field at the level, which require to curb the extremist activity. It is stated that in view of the increasing extremist violence and risk to the police personnel throughout the State more particularly in Zone-V comprising of Warangal, Khammam, Karimangar and Adilabad Districts and in Zone-VI comprising of Nizamabad, Medak, Nalgonda, Mahabubnagar and Ranga Reddy Districts, the Government thought it fit to introduce the scheme of accelerated promotions.
16. It is also stated that the accelerated promotions will not be granted in a casual and light manner. The proposals may have to be submitted to the Government with the recommendations only after proper scrutiny at the District, Range and Intelligence level and in the office of the Director General and Inspector General of Police and after duly satisfying, and the same are to be placed before the Committee constituted for the specific purpose for its approval. The Government have also decided that the persons who secure promotions under accelerated promotion scheme have to work at least for two years in the field of anti extremist operation since they are given accelerated promotions.
17. Sri D. Prakash Reddy, learned Additional Advocate General appearing on behalf of the State contends that the impugned amendments do not suffer from any constitutional vice. The finding recorded by the Tribunal that the impugned amendments are violative of fundamental rights guaranteed by Articles 14 and 16 of the Constitution of India are untenable and unsustainable. The persons to whom accelerated promotions may be granted to the next higher rank in recognition of their outstanding work in the field of anti extremist operation constitute themselves into a specified class. They are substantially different and distinguish themselves from those left out of such consideration. It is also submitted that there is just and rational relation for making such a classification to the object sought to be achieved. It is contended that Article 14 of the Constitution of India prohibits class legislation and not reasonable classification. It is submitted that the classification in the instant case is founded on an intelligible differentia, which clearly distinguishes the persons for giving accelerated promotions from others left out of such consideration. The classification has a rational relation to the object sought to be achieved, viz., providing incentive to such of those who did outstanding work in the field of anti extremist operation.
18. Sri E. Manohar, learned Senior Counsel appearing on behalf of the respondents-applicants submits that the impugned amendments create a class within the class. The Inspectors or the Deputy Superintendents of Police, as the case may be, each one of them constitute into a separate class by themselves and providing accelerated promotions to some amongst them is per se discriminatory and violative of Articles 14 and 16 of the Constitution of India. The accelerated promotions without any regard to seniority and merit on account of fortuitous circumstances result in an arbitrariness. For one's no fault he may not have been posted in an area infested with the extremists thereby may not have participated in the anti extremist operation and depriving such person of equality of opportunity in the matter of promotion to the next higher post in accordance with the seniority and merit offends right to equality guaranteed by Articles 14 and 16 of the Constitution of India.
19. Similar are the submissions made by Sri M. Ratna Reddy, learned counsel appearing on behalf of the 4th respondent in W.P. No. 17127 of 2002 and 6th respondent in W.P. No. 17139 of 2002.
Right to equality:
20. Article 16 of the Constitution of India, which ensures to all its citizens equality of opportunity in matters relating to employment is but an instance or incident of the guarantee of equality contained in Article 14 of the Constitution of India.
21. Article 14 of the Constitution of India gives effect to the doctrine of equality in the matter of appointment and as well as promotion. The concept of equal opportunity guaranteed by Article 16 of the Constitution of India permeates the whole spectrum of one's employment commencing from appointment through promotion and termination to the payment of gratuity and pension.
22. In Ajit Singh (II) V. State of Punjab, a Constitution Bench of the Supreme Court while considering the inter-connection of Articles 14 and 16 of the Constitution of India observed that "they are closely connected. Clause (1) of Article 16 is held to be a facet of Article 14 and that it takes its roots from Article 14." While construing Article 16 (1) of the Constitution of India, which issues a positive command, the Supreme Court observed that "there shall be equality of opportunity for all its citizens in matters relating to the employment or appointment to any office under the State." The Supreme Court observed:
"The word "employment" being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16 (1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. Equal opportunity here means the right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right.
"Promotion" based on equal opportunity and "seniority" attached to such promotion are facets of fundamental right under Article 16 (1)." (Emphasis is of ours).
23. It is further observed by the Supreme Court that "where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in Article 16 (1)." The Constitution Bench in categorical terms declared that "the right to be considered for promotion is not a mere statutory right but a fundamental right guaranteed by Article 16 (1) of the Constitution of India."
24. We shall bear in mind that Article 16 of the Constitution of India is only an incident of application of the concept of equality enshrined in Article 14 thereof and it gives effect to the doctrine of equality in the matter of appointment and promotion. The expression "employment" in Article 16 (1) of the Constitution of India takes in its ambit appointment as well as promotion. No doubt, chance of promotion cannot be equated to that of a right of consideration. A legislation or a rule, which merely affects one's chance of promotion may not be violative of equality clause. But deprivation of an employee's right of equal opportunity and right to be considered for promotion, undoubtedly, violates the fundamental rights guaranteed by Article 16 (1) of the Constitution.
25. Does it mean that there can be no reasonable classification of the employees for the purpose of appointment or promotion, as the case may be?
26. In State of J & K V. Triloki Nath Khosa, , a Constitution Bench of the Supreme Court observed:
"Since the constitutional code of equality and equal opportunity in a charter for equals, equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class. A classification of employees can therefore be made for first identifying and then distinguishing members of one class from those of another."
27. It is further observed that "the courts cannot embark upon a nice or mathematical evaluation of the basis of classification, for were such an enquiry permissible it would be open to the Courts to substitute their own judgment for that of the legislature or the rule-making authority on the need to classify or the desirability of achieving a particular object."
28. The Supreme Court, however, administered caution that the classification itself is fraught with the danger "that it may produce artificial inequalities and therefore, the right to classify is hedged in with salient restraints; or else, the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well-marked classes characterized by different and distinct attainments. Classification, therefore, must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved." It means that not only there should be a definite object sought to be achieved but also the classification itself must be a reasonable one. In other words what is prohibited is creating a class within a class without any rational basis.
29. What is the basis for dividing one single homogenous class into two separate groups in the instant case? What is the criterion adopted for identifying and distinguishing members of one class from those of another?
30. The impugned amendment confers discretion upon the Government to consider the cases of deserving Inspectors of Police and Deputy Superintendents of Police for accelerated promotion to the next higher rank in recognition of their outstanding work in the field of anti extremist operation, irrespective of one's seniority. The basis of classification is recognition of outstanding work in the field of anti extremist operation. All those officers whose services are recognised as outstanding work in the field of anti extremist operation are constituted into one class within the class of Inspectors or the Deputy Superintendents of Police, as the case may be. The State apprehends that unless there is some encouragement and incentives "nobody will come forward to work in the extremists' field at the level which require to curb the naxal activity". The classification, which is based on mere accident of earlier posting in one of the extremist infested areas, in our considered opinion, is unsustainable. The basis for making a classification must also be reasonable. The basis upon which identification is made for the purpose of the classification itself is required to ensure equality of opportunity. It would have been a different matter altogether had each one of the Inspectors or the Deputy Superintendents of Police, as the case may be, were provided with an opportunity to serve and participate in the field of anti extremist operation in order to enable the Government to assess and recognise one's outstanding work in the field of anti extremist operation. For no fault of theirs some of the officers may have not got the opportunity to work in the field of anti extremist operation. Such of those who had an opportunity due to fortuitous circumstances cannot be allowed to steal a march over their seniors. It could have been perfectly open to the State to make a clear demarcation between the officers who, either due to volitional refusal or deliberate omission, refused to serve and participate in the anti extremist operation and such of those who have availed such opportunity and rendered outstanding work in the field of anti extremist operation. Such a course would have ensured equality of opportunity. Many of the officers due to fortuitous circumstances and for the reasons beyond their control did not get opportunity to serve and participate in the field of anti extremist operation. They had no opportunity whatsoever to serve in the field of anti extremist operation. An opportunity to serve in the anti extremist operation due to fortuitous circumstances cannot be made a basis for grouping them together and to keep other out of the class newly created based upon the outstanding work in the field of anti extremist operation.
31. In our considered opinion, such a classification making a class within the class offends the right of equality of opportunity in matters relating to public employment. The criterion and basis of identification on which the classification is found is not a reasonable one.
32. It is not enough that the classification is founded on an intelligible differentia, which distinguishes those who are grouped together from others. But, the basis upon which classification is made also must not be arbitrary but must be rational. In order to pass the test of equality, two conditions must be fulfilled, viz., (i) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and (ii) that the differentia must have a rational relation to the object sought to be achieved by the Act or the Rule, as the case may be. The differentia, which is a basis of classification and the object of the Act or the Rule are distinct things and what is required is that there must be a nexus between them. The differentia and object are different and it follows that the object by itself cannot be the basis of the classification. It is well settled that mere fact of classification is not sufficient to relieve a statute from the reach of equality class of Article 14. Any classification made based on arbitrary selection would be violative of Article 14 of the Constitution of India. What Article 14 forbids is class discrimination by conferring privileges upon individuals arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred. No doubt, classification for the purpose of legislation is permitted, provided, such a classification is not arbitrary. Therefore, the basis of the classification itself must be a reasonable one and free from arbitrariness. Fortuitous circumstances cannot be made a basis for creating a class out of large number of other persons similarly situated.
33. It is clear that howsoever laudable, the object sought to be achieved itself would not be enough unless the object sought to be achieved is based upon a classification, which itself is a reasonable one. Both the conditions must be fulfilled.
34. It is true, for determination of the purpose or the object of legislation, it is permissible for the Court to look into the circumstances which prevailed at the time when the law was made and which necessitated that passing of law. The reasons that actuated the steps to provide a remedy for the then existing malady can also be looked into.
35. The State in order to curb and curtail the terrorist activities and with a view to encourage the police personnel involved in the anti extremist operations may have thought it fit to introduce accelerated promotion scheme to improve the morale and also encouragement to work more effectively in the anti extremist operations. It is stated that the experience that faced for the last two decades made the State to realise that unless there is some encouragement and incentives none are coming forward to work in the anti extremist operations. The object sought to be achieved is effective participation of the police personnel in anti extremist operations. But that itself would not be enough unless the law passes the test of reasonable classification also. We have already noticed that the impugned amendments do not satisfy the test of reasonable classification. Fortuitous circumstances form the basis for creating a separate class within the class. The classification made upon such basis cannot be treated as a reasonable classification. The artificial division of a homogenous group into two classes for the purpose of promotion to the next higher post itself is erroneous.
36. For the aforesaid reasons, we are of the considered opinion that the impugned amendments are void being violative of the fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India.
37. The view taken by the Tribunal is not vitiated for any reason whatsoever.
38. The writ petitions fail and shall accordingly stand dismissed. No order as to costs.