Gauhati High Court
Dr. Umesh Barman vs The State Of Assam And Ors on 20 January, 2012
Author: N.Kotiswar Singh
Bench: N.Kotiswar Singh
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM:NAGALAND:MEHGALAYA:MANIPUR:
TRIPURA: MIZORAM AND ARUNACHAL PRADESH)
PRINCIPAL SEAT AT GUWAHATI
WRIT PETITION (C) NO. 4555 OF 2010
Dr. Umesh Barman
Superintendent of Police(Communication),
Assam Police Radio Organisation,
Message Contral Centre, Dispur, Guwahati-6.
... Petitioner
-VERSUS-
1. The State of Assam, represented by the
Chief Secretary to the Govt. of Assam,
Dispur, Guwahati-6.
2. The Principal Secretary to the
Govt. of Assam, Home & Political Department,
Dispur, Guwahati-6.
3. The Director General of Police,
Assam, Ulubari, Guwahati-7.
4. The Inspector General of Police
(Communication) & Director of Police
(Communication), Assam, Ulubari, Guwahati-7.
5. The Secretary, UPSC, Dholpur House,
Shajahan Road, New Delhi-110069.
6. Ministry of Home Affairs, North Block,
Central Secretariat, New Delhi-110001.
.... Respondents.
BEFORE THE HON'BLE MR.JUSTICE N.KOTISWAR SINGH For the Petitioners ::
Mr.P.Pathak, Sr. Advt.
Mr. P.Barman, Advocate Mr.S.Changkakati, Advocate For the respondents :: Mr. H.K.Barman, GA Assam.
Mr.T.Islam, CGSC
Date of hearing :: 01.12.2011
Date of Judgment & Order :: 20th January,2012.
JUDGMENT AND ORDER (CAV) By this writ petition, the petitioner who is serving as Superintendent of Police (Communication), Assam Police Radio Organisation, Message Control Centre, Dispur, is seeking for a 2 direction to the respondents, inter-alia, to initiate steps for declaring the Assam Police Tele-communication Service (APTS) to which the petitioner belongs, as equivalent in status and responsibility to that of the Assam Police Service(APS) for the purpose of consideration for promotion to Indian Police Service.
[2] The petitioner entered service as Deputy Superintendent of Police (Communication) in the Assam Police Radio Organisation in the Assam Police Tele-Communication
Service Cadre as a direct recruit through the Assam Public Service Commission w.e.f. 2.5.1986. Subsequently, the petitioner was promoted to the senior scale of APTS cadre w.e.f. 26.8.1991 and was confirmed vide order dated 21.3.1994. Subsequently, the petitioner was posted as Superintendent of Police( Communication) vide Order No. HMA 456/83/76 dated 18.12.1998 and till date, the petitioner is continuing in the said post. The petitioner also states that he was awarded PH.D. degree for his thesis on "Radio Frequency Resonance of Plasma" in the year 2001 by the Gauhati University. The petitioner also states that prior to joining the APRO he had served as a teacher in a higher secondary school as well as an Engineering Assistant in All India Radio and also in the Television Rely Centre, Tezpur and thereafter, as Inspector (OG), Customs and Central Excise, Tezpur.
[3] The main contention of the petitioner in this writ petition is that as per relevant provisions of the Indian Police Service (Appointment by Promotion) Regulations, 1955, hereinafter referred to as IPS Regulations, members of the principal State Police service are eligible for nomination for appointment to Indian Police Service. As per Regulation 2(j) (ii) of the IPS Regulations, the State police service means:
"the principal police service of a state, a member of which normally holds charge of a sub-division of a district for purpose of police administration and includes any other duly constituted police service functioning in a state which is declared by the State Government to be equivalent thereto."3
It has been further provided under Regulation 5(3) of the IPS Regulations that:-
"the Committee shall not consider the cases of the members of the state police service who have attained the age of 54 years on the first day of January of the year for which the select list is prepared."
Further, it has been provided in Regulation 5(2) that :-
" the committee shall consider for inclusion in the said list the cases of members of the state police service in the order of seniority in that service of a number which is equal to three times the number referred in sub- regulation (1).
Provided also that the committee shall not consider the case of a member of the state police service unless on the first day of January of the year for which the select list is prepared he is substantive in the state police service and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Superintendent of Police or in any other post or post declared equivalent thereto by the State Government."
[4] Thus, according to the petitioner, in view of the above provisions of the regulations quoted above, a candidate has to be a member of the principal police service and any other duly constituted police service functioning in the State which has been declared by the State Government to be equivalent thereto, not holding a post lower than that of a DSP or in any other post or posts declared equivalent thereto by the State Government and the candidate has to complete not less than eight years of continuous service in the said post of DSP or any other post or posts declared equivalent thereto by the State Government. The contention of the petitioner is that even though the petitioner fulfills all the qualifications necessary for being eligible to be considered for nomination to the IPS, since he has served in the post of DSP and SP in the Assam Police Radio Organisation for more than 24 years, however, since the Assam Police Telecommunication Service is not treated as being equivalent to the principal State police service i.e. APS, the case of the petitioner could not be considered for nomination to IPS. Therefore, unless 4 the State Government declares the APTS as being equivalent to APS, the case of the petitioner for nomination to IPS can never be considered.
[5] In view of the above position, the petitioner submitted a representation to the respondent No.2 on 17.3.2010 to take necessary steps for declaring APTS as equivalent in rank and status to that of members belonging to the principal service so as to enable him and other similarly situated persons in APTS to tender their names for nomination for IPS as per the IPS Regulations. Having received no response to the aforesaid representation, the petitioner again submitted another representation on 17.5.2010. However, the same had not been attended to.
[6] It is the case of the petitioner that in pursuance of the aforesaid regulation of the IPS, few other states viz. Kerala, Madhya Pradesh, West Bengal, Kerala, Jammu & Kashmir have declared their respective services in the police Telecommunication units as equivalent to the State Police service. Consequently, the members of the telecommunication service in those states have become eligible for nomination to IPS under the relevant provisions of IPS Regulations. In this regard, the petitioner has drawn attention of this Court to Government Order issued by the State of Kerala under GO. Ms No.651/79/GAD dated Trivandrum 15.12.1979 declaring that service in the telecommunication unit of the State police shall be equivalent to the principal police service in the State. By the said order, the Government of Kerala declared under Regulation 5 of the IPS Regulations that the post of DSP and above in the Telecommunication Unit will be equivalent in status and responsibility to that of the DSP of the principal police service. (Annexure-A/3 to the writ petition). The petitioner has also produced a document before this Court at the time of hearing which shows that officers from the telecommunication services have been appointed as IPS officers in the State of Madhya 5 Pradesh and West Bengal, a copy of which is placed on record and marked as "Document-X".
[7] The petitioner contends that as per service rules of both APTS and APS, there is hardly any difference in the appointment procedure as well as the requisite qualifications for appointment to APTS and APS. The petitioner contends that the duties performed by the cadres/members of APTS and APS cannot be unequal. Members of both the services perform duties which are vital for maintaining the law and order for the State and it cannot be said that the duties performed by one is superior to another and duties performed by these two services go hand in hand.
[8] In response to the aforesaid claim of the petitioner, the State respondents have filed an affidavit enclosing a speaking order issued on 10.12.2010 by the Home(A) Department, Govt. of Assam by which the representations submitted by the petitioner on 17.3.2010 and 17.5.2010 were stated to have been considered and disposed of.
[9] In the aforesaid order dated 10.12.2010 issued by the Home (A) Department, Govt. of Assam, the State Government after considering the representations filed by the petitioner stated, inter-alia, that the training imparted to the two cadres of APTS and APS are completely different. It is stated that the APS officers undergo a far more rigorous training for field duty. Moreover, in the 15 years of service experience that is currently required to become an S.P. level officer, an APS officer gathers varied experience as DSP(HQ), DSP(Security), SDPO, DSP (Border), DSP (Law & Order), DSP (Traffic), etc and again the same experience at the level of Additional SP apart from serving in the Police Battalions. Such experience in the field grooms the APS officers to run the district police administration efficiently. On the other hand, the APTS officers are only from engineering background and during entire service career, they only deal with communication 6 equipments and communication methodologies. They are bereft of any experience on the Law & Order, crime and administrative fronts, which no amount of training can impart. Therefore, the State Government felt that the quality of IPS (Promotion) quota would get somewhat diluted.
[10] It was also stated in the aforesaid order dated 10.12.2010 that the ratio of posts between the APS and APTS stands at 18.5:1. Therefore, if the claim of the petitioner is to be accepted, for every 19 APS officers who are promoted to the IPS, only one APTS officer can be considered for promotion to the IPS. However in a calendar year, never at any point has 20 vacancies arisen. The number of vacancies in the IPS in a calendar year for promotion for APS usually varies between 1 and 4 or 5. In view of this, the aforesaid order states that an officer of the APTS cadre will never get an opportunity of getting promoted to IPS.
[11] It was also stated in the aforesaid order dt. 10.12.2010 that since cadre strength of the APS is 336 as against 18 of the APTS cadre, it would be unfairly denying promotional benefits to the APS officers.
[12] Primarily because of the aforesaid reasons, the State Government declined to entertain the request of the petitioner for treating the APTS service to be equivalent to APS for the purpose of promotion to IPS.
[13] In response to the aforesaid affidavit filed by the State respondents, the petitioner filed an affidavit-in- reply wherein the petitioner has contended that the affidavit filed by the State respondents is perfunctory in nature without answering any of the contentions raised by the petitioner.
The petitioner contends that even though the Union Public Service Commission had written to the State Government to redress the grievance of the petitioner and another person raised in the representation vide letter dated 13.1.2011, the aforesaid 7 order dated 10.12.2010 was issued by the Home(A) Department, Govt. of Assam prior to the intimation by the UPSC for examination of the claim of the petitioner which indicates that the aforesaid order dated 10.12.2010 was issued without application of mind.
[14] It was also contended by the petitioner that the Inspector General of Police (A), Govt. of Assam, had written to the Principal Secretary to the Govt. of Assam, Home & Political Department, Dispur, Guwahati on 24th August, 2010 whereby he also, after examining the representation of the petitioner had offered his views to the effect that "if Assam Police Tele-Communication Service (APTS) is declared as a Principal Police Service of the State it will boost up the moral of the APRO personnel as a whole and nomination to the IPS will be a just reward for their sincere and devoted works. APRO is the backbone of the State government's communication systems. Therefore, the demoralization of this personnel can have far reaching consequences on the efficiency and effectiveness of the Government. Government of Kerala, Madhya Pradesh, West Bengal, Jammu and Kashmir have already promoted their Tele-
communication unit personnel to the IPS.
Therefore, declaring the APTS as a Principal Police Service is not only desirable but also necessary. Besides, it will be a very forward looking steps which the Government could be proud of. If this happens, the promotional avenues of the remaining officers will be considerably enhanced, which in turn, will have a positive impact on the functioning of the organization.
As per the provision in the Indian Police Service (Appointment by Promotion) Regulation, 1955, Dr. Barman is eligible for nomination to IPS, provided the APTS is declared as equivalent to the Principal Police Service of the State. His present age is 51 and 2 days as on first January, 2010. Also considering his experience and qualifications, we feel that he is eminently suitable for the said nomination."
[15] The petitioner, therefore, contends that the authorities concerned while issuing the order dated 10.12.2010 did not take into consideration the relevant factors and without proper application of mind and on certain flimsy grounds had issued the order and as such, the same is liable to be interfered with. The 8 petitioner also contends that APTS is not having any separate training programme. All the direct recruits for DSP in the APS and APTS undergo the same training programme in the Police Training College at Dergaon, Assam, together. The petitioner vehemently contests the contention of the Home Commissioner that the APTS officers are only from engineering background and during their entire service career they only deal with communication equipments and communication methodology and/or bereft of any experience on the law and order, crime and administrative fronts as absolutely misleading and baseless. It is contended by the petitioner that the APTS personnel have to undergo studies of various subjects namely:
(i) Major Laws, (a) IPC, (b) Cr.PC (c) Evidence Act.
(ii) Minor Acts & Local Laws,
(iii) Assam Police Manual,
(iv) Criminology and Police Science;
Moreover, there is an elaborate Outdoor Programme and/or training on various subjects like, physical training, obstacle/ apparatus, drill without arm, drill with cane, drill with arms, extended order drill, sword drill, guard mounting drill, sentry drill, guard of honour, ceremonial drill, instructional practice, mob control, weapon training, F.C. and tactics, map reading, VIP duties and route lining, range classification, games/UAC (as per choice) and outdoor final examination.
The petitioner, therefore, contends that a bare perusal of the aforesaid syllabus which the APTS officers have to undergo during their training with direct recruit APS officers proves beyond any reasonable doubt that they are competent to deal with any situation whether it is law and order or relating to crime and administrative front and, as such, equally eligible with the APS personnel for nomination to IPS under the provisions of the Indian Police Service (Appointment by promotion) Regulations, 1955 and the same has been categorically admitted by the Inspector General of Police (A) Assam in his communication dated 24.8.2010 made to the Principal Secretary to the Government of Assam, Home & Political Department.
9[16] The petitioner, therefore, submits that the decision of the State authorities in rejecting the claims of the petitioner for declaring the APTS as equivalent to APS for the purpose of nomination to IPS is arbitrary, unreasonable and is liable to be interfered with.
Accordingly, the petitioner urges that considering all the facts as submitted by him as above, the State authorities may be directed to declare the APTS as equivalent to APS as required under Regulation 5 of the IPS Regulations so as to enable him and other eligible candidates for nomination to IPS. The petitioner also contends that it would be not only unjust and improper, but illegal to deprive him of the promotional avenues by arbitrarily refusing the declaration of equivalence of the said two services.
[17] While we consider the claim of the petitioner, it has to be noted that whether any particular service under the State is to be declared equivalent to any service for the purpose of promotional matters would come in the realm of policy matter. This would be within the domain of the concerned executive and the legislature to decide. The Court while exercising its jurisdiction under Article 226 or judicial review cannot decide as to whether any policy is good or desirable in the absence of any violation of any fundamental right. The Supreme Court in K. Narayanan v. State of Karnataka, 1994 Supp (1) SCC 44 held that, "5. ............ A policy decision taken by the Government is not liable to interference, unless the Court is satisfied that the rule-making authority has acted arbitrarily or in violation of the fundamental rights guaranteed under Articles 14 and
16. .............."
Therefore, in the present case also, whether APTS should be declared to be equivalent to APS would be within the wisdom of the State Government and as such, no direction could be issued to the State Government for declaring APTS as equivalent to APS. It is also to be noted that the writ petitioner has no vested right, much less any enforceable right, to claim declaration of equivalence of APTS with that of APS.
10In view of the above, this Court obviously cannot issue any direction to the State Government for declaring APTS as equivalent to APS for the purpose of nomination to IPS.
[18] Having said so, it would not be, however, without jurisdiction for this Court to examine, if, while making any decision as to declaring or not declaring APTS as equivalent to APS, it is found that the aforesaid decision of the authorities has been arrived at by not properly taking into consideration the relevant factors. This Court can always invoke its power of judicial review if any authority has arrived at any decision without taking into consideration the relevant materials, factors and was done arbitrarily. One need not go through numerous decisions of the Apex Court affirming the aforesaid principle and this Court would refer to one such decision only. In Union of India v. Lt. Gen. Rajendra Singh Kadyan, (2000) 6 SCC 698, it was held by the Supreme:
"29. ....................It is a well-known principle of administrative law that when relevant considerations have been taken note of and irrelevant aspects have been eschewed from consideration and that no relevant aspect has been ignored and the administrative decisions have nexus with the facts on record, the same cannot be attacked on merits. Judicial review is permissible only to the extent of finding whether the process in reaching decision has been observed correctly and not the decision as such............"
[19] We may now examine the present case from the aforesaid perspective, as to whether the decision taken by the State Government on 10.12.2010 by which the State Government had rejected the claim of the petitioner for declaration of APTS as equivalent to APS for the purpose of nomination to IPS, would require interference from this Court or not.
[20] As is evident from the aforesaid order dated 10.12.2010 issued by the Home(A) Department, several factors have been taken into consideration, which may be briefly put herein under:-
11(i) The training imparted to two cadres is completely different. The APS officers have to undergo far more rigorous training for field duty. The APS officers have to put in 15 years of service experience to reach the level of Superintendent of Police through various field posting. On the other hand, APTS officers are only from engineering background and deal with only communication equipment and communication methodologies and bereft of any experience on the law and order, crime and administrative fronts, which no amount of training can impart. Therefore, according to the State respondents, quality of IPS promotion quota would be somewhat diluted.
(ii) The ratio of post to APS and APTS cadre stands at 18.5: 1. Therefore, for every 19 APS officers, only one APTS officer can be considered for promotion. On the other hand, never at any point of time, 20 vacancies had arisen in any calendar year. On the contrary, only about 1 to 4 or 5 vacancies arrived in the promotion quota. Therefore, APTS cadre could never get an opportunity to be considered for promotion even if they are declared equivalent to APS.
(iii) The cadre strength of the APS is 336 as against 18 of the APTS. Thus, if the APTS cadre is also included for the purpose of promotion to IPS, it would unfairly deny promotional benefits to the APS officers.
[21] We will now deal with each of the above contentions of the state authorities.
As regards the contention that the quality of Indian Police Service under promotion quota would be diluted in the event APTS officers are also considered, can be accepted only with a pinch of salt. If it is contended that APTS officers have hardly any field experience on law and order and administrative fronts, it may be equally counter argued that APS officers hardly have any knowledge on the communication equipments and telecommunication methodologies. In today's world where investigation would also involve highly technical and specialized 12 knowledge of communication technology and system, more particularly dealing with violation of Cyber laws, dealing with terrorist operatives who operate with the help of highly sophisticated communication technologies, such specialized knowledge would add to the quality and efficacy of the officers in investigating such crimes. Therefore, in such a situation, it could not be said that the knowledge of telecommunication in which the APTS are specialized is not relevant. On the other hand, it would add to the vast reservoir of experience of the officers who are required to deal with such situations in investigation which are becoming more frequent.
[22] Further it is also the petitioner's contention that even though the APTS officers may lack in field experience as in the case of other APS officers, qualifications and training of the APTS are also akin as claimed by the petitioner in his affidavit-in-reply as mentioned above to which there has been no denial by the State respondents.
[23] The other contention of the State respondents that in view of the fact that only about 1 to 4 or 5 vacancies arise against promotion quota for IPS in any recruitment year, even if APTS as cadre officers are also included in the feeder grade for promotion to the IPS, the APTS officers will not get any opportunity of getting promotion to IPS, cannot be accepted. This aspect highlighted by the State Government relates to the chance of promotion. What had in fact been claimed by the petitioner is the opportunity to be considered for promotion to the IPS. The authorities seem to have been confused between the chance of promotion and the avenues of promotion. It may be noted that in any particular year, inspite of vacancies being available, it may so happen that none of the APS officers either are not qualified or eligible or not suitable, in which event, if a qualified and suitable APTS officer is available, his legitimate claim cannot be ignored, in the event APTS officer is also declared equivalent to APS officer.
13[24] The other contention of the State respondents that the promotional avenues of the APS would be unfairly denied whose cadre strength is 336 if the APTS officers whose cadre strength is only 18 are also considered cannot be accepted. The authorities themselves after having taken the view that the APTS officers would never get the opportunity to be promoted because of their negligible cadre strength, again takes the rather contradictory stand that the inclusion of the APTS cadre would unfairly deny the promotional opportunities of the APS officers. Further, it is to be clarified that the petitioner is merely claiming the right to be considered for promotion. This right to be considered if granted can never come in the way of the APS for being considered for promotion to IPS, much less being unfairly denied.
This particular stand of the state respondents also rather sounds discriminatory inasmuch as while the State authorities are concerned about the possibility of unfair denial of opportunity for promotion to the APS officers, they do not seem to be concerned about the absence of the higher promotional avenues to the APTS officers which the APS officers are enjoying. In fact, the Inspector General of Police (A) of the Assam Police Headquarter had recommended to the State authorities for declaring the APTS as a part of principal state police service as evident from the letter of the Inspector General of Police (A) dated 24.8.2010 (Annexure-A/9 to the writ petition). It states that the counterparts of APTS officers in other States of Kerala, Madhya Pradesh, West Bengal and Jammu & Kashmir had already been promoted to the IPS officers and inclusion of the APTS cadre officers for promotion to the IPS would rather act as a reward for the sincere and devoted works accomplished by the Assam Police Radio Organisation which form the back bone of the State Governments' telecommunication system. The denial of the promotional avenues on the contrary would demoralize the personnel of the APRO and can have far reaching consequences on the efficiency and effectiveness of the Government. Therefore, this recommendation of the Police Headquarter originating from such 14 responsible and high ranking officer cannot be easily brushed aside. However, as is evident from the order dated 10.12.2012, there does not seem to be any consideration of these aspects by the authorities.
In this regard, one may recollect the observation of the Apex Court on the desirability of creating promotional avenues in Council of Scientific and Industrial Research v. K.G.S. Bhatt, (1989) 4 SCC 635:
"9..............................It is often said and indeed, adroitly, an organisation public or private does not "hire a hand" but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well.1 Every management must provide realistic opportunities for promising employees to move upward. "The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors." 2 There cannot be any modern management much less any career planning, manpower development, management development etc. which is not related to a system of promotions.3 "
1. See Principles of Personnel Management, Flipo Edwin B, 4th Edn.
2. See Personnel Management, Dr. Udai Pareek, p.227
3. See Management of Personnel in Indian Enterprise, Prof. N.N.Chatterjee, Ch.12, p128.
[25] It is thus observed that there is no discussion of the aforesaid aspects in the order dated 10.12.2010 issued by the Home (A) Department, Govt. of Assam.
It is also seen from the case records that Rule was issued by this Court on 16.8.2010 and records were called for. Yet, no records were made available before this Court for examination at the time of final hearing of this matter.
[26] This Court is, therefore, of the opinion that the Government while rejecting the claim of the petitioner for inclusion of APTS officers for promotion to IPS by declaring APTS to be 15 equivalent to APS has not taken into consideration the various relevant factors/ considerations and on the contrary, has taken into consideration certain irrelevant factors as discussed above. It is now well settled law that while any administrative authority takes any decision the same must be taken fairly and without any arbitrariness which can happen only if the relevant factors are taken into consideration and irrelevant factors are not taken into consideration for coming to such a decision.
On examination of the correctness or otherwise of the decision reached by the State Government on 10.12.2010, the Court is of the opinion that there are infirmities in the decision making process i.e. by way of not considering the relevant factors and by considering factors which are not relevant as discussed above. As such, this Court in exercise of its power of judicial review, is inclined to interfere with the order dated 10.12.2010 issued by the Home(A) Department, Govt. of Assam.
[27] Accordingly, in the light of the facts and discussion as started above, the respondents are directed to review and reconsider their decision as contained in order dated 10.12.2010 as to whether APTS should be declared equivalent to APS or not for the purpose of nomination to IPS by taking into consideration all the relevant factors, more particularly, which have been referred to by the writ petitioner in the present writ petition and without taking into consideration which are not relevant for coming to their decision as discussed above by issuing a speaking order afresh. This exercise, in the facts and circumstances of the case may be completed within a period of 6 (six) weeks from the date of receipt of a certified copy of this order.
The writ petition is, accordingly, allowed to the extent indicated above. However, in view of the facts and circumstances of the case, no order as to costs.
JUDGE Opendro