Rajasthan High Court - Jodhpur
Praveen Kumar Parmar vs State Of Rajasthan on 20 May, 2022
Bench: Manindra Mohan Shrivastava, Madan Gopal Vyas
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 3649/2021
Praveen Kumar Parmar S/o Kanti Lal Parmar, Aged About 30
Years, Itwa Falla, Sarada, Udaipur. (Aadhar No.752790731170)
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary Department
Of Home, Government Of Rajasthan, Jaipur.
2. Director General Of Police, Jaipur.
3. Inspector General Of Police (R.a.c.), Jaipur.
----Respondents
For Petitioner(s) : Mr. Moti Singh
For Respondent(s) : Mr. Manish Vyas, AAG
Mr. Kailash Choudhary
HON'BLE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE MADAN GOPAL VYAS
Judgment Reportable 20/05/2022 The challenge in this writ petition is to order dated 10.02.2021 (Annx. 12) as also standing order No.11 of 2019 (Annx. 8).
By this Public Interest Litigation, the petitioner 'a public spirited person' challenges the action of the State whereby the members of the Mewar Bhil Corps (For short 'MBC') are being transferred to other districts in violation of the statutory provisions contained in Rajasthan Scheduled Area Subordinate, Ministerial and Class-IV Service (Recruitment and Other Service Conditions) Rules, 2014 (For short 'the Rules of 2014').
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(2 of 8) [CW-3649/2021] Learned counsel for the petitioner would submit that the purpose and object behind constituting MBC has roots in the historical events of importance. He would argue that the constitution of MBC and framing of separate rules to deal with recruitment and service conditions of members of MBC are aimed towards protecting the inhabitants of the tribals in tribal Districts namely Udaipur, Dungarpur, Banswara, Pratapgarh, Chittorgarh, and parts of districts Pali, Sirohi and Rajsamand. His submission is that the rule specifically prohibits the transfer of such members of MBC in another parts of the State and the object behind such provision is that the MBC protects the tribes in the tribal areas.
His next argument is that the State until the year 2019 had not disturbed the posting of MBC by sending them in any area other than tribal area, but in the year 2019 a circular No. 11 of 2019 (Annex.8) was issued to open the gates for shifting the members of MBC by transfer and posting to other areas of the State, which is in complete violation of Rule 31 of the Rules of 2014.
The alternative submission of learned counsel is that even if it is assumed that some limited power is reserved in the hands of the State to deploy the members of MBC in non-tribal districts, such postings/deployment in the strict sense has to be for specific purpose and for limited period and the same cannot be in the nature of a permanent posting, else it no longer will remain deployment, but will become permanent transfer in non-tribal areas.
On the other hand, learned State counsel would submit that though ordinarily, protection under Rule 31 of the Rules of 2014 is available to members of MBC and they are not transferred and (Downloaded on 26/12/2022 at 04:49:18 AM) (3 of 8) [CW-3649/2021] posted outside their cadre in non-tribal areas, but such provision does not restrict the statutory power of the State as conferred in Section 34 of Rajasthan Police Act, 2007 (for short 'the Act of 2007') in so far as exigency of service are necessary. He would submit that Section 34 of Act of 2007 confers power on the State to deploy police officers anywhere in the State. The members of MBC are also members of the police force of the State and not outside the same. Therefore, the provision contained in the Rule 31 of the Rules of 2014 would not constitute bar as long as State exercises its power of the Act of 2007 to deploy the police officers.
Reliance has been placed on Division Bench's Judgment of this Court in the case of State & Ors Vs Surendra Khokhar (Kumar) & Ors. (D.B. Spl. Appl. Writ No. 610/2021), decided on 29.11.2021.
Heard learned counsel for parties, perused the record and also gone through the relevant rules placed before us.
Constitution of MBC is contemplated under Rajasthan Rules 2014. The scheme of the Rule is to constitute services under MBC for tribal areas in the State. The Act provides for provisions with regard to eligibility criteria, appointment, recruitment, reservation probation, confirmation & scales of pay. For ready reference, Rule 31 of the Rules of 2014 reads as under:
"31 Appointment to the service.- Appointment to post(s) in the Service by direct recruitment or by promotion, as the case may be, shall be made by the Appointing Authority on occurrence of substantive vacancies from the candidates selected under rule 25 in order of merit and by promotion from the persons selected under rule 29 of these rules. The persons so appointed shall be transferable from one place to the other within the Scheduled Areas irrespective of the place of appointment taking the entire Scheduled Area as a Unit i.e. the entire Scheduled Area shall be the closed cadre. When a person so appointed cannot be transferred out side (Downloaded on 26/12/2022 at 04:49:18 AM) (4 of 8) [CW-3649/2021] this closed cadre in any capacity which also includes deputation & reverse deputation."
Among various stipulations contained in the Rules of 2014, one of them is that when a person is so appointed in the cadre which is of closed nature, he cannot be transferred outside his closed cadre in any capacity, which also includes deputation and reverse deputation. A fair and logical interpretation of the provision leave no manner of doubt that the member of the closed cadre so appointed under the aforesaid Rules of 2014 cannot be transferred outside his closed cadre in any capacity. Not only this but also it goes to the extent of prohibiting deputation and also reverse deputation. This would mean that neither the members of the closed cadre can be sent outside their cadre nor the members of any other cadre could be sent by way of deputation against any post in the closed cadre under the Rules of 2014. Therefore, the rules does not permit transfer or deputation both.
However the State has placed reliance upon Section 34 of the Act of 2007. The aforesaid provision of the Act of 2007 being relevant and stated to be the source of authority for the State to deploy member of MBC as well, is quoted as below:
"34 iqfyl vf/kdkjh dks jkT; ds fdlh Hkh Hkkx esa rSukr fd;k tk ldsxk& izR;sd iqfyl vf/kdkjh dks fdlh Hkh le; jkT; ds fdlh Hkh Hkkx esa iqfyl vf/kdkjh ds :i esa rSukr fd;k tk ldsxkA"
A bare reading of the provision would clearly show that the State is empowered under the law to deploy a police officer in any part of the State. As to who would be a "Police Officer" has been defined under Section 2 (>) of the Act of 2007, which is also quoted as follows:
"(>)'iqfyl vf/kdkjh' ls jkT; ds iqfyl cy dk dksbZ lnL; vfHkizsr gS ;" (Downloaded on 26/12/2022 at 04:49:18 AM)
(5 of 8) [CW-3649/2021] The definition of "Police Officer", for the purposes of the Act of 2007 is very wide and includes any member of the police force of the State.
Undeniably, the members of MBC too form part of the police force of the State and they do not stand outside the police force of the State.
If that be so, subject to the protection, which has been granted under Rule 31 of the Rules of 2014, deployment would be permissible under Section 34 of the Act of 2007.
Though learned counsel for the petitioner would submit that in view of specific prohibition contained in Rule 31 of the Rules of 2014 even deployment would not be permissible in respect of members belonging to the cadre gone under Rules of 2014, we are of the view that the provisions of the Act of 2007 stand on higher pedestal than the Rules of 2014, which have been framed by Governor in exercise of powers conferred under proviso to Article 309 of the Constitution of India.
Only to answer the argument, it has to be held that even if it is assumed that there is some conflict between the provisions contained in Rule 14 and 31 of the Rules 2014 and Section 34 of the Act of 2007, the provisions of the rules will have to yield to the provisions of the Act.
The proposition of law that Rules are subservient to legislative enactment has been considered by the Supreme Court in the case of Union of India and Others Versus Somasundaram Viswanath and Others, (1989) 1 Supreme (Downloaded on 26/12/2022 at 04:49:18 AM) (6 of 8) [CW-3649/2021] Court Cases 175 wherein, the conflict between the Rules and the Act was considered as below:
"6. It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature the law made by the appropriate legislature prevails."
In another judgment in the case of A.B. Krishna and Others Versus State of Karnataka and Others, (1998) 3 Supreme Court Cases 495, it was propounded by the Supreme Court as below:-
"6. It is primarily the legislature, namely, Parliament or the State Legislative Assembly, in whom power to make law regulating the recruitment and conditions of service of persons appointed to public services and posts, in connection with the affairs of the Union or the State, is vested. The legislative field indicated in this Article is the same as is indicated in Entry 71 of List I of the Seventh Schedule or Entry 41 of List II of that Schedule. The Proviso, however, gives power to the President or the Governor to make Service Rules but this is only a transitional provision as the power under the proviso can (Downloaded on 26/12/2022 at 04:49:18 AM) (7 of 8) [CW-3649/2021] be exercised only so long as the legislature does not make an Act whereby recruitment to public posts as also other conditions of service relating to that post are laid down."
However we are of the view that there is no conflict as such in the present case between the rules and the provisions of the Act. The Rule prohibits transfer of the members of the closed cadre to any other cadre. It further restricts deputation and even reverse deputation. However deployment as understood under Section 34 of the Act is different as the State in eventualities may deploy a police officer at other places. In the department of Police, the functions, which are required to be performed by the Police Force are peculiar and need of police personnel/police officer or of a Company of Battalion may arise in any part of the State to deal with specific situations, which includes many a times emergency situation like disaster management, natural calamities, riots and other serious law and order situations.
The purpose of Section 34 of the Act is to empower the authorities to deploy police officers wherever need is felt for any of the reasons stated above, which is not exhaustive but only illustrative.
In that sense, deployment is different from transfer from one cadre to other cadre and even from deputation. The deployment necessarily would mean dealing with certain situations without meaning such deployment to be permanent affair in all times to come.
The circular No. 11 of 2019, which has been issued by the Government, therefore, cannot be said to the contrary to the (Downloaded on 26/12/2022 at 04:49:18 AM) (8 of 8) [CW-3649/2021] provisions of the Rules, but only to give effect to the provision contained under Section 34 of the Act of 2007.
Learned counsel for the petitioner raised an apprehension that the language of impugned order dated 20.02.2021 indicates that such a deployment is going to be permanent affair for all times to come and therefore practically the members of the MBC stand transferred to non-tribal area permanently.
State counsel would submit that such deployments cannot be in the nature of permanent transfer, but only for limited purposes. The order passed by State Government, therefore has to be understood in that manner only. The impugned order shall not mean permanent transfer of the members of MBC from their parent cadre (closed cadre) to any other cadre in the district in which they have been deployed. Further, it shall not even be treated as deputation. The deployment of the members of MBC shall not in any manner adversely affect their service terms and conditions to which they are entitled being member of MBC having been appointed to cadre post governed by the provisions of the Rules of 2014.
Subject to above observations, this petition is dismissed. (MADAN GOPAL VYAS),J (MANINDRA MOHAN SHRIVASTAVA),ACJ 48-nidhi/neha-
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