(1.)THE following Judgment of the court was delivered by
(2.)THIS appeal by the State of Andhra is from the judgment of the High court, Andhra, dated 21/07/1955, on a' certificate under Art. 133(1) (c) of the Constitution.
The respondent joined the Madras Police Force as a Constable on 1/09/1939. He became a permanent Head Constable in 1946 and was promoted to officiate as a Sub-Inspector on 1/10/1947, when his probation commenced. By order dated 24/09/1950, he was declared to have satisfactorily completed his period of probation and was brought to the `A` list with effect from 10/09/1950. He was still merely officiating as a Sub-Inspector, the effect of his being placed in List `A` being that he came into the category of an `approved probationer`, i.e., fit for being confirmed as Sub-Inspector when substantive vacancies arose. On 3/08/1952, the District Superintendent of Police, Krishna, issued an order reverting the respondent to the rank of Head Constable with effect from 14/08/1952, i.e., to the post which he substantively held, for the reason that there was not a sufficient number of vacancies in the post of Sub-Inspectors for being filled by him. It may be mentioned that such reversion was not confined to the respondent alone but extended to 'a very large number of officiating Sub-Inspectors, who were similarly promoters from the rank of Head Constables. The reverted officers petitioned to the Inspector-General of Police and in reply thereto and in further explanation and clarification of the reasons for the reversions the Inspector-General of Police, Madras, issued a memorandum on 15/01/1953, in the following terms: `MEMORANDUM. Sub: Officiating Sub-Inspector Reverting as Head Constables-Seniority over direct recruits Petitions. As direct recruits are recruited against vacancies specially reserved for them and cannot be reverted for want of vacancies, seniority between directly recruited Sub Inspectors and promoted Sub-Inspectors should be determined separately. Their contention that they should not have been reverted in preference to direct recruits is not, therefore, correct. Their reversion as Head Constables is in order.`
The respondent thereafter submitted a memorial to government in which the principal challenge was to the view of the government that the directly recruited Sub-Inspectors formed a category distinct from the promotee-Sub-Inspectors as not being countenanced by the relevant rules relating to the constitution of the Police Establishment. Not having obtained any redress by reason of his memorial, the respondent filed before the High court of Madras a petition under Art. 226 of the Constitution (Writ Petition No. 524 of 1953) and prayed therein that the State of Madras may be directed by the issue of a writ of mandamus to refrain from enforcing the order reverting him as Head Constable but to consider his claim to be confirmed as Sub-Inspector on the basis of his seniority in the list of approved probationers. Balakrishna Iyer, J., who heard the petition allowed it and issued a direction to the State `to forbear from giving effect to the' order of reversion if the petitioner by virtue of his seniority among promoters can be included in the 30 per cent. already referred to`. We shall be dealing in detail with the nature and scope of the rule as to the 30 per cent. referred to here, which formed the basis of the learned Judge's order in its proper place and will not interrupt the narration of the events which have led to the appeal now before us. The State preferred an appeal from this judgment which was transferred to the High court of Andhra after that court. was formed. The learned Judges who heard the appeal differed from the learned Single Judge in his view as to the scope of the rule as to 30 per cent. but dismissed the appeal holding that the government in directing the reversion of the promotee-probationers had not observed strictly the relevant rule as to juniority prescribed in rule 5 of the Service Rules, to which rule we shall refer in due course. The State of Andhra thereafter moved the High court for the grant of a certificate and having obtained it, has filed this appeal.
Though in his petition under Art. 226 filed before the High court of Madras, the petitioner had alleged that his reversion from the officiating post of Sub-Inspector to his substantive post as Head Constable was a reduction in rank within the meaning of Art. 311(2) of the Constitution, i.e., a reduction by way of punishment effected without giving him an opportunity to show cause therefor, this contention was abandoned early in the proceedings before the court and the case has proceeded throughout on both sides on the footing that the reversion was effected solely for administrative reasons and not for any misconduct by way of punishment. Indeed, it may be mentioned that when the respondent was normally due for promotion to the substantive post of Sub Inspector-without reference to the judgment of the High court-he was duly promoted to that post and he now occupies the post of a Sub-Inspector drawing the increments and salary fixed therefor.
Article 311(2) being out of the way. the questions that arise fall under two heads: (1) Was there a violation of the Service Rules when the respondent was reverted as Head Constable? (2) If there was such a violation, do breaches of Service Rules by themselves constitute an infringement of the legal rights of officers to whom they apply, entitling them to seek remedies therefor before courts.
(3.)THE rules on the construction of which the answer to the first point depends are those framed, inter alia, under s. 243 of the government of India Act, 1935, entitled `Rules relating to the Madras Police Subordinate Service`. Rule 3 which relates to recruitment and which was held to be violated, This is followed by rules 4 and 5 which read: `Rule 4. Right of probationers and approved probationers to appointment to vacancies:-A 7 vacancy in any class or category shall not be filled by the appointment of a person who has not yet commenced his probation in such class or category when an approved probationer or a probationer therein is available for such appointment.` `Rule 5. Order of discharge of probationers and approved probationers:(a) THE order in which probationers and approved probationers. shall be discharged for want of vacancies shall be first, the probationers in order of juniority; and ,second, the approved probationers in order of juniority. (b) THE order of discharge laid down in sub rule(a) may be departed from in cases where such order would involve excessive expenditure on traveling allowance or exceptional administrative inconvenience.` THE other rules merely carry out the principles underlying those extracted and do not need to be set out.
To appreciate the points urged before us by the learned counsel for the appellant-State on the proper interpretation of these rules, it is necessary to set out the contentions respectively urged by the two parties in the courts below and how they were dealt with. On behalf of the respondent the points urged were: (1) That on a proper construction of Rule 3, promotee-Sub Inspectors referred to in departmental parlance as rank promotees, as distinguished from those directly recruited were entitled to be appointed to a minimum of 30 per cent. of the cadre strength and that this rule was violated in that at the time of the respondent's reversion the force consisted only of less than 25 per cent. of rank-promotees and more than 75 per cent. of those directly recruited. If the rule as to the proportion of appointments as laid down in Rule 3 had strictly been followed there would have been no necessity for reverting the respondent as Head Constable. `Rule 3. Method of appointment and promotions:(a) Appointment to the several classes and categories shall be made as indicated in Annx. 1.
(2) The 30 per cent. and the 70 per cent. laid down in r. 3 applied only at the stage of the initial recruitment of Sub-Inspectors and that when once that recruitment was made and the probation of the officers started, no difference could under the rules be thereafter made between the two classes of appointees but that both of them constituted one unified force the members of which were entitled to be appointed to substantive posts as full members of the Service solely on the basis of their inter se seniority (apart from misconduct or inefficiency, etc.). The appointment to substantive posts of officers directly recruited in preference to persons like the respondent whose probation had commenced at an earlier date was therefore a violation of r. 4 of the Service Rules. (3) If at any time the cadre strength was reduced by the abolition of temporary posts there might have, to be reversions, but in reverting officers the rule as to juniority laid down by r. 5(a) had to be strictly followed. This rule made no distinction between Sub-Inspectors appointed directly and rank-promotees. Both formed a single category and among them those who had not completed their probation had to be reverted first and thereafter the approved probationers in the order of their juniority. In the present case the respondent urged that approved probationers like himself who were senior to several of the officiating Sub-Inspectors directly recruited had been reverted out of turn in violation of r. 5(a). (4) If in the circumstances stated by the government (which would be mentioned later), the directly recruited Sub Inspectors could not properly be reverted because of the assurances given to them, government were bound to retain all rank-promotee approved probationers as officiating Sub Inspectors until they could be appointed in substantive vacancies as full members thereof. 782
In answer to these contentions the case which the State put forward was as follows:(1) The rule as to the proportion between the rank promotees and direct recruits laid down by r. 3 read with the Annexure, fixed only the maximum percentage of rank promotees. The words `up to, not more than` meant and could in the context mean only, that the maximum proportion of rank-promotees could be only 30 per cent. This was made clear by there being no limitation placed on the proportion of direct recruits. In other words, the 30 per cent. was the ceiling fixed and not any minimum and the rule in effect guaranteed direct recruits a minimum proportion of 70 per cent. There was therefore no violation of this rule when the, proportion of rank promotees fell to a little below 25 per cent. at the relevant date. (2) Even if r. 3 had been strictly followed the respondent would have derived no benefit from the operation of that rule because he was well below the level of rank-promotees who would even then had to be absorbed. It may be mentioned that it was because of this feature that the order of Balakrishna lyer, J., took the form of directing the government`to forbear from giving effect to the order of reversion if the petitioner by virtue of his seniority among promotees can be included among 30 per cent.` (3) On a proper construction of the rules, the proportions laid down in r. 3 applied whether or not at the stage of the initial recruitment, certainly at the stage of appointments to substantive posts, i.e., absorption as full members of the permanent strength of the cadre. It was their further contention based on the above, that for considering confirmations provided for by r. 4 the category of direct recruits had to be treated as a class different from the category of rank-promotees and there was no question of seniority as between members of the two groups but only within each group. On this basis the State government urged that at the stage of absorption governed by r. 4 the rule as to proportion had to be worked out and that consequently there had been no violation of that rule. (4) There had been no violation of r. 5 either, on two grounds (1) based on denying that there was a unified category of Sub-Inspectors and in putting forward that the two classes which made up the Service, viz., direct recruits and rank-promotees formed different categories, and (ii) that even if they formed a single category of officers after their initial appointments, there had been no violation of the rule fixed for reversion by r. 5(a) by reason of the special circumstances of the case which brought their action within the specific provision in r. 5(b). In connection with this last submission it was pointed out that at the time of the police action in Hyderabad a large number of persons were recruited direct as Sub-Inspectors to whom an assurance had been given that they would not be reverted. A large number of such temporary appointments were made and these directly recruited Sub-Inspectors had to be provided with posts when temporary posts were getting abolished. This introduced an administrative problem which could be solved only by reverting the rank-promotees.