D.A.DESAI - (1.) Petitioner Bhagwatiprasad Gordhandas Bhatt has questioned the correctness of the order Annexure C dated 9th January 1973 so far as his posting in Civil Defence Organisation and his continuity on deputation as per Annexure D dated 24th May 1974 to Civil Defence Organisation; and in the alternative he has prayed for a direction directing the respondents to grant all allowances admissible to him as Police Inspector in the Police Force of the State of Gujarat.
(2.) Facts leading to this petition lie within a narrow compass Petitioner was selected as Sub Inspector of Police in July 1962 and was set to Police Training School at Junagadh for preservice training and he passed the training examination in November 1963. By an order dated 20th December 1969 Annexure A. Petitioner with several others were allotted to Rajkot Range by the second respondent and the petitioner was actually posted in Kutch District. He was appointed as temporary probationary Sub Inspector of Police with effect from 1st January 1954. On his satisfactorily completing the period of probation by an order dated 17th August 1965 petitioner was absorbed as temporary Sub Inspector of Police with effect from 1st July 1965 and was continued in Kutch District. Petitioner served in that capacity at various places in Gujarat State upto January 1973 when he was posted in Baroda city. By the first impugned order dated 9 January 1973 Petitioner was temporarily promoted to officiate as Police Inspector and was posted in Civil Defence Organisation as Instructor Petitioner took over as Instructor in Civil Defence Organisation .In February 1973 the petitioner Judge a representation to the second respondent requesting him to repatriate him in the Police Department but this representation was rejected on 31st March 1973. He made a second representation on 2nd July 1973 and it was submitted through proper channel meaning thereby Director of Civil Defence Organisation who declined to forward it as per his endorsement dated 30th July 1973. On 16th April 1974 the petitioner made a direct representation to the State Government questioning even the legality and validity of his deputation cumtransfer to Civil Defence Organisation and requesting the Government to repatriate him to the Police Department but this remained unattended. In the mean time on 21st January 1975 the second respondent requested the petitioner to fill in two forms marked A and B In column 8 of from A petitioner was called upon to state whether he was willing to continue as Instructor in Civil Defence Organisation and he in terms stated that he did not wish to continue .In form B he in terms stated that he is unwilling to work in Civil Defence Organisation and he must be repatriated to his parent Department Ultimately the petitioner filed this petition.
(3.) Mrs. K. A. Mehta who appeared for the petitioner raised the following contentions at the hearing of this petition: (1) Appointment/deputation/transfer of the petitioner by the impugned orders as Inspector in Civil Defence Organisation is illegal and ultra vires inasmuch as a Sub Inspector of Police recruited and appointed in accordance with the provisions of the Bombay Police Act and Bombay Police Manual cannot either be transferred or sent on deputation to any post or cadre outside the police force. (2) If at all such a transfer or deputation of a member belonging to the Police Force of the State of Gujarat can be made under rule 74 it cannot be done without the consent of the concerned officer. (3)Even if the deputation to Civil Defence Organisation is treated as appointment by transfer a person who is not willing to serve in the Civil Defence Organisation cannot be appointed in C. D. O in view of the provision contained in sec 5 of the Civil Defence Act 1968 (4) Government Resolution dated 21st December 1962 Annexure D is ultra vires the provisions of the Bombay Police Manual as the resolution provides for transfer and/or deputation of the members of the police Force to Civil Defence Organisation without their consent (5)Government Resolution dated 9th September 1971 Annexure G is ultra vires as it provides for not paying any special pay or deputation allowance to he given to those who are sent on deputation to Civil Defence Organisation: (a) it is contrary to the provisions of the earlier resolution dated 7th April 1969 which provides for allowances; (b) it is violative of Article 16 because it denies equality of opportunity in public service in that the allowance is admissible to higher officers and denying simultaneously to the lower ranks. ;