High Court · 2012

5. During the pendency of the said writ petition, Commissioner and Secreta ry to the Govt. of Assam, Home & Political Department passed an order dated 10. 12.2010 rejecting the representations of the petitioner. Following were the gro unds for rejection of the claim of the petitioner :- (1) total cadre strength of APS is 336 numbers whereas total cadre strength of APTS is only 18; (2) training imparted to the two cadres is completely different. Training of t he APS officers is more rigorous and relates to field duty. Moreover, the office rs belonging to APS have to serve in various field postings at various levels. On the other hand, APTS officers are from engineering background and only deal w ith communication equipments and methodologies. They do not have experience of l aw and order, crime investigation and managing administration ; (3) ratio of posts between APS and APTS stands at 18.5 :1 i.e. , for every 19 APS officers, only 1 APTS officer can be considered for nomination to IPS. Con sidering the past instances, an APTS officer will never come into the zone of co nsideration ; (4) IPS (Promotion) quota would get somewhat diluted if APTS personnel are nomi nated to IPS.

6. This Court by the judgment and order dated 20.1.2012 partly allowed the writ petition by interfering with the order dated 10.12.2010 and directing recon sideration of the case of the petitioner. This Court did not accept the grounds given in the order dated 10.12.2010 to exclude officers belonging to APTS for n omination to IPS and observed that irrelevant factors were taken into considera tion while leaving out relevant factors from consideration while arriving at th e decision dated 10.12.2010. This Court dealing with each of the grounds taken in the order dated 10.12.2010 held as under :- (cid:28)(21) ties. We will now deal with each of the above contentions of the state authori As regards the contention that the quality of Indian Police Service unde r promotion quota would be diluted in the event APTS officers are also considere d, can be accepted only with a pinch of salt. If it is contended that APTS offic ers 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 wo rld where investigation would also involve highly technical and specialized, kno wledge of communication technology and system, more particularly dealing with vi olation of Cyber laws, dealing with terrorist operatives who operate with the he lp of highly sophisticated communication technologies, such specialized knowledg e would add to the quality and efficacy of the officers in investigating such cr imes. 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 oth er hand, it would add to the vast reservoir of experience of the officers who ar e 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, qua lifications 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 b y the State respondents. (23) The other contention of the State respondents that in view of the fact t hat only about 1 to 4 or 5 vacancies arise against promotion quota for IPS in an y recruitment year, even if APTS as cadre officers are also included in the feed er grade for promotion to the IPS, the APTS officers will not get any opportunit y of getting promotion to IPS, cannot be accepted. This aspect highlighted by th e State Government relates to the chance of promotion. What had in fact been cla imed 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, inspi te 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 quali fied and suitable APTS officer is available, his legitimate claim cannot be igno red, in the event APTS officer is also declared equivalent to APS officer. (24) The other contention of the State respondents that the promotional avenu es of the APS would be unfairly denied whose strength is 336 if the APTS officer s whose cadre strength is only 18 are also considered cannot be accepted. The a uthorities themselves after having taken the view that the APTS officers would n ever get the opportunity to be promoted because of their negligible cadre streng th, again takes the rather contradictory stand that the inclusion of the APTS ca dre would unfairly deny the promotional opportunities of the APS officers. Furth er, 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 bein g unfairly denied. This particular stand of the state respondents also rather sounds discri minatory inasmuch as while the State authorities are concerned about the possibi lity 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 Ge neral 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 24.08.20 10 (Annexure-A/9 to the writ petition). It states that the counter parts of APTS officers in other States of Kerala, Madhya Pradesh, West Bengal and Jammu & Kas hmir had already been promoted to the IPS officers and inclusion of the APTS cad re officers for promotion to the IPS would rather act as a reward for the sincer e and devoted works accomplished by the Assam Police Radio Organization which fo rm 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 ori ginating from such responsible and high ranking officer cannot be easily brushed aside. However, as is evident from the order dated 10.12.2012, there does not s eem to be any consideration of these aspects by the authorities. (cid:29) This Court finally held as follows :- (cid:28)(26) This Court is, therefore, of the opinion that the Government while rejec ting the claim of the petitioner for inclusion of APTS officers for promotion to IPS by declaring APTS to be 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 sett led 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 rele vant factors are taken into consideration and irrelevant factors are not taken i nto consideration for coming to such a decision. On examination of the correctness or otherwise of the decision reached by the St ate Government on 10.12.2010, the Court is of the opinion that there are infirmi ties 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, in inclined to in terfere with the order dated 10.12.2010 issued by the Home(A) Department, Govt. of Assam. Accordingly, in the light of the facts and discussion as stated above, t (27) he 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 A PS 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 w hich are not relevant for coming to their decision as discussed above by issuing a speaking order afresh. The exercise, in the facts and circumstances of the ca se may be completed within a period of 6 (six) weeks from the date of receipt of a certified copy of this order. (cid:29)

7. Following aforesaid judgment of this Court, respondent No.2 passed an order dated 31.8.2012. Respondent No.2 on a detailed examination of the matter, noted the following aspects :- (cid:28)(a) The cadre strength of APS as per cadre schedule dated 01.08.2011 is 566 which includes 133 APS Sr. Grade-I and Grade-II posts, 337 Junior Grade posts, 6 0 as deputation reserve, 13 as training reserve and 23 posts as leave reserve. O n the other hand cadre strength of the APTS is 19, which includes 1 post of DIG, 6 posts of S.P., 4 posts of Addl. S.P. and 8 posts of Dy. S. P. (b) The educational qualification required for entry into APS is Graduate in any discipline from a recognized University. On the other hand the educational qua lification required for entry into APTS is given in Schedule (2) of the APTS Rul es. From a perusal of the same, it appears that the educational qualification pr escribed for APTS officers is specialized in nature. (c) The basic training duration for an APS probationer is 365 days. On the other hand the basic training for an APTS probationer is only 120 days. Thus, it is s een that an APS officer has to undergo a much more rigorous basic training which enables him to perform field duties as a Police officer proficient in Counter I nsurgency Operations, Law & Order duty, Investigation into crimes, etc. These ar e areas which an APTS officer, although higher qualified, may not be able to per form. Moreover, an APS officer, by the time he is eligible for promotion to IPS, acquires vast field experience and becomes operationally suitable to command Ba ttalions, hold charge of the entire Police machinery in a district etc. (cid:29) Opinion of the Director General of Police, Assam was sought for and obtained. Si milarly, views of the Madhya Pradesh Government and the Government of Jammu & Ka shmir were obtained. According to Respondent No.2, the following distinguishing features emerge between APS and APTS :- (cid:28)1. The mode of recruitment to the APS and the APTS are quite different; At the time of recruitment, separate Gradation Lists are maintained for 2. each service and consequential promotion for each service is calculated separate ly on the basis of vacancies in the next higher grades of each services ; 3. The basic Training undergone by officers of both the services is quite d ifferent. It is abundantly clear that an APS officer undergoes a much more rigor ous training, which grooms him to effectively deal with law & order situations, crime issues, handling of men and personnel (Battalion postings), etc, which off icers of the APTS are specialized only in telecommunication matters. (cid:29) In the backdrop of the above analysis, Respondent No.2 concluded that APTS can not be declared as equivalent to APS and consequently no nomination can be made from APTS to IPS. APTS is deemed unsuitable to be a feeder service to IPS and c annot be afforded with a chance to be considered for promotion to IPS. However, DGP, Assam was directed to prepare a concept note for betterment of APTS incl uding increase of promotional avenues and submit the same to the Government f or undertaking a comprehensive cadre review of APTS within a period of six mon ths.

8. Aggrieved, petitioner has again approached this Court by way of the pres ent writ petition challenging the legality and validity of the aforesaid order d ated 31.8.2012 and seeking a direction to consider his case for nomination to IP S by treating APTS at par with APS.

9. According to the petitioner, the grounds on which this Court had earlier interfered with the order dated 10.12.2010 have remained unchanged. Respondent No.2 continued to rely on irrelevant considerations leaving out the relevant fac tors from consideration, which has again vitiated the order dated 31.8.2012. Ad ditionally, it is contended that one of the most relevant factors was the recomm endation of the Committee on Police Reforms for the State of Assam. As per the recommendation of the said Committee, 5% of the vacancies in the Assam Police promotion quota to IPS should be reserved for non APS personnel like APRO. This aspect was not gone into by Respondent No.2.

10. An affidavit has been filed on behalf of Respondent No.2 wherein it is stated that only in a few States of the country officers of the Telecommunicati on Service are inducted into IPS. The methodology followed in those States a re different. In the State of Assam, common gradation list is not maintained and each service has its own gradation list. APS is the only feeder service for pr omotion to IPS. In the State of Assam, APS and APTS are two separate cadres for which the qualifications are different. Nature of duty is also different. In p aragraph 12 of the counter affidavit, it is stated that Government did not accep t the recommendation of the Committee on Police Reforms. Government has cons idered all aspects of the matter including the views of the Committee on Police Reforms and passed a reasoned order on 31.8.2012.

11. Mr.P. Pathak, learned senior counsel submits that the reasons given by the respondents while declining to treat APTS at par with APS so as to enable the members of APTS to be entitled to consideration for nomination and inductio n into IPS are not at all substantive and are peripheral in nature. He submits that difference in the method of recruitment, having separate gradation lists a nd separate training modules can be no ground to come to any reasonable conclusi on that the two services are so in-compatible that no provision can be made a vailable to the APTS, whose strength is admittedly very low compared to APS, to make them entitled for consideration for nomination to IPS. Learned senior c ounsel submits that recommendation of a high power committee constituted so lely for the purpose of police reforms comprising of high level police officials and Home Secretary, including two retired DGPs, cannot simply be brushed aside. He submits that the stand taken is not at all positive and would have a demo ralizing effect on the members of APTS. He, therefore, submits that the matt er requires intervention of this Court to ensure that the legitimate expectatio n of the petitioner is protected.

12. Mr. Ghosh, learned Govt. Advocate, Assam, on the other hand, submits tha t Respondent No.2 had admittedly complied with the judgment and order of this C ourt dated 20.1.2012 and after due consideration of all relevant aspects of th e matter, he has come to a conclusion that APTS cannot be declared as equivalent to APS and, therefore, APTS cannot be declared as a feeder service to the IPS. This decision or the manner of arriving at this decision cannot be said to be arbitrary, unreasonable or irrational. He submits that no ground for interferenc e is made out and, therefore, writ petition should be dismissed.

13. Submissions made have been considered. All India Services Act, 1951 defines All India service to mean Indian A 14. dministrative Service(IAS) or the service known as Indian Police Service (IPS) o r any other service specified in Section 2-A thereof. In exercise of powers con ferred by Section 3 of the aforesaid Act, the Central Government after consultat ion with the Government of the States framed the Indian Police Service (Recruit ment ) Rules, 1954. Rule 4 of the aforesaid Rules provides for method of recruit ment to IPS, which includes by competitive examination and by promotion of subst antive members of a State Police Service. Rule 9 provides for recruitment by pr omotion. It says that Central Government may on the recommendation of the State Government concerned and in consultation with the Union Public Service Commissio n, recruit to the IPS persons by promotion from amongst the substantive members of a State police in accordance with such regulations as the Central Government may after consultation with the State Government and the Commission make.

15. In pursuance of sub-rule (1) of Rule 9 of Indian Police Service( Recruit ment) Rules, 1954 , the Central Government in consultation with the State Gov ernments and the Union Public Service Commission has framed a set of regulati ons called the Indian Police Service ( Appointment by Promotion) Regulations, 1 955.Regulation 2(1)(j)(ii) defines State Police Service to mean principal poli ce service of a State, a member of which normally holds charge of a Sub-Divisio n of a district for purposes of police administration and includes any other d uly constituted police service functioning in a State which is declared by the State Government to be equivalent thereof. Regulation 5 deals with preparation o f a list of suitable officers for promotion to IPS. Detail methodology for prep aration of the list and for consideration of the enlisted candidates is prescr ibed.

16. The fact that the petitioner has a meritorious service record is not disputed. It is also not disputed that after a certain level, there is stagnatio n in the APTS. This is acknowledged by Respondent No.2 himself in his order dat ed 31.8.2012 whereby he had directed the DGP, Assam to prepare a concept note fo r betterment of APTS including increase of promotional avenues to enable Governm ent to undertake a comprehensive cadre review of APTS. From the materials on r ecord, there can be no doubt that APRO, as the name itself suggests, is an inte gral part of the Assam Police set up. Members of APTS comprising APRO provide t he technological back-up/ input to the functioning of the Assam Police machiner y. Though the two services may be different, the fact that they belong to the s ame police fraternity cannot be denied. APTS Rules, 1983 and functioning of APR O would indicate that APTS is under the control and command of Assam Police He adquarters.

17. Government of Assam by notification dated 13.11.2001 had constituted a high level committee to make recommendation on police reforms. The constitution of the Committee was as under :- (cid:28)1. Shri N. Changkakati, IPS Director General of Police (Retired). - Chairman.

6. Shri D. N. Saikia, IAS Secretary, Home Deptt., Shri S. V. Subramanian, IPS Director General of Police (Retired). - Member. -Member. Shri L. Devid, IPS D. G. C. D. & C. G. H. G., Assam -Member. Shri Bipul Kalita, IPS Inspector General of Police (Retired). -Member. Shri Khagen Sarma, IPS -Member Secretary. (cid:29) Inspector General of Police (S. B.) Assam. The Committee after due deliberation submitted its report in June, 2002 on vari ous aspects of police administration in the State. Chapter 19 deals with APRO. Noticing that efficiency of law and order management to a great extent depends upon availability of reliable, secured and high- speed communication between the headquarters and field units, Committee observed that APRO is charged with high responsibilities and the inputs provided by the APRO is of great help to the police and to the administration. APRO has its own training center impartin g training in the field of police wireless communication, electronic telecommun ications, information technology alongwith basic drill, discipline and musketry. Making various recommendation for strengthening infrastructure of APRO , the Committee in paragraph 19.6 of the report stated that APRO personnel are perfo rming police duties alongwith policemen in various ranks and are important for police operations. They also undergo drill, discipline ,training in weaponry in addition to their technical work. Referring to the provision of reserving 5% of the Assam Civil Serivce (ACS) quota for nomination to IAS for meritorious officers belonging to non ACS service, the Committee recommended that like-wise 5% of the vacancies in the Assam Police promotion quota to IPS should be reser ved for non APS personnel like APRO, Home Guards and Fire Service. It was state d that this will remove the stagnation at high level and enhance the morale of these forces. Inspector General of Police (A), Assam in his communication dated 18. 24.8.2010 to the Respondent No.2, while furnishing his views on the representat ion of the petitioner, stated that petitioner is otherwise eligible for nomina tion to IPS provided APTS is declared as equivalent to the principal police ser vice of the State. According to him, declaring APTS as a principal police servic e is not only desirable but is also necessary and it will be a very forward loo king step. Impugned order dated 31.8.2012 refers to the views of DGP, Assam, who, 19. it appears submitted his views in writing on 17.3.2012. The views of DGP, Assa m is as under :- (cid:28)(i) Dr. Umesh Barman is undoubtedly highly qualified in the technical line a nd has natural career aspirations to rise in the Organizational hierarchy. (ii) Once inducted into IPS, they (APTS officers) will be eligible to hold ev en non-technical posts relating to law & order, armed police or criminal investi gations. (iii) In the Army, CRPF, IB etc. officers recruited in the technical line do not gravitate to general posts. (iv) The decision regarding induction of APTS to IPS will need to be carefully t hought through. (cid:29)

20. Therefore, it is evident that the DGP has not ruled out the option o f induction of APTS to IPS, though he is of the view that such a decision will need to be carefully thought through. As it would appear, the police establish ment as such is not opposed to the idea. Though the affidavit filed on behalf of Respondent No.2 says that the G 21. overnment did not accept the recommendation of the Committee on Police Reforms a nd that the views of the Committee was also considered while taking the impugned decision, the order dated 31.8.2012 does not indicate any such consideration. The Committee was a very high level committee as would be evident from the cons titution and its recommendation deserves due consideration. Committees are n ot to be constituted and their reports and recommendations sought for, only t o be rejected or kept in cold storage. Such an approach cannot be appreciated. Therefore, looking into the above and taking a broad view of the matter 22. , it appears that there is merit in the submission made by learned senior counse l for the petitioner that the grounds put forward by Respondent No.2 for dec lining to treat APTS at par with APS does not appear to be substantive and are rather peripheral. There appears to be no valid reason or justification to exc lude APTS for nomination to IPS.

23. However, having said that, it cannot also be overlooked that this is a matter viz., declaring APTS to be equivalent to APS for the purpose of nominati on and induction to IPS, which is within the realm of policy of the Government . In such circumstances, the Court is of the view that it would be desirable if a decision in this regard is taken at the highest level. Considering the iss ue involved, a high level committee may be constituted to look into the enti re gamut of the issue so as to enable the Government to arrive at a reasoned an d an informed decision. Accordingly, Respondent No.1 is directed to constitute such a Committee within a period of 4(four) months from the date of receipt of a certified copy of this order. The Committee so constituted shall submit its rep ort to the Respondent No.1 within a period of 3(three) months from the date of its constitution. The Court hopes and trusts that there will be due deliberati on in the matter at the appropriate level following which an acceptable deci sion will be reached.

24. In view of above, impugned order dated 31.8.2012 is set aside. Depending upon the outcome of the deliberation as indicated above, case of the petitioner may be taken up for consideration thereafter.

25. Writ petition accordingly stands disposed of.