2007 Supreme(SC) 394

2007(3) Supreme 69
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
A.K. Mathur and Tarun Chatterjee, JJ.
Govt. of A.P. & Anr.—Appellants
versus
G. Jaya Prasad Rao & Ors.—Respondents
Civil Appeal No. 7384-7388 of 2003
Decided on 21-3-2007
Counsel for the Parties :
For the Appellants : R. Sundaravardan, Sr. Advocate, P. Vinay Kumar, Mrs. D. Bharathi Reddy, Advocates.
For the Respondents : M.L. Verma, A.T.M. Rangaramanujam, Sr. Advocates, R. Chandra Shekar Reddy, Satish Galla, Satya Mitra, Venkateshwara Rao Anumolu, Mrs. Gouri Karunadas, Ms. Anu Gupta, Ms. Rani Jethmalani, Advocates.

IMPORTANT POINT
Amendment of the Andhra Pradesh Police (Civil) Service Rules and insertion of Note 2 in Rule 3 as well as proviso to Rule 6 of the Rules cannot be declared ultra vires of Articles 14 & 16 of the Constitution of India.

Headnote:(i) SERVICE LAW—Andhra Pradesh Police (Civil) Service Rules, 1998—Rule 3, Note 2; Rule 6, Proviso as inserted by G.O.Ms. No. 267, Home (Police E) Department—Validity of—Accelerated promotion on account of performance in extremist areas—Writ Petitions filed for declaring Note 2 to Rule 3 and Proviso to Rule 6 of the Rules as being violative of Articles 14 and 16 of the Constitution—Scheme of Accelerated Promotion was introduced by the State for a special class/category of persons who do the daring job in containing the menace of terrorism by naxal groups—For accelerated promotion, requirement of minimum service has been dispensed with—Guidelines laid down are properly insulated against arbitrariness or discrimination—In the guidelines criteria has been laid down that a person should have at least six years clean service record—Whether Administrative Tribunal as well as the High Court were justified in declaring Note 2 to Rule 3 and Proviso to Rule 6 as inserted by amendment of Rules as violative of Rules 14 & 16 of the Constitution—(No)—Simply because a particular provision is capable of being abused is no ground to strike down the whole system—Constitution of India—Articles 14 and 16.

       Held : We are primarily concerned in the present case with regard to the accelerated promotion of the Inspectors of Police to the post of Deputy Superintendent of Police and Additional Superintendent of Police. The State of Andhra Pradesh is divided into various zones as pointed out above and some of them are very sensitive areas. It has been pointed out that some zones i.e. Zones V & VI are by and large affected by the extremist operations. Therefore, it was submitted that some who could get posting in naxal area, he may stand to benefit and on account of that fortuitous circumstance he may get accelerated promotion and march over the persons similarly situated. (Para 14)

       It may be said at the outset that these rules were amended looking to the dire need of the State in order to give some incentive to the Police Officers for voluntarily coming forward to meet the menace of extremist operations. The purpose is laudable one and nobody can take exception to this. In order to provide this incentive service Rules had to be amended. Those persons who are prepared to volunteer and take more risk in life why such kind of persons should not stand to gain as against those persons who do not want to take risk in their life. As a matter of fact those who take risk in their life and prefer to face hazardous duties, such kind of persons forms a class and such class of persons stand differentiated from other class of persons who are not prepared to take risk in their life and want to continue with the normal police duties and seek their promotion in due course of time. It is true that the Inspectors of Police form one category but in the same category it can have two classes, one who is desirous of taking risk in their life and do service to the society by taking hazardous assignment as against other persons who want to continue with their usual police duties. Such Classification cannot be looked down as arbitrary or violative of Articles 14 & 16 of the Constitution of India. The classification is apparent which can be differentiated from the class of persons who are prepared to sacrifice their life as against the persons who want to do the routine policing duties. This cannot be said to be fortuitous classification. The classification is based on rational principle. Thus the object which is sought to be achieved in the present case is to meet the challenge of the naxals and to invite youth and courageous persons to accept this challenge. It is true that some may get an opportunity to serve and some may not but that is exigencies of service. Wooden equality is not possible. Similarly placed person cannot be treated dissimilarly. But that is not the case here.(Para 15)

       Principally four guidelines have been laid down, namely that a person who becomes eligible for accelerated promotion should be an approved probationer and he has performed outstanding work in the field of anti-extremist operations (here the quality of work turned out shall be taken as criteria); has uniformly satisfactory record and lastly, clean defaulter sheet for the last six years without any major punishments throughout the service. These factors are sufficient guidelines where any individual action can be tested.(Para 16)

       These guidelines have been made in order to check that there should not be any arbitrary promotion and there should not be any picking and choosing among the persons belonging to the same category. At one point of time, impression was sought to be created that there are no guidelines for giving such accelerated promotion but after going through the detailed G.O.Ms. No. 280 dated 17.9.2002 as discussed above, we are satisfied that there are sufficient guidelines which check the arbitrary picking and choosing of the persons for accelerated promotion. After going through these guidelines we are of opinion that there is least possibility of picking and choosing of the persons under accelerated promotion scheme.(Para 16)

       It is true that sometime it may operate as fortuitous circumstance that some gets an opportunity and some may not get the same. But by that fortuitous circumstance the rule cannot be held to be bad. It is possible that in implementation of the rule, some arbitrariness or some favouritism may be shown, that can be challenged as an individual action. Therefore, one has to make distinction between the validity of the Rules and the misuse of the Rule. In case of misuse of the rule, that individual action can be challenged and it can be challenged on its merits but by that the whole scheme which has been introduced for the laudable purpose, cannot be said to be bad.(Para 17)

       (ii) Constitution of India—Articles 14 & 16—Challenge to validity of Rules—It is not necessary to implead all persons who are likely to be affected as party—Andhra Pradesh Police (Civil) Service Rules, 1998—Rule 3, Note 2; Rule 6, Proviso.

       Held : It is true that when the validity of the rules is challenged it is not necessary to implead all persons who are likely to be affected as party. It is not possible to identify who are likely to be affected and secondly, the question of validity of the rule is a matter which is decided on merit and ultimately, if the rule is held to be valid or invalid, the consequence automatically flows. Therefore, the original application filed before the Andhra Pradesh Administrative Tribunal or for that matter before the High Court does not suffer from the vice of non-joinder of necessary party.(Para 23)