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1974 Supreme(Del) 165
High Court Of Delhi
MAKHAN SINGH - Appellant
Versus
UNION OF INDIA - Respondent
Civil 137 of 1973
Decided On : 08/05/1974
S.A.K.DHAR, S.S.Dalal
The conditions of service of government employees cannot be altered by executive instructions, except by holding examinations as permitted by rules framed under Article 309 of the Constitution.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 226 - WRIT PETITION - APPOINTMENT AS DRIVER - PAY SCALES - PROMOTION - DEPARTMENTAL TEST - VALIDITY - PUNJAB POLICE RULES - INTERPRETATION.
Fact of the Case:
The petitioner, a Constable in the Delhi Police force, filed a writ petition challenging the departmental test for promotion to the rank of Head Constable Driver. He claimed that he should be treated as a Central Government employee and paid accordingly, and that no test was necessary for his promotion as he had been driving police vehicles for 16 years.
Finding of the Court:
The court held that the petitioner was not appointed as a driver, but as a constable, and that he could not claim the pay scales applicable to drivers appointed by the Central Government. The court also held that the departmental test was not warranted by the Punjab Police Rules and quashed the same.
Issues: 1. Whether the petitioner was appointed as a driver or a constable? 2. Whether the petitioner was entitled to the pay scales applicable to drivers appointed by the Central Government? 3. Whether the departmental test for promotion to the rank of Head Constable Driver was valid?
Ratio Decidendi: 1. The court held that the petitioner was not appointed as a driver, but as a constable, based on the following factors: - The petitioner was recruited as a Constable in 1953. - The petitioner was asked to perform the duties of a driver since 1958, but this did not change his status as a Constable. - The petitioner's pay scales were fixed as per the rules applicable to Constables. 2. The court held that the petitioner was not entitled to the pay scales applicable to drivers appointed by the Central Government, as he was not appointed as a driver. 3. The court held that the departmental test for promotion to the rank of Head Constable Driver was not valid, as it was not warranted by the Punjab Police Rules. The court noted that the rules did not provide for any examination or test as a condition precedent to promotion, and that the petitioner had already been driving police vehicles for 16 years, which was sufficient evidence of his ability to perform the duties of a Head Constable Driver.
Final Decision: The court quashed the departmental test for promotion to the rank of Head Constable Driver and allowed the petitioner counsel fee of Rs. 150.
( 1 ) THE petitioner admits that he was appointed as a Constable in the Delhi Police force on 12-10-1953; he underwent the full course of training prescribed for Police Constables and was confirmed in the pay scale of 75-1-85-2-95 as a Police Constable. He/holds a civil Heavy Driving Licence. From the year 1958, as per his service book (not 1957 as stated) he has been driving police vehicles for which he received a special pay of Rs. 20. 00 per mensem. He reached the maximum of his grade, namely Rs. 95. 00 in the year 1968.
( 2 ) IT is further averred by the petitioner that he had made a request for his being sent for training which would entitle him for promotion to a rank higher ian that of a Constable, but this was not allowed to him on the plea that no training was necessary for Drivers; he, was told he would be promoted in his turn-these allegations have been denied coupled with the assertion that his request was "dealt with on merits".
( 3 ) THE present petition under Article 226 of the Constitution was filed in February, 1973 when he was required to undergo a departmental test for Constable Drivers for the purpose of preparing a promotion list. The departmental test is to consist of (1) turnout, squad drill and armed drill; (2) practical test in driving ability, care and maintenance and professional knowledge. The petition contains various prayers; it is sufficient, however, to notice two main reliefs which the petitioner has claimed :
(1) that since he is working as a Driver in the Union Territorry of Delhi which is being administered by the President through the Lt. Governor he must be treated in the same category as other drivers working in the Central Government offices at Delhi and be paid as per Central Government payscales applicable to such drivers; (2) that, in any case, no test is necessary for his being promoted as Head Constable Drivef as he has been driving police vehicles for about 16 years; since he does not have to discharge duties intended to be carried out by Police Officers carrying out executive functions he could not be subjected to any test intended for such officers especially when the rules do not provide for such a test being held before he is placed in the promotion (C) list.
( 4 ) THE first question is not one of difficulty either on the facts or on the law. Having been appointed only as a Constable in 1953, though later on asked to work as a driver, he cannot claim he was appointed as a driver. There is no want of power on the part of the Police Administration to allot to him the duties of a driver; section 12 of the Police Act gives the power to the Inspector General of Police, subject to the approval of the State Government, to frame such orders and rules relating to that organisation, classification and distribution of the Police force, the places at which the members of the Force shall reside and the particular services to be performed by them. This power could of course be controlled by the State Government by making rules and regulations and giving instructions, when the need arises. The services of more persons than needed for strictly constabulary work-like fitters, welders, wireless operators and other kinds of technically qualified persons-were required to meet the growing needs of an expanding police force. In this situation it became necessary to invest even technical persons recruited for police purposes with the rank of police officer to ensure that they could be brought within the pale of the Police Act and Police Regulations. But such posts are not interchangeable with executive posts; consequently the power under section 12 of the said Act could not be used for allotting executive functions to such technical personnel.
( 5 ) THE present Inspector General of Police himself ordered (vide Annexure Zl filed along with the rejoinder) on 10-11-1972 that the question of promotion prospects in the various cadres of the police establishment should be examined and th
