Point of Law: Service Law - Recruitment of Staff - Determination of vacancies - Merely because post of Inspector General of Prisons, and Additional Inspector General of Prisons can be filled up from persons belonging to IPS cadre, it does not empower State to fill up post of lower echelons by posting police personnel on the post of Senior Superintendent/Superintendent of Jail.

JUDGMENT :

SRI RAGHVENDRA SINGH CHAUHAN, J.

Mr. Sanjeev Kumar Akash, the petitioner, has filed the present Public Interest Litigation in order to challenge the order dated 12.02.2021, passed by the Secretary, Department of Home, the respondent no.2, whereby the Officers of the Police Department have been given the additional charge of the office of the Senior Superintendent/Superintendent of Jail at Sitarganj, Haldwani, Haridwar, Dehradun and Roorkee. The petitioner has further challenged the consequential order dated 12.02.2021, passed by the Inspector General of Prisons, the respondent no.3, whereby the Officers of the Police Department have been transferred, and posted with the additional charge of Senior Superintendent/Superintendent of Jail at various prisons in the State of Uttarakhand.

2. Briefly stated, the facts of the case are that, as per the structure in the Department of Prison in the State of Uttarakhand, there are three sanctioned posts of Senior Superintendent of Jail, and nine sanctioned posts of Superintendent of Jail. Out of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor. Presently, one post of Senior Superintendent of Jail, and four posts of Superintendent of Jail, have been filled up. Therefore, currently two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail are lying vacant. According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge of Senior Superintendent of Jail, and Superintendent of Jail, to officers of the Indian Police Service (IPS). Hence, the present Public Interest Litigation before this Court.

3. Ms. Kamini Jaiswal, the learned Senior Counsel for the petitioner, has raised the following contentions before this Court :

Firstly, that the job responsibility and the training of the Police Officers, and those of the Officers of the Jail Administration, stand on different plains. The duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order. On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners. Since the job responsibilities are of different nature, the psychological makeup, the thinking, the conduct of the Police Officers and the Jail Officers, perforce, has to be quite different. Whereas, generally a Police Officer sees an offender as a culprit, as a person who has violated the law, and thus deserves to be condemned and punished, the Officers of the Department of Prison see prisoners as human beings, who have erred, who need to be reformed, who need to be rehabilitated, and brought back as productive members of the society. Thus, the very philosophy behind the interaction between a Police Officer and an offender, and the interaction between a Jail Officer and the prisoner, stand on a different footing. Therefore, one cannot be confused with the other.

Secondly, keeping this distinction in mind, even law has bifurcated these two services into two different classes; the laws have empowered them differently. Therefore, to confuse these two classes would be violative of the fundamental philosophy, which govern these two different services.

Thirdly, this bifurcation of the two departments, and the philosophy behind working of the two departments, is not unique to India. But has universal application throughout the world. According to the learned Senior Counsel, the United Nations has issued “Standard Minimum Rules for the Treatment of Prisoners”, better known as “the Nelson Mandela Rules”. These Rules prescribe the “good principles and practice in the treatment of prisone