Gopal Rao Ekbote, J.
1. All these writ petitions raise of law and they can therefore be conveniently disposed of by a common judgement.
2. The essential facts are that prior to 1956, the work of prohibtion enforcement was attended to by the regular police force in the district of Chitteor, Nellore and Gantur and by separate Prohibtion Departent is other districts. In 1956, however, the Prohibition Department was abolished and the nwork was entrusted entirely to the Police Department. Again in 1960, the Government decided that the work of enforcement of prohibition should be taken away from the police and entrusted to a separate agency. A committee was appointed. The report of that committee was considered by the Government and consequently G.O. Ms. No. 42, dated January 1961 was issued.
3. According to that Government Order, the network of enforcement of prohibition was taken away from the police and was entrusted to a new department called Excise and Prohibition Department. The existing Excise Department was directed to be merged in the new department. The Government Order gave the set-up of the new Excise and Government order also pointed out the methods of filling up the posts created for the purpose of the new department. The flat made of recruitment was.
(1) by the transfer to the new department of all the officers and personnel of the ex Prohibition Department who were working them in the Police Department and other departments;
(2) by absorption of officers and personnel then working in the Excise and Prohibition Department in the Andhra area;
(3) by selecting and transferring such of the officers and personnel in the Police Department with satisfactory record who were willing to be transferred to the new department on a permanent basis ;
(4) by filling up other vacancies, if any, by promotion from the lower orders on the basis of merits and suitability without insisting upon the requirement such as passing tests, etc, and permitting them to acquire the qualification within the prescribed period of prohation;
4. The Government Order emphasised that no deputation of temporary transfer should be made from the Police Department to the department should arise only when the new department was unable to find suitable officers among these transferred to it on a permanent basis. The new department thus came into existence in 1961 and was working with full strength till1965.
5. In 1965, the Government issued another G.O. Ms.No.1608, dated 13 October 1965, B y and under this Government Order the Excise and Prohibition Department was again sought to be recognized. The Government decided that the Prohibition staff in Andhra area be recognized in the manner mentioned in the said Government Order. The consequence of the said reorganization was that while retaining the required posts, the other posts were directed to be abolished.
6. According to Para. 2 of the said Government Order, the Government entrusted the work of finalizing the list of personnel to be retained in the reduced department to the Board of Revenue. Since that paragraph is very important, I shall quote it in exieno
The Board of Revenue will finalize the list of personnel to be retained in the department in the department in the reorganized set-up come up with necessary proposals regarding absorption of the surplus is other department for consideration by a committee specially for the purpose.
The Board of Revenue will also examined whether there are any officers and personnel of the police Department, who have been taken to the Excise Department, at the time of retransfer of prohibition enforcement work the Excise and Prohibition Department in 1961 and if so, whether such personnel could be repatriated to the Police Department in view of their training in the Police Department. The remaining surplus staff will be absorbed in other department in accordance with the recommendation of the committee.
7. The result of the reorganisation in so far as the four categories of service are concerned is that 130 posts of sub-inspector only have been retained in the reorganized department and as many as 118 have to be accommodated in other department; 262 posts are retained for the petty officers and the other posts retrenched; 67 officers also have to be accommodated some where else and 615 posts have been retained for prohibition guards. The remaining posts having been abolished, the persons holding these posts will have to be accommodated in other departments of the lower division clerks.
8. In order to prepare a final list of persons to be retained in the department in the reorganized set-up as is evidence from the Government order the Board of Revenue was asked to prepare the list, and for the purpose of absorbing the surplus staff in other departments, the Government constituted a committee for deciding as to where these surplus staff has to be absorbed. The Board of Revenue was also asked to examined whether there are any officers and personnel of the Police Department who were taken the Excise and Prohibition Department at the time of retransfer of prohibition enforcement work of Excise and Prohibition Department in 1961 and to suggests whether such personnel can be retained to the Police Department in view of training in the Police Department. If this could be achieved, the Government in accordance with the recommendations of the committee.
9. Although the wording of Para.2 of the Government Order is not very clear, but what appears to me is that the Government wanted the Board of Revenue, to prepare a final list of these who would be retained in the shortened department. But the task of absorbing the surplus staff was entrusted to a committee specially constituted by the Government for the said purpose the expressions 'come up' is used in the said paragraph. It was not intended obviously that the Board of Revenue and or the committee should submit their proposal to the Government and that the Government will take the final decision. It is not decided that the Government did not in fact consider either the question of retention or the absorption although in formation was given to the Government by the Board of Revenue as well as by the committee constituted for that purpose.
10. It is set also clear whether the Board of Revenue was expected to so be the committee with proposal in regard to absorption. What is however clear is that Board of Revenue was not expected to put for the consideration of the committee the final list which was prepared of the persons who were to be retained in the reorganized department. What appears to me is that the said expression 'come up' only indicates that after the Board of Revenue finalizes the list of persons who are going to be retained, the list of the surplus staff would be sent to be committee to see that the surplus staff is absorbed in other departments. Of course the Board of Revenue, as stated earlier, was asked to examined whether some of the officers or persons who were brought from the Police Department in 1961 could be rapariated to the Police Department and if that could be achieved, the remaining surplus staff was to be absorbed by the committee. Thus, while the preparation of the list of persons who have to be retained in the department to the committee. I am told by the learned Government Pleader that at a meeting of some of the officers at the Secreteriat including the Members of the Board of Revenue ; who deals with the question on 18, October 1965, the Inspector-General of Police, who was present stated that, in the circumstances, only those sub-inspectors, who were trained in his department, he would take them back.
11. He showed his unwillingness to allow other sub-Inspectors to be sent and absorbed in the Police Department. In pursuance or this, discussion, the Deputy Inspector-General of Police seems to have sent a letter on 21 October 1965 to the Board of Revenue stating that the Police Department can absorb only these sub-inspector who were trained in the Police Department to the Excise Department. Committee specially constituted for the purpose of absorbing not on 6 November 1965. It appears that finally in the letter of the Deputy-Inspector _General of Police and the decisions arrived at by the committee, the Member, Board of Revenue, flualized the list of the persons who were, according to him, to be retained in the new set-up and the committee also decided to absorb the surplus staff in other departments.
12. In so far as the sub-inspector are concerned, the Member, Board of Revenue, for the purpose of finalizing the list of persons to be retained classified them into four categories
(1) 29 sub-inspector who had come from the Police Department and whom the Inspector-General of Public was willing to take back;
(2) sub-inspector who were directly recruited after consulting the Public Service Commision, they are 16 in number;
(3) the sub-inspector, who were already there in the Excise and Prohibition Department; and
(4) temporary promotees other from petty officers, lower division clerk, or upper division clerk.
13. The Member of the Board of Revenue decided that the 29 sub-inspector whom the Inspector-General of Police Department. Their lien in the Public Department was recognized. He also decided that the other sub-inspector, who were already there in the department, should be retained according to the seniority, in the posts which are available and the rest were directed to be absorbed in other departments. The Member of the Board of Revenue, in regard to the Board of Revenue, in regard to the fourth category promotees, did not direct their substantive posts he decided that they should be absorbed in other departments treating them as if they were holding the pests of sub-insppectors.
14. In so far the petty officers are concerned; he classified them into there categories
(1) 18 head constables, where services were drawn from Police Department ;
(2) promotees as petty officers, and
(3) other promotees.
15. In so far the first category is concerned, the Member, Board of Revenue, directed that all the Member, board of Revenue, directed that all the head constable who were taken as petty officers in their department, should be repatriated to the Police department. He directed, in regard to the second category, that they would be retained strictly according to seniority and the seniority list will be followed untill the posts settled for the new department are filled in. In regard to the third category, promoters up to 1 May 1963 were retained to fill the required strength left over after the restriction of the second category.
16. In regard to the prohibition guards, the Member, Board of Revenue, thought that since they were recruited distriotwise; the retention should be on the basis of seniority in the concerned district and the others to be absorbed in other department.
17. In pursuance of their decision, notices were served upon these who were repatriated to the Police Department; and also these who were to be transferred to other department. It is Government Order No.1603 which directed the reorganisation and the list of retention prepared by the Board of Revenue and the notice consequently sent of the transfer of these officers that are impugned is this batch of writ petitioner.
18. Mainly two contention are advanced by the learned Counsel appearing for the writ petitioner. It was firstly contended that the petitioners. It was firstly contented that the delegation of power by the Government to the delegation of power by the Government to the Board of Revenue was improper, since no standards were laid down which the member was required to follow in preparing who are going to be retained and secondly that assuming that the delegation was proper, the member, Board of Revenue, has not exercised the discretion remitted to him properly.
19. Before I deal with these two principal contentions, I think I much dispose of two or three points raised by same of the learned advocates appearing for the petitioner. It was contended by Sri Y. Rami Reddi, the learned Counsel for the petitioner, that the Government was not competent to direct reorganisation of the Excise and Prohibition Department. The contention was that when the petitioner. It is true that is this case there has been reorganisation more than once. But that does not mean that the Government in not competent to reorganized. According to Rule 62 of the Financial Code and Rule 426 of the Andhra Pradesh Code; it is within the competence of the Government to create or abolish posts.
20. How the administration is to be carried on is exclusively left to the Government subjects of course to the provisions of the constitution and the law in force the time being. When the Government was of the opinion that for the efficient working of the policies connected with Excise and Prohibition they can be achieved to a large measure by reorganizing the department; it cannot be validly argued that the Government cannot do so. I am not in the slightest degree concerned with the wisdom of the reorganisation, nor interested in the least to find out whether administratively or economically the new set-up would prove more effective. My only concerned is to see whether the Government was competent to reorganize in view of the exigencies of the service and the interests effective working of the department. No authority was brought to my notice which comples me to take the view that in me case the Government can abolish or create posts it can reorganize the department in order to meet the fresh requirement and I see absolutely so vice in the new step taken by the Government.
21. It was contended by Sri Jaya Chandra Reddi that the transfer of these officers from the present department to the other department would amount to termination of their services and removal within the meaning of Article 311(32) of the Constitution and Government there fore could net have transferred them without providing them reasonable oppurtunity of being heard. Reliance in this connexion was placed on the decision of the supreme court in Moti Ram Deka v. General Manager, North-east Frontier Railway 1964-II L.L.J.467. I do not think that the said decision decides any thing of that sort. It is now a fairly settled view that it is only in a case where the services are provisions of Art, 311(2) would be attracted. It in the present terminated. Although they service is recognized. Merely because the size of the department is reduced and some posts were abolished, as long as the persons holding those abolished posts have been transferred and continued in service in other department. I fall how Article 311(2) can be said to be attracted. I find therefore no difficulty in rejecting that contention.
22. It was also contended by Sri. Rami Reddi, the learned Counsel for the petitioner, that the Public Service Commission was not consulted before the new set-up was organized. No such ground has been raised in the writ petition; nor was it argued in the preliminary argument. Whether the Public Service Commission was consulted or not is not a pure question of law. The learned Government Pleader says that there was some correspondence with the Public Service Commission. I do not therefore think that I can permit at the fag-end of his argument.
23. Turning then to the first principal contention that the Government was act authority to delegate the task of preparing the final list of those employee who were to be retained in the new set-up, what was argued was that the Government while delegating the power to discharge as to who should be retained in the department, did not give any guidance in the Government Order to the Member, Board of revenue. Such uncontrolled and unoalizid delegation suffers from the infirmly of unlawful delegation.
24. It is true that the discretion comferred by the Government Order on Member of the Board of Revenue is wide in the scope and comprehensive is its effects. The disoretion in indeed us fettered. It is not, we ever, necessary in every case that the delegation should expressly provide the guidance by laying down certain principles which have to be followed in applying them in exercising the discretion conferred by the delegation. If the delegation itself contains sufficient guidances, no question of its impropriety or invalidity arises. If by necessary implication, the principles on the basis of which discretion can be exercised can be found out, even in that case, the discretion cannot be said to be uncontrolled. It is always expected of the delegated to exercise the discretion not capriciously, but cautiousely and carefully and as far as possible consistently not only having regard to the parties who are likely to be affected and to their right but also in the interests of the implementation of the scheme itself.
25. It is sufficient if the Government designates the general policy, the delegates who is to apply it and the boundaries of his delegated power. Rights of the employees are protected always by access to the Courts to test the application of the policy to each individual case. It is not necessary that in all case the delegator should fix the forms or standards. In order to find out whether the delegation is un regulated or uncontrolled the or un controlled the test applied is whether the language conveys sufficiently the intention of the Government and the Board utilises on the basis of which the scheme has to be worked out. It was not possible for the Government to supply to the board of Revenue a specified formula for their guidance in a field were flexibility and the adaptation of the Government policy to variable conditions as have existed in the various categories of the employees constituted the essence of the programme. Any insistence on expressly laying down the standards would practically amounts to giving under importance to the form rather than the substance.
26. It must be remembered that laying down of standards are but one of the many means to the; that is to way, to implement the policy indicated by the Government. It would be a mistake if this particular method is permitted to be raised to the dignity of an end itself and allowed to ever flow other analogous methods of implementing the scheme. By insisting upon laying down expressly or impliedly the discretion in some cases we are likely to commit ever. If this premise is correct, as I hold that to be, then the judicial analysis of standards or norms, whether they are expressly mentioned is the delegation or they are implied from the terms of delegation or they are implied from the terms of delegation whether they are clear or vague and in some cases even absorb, should not make of them a fetch upon which to permit or reject or otherwise valid delegation. As stated earlier, the main objective of the Court is to as certain whether the Government policy laid down in the Government Order can be effected under a general grant of power the limitations ever which may not be discerable but can be necessarily implied and which do not sheek the judicial conscience.
27. If in the absence of any express principles on the basis of which the delegates has to work, it can be implied from the circumstances under which the delegation was made and when the delegates is expected cautiously and carefully, it cannot be said that the delegation suffers from the infirmity of unlawful delegation. In this case; the Government provided by necessary implication certain matters which ought to be kept in view while preparing the list of those who were to be retained. In also provided though some what sketchily guidance in regard to how the surplus staff should be absorbed. Mere then that the Member of the Board of Revenue is an experienced and senior civil servants. Any delegation in the circumstances in which the reorganization is taking place and the varied and complex problems which the retrenchment of so many posts must necessarily creates it would not only be difficult but would be a mistake to expect that certain hard-and -facts principles should be laid down for the guidance of the Member, Board of Revenue. He is expected be to approach the problem with caution and see that in order to permit the new department to work with greater efficiency to retain only such persons who are more suitable to the contention that the delegation is bad in law.
28. When once the delegation is held to be proper and free from the vice of unlawful delegation, what remains to be considered is whether the delegates has exercised the discretion remitted to him by the Government properly. The exercise of most of the discretionary powers can undoubtedly be challenged in the Courts. The Court will prevent wrongful exercise of the discretion, Such wrong exercise of discretion may a rise from consideration of discretion may arise from consideration of irrelevant issues or factors or it may arise from omitting from consideration some very relevant issues or factors. It may also arise from the facts that the person who is expected to exercise the discretion acts at the dictation of others or surrenders the discretion to someone else. If he takes into consideration, factors which are for the authority nor permissible or if the consideration produced some unfair or unreasonable result, then there could be little difficulty in striking down the wrong exercise of the discretion.
29. It must be remembered that when some thing is to be done within the discretion of any authority that something is to be done according to the rules of reason and justice; not according to the personal opinion of the officer concerned or somebody else. It must be exercised according to law and according to humour. It should not be arbitrary, vague, or fanciful. But it must be legal, just and fair. Viewed in the back ground of these principles guiding exercise of discretion by the Member of the Board of Revenue, was not proper.
30. In so far as the sub-inspector are concerned, I do not find any rationale behind the classification into three different categories for the purpose of retention in the new department. It may be that some of the sub-inspector were brought from the Police Department and some were directly recruited after the Police Service Commission was consulted and some of them were already existing since the days of the old department. That, however, in my opinion, is irrelevant consideration at the time when the question of final retention of some of the sub-inspector was to be considered. They all belong to one category of service and in that capacity they have to be intelligible and reasonable and which must have some kind of reasonable nexus with the objective to be achieved. It cannot, however, be validly argued that the categorization of the sub-inspector in three different groups is reasonable has any nexus with the objective. The direct recruitment took place admittedly in 1963.
31. They are now allowed to be retained is the department whereas even those who were already in the department since a pretty long time have to be absorbed in another department thus depriving the department of their experience; Merely because they have been directly recruited after consultation with the Public Service Commission; I fall to see how they can be classed separately. There is no reasonable basis for doing that. Likewise the existing sub-inspector, who were serving the department since the old days cannot be discriminated between themselves while some of them are retained according to their seniority, other have been asked to get away. Like wise merely because the 29 sub-inspector drawn from the Police Department it cannot constituted a valid ground for classifying them separately. It is not denied that from 1956 onwards, all those sub-inspector working in the Police Department were trained and qualified. They were not only discharging the duties in regard to the excise as sub-inspector of police.
32. In any case, there is no evidence before me to show that others were not trained in the same manner as these 29 are. There is only a letter of the Deputy Inspector-General of Police in the Government record which indicates that these 29 people have been trained in the department. But there is no satisfactory evidence to show that the others are incapable of discharge the duties in the Police Department because they are not fully trained and combined seniority list of sub-inspector in the present department, that should have been followed normally unless; of ocurse, there are valid objections. To categorize them the Police department or the Excise department or directly recruited, in my opinion, is to make arbitary discrimination between the same class of persons. It is true that the 29 sub-inspector if they have to go to the Police department their rights have been secured since they have been provided with liens which were not originally given. The fact that they were transferred to the Excise and Prohibition Department on a permanent basis may not be of much moment but at the time of their retention or sending out any arbitary kind of discrimination between the sane elses would naturally suffers from the vice of unlaw ful discriminates;
33. That apart, the Member of the Board of Revenue looked at the problem from a wrong premise and that was more responsible for making the invidious distinction between these who come from the Police Department and those who were directly recruited or were already existing in the department. While it cannot be disputed that the Member Board of Revenue was entitled to consult the Inspector-General of Police for that matter, the members of the committee constituted for the purpose of absorbing the surplus staff, he ought not to have surrendered his discretion to the view or pressed by other the Inspector-General of Police or by the committee. While it need not be divided into two watersight compartment, but merely because the Police Department was prepared to absorb 29 sub-inspector whatever may be the reason for that, the discretion could not be permitted to be exercised only because of that.
34. I have therefore no doubt that the exercise of discretion was improper in this case not only because of the individuals distinction made between the members of the name category but also because of the fact that same category but also because of the fact the Inspector-General's views had considerable for the way in which the retention list of the sub-inspector of police was prepared. To that extent I have no shred of doubt that the final list prepared by the Member, Board of Revenue, is had and had to be strunk down. The Board of Revenue with out making any invidous distinction between the members of the same class can consider on the basis of seniority, as is the principle accepted by him, and the committee will find out avenues of absorption in regard to those who have necessarily to go from this department. The result of the discussion is that the below-mentioned sixteen writ petitioner filed by the sub-inspector will have to be allowed.
35. Now with regard to the petty officers, here again distinction was made between the members of the same class on no reasonable classification. Head constable, who were drawn from the Police Department were asked to be repatriated to the Police Department only the ground that the Police Department was willing to absorb them. It is true that the Government gave discretions in Para.2 of the Government Order that the question of repatriation of the polincemen may be examined by the Board of Revenue. But that does not mean that on the basis of that direction any unreasonable classification is permitted to be made. As stated before; this class for purpose of finalizing the list of retention. While the head constable were directed to go back to the Police Department the prometee to the post of petty officers were select them the basis of seniority and these who have promoted up to 31 May, 1962, were retained in order to fill the gap, in the posts;
36. I do not think that the exercise of discretion in this can be said to be in any manner reasonable for the same reason which I have already given in connexion with sub-inspector. Out of 18 head constables only 6 percent have filed with petitioner. Their cases will have to be reconsidered by the (Member, Board of Revenue) has laid down that seniority will be strictly followed in considering the question of retention, he has to consider, including these six person, as to who are senior who could be retained, of course, those who cannot for valid reasons be retained. To that exact the exercising of discretion in regard to petty officers from the same infirmately and cannot be sustained. I would therefore allow there six writ petition also.
37. The case in regard to prohibition guards, how ever, stands on an altogether different footing. While it was conteaded by some of the learned Counsel faintly the appointment were made not distriotwise, but on the state level it was convinoingy made out by the learned Government Pleader that all the appointment in the State were made distriotwise. While they would normally be transferred intra -district, some transfers inter-district have taken place but only on the request of the prohibition guard. I was told by the learned Government Pleader that their seniority is strictly followed in the district where they were appointed. Even in cases where some of the prohibition guards were transferred to other district, their seniority in the seniority in the district in which they were appointed has been taken into accounts while preparing the seniority in the district concerned. Thus these who have are not required by the department. I do not therefore find that the exercise of discretion in this behalf was in any manner unlawful or objectionable. The writ petitioner of all the said persons have there fore to be dismissed.
38. Before I part with this branch of the cases I must make an observation. I have already referred to the fact that there are certain temporarily promoted sub-inspector of police from the ranks of lower division clerks, upper division clerks and petty officers. Admittedly they have no right to hold the posts to which they were promoted temporarily. The Government in my opinion has taken a liberal attitude in so far as these persons are concerned. The Government undoubtedly had the right to revert them to their substantive posts and have then they try to be absorbed in another department on equivalent posts. Instead of this approach the Government was considerate and permitted the person temporarily promoted to be treated for the purpose of absorption as sub-inspectors of police. Keeping in view their present rank they will be absorbed. Government Pleader.
39. In Writ Petitioner Nos. 17125 and 1766 pf 1965 a grievance is made that the lower division clerk were also not reasonably treated. Admittedly even in regard to these persons classification was more or less based on the same lines as that of the sub-inspector of police. I have already held that there is no rational basis for classifying them in that manner. The final list in regard to lower divisions clerks therefore also suffers from the same infirmity and has to be struck down. It is open to the Board of Revenue to prepare the final list keeping in view strictly their seniority.
40. Sri Y. Rami Reddi, learned Counsel in writ Petitioner No.1710 of 1965 that the petitioner was a steno-typist and while he is seat out of the department, another person, who was not compotent to held the post was nominated to that post. But on an objection raised by the petitioner, it is admitted that the person so appointed has been removed. The post is still vacant. The learned advocate for the petitioner, will be considered by the Government. The learned Government Pleader also says that the case is under consideration and will be disposed of in accordance with law. No orders, therefore, are accordance in that position.
41. There was some argument in regard to some individual grievance. I do not, however, think that such individual cases can be considered in these case. It is open to the petitioner who have personnel grievances to approach the Government and get their grievances removed. The learned Government Pleader agreed that their cases will be considered by the Government and will be disposed of in accordance with law.
42. For the aforesaid reason I allow the following writ positions.
Writ Petitioner NoS. 1712 of 1965, 1766 of 1965, 1720 of 1965, 843 of 1966, 1712 of 1965 844 of 1966, 1849 of 1965, 1658 of1955, 1772 of 1965, 1655 of 1965, 1805 of 1965, 1770 of 1965, 1635 of 1965, 1662 of 1965 1744 of 1965, 148 of 1966, 1656 of 1965, 1766 of 1965, 859 of 1966, 1815 of 1965, 1840 of 1965, 1786 of 1965, 1829 of 1965 and 1657 of 1966.
In the circumstances of there cases, I leave the parties to bear their own costs. Government Pleader fee Rs. 75 in each case.