P.D. Desai, J.
1. By an order dated February 26, 1979, Annexure 'A' is issued by the District Superintendent of Police, Surat City, Surat, the petitioner was appointed as a 'regular driver' with effect from March 1, 1979. The order of appointment stated that the petitioner would be paid an allowance of Rs. 50/- per month subject to the condition of furnishing a bond.
2. On November 28, 1979 an incident occurred at about 9-45 P.M. in a public garden near the Athwa Lines bus stand in which the petitioner was alleged to have been involved. The said incident resulted in two events. The petitioner was prosecuted in Summary Case No 7797 of 1980 for certain offences punishable under the Bombay Prohibition Act, 1949 and he was placed under suspension on and with effect from November 29. 1979. Disciplinary proceedings were also initiated against him subsequently.
3. So far as the criminal case is concerned, the learned Judicial Magistrate, First Class, Surat, by his judgment and order dated September 10, 1980 found that the petitioner was not guilty of the offences with which he was charged and acquitted him. In the course of his judgment, the learned Judicial Magistrate made the following observations:
However, looking to the police papers it seems that the police ought not to have charge-sheeted the accused, because the M.O. who examined the accused opined that the accused was neither under the effect of alcohol nor had consumed the same. His pupils were normal, speech was normal and breath was also not smelling of alcohol. The C.A.'s report also shows 0.04% alcohol in his blood.... right at the outset there is no case against the accused no witness has appeared today and I do not think it proper to waste time in recording evidence, adjourning the case time and often, particularly when the police papers do not disclose any case against the accused.
The observations extracted above would show that the petitioner was acquitted as it was found that there was no substance whatsoever in the criminal case instituted against him.
4. So far as the departmental proceedings are concerned, the disciplinary authority, namely, the District Superintendent of Police, Surat City, Surat, by his order dated August 31, 1981 exonerated the petitioner of the charge levelled against him. Be it stated that the substance of the allegation against the petitioner in the departmental proceeding was that on November 28, 1979 he had consumed illicit liquor and abused and behaved arrogantly with members of public in the garden near the Athwa Lines bus-stand. In other words, the departmental proceeding was substantially the same as in the criminal case. In the course of the order passed by the District Superintendent of Police, it was observed that all the important witnesses had turned hostile and that one of the most important witnesses, who was a Corporator, had failed to appear to give evidence inspite of repeated requests. Besides, the report of the Chemical Analyser, Junagadh disclosed that the allegation with regard to consumption of illicit liquor was not established. In the light of the above findings, it was held that the charge levelled against the petitioner was not established.
5. Meanwhile, upon the acquittal of the petitioner in the criminal case, the suspension was revoked by an order made on October 3/9, 1980 and the petitioner was reinstated in service on and with effect from the date of the said order. Upon reinstatement, the petitioner was re-assigned duties as a driver.
6. It appears that on and with effect from December 4, 1980, the petitioner was asked to perform duty as an Armed Police Constable by the District Superintendent of Police, Surat. The District Superintendent of Police thereafter appears to have made a reference on two occasions namely, on May 25, 1981 and October 13, 1981, to the Inspector General of Police seeking directions on the question whether the petitioner should be posted back as a driver. In response to the said references, the Inspector General of Police directed on December 19, 1981 that the petitioner should be continued as an Armed Police Constable as it was not in the interest to allow the petitioner to perform duty as a police driver. The petitioner made a representation to the Inspector General of Police on January 6, 1982 and requested that having regard to his acquittal in the criminal proceeding as well as his exoneration in the departmental proceeding, his request for being posted back as a driver should be favourably considered. On May 7, 1982 the representation of the petitioner was rejected by the Inspector General of Police.
7. The petitioner thereupon instituted Special Civil Application No. 2662 of 1982 challenging the orders dated December 19, 1981 and May 7, 1982 passed by the Inspector General of Police and seeking an appropriate writ, order of injunction commanding the concerned authority to permit him to work as a driver in the Motor Transport Section. The petition was resisted by the competent authority. The Commissioner of Police, Surat City, who was respondent No. 9 in the said petition, filed an affidavit in the course of the said proceeding, inter alia, contending that having regard to the extent instructions issued by the Inspector General of Police, a Police Constable who was transferred from the post of a driver in the Motor Transport Section to the Executive force could not be taken back in the Motor Transport Section except with the permission of the Inspector General of Police and that since the Inspector General of Police had refused permisson it was not possible to assign to the petitioner the duties of a police driver. By the judgment delivered on August 17, 1982 this Court allowed the petition and quashed the two impugned orders on the ground that since the petitioner was not afforded an opportunity of being heard before passing those orders, rules of natural justice were violated and the orders were, therefore, inoperative in law. The Inspector General of Police was directed to give an opportunity to the petitioner to put forward his case before deciding the question of grant or otherwise of the permission applied for by the District Superintendent of Police, Surat, under his letters dated May 25, 1981 and October 13, 1981.
8. Pursuant to the abovementioned decision, the petitioner submitted a fresh written representation dated September 5, 1982 through his Advocate. The representation was forwarded to the Director General and Inspector General of Police who also gave a personal hearing to the petitioner on September 22, 1983. By an order passed on October 1, 1982 the Director General and Inspector General of Police gave the following directions:
1. A.P.C. Kashinath Dhondu of Surat City on his reinstatement on 3-10-80 should be considered to have been posted to the same post of A.P.C. Driver with Spl. pay of Rs. 50/- p.m.
2. In view of the facts stated above, in my findings, appellant Kashinath Dhondu is not tit to be continued on the post of A.P.C. Driver, and therefore, I order that lie should he posted to the executive as A.P.C. w.e.f. 23-9-82. F.N.
Be it slated that the first direction was issued in order to implement the decision, of this Court in Special Civil Appeal No. 2662 of 1982. The basis for giving the second direction is contained in the following words in the order dated October 1, 1982:
The petitioner said before me that he does not drink. The case has been falsely made out against him on account of ill-feeling with Shri Shanker Munshi, Corporator because he was driver of Police Vehicle during curfew. Shri Shanker Munshi was bearing a grudge against him. He cannot give any reason or explanation for alcohol found in his blood.
The explanation given by the petitioner before me is thoroughly unsatisfactory. The appellant was found smelling of alcohol at nearly mid-night and even at that late hour his blood contained 0.4% of alcohol.
He was also found quarrelling with members of the public and his excuse of previous ill-feeling is extremely poor.
I am satisfied that a person of this type cannot be entrusted with a police vehicle as it would endanger several innocent lives as well as his own. I have informed him accordingly. Transferring a Police Motor Driver to the Executive duties is not a punishment and the loss of driver's allowance of Rs. 50/- per month is incidental to the exigencies of the service.
It is this order of the Director General and Inspector General of Police which is under challenge in the present petition.
9. At this stage, it would be appropriate to refer to certain provisions of the Gujarat Police Manual, 1975, Vol. I (hereinafter referred to as 'the Manual'). The Manual is an official publication in which are digested various rules, regulations and orders issued by competent authorities from time to time. Rule 21 of the Manual provides for the establishment of a Motor Transport Section for the whole State under a Deputy Superintendent of Police, Motor Transport. The said Section is under the control of the Deputy Inspector General of Police, Armed Units. Amongst the duties which are entrusted to the said Section are to help maintain the Motor Transport fleet, to carry out the duty of maintenance of vehicles and to impart basic and refresher training to mechanics, technical staff and drivers. Rules 49 and 64 respectively provide for the appointment to the posts of the Deputy Superintendent of Police and Sub-Inspectors of Police, Motor Transport. The said rules lay down the eligibility qualifications and other matters relating to the conditions of service of the officers appointed to the said posts. Below the Sub-Inspectors of Police, there appear to be diverse posts in the Motor Transport Section, such as Head Constable Driver-Mechanics, Head Constable Drivers, Constable Drivers, etc. This is apparent upon a perusal of Rules 34, 169, 170, 171,172 etc.
Rule 34 prescribes the appointing authority for the Police Officers of various ranks. The said rule, in so far as it is relevant for the present purposes, reads as under:
34. Appointing Authority. - (1) In exercise of the powers conferred by Section 5 read with Sections 6, 8, 8A and 10 of the Bombay Police Act, 1951, the Police Officers specified in column 1 shall exercise the power of appointing the Police Officers of the rank or ranks specified against them in column 2 below: ___________________________________________________________________________________Designation of the Police Officer empowered Rank or ranks of the Policeto make appointment Officer to be appointed.1 2I. XXX XXX XXXII. Police Force Serving in motor transport section.1. xxx xxx xxx2. xxx xxx xxx3. The Superintendent of Police/Deputy Head Constable Driver-Mechanics,of Police Commissioner Head Constable Drivers,Constable Drivers, Writers, StoreOrderlies and Orderlies, MotorLaunch Drivers (Head Constables),Tindal (Head Constables), Khalasisand Laskars (Constables).
10. Rule 71, which may be next referred to, deals with the appointments of the Subordinate Technical personnel in the Motor Transport. Sub-rule (1) of the said rule reads as follows:
(1) Appointments shall be made by promotion of suitable departmental men or by direct recruitment of outside candidates.
Sub-rule (2), in so far as it is relevant for the present purpose, provides as follows:
(2) Candidates must possess the following qualifications:
(a) Age - Not more than 35 years.
(b) xxx xxx(c) Technical Drivers
(i) Should have civilian motor driving licence for cars, light and heavy transport vehicles and at least 3 years' clean driving experience.
(ii) Shall pass a practical test in driving, general knowledge of motor vehicles, servicing, traffic signs and hand singals, etc. The test will be held by Police Motor Transport Inspector who will be nominated by the Deputy Superintendent of Police, Motor Transport, State of Gujarat.
Sub-rules (3), (4), (5) and (6) of the said rule, which are also material, read as follows:
(3) The applicants who satisfy the foregoing general requirements shall be called for interview and test at the place fixed by the Deputy Superintendent of Police, Motor Transport.
(4) Candidates who are successful in the test and are found suitable in every respect shall be sent for Medical Examination. The selected candidates will then be kept on a waiting list and appointed to the posts as vacancies occur from time to time.
(5) The tests shall be conducted by the Deputy Superintendent of Police, Motor Transport, assisted by Police Inspector, Motor Transport, a Police Inspector Foreman and a Police Sub-Inspector (Mobile or Workshop) as may be detailed by him.
(6) In all cases whether of appointment or promotion, departmental candidates shall be given preference over direct recruits. In making promotions the test qualifications shall be considered along with a candidate's previous work in the department. To qualify for promotion, it departmental candidate should have all the qualifications required for the direct candidates and should pass the qualifying tests laid down. The requirement in respect of general education may be condoned, if the candidate has sufficient experience and ability to carry out the duties of the higher post efficiently. There shall be no age bar for departmental candidates who are physically fit and otherwise suitable.
Sub-rule (7) is not relevant and it need not, therefore, be cited.
11. Rules 167 and 168 both of which are also material read as follows:
167. Examination for Motor Transport Personnel - General: (1) For promotion to the various technical posts in the Motor Transport Section of the Police Department, various tests as detailed below, will be held by the Superintendents of Police or the Deputy Superintendent of Police, Motor Transport.
(2) To qualify, a candidate should secure a minimum of 50 per cent marks in each part of the test in all categories.
(3) In making promotions the test qualifications will be considered along with the candidate's previous work in the Department.
(4) The general tests shall be arranged and carried out by the Superintendents of Police. The technical tests shall, however, be held by an Examining Board comprising the Deputy Superintendent of Police, Motor Transport (Chairman), the Range Police Inspector, Motor Transport and the Police Inspector, Foreman of the Range Workshop. The tests shall be held in one of the Police Workshops.
(5) No candidate shall be permitted to appear in the test of the next higher grade within the year of his passing the lower test.
(6) To qualify in the test, a candidate shall have to pass in each part of the tests (Parts I to IV) securing not less than 50 per cent marks and he should also get not less than 60 per cent on the aggregate.
(7) Those securing 65 per cent marks or more on the aggregate shall be declared to have passed with credit.
(8) To qualify, a candidate has to pass in the whole test at one and the same sitting.
(9) A candidate should have had possession of a Civilian Driving Licence, with endorsement for Heavy Transport for a period of not less than three years prior to the date of the Test.
168. Police Drivers Retention Course: Every Police Driver should pass an oral and practical test in the following curriculum within a period of 2 years from the date of his appointment as a driver. No driver should be confirmed in his post unless he passes the Retention Examination. A-General:
(i) Parade - Ability to do squad drill without arms, elementary arms drill.
(ii) Literacy - Ability to read, write and speak his regional language and Hindi.
(iii) Local knowledge - Knowledge of the important motorable roads, places, water-ways, terrain, distances of his district.
B-Technical (Oral and Practical):
(i) Ability to explain in simple language, the mechanism of the motor vehicle and its important parts, routine servicing, and check, requirements of the vehicle such as petrol, oils, water, distilled water, tyres, tubes with sizes-idea of petrol, oil, consumption, local rates, speeds, safety instructions, road courtesy.
(ii) Proper use of all the controls, meters, lights, fittings in the vehicle. Motor Vehicle Rules, as applicable to Drivers, Traffic Signals, Road Signs. How to act in case of accident. Motor Transport Standing Orders.
12. Upon an analysis, the rules, which are set out above, yield the following result:
(1) There is a Police Motor Transpart Section for the whole State, which is headed by a Deputy Superintendent of Police (Motor Transport) and which is controlled by the Deputy Inspector General of Police (Armed Units). There is a hierarchy of posts in the Motor Transport Section and amongst the posts borne on the establishment of the said Section are those of Sub-Inspectors of Police, Head Constable Driver Mechanics, Head Constable Drivers, Constable Drivers, etc. The duties of the said Section, inter alia, are to help maintain the Motor Transport fleet through the Motor Transoport Work-shops and to impart basic and refresher training to mechanics, technical staff and drivers. The appointing authority, so far as Head Constable Driver Mechanics, Head Constable Drivers and Constable Drivers are concerned, is the Superintendent of Police/Deputy Commissioner of Police.
(2) The post of a Police Driver or a driver in the Motor Transport Section can be filled in by appointment by promotion of a suitable departmental candidate or by direct recruitment.
(3) In order to become eligible for appointment to the said post, the candidate is required, inter alia, to pass all the practical tests and interview test held by the Deputy Superintendent of Police, Motor Transport. The successful candidate, if found medically fit, will be kept on a waiting list and appointed to the post as vacancies occur from time to time.
(4) Every Police Driver is required to pass an oral and practical test in the prescribed curriculum within a period of two years from the date of his appointment as a driver and no driver will be confirmed in his post unless he passes the Retention Examination.
13. The foregoing analysis leaves no room for doubt that the Motor Transport Section is a separate Section of the Police Force with hierarchical set up. Detailed provisions are made with regard to the appointment, confirmation and other conditions of service of the persons occupying different posts in the said Section. So far as the post of a Police Driver is concerned, Rule 34 prescribes the appointing authority, Rule 71 prescribes the eligibility qualifications and me holding of tests and the appointment of the selected candidates and other related matters and Rule 168 provides for the passing of the Retention Examination before confirmation. My attention has not been invited to any other provision in the Manual or to any other later amendment affecting any of the aforesaid provisions of the Manual. The question arising in this petition requires to be decided against the aforesaid background.
14. The petitioner, who was originally appointed as an Armed Police Constable in 1970, was sent for training to the Baroda Police Motor Transport Workshop and he passed the practical and interview tests sometime in 1977. On February 20, 1979. the petitioner was appointed to the post of a driver by the Depuh Superintendent of Police, Surat City. In the light of the provisions contained in Rule 71 read with Rule 34, the said appointment must be treated as an appointment by promotion to a distinct and independent post and the appointment was apparently made by an authority competent to make such appointment. Be it stated at this stage that it is not in dispute that upon the appointment as a Police Driver, there is an improvement in the wages of the departmental candidate to the extent of Rs. 50/- per month. Accordingly, the petitioner also became entitled to and started drawing a sum of Rs. 50/- in addition to more than what he was drawing as an Armed Police Constable. An incident occurred on November 28, 1979 in which the petitioner was alleged to have been involved and in regard to the same there was a criminal prosecution as well as a departmental proceeding. In the criminal case, the petitioner was acquitted and in the departmental proceeding he was exonerated. The allegation that the petitioner had consumed illicit liquor and that he had indulged in an disorderly behaviour was found not to have been established. The petitioner, who was placed under suspension during the pendency of the criminal trial, was reinstated in service after his acquittal by an order made on October 3/9, 1980 and for a period of about two months after his reinstatement he performed duty as a Police Driver. Thereafter, the District Superintendent of Police assigned duty to the petitioner as an Armed Police Constable and, pursuant to the impugned orders made by the Director General and Inspector General of Police, he is to be considered as having been posted as an Armed Police Constable on and with effect from September 23, 1982. The reason which has weighed with the Director General and Inspector General of Police in making the impugned order is that the petitioner is 'not fit to be continued on the post of A.P.C. Driver' because the petitioner was found smelling of alcohol and his blood was found to have contained 0.4% alcohol and he was found to have been quarrelling with the members of the public at the mid-night hour on November 28, 1979. Be it stated that the Director General and Inspector General of Police has treated the posting made by him as a 'transfer' of a Police Motor Driver to 'the Executive duties' and that in his view, the loss to the extent of Rs. 50/- per month in the wages of the petitioner is not a 'punishment' and it is 'incidental to the exigencies of the service.'
15. It would not be out of place to mention at this stage that in para 7 of the affidavit-in-reply filed on behalf of the respondents, the stand which has been taken up is that the Police Drivers are trained from the strength of the Executive Force. According to the respondents, the post of a Police Motor Driver is not a promotional post 'as wrongly interpreted in Rules 71 and 167 of the Gujarat Police Manual, Vol. I, 1975.' The respondents have asserted in the said paragraph that Armed Police Constables who are trained in motor driving are appointed as Armed Police Constable Drivers and that this is being done as per the Circular of the Inspector General of Police issued on July 3, 1976. The Circular which is referred to in the affidavit has not been shown to the Court at the bearing.
16. There is no manner of doubt that the impugned order is wholly unsustainable and this conclusion must be reached for more than one reason. In the first place, there is a fundamental misconception in treating the petitioner as having been merely transferred from one post to another and in regarding such action as not penal. The relevant rules of the Manual run clearly counter to the assertion that the post of a Police Driver is not distinct and separate from the post of an Armed Police Constable. It is astonishing to find a subordinate limb of the State asserting that the relevant rules bearing upon the appointment, etc. of a Police Driver, contained in the Manual which is complied under the orders of the Government, 'wrongly interpret' that the post of a Police Driver is a promotional post. In other words, the assertion, in substance, that the post of a Police Driver is not a distinct and separate post than the post of an Armed Police Constable flies in the face of the provisions contained in an official publication and it cannot be countenanced in a Court of law even for a moment. Equally unfounded, in the next place, is the assertion that the action is not penal. The impugned order on the face of it casts a stigma on the petitioner and visits him with civil consequences such as deprivation of a post which gives him higher wages. Undoubtedly, such an action is in the eye of law, a penal action. Since the petitioner, after his appointment by the competent authority to the post of a Police Driver, which carried higher remuneration (by whatever name called), was holding an independent and distinct post, that is to say, a post different from the post of an Armed Police Constable to which he was initially appointed, his removal from the said post, which is treated as a promotional post, on the grounds stated, could only have been effected in due compliance with the provisions of Article 311 of the Constitution and the relevant rules of the Bombay Police (Punishment and Appeals) Rules, 1956. The posting of the petitioner as an Armed Police Constable is undoubtedly a reversion or reduction in rank and such a step could not have been taken against the petitioner on the grounds stated except in accordance with Article 311 and the relevant provisions of the Bombay Police (Punishment and Appeals) Rules, 1956. In other words, a regular departmental inquiry was required to be held against the petitioner since removal, reversion or reduction in rank is a major penalty. A step in that direction was already taken when the departmental inquiry was instituted against the petitioner by the District Superintendent of Police, Surat City. The said departmental inquiry ended in what may be termed as an honourable exoneration of the petitioner since it was found that none of the charges levelled against him were established. Having regard to this antecedent history, it is inconceivable that the impugned order could have been passed by any valid exereise of power, authority and jurisdiction. Be it stated that the result of the inquiry has become final and that the findings recorded in the course of the said inquiry could not have been ignored by the Director General and Inspector General of Police while passing the impugned order and he could not possibly have reached a conclusion contrary to that reached in the course of the said inquiry by the competent authority and he could not have visited the petitioner with the penalty of reversion/reduction in rank. In the last place, even assuming, without conceding, that what has been effected is a mere transfer from one post to another, it is apparent that the transfer is penal in nature. It is apparent that what could not be done directly is sought to be done indirectly. The power ought not and could not have been validly exercised in that manner. No conclusion, therefore, is possible other than that the impugned order was passed without power, authority and jurisdiction and that it is null and void.
17. For the foregoing reasons, individually and collectively, the impugned order is declared as null and void and having no force in the eye of law. The petitioner will be treated as having continued to render service as Police Driver on and with effect from September 23, 1982 and he will be forthwith permitted to perform such duties hereafter without any let or hindrance. The petitioner will be paid his back wages to which he becomes entitled as a result of his success in the present petition and such payment will be made to him within a period of four weeks from the date of the receipt of the writ.
Rule made absolute accordingly with costs.