Punjabhai Merkhibhai Bharai Vs. State [Gujarat High Court, 23-06-2016]

Contents

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and HONOURABLE MR.JUSTICE G.R.UDHWANI

Date : 23/06/2016

LETTERS PATENT APPEAL NO. 437 of 2013

In SPECIAL CIVIL APPLICATION NO. 1425 of 2013

PUNJABHAI MERKHIBHAI BHARAI & 7….Appellant(s)

Versus

STATE OF GUJARAT THROUGH SECRETARY & 40….Respondent(s)

Appearance: MR ASIM PANDYA, ADVOCATE with MR K S CHANDRANI, ADVOCATE for the MR UTKARSH SHARMA, ASSTT. GOVERNMENT PLEADER for the MR PREMAL S RACHH, ADVOCATE for the Respondent(s) No. 11 – 12 , 14 – 16 , 18 MR YN OZA, SR. ADVOCATE with MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 3 – 6 , 17 , 21 , 23 – 24 , 26 – 27 , 29 , 31 – 32 , 38 – 40 MRS.DHARITA P MALKAN, ADVOCATE for the Respondent(s) No. 13 MS.KHUSHBOO V MALKAN, ADVOCATE for the Respondent(s) No. 13 RULE SERVED for the Respondent(s) No. 2 , 7 – 10 , 19 – 20 , 22 , 25 , 28 , 30 , 33 – 36 , 41 UNSERVED-EXPIRED (N) for the Respondent(s) No. 37

JUDGMENT

(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

1. This letters patent appeal is directed against the judgment and order dated 12.02.2013 passed by the learned Single Judge in Special Civil Application No.1425 of 2013 whereby, the petition has been summarily dismissed.

2. The appellants herein (original petitioners) had filed the above referred writ petition being Special Civil Application No.1425 of 2013 seeking the following substantive reliefs:

“(18) In the above-said premises, the petitioners pray that:-

[A] This Hon’ble Court may kindly be pleased to declare the proviso to Rule 2, sub-rule (2) Clause (a) of the Police Sub-Inspector (Unarmed) Class-III Recruitment Rules, 2008, as amended by the Police Sub-Inspector (Unarmed) Class-III Recruitment (Amendment) Rules, 2012, being violative of Articles 14, 16 and 21 of the Constitution of India;

IN THE ALTERNATIVE

[A] This Hon’ble Court may kindly be pleased to read the word “and” in the phrase “has applied and appeared” as “Or” in the proviso Rule 2, sub-rule (ii) clause (a) of the Police Sub-Inspector (Unarmed) Class-III Recruitment Rules, 2008, as amended by the Police Sub-Inspector (Unarmed) Class-III Recruitment (Amendment) Rules, 2012;

[B] This Hon’ble Court may kindly be pleased to issue appropriate writ, order or direction directing the respondents to treat all the petitioners who had filed petitions in the year 2009 and who were permitted to fill up the forms for the competitive examination to be held in 2009 as a single and uniform class of candidates and to give them equal treatment in the matter of promotion to the post of Police Sub-Inspector (Unarmed) and the respondents be further directed to hold a competitive examination specially for the petitioners and other candidates left out from appearing in the examination held in the year 2009 by the wrongful action of the respondents;”

3. The facts stated briefly are that in the year 2009, a large number of petitions came to be filed by several Constables serving in the Gujarat State Police Services, challenging the validity of the rule 2 of the Police Sub-Inspector (Unarmed), Class III, Recruitment Rules, 2008 (hereinafter referred to as the “rules”) and other ancillary reliefs. In the said petitions, the main grievance of the petitioners was that in some districts, the Constables would get chance to become Head Constable or Assistant Sub-Inspector by fortuitous circumstances much earlier than the persons working on the post of Constables in other district. In some districts, despite working for more than twelve to fifteen years on the post of Constable, the candidates had no opportunity to get promotion to the post of Head Constable or Assistant Sub-Inspector. It was the policy at the relevant time to give higher grade pay to the Constables who had worked for more than nine years and to treat those Constables on a par with the Head Constables. The petitioners, in those petitions, therefore, claimed that they should be allowed to appear in the competitive examination for promotion to the post of Police Sub-Inspector considering them as having worked as Head Constables after nine years of service, thereby fulfilling the eligibility criteria for appearing in the competitive examination for the promotional post of Police Sub-Inspector. By an interim order dated 26.05.2009 made in the said petitions, the respondents were directed to accept the application forms of the petitioners therein for the competitive examination to be held by the respondents in the year 2009. Pursuant to the said interim orders issued by this court in those petitions, the forms of the appellants herein as well as other petitioners were accepted. The said writ petitions being Special Civil Application No.4998 of 2009 and cognate matters, came to be decided by a common judgment dated 28.08.2009 whereby, the learned Single Judge dismissed the petitions and vacated the ad-interim relief granted earlier.

4. Against the said judgment and order dated 28.08.2009, some of the said petitioners filed letters patent appeals on 01.09.2009, whereas some of them filed letters patent appeals on 04.09.2009. The competitive examination was to be held on 05.09.2009 and 06.09.2009. It appears that some of the letters patent appeals came to be listed for hearing on 03.09.2009 before the Division Bench which, by an order dated 03.09.2009 passed in Civil Application for Stay No.9453 of 2009 in Letters Patent Appeal No.1628 of 2009 and cognate matters, directed the respondents to allow the applicants before it, who had earlier been permitted to fill up the forms, to appear in the examination, subject to the final result of the appeals. The Division Bench further directed that the result of the examination of the applicants therein will not be declared till the appeals are decided and shall be kept in a sealed cover. It was observed that if the applicants succeed, the result would be declared and only the successful candidates at the examination would be considered for promotion as per the rules, but at the same time, the successful applicants shall be precluded from claiming equity of any kind either by way of seniority or promotion. It was further clarified that such directions were by way of interim relief till the final disposal of the appeals.

5. Pursuant to the above order, not only the applicants in the letters patent appeals, but four other candidates who had not preferred letters patent appeals on 01.09.2009, but on 04.09.2009, were also called to appear in the competititve examination to be held by the department on 05.09.2009 and 06.09.2009. Not only that, three candidates who had not preferred letters patent appeals were also called to appear in the said examination, whereas the petitioners and several other persons who had been allowed to fill up their forms by virtue of the interim orders passed by the learned Single Judge, were not called to appear in the examination.

6. It is the case of the appellants that in all forty one candidates were allowed to appear in the competitive examination selectively and arbitrarily without applying any logical criterion for determining their eligibility. The results of all those persons who were allowed to appear in the examination were kept in a sealed cover as per the interim direction issued by this court vide its order dated 03.09.2009 passed in the above letters patent appeals.

7. During the pendency of the above letters patent appeals, the first respondent, in exercise of powers conferred by clause (b) of section 5 of the Gujarat Police Act, 1951, made rules called the Police Sub-Inspector (Unarmed) Class III, Recruitment (Amendment) Rules, 2012 (hereinafter referred to as the “amendment rules”) to amend the Police Sub-Inspector (Unarmed), Class III, Rules, 2008 whereby, clause (a) of sub- rule (2) of rule 2 of the said rules came to be substituted by providing that the appointment to the post of Police Sub- Inspector (Unarmed) Class III in the Gujarat State Police Services shall also be made by promotion of a person on the basis of merit rank obtained in the special competitive examination conducted in accordance with the rules prescribed by the Government in that behalf and who have worked for not less than fifteen years combinedly or separately in the cadre of Assistant Sub-Inspector (Unarmed), Class III or Head Constable (Unarmed), Class III or Constable (Unarmed), Class III in the Gujarat Police Service. Since by the aforesaid amendment, the major grievance of the appellants of all letters patent appeals came to be redressed, the letters patent appeals were disposed of by a common order dated 27.06.2012 without entering into the merits of the case. After the aforesaid amendment in the rules, some of the appellants made representations to the respondents whereby, they claimed equal treatment in the matter of promotion and requested the respondents to hold a competitive examination for them as the appellants and those candidates who were allowed to appear in the examination held in 2009 were similarly situated. However, the respondents have failed to extend equal treatment to the appellants. It appears that out of 41 candidates who were permitted to appear in the competitive examination, promotion of 39 candidates to the post of Police Sub Inspector (Unarmed) was being considered by the respondent State authorities and such fact came to the knowledge of the appellants by FAX dated 03.01.2013 and 07.01.2013 (Annexure “I” collectively to the petition). It was the case of the appellants that the candidates, who were equally situated to the appellants, were being treated unequally by the respondent State authorities in the matter of promotion to the post of Police Sub-Inspector (Unarmed), which was clearly violative of Articles 14, 16 and 21 of the Constitution of India. Since the case of thirty nine persons for promotion was being considered on the basis of the proviso to clause (a) of sub-rule (2) of rule 2 of the rules as amended by the Police Sub-Inspector (Unarmed), Class III, Recruitment (Amendment) Rules, 2012, the appellants herein (original petitioners) have filed the captioned writ petition seeking the reliefs noted hereinabove.

8. Mr. Asim Pandya, learned advocate appearing with Mr. K.C. Chandrani, learned advocate for the appellants, assailed the impugned judgment and order by submitting that the learned Single Judge has erred in holding that the appellants herein were satisfied with their inclusion or their consideration in the examination to be conducted in the future and that they having consented for the appeals to be disposed of, were not entitled to any relief, inasmuch as, nothing prevented the appellants from agitating their grievances and continuing with the appeals so as to claim and safeguard their rights, if any, arising out of their only filling in the form and not appearing in the examination. It was submitted that in the earlier round, there was no challenge to the validity of the amended rules which were enacted and brought into force during the pendency of the letters patent appeals. Reference was made to the order dated 27.06.2012 passed by the Division Bench in Letters Patent Appeal No.1655 of 2009 and allied matters, to point out that the court had observed that in view of the amendment brought about by the amendment rules, the appeals did not survive for any order as the said rules would govern all the cases including the cases of the appellants therein. It was submitted that the impugned judgment and order suffers from various infirmities, viz., that it has been held that since the earlier letters patent appeals have been disposed of by recording that the new rules would govern the case, they are now precluded from challenging the amended rules. It was submitted that the subject matter in the letters patent appeals related to the unamended rules, under the circumstances, the appellants would not be precluded from challenging the amended rules as the same give rise to a fresh cause of action.

8.1 Referring to the facts of the case, as averred in the memorandum of petition, it was pointed out that not all the thirty nine persons who were promoted by giving them the benefit of the proviso to clause (a) of sub-rule (2) of rule 2 of the rules had appeared in the examination pursuant to the interim order passed by the Division Bench. It was pointed out that Jaymalbhai Rajabhai Karotara and Janaksinh Gajubha Rana had filed letters patent appeal on 04.09.2009, despite which they were allowed to appear in the competitive examination held on 05.09.2009 and 06.09.2009. It was submitted that one Karsanbhai Punjabhai Mehta had not even filed letters patent appeal, but he was allowed to appear in the examination. One Rajendrasinh Parbatsinh Chudasama was one of the petitioners in Special Civil Application No.5102 of 2009, wherein the appellant No.2 herein was also a party, but Rajendrasinh was allowed to appear in the examination, whereas the appellant No.2 herein was not allowed to appear in the examination. Similarly, Mulrajsinh Surubha Rana who had filed letters patent appeal on 04.09.2009, was allowed to appear in the examination, and Jayprakash Ramtejbhai Shukla who had not filed any letters patent appeal, was also called to appear in the examination by FAX dated 04.09.2009. It was pointed out that Shaktisinh Yashwantsinh Zala, Arvindsinh Bharatsinh Jadeja and Rameshbhai Kanabhai Vania were petitioners in Special Civil Application No.5208 of 2009, wherein the appellants No.1, 3, 4, 5, 6 and 8 herein were also petitioners, but for reasons best known to the respondent State authorities, the aforesaid three persons were called and allowed to appear in the examination, whereas the appellants herein were not given similar treatment. It was also pointed out that for reasons best known to the respondent State authorities, all the petitioners of Special Civil Application No.5034 of 2009 were allowed to appear in the examination, whether or not they had filed letters patent appeals. It was argued that the respondent State authorities have, therefore, in an arbitrary and irrational manner, selectively allowed forty one candidates to appear in the examination and deprived the appellants and other similarly situated persons who were permitted to fill in the examination forms of the chance to appear in the examination and thereby, have sought to create two different classes of candidates, namely, those who “applied” and the those who “applied and appeared in the examination”. It was contended that the aforesaid act on the part of the respondent State authorities on the face of it is arbitrary, illegal and irrational and hence, violative of Articles 14, 16 and 21 of the Constitution of India.

8.2 It was pointed out that by virtue of the proviso, the private respondents who had appeared in the competitive examination and cleared the same are held to be eligible for being appointed on the post of Sub-Inspector, despite the fact that, in 2009, thirty one of them were not qualified even as per the amended rules to appear in the said examination. It was submitted that it was only on account of a fortuitous circumstance, viz., that some of the private respondents had filed letters patent appeal on 1.9.2009 and were granted interim relief by this court vide order dated 3.9.2009, and were accordingly permitted to appear in the examination. Referring to paragraph 5 of the order dated 03.09.2009 passed by the Division Bench in Civil Application No.9453 of 2009 in Letters Patent Appeal No.1628 of 2009 and allied matters, it was pointed out that, out of 110 persons who had been permitted to fill up the forms, the respondents selectively called thirty nine persons for appearing in the examination by giving them preferential treatment. Referring to the impugned proviso, it was submitted that a final order passed by the court can be the basis for rational classification, but an interim order cannot be the basis for such classification. It was submitted that the appellants and those candidates who are covered by the impugned proviso, form a single class of persons, all of whom were not qualified at the time when the competitive examination was held. It was submitted that there is no intelligible differentia between the class created and the class left out. It was contended that the object behind the classification must have a rational nexus to the classification and the object sought to the achieved, whereas in the present case there is no rational nexus to the object sought to be achieved. It was, accordingly, urged that the proviso is clearly discriminatory and needs to be struck down.

8.3 As to what is the court’s role as a primary reviewing authority, the learned counsel placed reliance upon the decision of the Supreme Court in

# Om Kumar v. Union of India, AIR 2000 SC 3689

for the proposition that where an administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the constitutional courts as primary reviewing courts to consider the correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective to be achieved by the Adminstrator .It was submitted that in case of legislative action the above decision would apply with more vigour. Reliance was placed upon the decision of the Supreme Court in the case of

# S. Seshachalam v. Bar Council of T.N., (2014) 16 SCC 72 : 2015 (1) GLH 127 (SC)

for the proposition that Article 14 forbids class legislation but it does not forbid reasonable classification. Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons all of whom stand in the same relation to the privilege granted and between those on whom the privilege is conferred and the persons not so favoured, no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege. Classification to be reasonable must fulfil the following two conditions: firstly, the classification must be founded on the intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group. Secondly, the differentia must have a rational relation to the object sought to be achieved by the Act.

8.4 It was, accordingly, submitted that the impugned proviso to clause (a) of sub-rule (2) of rule 2 of the rules is liable to be struck down as being arbitrary, discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India. Alternatively, it was submitted that the respondents be directed to hold supplementary examinations for the appellants and give deemed date of promotion. It was pointed out that since 2009, no competitive examinations have been held till date and that the appellants have not been able to avail of the benefit of the amended rules.

8.5 Referring to the advertisement dated 08.05.2009, issued by the respondents for recruitment to 544 vacant posts of Police Sub-Inspectors, it was pointed out that general instruction 14 thereunder clearly provided that the recruitment process shall be entirely subject to the prevailing recruitment rules, viz., the 2008 rules. The attention of the court was also invited to general instructions 5 and 6 to point out that as per instruction 5, those Head Constables/ Assistant Sub-Inspectors who did not fulfill the prescribed eligibility criteria were expressly barred from making any application and that, it was further clarified that such applications would not be accepted; and that as per instruction 6, it was stated that no correspondence/applications be made to the said office for relaxation in the eligibility conditions/experience of the employees. That such applications shall not be taken into consideration, nor shall any reply be given in response thereto. It was submitted that therefore, the persons who approached this court formed a single class and therefore, the artificial classification created by the respondent State authorities for the purpose of conferring the benefit upon the private respondents is violative of Articles 14 and 16 of the Constitution of India.

8.6 Reliance was placed upon the decision of the Supreme Court in the case of

# Subramanian Swamy v. Director, Central Bureau of Investigation, (2014) 8 SCC 682

for the proposition that the Constitution permits the State to determine, by the process of classification, what should be regarded as a class for purposes of legislation and in relation to law enacted on a particular subject. There is bound to be some degree of inequality when there is segregation of one class from the other. However, such segregation must be rational and not artificial or evasive. In other words, the classification must not only be based on some qualities or characteristics, which are to be found in all persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation.

8.7 Referring to the impugned judgment and order, it was submitted that the learned Single Judge has dismissed the petition on the ground of concession given by the learned counsel for the appellants for disposal of the appeal. It was submitted that it is settled legal position that wrong consent given by a counsel is not binding upon parties as there can be no estoppel against a statute. In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of

# Union of India v. Mohanlal Likumal Punjabi, (2004) 3 SCC 628 : AIR 2004 SC 1704

for the proposition that the applicability of the statute or otherwise to a given situation or the question of statutory liability of a person/institution under any provision of law would invariably depend upon the scope and meaning of the provisions concerned and has got to be adjudged not on any concession made. Any such concession would have no acceptability or relevance while determining rights and liabilities incurred or acquired in view of the axiomatic principle, without exception, that there can be no estoppel against statute. It was submitted that therefore, the finding recorded by the learned Single Judge in respect of estoppel is not sustainable.

8.8 In conclusion, it was submitted that the impugned proviso being violative of Articles 14, 16 and 21 of the Constitution of India is required to be struck down and that, alternatively, the respondents be directed to hold a supplementary examination for the appellants and similarly situated persons, and be granted benefits of a parity with the private respondents.

9. Vehemently opposing the petitions, Mr. Y. N. Oza, Senior Advocate, learned counsel with Mr. S. P. Majmudar, learned advocate for the respondents No.3 to 6, 17, 21, 23-24, 26-27, 29, 31-32, 38 to 40, supported the impugned judgment and order. Reference was made to the order dated 20.05.2009 made in Special Civil Application No.5034 of 2009 wherein, the court, by way of ad interim relief had directed the respondents to accept the application forms of the petitioners therein, to point out that pursuant to such orders passed by the court, in all 111 petitioners had filled forms for appearing in the competitive examination. However, vide order dated 03.09.2009 passed by the Division Bench on the civil applications for stay filed in Letters Patent Appeal No.1628 and allied matters, the appellants therein were permitted to appear in the competitive examination. It was pointed out that the interim relief granted by the court was based upon the decision of the Supreme Court in

# Mohd Usman v. State of A.P., AIR 1971 SC 1801

9.1 Next, it was submitted that the petition filed by the appellants herein is barred by non-joinder of necessary parties. The attention of the court was invited to the cause title of the petition, to point out that the respondents No.3 to 41 (hereinafter referred to as the “private respondents”) were not joined as respondents therein, to submit that therefore, the court should not entertain the appeal in relation to any relief qua the private respondents. Referring to the prayer clause, it was pointed out that while the proviso to clause (a) of sub-rule (2) of rule 2 of the rules, on the basis of which the private respondents were given appointments to the post of Police Sub-Inspectors has been challenged, however, the appointments of the said respondents have not been challenged. Under the circumstances, no effective relief can be granted to the appellants and hence, the issue involved in this case has become academic. It was contended that the appellants ought to have joined the affected respondents as parties and that the appeals should fail on the ground of non- joinder of necessary parties alone.

9.2 In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of

# High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal, (1998) 3 SCC 72

for the proposition that academic questions, viz. questions which are not necessary to be decided need not be adverted to. Reliance was also placed upon the decision of the Supreme Court in the case of

# Rajinder Prasad Aggarwal v. Chief Metropolitan Magistrate, 1985 Supp SCC 607

wherein the court observed that the decision of the question involved therein had become academic so far as the said writ petition was concerned and, it, therefore, did not propose to decide such question in the said writ petition. It was submitted that in the present case, the principal prayer prayed in the petition having become academic, this court would not enter into the merits of the question and decide it, as the same has become academic.

9.3 Reference was made to the interim relief granted by the Division Bench vide order dated 03.09.2009, to submit that if the appellants were not satisfied with the amended rules they should have pursued the letters patent appeals. It was pointed out that the letters patent appeals came to be disposed of in the year 2012 and it is only after the affected respondents were appointed that the proviso came to be challenged and hence, the petition is also barred by delay and laches. Reliance was placed upon the decision of the Supreme Court in the case of

# Ghulam Rasool Lone v. State of J&K, (2009) 15 SCC 321

for the proposition that the discretionary jurisdiction under Article 226 of the Constitution may be denied on the ground of delay and laches. It is now well settled that one who claims equity, must enforce his claim within a reasonable time. For sufficient or cogent reasons a court may in a given case refuse to exercise its jurisdiction; delay and laches being one of them.

9.4 Next, it was submitted that the appellants have not prayed for any relief challenging the appointments of the private respondents and hence, this court would not grant any relief except those that are specifically prayed for. It was contended that insofar as the principal relief challenging the proviso to clause (a) of sub-rule (2) of rule 2 of the rules is concerned, the same has become academic in the absence of any challenge to the appointments of the private respondents, whereas the alternate relief prayed for being contradictory to the principal relief also cannot be granted. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of

# Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi, (2010) 1 SCC 234 : (2010) 1 SCC (Cri) 757

for the proposition that though the High Court has power to mould reliefs to meet the requirements of each case, that does not mean that the draftsman of a writ petition should not apply his mind to the proper relief which should be asked for and throw the entire burden of it upon the court.

9.5 It was argued that there is no prayer against the private respondents and that since the principal relief prayed for in the petition directly affects them, the appellants should have joined them as respondents in the writ petition and that in the absence of the private respondents being joined as parties, no effective relief can be granted in the present appeal. In support of such submission, reliance was placed upon the decision of this court in

# Vyas Prakashkumar Gunvantbhai v. State of Gujarat

rendered on 28.12.2012 in Special Civil Application No.16140 of 2006 and allied matters, wherein the court in a case where there was violation of the reservation policy, observed that while directing the State respondent to refix the entire select list, it had thought to direct that those seventy candidates be excluded from the select list, but taking note of the fact that they were not before it as party respondents and further that they were serving since past almost six years, it was not inclined to disturb them at that stage. Reliance was also placed upon an unreported decision of this court in the case of

# Issan Overseas Ltd. v. Abhyuday Co-operative Bank Ltd.

and others rendered on 26.09.2012 in Special Civil Application No.7338 of 2010 for the proposition that it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion may refuse to interfere in larger public interest. The mere illegality of an action or even if an order under challenge is not found to be in accordance with law would not by itself be enough for the court to interfere if it is found that any such intervention would cause inconvenience or hardship to a sizeable section of the public, who have acted bonafide or were not in any way responsible for the illegality in question.

The court placed reliance upon the decision of the Supreme Court in the case of

# A. M. Alison and another v. B. L. Sen and others, AIR 1957 SC 227

for the proposition that the jurisdiction exercised by the writ court is an equitable jurisdiction and if, ultimately, by the impugned decision, there has not been any material injustice, the writ court may be well justified in refusing to interfere simply because there has been some infraction of law. Reliance was also placed upon the decision of the Supreme Court in the case of

# Ishwar Singh v. Kuldip Singh, 1995 Supp (1) SCC 179

as well as the decision of the Supreme Court in the case of

# Inder Parkash Gupta v. State of J&K, (2004) 6 SCC 786

wherein the court observed that in the ordinary course, it would have allowed the appeal, but it could not lose sight of the fact that the selections had been made in the year 1994. A valuable period of ten years has elapsed. The private respondents had been working on their posts for the last ten years. The court held that it is trite that with a view to do complete justice between the parties, in a given case it may not exercise its jurisdiction under Article 136 of the Constitution of India. Mr. Oza submitted that in the facts of the present case, the private respondents, pursuant to the interim orders passed by the High Court, had appeared in the special competitive examination held in the year 2009 and had cleared the same. The private respondents are eligible to be appointed on the post of Police Sub-Inspector (Unarmed), Class III by virtue of the amended rules and hence, it cannot be said that there is any material injustice and hence, this court would be justified in refusing to interfere having regard to the facts of the present case.

9.6 Next, it was submitted that in the letters patent appeal, the appointments of the private respondents has not been challenged. According to the learned counsel, withdrawal of letters patent appeals is an end of the matter and a subsequent petition is barred by the principle of res judicata. Referring to the grounds of appeal, it was submitted that upto ground (x), there is not even a whisper that the appointment of the private respondents is bad. It was contended that even if the rule is set aside, the appellants will have to challenge the appointments. It was submitted that the letters patent appeals having been disposed of, the bar of res judicata will operate. It was contended that the decisions cited by the learned counsel for the appellants would be applicable only if there are pleadings to that effect, whereas in the present case, no relief has been prayed for, nor is there any contention to the effect that the appointments are bad. It was also contended that the appellants have challenged a subordinate legislation and hence, a plea of arbitrariness or malice was available to them, however, no such fact has been pleaded.

9.7 According to the learned counsel, now it is too late in the day to challenge the appointments which have been made way back in the year 2013. It was argued that the appellants were all the time aware that the private respondents are being considered for appointment to the post of Police Sub-Inspector and were also aware that the private respondents were eligible by virtue of the statute. It was submitted that it is the consideration that matters and it is the consideration that binds and not the appointments. It was submitted that the departmental examination was conducted on 05.09.2009 and the appellants did nothing in the matter and even when the earlier letters patent appeals were proceeding on merits, they never raised any objection. That even when the new rules came into operation and the letters patent appeals were disposed of by this court by observing that the cases would be governed by the new rules, the present appellants never objected. It was submitted that much later, after a gross delay, the present appellants filed Special Civil Application No.1425 of 2013 challenging the new rules. It was submitted that the present appellants were disqualified even under the old rules which were subject matter of challenge in the earlier round of litigation and hence, they are not at all prejudiced by the introduction of the new rules. It was argued that even if the new rules are declared as ultra vires, the appellants herein would not be entitled to any relief, inasmuch as, they are not going to be promoted because they are not fulfilling the requirements even under the old rules. It was submitted that therefore, the challenge at the instance of such appellants is not maintainable and the letters patent appeal deserves to be dismissed on this ground.

9.8 On the question of the validity of the impugned proviso to sub-rule (2) of rule 2 of the rules, the learned counsel submitted that the same is not violative of Article 14 of the Constitution of India as it does not create any separate class as alleged. It was submitted that there is a presumption about the validity of statute in every case and that assuming that the proviso is struck down, even then the promotions of the answering respondents cannot be set aside since they are working as Police Sub-Inspectors since more than three and half years and their promotions are not subject matter of challenge. It was contended that by joining the answering respondents at the appellate stage, the defect that the answering respondents were not joined before the learned Single Judge cannot be cured. It was submitted that the appellants were the persons who were sitting on the fence and permitted the entire exercise to be completed and thus, now upsetting the promotions at the instance of such persons, is not permissible.

9.9 It was contended that the impugned proviso merely states that the persons falling in sub-clause (ii) who have applied and appeared in the special competitive examination held in the year 2009, shall also be considered being eligible for appointment subject to fulfillment of other conditions. Thus, the impugned proviso merely says that such persons who are covered in the proviso shall fall within the zone of consideration for promotion by the State Government and it is ultimately the State Government which has to give such promotion. Thus, on this count also, it cannot be said that the proviso is ultra vires the provisions of Articles 14 and 16 of the Constitution of India.

9.10 Lastly it was reiterated that the non joinder of the private respondents as parties in the writ petition is fatal and cannot be cured at the appellate stage.

10. Mr. Utkarsh Sharma, learned Assistant Government Pleader appearing on behalf of the respondent State authorities supported the impugned judgment and order by submitting that by the order passed by the Division Bench in Civil Application No.9453 of 2009 and allied matters, those applicants were permitted to appear in the examination held on 5th and 6th September, 2009 and that the appellants in the present case were not permitted by any order of this court and hence, were not allowed to appear in the examination and that the results of those candidates who were permitted to appear in the examination pursuant to the interim orders passed by this court were kept in a sealed cover. It was submitted that subsequently, during the pendency of the letters patent appeals, vide notification dated 21.06.2012, the Recruitment Rules of 2008 came to be amended, on account of which, the grievance of the appellants in those appeals was resolved and hence, with the consent of the learned counsel for the respective parties, the letters patent appeals came to be disposed of without entering into the merits of the case. It was contended that the appellants herein having consented to the disposal of the letters patent appeals filed by them as they were satisfied with the amendment of the rules, cannot now be permitted to challenge the amended rules on the ground that the same forms a fresh cause of action.

10.1 The attention of the court was invited to the impugned judgment and order to submit that before the learned Single Judge, the appellants were not in a position to give any satisfactory explanation as to why no grievance was made when the letters patent appeals were alive. It was argued that while challenging the proviso, in effect and substance, the appellants seek a direction to the respondent to hold competitive examination. It was urged that the appellants cannot be permitted to challenge the selection process that took place in the year 2009 at this stage when the entire process is completed and the selected candidates are working as Police Sub-Inspectors since 16.02.2013.

10.2 It was submitted that in view of the disposal of the letters patent appeals, the results which were kept in sealed covers were opened and declared and 37 out of the 49 candidates whose results were kept in sealed covers were given appointments to the post of Police Sub-Inspector (Unarmed), Class-III and such candidates are discharging duties on such post since 16.2.2013. It was submitted that it was only on 01.09.2012, that the appellants made a representation to the Director General of Police and Inspector General of Police for conducting the examination and considering their case. It was submitted that the interim order dated 03.09.2009 passed in the Letters Patent Appeal No.1628 of 2009 and allied matters has merged with the amended rule, to be more specific with the proviso, and that the same has in turn merged with the final order dated 27.06.2012 disposing of the letters patent appeals, wherein the court has taken judicial notice of the amended rule and has observed that “the aforesaid rules would govern all the cases” and that, it was only after the consent of the parties, that the said group of matters were disposed of, except Letters patent Appeal No.1628 of 2009, wherein the facts were different and there was no relaxation in appearing in the examination which was disposed of by order dated 02.11.2012.

10.3 It was submitted that the impugned proviso is, in no manner, violative of Articles 14, 16 and 21 of the Constitution of India, inasmuch as, the appellants and those who are being governed by the said proviso are distinct from each other and, therefore, the pre-requisite to allege violation of Articles 14 and 16 of the Constitution of India is not fulfilled because of the already existing distinct features between two groups. It was contended that the amended rules and the proviso thereto does not give any discriminatory treatment to the appellants, which is also evident from the alternative prayer made by the appellants, which clarifies that it is the appearance in the examination which is the distinctive feature and the appellants want to overcome the same by reading “or” instead of “and” in the said proviso. It was contended that the appellants have completely ignored the fact that when the rule itself governs only those who have appeared in special competitive examination, those who have merely made applications, cannot be considered thereunder.

10.4 It was submitted that it is only those candidates who preferred applications seeking interim orders from this court who were permitted to appear in the examination and therefore, such candidates form a separate class of persons who were protected by orders of this court. It was submitted that the amended rule, in fact, has taken care of the grievances of the original petitioners – appellants in the first round of litigation and the proviso was added only with an intention to give effect to the interim order passed by this court, whereby, a few applicants were permitted to appear in the special competitive examination. It was submitted that the appellants have not been able to establish that any prejudice has been caused to them because of the amended rule or its proviso, especially, as the rule and its proviso only govern those who had appeared in the examination and the appellants had at no point of time appeared in the examination and neither did they make any such grievance before this court in the first round of litigation and therefore, when certain individuals have been permitted to appear in the examination by this court vide its interim order dated 03.09.2009 passed in Letters Patent Appeal No.1628 of 2009 and allied matters and others have not been permitted or have preferred not to approach this court seeking such permission or indulgence, such individuals cannot claim parity at this stage. It was, therefore, submitted that it cannot be said that the State has denied equal opportunity to the appellants.

10.5 It was further submitted that the applications made by the appellants, who were parties to the previous round of litigation, were accepted pursuant to the interim orders of this court in the writ petitions filed by them, which finally came to be dismissed by order dated 28.08.2009, and thereafter, they did not pursue their remedy further by seeking any permission to appear in the examination in the letters patent appeal. It was contended that when some relief has been granted to one set of individuals to appear in the examination by specific order, the appellants cannot raise any grievance about the same, that too, without challenging the same or exhausting any independent remedy at the given point of time. Therefore, the appellants are conveniently reading the orders and the provisions in part and if their contentions are accepted, the same, in fact, would be contrary to law. It was, accordingly, urged that the appeal being devoid of merits, deserves to be dismissed.

11. Mr. Premal Rachh, learned advocate for the respondents No.11, 12, 14-16 and 18 and Ms. Khushboo Malkan, learned advocate for the respondent No.13 adopted the submissions advanced on behalf of the private respondents. Despite service of notice of rule, there is no appearance on behalf of the respondents No.2, 7-10, 19-20, 22, 25, 28, 33-36 and 41.

12. In rejoinder, Mr. Asim Pandya, learned advocate for the appellants submitted that the impugned proviso to clause (a) of sub-rule (2) of rule 2 of the rules, being ultra vires Articles 14 and 16 of the Constitution of India, does not confer any right upon the private respondents. It was submitted that even if no relief has been prayed for challenging their appointments, but a factual foundation has been laid, and hence, this court has ample powers to mould the relief. Reliance was placed upon the decision of the Supreme Court in the case of

# Rajesh Kumar v. State of Bihar, (2013) 4 SCC 690 : AIR 2013 SC 2652

for the proposition that it is wholly incorrect to say that the relief prayed for by the petitioners could not be granted to them simply because there was no prayer for the same. The court held that the power of the court to mould the relief is well recognised and is available to a writ court to do complete justice between the parties. The decision of the Supreme Court in the case of

# Jai Prakash Gupta v. Riyaz Ahamad, (2009) 10 SCC 197 : AIR 2010 SC Supp. 294

was cited for the proposition that it is a settled proposition of law that subsequent developments of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court, even at any stage of the proceeding, is not precluded from taking a cautious cognizance of the subsequent developments of fact and law to mould the relief. Reliance was also placed upon the decision of the Supreme Court in the case of

# Justice S.K. Ray v. State of Orissa, (2003) 4 SCC 21

wherein it has been held that maybe, in a given case, the reliefs set forth may not clearly set out the reliefs arising out of the facts and circumstances of the case. However, the courts always have the power to mould the reliefs and grant the same. It was submitted that once the proviso is challenged as being unconstitutional, the consequential relief would follow and hence, no consequential relief is required to be prayed for. Even otherwise, the court can mould the relief considering the subsequent developments.

12.1 It was submitted that there is no delay in filing the petition or the letters patent appeal, inasmuch as, the petition was filed on 07.02.2013, whereas the cause of action arose on 3rd and 7th of January, 2013 when the thirty nine affected candidates who appeared and cleared the examination in 2009 were being considered for promotion to the post of Police Sub- Inspector. Thus, the cause of action for filing the petition arose for the first time in the month of January, 2013. The learned Single Judge dismissed the petition by the judgment and order dated 12.02.2013, whereas the letters patent appeal came to be filed on 12.03.2013. It was submitted that therefore, it cannot be said that the petitioners – appellants had filed the special civil application after a long delay and that, in fact, the petition came to be filed within a period of one month from the date when the petitioners came to know about the fact that the candidates who were allowed to appear in the examination by virtue of the interim order of this court were being considered for promotion to the post of Police Sub-Inspector.

12.2 Next, it was submitted that it is relevant to note that when the petition came to be filed, the private respondents were not appointed on the posts of Police Sub-Inspector. It was submitted that the private respondents who were allowed to appear in the examination vide interim order dated 03.09.2009 and otherwise, were given promotions to the post of Police Sub-Inspector on 16.02.2013, after the dismissal of the writ petition and before the letters patent appeals came to be filed. It was pointed out that the Letters Patent Bench, by an order dated 17th September, 2013, directed the appellants to join the affected thirty nine candidates as respondents in the letters patent appeal so that the letters patent appeal could be adjudicated effectively.

12.3 Next, it was submitted that the argument of the learned advocate appearing for the private respondents that the appellants had filed the petition after delay and that the appellants had not challenged the validity of the amended rule immediately, is without any substance, inasmuch as, it is settled legal position as held by the Supreme Court in the case of

# M/s. Kusum Ignots and Alloys Ltd. v. Union of India and another, AIR 2004 SC 2321

that the validity of a statute cannot be challenged in a vaccum. Unless a cause of action arises, it is not permissible to challenge the validity of a statute in abstract. It was submitted that thus, the appellants could not have challenged the validity of the amended rule unless and until the rule was enforced to the prejudice of the appellants.

12.4 As regards the contention that the appellants had not made any efforts to get the letters patent appeals of the year 2009 allowed and to seek further relief therein, it was submitted that the said letters patents appeals survived for academic purpose only. It was submitted that at the relevant time when the said letters patent appeals came to be filed in the year 2009, the same had become academic because at the time of granting interim relief, the Letters Patent Bench did not direct the respondents to keep the posts of Police Sub Inspector vacant for the appellants therein. In view thereof, all 544 vacancies came to be filled up by the State Government in the year 2009. Thus, the applicants who were allowed to appear in the examination by virtue of the interim order and the appellants who approached the Letters Patent Bench after the interim order dated 03.09.2009, constituted a single uniform class of the candidates who were not qualified to appear in the examination held in 2009. Once the examination was over and all the posts were filled up, it was not possible for the Letters Patent Bench to put the clock back. Since all 544 vacancies were filled up by the respondents, even if the appellants who were permitted to appear in the examination by an interim order succeeded in the letters patent appeal, no effective relief could have been granted by this court in the absence of available vacancies. Thus, even if the previous rule had been declared ultra vires by this court in the year 2012, this court could not have granted any relief in favour of the appellants as the examination was already held and the vacancies were filled up. In the year 2012, the amended rule came into force and therefore, all future vacancies can be filled up by taking recourse of the amended rules only and hence, the court was wholly justified in disposing of the letters patent appeals of 2009 upon the amendment being brought about in sub-rule (2) of rule 2 of the rules.

12.5 It was contended that it is settled law that there can be no estoppel against the statute. According to the learned counsel, in the letters patent appeals of 2009, the appellants herein were not legally entitled to challenge the constitutional validity of the amended rules without laying a factual foundation therefor. Thus, the disposal of the previous letters patent appeals does not operate as an estoppel to challenge the validity of the amended rule and that there was no necessity in law to reserve liberty to challenge the amended rule by a fresh petition at the time of the disposal of the previous letters patent appeals. In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of

# Union of India and others v. Mohanlal Likumal Punjabi and others, AIR 2004 SC 1704

for the proposition that a wrong concession made by the counsel, cannot bind the parties.

12.6 As regards the contention that no relief challenging the appointment of the private respondents having been prayed for, the appeals have become academic, it was submitted that the petition was filed by the appellants at the stage when the actual promotions had not been given to the affected thirty nine candidates. In fact, the petition was filed at a stage when the promotions of the private respondents were under consideration. Since at the time when the petition was filed, the candidates had not been actually promoted, there was no question of seeking any final relief to quash their promotions. However, interim relief had been prayed for claiming that the thirty nine candidates may not be promoted to the higher post unless and until the case of the appellants was considered for promotion. The factual foundation challenging the action of the respondents of considering the case of only thirty nine candidates has already been laid in the memorandum of petition and in the prayer clause. Under the circumstances, considering the subsequent development of giving actual promotion to thirty nine candidates in February, 2013, this court is very much within its power to mould the final relief and grant consequential relief also. It was submitted that once all the thirty nine candidates have been made parties to the appeal with a view to adjudicating all the issues, the court can certainly mould the relief as the circumstances may demand.

12.7 It was, accordingly, urged that the impugned proviso being violative of Articles 14 and 16 of the Constitution of India, deserves to be struck down. Alternatively, it was submitted that the court may issue appropriate directions to protect the interest of thirty nine candidates and at the same time, remove the discriminatory treatment given to the present appellants in the matter of promotion to the post of Police Sub-Inspector in terms of the proposed directions as suggested in paragraph-6 of the submissions in rejoinder filed by the appellants.

13. In the backdrop of the facts and contentions noted hereinabove, the following questions arise for consideration in this appeal:

(i) Whether in view of the order dated 27.06.2012 made by the Division Bench in Letters Patent Appeal No.1655 of 2009 and allied matters, it was permissible for the appellants to challenge the proviso to sub-rule (2) of rule 2 of the rules and whether the writ petition was barred by the principle of res judicata?

(ii) Whether the letters patent appeal deserves to be dismissed on the ground of non-joinder of the private respondents at the stage of the writ petition?

(iii) Whether the writ petition was barred by delay and laches?

(iv) Whether the proviso to clause (a) of sub-rule (2) of rule 2 of the rules is violative of Articles 14 and 16 of the Constitution of India?

14. The undisputed facts are that the appellants and the private respondents had filed writ petitions before this court seeking a direction to the respondents to accept their applications for Recruitment of Police Sub-Inspector (Unarmed) Class-III by (Mode-2) Special Competitive Examination and permitting them to participate in the said recruitment process by considering them eligible and give them appointment as Police Sub-Inspector (Unarmed), Class-III, if they successfully pass out the written test, physical endurance test and oral test (interview) and further challenging the Police Sub-Inspector (Unarmed) Class-III Recruitment Rules, 2008, insofar as the rules considered only the Head Constables having three years of service as eligible for promotion to the post of P.S.I. by Mode-2 on the basis of Special Competitive Examination and insofar as the rules did not consider the Constables having more than twelve years of service as eligible for such promotion. By way of ad-interim relief, the respondents were directed to accept the forms submitted by all the petitioners, however, thereafter, by a common order dated 28.08.2009 passed in Special Civil Application No.4998 of 2009 and allied matters, such petitions came to be dismissed and the interim relief came to be vacated. The competitive exams were to be held on 5th and 6th September. Out of the original petitioners, some of the private respondents preferred letters patent appeals before the Division Bench. By an interim order dated 3rd September, 2009, the appellants therein were permitted to appear in the competitive examination. It appears that apart from the appellants therein, some other candidates were also called by the respondents to appear in the examinations. The results of all the candidates who were so permitted to appear in the competitive examination were kept in a sealed cover. During the pendency of the appeals, it appears that at the instance of the court, the respondents tried to resolve the issue.

15. This court has perused the original record of the respondents leading to the amendment in the rules which had been produced for its perusal by the learned Assistant Government Pleader. A perusal of the original record of the Government shows that pursuant to the court calling upon the respondents to come up with a fair proposal, the amendment to the rule was proposed. All throughout the rule is sought to be amended by substituting clause (a) in sub-rule (2) of rule 2 of the 2008 rules. However, sometime at the end, the proviso came to be abruptly inserted without any remarks in connection therewith. The proviso just appears without any noting as to why it is sought to be added and finds place in the final notification issued by the Government.

16. Accordingly, by the Police Sub-Inspector (Unarmed) Class- III Recruitment (Amendment) Rules, 2012, the sub-rule (2) of rule 2 of the 2008 rules came to be amended by substituting clause (a) of sub-rule (2) of rule 2 of the rules with the following:

“(a) (i) have worked for not less than three years either in the cadre of Assistant Sub-Inspector, (Unarmed), Class III or Head Constable (Unarmed), Class III in the Gujarat Police Service, or

(ii) have worked for not less than fifteen years combinedly or separately in the cadre of Assistant Sub- Inspector, (Unarmed), Class III or Head Constable (Unarmed), Class III or Constable (Unarmed) in the Gujarat State Police Service:

Provided that a person falling under sub-clause

(ii) of this clause who has applied and appeared in the special competitive examination for recruitment to the post held in the year 2009 shall also be considered eligible for appointment subject to fulfilment of other conditions.”

17. In view of the provisions of sub-clause (ii) of clause (a) of sub-rule (2) of rule 2 of the rules, the following relief prayed for in the said petitions, viz. ” to hold and declare that the recruitment rules of 2008 are arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India and hence bad in law insofar as they consider only the Head Constables having three years of service as eligible for promotion to the post of P.S.I. by Mode-2 on the basis of Special Competitive Examination and insofar as they do not consider the Constables having more than twelve years of service as eligible for such promotion” stood redressed. It may be further noted that the Division Bench while granting interim relief permitting the appellants before it to appear in the competitive examination, did not direct the respondents to keep any seats vacant. Consequently, pursuant to the said recruitment process all the 544 vacancies in connection with which the recruitment process had been carried out were filled up. Therefore, when the amendment in the rules came to be made vide notification dated 21st June, 2012 all the vacant posts which were advertised had already been filled up. In these circumstances, there was no question of raising any grievance with regard to the proviso to clause (a) of sub-rule (2) of rule 2 of the rules being violative of Articles 14 and 16 of the Constitution of India. In view of the amended rules, the letters patent appeals came to disposed of by a common order dated 27.06.2012 by observing that the amended rules would govern all the cases including the cases of the appellants.

18. It appears that after the disposal of the letters patent appeals, the respondents opened the sealed covers and it was found that out of the candidates who were permitted to appear in the examination, thirty nine cleared the same. However, it may be recalled that in the meanwhile, all the 544 vacancies for which the recruitment had been carried out, had been filled up. Nonetheless, the respondents No.1 and 2 took steps to accommodate the candidates who had been permitted to appear in the competitive examination pursuant to the interim order passed by this court. In this regard, from the documents placed on record by the learned Assistant Government Pleader, it appears that a letter dated 1.8/9.2012 came to be addressed by the Chairman PSI Recruitment Board to the Director General of Police and Inspector General of Police stating that out of the thirty nine candidates who did not possess the requisite qualification for appearing in the competitive examination held by the PSI Recruitment Board in the year 2009 for the post of unarmed P.S.I. (Mode-2) Class-3 and had been permitted to appear in the examination subject to their results being kept in a sealed cover as per the order passed by the High Court, as per the notification dated 21.6.2012 issued by the Home Department of the Government amending the recruitment rules of 2008, as per the oral order dated 27.6.2012 passed by the High Court in C.A. No.13261 in LPA No.1628/2009 and in the context of the letters at reference No.1 and 2 keeping in view 31.5.2009 as the eligibility date, a list of 21 eligible candidates along with their original forms are forwarded.

19. The letter dated 26th December, 2012 of the Under Secretary, Home Department, addressed to the Director General of Police makes interesting reading. The said letter as translated into English, reads thus:

“Having regard to your letter dated 7.9.2012 in the context of the above subject, you are informed that the provision for permitting police constables who have 15 years experience to appear in the competitive examination held for promotion to the post of Police Sub- Inspector (Unarmed) has come into effect by the notification dated 21.6.2012 issued by the Department. Therefore, only those candidates who have completed 15 years of service on the date of the said notification and have passed the examination for promotion to the post of police sub-inspector are entitled to the benefit of promotion only from the date of the notification.

As shown in your reference letter, the matter of considering 31.5.2009 as the cutoff date is not in accordance with the rules. Hence, it is not possible to accept the same.

Keeping in mind the above facts and subject to the order of the High Court (LPA No.1628/2009 in SCA 4998/2009 and other LPAs) the constables (candidates) who appeared in the 2009 Police Sub-Inspector Departmental Examination cannot be given the benefit of promotion with effect from 2009 as interpreted by him. Hence, as per the notification dated 21.6.2012 of the Department, the successful candidates may be considered for promotion to the post of Police Sub- Inspector with effect from the date of the publication of the notification, if other conditions are satisfied.

It is specially being brought to your notice that the recruitment process in the year 2009 had been made for 544 posts and keeping in view the court cases, out of the total posts filling up of proportionate posts should have been kept in abeyance but as informed by your office letter dated 20.12.12, appointments have been made on all the 544 posts. Hence, in this case, the employees be given appointments against the 298 posts which the Government has sanctioned for filling up after 2009 in Mode 2. Albeit, the sanction granted for making appointments against these posts shall be treated as sanction granted as a “special case” and shall not be considered as a precedent.

Out of the 298 posts of the pending recruitment process, after excluding that many posts, the Board shall be required to carry out the recruitment process for the remaining posts. After the process in this case is over, the Chairman, PSI Recruitment Board shall immediately have to ascertain as to exactly for how many posts of Mode-2 the examination is required to be held and inform the same in writing.

Moreover, you are informed that out of the posts of Police Sub-Inspector (Mode-2) which are now to be filled up, after excluding the posts of the police officers under consideration, a decision may be taken for organising competitive examinations for the remaining posts.

At the time of considering special promotion (Mode-2) for the post of Police Sub-Inspector, care should be taken to maintain the ratio of roster point etc. in accordance with the rules.”

20. By a letter dated 04.01.2013 of the Chairman, PSI Recruitment Board similar to the above letter dated 1.8/9.2012, a list of eighteen other eligible candidates came to be forwarded and it was stated therein that one of the candidates in the previous list did not possess the requisite qualifications and hence, his name is cancelled from the list.

21. In the meanwhile, it appears that the appellants herein came to know of the steps being taken to appoint the private respondents on the basis of the proviso to clause (a) of sub- rule (2) of rule 2 of the rules and filed the present petition challenging the said provision and sought to be given similar treatment as the private respondents. The petition came to be filed on or about 7th February, 2013 and came to be summarily dismissed by the impugned judgment and order dated 12.02.2013. It appears that immediately thereafter the private respondents were given promotions to the post of Police Sub- Inspector (Unarmed) Class III on 16.02.2013. Thus, as on the date when the petition was filed, the private respondents were not promoted and hence, there was no question of challenging their appointments in the writ petition. Immediately thereafter, the appellants preferred the present letters patent appeal on which notice was issued on 10.5.2013. It appears that along with the letters patent appeal the appellants had also annexed communications dated 3.1.2013 and 7.1.2013 of the Additional Director General of Police, (Administration) forwarding lists of twenty one and eighteen candidates who had cleared the competitive examination. In view thereof, by an order dated 17.09.2013, the Division Bench permitted the appellants to add the thirty nine persons named in the lists, viz. the respondents No.3 to 41 to the letters patent appeal and issued notice to the newly added respondents. That is how the private respondents came to be impleaded as parties in the letters patent appeal. Since the writ petition had been summarily dismissed, the respondents were called upon to file their affidavits in response to the petition. It appears that during the pendency of the appeals, respondents No.30 and 37 passed away and hence, by an order dated 23.02.2015, the appeal was declared to have abated qua the said respondents.

22. It is in the above factual backdrop that the rival contentions advanced by the learned counsel for the respective parties are required to be considered.

23. The first question that arises for consideration is as to whether the writ petition filed by the appellants was barred by res judicata or constructive res judicata in view of the order dated 27.06.2009 passed by the Division Bench in Letters Patent Appeal No.1655 of 2009 and cognate matters.

23.1 As noted hereinabove, the relief claimed in the writ petitions in the earlier round of litigation was firstly to direct the respondents therein to permit the petitioners to appear in the competitive examination and consider them to be eligible for promotion to the post of Police Sub-Inspector (Unarmed) Class III, and secondly to hold that the Recruitment Rules are violative of Articles 14 and 16 of the Constitution of India insofar as they consider only Head Constables having three years of service as eligible for promotion to the post of P.S.I. by Mode-2 on the basis of Special Competitive Examination and do not consider Constables having more than twelve years experience of service as eligible for such promotion and to hold that the petitioners and such other Police Constables who have put in more than twelve years of total service and who have been given higher grade pay scales for the promotional post of Head Constable as per G.R. dated 16.8.1994 since more than three years as also eligible for promotion to the post of P.S.I. by Mode-2 on the basis of Special Competitive Examination as per rules. By way of interim relief, the petitioners therein, including the appellants, were permitted to file applications for appearing in the Competitive Examination. By a judgment and order dated 28.08.2009, the said writ petitions came to be dismissed on merits and the interim relief granted earlier came to be vacated.

23.2 Against the said judgment and order dated 28.08.2009, some of the private respondents filed letters patent appeals on 1.9.2009, which came up for hearing on 3.9.2009 and by way of interim relief granted on the stay applications filed in those appeals, the respondents were directed to permit the appellants therein to appear in the competitive examination. Since the above order has some bearing on the merits of the appeal, it may be germane to refer to the same. The said order reads as under:

“1. Rule. Ms. Sangeta Vishan, learned Assistant Government Pleader waives service of rule.

2. Heard learned Senior Counsel Mr.Y. N. Oza with Mr.S.P.Majmudar and Mr.A.B.Gogia for the applicants and Mr.Kamal B. Trivedi, learned Advocate General for the respondent State on question of interim relief. We have considered the decision in the case of Mohammad Usman Vs. State of U.P. AIR 1971 SC 1801, particularly para 6 and

3. Learned Senior Counsel for the applicants submitted that under the protection of the Court the applicants were permitted to fill up the forms. Now that Appeals are admitted. They may be permitted to appear in the examination to be held on 5.9.2009 and their result may not be declared. If ultimately they succeed in the Appeal their result may be declared and successful candidates may be given benefits of promotion. Those applicants, who succeed at the examination will not claim any equity either on question of seniority or promotion.

4. Learned Advocate General has opposed the request for interim relief. According to him as on today the applicants are not qualified and there is an order against them. If they ultimately succeed in the Appeal the relief can be moulded and they can be permitted to appear and the State may be directed to conduct the examination. He submitted that grant of interim relief may cause prejudice to large number of constables who have not approached this Court and, therefore, interim relief may not be granted.

5. Having considered rival side submissions we are of the view that the applicants, who are permitted to fill up the forms deserve to be permitted to appear at the examination subject to the final result of the Appeals. The result of the examination of the applicants will not be declared till these Appeals are decided and shall be kept in a sealed cover. If the applicants succeed the result would be declared and only the successful candidates at the examination would be considered for promotion as per rules but at that time the successful applicants shall be precluded from claiming equity of any kind either by way of seniority or promotion. These directions are by way of interim relief till final disposal of the Appeals.

6. These Civil Applications are disposed of. Rule made absolute accordingly. No order as to costs. Direct service is permitted.”

23.3 On a perusal of the above order, it is clear that the court has not directed the respondents to keep any posts vacant so as to accommodate the said appellants in case they finally succeed in the appeals. By the said order the results were ordered to be kept in a sealed cover and were to be declared only if the appellants succeeded in the appeals and the successful candidates were to be considered for promotion as per the rules. The successful candidates were also precluded from claiming any equity in the matter of seniority or promotion.

23.4 The appeals, ultimately came to be disposed of by a common order dated 27.06.2012, in the following terms:

“During the pendency of the appeals, the Government of Gujarat has in exercise of powers conferred by Clause (B) of Section 5 of the Gujarat Police Act, 1951, made Rules further to amend the Police Sub-Inspector (Unarmed) Class III Recruitment Rules, 2008 and those Rules of 2012 are published by notification dated 21.06.2012.

In view of the amendment brought about by the said Rules, the appeals admittedly do not survive for any order as the aforesaid Rules would govern all the cases including the cases of the appellants. Accordingly, by consent, the appeals are disposed of without entering into merits of the contentions and without any orders as to costs.”

23.5 Thus, in view of the amendment brought about by the said rules, it was an admitted position that the appeals did not survive as the rules were to govern all the cases including the cases of the appellants. Accordingly, by consent, the appeals came to be disposed of without entering into merits. On a plain reading of the said order, it is clear that there is no order on merits and hence, no issue has been adjudicated by the court. The appeals came to be disposed of by observing that the rules would govern all the cases, including the cases of the appellants therein. It is the case of the respondents that since the proviso was part of the amended rules, the appellants ought to have kept the appeals alive and challenged the same in those appeals and that by consenting to the disposal of the appeals, the appellants have acquiesced with the rules and cannot now be permitted to challenge the same. The learned Single Judge in the impugned judgment and order has held that the above order “unequivocally makes it clear that there was a clear consent coming forward from all the appellants for disposing of the appeal, as their case is as per their understanding, were covered by the Notification. The fine distinction of point is sought to be raised in this petition at this stage is not envisaged or may at this stage when the appellants were satisfied with their inclusion or their consideration, the examination be conducted in future. The petitioners at least 1 to 6 and 8 were appellants before the Court and they consented for the appeal to be disposed of, nothing prevented these appellants from agitating these grievances and continuing with the appeal so as to claim and safeguard their rights if any arising out of their only filling form and not appearing in the examination.”

23.6 In this regard it may be noted that while the appeals did come to be disposed of with consent, the position as prevailing on that date would be a relevant factor for considering as to whether the appellants could have agitated the issue further in those appeals as well as whether the impugned proviso to rule 2(2)(a) of the rules gave rise to any cause of action on that date. From the facts noted hereinabove, it is amply clear that the advertisement dated 08.02.2009 pursuant to which the competitive examination came to be held was for the purpose of filling up 544 vacancies. It is an admitted position, that though most of the private respondents had been permitted by the court to appear in the examination, no posts were directed to be kept vacant. Therefore, pursuant to the recruitment process, prior to the amendment of rule 2(2) of the rules, all the 544 vacancies which had been advertised came to be filled up. Therefore, though by the proviso it was provided that a person falling under sub-clause (ii) of clause (a) of sub-rule (2) of rule 2 of the rules who has applied and appeared in the special competitive examination for recruitment to the post held in the year 2009 shall also be considered eligible for appointment subject to fulfillment of other conditions, in effect and substance, the proviso was redundant inasmuch as no posts for which the special competitive examination had been held were vacant. Therefore, at that stage, the appellants had no reason to be aggrieved by the proviso which was infructuous right from the time it came to be enacted. However, when the respondents, placing reliance upon the said proviso took steps to fill up subsequent vacancies, without advertising such posts, on the basis of the results of the examination held in 2009 for the vacancies existing at that stage, cause of action arose for the appellants to challenge the said proviso. It is settled legal position as held by the Supreme Court in a catena of decisions that vacancies cannot be filled up over and above the number of vacancies advertised. That filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and is not permissible in law.

# State of Orissa v. Rajkishore Nanda, (2010) 6 SCC 777

In

# Mukul Saikia v. State of Assam, (2009) 1 SCC 386

it has been held that filling up vacancies over and above the number of vacancies advertised would be violative of Articles 14 and 16 of the Constitution of India. In the present case, as is apparent from the above referred communication dated 26th December, 2012 of the Under Secretary, Home Department, addressed to the Director General of Police that sanction for filling up the 298 posts against which the private respondents were appointed had been accorded by the Government after 2009, namely, after the recruitment procedure was over. In other words the private respondents have been appointed against vacancies subsequent to the recruitment process in which they had participated. Considering the fact that there were no vacancies available in connection with the recruitment process for the 544 posts advertised, in the opinion of this court, when the letters patent appeals came to be disposed of, the appellants could not have had any reason to believe that by virtue of the proviso to clause (a) of sub-rule (2) of rule (2) of the rules, the private respondents would be appointed against subsequent vacancies. Under the circumstances, no fault can be found in the conduct of the appellants in not raising any objection against the proviso at that point of time.

23.7 It has been submitted by the respondents that the appellants had not even challenged the order dated 28.08.2009 passed by the learned Single Judge and that they had been impleaded as respondents in the letters patent appeals. Thus, considering the fact that the present appellants were respondents in those letters patent appeals, the question of their keeping the letters patent appeal alive would not arise, inasmuch as, if the grievance voiced in the appeals was redressed, the question of the respondents, seeking further relief in such appeals would not arise. In the opinion of this court, even if the appellants had preferred the appeals, the order dated 27.06.2012 would not preclude the appellants from challenging the validity of the rule, inasmuch as the scope of the appeals was limited to the reliefs claimed in the writ petition. Once the relief claimed in the writ petitions stood more or less redressed, it was not permissible for the parties at the stage of appeal to challenge the rules, it being beyond the scope of the appeal. The amended rules to the extent the appellants are aggrieved by the same, give rise to a fresh cause of action and the principles of res judicata or constructive res judicata would not be applicable inasmuch as the subject matter of the present petition and the earlier petitions are different and there is no adjudication on this issue in those proceedings. Moreover as observed hereinabove, this issue could not have been raised in the letters patent appeal, the same being beyond the scope of the original petitions. Also the appellants herein, being respondents in the said appeals, could not have sought any relief in appeals preferred by some other persons.

24. Proceeding to the next question, that is, whether the petition was barred by delay and laches, inasmuch as the private respondents had appeared in the competitive examination in September 2009, whereas the writ petition came to be filed in the year 2013, as can be seen from the relief claimed in the petition, the appellants have challenged the proviso to clause (a) of sub-rule (2) of rule 2 of the 2008 rules and seek parity of treatment with the private respondents. Insofar as the proviso is concerned, the same came to be inserted vide the amendment rules only with effect from 21st June 2012. Even after the rules came to be amended, in the light of the above discussion, viz. the vacancies having already been filled up, there was no reason for the petitioners to approach the court. It was only when, on the basis of the impugned proviso, steps were being taken for appointing the private respondents against subsequent vacancies that the cause of action for preferring the letters patent appeal arose. Accordingly, it cannot be said that there was any delay in filing the writ petition.

25. The next question that arises for consideration is as to whether the appeal deserves to be dismissed on the ground of non-joinder of necessary parties at the stage of the writ petition. In this regard, the facts speak for themselves. At the relevant time when the petition came to be filed the private respondents were not appointed on the post of Police Sub- Inspector (Unarmed) Class-III and only steps were being taken in this regard. Since the private respondents were sought to be appointed on the basis of the impugned proviso to rule 2(2)(a) of the rules, the appellants filed the present petition seeking the relief noted hereinabove. Since the private respondents were not appointed at the relevant time, no relief was claimed against them and accordingly, they were not joined as parties in the main petition. The private respondents were appointed only on 16.2.2013, viz. after the writ petition came to be dismissed by the judgment and order dated 12.2.2013. In these circumstances, it cannot be said that the petition was bad on account of non-joinder of necessary parties. However, since the private respondents were appointed after the impugned judgment and order came to be passed and would be affected by any relief that may be granted in the letters patent appeal, they were joined as parties to the letters patent appeal. Thus, no prejudice can be said to have been caused to the private respondents by not joining them as parties in the writ petition, the contention that the appeal deserves to be dismissed for non-joinder of necessary parties, therefore, does not merit acceptance.

25.1 Insofar as the decision of the Supreme Court in the case of Ishwar Singh v. Kuldip Singh (supra) on which reliance has been placed by the learned counsel for the private respondents, the said decision would not be applicable to the facts of the present case, inasmuch as, at the relevant time when the writ petition came to be filed, the private respondents had not been appointed on the post of Police Sub- Inspector and it was only after the writ petition came to be dismissed and before the letters patent appeal came to be filed that they had been appointed on such post. In the letters patent appeal, all the private respondents have been impleaded as parties and have been afforded an opportunity of filing affidavit-in-reply as well as making all submissions and hence, no prejudice has been caused to the private respondents by not being joined as respondents in the writ petition.

26. Having dealt with the preliminary contentions raised on behalf of the respondents to the maintainability of the petition, the principal question arising in this appeal, viz., the validity of the impugned proviso may be examined.

26.1 Rule 2 of the rules provides for the manner of appointment to the post of Police Sub-Inspector (Unarmed) Class III in the Gujarat State Police Service and as it stood prior to the amendment and insofar as the same is relevant for the present purpose, reads thus:

“2. Manner of appointment.- Appointment to the post of Police Sub-Inspector (Unarmed) Class III in the Gujarat State Police Service shall be made either-

(1) by promotion of a person of proved merit and effi- ciency from amongst the persons who-

(a) have worked for not less than five years in the cadre of Assistant Sub-Inspector (Unarmed) Class III, in the Gujarat State Police Service;

Provided that xxxx.

(b) have passed the departmental examined prescribed under rule 165 of the Gujarat Police Manual, 1975 (Part-I) xxx

(c) xx

(d) xxx or

(2) by promotion of a person on the basis of merit rank obtained in the Special Competitive Examination conduc- ted in accordance with the rules prescribed by the Govern- ment in that behalf and who-

(a) have worked for not less than three years either in the cadre of Assistant Police Sub-Inspector (Unarmed), Class III or Head Constable (Unarmed), Class III in the Gu- jarat State Police Service.

(b) have passed the departmental examination as pre- scribed under rule 165 of the Gujarat Police Manual, 1975 (Part-I);

(c) have passed the qualifying examination in com- puter knowledge in accordance with the Gujarat Civil Ser- vices Computer Competency Training and Examination Rules, 2006;

(d) have filled the minimum requisite standards of physical efficiency test, as may be prescribed by the Gov- ernment from time to time in this behalf;

(e) have passed the Higher Secondary School Certific- ate Examination (Standard XII, 10 + 2 pattern) or Secondary School Certificate Examination (Standard XI old pat- tern) conducted by the State’s Secondary and Higher Sec- ondary Education Board or possess an equivalent qualifica- tion recognised as such by the Government;

or (3) by direct selection.”

26.2 It is an admitted position that at the time when the advertisement came to be issued on 08.05.2009, none of the original petitioners, viz., the appellants, the private respondents and other persons who had approached this court in the first round of litigation, fulfilled the eligibility criteria as provided under clause (a) of sub-rule (2) of rule 2 of the unamended rules inasmuch as none of them had worked for not less than three years either in the cadre of Assistant Police Sub-Inspector (Unarmed), Class III or Head Constable (Unarmed), Class III in the Gujarat State Police Service. Since all the original petitioners were ineligible for appearing in the Special Competitive Examination for the post of Police Sub- Inspector (Unarmed) Class III, they had approached this court challenging the validity of the rules to the extent only Head Constables having three years of service were considered as eligible for promotion to the post of Police Sub-Inspector by Mode 2 on the basis of the Special Competitive Examination and to the extent Constables having more than twelve years of service were not considered as eligible for such promotion. In those petitions by way of interim relief, all the petitioners including the appellants and the private respondents were permitted to fill up the forms for the Special Competitive Examination.

26.3 By a judgment and order dated 28.08.2009, the said writ petitions being Special Civil Application No.4998 of 2009 and allied matters came to be dismissed on merits and the interim relief came to be vacated, against which the private respondents and others went in appeal before the Division Bench in Letters Patent Appeal No. 1628 of 2009 and cognate matters. It appears that the private respondents (except a few of them) filed letters patent appeals along with stay applications on 01.09.2009 and by an order dated 03.09.2009 the respondents were directed to permit the applicants therein to appear in the competitive examination. The respondents, however, not only called the said applicants to appear in the examination but also called some of the private respondents who had filed letters patent appeal subsequently and were not protected by any order of the court as well as some of the private respondents who had not filed any letters patent appeal. As noted hereinabove the private respondents and some others [who did not clear the examination] were permitted to appear in the examination and their results were to be kept in a sealed cover which was to be opened only if they succeeded in the appeals and no other direction to keep any posts vacant had been issued. Consequently, the results of the private respondents were kept in sealed cover and the 544 vacancies which were advertised came to be filled up by candidates who were eligible in terms of the said rules and had succeeded in the examination, as per merit. It may be noted that several candidates had been successful in the examination; however, out of the successful candidates, on the basis of merits, 544 candidates to the extent of the vacancies were appointed.

26.4 During the pendency of the above letters patent appeals, orders came to be passed from time to time calling for various details from the State Government. It appears that the court had called upon the respondents to attempt to resolve the issue pursuant to which steps were taken for amending the rules. By an order dated 08.05.2012 passed in Letters Patent Appeal No.1628 of 2009 and allied matters, the Division Bench recorded the statement made by the learned Assistant Government Pleader that the proposal for amendment in the rules is now finalised in the General Administration Department and the matter is now put up for final decision at the higher level before the Hon’ble Home Minister. Accordingly the matter was adjourned to 19th June 2012. Thereafter, on 27th June, 2012 the appeals came to be disposed of as the Government of Gujarat had, in exercise of the powers conferred by clause (b) of section 5 of the Gujarat Police Act, 1951, further amended the Police Sub-Inspector (Unarmed) Class III Recruitment Rules, 2008 and those rules of 2012 had been published by notification dated 21.06.2012 and in view of the amendment in the rules, the appeals did not survive.

26.5 By virtue of the amendment rules, clause (a) in sub-rule (2) of rule 2 of the rules came to be substituted and accordingly, the amended rule 2 (2)(a) reads thus:

“(2) by promotion of a person on the basis of merit rank obtained in the Special Competitive Examination conduc- ted in accordance with the rules prescribed by the Govern- ment in that behalf and who-

(a) (i) have worked for not less than three years either in the cadre of Assistant Police Sub-Inspector (Unarmed), Class III or Head Constable (Unarmed), Class III in the Gu- jarat State Police Service, or

(ii) have worked for not less than fifteen years com- binedly or separately in the case of Assistant Sub-Inspect- or (Unarmed) Class III, or Head Constable (Unarmed), Class III or Constable (Unarmed) Class III in the Gujarat State Police Service;

Provided that a person falling under sub-clause (ii) of this clause who has applied and appeared in the special competitive examination for recruitment to the post in the year 2009 shall also be considered eligible for appoint- ment subject to fulfilment of other conditions.

26.6 Thus, by virtue of the amended clause (a) of sub-rule (2) of rule 2 of the rules, persons who had completed fifteen years of service either combinedly or separately on the above three posts were considered to be eligible to appear in the special competitive examination. However, by virtue of the proviso thereto, the private respondents, who admittedly on the date when the advertisement was issued did not fulfil the eligibility conditions prescribed under the unamended rules and also did not on that date fulfil the eligibility conditions prescribed under the amended rules, have been considered eligible for appointment to the post in 2009, subject to fulfilment of other conditions and have thereafter been given appointments on vacancies that had arisen subsequently.

26.7 It is this proviso to clause (a) of sub-rule (2) of rule 2 of the rules with which the appellants are aggrieved, inasmuch as the same creates two classes of persons, viz., (i) those who had applied and appeared in the special competitive examination, and (ii) others, including the appellants who had applied but could not appear in the examination as they were not protected by any interim order of the court.

26.8 It has been emphatically argued on behalf of the appellants that the petitioner and those candidates who are covered by the impugned proviso form a single class of persons, all of whom were not qualified at the time when the competitive examination was held. It was submitted that there is no intelligible differentia between the class created and the class left out and that the object behind such classification must have a rational nexus to the classification and the object sought to be achieved, whereas in the present case there is no rational nexus. On behalf of the respondents it has been contended that the appellants and the private respondents form a distinct class by themselves, inasmuch as the private respondents who applied and appeared in the competitive examination pursuant to the interim relief granted by this court form a different class of persons. It has also been contended that the proviso merely states that the persons falling in sub-clause (ii) who have applied and appeared in the special competitive examination held in the year 2009 shall also be considered eligible for appointment subject to fulfilment of other conditions. Thus, the proviso merely says that such persons as are covered in the proviso shall fall within the zone of consideration for promotion by the State Government and it is ultimately the State Government which has to give the promotion and hence, on this ground it cannot be said that the proviso is ultra vires.

26.9 Thus, the sole ground for enacting the proviso is that the private respondents had applied for and appeared in the competitive examination pursuant to interim orders passed by this court, and hence, form a different class of persons. In this regard it may be germane to refer to certain decisions of the Supreme Court in the context of what can be said to be a reasonable classification.

26.10 In

# State of Mysore v. M.H. Krishna Murthy, (1973) 3 SCC 559

the Supreme Court has held thus:

“11. Other cases mentioned by the Mysore High Court i.e.

# State of Punjab v. Joginder Singh, AIR 1963 SC 913

and

# K.M. Bakshi v. Union of India, AIR 1962 SC 1139

also show that inequality of opportunity of promotion, though not unconstitutional per se, must be justified on the strength of rational criteria co-related to the object for which the difference is made. In the case of Government servants, the object of such a difference must be presumed to be a selection of the most competent from amongst those possessing qualifications and backgrounds entitling them to be considered as members of one class. In some cases, quotas may have to be fixed between what are different classes or sources for promotion on grounds of public policy. If, on the facts of a particular case, the classes to be considered are really different, inequality of opportunity in promotional chances may be justifiable. On the contrary, if the facts of a particular case disclose on such rational distinction between members of what is found to be really a single class no class distinctions can be made in selecting the best. Articles 14 and 16(1) of the Constitution must be held to be violated when members of one class are not even considered for promotion. The case before us falls, in our opinion, in the latter type of cases where the difference in promotional opportunities of those who were wrongly divided into two classes for this purpose only could not be justified on any rational grounds. Learned Counsel for the State was unable to indicate any such ground to us. We, therefore, think that the Mysore High Court rightly held that the impugned notifications were unconstitutional.”

26.11 In S. Seshachalam v. Bar Council of T.N., (supra), the Supreme Court has held thus:

“21. Article 14 of the Constitution of India states that:

“14. Equality before law.–The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Article 14 forbids class legislation but it does not forbid reasonable classification. The classification, however, must not be “arbitrary, artificial or evasive” but must be based on some real and substantial bearing, a just and reasonable relation to the object sought to be achieved by the legislation. Article 14 applies where equals are treated differently without any reasonable basis. But where equals and unequals are treated differently, Article 14 does not apply. Class legislation is that which makes an improper discrimination by conferring particular privileges upon a class of persons arbitrarily selected from a large number of persons all of whom stand in the same relation to the privilege granted and between those on whom the privilege is conferred and the persons not so favoured, no reasonable distinction or substantial difference can be found justifying the inclusion of one and the exclusion of the other from such privilege.

22. While Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. But classification must not be “arbitrary, artificial or evasive”. It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation. Classification to be reasonable must fulfil the following two conditions: firstly, the classification must be founded on the intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group. Secondly, the differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are two distinct things. What is necessary is that there must be nexus between the basis of classification and the object of the Act. It is only when there is no reasonable basis for a classification that legislation making such classification may be declared discriminatory.”

26.12 In Subramanian Swamy v. Director, Central Bureau of Investigation, (supra), the Supreme Court held thus:

“58. The Constitution permits the State to determine, by the process of classification, what should be regarded as a class for purposes of legislation and in relation to law enacted on a particular subject. There is bound to be some degree of inequality when there is segregation of one class from the other. However, such segregation must be rational and not artificial or evasive. In other words, the classification must not only be based on some qualities or characteristics, which are to be found in all persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial.”

“70. Undoubtedly, every differentiation is not a discrimination but at the same time, differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. A simple physical grouping which separates one category from the other without any rational basis is not a sound or intelligible differentia. The separation or segregation must have a systematic relation and rational basis and the object of such segregation must not be discriminatory. Every public servant against whom there is reasonable suspicion of commission of crime or there are allegations of an offence under the PC Act, 1988 has to be treated equally and similarly under the law. Any distinction made between them on the basis of their status or position in service for the purposes of inquiry/investigation is nothing but an artificial one and offends Article 14.”

26.13 In

# State of U.P. v. Ram Gopal Shukla, (1981) 3 SCC 1

the Supreme Court held as follows:

“7. The complaint of the respondent was that the aforesaid new Rules 7-A and 7-B were discriminatory and violative of Articles 14 and 16 of the Constitution, inasmuch as the candidates in the Select List of 1966 were to be appointed against substantive vacancies in preference to any candidate selected in accordance with the provisions of the 1970 Rules and unless the candidates in the list were exhausted, other eligible candidates were not to be considered for promotion so that their chances of promotion would be deferred to an undated future. The further grievance of the respondent was to the following effect: The Select List was to hold good only for one year or until such time a review was made at the following selection. Thus, the life of the Select List of 1966 was for one year only on the expiry of which it died its natural death. In this view of the legal position, the appointment of Tehsildars from the Select List of 1966 after the expiry of a year from the date of its operation was illegal on the face of it. On the strength of Rule 7-A and Rule 7-B, no selection was to be held unless 300 persons included in List B were absorbed.

8. The respondent challenged the vires of Rules 7-A and 7- B by filing a petition under Article 226 of the Constitution in the High Court of Allahabad. That petition was allowed in part and Rules 7-A and 7-B were declared ultra vires Articles 14 and 16 of the Constitution in the impugned judgment.”

“15. There is no denying the fact that the rules regulating the conditions of service are within the executive power of the State or its legislative power under the proviso to Article 309 but even so, such rules have to be reasonable, fair and not grossly unjust, if they are to survive the test of Articles 14 and 16 of the Constitution. A rule which contemplates that unless the list of 300 persons is exhausted no other person can be selected, obviously is unjust and it deprives other persons in the same situation of the opportunity of being considered for promotion.

16. It was next contended for the State that the declaration of Rules 7-A and 7-B as ultra vires the Constitution would affect not only the incumbents of one Service but of 29 Services and a fairly large number of persons would be affected in that situation, that the respondent did not implead any of those persons likely to be affected in the various Services, that in any case, at least the Naib Tehsildars or other persons who have been promoted as Tehsildars and who are likely to be affected by the declaration of Rules 7-A and 7-B as ultra vires should have been impleaded as parties and that in the absence of those parties, the writ petition was not maintainable and should have been dismissed by the High Court on that score.

17. xxx xxx xxx xxx

In

# Gopalaiah v. Government of A.P., AIR 1969 AP 204

dealing with a situation as in the present case, the Andhra Pradesh High Court held:

“This is not a case of discrimination of individual against individual. This is a case where a whole class of citizens have been discriminated against and the court cannot refuse to give relief to them on the ground that the class of persons who will be benefited as a result of the discrimination are not before the court. The person who complains of discrimination cannot be expected to search the country for all persons who are likely to be benefited by its discriminatory policy. Of course, if the discrimination is in favour of an individual against an individual different considerations might arise. But this is not such a case. In my opinion, where a scheme formulated by the government is attacked on the ground of its being discriminatory the position is precisely the same as if a statute is attacked as being discriminatory and it can never be an answer to such an attack that persons likely to be benefited by a discriminatory statute should be brought before the court before the statute is struck down.”

26.14 In

# State of Kerala v. N.M. Thomas, (1976) 2 SCC 310

the Supreme Court held as follows:

“24. Discrimination is the essence of classification. Equality is violated if it rests on unreasonable basis. The concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is, therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved.”

26.15 In Mohd. Usman v. State of Punjab (supra), on which reliance has been placed on behalf of the private respondents, the court held that the validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the court has to see is whether the classification made is a just one, taking all aspects into consideration. The court held that the rule of equality is intended to advance justice by avoiding discrimination. In the facts of the said case, the court opined that the High Court by overlooking the reason behind rule 5, came to the erroneous conclusion that the said rule violated Article 14 of the Constitution.

26.16 In the light of the above well settled principles of interpretation of Articles 14 and 16 of the Constitution of India, what is required to be examined is as to whether there is intelligible differentia between the classification of the private respondents who applied and appeared in the special competitive examination held pursuant to the advertisement dated 8th May, 2009 for recruitment to the post of Police Sub- Inspector (Unarmed), Class III in the Gujarat Police Service pursuant to interim orders passed by the High Court or otherwise and the appellants and other similarly situated persons, who applied for but could not appear in the said examination in the absence of any interim order in their favour, when all such persons were otherwise similarly situated, viz., all of them did not satisfy the eligibility criteria for appearing in the said examination.

26.17 As noticed hereinabove, the justification for classification between the private respondents and the appellants and other similarly situated persons is principally founded on the sole criterion that the private respondents had appeared in the special competitive examination pursuant to the interim orders passed by this court and in some cases because the respondent State authorities had called them to appear in the examination, whereas the appellants and others had filed applications for appearing in the competitive examination, but could not appear in the said examination as neither were there any interim orders of this court permitting them to appear in the examination, nor had the respondent State authorities called them to appear in the examination. The question that arises for consideration is as to whether such classification meets with the requirements of Articles 14 and 16 of the Constitution of India. As held in the above decisions, while Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. But, the classification must not be arbitrary, artificial and elusive and must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation. Classification to be reasonable must fulfil the following two conditions: firstly, the classification must be founded on intelligible differentia which distinguishes the persons or things that are grouped together from others left out of the group; and secondly, the differentia must have a rational relation to the object sought to be achieved by the Act. Every differentiation is not a discrimination but at the same time, differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. A simple physical grouping which separates one category from the other without any rational basis is not a sound and intelligible differentia. In the present case the only distinguishing feature between the appellants and similarly situated persons and the private respondents is that while all of them have filed applications for appearing in the competitive examination held in the year 2009, the private respondents pursuant to interim orders passed by this court and in some cases pursuant to letters written by the respondent State authorities calling upon them to appear in the said examination, have in fact appeared in the competitive examination. It is an admitted position that neither the appellants and others nor the private respondents were eligible for appearing in the competitive examination when the recruitment came to be carried out in the year 2009. The appellants and others as well as the private respondents, became eligible for being appointed to the post of Police Sub- Inspector (Unarmed) Class III, only by virtue of the amendment rules which came to be published vide notification dated 21 st June, 2012. Therefore, in effect and substance the appellants and the private respondents were in all relevant aspects similarly situated. In the opinion of this court, considering the facts of the present case, the distinction sought to be drawn by the respondents, viz., that the private respondents had appeared in the competitive examination whereas the appellants had not, is merely a simple physical grouping which separates one category from the other without any rational basis and is not based upon a sound and intelligible differentia. The segregation between the appellants and the private respondents does not have any systematic relation and rational basis. More so, considering the nature of the interim relief granted, whereby no posts were directed to be kept vacant and it was clearly stated that the successful applicants shall be precluded from claiming equity of any kind either by way of seniority or promotion. As held by the Supreme Court in the above decisions, the classification has to be based upon any intelligible differentia and must have a reasonable nexus with the object sought to be achieved. In the present case, it cannot be said that the classification is based upon an intelligible differentia, inasmuch the private respondents have merely appeared in an examination pursuant to interim orders passed by the court, without there being any ultimate declaration of law in their favour. Mere appearance in an examination, without satisfying the eligibility criteria for appearing in such examination would not confer any right upon such persons. Therefore, the classification cannot be said to be based upon any intelligible differentia.

26.18 Insofar as the object sought to be achieved by such classification is concerned, considering the stand adopted by the respondents the same appears to be to respect the interim orders passed by this court whereby a majority of the private respondents were permitted to appear in the examination. However, from the facts as emerging from the record, the only object behind such classification appears to be to accommodate the private respondents and bestow largess upon them by giving them appointments to the post in question, despite the fact that they did not satisfy the eligibility criteria for appearing in the competitive examination. As noticed earlier, by virtue of the interim orders whereby the private respondents were permitted to appear in the competitive examination, no further protection was granted by directing that certain posts may be kept in abeyance in case the said respondents ultimately succeed in the appeals. On the contrary it was specifically stated that if the applicants succeed the result would be declared and only the successful candidates at the examination would be considered for promotion as per rules but the successful candidates at that time shall be precluded from claiming equity of any kind either by way of seniority or promotion. Therefore, there was no necessity for the respondent State authorities to create a distinct class solely on the basis of such interim order. It may also be noted that many candidates had been successful in the competitive examination but since the vacancies were limited to 544, only 544 candidates were appointed to such posts. The candidates who passed the examination but did not fall within the first 544 in order of merit, were those candidates who satisfied the eligibility criteria in terms of the unamended rules and therefore stood on a stronger footing than the private respondents, but were not given any appointments as the vacancies were filled up. However, the private respondents who were also successful in the examination have been treated as a special class and on the basis of the impugned proviso to clause (a) of sub-rule (2) of rule 2 of the rules been given appointments to the post of Police Sub-Inspector (Unarmed) Class-III, merely because they applied for and appeared in the examination and were successful in the said examination and have thereby stolen a march not only over the appellants and similarly situated persons but also over other candidates who appeared in the special competitive examination and were eligible as per the then existing rules but could not be appointed as all the 544 vacancies were filled up by candidates who were higher in order of merit. Such classification defies logic and cannot be said to have any rational basis or any nexus with the object sought to be achieved, inasmuch as the only object sought to be achieved appears to be to appoint the private respondents on the posts in question. The impugned proviso, is therefore, in the nature of class legislation inasmuch as it makes an improper discrimination by conferring particular privileges upon the private respondents who are arbitrarily selected from a large number of persons all of whom stand in the same relation to the privilege granted. In the opinion of this court, no reasonable distinction or substantial difference can be found justifying the inclusion of the private respondents and the exclusion of the appellants and other similarly situated persons from such privilege.

26.19 The contention that the private respondents form a distinct class as they had appeared in the examination pursuant to the interim orders passed by the court does not merit acceptance for the reason that the interim orders did not create any equity in their favour nor was there any final declaration of law in favour of the private respondents necessitating such classification. It may also be recalled that as noticed from the original files, all throughout there are notings regarding amending the rules by substituting clause (a) in sub-rule (2) of rule 2 of the 2008 rules, whereas there is not even a whisper about the proviso to clause (a) of sub-rule (2) of rule 2 of the rules, which came to be surreptitiously inserted at the last moment without any discussion as regards why the same was required to be inserted. Thus, even from relevant file, the object of the proviso is not spelt out. In the light of the above discussion, the impugned proviso is held to be invalid and violative of Articles 14 and 16 of the Constitution of India.

27. The question that now arises for consideration is as to what is the nature of the relief that can be granted in these appeals. In the petition, the relief prayed for is challenging the proviso to clause (a) of sub-rule (2) of rule 2 of the rules. The appellants have also sought equality of treatment with the private respondents. Insofar as the alternative relief prayed for is concerned, the same is contradictory to the principal relief prayed for in the petition. Therefore, once the principal relief is granted, the question of allowing the alternative relief would not arise.

27.1 On behalf of the private respondents, it has been submitted that even if the proviso is struck down as being ultra vires Articles 14 and 16 of the Constitution of India, their appointments should not be disturbed. In this regard, reliance has been placed upon the decision of the Supreme Court in

# Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi, (2010) 1 SCC 234

wherein it has been held thus:

“30. Though the provisions of the Code are not made applicable to the proceedings under Article 226 of the Constitution, the general principles made in the Civil Procedure Code will apply even to writ petitions. It is, therefore, incumbent on the petitioner to claim all reliefs he seeks from the court. Normally, the court will grant only those reliefs specifically prayed for by the petitioner. Though the court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner.”

27.2 Reliance has also been placed upon the decision of the Supreme Court in Inder Prakash Gupta v. State of J & K (supra), wherein it has been held thus:

“42. In ordinary course we would have allowed the appeal but we cannot lose sight of the fact that the selections had been made in the year 1994. A valuable period of 10 years has elapsed. The private respondents have been working in their posts for the last 10 years. It is trite that with a view to do complete justice between the parties, this Court in a given case may not exercise its jurisdiction under Article 136 of the Constitution of India. [See

# Chandra Singh and Ors. Vs. State of Rajasthan and Anr. [2003 (6) SCC 545]

# M.P. Vidyut Karamchari Sangh Vs. M.P. Electricity Board [ JT 2004 (3) SC 423]

and

# State of Punjab & Ors. Vs. Savinderjit Kaur [JT 2004 (3) SC 470].

43. We are, therefore, of the opinion that the interest of justice would be subserved if the State is directed to fully comply with the directions of the High Court by giving all benefits to the appellant herein including monetary benefits and seniority by placing him in the select list above Respondents 3 and 9. We further direct that if any respondent has been promoted to the higher post in the meantime the same would be subject to our aforementioned direction. Necessary order in this behalf must be passed by the State.”

27.3 An unreported decision of this court in the case of

# Issan Overseas Ltd. v. Abhyuday Co-operative Bank Ltd. and others

rendered on 26.09.2012 in special Civil Application No.7338 of 2010 has been cited for the proposition that it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion may refuse to interfere in larger public interest. The mere illegality of an action or even if an order under challenge is not found to be in accordance with law would not by itself be enough for the Court to interfere if it is found that any such intervention would cause inconvenience or hardship to a sizeable section of the public, who have acted bonafide or were not in any way responsible for the illegality in question.

27.4 The decision of this court in

# Bharwani Jitendra K. & others v. State of Gujarat

rendered on 29.01.2016 in Letters Patent Appeal No.1303 of 2015 and cognate matters, was relied upon and more particularly, paragraph-15 thereof, to submit that even if there is some illegality, discretion may not be exercised and that the appointments of the private respondents may be protected.

27.5 In the opinion of this court, none of the above decisions would come to the aid of the private respondents, inasmuch as their very appointments are based on a provision which is ultra vires Articles 14 and 16 of the Constitution. If the contention raised by the private respondents were to be accepted, the direct result would be that the entire exercise of considering the validity of the impugned proviso would be nothing but an exercise in futility.

27.6 At this juncture it may be germane to refer to the decision of the Supreme Court in

# Madan Mohan Sharma v. State of Rajasthan, (2008) 3 SCC 724

wherein it has been held that subsequent amendment of the rules during the pendency of the advertisement which was prospective cannot be made retrospective so as to make the selection on the basis of the rules which were subsequently amended. If this was done, then the only course open was to recall the advertisement and to issue a fresh advertisement according to the rules which had come into force. Thus, rules even if amended during the pendency of the advertisement cannot be applied retrospectively, whereas in the present case the rules have been amended long after the recruitment procedure was over and posts had been filled up and have been made retrospectively applied to the private respondents. It may be noted that as a matter of fact, some of the private respondents did not satisfy the eligibility criteria provided under the new rules at the time when the advertisement was issued and therefore, even if the rules were made retrospectively applicable, they could not have been considered eligible in the year 2009.

27.7 At this stage reference may also be made to the advertisement dated 8.5.2009 and more particularly to clauses (5), (6) and (14) of the general instructions contained therein, which, as translated into English read thus:

“5. Those Head Constables/A.S.I. who do not satisfy the prescribed eligibility conditions should not make applications and the office head should not accept such applications.

6. The employees who do not possess the prescribed qualifications should not make any direct unnecessary correspondence/application to this office for relaxation of the qualifications/experience. Such applications shall not be taken into consideration and no reply shall be given.”

“14. The entire recruitment procedure shall be subject to the prevailing recruitment rules governing the cadre.”

27.8 It may be reiterated that the court while granting the interim relief had not called upon the respondent State authorities to keep any posts vacant or appointments in abeyance and had also clarified that the grant of interim relief would not entitle the applicants therein to claim any equity in the matter of promotion. Thus, by virtue of the interim order no equities were created in favour of the private respondents. Moreover, the recruitment process had already been concluded and all the advertised vacancies had been filled up. In these circumstances, there was no cause or reason to bring about such classification at that stage.

27.9 While it is true that there are no allegations of mala fide in the writ petition, however, mala fide on the part of the respondent State authorities is writ large on the face of matter, inasmuch as, the authorities have not come out with any plausible explanation as to why and how some of the private respondents who were not protected by any interim orders of this court were called and permitted to appear in the competitive examination. Clearly, therefore, a pick and choose policy has been adopted qua the said private respondents.

28. In the light of the above discussion, this court having held that the impugned proviso to clause (a) of sub-rule (2) of rule 2 of the rules is violative of Articles 14 and 16 of the Constitution of India, all action taken consequent thereto would be rendered nugatory. Having regard to the fact that the private respondents came to be appointed after filing of the writ petition and before filing of the letters patent appeal, this court, in the light of the decisions referred to hereinabove, can always mould the relief and grant appropriate relief as the circumstances may justify.

29. For the foregoing reasons, the appeal succeeds and is, accordingly, allowed. The impugned judgment and order dated 12.02.2013 passed by the learned Single Judge in Special Civil Application No.1425 of 2013 is hereby quashed and set aside. Special Civil Application No.1425 of 2013 is hereby allowed to the following extent:

The impugned proviso to clause (a) of sub-rule (2) of rule 2 of the Police Sub-Inspector (Unarmed) Class-III Recruitment Rules, 2008, as amended by the Police Sub-Inspector (Unarmed) Class-III Recruitment (Amendment) Rules, 2012, is struck down as being violative of Articles 14 and 16 of the Constitution of India. It is ordered that all action consequent upon the impugned proviso shall stand nullified. Rule is made absolute accordingly, with no order as to costs.

30. At this stage, Mr. S. P. Majmudar and Mr. Premal Rachh, learned advocates for the private respondents have requested the court to stay the operation and implementation of this judgment for a period of six weeks from today. Such request is strongly opposed by Mr. Asim Pandya, learned advocate with Mr. K. C. Chandrani, learned advocate for the appellants.

31. Having regard to the facts and circumstances of the case, the request is declined

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