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Judgment
Both the Letters Patent Appeals have been filed by
the appellants against the common judgment and order dated
17.6.2014 passed in CWJC No. 17724 of 2013, CWJC No. 20209
of 2013 and CWJC No. 17818 of 2013. By common judgment
three writ petitions involving the identical issue were dismissed
but only two appeals have been filed whereas no appeal was
preferred in CWJC No. 20209 of 2013 and as such the judgment of
the writ Court in CWJC No. 20209/2013 has attained finality.
Since the question of fact and law involved in both the cases are
identical and the Writ Court dismissed the writ petitions by
common judgment and order dated 17.6. 2014, the present appeals
have been heard together and are being disposed of by this
common order.
In both the appeals the issue involved is whether
the Police Order No. 102 dated 8.2.1983 is still holding the field
and guiding factor for preparation of Gradation List of direct
recruit Sub-Inspector or not- If the Police Order No. 102 dated
8.2.1983 is still holding the field then the Gradation List of the
Sub-Inspector of Police prepared and published vide memo no.
1806 dated 17.6.2013 and final Gradation List published vide
memo no. 2269/P1 dated 31.7.2013 is lawful and justified or not-
The facts of these two cases are not in dispute. The
appellants were directly recruited Sub-Inspector of Police pursuant
to advertisement dated 14.7.1993 (Advertisement No. 2 /93)
(Annexure-1). After undergoing selection process select list in
order of merit was prepared and thereafter the appellants were sent
for training in Police Training College and after training they were
placed on probation. On 2.11.2004 a provisional Gradation List of
Sub-Inspector was published and objection was invited. The
provisional Gradation List was subject to correction and also
subject to outcome of the pending CWJC Nos. 11211 and 11667 of
2003 and the objection of the Sub-Inspectors on such provisional
Gradation List.
On 18.6.2014 the office of the Director General of
Police vide memo no. 1806 issued corrected Gradation List of
Sub-Inspector of Police following the Police Order Nos. 102 of
1983 and 269 of 1999. The Police Order No. 102 was issued in
exercise of power under Rule 657 of the Bihar Police Manual
which reads as follows: - POLICE ORDER NO. 102
"VERNACULAR MATTER OMITTED"
The said police order was consistently followed in
the preparation of Gradation List of direct recruit Sub-Inspector of
Police, i.e. by preparing the merit list after adding the marks in the
training. However, for the direct recruit of 1994 without any basis
there was departure in preparing the provisional Gradation List
vide letter no. 4932/P2 dated 2.11.2004 and the mistake in
preparation of provisional Gradation List vide letter dated
2.11.2004 was rectified and consistent with police order No. 102
and Police Order 269 of 1999, the corrected Gradation List was
published on 18.6.2013 on the basis of preparation of merit list
adding the marks obtained by the candidate in the training.
The decision dated 18.6.2013 was assailed by the
appellants by challenging the same in the connected writ petitions.
Before the Writ Court they submitted that the Gradation List
published on 2.11.2004 is legal and valid and its correction vide
Gradation List dated 18.6.2013 is illegal. In CWJC No. 20209 of
2013 the writ petitioners had prayed for quashing of the Police
Order No. 102 dated 8.2.1983. However, there is no appeal against
the decision in CWJC No. 20209/2013 and the same has become
final.
Before the Writ Court on behalf of the petitioners it
was submitted that in terms of the advertisement the merit list was
required to be prepared on the basis of their performance in the
selection process and the Gradation List which was prepared after
the training in the year 2004 is reflection of the merit position of
the direct recruit Sub-Inspector and referring to the Police Order
No. 260 they have submitted that their seniority is correctly
reflected in 2004 and their seniority position in the modified
Gradation List published on 18.6.2013 is illegal and arbitrary.
They have challenged the validity of corrected Gradation List on
the ground that after Police Order No. 260 of 1997 the previous
police order no. 102 of 1983 could not be given effect and it will
be deemed to have been repealed by the police order No. 260 of
1997.
The Writ Court on consideration of the entire facts
and circumstances and the submissions advanced on behalf of the
petitioners held out that the Police Order No. 102 is still holding
the field which contains the principle to be followed in the
preparation of the Gradation List. The Writ Court clarified that
Police Order No. 260/97 does not repeal the Police Order No. 102
of 1983. The Writ Court on consideration of the fact that Police
Order No. 102 was followed consistently for preparation of
Gradation List of direct recruit Sub-Inspector of Police in 1984,
1985 and 1989 and as such for the 1994-95 batches corrected
Gradation List was published on 18.6.2013 in the light of the
principle contained in Police Order No. 102 and after detailed
discussions dismissed the writ petitions. The Writ Court also noted
that the Police Order Nos. 102 of 1983 and 269 of 1999 cannot be
quashed as they are holding the field for the last many decades.
Aggrieved by the judgment and order of the Writ
Court the appellants have more or less reiterated the same
argument which were advanced before the Writ Court and the Writ
Court rejected their submissions.
Mr. Yadu Vansh Giri, Sr. Advocate appearing on
behalf of the appellants have submitted that Police Order No. 102
of 1983 stands impliedly repealed by virtue of issuance of
subsequent police order, namely, police order No. 260 of 1997 and
as such the preparation of gradation list of 1994-95 batch of direct
recruit applying the principle contained in police order no. 102 of
1983, and correction in the Gradation List dated 2.11.2004 is
unsustainable in the eye of law as Police Order No. 102 stands
impliedly repeal by virtue of Police Order No. 260 of 1997.
The submissions of Mr. Giri is unsustainable for the
reasons that the Police Order No. 260 of 1997 was issued in the
context of Police Order No. 204 of 1988 and not to supersede
Police Order No. 102 of 1983. Clause 5 of police order 260 of
1997 simply says that the inter se seniority of the direct recruits
Sub-Inspector shall be in accordance with the merit list. It is not
an expression of departure from Police Order No. 102. The Police
Order No. 102 in fact provides for principle to be followed in
preparation of the merit list. Secondly, the Police Order No. 102
could not have been treated as deemed repealed by Police Order
No. 260 of 1997 for the simple reason that Police Order No. 269 of
1998 was again reiteration of the principle incorporated in Police
Order No. 102. The Police Order No. 269 reiterates not only the
police order no. 102 but accepted the principle embodied in Police
Order No. 102/1983 as the binding principle to be followed in the
preparation of gradation list of Sub-Inspector of Police. For ready
reference Police Order No. 269/1998 is reproduced here as
follows:
"VERNACULAR MATTER OMITTED"
The concept of implied repeal is recognized as
cannon of interpretation of Statute. The incident of implied repeal
of previous legislation is one of the canons of construction of
subsequent statutes. Bennion on Statutory Interpretation (Fifth
Edition) Part-IV at page 304 reads as follows;
" where a later enactment does not expressly repeal an earlier enactment which it has power to override, but the provisions of the later enactment are contrary to those of the earlier, the later by implication repeals the earlier in accordance with the maxim leges posteriors priores contrarias abrogant (later laws abrogate earlier contrary laws)."
However, the author has noted that there is
presumption against implied repeal stronger where modern
precision drafting is used. It is also stronger the more weighty the
enactment said to have been repealed.
Craies of Statute Law also accepted the principle of
implied repeal as one of the cannon of interpretation of the Statute
and applicable in the matter of construction of subsequent
enactment. The principle of implied repeal is one of the cannon of
construction for understanding the intention of the legislature in
the event of conflict between the two legislations. Craies has noted
the -implied repeal- as follows:
"Where two Acts are inconsistent or repugnant, the later will be read as having impliedly repealed the earlier. The Court leans against implying a repeal, "unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied. Special Acts are not repealed by general Acts unless there is some express reference to the previous legislation or unless there is a necessary inconsistency in the two Acts standing together. (Page 366- Craies on Statute Law Seventh Edition)"
Apart from the fact that in the instant case there is
no conflicting legislation which warrants scrutiny and research
whether the subsequent legislation by necessary implication is
superseded or overruled on factual scrutiny. The submission of
implied repeal of Police Order No. 102 is unfounded in fact it is
still holding the field and there is no inconsistency and there is no
police order which by necessary implication overruled or
superseded the Police Order No. 102/1983.
Mr. Giri further submitted that in terms of Clause
13 of the advertisement contained in Annexure-1, the respondents
were required to prepare the Gradation List. Clause 13 of the
advertisement reads as follows:-
"VERNACULAR MATTER OMITTED"
Mr. Giri submitted that the principle contained in
Clause 13 of the Advertisement is clinching and the Gradation List
was required to be made following Clause 13 of the Advertisement
whereas the respondents have departed from the said principle of
merit in the preparation of Gradation List and as such assailed the
Gradation List as unsustainable. This submission of Mr. Giri does
not merit any consideration in view of the fact that the manner of
preparation of select list in order of merit indicated in clause 13 of
the advertisement is only applicable in the process of selection and
preparation of merit list for selection. The said clause is not
applicable for preparation of the gradation list of the direct recruit
Sub-Inspector. It is to be born in mind that the police service is the
peculiar service which requires extensive training before keeping
the person on probation. Ordinarily, a person on appointment is
put on probation but for the appointment of Sub-Inspector under
the rule contained in police manual, a Sub-Inspector after selection
in terms of the Rule 656 is sent to the Police Training College for
comprehensive and exhaustive training and in terms of Rule 681 of
the Police Manual they are subjected to institutional training for
one year and thereafter they are subjected to practical training for a
duration of two years on probation. Thus, the Police Manual which
emphasizes on institutional training as well as practical training of
the Sub-Inspector direct recruits are the definite index of
importance of training in the service of police Sub-Inspector and
that is the reason that while preparing the Gradation List they
followed the practice of adding the marks of training while
preparing the merit list as per Police Order No.102 dated 8.2.1983
which contains a guideline for preparation of Gradation List. The
principle contained in Police Order No. 102 is most reasonable
rational and does not suffer from any illegality or infirmity.
Mr. Giri then submitted that in terms of the circular
dated 26th August, 1972 which are applicable for the purpose of
preparation of Gradation List in other cases should have been
followed in the matter of preparation of the Gradation List of Sub-
Inspector of police. The principle enumerated in the circular dated
26.8.1972 is the merit list in the recruitment process and submitted
that the respondents have acted arbitrarily in adding the marks of
training in the preparation of merit list and drawing the Gradation
List.
One cannot ignore the fact that general rule or
principle contained in circular dated 26.8.1972 is only a general
guideline and cannot override the specific principle which was to
be followed in the matter of preparation of Gradation List of Sub-
Inspector of Police. In view of the Police Order No. 102 dated
8.2.1983 no reliance can be placed on circular dated 26.8.1972 for
finding fault in the preparation of Gradation List dated 18.6.2013
or 31.7.2013 as the police order no. 102 is still holding the field.
Mr. Giri referring to the judgment of the Full Bench
in the case of Bishundeo Mahto Vs. State of Bihar, 1982 BBCJ
45 submitted that the principle discussed in the aforesaid Full
Bench should have been followed in the matter of preparation of
Gradation List. We have already held out that the general principle
of seniority is not applicable for the purpose of preparation of
seniority list as police service is distinguishable from other service
and in police service the importance of training is paramount and
as such the guidelines contained in police order no. 102 is
applicable in the preparation of Gradation List and as such the
judgment of in the case of Bishundeo Mahto (supra) has no
application in the peculiar facts and circumstances of the case also.
Mr. Giri then submitted that vide Police Order No.
3 of 2017 the Police Order No. 269 of 1999 and Police Order No.
296 of 2010 has been held to be inconsistent and as such he
submitted that the Gradation List prepared following the principle
contained in Police Order No. 269 of 1999 and Police Order No.
102 is unsustainable.
The submission of appellants in this regard is also
fallacious. The contents and contexts of Police Order No. 3 of
2017 and Police Order No. 102 are quite different. On bare
reference to Police Order No. 269/99, any prudent can arrive at
irresistible conclusion that Police Order No. 269/99 was issued
with regard to revising the contents of the institutional training in
the Police Training College. The Police Order No. 269/99
maintains that the institutional training is crucial in preparation of
Gradation List in terms of Police Order No. 102 and therefore, the
course contents should be made more effective and arrangement
should be made for organizing and providing opportunity for
examination of those trainees who failed at the theoretical
examination. The training course contents was held to be
inconsistent and in order to make the training scheme consistent
with the guideline of National Police Academy Hyderabad and
BPRND decision was taken to make course content for
institutional training accordingly and in that context the guideline
was issued vide Police Order No. 3 of 2017 to the Principal of the
Police Training College.
Reading the contents and context of police order
no. 3 of 2017 no prudent man can accept the contention of Mr.
Y.V. Giri that the Police Order No. 102 dated 8.2.1983 was
impliedly repealed. Thus the corrected Gradation List dated
18.6.2013 and the final gradation list of 1994-95 batch vide memo
no. 2914 dated 10,10,2013 does not suffer from any vice and does
not require interference in these Letters Patent Appeals.
For the reasons stated above, I do not find merit in
the submission of the appellants. I am of the considered view that
the Writ Court has committed no error either on fact or in law
which warrants any kind of indulgence into the matter in exercise
of jurisdiction in this intra-court appeal.
Both the Letters Patent Appeals are, accordingly,
dismissed.