I.A. Ansari, J.
1. Will man ever cease to exploit another man Looking at the human history, it is difficult to answer this question in the affirmative confidently. Human history is replete with instances of exploitation by man of his own fellow-beings; slavery and bonded labour are instances of such weaknesses of human instincts.
2. In a democratic set up, such as ours, law is equally for all of us; but are we all equal before the law If this question has to be answered in the affirmative, the responsibility of the Courts is onerous, because the Courts have the momentous task of ensuring that the. principle that every one is equal before the law does not remain as a mere philosophy, but translate into practice in every day life. If the answer has to be given, in the present writ petition, in the affirmative, this Court has the responsibility of freeing the writ petitioners from the exploitative attitude of none, but the State itself.
3. This case has a history and the history commences in the year 1967, when Arunachal Pradesh police set up was attempted to be brought at part with the rest of the country.
4. In a narrow compass, the case of the petitioners may be put as follows:
Out of the present 35 writ petitioners, eight numbers of petitioners, viz., petitioner Nos. 1, 6, 7, 12, 13, 15, 28 and 34 were appointed as constable orderlies and the rest of the petitioners were appointed as orderly peons from March 1979 to August 1994, by the Government of Arunachal Pradesh. The qualifications of these petitioners and their dates of appointment are available in the chart furnished at page 2/3 of the additional affidavit filed by the petitioners. Documentary proof of the qualification of the petitioner Nos. 10,17,18 and 19 is not available on record, but the petitioner Nos. 2, 7, 9, 21, 23, 33 and 35 are below VIIIth standard pass, whereas remaining 24 petitioners have studied between class VIII and XII. The majority of the petitioners have qualification of having studied upto Class VIII and XII and in terms of the relevant rules for recruitment of constables in existence at the relevant time, these petitioners were qualified to be appointed as constables.
5. The present petitioners, as constables orderlies/orderly peons, have approached this Court with the present writ petition alleging exploitation, humiliation and harassment by the police officers, who use them as domestic servants. These petitioners seek the reliefs of confirmation and regularisation of their services and/ or their absorption in the posts of constables of general duty, fixation of specific duty hours, determination of nature of duties to be performed by them, prescribing of holidays and leave period coupled with the direction that these petitioners would not be used as domestic servants.
6. The respondents have contested this case, their case being, in brief, thus: Out of the 35 petitioners, petitioner Nos. 1, 7, 12, 13, 15, 28 and 34 were appointed as orderly constables. (However, records reveal that the petitioner No. 6 was also appointed as orderlies constable.) The minimum educational qualification of constables is matriculate, whereas for orderly constables, no qualification is required. The constables are required to pass prescribed physical test as per the relevant recruitment rules and they are also required to undergo training, whereas for orderly constables, no such standard has been laid down. Pursuant to the implementation of recommendations of the 4th Pay Commission, constables were classified as Group-C employees, whereas constable orderly/ orderly peons were classified as Group-D employees. The petitioners are regular and permanent employees and confirmation of their services is under due consideration of the department, but the matter could not be finalised due to want of authentic documents like birth certificate, certificates of educational qualifications, etc. The services of these petitioners are deemed to be permanent as per the existing service rules.
7. I have carefully perused the materials on record. I have heard, at length, Mr. P.K. Tiwari, learned counsel for the petitioners, and Mr. N.N. Saikia, learned Advocate General, Arunachal Pradesh, assisted by Mr. R.H. Nabam, learned Addl. Senior Govt. Advocate, appearing on behalf of the respondents.
8. Upon hearing learned counsel for the parties and upon perusal of the materials on record, it transpires thus: while sanctioning the police set up in Arunachal Pradesh in 1967, Government of India sanctioned 63 posts of constable orderlies. The constable orderlies are supposed to perform the function of batmen to the police officers on the pattern of the army and also to distribute dak, attend to telephone duties, etc. In the sixties, it was not an uncommon practice in the police of all the States to select constable orderlies from the existing strength of constables meant for general duties so that these police personnel are able to perform both the duties, whenever necessary. Like other States in India, Arunachal Pradesh too had the practice of enlisting regular constables in the vacancies meant for constable orderlies. However, as the days rolled by and, particularly, with the commencement of the year 1970, it was noticed that more and more educated persons had started joining police forces all over the country as constables, but they were not inclined to perform the functions of constable orderlies. This disinclination resulted into serious resentment and the year 1970 saw a revolt in the PAG in Uttar Pradesh. Similar serious situation developed in a number of other States. The practice of using constables of general duties as constable orderlies had to be, therefore, given up in many of the States and people with lesser educational qualifications started being enlisted for performing the duties of constable orderlies so as to ease the tension that had started brewing up and developing as aforesaid.
9. The above details are available in the office note, dated 9.12.1978, of the IGP of Arunachal Pradesh. In view of the situation, which had so developed, the IGP proposed, in his said office note, that the Government should relax the minimum qualification of education, height, chest, etc. for enlistment of constables, who would be required to perform the duties of constable orderlies, for, it was felt that if the constable orderlies have lesser educational qualification than the general duty constables, there would not be any resentment amongst them in performing the duties of batman inasmuch as though lesser qualified, they would receive pay etc. at per with those of the general duty constables, but unlike the general duty constables, they would not be entitled for promotion as SIs and ASIs of the police. The proposals, so contained in the office note of the IGP, were produced before this Court and the same form part of the record.
10. It also transpires from the materials on record that the Addl. Secretary to the Govt. of India, Ministry of Home vide Circular, dated 16.11.1979, (Annexure-A to the affidavit-in-opposition filed by the respondents) which was issued to the Chief Secretary of all the States and Union Territories of India, drew their attention to the Chief Ministers' Conference held in New Delhi, on 6.6.1979, wherein a decision was taken to abolish the orderly system in it's the then existing form and it was left to each State to devise its own alternative arrangements depending upon the conditions prevailing in the State. By this Circular, a request was made to issue necessary instructions regarding abolition of orderly system and confirm the position to the Ministry of Home, Government of India.
11. Pursuant to the Circular, dated 16.11.1979, aforementioned, the Chief Secretary to the Government of Arunachal Pradesh vide his letter, dated 10.1.1980 (Annexure-B to affidavit-in-opposition) informed the Joint Secretary, Ministry of Home, Govt. of India, that much before the decision was taken in the Conference of the Chief Ministers, the Government of Arunachal Pradesh had already decided, in February 1979, to abolish the system of having orderlies in the police department, the Government of Arunachal Pradesh had devised an alternative method under which persons with lower qualifications than those prescribed for the regular constables would be enlisted as orderly peons, though they would be getting pay scale as that of the regular constables subject to the condition that they would not be issued the uniform of police constables and that they would also not be required to undergo the prescribed training meant for constables.
12. It can, therefore, be seen that the qualifications of those, who were appointed as orderly peons, ought to have been lower than those of the qualifications prescribed for the constables under the relevant rules. However, in practice, admittedly, in the State of Arunachal Pradesh, persons having qualifications higher than that of the constables were also appointed as constable orderlies and/or orderly peons.
13. Contrary to the clarification offered to the Government of India by the authorities concerned of Arunachal Pradesh as mentioned hereinabove, there is nothing on the record to indicate that the proposals of the IGP contained in his office note, dated 29.12.1978, aforementioned ever crystallised in the form of any rules. The respondents have also not been able to produce, on record, any executive order passed in exercise of powers under Article 162 of the Constitution to bring into force an alternative system as a substitute for erstwhile system of constable orderlies.
14. It is, therefore, clear that without any authority of law, the system of constable orderlies continued and the recruitments were made to the then sanctioned posts of 63 constable orderlies. The materials on record , also reveal that contrary to what the Chief Secretary, Govt. of Arunachal Pradesh, had informed the Government of India, even after February 1979, quite a few persons were appointed as constable orderlies. This position is not disputed by the respondents.
15. It is also worth noticing that in exercise of the powers conferred by Section 2 of the Police Act, 1861, read with Section 3 of the North East Frontier Agency Regulations, 1965, the Chief Commissioner of Arunachal Pradesh issued a notification, dated 15.5.1975, framing thereunder rules known as Arunachal Pradesh Subordinate Police Service (non-gazette) Rules' 1974 (Annexure 3 to the affidavit-in-reply). At the relevant time, the State of Arunachal Pradesh was a Union Territory. The Schedule contained in the said rules provides educational qualification of VIIIth standard pass for the post of constables (unarmed branch) and VIth standard pass for constable (armed branch). It is quite pertinent to note that the Rules of 1974 are totally silent about the post of constable orderly/orderly peon.
16. In course of time, in exercise of powers conferred by the proviso to Article 309 of the Constitution, the Governor of Arunachal Pradesh issued a notification, dated 19.11.1987 (Annexure 4 to the affidavit-in-reply) framing Constable of Police (Group-D) Post Recruitment Rules, 1987. Later on, by order dated 19.6.1992, the Commissioner of Home, Govt. of Arunachal Pradesh, extended the said 1987 Rules for the purpose of recruitment of constables in Arunachal Pradesh Armed Police till the framing of recruitment rules for the said purpose. The 1987 rules show that the post of Constable of Police in Arunachal Pradesh Armed Police Battalion is a Group-D post. The 1987 rules provide the educational qualification of class X pass for general category to be appointed as constables; whereas for the Arunachal Pradesh tribals, the qualification prescribed is class VIII pass.
17. Subsequently, vide order dated, 03.11.1989 (Annexure 5 to the affidavit-in-reply), the Govt. of Arunachal Pradesh relaxed the educational qualification from class-VIII pass to that of class-Ill for recruitment of constables for Second Armed Battalion of Arunachal Pradesh. However, this relaxation was only with regard to Arunachal Pradesh tribal candidates.
18. The perusal of the relevant rules clearly show that prior to 1987, the educational qualification for recruitment of constables (unarmed branch) was class-VIII pass for general category candidates, whereas the educational qualification for recruitment of the constables (armed branch) was only VIth standard pass. It was only after framing of 1987 Rules that the required qualification was raised to Xth standard. Moreover, the 1987 Rules were adopted by the Govt. of Arunachal Pradesh only in the year 1992 for Arunachal Pradesh Armed Police.
19. What is, thus, discernible from the materials on record and the submissions of the learned counsel for the parties is that no new system for constable orderlies/orderly peons was devised by the State of Arunachal Pradesh. There is no rule in existence, which governs the service conditions of constable orderly/orderly peon. The proposal of the IGP given in office note, dated 29.12.1978, aforementioned, never crystallised in the form of any rules. No executive order in exercise of powers under Article 162 was passed authorising appointment / recruitment of constable orderly/orderly peons. Even much after February 1979, petitioners Nos. 1, 7, 12, 13, 15, 28 and 34 were appointed as constable orderly. The rules is existence do not make any between constable and the constable orderlies/orderly person. In fact, rules are totally silent about the post of constable orderly/orderly peon. The statutory rules framed from time to time governing the service conditions of constables show that prior to 1987, the educational qualification for recruitment of constables (Unarmed Branch) was class VIIIth pass, whereas the educational qualification for recruitment of constables (Armed Branch) was only VIth standard. Majority of the petitioners were qualified to be the appointed as constable (Unarmed Branch), because their educational qualification was higher than the one prescribed for the constable, not to speak of constable orderly. Since there is no law in existence, which makes any distinction between constable simpliciter, on the one hand, and constable orderlies/orderly peons, on the other hand, this distinction was, it is clear, resorted to by the official respondents for their own convenience and to get over the rules relating to the recruitment of constables.
20. The facts of the present case are, as submitted by Mr. Tiwari, peculiar inasmuch as it is the State, which has been utilising, in its own interest, the services of the writ petitioners in the garb of nomenclatures, such as, constable orderlies/orderly peons without having any recruitment rules or clear, explicit and published/notified executive instructions. Since there is no rule/clear executive instructions relating to recruitment and other service conditions of the persons, whose services are being so used, the services of the writ petitioners cannot be readily regularised and/or confirmed. Mr. Tiwari is, therefore, correct in submitting that is the facts and circumstances of the present case, the law of regularisation cannot be applied stricto senso, though the present petitioners were appointed against 63 numbers of sanctioned posts of constable orderlies, the posts having been sanctioned way back in 1967 by the Government of India, when the State of Arunachal Pradesh was, as indicated hereinabove, a Union Territory. Since pursuant to the Conference of Chief Ministers held on 6.6.1979, the decision was taken to abolish the system of constable orderlies and to devise some alternative system as a substitute, the system of constable orderly could not have been continued in the State of Arunachal Pradesh and the State ought to have abolished the exploitative system of constable orderlies / orderly peons and devised an appropriate system for utilising the services of the writ petitioners, one of the options being to absorb the services of these constable orderlies either as. constables in police force of as office peons or in some other reasonable way in the, Police Department depending upon the qualification of the persons concerned. Far from all these, the State respondents have done nothing except changing the nomenclature of the posts from constable orderlies to orderly peons. In fact, while devising an alternative system to replace the system of constable orderlies, it was incumbent upon the official respondents to suitably accommodate those constable orderlies, who had the qualification equal to, or higher than, that of the constables by absorbing them in the posts of constabales as per the recruitment rules then is existence for the posts of constable. In view of the objects sought to be achieved, persons, having the qualification of being appointed as constables, should not have been appointed as orderly peons / constable orderlies. Therefore, in view of the decision taken in the Chief Ministers' Conference, it was necessary for the State of Arunachal Pradesh to immediately absorb as constables those petitioners, who had the qualification of being appointed as constables in terms of the rules then in existence.
21. Confirmation is sine qua non for attaining substantive status. The initial entry of the petitioners was against sanctioned vacancies. It is strange that till this date, services of these petitioners have not been confirmed, though the respondents are at pains to admit that the services of the petitioners should be deemed to have been confirmed. It is incumbent on the part of the official respondents to confirm the services of these petitioners immediately without further delay and to confer on them all the service benefits consequent to such confirmation including pensionary benefits.
22. Considering, therefore, the matter in its entirety, the respondents are hereby directed as follows :
(i) If the official respondents are inclined to continue with the system of Constable Orderlies/Orderly Peons, then, they shall, within a period of three months from today, formulate a policy consistent with the constitutional and legal provisions contained in that behalf or frame rules so as to give legal sanction to the continuation of the system of constable orderlies/orderly peons. In such an event, the policy so formulated or the rules so framed must also specify, in particular, service conditions and the nature of the duties required to be performed by these Constable Orderlies/Orderly Peons. The duty hours and the leave as applicable to other State Government employees of similar grade shall also be made applicable to these Constable Orderlies/Orderly Peons.
(ii) The rules and/or policy aforementioned shall lay down that the services rendered by the petitioners as Constable Orderlies / Orderly Peons prior to the framing of the rules or the policy, as the case may be, shall be counted for the purpose of their seniority and retiral benefits.
(iii) If the respondents are inclined to do away with the system of Constable Orderlies/Orderly Peons, then, the respondents shall, within a period of three months from today, formulate a policy consistent with the constitutional and legal provisions contained in that behalf for appropriate absorption of the writ petitioners as Constable Orderlies/Orderly Peons and/or in such other post(s), which the respondents may deem fit and proper. The policy aforementioned shall also make provisions for confirmation of services of the writ petitioners and for all such service benefits as indicated at para 22(i) and 22(ii) above.
(iv) The respondents shall submit its policy for perusal and scrutiny of this Court on or before the expiry of a period of three months from today.
23. No order as to costs.