In the judgment relating to prisoners’ rights, the Uttarakhand High Court on Monday observed that police personnel cannot be appointed as Jail Superintendent.
The Division Bench of Chief Justice Raghvendra Singh Chauhan and Justice Alok Kumar Verma passed this judgment while hearing a PIL filed by Sanjeev Kumar Akash.
The petitioner has filed the PIL to challenge the order dated February 12, 2021, passed by the Secretary, Department of Home, the respondents whereby police officers have been given additional charge of the office of the Senior Superintendent/Superintendent of Jail at Sitarganj, Haldwani, Haridwar, Dehradun and Roorkee.
The petitioner further challenged the consequential order dated February 12, 2021, passed by the Inspector General of Prisons, the respondents whereby the Officers of the Police Department have been transferred, and posted with the additional charge of Senior Superintendent/Superintendent of Jail at various prisons in the state of Uttarakhand.
The petition said that the facts of the case are that, as per the structure in the Department of Prisons in Uttarakhand, there are three sanctioned posts of Senior Superintendent of Jail, and nine sanctioned posts of Superintendent of Jail. Of the nine sanctioned posts of Superintendent of Jail, four posts are to be filled up by way of direct recruitment, and five posts are to be filled up by way of promotion from the post of Jailor.
Therefore, currently two posts of Senior Superintendent of Jail, and five posts of Superintendent of Jail are lying vacant.
According to the State Government, considering the difficulties faced in running the Jails properly, it has taken a conscious decision to give additional charge of Senior Superintendent of Jail, and Superintendent of Jail, to officers of the Indian Police Service.
Kamini Jaiswal, Counsel for the Petitioner, said that the job responsibility and the training of the Police Officers, and those of the Officers of the Jail Administration, stand on different plains.
The duty of the Police Officers is preventive and penal, and spans the arena of investigation, prevention and protection, and maintenance of law and order.
On the other hand, with the emerging modern trends in penology and theories of punishment, the fundamental duty of the Officers of the Department of Jail is the protection, the reformation, and the rehabilitation of the prisoners.
According to the Senior Counsel, the United Nations has issued “Standard Minimum Rules for the Treatment of Prisoners”, better known as “the Nelson Mandela Rules”.
These Rules prescribe the “good principles and practice in the treatment of prisoners and prison management”. Rules 74 to 82 deal with “Institutional Personnel”.
Relying on the Nelson Mandela Rules, the Senior Counsel said that the Superintendents of Jail are required to undergo a particular training, which will inculcate a sense of dignity of all the prisoners, will make them humane, and sensitise them to the plight of the prisoners, to their families, and to the prison conditions.
The Senior Counsel has further stressed on the need for appointing the Senior Superintendent/Superintendent of Jail on a full-time basis, rather than on a part-time basis.
The Uttar Pradesh Jail (Group A and B) Service Rules, 1982 (for short “the Rules, 1982”), the Senior Counsel has submitted that Rule 3(k) defines the post of “Superintendent, District Jail” to mean “the whole -time Superintendent, Jail appointed in accordance with the 1982 Rules”.
According to the Senior Counsel, once a procedure has been established by law- that too a procedure backed by certain penological philosophy- it cannot be violated by the State. Therefore, the State is legally bound to implement the service rules as contained in the Rules, 1982, to implement the requirements of Cr.P.C, to implement the constitutional philosophy, as embodied in the Preamble of the Constitution of India, and to implement the “Nelson Mandela Rules”.
The Court noted that the “All India Jail Committee (1919‐1920)” for the first time recommended the reformation and rehabilitation of offenders as one of the objectives of the prison administration. The Committee spoke about adequate training of the prison staff, and about the separation of executive/custodial, ministerial and technical staff in prison service. The Committee believed that a different sort of training needs to be provided to the prison staff, than the training being provided to the police staff.
The Jail recommendations made by Dr. WC Reckless, a UN Expert on Correctional Work, proposed the reformative theory of punishment; specialized training of correctional personnel; and the need for a cadre of properly trained personnel staff.
In 1972, a Working Group on Prisons emphasised the need for proper training of prison personnel. It also stressed that “prison administration should be treated as an integral part of the social defence components of national planning process”.
In 1980, the All India Committee on Jail Reforms recommended that State should endeavour to develop a well-organized prison cadre based on appropriate job requirements, sound training and proper promotional avenues.
On July 17, 2009, the Ministry of Home Affairs Government of India had written to the Principal Secretary (Prison)/Secretary (Home) (In-charge of Prisons) – All State Governments / UTs DGs/ IGs incharge of prisons- All State Governments / UTs, wherein it made certain recommendations as under:‐
Establishing well equipped training infrastructure in the State, with adequate skilled and well qualified instructional staff, to cater to the normal needs of basic and in-service training for the prison staff in different discipline.
Creating adequate posts for prison staff as per norms in different categories, commensurate with operational needs of safe custody, reformation, rehabilitation, health care, legal assistance etc.
Filling up all the vacancies, presently running up to 17.58% (in 2006) within time bound frame and ensure proper cadre management through timely trainings, promotions, recruitments etc.
The Court has also taken note of the United Nations has issued “Standard Minimum Rules for the Treatment of Prisoners”, better known as “the Nelson Mandela Rules”.
These Rules, inter alia, provide for “careful selection of every grade of the personnel”; “integrity, humanity, professional capacity, and personal suitability for the work that the proper administration of prisons depends”; appointment of prison personnel “on a full-time basis”;
It specifically referred to Rule 75(2) which states that “before entering on duty, all prison staff shall be provided with training tailored to their general and specific duties, which shall be reflective of contemporary evidence -based best practice in penal sciences”.
“The purpose of the Police is not to reform, or to rehabilitate, but to prevent the occurrence of crime, and to punish the criminals. Therefore, the very training of a police personnel is carried out with a different purpose in mind, and with different goals prescribed by law. Thus, there is a vast difference in the philosophy that permeates the police administration, and the jail administration. Hence, even their training and the psychology of the police personnel and prison personnel are poles apart,” the order stated.
The Court referred to the above said Rules, which clearly provide a procedure for determination of vacancy, and selection and promotion for filling up the post in prisons.
“A bare perusal of these Rules of 1982 clearly reveals that the post of Superintendent of Jail necessarily has to be filled up either by direct recruitment (fifty percent), or by promotion (fifty percent). The Rules do not permit an ad-hoc appointment from any other service, much less the police service. Therefore, the post can be filled up either directly from candidates from the open market, or from the post of Deputy Superintendents/Jailors having a work experience of minimum of five years. Hence, the appointment of the police personnel, by the impugned orders, is clearly illegal,” the Court observed.
The Court proceeded to dismissed the argument made by the State Government that the Inspector General of Prisons and the Additional Inspector General of Prisons can be appointed from the IPS cadre.