Ram Sanehi And Others vs State Of U.P. And Others on 28 February, 2020

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Allahabad High Court

Ram Sanehi And Others vs State Of U.P. And Others on 28 February, 2020

Bench: Sudhir Agarwal





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 21.10.2019
 
Delivered on 28.02.2020
 
Court No. - 34
 

 
Case :- WRIT - A No. - 4178 of 2003
 

 
Petitioner :- Ram Sanehi And Others
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- W.H. Khan,Gulrez Khan,J.H. Khan
 
Counsel for Respondent :- C.S.C.,C.P. Awasthi,J.N.Maurya,P. Awasthi
 

 
Hon'ble Sudhir Agarwal,J.

1. This writ petition under Article 226 of the Constitution of India has been filed by eleven petitioners, namely, Ram Sanehi, Mool Chandra, Siv Ram, Usman Khan, Kamlesh Kumar, Jamal Khan, Dharmdas, Shiv Ratan, Ram Kripal Yadav, Lakhan Lal and Ganga Ram, praying for issue of a writ of certiorari to quash Office Memorandums dated 08.01.2003, 09.01.2003 and 10.01.2003 (Annexures-2, 3 and 4 to the writ petition respectively). Petitioners have also prayed for issue of a writ of mandamus commanding respondents to regularize them on the post of Follower, a Group-D post.

2. Petitioners have pleaded that a press notification dated 21.12.2002 was issued by Superintendent of Police, Banda inviting applications for filling 25 vacancies of Group-D posts in Police Department in District Banda. The break up of vacancies are given as under:

Name of Post Number of vacancies Follower/Cook/Kahar 23 Waterman 01 Safai Karmchari 01

3. The notified vacancies were in the scale of Rs. 2550-3200. It was stated that selection shall be made on the basis of interview which shall be held on 08.01.2003 at Police Lines, Banda. The selection was held and Respondents-4 to 28 were declared selected vide office Memorandums dated 08.01.2003, 09.01.2003 and 10.01.2003.

4. Aforesaid selection has been challenged on the ground that petitioners were engaged to discharge duties of various nature, namely, Cook, Barbar, Carpenter etc. Petitioners-1 and 2 were engaged from time to time since 1990; Petitioners-3 and 4 since 1995; Petitioner-5 since 1996; Petitioners-6 to 8 since 1997 and Petitioners-9 to 11 since 1998. Most petitioners worked as Cook while Petitioner-2 worked as Barber and Petitioner-11 as Carpenter. Initially petitioners were paid a consolidated pay of Rs. 540/- per month which later increased to Rs. 1050/- per month. Engagement and working of petitioners continued with a break of two or three days just to defeat their claim of continuous service. Respondent-2, for regular appointment was directed to give preference by U.P. Police Headquarters, Allahabad vide order dated 30.11.2002 to persons who were already working but that was ignored while making selection of Respondents-4 to 28. Petitioners, who are Scheduled Castes, were interviewed on 08.01.2003, those who are Other Backward Class were interviewed on 09.01.2003 and General candidates were interviewed on 10.01.2003. Selection Committee consisted of Sri S.N. Upadhyay, the then Superintendent of Police, Banda as Chairman. Sub-Divisional Magistrate, Attarra and Circle Officer, Baberru were Members. Selection was made in a very arbitrary manner inasmuch as Respondent-4, Ashok Kumar is brother-in-law of Sri Dev Dutt, DIG, Chitrakoot Dham; Respondent-5, Narendra Pal is recommendee of Sri Dinkar, Minister; Respondent-6, Ramesh Kumar's brother-in-law is in Secretariat; Respondent-7, Girija Kumar is a man of Sri R.N. Srivastava, I.G. Banda; Respondent-8 is a man of S.O. Maton and similarly other selectees are connected with persons enjoying high position in Government. Besides petitioners, who were working as Follower in Banda, some others similarly working, have also not been selected except, Respondents-7, 9, , 12, 14, 17, 21 and 22. With regard to relationship of some respondents, and the factum that those who were selected and earlier working for lesser period, averments are contained in paras 11 and 12 to writ petition, which read as under:

"11. That the respondent no. 4 Ashok Kumar is brother-in-law of DIG Shri Dev Dutt Chitrakoot Dham, respondent no. 5 Narendra Pal is recommendee of Shri Dinkar Minister, respondent no. 6 Ramesh Kumar is brother-in-law in Secretariat, respondent no. 7 Girijia Kumar is a man of Shri R.N. Srivastava I.G. Banda, respondent no. 8 is a man of S.O. Maton who brought him at the time of interview and similarly other persons who have been selected are men of the Selection Committee are of some other persons enjoying high position.

12. That, in addition to the petitioner there were other persons working as Followers in Banda who appeared in the interview but have not been selected except Girija Kumar respondent no. 7 who was working for one year, respondent no. 9 who was working as Sweeper, respondent no. 12 Mohd. Rafiq worked for two or three months and was personal Barber to DIB, respondent no. 14 Rajesh Kumar was working since 1998, respondent no. 17 Shri Krishan Gupta was working quite long time, respondent no. 21 Abdul Hafiz was working sine 1996, respondent no. 22 Raj Narain was working since 1999."

5. It is said that selection is vitiated on account of favouratism and nepotism; Petitioners-1 and 2 were entitled to be considered for regularization under U. P. Regularization of Daily Wages Appointments on Group 'D' Posts Rules, 2001 (hereinafter referred to as the "Rules, 2001"); Selection held on 8th, 9th and 10th January, 2003 is neither fair nor impartial but vitiated on account of arbitrariness; Petitioners ought to have been given preference but denied; Petitioners were entitled for 15 marks on the ground of their working for more than three years as Followers as per Rule 9(3) of U.P. Group 'D' Employees Service Rules, 1985 (hereinafter referred to as "Rules, 1985") but said benefit has not been given hence entire selection is bad and illegal.

6. A counter affidavit has been filed on behalf of Respondents-1 to 3 sworn by Sri Ram Bodh, Additional Superintendent of Police, Banda. With regard to engagement of petitioners from time to time facts are not disputed but allegations of favouratism, nepotism and arbitrariness are denied. It is said that petitioners could not secure qualifying marks and having not been found suitable, not selected. Allegations of relationship with high officials are denied and it is said that selection has been made as per performance of candidates before Selection Committee; there was no restriction with respect of districts to which candidates belong and claim of regularisation of petitioners is denied. It is not disputed that under U.P. Police Headquarters order dated 30.11.2002 those who were worked as substitute were required to be given preference but not if other candidates have performed better. Petitioners do not satisfy the definition of "retrenched employee" and, therefore, claim set up on the basis of Rules, 1985 has been denied.

7. Respondents-4 to 28 have also filed a collective counter affidavit which is sworn by Respondent-4, Ashok Kumar. Herein also allegations of relationship, favouratism and nepotism are denied and it is said that allegations have been made by petitioners mala fide.

8. Copy of Police Headquarters letter dated 30.11.2002 has been filed as Annexure-1 to supplementary counter affidavit and said letter reads as under:

^^mi;qZDr fo"k;d 'kklukns'k la[;k% 445 ,e@6&iq&1&2002] fnukad 15-11-2002 dh layXu Nk;kizfr dk voyksdu djsa ,oa fufgr 'krksZa dks n`f"Vxr j[krs gq;s layXu izi= esa inokj n'kkZ;h x;h fjfDr;ksa ,oa vf/kdrk ds fooj.k ds vuqlkj rFkk 'kklu ds i=kad % 20@7@1986&dkfeZd&2 ¼1½ fnukad 0&9&86 }kjk vf/klwpuk lewg ^^x** deZpkjh lsok ¼izFke la'kks/ku½ fu;ekoyh 1986 ds vUrxZr fn;s x;s izkfo/kkuksa ds vuqlkj vius v/khuLFk tuinksa ds izHkkfj;ksa dks fnukad 15-01-2003 rd 'kklu }kjk le;≤ ij fuxZr orZeku esa izpfyr vkj{k.k uhfr dks /;ku esa j[krs gq, HkrhZ dh dk;Zokgh lqfuf'pr djus gsrq funsZf'kr djus dh d`ik djsaA 2- fjfDr ,oa vf/kdrk ds layXu fooj.k esa n'kkZ;s x;s inksa dh la[;k esa bl chp LFkkukUrj.k] e`R;q] lsokfuo`fRr ,oa e`rd vkfJr dh HkrhZ ds QyLo:i inksa dh la[;k dh fLFkfr esa ifjorZu dk gks tkuk LokHkkfod gS] ,slh fLFkfr esa vius tksu ds leLr tuinksa dh fjfDr ,oa vf/kdrk dks lek;ksftr djrs gq;s HkrhZ gsrq funsZ'k fuxZr djus dh d`ik djsaA izdj.k esa ;g Hkh mYys[kuh; gS fd ;fn dksbZ deZpkjh iwoZ ls vLFkk;h inksa ij ,oa ,oth ij dk;Zjr gksa ;k dk;Z fd;k gks rks ,sls dehZ dks HkrhZ gsrq vo'; ojh;rk iznku djsaA iqfyl eq[;ky; ds laKku esa cgqr ls tuinksa esa prqFkZ Js.kh ds in ij HkrhZ gsrq dfeZ;ksa }kjk fjV ;kfpdk,a Hkh nk;j dh x;h gS ;fn ,sls izdj.k vkids v/khuLFk tuinksa esa yfEcr gks] mls izkFkfedrk ds vk/kkj ij lsok;ksftr fd;s tkus ij fu;ekuqlkj vo'; fopkj djsa rkfd fjVksa dk fuLrkj.k gks ldsA fnukad 31-12-2001 ds i'pkr gq;h fjfDr;ksa dks bl HkrhZ esa lekos'k u fd;k tk;A** "Kindly peruse the enclosed photocopy of the government order no. 445M/6-Pu-1-2002, dated 15.11.2002 on the aforementioned subject; and in view of the conditions vested therein and considering the details of post-wise vacancies and over-staffing shown in the enclosed format, and also according to the provisions of Group 'D' Employees Service (First Amendment) Rules, 1986, notified through the Government Letter No. 20/7/1986-Personnel-2(1) dated 0.09.86, kindly instruct in-charges of the districts under your subordination to ensure the process of recruitment to be held till 15.01.2003, while keeping into account the currently existing reservation policy issued by the government from time to time.

2. In the number of posts shown in the enclosed details of vacancies and excess staff, the number of posts is quite natural to change due to transfer, death, retirement and recruitment on compassionate ground. In such a situation, while adjusting all the vacancies and excess staff in your zone, kindly issue instructions for the recruitment process. In the matter, it is also worthwhile to mention that if any employee is working or has worked on the temporary basis or as replacement; then such employees must be given preference. It is in the cognisance of the police headquarters, writ petitions have been filed by employees for the recruitment to the class IV posts in many districts. If such matters are pending in the districts under your subordination, then due consideration must be had to according employment on priority basis so that the writs can be disposed of. The vacancies arisen after 31.12.2001 shall not be included in this recruitment."

(English translation by Court)

9. Petitioners have filed rejoinder affidavit reiterating the averments made in writ petition but with regard to allegations of relationship of some of selected candidates, no material has been placed on record to substantiate the same.

10. A further supplementary counter affidavit has been filed wherein para 11 of writ petition has been replied more specifically as under:

"5. That it is further submitted humbly that the facts mentioned in paragraph no. 11 of the writ petition are also denied vide counter affidavit sworn on 26.2.2003 (dated 3.3.2003). It is further humbly submitted that the allegations made in paragraph 11 of the writ petition are totally false and frivolous having no substance. It is wrong to state that respondent No. 4 Ashok Kumar is selected because of her is brother in law of DIG Sri Dev Dutt, Chitrakoot Dham. It is further wrong to state that respondent no. 5 Narendra Pal is recommendee of Sri Dinkar Kumar. It is further wrong to state that respondent no. 6 Ramesh Kumar is brother in law in Secretariat. It is further humbly submitted that in paragraph under reply the allegations with regard to selection of respondent no. 6 prima facie appears false allegation, as a matter of fact non can be the brother in law in Secretariat. It is further wrong to state that respondent no. 7 Girija Kumar is main of Sri R.N. Srivastava I.G. Banda and his candidature is considered as such. It is further humbly submitted that there was no post existing as I.G. Banda. It is further wrong to state that respondent no. 8 is a man of S.O. Maton who brought him at the time of interview. It is further wrong to state that other persons who have been selected are man of selection committee. It is further humbly submitted that none of the selected candidate is family member, relative, friend of the member of the selection committee. It is further wrong to state that some other selected candidates have been selected on account of the persons enjoying high posts. It is further humbly submitted that no appointment is made under influence of any person. In fact entire selection process was fair and just."

11. A select list of all the candidates has also been placed on record as Annexure-8 to aforesaid supplementary counter affidavit sworn on 03.12.2011.

12. Sri W.H. Khan, learned Senior Advocate appearing for petitioners has submitted a written submission and reiterated the same orally also. He also placed reliance on Jagannath Prasad Sharma vs. The State of U.P. and others, AIR 1961 SC 1245; Ajay Hasia and others vs. Khalid Mujib Sehravardi and others, 1981(1) SCC 722; Manjul Kumar and another vs. State of U.P., 2007(7) AWC 7712; Krishna Murari vs. State of U.P. and others, 2012(6) AWC 5571; Satyendra Kumar Singh and others vs. State of U.P. and others, 2013(3) ESC 1226 (All); and, Vijay Kumar Gaur vs. State of U.P. and another, 2017(1) AWC 552.

13. On the contrary, learned Standing Counsel appearing for Respondents-1, 2 and 3 contended that selection has been made fairly; there is no material to substantiate the allegations of favouratism nepotism etc.; pleadings are vague and unsubstantiated; and, petitioners have not shown any legal right of regularization under any statute. These arguments are adopted by learned counsel appearing for Respondents-4 to 28 and he has also placed reliance on this Court's decision in State of U.P. vs. Chaturth Shreni Karmachari Sangh and others, 2006(4) ESC 2888 (All).

14. The rival submissions of the counsels, in my view, give rise to following questions:

(i) Whether selection is vitiated on account of favouritism and nepotism by selecting the candidates who are allegedly related to highly placed officials, as stated in paras 11 and 12 of the writ petition.

(ii) Whether selection of Respondents-4 to 28 is otherwise vitiated in law.

(iii) Whether there is any illegality in selection justifying inference of this Court.

15. Coming to first question, I find that specific relationship has been stated by petitioners in respect of some of the candidates but the same has been denied by respondents in counter affidavit and again in para 5 of supplementary counter affidavit. Petitioners have not placed any material to demonstrate and prove the alleged relationship except oral assertions made in paras 11 and 12 of writ petition which have been denied by respondents very categorically. In these facts and circumstances and in absence of any material on record to prove the alleged relationship of some selected candidates with superior officials, I find no substance in the allegation that selection is vitiated on account of nepotism and favouritism. Question (i) is answered against petitioners.

16. Now coming to Question (ii), the claim is that petitioners are entitled for preference as stated vide Police Headquarter's letter dated 30.11.2002. It is not disputed by learned counsel for petitioners that regular selection was to be made in accordance with Rules, 1985. No provision in the said Rules has been shown providing any preference to be given to petitioners on account of the fact that they have worked as daily wage employees or otherwise in the Department. Some weightage has been provided for "retrenched employees" but I find that petitioners do not satisfy the definition of "retrenched employees". Here I may consider the relevant provision deal with Retrenched Employees so as to find out whether petitioners can be said to Retrenched Employees or not.

17. U.P. Retrenched Employees Recruitment Rules, 1967 (hereinafter referred to as the "Rules 1967") was the first to be framed in this regard providing certain benefits to retrenched employees. The "retrenched employee" was defined in Rule 2(b). Rule-3 of Rules, 1967 provides that the said rules shall remain in force for a period of three years and thereafter for such period as notified by the Governor in consultation with the Commission. The said rules were applicable to all services and posts under the rule making control of the Governor, which were to be filled in wholly, or partly by direct recruitment. The aforesaid rules continued to remain in force upto October, 1971.

18. In 1975, for recruitment in Ministerial Cadre in the Subordinate Offices, statutory rules under proviso to Article 309 of the Constitution of India were framed, namely, "The Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975" (hereinafter referred to as "Rules, 1975") published in the Gazette dated 29.7.1975. The rule-making authority declares that the said rules are being enacted in supersession of all existing rules and orders on the subject and for recruitment of ministerial staff in the subordinate Government offices in the State. The preface of Rules, 1975, reads as under:

"In exercise of powers conferred by the proviso to Article 309 of the Constitution, and in supersession of all existing rules and orders on the subject, the Governor is pleased to make the following rules for recruitment of ministerial staff in the subordinate Government offices in the State."

19. Rule 3 of Rules, 1975, which give it overriding effect, reads as under:

"3. Effect of inconsistency with other rules.- In the event of any inconsistency between these rules and any specific service rules:

(1) the provisions contained in these rules prevail to the extent of the inconsistency in case the specific rules were made prior to the commencement of these rules; and (2) the provisions contained in the specific rules shall prevail in case they are made after the commencement of these rules."

20. Rule 4(gg) of Rules, 1975 provides the definition of "Retrenched Employee" and reads as under:

"(gg) "Retrenched Employee" means a person who was employed on a post under this rule making power of the Governor-

(i) in permanent, temporary or officiating capacity;

(ii) for a total minimum period of one year, out which at least 3 months service must have been continuous service.

(iii) whose services were or may be dispensed with due to reduction in or winding up of the establishment; and

(iv) in respect of whom a certificate of being a retrenched employee has been issued by the Appointing Authority but does not include a person employed on ad hoc basis only."

21. Rules, 1975 initially, as enacted, did not specifically contain any provision giving any relaxation to "Retrenched Employee" but Rule 13-A was inserted by Notification dated 06.07.1977 for a period of three years from the date of its commencement and it reads as under:

"13 A. Relaxation for retrenched employees.-(1) A retrenched employee shall be given exemption from the upper age-limit to the extent of the period of service rendered by him to the State Government together with the period spent without a Government job as a result of the retrenchment.

(2) A retrenched employee, who on the date of his first appointment in the service of the State Government possessed the academic qualifications prescribed on such date for the post now being applied for, shall be deemed to satisfy the requirement of academic qualifications for such post.

(3) For the purposes of this rule, the expression "retrenched employee" means a person who was employed in any service or on any post under the rule-making control of the Governor whether in a substantive, officiating or temporary capacity, and had served continuously for a period of not less than one year, and whose services are, whether before or after the commencement of these rules, terminated or liable to termination, on account of reduction of establishment, and in respect of whom a certificate of being a retrenched employee has been issued by the appointing authority concerned, but does not include a person who was appointed on an ad hoc basis.

Explanation- A person appointed in accordance with the procedure prescribed in the recruitment rules or orders applicable to the service or post concerned shall be deemed to have been appointed on an ad hoc basis."

22. Consistent with 1975 Rules a Government Order No. 27/2/1974- Karmik-2 dated 6.7.1977 was published containing definition of "retrenched employee" and on the same date, another Government Order No. 41/2/1967- Karmik-2 dated 6.7.1977 was published for giving effect to the provisions of 1975 Rules and for guidance and clarification of the concerned officials. The aforesaid Government Order relevant for the present purpose is reproduced as under:

^^'kkŒ laŒ&41@2@67&dkfeZd&2] fnukad tqykbZ 6] 1977 fo"k;% jkT;k/khu lsokvksa esa oxZ&3 o 4 ds NaVuh'kqnk deZpkfj;ksa dks [kikus dh O;oLFkkA jkT;k/khu dk;kZy;ksa ds NaVuh'kqnk deZpkfj;ksa dks Hkkoh fjfDr;ksa esa [kikus ds fy, o"kZ 1967 esa ,d fu;ekoyh cukbZ xbZ Fkh] tks vDVqcj] 1971 rd izHkkoh jghA mlds i'pkr ferO;f;rk ds vk/kkj ij vf/k"Bkuksa esa deh fd;s tkus vFkok vU; iz'kklfud dkj.kksa ls jkT; ds fofHkUu dk;kZy;ksa esa oxZ 3 rFkk 4 ds deZpkfj;ksa dh NaVuh djuk vfuok;Z gks x;k rFkk Nvuh'kqnk deZpkfj;ksa dks [kikus dk iz'u 'kklu ds le{k iqu% mifLFkr gks x;kA 2- bl lEcU/k esa eq>s ;g dhus dk funsZ'k gqvk gS fd bl leL;k ij lE;d~ fopkj djus ds mijkUr NaVuh'kqnk deZpkfj;ksa dks jkT;k/khu dk;kZy;ksa ¼vizkfof/kd rFkk yksd lsok vk;ksx dh ifjf/k ds ckgj ds inksa½ esa gksus okyh fjfDr;ksa es [kikus ds fy, 'kklu us vc fuEufyf[kr fu.kZ; fy;s gSa% ¼d½ vk;q lhek ds NwV& ,sls deZpkfj;ksa us ftrus o"kZ dh lsok viuh Nvuh ds iwoZ dh gks rFkk ftruh vof/k ds fy, og Nvuh ds dkj.k lsok ls ckgj jgs gksa mrus o"kZ dh vk;q lhek ls mUgsa NwV iznku dj nh tk;A ¼[k½ 'kSf{kd ;ksX;rk ds NwV& ;fn ,sls deZpkjh viuh iwoZ fu;qfDr ds le;] ftl in ds fy, og vc vH;FkhZ gSa ml le; ml in dh fu/kkZfjr 'kSf{kd vgZrk iwjh djrs gSaA ¼x½ lqfo/kkvksa dh vof/k& mi;qZDr lqfo/kk;sa bl 'kklukns'k ds tkjh gksus ds fnukad ls 3 o"kZ ds fy, gh ekU; jgsaxhA ¼?k½ NVuh'kqnk deZpkfj;ksa dh ifjHkk"kk& NVuh'kqnk deZpkjh dh ifjHkk"kk ogh gksxh tks dkfeZd vuqHkkx&2 dh vf/klwpuk la[;k 27@2@1974 &dkfeZd ¼2½ fnukad 6 tqykbZ] 1977 esa nh gqbZ gS vkSj tks lqyHk lnHkZ gsrq uhps m)`r dh tkrh gSA ^^NVuh fd;k x;k deZpkjh** dk rkRi;Z ml O;fDr ls gS tks jkT;iky ds fu;e cukus ds fu;U=.k esa fdlh lsok esa ;k fdlh in ij ekSfyd lhukiUu] ;k vLFkk;h :Ik ls fu;ksftr Fkk vkSj ftlus de ls de ,d o"kZ dh vof/k rd yxkrkj lsok dh gks vkSj ftldh lsok;sa bl fu;ekoyh ds izkjEHk gksus ds iwoZ ;k i'pkr vf/k"Bku esa deh fd;s tkus ds dkj.k lekIr dh tk lds vkSj ftuds lEcU/k esa lEc) fu;qfDr izkf/kdkjh }kjk NVuh fd;k x;k deZpkjh gksus dk izek.k&i= tkjh fd;k x;k gks] fdUrq blesa ,slk O;fDr lfEefyr ugha gS ftls rnFkZ vk/kkj ij fu;qDr fd;k x;k gksA Li"Vhdj.k& lEc) lsok ;k ij ij iz;ksx HkrhZ fu;ekoyh ;k vkns'kksa esa fofgr izfdz;k ds vuqlkj fu;qDr O;fDr dks rnFkZ vk/kkj ij fu;qDr fd;k x;k ugha le>k tk;sxkA 3- ,sls NVuh'kqnk deZpkjh tks oxZ 3 ¼Vice csancellor lewg x½ ds fyfid oxhZ; inksa] ftudk U;wure osrueku 200&320 :i;s gSa rFkk prqFkZ oxZ ¼vc lewg ?k½ ds os in ftudk osrueku 165&215 :i;s gSa vkSj ftl ij HkrhZ ftyk Lrjh; p;u lfefr;ksa ds ek/;e ls dh tkrh gS] esa HkrhZ ds bPNqd gksa mudks mi;qZDr lqfo/kk ds vUrxZr dsoy fu;fer p;uksa esa vgZrk nsus ds fy, NwV nh tk;sxh ijUrq mUgsa p;u esa dksbZ izkFkfedrk iznku ugha gksxhA 'kklukns'k la[;k 8@dkfeZd&1975 fnukad 22 uoEcj] 1975 esa tkjh fd;s x;s vkj{k.k lEcU/kh vkns'kksa ij dksbZ izHkko ugha iM+sxk vkSj iwoZ dh Hkkafr gh mudks dk;kZfUor fd;k tk;sxkA rn~uqlkj ^^v/khuLFk dk;kZy; fyfid oxZ ¼lh/kh HkrhZ½ fu;ekoyh] 1975** rFkk ^^prqFkZ oxZ deZpkjh lsok fu;ekoyh] 1975** esa vko';d la'kks/ku dj fn;s x;s gSaA^^ "GO No. 41/2/67-Karmik-2 Dated: July 06, 1977 Subject: Provision for absorption of retrenched employees of Class -III and IV in the services under the State.

In order to absorb the retrenched employees of the offices under the State against future vacancies, rules had been framed in the year 1967 which remained in force upto October 1971. Thereafter, on account of reduction in the establishments necessitated by frugality or for other administrative reasons, it has become necessary to go for retrenchment of Class -III and IV employees in several offices of the State, and the question of absorbing the retrenched employees has arisen again before the Government.

2. In this respect I am directed to say that upon due consideration to this problem, the following decisions have now been taken for the absorption against the vacancies (except the technical post and the posts beyond the purview of the Public Service Commission) occurring in the offices under the State:

(A) Exemption in age limit-

Exemption in the age limit be accorded to the employees to the extent of the period of service rendered by him prior to retrenchment together with the period of his being out of service due to such retrenchment (B) Relaxation in academic qualification-

If such an employee, at the time of his prior appointment, possessed the educational qualification prescribed for the post for which he is now a candidate.

The aforesaid relaxations shall be effective up to three years from the date of issuance of this Government order (D) Definition of retrenched employees:

The definition of retrenched employee shall be the same as given in Notification No. 27/2/1974-Karmik (2), dated July 6, 1977 and as reproduced herein below for ready reference:

"Retrenched employee" means a person who was employed in any service or on any post under the rule making control of the government, whether in a substantive, officiating or temporary capacity, and had served continuously for a period of not less than one year, and whose services are, whether before or after the commencement of these rules, terminated or certified by concerned appointing authority to have been terminated due to reduction in the establishment but does not include a person who was appointed on an adhoc basis.

Explanation - A person appointed in accordance with the procedure prescribed in the recruitment rules or orders applicable to the service of the post concerned shall not be deemed to have been appointed on adhoc basis.

3. In case of those retrenched employees who are desirous of recruitment to Class III (now called Group C) clerical cadre posts carrying the minimum pay scale of Rs. 200-320 or to the posts of Class IV (now called Group D) carrying the pay scale of Rs. 165-215, recruitments whereto are conducted by the district level selection committees, exemptions as part of the aforesaid relaxations shall be given to them in respect of qualifications only in regular selections but no preference shall be given to them in selections. It shall not have any effect on the orders related to reservation issued through government order no. 8/karmik-1975 dated 22nd November, 1975 and such orders shall be executed as earlier. Accordingly, necessary amendments have been effected in the "Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1975" and "Class-IV Employees Service Rules, 1975."

(English Translation by Court)

23. Rule 13-A expired after three years and so the Government Order dated 06.07.1977. In order to continue with the relaxation in age, educational qualification and other the GO No. 41/2/67-Karmik-2 dated 23.05.1981 was issued for a period of three years wherein the definition of "retrenched employee" as notified on 06.07.1977 and modified on 18.10.1979 was reiterated. For ready reference the aforesaid is being re-produced as under:

^^'kk-la- 41@2@67&dkfeZd&2] fnukad 23 ebZ] 1981 fo"k;% jkT;k/khu lsokvksa esa oxZ 3 o 4 ds NaVuh'kqnk deZpkfj;ksa dks [kikus dh O;oLFkkA mi;qZDr fo"k;d lela[;d 'kklukns'k fnukad 6 tqykbZ] 1977 esa iznRr lqfo/kkvksa dh ekU; vof/k 5 tqykbZ] 1980 dks lekIr gks xbZ gSA 'kklu dh tkudkjh esa ;g ckr vkbZ gS fd NVuh 'kqnk deZpkfj;ksa dh leL;k dk funku iw.kZ :i ls ugha gks ldk gS vr% bl fo"k; ij iqu% fopkj fd;k x;kA 2- eq>s ;g dgus dk funsZ'k gqvk gS fd bl leL;k ij leqfpr fopkjksijkUr NaVuh'kqnk deZpkfj;ksa dks jkT;k/khu dk;kZy;ksa esa gksus okyh Hkkoh fjfDrksa ¼vizkfof/kd rFkk yksd lsok vk;ksx dh ifjf/k ls ckgj ds inksa½ esa [kikus ds fy;s 'kklu us fuEufyf[kr fu.kZ; fy;s gS% ¼d½ vf/kdre vk;q lhek ls NwV% ,sls deZpkfj;ksa us ftrus o"kZ viuh NaVuh ls iwoZ dh gks rFkk ftruh vof/k ds fy;s og NaVuh ds dkj.k lsok ls ckgj jgs gksa mrus o"kZ dh vf/kdre vk;q lhek ls mUgsa NwV iznku dj nh tk; ijUrq izfrcU/k ;g gS fd ;g vof/k fdlh Hkh n'kk esa 10 o"kZ ls vf/kd ugha gksxhA ¼[k½ 'kSf{kd ;ksX;rk ls NwV% ;fn ,sls deZpkjh viuh iwoZ fu;qfDr ds le;] ftl in ds fy;s og vc vH;FkhZ gSa] ml in dh fu/kkZfjr 'kSf{kd vgZrk j[krs Fks] rks ;g le>k tk;sxk fd os orZeku in ds fy;s fu/kkZfjr 'kSf{kd vgZrk iwjh djrs gSaA ¼x½ lqfo/kkvksa dh vof/k% mi;qZDr lqfo/kk;s bl 'kklukns'k ds tkjh gksus dh frfFk ls rhu o"kZ ds fy;s ekU; jgsxhA ¼?k½ ifjHkk"kk% NVuh'kqnk deZpkjh dh ogh ifjHkk"kk gksxh tks 'kklukns'k la[;k41@2@67&dkfeZd&2 fnukad 6 tqykbZ] 1977 esa nh gqbZ gS vkSj lela[;d 'kklukns'k fnukad 18 vDVwcj] 1979 }kjk ;Fkk la'kksf/kr gS vkSj tks lqyHk lUnHkZ gsrq uhps m)`r dh tkrh gS% ^^NaVuh fd;k x;k deZpkjh** dk rkRi;Z ml O;fDr ls gS tks jkT;iky ds fu;e cukus ds fu;a=.k esa fdlh lsok esa ;k in ij ekSfyd] LfkkukiUu vFkok vLFkk;h :Ik ls fu;ksftr Fkk vkSj ftlus de ls de 3 ekl dh fujUrj lsok dh gks ijUrq dqy feykdj ;g QqVdj [kf.Mr lsok Hkh ,d o"kZ dh iwjh gks xbZ gks vkSj ftldh lsok;sa v/khuLFk dk;kZy; fyfid oxZ ¼lh/kh HkrhZ½ ¼prqFkZ la'kksa/ku½ fu;ekoyh] 1979 rFkk prqFkZ oxZ deZpkjh lsok ¼r`rh; la'kks/ku½ fu;ekoyh 1979 ds izHkkoh gksus ds iwoZ ;k i'pkr vf/k"Bku esa deh ds dkj.k lekIr dj nh xbZ gks ;k lekIr dj nh tk;s vkSj ftlds lEcU/k esa lEc) fu;qfDr izkf/kdkjh }kjk NVuh fd;k x;k deZpkjh gksus dk izek.k&i= tkjh fd;k x;k gks fdUrq mlesa ,slk O;fDr lfEefyr ugha gksxk ftls rnFkZ vk/kkj ij fu;qDr fd;k x;k gksA Li"Vhdj.k & lEc) lsok ;k in ij iz;ksT; HkrhZ fu;ekoyh ;k vkns'kksa esa fofgr izfdz;k ds vuqlkj fu;qDr O;fDr dks rnFkZ vk/kkj ij fu;qDr fd;k x;k ugha le>k tk;sxkA 3- ,sls NVuh'kqnk deZpkfj;ksa dks mi;qZDr lqfo/kk ds vUrxZr dsoy fu;fer p;uksa esa vgZrk nsus ds fy;s NwV nh tk;sxh ijUrq mUgsa p;u esa dksbZ izkFkfedrk iznku ugha gksxhA Lkfpo^^ "GO No. 41/2/67-Karmik-2 Dated: 23rd May, 1981 Subject: Provision for absorption of retrenched employees of Class -III and IV in the services under the State.

The period of applicability of the relaxations provided in the even numbered Government Order dated 6th July, 1997 on the subject above mentioned, has elapsed on 5th July, 1980. It has come to the notice of the government that the problem of the retrenched employees has not been completely resolved and hence, this issue has been reconsidered.

2. In this respect I am directed to say that upon due consideration to this problem, the following decisions have now been taken for the absorption against the vacancies (except the technical post and the posts beyond the purview of the Public Service Commission) occurring in future in the offices under the State:

(A) Exemption from upper age limit-

(B) Exemption from academic qualification-

If such employees, at the time of their prior appointment, possessed the educational qualifications prescribed for the post for which they are now candidates, they shall be taken to have academic qualifications prescribed for the current posts.

The aforesaid relaxations shall be effective up to three years from the date of issuance of this Government order.

The aforesaid relaxations shall be effective for three years from the date of issuance of this government order.

(D) Definition:

The definition of retrenched employee shall be the same as given in government order 41/2/67-Karmik-2, dated July 6, 1977 and as amended by the even numbered government order dated October 18, 1979 and as reproduced herein below for ready reference:

"Retrenched employee" means a person who was employed in any service or on any post under the rule making control of the government, whether in a substantive, officiating or temporary capacity, and had served continuously for a period of not less than three months, but had completed one year of total service period including several spells of interrupted service, and whose services are, whether before or after the commencement of the Subordinate Offices Clerical Staff (Direct Recruitment) (Fourth Amendment) Rules, 1979 and the Class-IV Employees Services (Third Amendment) Rules, 1979, terminated, or certified by concerned appointing authority as liable to termination but does not include a person who was appointed on an adhoc basis.

Explanation - A person appointed in accordance with the procedure prescribed in the recruitment rules or orders applicable to the service of the post concerned shall not be deemed to have been appointed on adhoc basis.

3. As part of the aforesaid relaxation to such retrenched employees, exemptions shall be given to them in respect of qualifications only in regular selections but no preference shall be given to them in selection.

Secretary"

(English Translation by Court)

24. The aforesaid government order was extended for a further period of three years vide Government Order No. 41/2/1967-Karmik-2 dated 12.4.1983, which reads as under:

^^'kkŒ la[;k42@2@1967&dkfeZd&2] fnukad 12 vizSy] 1983 fo"k;%& tux.kuk foHkkx ds NVuh fd;s tkus okys deZpkfj;ksa dks jkT;k/khu lsokvksa @inksa esa fu;qfDr gsrq fj;k;rA mi;qZDr fo"k;d lela[;d 'kklukns'k fnukad 12 Qjojh] 1982 ds dze esa eq>s ;g Li"V djus dk funs'k gqvk gS fd mijksDr 'kklukns'k esa nh xbZ lqfo/kk;s jkT; ljdkj ds v/khu dsoy mu lsokvksa@inksa ij fu;qfDr gsrq vuqeU; gksaxh ftu ij lh/kh HkrhZ yksd lsok ds ek/;e ls ugha gksrh gSA mi lfpoA^^ "Government Order No. 42-2-1967-Karmik-2, Dated 12th April, 1983 Subject: Exemptions to the retrenched employee of the census department for appointment to the services/posts under the State.

In pursuance of the even numbered government order dated 12th February, 1982 on the subject above mentioned, I am directed to make it clear that the relaxations given in the aforesaid government order shall be given in respect of appointments only to those services/posts under the state government direct recruitments whereto are not held by the Public Service Commission.

Deputy Secretary"

(English Translation by Court)

25. Vide Notification dated 16.03.1985 the Governor promulgated a new set of Rules, namely, The U.P. Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985 (in short 'Group C Rules, 1985'), in supersession of existing rules and orders on the subject as is apparent from the following:

"In pursuance of the provisions of Clause (3) of Article 348 of the Constitution, the U.P. Governor is pleased to order the publication of the following English translation of Notification No. 20/3-82-Personnel-2-85, dated March 16, 1985.

In exercise of the powers conferred by the proviso to Article 309 of the Constitution, and in supersession of all existing rules and orders on the subject, the Governor is pleased to make the following rules regulating recruitment of ministerial staff in the Subordinate Government Offices in the State."

26. Rule-3 of Group C Rules, 1985 also gives it overriding effect over any inconsistent existing rule and Rule-4(i) defines "retrenched employee" which reads as under:

"Retrenched employee" means a person-

(i) who was employed on a post under the rule making power of the Governor, in permanent, temporary or officiating capacity for a total minimum period of one year, out of which at least three months' service must have been continuous service;

(ii)whose services were or may be dispensed with due to reduction in or winding up of the establishment; and

(iii) in respect of whom a certificate of being retrenched employee has been issued by the appointing authority;

but does not include a person employed on ad hoc basis only."

27. Similarly for Group D Employees, Rules, 1985 were framed wherein also the concept of Retrenched Employees is same as in Rules means for Group C Employees.

28. Thereafter U.P. Procedure of Direct Recruitment for Group-C Posts (Outside the Purview of U.P. Public Service Commission) Rules, 1998 (hereinafter referred to as the "Group C Rules, 1998") were promulgated on 09.06.1998. It would be appropriate to refer the declaration made under the aforesaid rules which was not in the same terms as it was in Rules, 1975 and Group C Rules, 1985 that the same are being enacted in supersession of all the existing provisions and on the contrary, Group C Rules, 1998 only makes a declaration of making of the rules by the Hon'ble Governor and reads as under:

"In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules:"

29. Rule-2 of Group C Rules, 1998 gives these rules overriding effect over inconsistent existing rules. Rule 5(3)(c) provides weightage which is admissible to a "retrenched employee" for recruitment in Rules, 1998. Admittedly, Rules 1998 did not contain any definition of "retrenched employee". For the purposes of the case in hand, since recruitment has been made in Rules 1998, the subsequent enactment came into force on 20.08.2001 may not be necessary but since the argument has been advanced referring to the provisions of the subsequent enactment also, I may notice the same.

30. The Hon'ble Governor further promulgated another set of rules in 2001, namely, The Uttar Pradesh Procedure for Direct Recruitment for Group "C" posts (Outside the Purview of the Uttar Pradesh Public Service Commission) Rules, 2001 (in short the "Rules, 2001"). The aforesaid rules have been framed in supersession of all the existing rules and orders on the subject as is apparent from the following declaration made under the Rules:

"In exercise of the powers conferred by the proviso to Article 309 of the Constitution and in suppression existing rules and other on the subject, the Governor is pleased to make the following rules."

31. Rules, 2001, admittedly does not contain any definition of 'retrenched employee' but provides certain concessions in recruitment to a 'retrenched employee' vide Rule 6(6)(b) etc.

32. The history and the effect of rules pertaining to retrenched employees has been considered in detail by a Division Bench of this Court in Sayed Mohammd Mahfooj Vs. State of U.P. and others, 2007(2) ALJ 628 and a Single Judge judgment of this Court in Ajit Raizada & Others Vs. State Of U.P. Thru' Secy. & Others, 2011(6) ADJ 511 and I find the view taken hereinabove is in conformity to the aforesaid binding precedents.

33. Learned counsel for petitioners also could not show any provision under which Police Headquarter has any power to give direction to selection committee to do something which is not provided under Rules and/ or to give some priority or preference which is not contemplated in Rules.

34. Lastly, the question of preference arise only when all other things are satisfied and preference cannot be treated as a right of appointment to the exclusion of others. "Preference" does not mean that candidate claiming preference is entitled to be preferred to the extent of ouster of all other candidates.

35. In State of U.P. and another Vs. Om Prakash and others AIR 2006 SC 3080, Court interpreting the word 'preference' held that only when one or more persons are found equally positioned, then the additional qualification may be taken as a tilting factor as against others.

36. In Secretary, Andhra Pradesh Public Service Commission Vs. Y.V.V.R. Srinivasulu and others (2003) 5 SCC 341, Court held:

"The 'preference' envisaged in the rules, in our view, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone. A mere rule of preference meant to give weightage to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence."

37. The above authorities have been referred to and relied on by a Full Bench of this Court in Daya Ram Singh Vs. State of U.P. and others, 2007(5) ADJ 359.

38. Question (ii), therefore, is also answered against petitioners.

39. Now coming to third question, neither petitioners have shown anything otherwise nor I could find any illegality in the selection in question.

40. I also find that authorities relied by petitioners do not help them on the issues involved in this petition.

41. Jagannath Prasad Sharma (supra) was a case where validity of order of dismissal was up for consideration before Supreme Court. Jagannath Prasad Sharma was admitted in U.P. Police Force in 1931 as Sub-Inspector. He was promoted subsequently to the rank of Inspector. In 1947 he was given officiating rank of Deputy Superintendent of Police. Some complaints were received, whereupon a preliminary inquiry was conducted and Inspector General of Police, forming an opinion that prima facie case was made out, directed for regular inquiry against Jagannath Prasad Sharma. Simultaneously, he also passed an order reverting him to his substantive rank of Inspector. He was also placed under suspension. A formal departmental inquiry was conducted by Superintendent of Police (Anti-Corruption) and on the inquiry report submitted by Inquiry Officer, Governor under Rule 4 of Uttar Pradesh Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 (hereinafter referred to as "Rules, 1947") referred the matter for inquiry to Tribunal appointed under Rule 3 of Rules, 1947 on the charge of corruption, personal immorality and failure to discharge duties properly. Tribunal framed three charges and after survey of evidence recommended dismissal of service vide report dated 04.02.1950. Governor then served a notice to show cause why he should not be dismissed from service and after considering explanation, order of dismissal was passed on 05.12.1950. It is this order which was challenged in writ petition before High Court on the ground that no departmental inquiry was conducted under Rule 55 of Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as "Rules, 1930") as applicable in State of U.P. High Court dismissed writ petition. Thus matter came to Supreme Court wherein Jagannath Prasad Sharma raised following three issues:

"1. that the order dismissing the appellant from the police force was unauthorised, because the Governor had no power under Section 7 of the Police Act and the regulations framed thereunder to pass that order;

2. that even if the Governor was invested with power to dismiss a police officer, out of two alternative modes of enquiry, a mode prejudicial to the appellant having been adopted the proceedings of the Tribunal which enquired into the charges against him were void, as the equal protection clause of the Constitution was violated; and

3. that the proceedings of the Tribunal were vitiated because of patent irregularities which resulted in an erroneous decision as to the guilt of the appellant. To appreciate the first two contentions, it is necessary briefly to set out the relevant provisions of the laws procedural and substantive in force, having a bearing on the tenure of service of members of the police force in the State of Uttar Pradesh."

42. Answering first question Supreme Court, in para 9 of judgment, said as under:

"The Tribunal Rules were framed in exercise of various powers vested in the Governor including the power under Section 7 of the Police Act, and by those rules, the Governor was authorised to pass appropriate orders concerning police officers. By virtue of Article 313, the Police Regulations as well as the Tribunal Rules in so far as they were not inconsistent with the provisions of the Constitution remained in operation after the Constitution. The authority vested in the Inspector-General of Police and his subordinates by Section 7 of the Police Act was not exclusive. It was controlled by the Government of India Act, 1935, and the Constitution which made the tenure of all civil servants of a Province during the pleasure of the Governor of that Province. The plea that the Governor had no power to dismiss the appellant from service and such power could only be exercised by the Inspector-General of Police and the officers named in Section 7 of the police Act is therefore without substance."

43. Second question was also answered against petitioner observing that no discrimination was practiced by continuing inquiry under Tribunal Rules after Constitution was brought into force.

44. Then for third question Supreme Court held that though appeal was filed with a certificate of Article 132 of the Constitution and Court was to consider, whether High Court has wrongly decided a substantial question as to the interpretation of Constitution unless leave is granted to other issue but only to satisfy itself Court considered third question also and answered the same against petitioner.

45. I do not find anything in the aforesaid judgment which may help petitioners in any manner in the present case.

46. Ajay Hasia (supra) is a judgment of a Constitution Bench wherein issue of admission in professional College, namely, Engineering College, was up for consideration. In Regional Engineering College, Srinagar applications were invited for admission to First Semester of B.E. Course in 1979 for Academic Year 1979-80. Petitioners Ajay Hasia and others applied for admission and appeared in written test held in June, 1979. Thereafter they also appeared for viva voce test and interviewed. In the result declared petitioners found that they secured good marks in qualifying examination but could not get adequate marks in viva voce/ interview. The candidates who had secured less marks in qualifying examination, but higher marks in viva voce, got admission. Challenging process of selection writ petition was filed in Supreme Court. Various grounds were raised. At the time of hearing, Supreme Court found that some grounds were concluded by its earlier judgment in Nishi Maghu Etc. Etc vs State Of Jammu And Kashmir And Ors, AIR 1980 SC 1975 hence those grounds were not pressed. One of the ground considered by Supreme Court was regarding maintainability of writ petition. It was argued on behalf of respondents that College is being run by a Society which is not a Corporation created by statute but registered under Jammu and Kashmir Registration of Societies Act, 1989 hence is not an 'authority' within the meaning of Article 12 of Constitution and no writ petition is maintainable. This issue was considered in detail and answered against College holding that even an instrumentality of 'State' is within the meaning of State under Article 12 of Constitution. In para 15 of judgment, Court said that the Society running College is an instrumentality or agency of Government. It said:

"We must, therefore, hold that the Society is an instrumentality or agency of the State and the Central Governments and it is an 'authority' within the meaning of Article 12."

47. Selection process was challenged on the ground that higher marks secured in qualifying examination could not have been ignored for giving admission and higher marks in interview and viva voce are arbitrary. Court said:

"We would not, therefore, regard the procedure adopted by the society as arbitrary merely because it refused to take into account the marks obtained by the candidates at the qualifying examination, but chose to regulate the admissions by relying on the entrance test."

"It is therefore not possible to accept the contentions of the petitioners that the oral interview test is so defective that selecting candidates for admission on the basis of oral interview in addition to written test must be regarded as arbitrary. The oral interview test is undoubtedly not a very satisfactory test for assessing and evaluating the capacity and calibre of candidates, but in the absence of any better test for measuring personal characteristics and traits, the oral interview test must, at the present stage, be regarded as not irrational or irrelevant though it is subjective and based on first impression, its result is influenced by many uncertain factors and it is capable of abuse. We would, however, like to point out that in the matter of admission to college or even in the matter of public employment, the oral interview test as presently held should not be relied upon as an exclusive test, but it may be resorted to only as an additional or supplementary test and, moreover, great care must be taken to see that persons who are appointed to conduct the oral interview test are men of high integrity, calibre and qualification."

"We must, therefore, regard the allocation of as high a percentage as 33 1/3 of the total marks for the oral interview as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure cannot be sustained."

48. Having said so, Court ultimately held that since 18 months have already passed and other candidates who have been given admission are near to complete three semesters, therefore, it would not be justified to cancel the selection already made. Court said that it is not interfering for selection for Academic Year 1989-90 but for future the higher percentage of marks should not be allowed for interview. It also said that allocation of 15% marks for interview would be arbitrary and unreasonable.

49. This judgment also, in my view, does not help petitioners at all.

50. Learned counsel for petitioners placed reliance on paras 20 and 21 of judgment in Ajay Hasia (supra) to suggest that interview was not properly conducted but I find that no material has been placed in this regard before this Court and it would not be justified for the Court in making a roving and fishing inquiry in the matter.

51. In Manjul Kumar (supra) again I find that on the basis of facts demonstrated therein Court found that selection was not properly made. Therein more than twelve thousands candidates are called for interview and almost 500 candidates were called on, every day, for interview. In para 16 Court recorded a finding that in 26 days 8023 candidates appeared in interview and if it is assumed that eight hours time was given for interview every day, then for interviewing 500 candidates every day, only one minute could have been given to each candidate. If eight hours are enhanced to 10 hours then time allotted to every candidate would be almost 1.5 minutes which reveals that actually no interview was held and it was virtually a formality. Court interfered with selection holding that it was farce and sham. To the facts as discussed in present case, in my view, aforesaid judgment also has no application.

52. In Krishna Murari (supra) petitioner was a Cook appointed vide order passed in March, 1982 in 43rd Battalion, Etah wherefrom he was transferred to 35th Battalion PAC, Lucknow. On some allegations made against him, disciplinary inquiry was conducted under U.P. Police Officers of Subordinate Rank (Punishment and Appeal), Rules, 1991 (hereinafter referred to as "Rules, 1991") and after holding inquiry a show cause notice was issued on 09.10.2010 as to why he should not be dismissed from service. Show cause notice was challenged in Writ Petition No. 7743 (SS) of 2010 but learned Single Judge dismissed writ petition. Since no writ petition pending, petitioner-Krishna Murari was dismissed from service and final order of dismissal was passed. Question of applicability of Rules, 1991 was challenged on the ground that Kirishna Murari was not a Police Official but a civil class-IV employee hence Rules, 1991 were not applicable and he could have been proceeded only under U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as "Rules, 1999"). Court clearly said that U.P. Police Group-D Employees Service Rules, 2009 (hereinafter referred to as "Rules, 2009") came into force on 28.08.2009, hence the same will not apply retrospectively to a person who was already appointed and inquiry proceedings were going on. This judgment also, in my view, has no application in the present case.

53. Satyendra Kumar Singh (supra) is a case where Court found that 1871 candidates were interviewed in a single day which shows that selection was virtually a sham. Observations made by Court in paras 30 and 31 are reproduced as under

"30. Even if it is presumed that the interview was conducted since morning to night, as stated by the petitioners, maximum 16 hours in a day can be spent. Even if 1817 candidates are interviewed, although this figure is too improbable, then too maximum approx. 31 seconds are spent on a single candidate. And astonishingly this time also includes period of preparing appointment letter on the basis of result of this interview. In nutshell, this single day include, interview of 1817 candidates, then result of this interview, then preparation of appointment letter.

31. This whole transaction is beyond human imagination and it is so preposterous that it becomes itself evidence against it for the glaring illegalities committed therein. "

54. Above judgment also does not help petitioner at all.

55. Vijay Kumar Gaur (supra) was a case where proceedings were initiated against him who was a Follower, having been appointed on 27.01.1995 by Senior Superintendent of Police, Lucknow after due selection as per Rules, 1985. He was sought to be proceeded against as per Rules, 1991 and punishment order was passed under Rule 4(1)(a) of Rules, 1991. Relying on judgment in Krishna Murari (supra) it was contended that inquiry under Rules, 1999 could have been held and not under Rules, 1991. Court held that Rules, 1999 are applicable for the purpose of inquiry but found that inquiry was conducted in the manner provided under Rules, 1999 and mere reference of Rules, 1991 will not vitiate punishment order. Thus writ petition was dismissed. This judgment also, in my view, is of no assistance to petitioners.

56. On behalf of Respondents-4 to 28 the Division Bench judgment in Chaturth Shreni Karmachari Sangh (supra) has been cited wherein it is held that if there is no provision for regularization the same cannot be directed and reliance has been placed on Constitution Bench judgment in State of Karnataka and others vs. Uma Devi and others, 2006(4) SCC 1.

57. In the present case petitioners are actually challenging selection already made. It is not a case of regularization since selection and appointed was already made. Unless those appointments are nullified, petitioners cannot claim any benefit. In any case, even otherwise, only Petitioners-1 and 2 are claimed to have engaged since 1990 and rest are subsequent to 29.06.1991 which is a cut off date for attracting U.P. Regularization of Daily Wages Appointment on Group 'D' Posts Rules, 2001 (hereinafter referred to as "Rules, 2001"). The aforesaid Rules are not applicable to all petitioners except Petitioners-1 and 2.

58. In the present case since selection and appointments have already been made, I do not find that the same can be undone at this stage after almost 17 years.

59. In the circumstances, I do not find that petitioners are entitled for any relief. Writ petition is accordingly dismissed.

60. Interim order, if any, stands vacated.

Order Date :-28.02.2020 AK

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