Allahabad High Court
Vinod Singh Sirohi vs State Of U.P.Throu.Prin.Secy.Home ... on 16 December, 2021
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 15.09.2021 Delivered on 16.12.2021 Court No.1 Case :- SPECIAL APPEAL No. - 100 of 2019 Appellant :- Vinod Singh Sirohi Respondent :- State Of U.P.Throu.Prin.Secy.Home Department Lucknow & Ors. Counsel for Appellant :- Sameer Kalia Counsel for Respondent :- C.S.C.,Srideep Chatterjee,V.S.Ojha Connected with Case :- SPECIAL APPEAL No. - 98 of 2019 Appellant :- Hari Mohan Singh Respondent :- State Of U.P.Throu.Prin.Secy.Home Department Lucknow & Ors. Counsel for Appellant :- Sameer Kalia,Ankit Pande Counsel for Respondent :- C.S.C.,Shamsher Yadav Jagrana,Srideep Chatterjee,V.S. Ojha with Case :- SPECIAL APPEAL No. - 99 of 2019 Appellant :- Umesh Nath Mishra Respondent :- State Of U.P.Throu.Prin.Secy.Home Department Lucknow & Ors. Counsel for Appellant :- Sameer Kalia,Abhinav Mishra Counsel for Respondent :- C.S.C.,Sanjay Kumar Srivastava,Srideep Chatterjee,V.S.Ojha with Case :- SPECIAL APPEAL No. - 103 of 2019 Appellant :- Rajesh Kumar Dwivedi & Anr. Respondent :- Mahant Yadav & Ors. Counsel for Appellant :- Anoop Trivedi,Arjun Krishna,Vibhu Rai Counsel for Respondent :- C.S.C.,Varadraj Shreedutt Ojha with Case :- SPECIAL APPEAL No. - 277 of 2021 Appellant :- State Of U.P. Thru Addl.Chief Secy./Prin.Secy. Home Lko.&Ors Respondent :- Mahanth Yadav (Inspector Civil Police P.No.82232085)& Ors. Counsel for Appellant :- C.S.C. Counsel for Respondent :- Sameer Kalia,Arjun Krishna,Brijendra Singh,Varadraj Shreedutt Ojha Hon'ble Ramesh Sinha, J.
Hon'ble Mrs. Saroj Yadav, J.
(Per Ramesh Sinha, J. for the Bench) (1) The above-captioned Special Appeal Nos. 100 of 2019, 98 of 2019, 99 of 2019 and 103 of 2019 has been preferred by the appellants (out of turn promotees/private respondents in the writ petition) and Special Appeal No. 277 of 2021 has been preferred by the State, assailing the correctness of the judgment and order dated 20.02.2019 passed in Service Single No. 5677 of 2016 and connected Service Single No. 13625 of 2016 and 10759 of 2016, whereby the learned Single Judge, while allowing the aforesaid writ petitions, quashed the Government Order dated 23.07.2015, consequential order dated 29.07.2015 and seniority list dated 24.09.2016 and further directed the State to prepare a fresh seniority list in accordance with Rule 22 (3) of the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2015 and assign the seniority to the promotees of ex cadre posts from the date when their immediate juniors were promoted to the post of Inspector in accordance with the service rules against cadre posts within a period of two months from the date of the order and after preparing the seniority list as directed aforesaid, consequential orders in respect of promotions etc. be issued.
FACTS (2) The factual matrix relevant for adjudication of this set of appeals is as under :-
(a) The State Government had issued a Government Order dated 05.11.1965, which provided for the method of selection of Sub-Inspector for promotion to the rank of Inspector. This Government Order dated 05.11.1965 is referable to Section 2 of the Police Act, 1861 (hereinafter referred to as "Act, 1861"). Thereafter, the State Government issued another Government Order dated 29.10.1983 under Section (2) of the Act, 1861, providing therein a Selection Committee be constituted for the purpose selecting Sub-Inspectors for promotion to the post of Inspectors.
(b) The aforesaid Government Orders dated 05.11.1965 and subsequent Government Orders were rescinded/modified by the Government Order dated 24.07.2003 issued under Section 2 of the Act, 1861 providing for the selection process for promotion of Sub-Inspector (Civil Police) to the Inspector (Civil Police). Subsequently, the State Government has issued Government Order dated 3.2.1994, by means of which it was provided that those Constables and Sub-Inspectors/Platoon Commanders, who have shown exemplary courage, be given appointment from the post of Constable to Head Constable and from the post of Sub-Inspector and Platoon Commander to Inspector/Company Commander on ex cadre posts. It was further provided that for each year, such ex cadre posts would be created by the State Government on the proposal of the Inspector General of Police, Lucknow. It was also provided that it has overriding effect over any other existing orders.
(c) The aforesaid Government Order dated 03.02.1994 contemplated that the promotions would be made on ex cadre posts, which were to be sanctioned by the State Government for the said purpose every year, however, no such post were ever created and the out of turn promotions were made on cadre posts of Head Constables and Inspector, respectively.
(d) The Government Order dated 3.2.1994 is also referable to Section 2 of the Act, 1861. Thereafter, the Director General of Police, Uttar Pradesh had issued a Circular dated 10.02.1994 in pursuance of the statutory Government Order dated 3.2.1994, in which complete mechanism/procedure was prescribed for out of turn promotion.
(e) Subsequently, on 01.05.1999, the State Government issued another statutory order referable to Section 2 of the Act, 1861, by means of which it laid down that out of turn promotions would be against the vacancies existing in the cadre, however, promotion would be treated ex cadre and its benefit will not be available for the purposes of determination of seniority.
(f) It is relevant to add here that at the time of issuance of the statutory orders i.e. 03.02.1994 and 01.05.1999, there were no service rules framed by the State Government under sub-section 2(c) of Section 46 of the Act, 1861. All the out of turn promotees were, thus, promoted on cadre posts and the said promotions were granted by the State Government in accordance with the Government Orders which were issued in exercise of the statutory powers available to it under the provisions of the Act, 1861.
(g) Subsequently, for the first time, the State Government, in exercise of power available to it under sub-sections (2) of Section 46 read with Section 2 of the Act, 1861 (Act No. 5 of 1861), framed the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (hereinafter referred to as "Rules, 2008") in supersession of all existing rules issued in this behalf with a view to regulating the selection, promotion, training, appointment, determination of seniority and confirmation etc., which came into effect from 02.12.2008.
(h) Thereafter, another Government Order dated 07.06.2014 was issued by the State Government under Section 2 of the Act, 1861, by means of which, the Government Order dated 03.02.1994, which was related to ex cadre out of turn promotees of non-gazetted staff of the Police department, was cancelled and consequently a decision was taken by the State Government to award the non-gazetted staff of the police department who had shown exemplary courage with the Police Medal of the Chief Minister's appreciation letter and was Rs.25,000/- cash reward instead of out of turn promotion in terms of the Government Order dated 07.06.2014. The Director General of Police, U.P. had also issued a circular dated 14.08.2014 in pursuance to the aforesaid Government Order dated 07.06.2014.
(i) The Director General of Police, Lucknow, on 06.02.2015 and 20.05.2015, wrote to the Principal Secretary, Home, Government of Uttar Pradesh, Lucknow, refusing for grant of seniority to the ex cadre out of turn promotees from the date of their out of turn promotion, who were engaged in the security of the Chief Minister, inter alia on the ground that in the Government Order dated 01.05.1999, it was provided that out of turn promotions would be made against the vacant posts in the cadre which will be treated as ex cadre promotions and no benefit of the same will be admissible in the fixation of seniority. In these backgrounds, a direction was sought through the aforesaid letters dated 06.02.2015 and 20.05.2015 from the State Government with regard to fixation of seniority of such out of turn promotees.
(j) Thereafter, Government Order dated 23.07.2015 was issued, whereby earlier order dated 01.05.1999 was rescinded with immediate effect and it was provided that the probation of 990 Non-Gazetted Police Officers/ employees, who had been granted out of turn promotion w.e.f. 1994 till 2014, shall be counted with effect from their date of out of turn promotion. This Government Order dated 23.07.2015 was issued by the State Government in exercise of powers available to it under Section 2 of the Act, 1861.
(k) Thereafter, the State Government, in exercise of power conferred under sub-section 2 of Section 46 read with Section 2 of the Act, 1861, has framed U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2015 (hereinafter referred to as "Rules, 2015") in superssession of all existing rules or orders issued in this behalf with a view to regulating the selection, promotion, training, appointment, determination of seniority and confirmation etc. of Sub-Inspectors and Inspectors of (Civil Police) in Uttar Pradesh Police Force, which came into force w.e.f. 19.08.2015.
(l) Thereafter, the writ petitioners/private respondents herein, who are regularly promoted Inspectors from the cadre of Sub-Inspector against cadre posts of the Inspector of Civil Police, has challenged the Government Order dated 23.07.2015, consequential order dated 29.07.2015 issued by the Director General of Police, U.P. and the seniority list dated 24.02.2016 by filing Service Single No. 5677 of 2016, 13625 of 2016 and 10759 of 2016, by impleading the name of thirteen out of turn promotees as private respondents in the aforesaid writ petitions.
(m) When the aforesaid writ petitions were listed before the learned Single Judge as peremptorily i.e. on 20.02.2019, none was responded before the learned Single Judge on behalf of the private respondents in writ petitions/ appellants herein, therefore, in the absence of any assistance on behalf of the private respondents/appellants herein, the learned Single Judge, looking to the fact that the matter was expedited by the Apex Court and so many counsel, namely, Mr. Brijendra Singh, Sri Ravi Singh, Sri Sameer Kalia have put in appearance on earlier occasions when the case was listed, proceeded to hear the matter finally on the basis of the submissions put forth by learned Counsel for the writ petitioners and learned Counsel for the State.
(n) Learned Single Judge, on considering the Government Order dated 23.07.2015 in the light of the Rules, 2008, observed that the Government Order dated 23.07.2015 had been issued in violation of Rules, 2008 and ex cadre posts are not the posts within the cadre and their appointments were not substantive appointments and as such, out of turn promotees cannot claim seniority on the basis of their appointment on ex cadre post over the writ petitioners and the seniority of all the Inspectors are to be governed in accordance with Rules 22 (3) of Rules, 2015, which provides that the seniority of the Inspectors is to be determined from the date of substantive appointment after selection and inter se seniority of the promotees of same selection is to be that of the seniority in the ex cadre posts.
(o) In these backdrops, the learned Single Judge allowed the writ petitions with the direction as already recorded above, vide judgment and order dated 20.02.2019, which is impugned in the above-captioned special appeals.
GOVERNMENT ORDERS :
(3) The method of selection of Sub-Inspectors for promotion to the rank of Inspectors has earlier been made in the Government Order dated 05.11.1965, which is reproduced as under :-
"From :
Shri R.K. Dar, UP Sachiv, Uttar Pradesh Shasan To, The Inspector General of Police, Uttar Pradesh Allahabad/Lucknow Dated Lucknow: November 5, 1965 Home (Police-A) Sub : Method of Selection of Sub-Inspectors for promotion to the rank of Inspectors.
Sir, With reference to Deputy Inspector General of Police, Headquarters letter No. V-500-51, dated August 18, 1964, on the subject noted above, I am directed to say that after careful consideration of the recommendations contained in para 246 of the U.P. Police Commissions Report, 1960, the Governor in supersession of the povisions in the Police Regulations and in modification of the present orders on the subject, has been pleased to order that the procedure for selection of Sub Inspectors for their promotion to the cadre of Inspector shall henceforth be as follows :
(A) The existing quota system by which a certain number of Sub Inspectors are at present selected from each Range should be abolished. Sub Inspectors Civil Police who have put in not less than 10 years service as such (and are below 50 years of age) on the 1st day of January of the year in which the selection is made will now be eligible for promotion to the post of Inspector. The range Deputy Inspector General of Police will send to the Police Headquarters every year the following list.
(i) Lists of Sub Inspectors, Civil Police considered suitable for officiating promotion as Inspector in order of seniority in a prescribed form, which may be laid down by the Police Headquarters.
(ii) Lists of Sub Inspectors, Civil Police, who are not considered fit for officiating promotion with brief reasons.
The Departmental Selection Committee will thereafter have a final consolidated list prepared of Sub Inspectors Civil Police, considered suitable for officiating promotion arranged in the order of their seniority. From the final consolidated list, four times the number of Inspectors required to be approved for officiating promotion will be called for interview by the Departmental Selection Committee as constituted by Government vide G.O. No. 4381-A/VIII-A-268/1961, dated August 2, 1962. The assessment made by the Committee will be done by selection on merit, and a list of approved candidates will be prepared on which the names of selected candidates will arrange in order of their seniority. Those who are borne on the approved list of an earlier year will rank above those selected and brought on an approved list of a later year.
(B) On the occurrence of substantive vacancies appointment to them shall be made from amongst the candidates on the approved list prepared under para 'A' on the basis of suitability. The claims of the candidates passed over will be considered in the subsequent selection. The selection will be made by the Departmental Selection Committee and there will be no further interview of the candidates for filling in the substantive vacancies.
(C) Candidates selected for substantive appointment will be placed on two years probation in accordance with the provisions of para 403(3) of the Police Regulations. The period of service rendered by them as Inspector of Police in a temporary or officiating capacity will be counted towards the period of probation.
2. The above orders shall come into force with immediate effect.
Yours faithfully, Sd/- R.K. Dar, Up Sachiv."
(4) It is needless, however, to record that selection of Inspectors in Uttar Pradesh stands effected on the basis of merit arranged in order of seniority and the Government Order dated 5.11.1965 being the background thereto.
(5) Thereafter, for the purpose of promotion from the post of Sub-Inspector (Civil Police) to Inspector, a Committee was constituted vide order dated 29.10.1983, which is reproduced as under :-
"izs"kd] Jh f'ko Lo:i ''kqDy] mi lfpo] m0iz0 ''kkluA lsok esa] iqfyl egkfuns'kd ,oa egkfujh{kd] m0iz0] y[kuÅA x`g ¼iqfyl½ vuqHkkx& 1 y[kuÅ% fnukad 29vDVwcj] 1983 fo"k; % lc bUlisDVj ukxfjd iqfyl bUlisDVj in ij izksUufr gsrq p;u lfefr dk xBuA egksn;] mi;ZqDr fo"k; ij lgk;d iqfyl egkfujh{kd] mRrj izns'k] y[kuÅ i=kad dkEk&106 ¼385½&83 fnukafdr 6-09-83 o 12-10-83 ds lUnHkZ esa ''kklukns'k la[;k 4840@vkB&85@82 fnukad 2-09-1983 dk vkaf'kd la'kks/ku djrs gq, eq>s ;g dgus dk funsZ'k gqvk gS fd mijksDr fo"k; ij p;u lfefr dk xBu fuEu izdkj gksxk %& 1& iqfyl egkfuns'kd@iqfyl egkfuns{kd v/;{k 2& iqfyl egkfuns'kd }kjk uke ,d iqfyl egkfujh{kd lnL;
3& iqfyl egkfuns'kd }kjk ukfer ,d iqfyl egkfujh{kd lnL;
4& iqfyl mi egkfujh{kd] eq[;ky; lnL; ,oa lfpo
2& eq>s ;g Hkh dguk gS fd iqfyl egkfuns'kd dks ;g vf/kdkj gksxk fd ;s p;u ds le; mijksDr vf/kdkfj;ksa ds vfrfjDr fdlh mPp vf/kdkjh dks vkeaf=r dj ysa] fdUrq izfrCkU/k ;g gS fd bl izdkj vkeaf=r fd;k tkus okyk vf/kdkjh iqfyl miegkfujh{kd ds Lrj ls fuEu dk u gksxkA Hkonh;] f'ko Lo:i ''kqDy mi lfpo"
(6) Office Memorandum dated 3.2.1994 was issued by Principal Secretary (Home). This Office Memorandum was in reference to the appointment of a Police Inspector/ Company Commander on a non cadre post of Deputy Superintendent of Police where such Police Inspector/Company Commander P.A.C. has shown an act of exemplary courage and gallantry. Conditions on which such appointment against a non-cadre-post of Deputy Superintendent of Police, was permissible, provided in the Office Memorandum, reads as under:
^dk;kZy; Kki v|ksgLRkk{kjh dks mRrj izns'k iqfyl cy ds ,sls vkj{kh ,oa mi fujh{kd@IykVwu dekUMj dk] ftUgksusa vnE; lkgl vksSj ''kkS;Z dk izn'kZu fd;k gks] eukscy vkSj lkgl c 1- vnE; lkgl ,oe~ 'kkS;Z iznZ'ku djus okys iqfyl cy ds mDr dfeZ;ks dks ;FkkfLFkfr vkj{kh ls eq[; vkj{kh rFkk mi fujh{kd ls fujh{kd@dEiuh dek.Mj ds fu% laoxhZ; ij fu;qDr fd;k tk;sxkA 2- izR;sd foRrh; o"kZ ds fy;s] ;FkkfLFkfr] eq[; vkj{kh ;k fujh{kd@dEiuh dekUMj ds fu%laoxhZ; inksa dk l`tu jkT; ljdkj }kjk iqfyl egkfuns'kd mRrj izns'k ds izLrko ij fd;k tk;sxkA 3- iqfyl cy ds ,sls vkj{kh RkFkk mi fujh{kd@ IykVwu dek.Mj vnE; lkgl ,oe~ 'kkS;Z iznZ'ku djus okys iqfyl dehZ dh dksfV esa vk;saxs] ftUgksus dq[;kr vkradoknh ;k t?kU; vijk/kh ds lkFk esa eqBHksM+ ;k mudh fxjQ~rkjh esa lkgl vkSj 'kkS;Z iznf'kZr fd;k gks ;k vius drZO; ikyu ds nkSjku tksf[ke Hkjk dk;Z fd;k gksA 4- mDr fu%loaxhZ; inks ij fu;qDr iqfyl egkfuns'kd ds iwokZuqeksnu ds mijkURk fu;qfDr izkf/kdkjh }kjk dh tk;sxhA 5- ;g vkns'k bl fo"k; ij le;≤ ij tkjh vkns'kksa esa fdlh vU; ckr ds gksrs gq, Hkh izHkkoh gksxkA 6- ;g vkns'k rkRdkfyd izHkko ls ykxw gksxkA^^ (7) On the same date, i.e., 3.2.1994 another Government Order No. 605 ¼11½ N&iq&1&24@93 was issued by Principal Secretary (Home) providing for a similar ex cadre "Out of Turn" promotion to Constables and Sub-Inspectors/Platoon Commander on the post of Head Constable and Inspector/ Company Commander respectively. The conditions of such appointment are similar to the earlier Government Order except of the difference of designations of post and rank but for ready reference, these conditions are also reproduced as under :-
^^1- vnE; lkgl ,oe~ 'kkS;Z iznZ'ku djus okys iqfyl cy ds mDr dfeZ;ksa dks ;FkkfLFkfr vkj{kh ls eq[; vkj{kh rFkk mifujh{kd ls fujh{kd@ dEiuh dek.Mj dks ds fu% laoxhZ; in ij fu;qfDr fd;k tk;sxkA 2- izR;d foRrh; o"kZ ds fy, ;FkkfLFkfr eq[; vkj{kh ;k fujh{kd@daiuh dek.Mj ds fu%laoxhZ; inksa dk l`tu jkT; ljdkj }kjk iqfyl egkfuns'kd] mRrj izns'k ds izLrko ij fd;k tk;sxkA 3- iqfyl cy ds ,sls vkj{khx.k mifujh{kd@ IykkVwu dek.Mj vnE; lkgl vkSj 'kkS;Z iznZ'ku djus okys iqfyl dehZ dh dksfV esa vk;saxss] ftUgksus dq[;kr vkradoknh ;k t?kU; vijk/kh ds lkFk esa eqBHksM+ ;k mudh fxjQ~rkjh esa lkgl vkSj 'kkS;Z iznf'kZr fd;k gks ;k vius drZO; ikyu ds nkSjku tksf[ke Hkjk dk;Z fd;k gksA 4- mDr fu%laoxhZ; inksa ij fu;qfDr iqfyl egkfuns'kd ds iwokZuqeksnu ds mijkUr fu;qfDr izkf/kdkjh }kjk dh tk;sxhA 5- ;g vkns'k bl fo"k; ij le; le; ij tkjh vkns'kksa esa fdlh vU; ckr ds gksrs gq, Hkh izHkkoh gksxkA 6- ;g vkns'k rkRdkfyd izHkko ls ykxw gksxkA^^ (8) The aforesaid Government Orders being orders relating to recruitment and conditions of service of Police Officers of subordinate rank, hence statutory by virtue of Section 2 of the Act, 1861.
(9) Thereafter, the Inspector General of Police has issued a Circular on 10.02.1994 laying down the procedure with regard to cash reward and out of turn promotion. Subsequently, the aforesaid Government Order dated 3.2.1994 was modified by Government Order dated 02.01.1998, which reads as under :-
"v/kksgLrkjh dks ''kklukns'k la[;k&665¼1½@ 6&iq&1&24@93] fnukad 3&2&94 ds vuqdze esa ;g dgus dk funs'k gqvk gS fd mDr vkns'k ds izLrj&¼3½ esa fuEufyf[kr va'k vkSj c "vkÅV vkQ VuZ inksUufr dh ik=rk esa ,ls vkj{kh Hkh vk;asxs ftudh mRd`"V lsok ds vk/kkj ij iqfyl egkfuns'k@x`g lfpo mUgsa vkÅV vkQ VuZ inksUufr dk ik= le>saA^^ mDr ''kklukns'k fnukad 3&2&94 bl lhek rd la'kksf/kr le>k tk;sxkA g0 viBuh; @ 2&1&98 ¼jktho jRu ''kkg½ izeq[k lfpo] x`g (10) On 01.05.1999, another Government Order was issued, in which it was provided that out of turn promotion would be made against the vacant posts in the cadre, which will be treated as ex cadre promotion and no benefit of the same will be admissible in the fixation of seniority. It was also provided in paragraph-2 of the aforesaid Government Order dated 01.05.1999 that such promotions should not be more than 2% in the year. The Government Order dated 01.05.1999 reads as under :-
"izs"kd] txnh'k yky] vuq lfpo mRrj izns'k ''kkluA lsok esa] iqfyl mi egkfujh{kd ¼LFkkiuk½] mRrj izns'k] iqfyl eq[;ky;] bykgkcknA x`g ¼iqfyl½ vuqHkkx&1 y[kuÅ% fnukad 1 ebZ] 1999 fo"k;%& vkmV vkQ VuZ izUufr gsrq fu%laoxhZ; inksa ds l`tu ds lEcU/k esaA egksn;] mi;qZDr fo"k;d vkids i=kad&ikWap&468 ¼funsZ'k½ 98] fnukWd% 27-08-93 rFkk i=kWad&ikWp&460 ¼04½ 95 fnukWd% 26-10-98 }kjk izsf"kr izLrko ds lanHkZ esa ''kklu }kjk fd;s x;s fopkjksijkUr fuEufyf[kr fu.kZ; fy;k x;k gS%& 1& vkmV vkQ VuZ izksUufr miyC/k laoxhZ; in esa fjDr inksa ds lkis{k dh tk;] tks fu%laoxhZ; ekuh tk;sxh vkSj bldk ykHk T;s"Brk fu/kkZj.k esa vuqeU; ugha gksxkA 2& bl izdkj dh izksUufr;kW o"kZ esa 2 % ls vf/kd ugha gksuh pkfg,A vr% eq>s ;g dgus dk funs'k gqvk gS fd mi;ZqDr fcUnqvksa ds vk/kkj ij lanfHkZr i=ksa }kjk izsf"kr izLrko ij dk;Zokgh rRdky lqfuf'pr djus dk d"V djsa rFkk d`r dk;Zokgh ls ''kklu dks voxr djk;k tk;A Hkonh;
¼txnh'k yky½ vuq lfpo"
(11) Another Government Order dated 07.06.2014 was issued by the State Government, whereby the Government Order dated 03.02.1994, which was related to ex cadre out of turn promotees of non-gazetted staff of the police department was cancelled and consequently, a decision was taken by the State Government to award the non-gazetted staff of the police department who had shown exemplary courage, with the police medal, the Chief Minister's appreciation letter and Rs.25,000/- cash reward instead of out of turn promotion in terms of the Government Order dated 07.06.2014. The Government Order dated 07.06.2014 is reproduced as under :-
"izs"kd] ve`r vfHktkr] lfpo] mRrj Izkns'k ''kkluA lsok esa] iqfyl egkfuns'kd] mRrj izns'k y[kuÅA x`g ¼iqfyl½ vuqHkkx&1 y[kuÅ % fnukad% 07 twu] 2014 fo"k;%& iqfyl foHkkx esa vkmV vkQ VuZ izksUufr ds laca/k esaA egksn;] mijksDr fo"k;d vius i= la[;k Mhth&pkj&100 ¼58½@2013] fnukad 28&04&2014 dk d`I;k lUnHkZ xzg.k djus dk d"V djsaA 2&bl lEcU/k esa eq>s ;g dgus dk funs'k gqvk gS fd dk;kZy; Kki la[;k&665@N%&iq&1&24@93] fnukad 03&02&1994 ,oa dk;kZy; Kki la[;k&665 ¼1½@N%&iq&1&24@93] fnukad 03&02&1994 }kjk Lohd`r iqfyl foHkkx esa vkmV vkQ VuZ izksUufr dh O;oLFkk dks ,rn~}kjk rRdky izHkko ls lekIr fd;k tkrk gSA blds LFkku ij iqfyl dfeZ;ksa dks muds lkgfld dk;Z ds fy;s fuEufyf[kr uxj iqjLdkj ,oa esMYk iznku fd;s tkus dk fu.kZ; fy;k x;k gS %& ¼1½ iqfyl dfeZ;ks ds lkgfld dk;Z ds fy;s iqfyl egkfuns'kd dh laLrqfr ij ek- eq[;ea=h dk iz'kfLr i= ,oa mlds lkFk :i;s 25000@& dk uxn iqjLdkj fn;k tk;sxkA ,ls dfeZ;ks dh la[;k o"kZ esa vf/kdre 25 fu/kkZfjr dh tkrh gS fdUrq ek- eq[;eq=h }kjk le;≤ ij Lo&foosd ls iqjLDkj dh /kujkf'k ,oa dfeZ;ksa dh la[;k c 2- mPp Js.kh dk lkgfld dk;Z djus okys iqfyl dfeZ;ks dks iqfyl egkfuns'kd dh laLrqfr ij ek- eq[;ea=h dk ohjrk ind fn;s tkus ds lkFk izfr ekg :- 1000@& dk ekfld HkRrk fn;k tk;sxkA bu inks dh la[;k o"kZ esa vf/kdre 10 fu/kkZfjr dh tkrh gS fdUrq ek- eq[;ea=h }kjk le;≤ ij Lo&foosd ls fn;s tkus okys mDr HkRrs dh /kujkf'k ,oa dfeZ;ksa dh la[;k c 3- d`Ik;k mijksDrkuqlkj dk;Zokgh djkus dk d"V djsaA Hkonh;] ¼ve`r vfHktkr½ lfpo"
(12) On 14.08.2014, the Director General of Police, U.P. has issued a circular with regard to the Government Order dated 07.06.2014.
(13) Thereafter, another Government Order dated 23.07.2015 was issued, whereby decision was taken by the State Government to give seniority to the ex cadre out of turn promotee non-gazetted police officers/employees. The Government Order dated 23.07.2015 is reproduced as under :-
संख्या% 1693@6i&1&15&90¼4½@2014 izs"kd मणि प्रसाद मिश्र] सचिव उत्तर प्रदेश शासन सेवा में] पुलिस महानिदेशक] उत्तर प्रदेश] लखनऊ।
गृह ¼iqfyl½अनुभाग&1 लखनऊ दिनॉक 23 जुलाई] 2015 विषय%& उ०प्र०पुलिस बल के वर्ष 1994 से वर्ष 2014 तक आउट आफ टर्न inksUurh प्राप्त कुल 990 अराजपत्रित अधिकारी@ कर्मचारियों ¼मुख्य आरक्षी@mi निरीक्षक एवं निरीक्षक½ की वन टाइम वरिष्ठता निर्धारित किये जाने dsसम्बन्ध में।
महोदय] उपर्युक्त विषयक कृपया अपने पत्र संख्या % डीजी&चार&119 ¼11½@2014 दिनॉक 20-05-2015 एवं पत्र संख्या% डीजी&चार&119 ¼11½@2014 दिनॉक 09-06-2015 का कृपया संदर्भ गहण करने का कष्ट करें।
2- आउट आफ टर्न पदोन्नति प्राप्त अराजपत्रित अधिकारियों@ कर्मचारियों dh वन टाइम वरिष्ठता निर्धारित किये जाने के सम्बन्ध में सम्यक विचारोपराUr निम्नलिखित निर्णय शासन द्वारा लिया गया हैA शासनादेश संख्या 7249 @ छ&-पु०&1&98&24@93 दिनोंक 01-05-1999 तत्काल प्रभाव से निरस्त करते हुए आउट आफ टर्न पदोन्नति संवर्गीय मानी जा; तथा इसी के साथ समय-समय पर शासन द्वारा 09 निरीक्षकों को दी गई ouटाइम वरिष्ठता को भी सम्मिलित करते हुए वर्ष 1994 से वर्ष 2014 तक आ आफ टर्न पदोन्नति प्राप्त कुल 990 अराजपत्रित पुलिस अधिकारी@कर्मचारि;ksa ¼fooj.k layXu lwph esa mfYyf[kr gS½ ds ifjoh{kkdky dk fu/kkZj.k vkmV vkQ VuZ inksUufr dh frfFk ls fd;k tk;] rkfd lHkh iz'Ukxr vjktif=r iqfyl dfeZ;ksa ds lEcU/k eas ou Vkbe ofj"Brk fu/kkZfjr gks ldsA 3& bl laca/k esa eq>s ;g dgus dk funs'k gqvk gS fd d`I;k mijksDr fu.kZ; ds vkyksd esa rRdky dk;Zokgh lqfuf'pr djkrs gq, d`r dk;Zokgh ls ''kklu dks voxr djkus dk d"V djsaA LkayXud%mijksDrkuqlkjA Hkonh;
¼ef.k izlkn feJ½ lfpo (14) Thereafter, the Director General of Police (Establishment), Uttar Pradesh, Lucknow has issued the consequential order on 29.07.2015 in regard to Government Order dated 23.07.2015.
STATUTORY PROVISIONS: RULES (15) The Police Act, 1861 I. The Police Act, 1861 was enacted in the aftermath of the Mutiny of 1857. The Act, 1861 received the assent of the Governor General on 22.03.1861. The long title describes it as "an act for the regulation of police". The Preamble states that ''it was expedient to re-organise the police and to make it a more efficient instrument for the prevention and detection of crime'. The Act and the Regulations were saved under Section 243 of the Government of India Act, 1935 and by Article 313 and 372 of the Constitution.
II. After the enactment of the Constitution, the police is a State subject under Entry 2 of the State List to the Seventh Schedule. Entry 2, which deals with the police, including railway and village police, is subject to the provisions of Entry 2A of the Union List providing for the deployment of any armed force of the Union or any other force subject to the control of the union. Section 2 of the Act, 1861 provides for the constitution of force, in the following terms :-
"2. Constitution of the forces.-- The entire police establishment under a State Government shall for the purposes of this Act, be deemed to be one police force, and shall be formally enrolled and shall consist of such number of officers and men, and shall be constituted in such manner, as shall from time to time be ordered by the State Government.
Subject to the provisions of this Act the pay and all other conditions of service of members of the subordinate ranks of any police force shall be such as may-be determined by the State Government."
III. Section 7 provides that subject to the provisions of Article 311 of the Constitution and to such rules as the State Government may, from time to time, make under the Act, the Director-cum-Inspector General may, at any time, dismiss, suspend or reduce any police officer of subordinate ranks who is though to be remiss or negligent in the discharge of the duties or unfit ''for the same' or may award one of the punishments mentioned in the provision. Section 8 provides that every police officer appointed to the police force shall receive on appointment, a certificate in the form annexed to the Act by virtue of which such a person is vested with the powers, functions and privileges of the police officer. When the person named in the certificate ceases to be a police officer, the certificate shall cease to have effect and it would have to be surrendered forthwith.
IV. Section 12 of Act, 1861 confers upon the Director General-cum-Inspector General, the power to make rules and is in the following terms :-
"12. Power of Inspector-General to make rules.- The Director General of Police may, from time to time, subject to the approval of the State Government, frame such orders and rules as he shall deem expedient relating to the organization, classification and distribution of the police force, the places at which the members of the force shall reside, and the particular services to be performed by them; their inspection, the description of arms, accoutrements and other necessaries to be furnished to them, the collecting and communicating by them of intelligence and information; and all such other orders and rules relating to the police-force as the Inspector-General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties."
V. Section 23 of the Act, 1861 provides for the duties of police officers. A rule making power is conferred upon the State Government under Section 46 (2). Under clause (c) of sub-section (2) of Section 46, the following has been made :-
"46. Scope of Act. (1) This Act shall not by its own operation take effect in any presidency, State or place. But the State Government by an order to be published in the Official Gazette may extend the whole or any part of this Act to any presidency, State or place; and the whole or such portion of this Act as shall be specified in such order shall thereupon take effect in such presidency, State or place.
(2) When the whole or any part of this Act shall have been extended, the State Government may, from time to time, by notification in the Official Gazette, make rules consistent with this Act:
(a) to regulate the procedure to be followed by Magistrates and police-officers in the discharge of any duty imposed upon them by or under this Act;
(b) to prescribe the time, manner and conditions within and under which claims for compensation under section 15A are to be made, the particulars to be stated in such claims, the manner in which the same are to be verified, and the proceedings (including local enquiries, if necessary) which are to be taken consequent thereon; and
(c) generally, for giving effect to the provisions of this Act.
(3) All rules made under this Act may from time to time be amended, added to or cancelled by the State Government."
VI. The Act, 1861 and the rules made thereunder constitute a self-contained code providing for the appointment of police officers and prescribing the procedure for their removal, as held by the Apex Court in State of U.P. Vs. Babu Ram Upadhya : AIR 1961 SC 751, Chandra Prakash Tiwari Vs. Shakuntala Shukla : 2002 (6) SCC 127. Thus, the Act, 1861 is a special statute and a complete code.
POLICE REGULATIONS VII. The Police Regulations deal with matters including (i) powers and duties of officers in Part-I; (ii) particular duties including lodging of reports, investigations, inquests, arrest, bail and custody, custody and disposal of property, special crimes, patrols and pickets, execution of processes and other miscellaneous provisions in Part II; (iii) internal administration in Part III; and (iv) training in Part-IV. Regulation 61 to 64 of the Police Regulations provides for the organization and duties of Constables. Regulations 65 to 72 provide for the organization and duty of the Armed Police.
VIII. Chapter XXIX comprises of Regulations 396 to 427 and deals with appointment. Regulation 396 provides that the police force consists of (1) Provincial Police, Civil, Armed and Mounted; (2) Government Railway Police; and (iii) Village Chaukidars. Regulation 397 provides for gazetted officers of the force. Under Regulation 398, non-gazetted officers of the force are Inspectors, Sub Inspectors, Head Constables and Constables. Regulation 409 speaks of the enlistment of constables for the Armed and Civil Police, the minimum and upper age limit being 18 and 23, subject to a relaxation of five years for candidates belonging to Scheduled Castes. Regulation 413 requires that a register of candidates for recruitment shall be kept in every district. Under Regulation 418, as soon as a person's name is entered in the register of candidates and he is passed by the Civil Surgeon or immediately after enlistment in the case of a man recruited without being first registered as a candidate, a verification of his character and antecedents has to be carried out. Regulation 423 requires that a certificate of appointment, showing the date of enrolment, is to be furnished mounted on cloth to every person enrolled in the police force under the Police Act. The certificate is liable to be surrendered on quitting the service.
IX. Regulation 423 provides that these orders also apply to men temporarily appointed. Regulation 427 provides as follows:
"The men whose names are on the register of candidates for recruitment (see Paragraph 413) and who have not yet been enlisted, have a prior claim to appointment in temporary vacancies. If none of these men are available, others may be appointed. The Superintendent should insist, as far as possible, on men temporarily appointed as constables possessing the qualifications required for recruits. No man may be appointed to act temporarily as a constable in a permanent vacancy."
The Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 X. Rule, 2008 has come into operation on 02.12.2008. The relevant provisions for adjudication of this set of appeals are as under :-
XI. Rule 3 of Rules, 2008 lays down the definitions, which is reproduced as under :-
"3. Definitions.- In these rules, unless there is anything repugnant in the subject or context;
(a) 'Act' means the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward classes) Act, 1994;
(b) 'appointing authority' means the Deputy Inspector General of Police, Uttar Pradesh;
(c) 'Board' means the Uttar Pradesh Police Services Service Recruitment and Promotion Board established in accordance with Government orders issued from time to time in this regard;
(d) 'Citizen of India' means a person who is or is deemed to be a citizen of India under Part II of the Constitution;
(e) 'Constitution' means the Constitution of India;
(f) 'Government' means the State Government of Uttar Pradesh;
(g) 'Governor' means the Governor of Uttar Pradesh;
(h) 'Head of the Department' means the Director General of Police, Uttar Pradesh;
(i) 'member of the service' means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service;
(j) 'other backward classes of citizens' means the backward classes of citizens specified in Schedule I of the Act, as amended from time to time;
(k) 'Police Headquarters' means the Headquarters of the Director General of Police, Uttar Pradesh at Lucknow and Uttar Pradesh Police Headquarters at Allahabad.
(l) 'Service' means the Uttar Pradesh Sub- Inspector and Inspector (Civil Police) Service;
(m) 'Substantive appointment' means an appointment, not being an adhoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government;
(n) 'year of recruitment' means a period of twelve months commencing on the first day of July of a calendar year."
XII. Rule 4 of the Rules, 2008 deals with ''Cadre of Service', which reads as under :-
"4.(1) The strength of the service and of each category of posts therein shall be such as may be determined by the Government from time to time.
(2) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under sub-rule(1), be as given below:
Name of post Number of Posts
Permanent Temporary Total
1. Inspector 890 339 1229
2. Sub-Inspector 7153 3754 10907
Provided that:
(i) the Head of the Department may re-determine the number of posts of various units within the overall sanctioned allocation.
(ii) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without thereby entitling any person to compensating; or
(iii) the Governor may create such additional permanent or temporary posts as he may consider proper."
XIII. Rule 5 of Rules, 2008 deals with ''Recruitment', which reads as under :-
"5. Source of recruitment- Recruitment to the various categories of posts in the service shall be made from the following sources:
(1) Sub-Inspector (2) Inspector NOTE - The post of Sub-Inspector (Teacher) shall be filled by transfer from amongst substantively appointed Sub-Inspectors who have undergone a course in Pedagogy, as prescribed by the Government from time to time.
XIV. Subsequently, Rule 5 of the Rules, 2008 has been substituted w.e.f. 11.12.2013 and the new substitution rules is as under :-
"5. Source of recruitment.- Recruitment to the various categories of posts in the service shall be made form the following sources :-
(1) Sub-Inspector.- (i) Fifty percent by direct recruitment through the Board
(ii) Fifty percent by promotion through the Board on the basis of seniority subject to rejection of the unfit from amongst substantively appointed Head Constables of Uttar Pradesh Civil Police who have completed three years of service as such on the first day of the year of recruitment.
(2) Inspector.- (a) Hundred percent of the total number of sanctioned posts Inspector Civil Police sub-rule (2) of Rule 4 shall be filled by recruitment through promotion by the Board on the basis of seniority subject to rejection of unfit, from amongst substantively appointed Sub-Inspectors Civil Police, who have completed seven years of service as such on the first day of the year of recruitment, including the probation period.
(b) Inspector Civil Police promoted on ex cadre posts meeting the requirement will also be eligible for promotion to the posts of Inspector Civil Police under sub-clause (a)."
XV. Rule 6 of the Rules, 2008 relates to reservation; Rule 7 relates to the nationality; Rules 8 relates to academic qualification; Rules 9 relates to preferential qualification; Rule 10 relates to age, Rule 11 relates to character, Rules 12 relates to marital status; Rules 13 relates to physical fitness; Rules 14 relates to determination of vacancies; Rules 15 relates to procedure for direct recruitment to the post of Sub-Inspector. Rule 16 relates to promotion on the basis of seniority, which provides that fifty percent of the total number of sanctioned posts of Sub-Inspector Civil Police shall be filled by recruitment through promotion on the basis of seniority subject to rejection of unfit, along with physical efficiency test which is of qualifying nature, through the Board on the basis of the recommendation of the Selection Committee. Section 17 of Rules, 2008 deals with the procedure for recruitment to the post of Inspector by promotion. Section 18 relates to training.
XVI. Rule 19 of the Rules, 2008 relates to appointment and proviso to Rule 19 (2) prescribed down that any person appointed to a post in the service prior to the commencement of these Rules and is working on the post shall be deemed to have been substantively appointed under these Rules and such substantive appointment shall be deemed to have been made under these Rules. Rule 19 of the Rules, 2008 is reproduced as under :-
"19.(1) Subject to the provisions of clause (a) of rule 15 the appointing authority shall make appointment by taking the names of candidates in the order in which they stand in the list prepared under rules 15, 15 (c), 15 (d), 15 (e) and sub-rule 15(f) (I), as the case may be.
(2) If more than one order of appointment are issued in respect of any one selection, a combined order shall also be issued, mentioning the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted. If the appointments are made both by direct recruitment and by promotion, names shall be arranged in accordance with the order, referred to in Rule 15 (e) :
Provided that any person appointed before the commencement of these rules to a post under the service and working on that post shall be deemed to have been substantively appointed under these rules and such substantive appointment shall be deemed to have been made under these rules."
XVII. Section 20 relates to Probation; Section 21 relates to confirmation; Section 22 relates to seniority, which provides that the seniority of the persons substantively appointed to a post in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991 as amended from time to time; Section 23 deals with Scales of Pay; Section 24 deals with Pay during probation; Section 25 deals with Canvassing; Section 26 deals with Regulation of other matters, which provides that in regard to the matters not specifically covered by these rules or special orders, persons appointed to the service shall be governed by the rules, regulations and orders applicable generally to government servants serving in connection with the affairs of the State. Section 27 deals with combined select list, in which it has been provided that if in any year of recruitment, appointments are made both by direct recruitment and by promotion, a combined select list shall be prepared by taking the names of the candidates from the relevant lists, in such manner that the prescribed percentage is maintained, the first name in this list being of the person appointed by promotion.
XVIII. Rule 28 deals with the relaxation from the conditions of service, which is reproduced as under :-
"28. Relaxation from the conditions of service.- Where the State Government is satisfied that the operation of any rule, regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, it may, notwithstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the cases in just and equitable manner."
XIX. Section 30 of Rules, 2008 deals with overriding effect, which is reproduced as under :-
"30. Overriding effect.- (1) The provisions of these rules shall have effect notwithstanding anything to the contrary contained in any other rules, Government Order or Administrative instructions, made or issued by the State Government.
(2) The orders of the Government issued from time to time with regard to matters connected with or incidental to the selection, promotion, training, appointment, determination of seniority and confirmation etc. of Sub-Inspectors and Inspectors of Civil Police in Uttar Pradesh Police Force shall stand rescinded and revoked ab-initio.
(3) The members of the service shall have no claim with regard to matters connected with or incidental to the selection, promotion, training, appointment, determination of seniority and confirmation etc., under any rules, Government Orders or Administrative instructions issued in regard thereto, and any rights accrued thereunder shall be deemed terminated.
(4) Notwithstanding such rescission, the benefit of selection, promotion, training, appointment, determination of seniority and confirmation etc. granted before December 2, 2008 under the prevalent rules, Government Orders or Administrative Instructions shall not be withdrawn."
XX. The State Government, in exercise of powers under clause (c) of sub-section (2) of Section 46 read with sub-section (3) of the said section and section 2 of the Act, 1861 and all other powres enabling him in this behalf and in superssession of all existing rules or orders issued in this behalf, has framed the Uttar Pradesh Police Constables and Head Constables Service Rules, 2008 (hereinafter referred to as ''U.P.P.C. & H.C. Rules, 2008". Rule 3 of the U.P.P.C. & H.C. Rules, 2008 relates to definition. Rule 3 (i) of U.P.P.C. & H.C. Rules, 2008 provides that ''member of service' means a person substantively appointed under these rules or orders in force prior to commencement of these rules to a post in the cadre of the service; and Rule 3 (l) of U.P.P.C. & H.C. Rules, 2008 provides that service means the Uttar Pradesh Police Constable and Head Constable Service. ''Cadre of Service' has been defined in Rule 4 of the U.P.P.C. & H.C. Rules, 2008. Rule 4 (1) of the U.P.P.C. & H.C. Rules, 2008 provides that the strength of the service and of each category of posts therein shall be such as may be determined by the Government from time to time. Rule 5 of the U.P.P.C. & H.C. Rules, 2008 relates to source of recruitment; Rule 6 relates to reservation; Rule 7 relates to nationality; Rule 8 relates to academic qualification; Rule 10 relates to age; Rule 11 relates to character; Rule 12 relates to marital status; Rule 13 relates to physical fitness; Rule 14 relates to determination of vacancies; Rule 15 relates to procedure for direct recruitment of Constable; Rule 16 relates to Character Verification; Rule 17 relates to Procedure for promotion to the post of Head Constable; Rule 18 relates to appointment, Rule 19 relates to training, Rule 20 relates to probation; Rule 21 relates to confirmation; Rule 22 relates to seniority; Rule 23 relates to scales of pay, Rule 24 relates to pay during probation; Rule 25 relates to canvassing, Rule 26 relates to Regulation of other matters, Rule 27 relates to relaxation from the conditions of service, Rule 28 relates to saving.
XXI. Vide notification No. 1835/6-pu-15-53-2015, dated 19.08.2015, published in the U.P. Gazette, Part 4, Section Ka, dated 19.08.2015, the State Government, in exercise of the powers under clause (c) of sub-section (2) of Section 46 read with sub-section (3) of the said section and Section 2 of the Police Act, 1861 (Act No. 5 of 1861) and all other powers enabling him in this behalf and in superssession of all existing rules or orders issued, in this behalf, has framed a new rule, namely, Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 20115 (hereinafter referred to as "Rules, 2015") with a view to regulating the selection, promotion, training, appointment, determination of seniority and confirmation etc. of sub-inspectors and inspectors of the Civil Police in Uttar Pradesh Police Force. Rule 3 of the Rules, 2015 lays down the definition, which is reproduced as under :-
"3. Definitions.-In these rules unless there is anything repugnant in the subject or context,--
(a) 'Act' means the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (U.P. Act No. 4 of 1994) as amended from time to time.
(b) 'appointing authority' means the Deputy Inspector General of Police;
(c) 'Board' means the Uttar Pradesh Police Service Recruitment and Promotion Board, established in accordance with Government orders issued from time to time in this regard;
(d) 'Constitution' means the Constitution of India;
(e) 'Citizen of India' means a person who is or is deemed to be a citizen of India under Part II of the Constitution of India;
(f) 'Government' means the State Government of Uttar Pradesh;
(g) 'Governor' means the Governor of Uttar Pradesh;
(h) 'Head of the Department' means the Director General of Police, Uttar Pradesh;
(i) 'Member of Services' means a person appointed to a post in service under these rules or any previous rules before the commencement of these rules.
(j) 'Other Backward Classes of citizen' means the backward classes of citizens specified in Scheduled I of the Act;
(k) 'Police Headquarters' means the Headquarters of the Director General of Police, Uttar Pradesh at Lucknow and Uttar Pradesh Police Headquarters at Allahabad;
(l) 'Selection Committee' means the Committee duly constituted in accordance with the provisions of these rules to select candidates for appointment to the posts in the Services;
(m) 'Service' means the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service;
(n) 'Substantive appointment' means an appointment, not being an ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government;
(o) 'Year of recruitment' means a period of twelve months commencing on the first day of July of a calendar year."
XXII. ''Cadre of Service' has been defined in Rule 4 of the Rules, 2015, which is reproduced as under :-
"4. Cadre of service.-- (1) The strength of the service and of each category of posts therein shall be such as may be determined by the Government from time to time.
(2) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under sub-rule (1), be as given below:
Name of Post Number of Posts
Permanent Temporary Total
1. Inspector 890 1748 2638
2. Sub-Inspector 7153 11846 18999
Provided that;
(i) the Head of the Department may re-determine the number of posts of various units within the overall sanctioned allocation.
(ii) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without thereby entitling any person to claim compensation, or
(iii) the Governor may create such additional permanent or temporary posts as he may consider proper."
XXIII. Rule 5 deals with source of recruitment, which is reproduced as under :-
"5. Source of recruitment.-Recruitment to the various categories of posts in the service shall be made from the following sources :
(1) Sub-Inspector
(i) Fifty per cent by direct recruitment through the Board.
Note .- Dependents of personnel of police department deceased during service who apply for the post of Sub-Inspector of Pollice in the dependant of deceased category shall be recruited by the Board as per the policy decided by the Government. Restriction being that every year such posts shall not be more than 5 per cent of the posts to be filled by direct recruitment as against the vacancies arising in the previously sanctioned posts of sub-Inspector of Police.
(ii) Fifty per cent by promotion through the Board, on the basis of seniority subject to rejection of the unfit from amontgst the substantively appointed Head Constables of Civil Police Who have been found successful in physical efficiency test of qualifying nature and have completed three years of service as such on the first day of the year of recruitment.
(iii) Head Constable Civil Police promoted on the ex cadre posts of Inspectors Civil Police who fulfil the requirement mentioned in clause (ii) shall also be eligible for promotion to the post of sub-Inspector.
(2) Inspector
(a) Hundred per cent of the total number of sanctioned posts of Inspector civil police shall be filled by promotion by the Board on the basis of seniority subject to rejection of unfit, from amongst substantively appointed sub-Inspectors Civil Police who have completed seven years of service as such on the first day of the year of recruitment, including the probation period.
(b) Sub-Inspectors Civil Police promoted on ex cadre posts of Inspector Civil Police who fulfil the requirement mentioned in sub-clause (a) shall also be eligible for promotion to the post of Inspector Civil Police."
XXIV. Rule 6 of Rules, 2015 deals with reservation; Rule 7 relates to Nationality; Rule 8 relates of academic qualification; Rule 9 relates to preferential qualification; Rule 10 relates to age; Rule 11 relates to Character; Rule 12 relates to Marital Status; Rule 13 relates to Physical fitness; Rule 14 relates to determination of vacancies; Rule 15 relates to procedure for direct recruitment to the post of Sub-Inspector; Rule 16 relates to Character verification; Rule 17 relates to procedure for recruitment by promotion, which is reproduced as under :-
"17. Procedure for recruitment by promotion.--
(1) Promotion on the post of Sub-Inspector--
The appointment to the post of the Sub-Inspector shall be made from amongst the eligible personnel substantively appointed as Head Constable Civil Police according to the following policy--
(a) Fifty per cent of the total sanctioned posts of the Sub-Inspector Civil Police shall be filled by recruitment through promotion by the Board on the basis of seniority subject to rejection of unfit from amongst such substantively appointed Head Constables who have completed three years of service including probation period on the first day of the year of recruitment and are found successful in qualifying physical efficiency test according to Appendix 5.
(b) Such Head Constables Civil Police promoted to ex-cadre post of Sub-Inspector Civil Police shall also be eligible for promotion to the posts of Sub-Inspector Civil Police under clause (a) who fulfil the qualifications.
(2) Promotion on the post of Inspector Civil Police.--
The appointment to the post of the Inspector Civil Police shall be made from amongst the eligible personnel substantively appointed as Sub-Inspector Civil Police according to the following policy--
(a) Hundred per cent of the total number of sanctioned posts of Inspector Civil Police shall be filled by recruitment through promotion by the Board on the basis of seniority subject to rejection of unfit from amongst those substantively appointed Sub-Inspector Civil Police who have completed seven years of service including probation period on the first day of the year of recruitment.
(b) Such Sub-Inspector Civil Police, promoted to ex-cadre post of Inspector Civil Police, shall also be eligible for promotion to the posts of Inspector Civil Police under clause (a), who fulfil the qualifications.
(3) Selection Committee for Promotion--
(a) The Selection Committee for promotion shall be constituted by the Board.
(b) The Chairman of the Committee shall be nominated by the Board and shall not be junior in rank than the Appointing Authority for the promotional post for which the selection committee is constituted. One member of appropriate rank shall be nominated by the Head of the Department in the Committee and remaining members of the Committee shall be nominated by the Board according to Government Orders for the time being in force.
(c) Undisputed seniority list for promotion shall be made available by the Police Head Quarters to the Board.
(d) Selection Committee shall submit the result of successful candidates along with its recommendations to the Board. The Board shall submit the list of selected candidates along with its recommendations to the Head of the Department. The list shall not contain candidates more than the notified vacancies.
(e) The Head of the Department shall after his approval send the List to Appointing Authority who will issue final orders for promotion.
(f) After approval by the Head of Department, final list of candidates selected for promotion shall be displayed by the Board on its website and U.P. Police website.
XXV. Rule 18 of the Rules, 2018 relates to appointment, which is reproduced as under :-
"18. Appointment.--
(1) Subject to the provisions of Rules 15 and 16 the appointing authority shall make appointment by taking the names of candidates in the same order in which they stand in the list prepared under clause (f) of Rule 15. The appointing authority shall issue the appointment letter to the candidates with the direction that they should report for service/training within one month of the date of issue of the letter or any date specified for this purpose in the appointment letter. If a candidate does not do so his selection/appointment shall be cancelled:
Provided that any person appointed to a post in the service prior to the commencement of these rules and is working on the post, shall be deemed to have been substantively appointed under these rules.
(2) If more than one order of appointments are issued in respect of any one selection under Rule 17, then a combined order shall also be issued, mentioning the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted.
Provided that any person appointed before the commencement of these rules to a post under the service and working on that post shall be deemed to have been substantively appointed under these rules and such substantive appointment shall be deemed to have been made under these rules.
XXVI. Rule 19 relates to training; Rule 20 relates to probation; Rule 21 relates to confirmation; Rule 22 of the Rules, 2015 lays down that the seniority of the persons appointed to the post in service shall be determined in the matter laid down therein, which is reproduced as under :-
"22. Seniority.-- Seniority of persons substantively appointed to any posts in the service shall be determined as follows--
(1) Determination of seniority of sub-inspectors recruited before 2-12-2008
(a) Seniority of sub-inspectors recruited by any means who have undergone training at one time shall be determined on the basis of the percentage of marks obtained by them in training after selection in training institutions.
(b) Sub-inspectors trained in one training session shall be junior to all sub-inspectors trained in previous training session and shall be senior to all sub-inspectors trained in subsequent training sessions. Restriction being that if sub-inspectors appointed by direct recruitment and by promotion undergo training in one training session then in that case the seniority of promotes vis a vis direct recruits shall be determined in a cyclic order (the first being a promotee) so far as may be, in accordance with the quota prescribed for two sources.
(2) Determination of seniority of sub-inspectors recruited after 2-12-2008
(a) seniority of sub-inspectors appointed by any type of selection shall be determined from their date of selection. Here date of selection means the date on which the Head of the Department approves the select list sent by the Board or the selection committee after the completion of recruitment process;
(b) selection of sub-inspectors by the Board by means of direct recruitment shall be considered a separate selection. Inter se seniority of sub-inspectors recruited in a single selection under direct recruitment shall be according to the order of the final select list issued by the Board.
(c) sub-inspectors recruited under the dependants of deceased category and sub-inspectors recruited under the Skilled Sportsmen Rules, 2011 shall be considered a separate selection of direct recruitment. The inter se seniority of sub-inspectors so recruited shall be determined according to the percentage of marks obtained by them in training after selection in training institutions. In one training session if percentage of marks obtained in training institutions are same for more than one candidate then date of birth shall be made the basis of determination of inter se seniority. In case of percentage of marks and date of birth being same the seniority shall be determined according to the alphabetical order of the names in High School Certificates in English.
(d) Sub-inspectors appointed through promotion shall be considered a separate selection. If promotion to the post of sub-inspector is through an examination then inter se seniority of sub-inspectors appointed after promotion shall be according to the final select list issued by the Board. If promotion to the post of sub-inspector is done on the basis of seniority then the inter se seniority of sub-inspectors appointed having same date of selection shall be according to their seniority in the feeder cadre and sub-inspector selected in previous year shall be senior to sub-inspector selected in subsequent year.
(3) Determination of seniority of Inspectors.--
Seniority of inspectors appointed on the basis of promotion shall be determined from their date of selection. Inter se seniority of inspectors appointed on same date of selection shall be according to their seniority in their feeder cadre and inspectors selected in previous year shall be senior to inspectors selected in subsequent year. Here date of selection means the date on which the Head of the Department approves the select list sent by the Board or the selection committee after the completion of recruitment process.
(4) The seniority in some special case determined according to a previously determined policy shall remain unchanged.
(5) Despite the aforesaid if new facts come to light about seniority determination or in case some dispute arises then it shall be resolved by the Head of the Department according to policy of the Government."
XXVII. Rule 23 relates to scales of pay; Rule 24 relates to payt during probation; Rule 25 relates to canvassing; Rule 26 relates to Regulation of other matters, which provided that in regard to the matter not specifically covered by these rules or special orders persons appointed to the service shall be governed by the rules, regulations and orders made under the Police Act.
XXVIII. Rule 27 of the Rules, 2015 deals with relaxation for the conditions of service, which reproduced as under :-
"27. Relaxation for the conditions of service.--
Where the State Government is satisfied that the operation of any rule, regulating the conditions of service of persons appointed to the service causes undue hardship in any particular case, it may, notwithstanding anything contained in the rules applicable to the case, by order, dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the cases in just and equitable manner."
XXIX. Rule 28 is a savings clause, which is reproduced as under :-
"28. Savings.--Nothing in these rules shall affect reservations and other concessions required to be provided for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other special categories of persons in accordance with the orders of the Government issued from time to time in this regard.
XXX. The State Government, in exercise of powers under clause (c) of sub-section (2) of section 46 read with sub-section (3) of the said section and section 2 of the Act, 1861 and all other powers enabling him in this behalf and in superssession of all existing rules or orders issued in this behalf, has framed the Uttar Pradesh Police Constable and Head Constable Service Rules, 2015, which is in operation w.e.f. 02.12.2015.
APPELLANTS' CASE (16) On behalf of the appellants, broadly the submissions made are as under :-
(a) The persons, who were covered by the Government Order dated 23.07.2015 and who might be prejudicially and adversely affected by the outcome of the writ petitions, were not impleaded as party respondents and only 13 persons out of 990 non-gazetted police personnel have been impleaded in the writ petitions, hence the writ petitions ought to be dismissed by the learned Single Judge for non-joinder of necessary parties. Furthermore, the writ petitions were not maintainable in view of non-compliance of the provisions of Order I Rule 8 of the Code of Civil Procedure, 1908. The submission of the appellants is that in case there are large number of persons likely to be adversely affected, the provision of impleading some of them in representative capacity in accordance with the principles laid down in Order I Rule 8 of the Code of Civil Procedure, 1908 are required to be followed, which mandates permission of the Court in this regard and publication in the notice. In the instant case, no permission was ever sought nor any advertisement was issued prior to passing of the judgment and order dated 20.02.2019 under appeal. He further argued that the principles of Order I Rule 8 of the Code of Civil Procedure, 1908 are applied in writ proceedings under Article 226 of the Constitution of India and which provide that one person may sue or defend on behalf of all in same interest with the permission of the Court, however, before the aforesaid permission is granted, it is necessary to give notice of the institution of the suit at the plaintiff's expense to all persons so interested, either by personal service or where, by reason of the number of persons or any other cause such service is not practicable, by public advertisement, as the Court in each case may direct. Furthermore, prior to passing the judgment and order dated 20.02.2019 under appeals, no advertisement was issued regarding the institution of the aforesaid writ petitions, therefore, it is clear that the judgment and order dated 20.02.2019 under appeal has been passed without granting opportunity to the necessary parties to a lis to come and defend themselves. In support of this submissions, appellants have relied upon the judgment of the Apex Court in the case of Suresh Vs. Yeotmal District Central Co-operative Bank and another : (2008) 12 SCC 558, State of Rajasthan Vs. Ucchab Lal Chhanwal : (2014) 1 SCC 144, Ranjan Kumar and others Vs. State of Bihar and others : (2014) 16 SCC 187, Rashmi Mishra Vs. M.P. Public Service Commission and others : (2006) 12 SCC 724.
(b) The appellants/private respondents in writ petitions were not afforded opportunity of hearing by the learned Single Judge and the impugned judgment is ex parte. Even the learned single Judge has not taken into consideration the case of the appellants, who filed their counter affidavit before the learned Single Judge as counter affidavit filed by them has not at all been adverted to by the learned Single Judge. Appellants' submission is that on the date when the writ petitions were being finally heard by the learned Single Judge, a request was made on behalf of the Counsel for the appellants before the learned Single Judge that they are out of station on account of marriage of a close relative and as such, the matter may be adjourned only for a day and further matter may be fixed for the succeeding day itself. However, the learned Single Judge, without considering the fact that even on earlier occasion, the matter was finally heard and judgment was reserved on 13.04.2018 and later on it was released by the Co-ordinate Bench of the Court and was again being listed for final hearing, has passed the judgment and order dated 20.02.2019 under appeals without affording opportunity of hearing to the Counsel for the appellants as well as other Counsel for the private respondents. This fact of request having been made to the learned Single Judge for adjournment for a day has not been disputed in the counter affidavit filed on behalf of the respondent no.8 in Special Appeal No. 100 of 2019 and, therefore, the aforesaid defect of non-joinder of necessary parties could not be pointed out to the learned Single Judge, which itself renders the petition not maintainable and liable to be dismissed at the very outset.
(c) While adjudicating the issue raised in the writ petitions, the learned Single Judge has not at all considered the relevant provisions of Police Act, 1861 and Police Regulations and has also ignored the relevant and material provisions of Rule, 2008 and Rule, 2015. Further the learned Single Judge has not at all taken into consideration the previous judgments of the Apex Court as well as this Court which have clarified and laid down the nature of Government Orders issued under Section 2 of the Act, 1861 and also the nature of appointment on the basis of those Government Orders. Elaborating his submission, appellants have asserted that the appellants and other similarly situated out of turn promotees were appointed in accordance with the procedure prescribed for the said purpose under law against substantive vacant posts in the cadre. Thus, since the date of their initial appointment/promotion, they were ''members of service' having been born in the cadre since their date of initial appointment on the post of Inspector and as such, their appointment on the post of Inspector on out of turn basis cannot at all be treated to be ex cadre, and treating their appointment on the post of Inspector as an ex cadre appointment/promotion would not only be illegal but would also be absolutely factually incorrect. To substantiate the aforesaid submissions, appellants has drawn our attention to the Police Act, 1861 and has argued that a perusal of Section 2 of the Police Act, 1861, it reveals that the State Government has been empowered to lay down the conditions of service and pay of the members of subordinate police force. Further Section 46-2 (c) of the Police Act, 1861 empowers the State Government to make rules consistent with the provisions of the Act by notification in official gazette generally for giving effect to the provisions of the said Act. A perusal of the aforesaid makes it abundantly clear that the State Government while laying down the conditions of service of police personnel exercises statutory powers available to it under Section 2 as well as Section 42-2(c) of the Police Act, 1861. He argued that under Section 2 of the Police Act, 1861, statutory orders are issued and under Section 42-2(c) of the Police Act, 1861, rules are framed by the State Government. However, both, orders under Section 2 of the Police Act, 1861 and Rules under Section 42-2(c) of the Police Act, 1861, have statutory origin and none is subordinate to the other.
(d) It has been stated by learned Senior Counsel Sri Kalia that the State Government, while exercising power enshrined to it under Section 2 of the Police Act, 1861, issued an order dated 03.02.1994, by which it was provided that those Constables and Sub-Inspectors/Platoon Commanders, who have shown exemplary courage, be given appointment from the post of Constable to Head Constable and from the post of Sub-Inspector and Platoon Commander to Inspector/Company Commander on ex cadre posts. It was further provided that for each year, such ex cadre posts would be created by the State Government on the proposal of the Inspector General of Police, Lucknow and further it has overriding effect over any other existing orders. He argued that the aforesaid order dated 03.02.1994 contemplated that the promotions would be made ex cadre posts, which were to be sanctioned by the State Government for the said purpose every year, however, no such post were ever created and the out of turn promotions were made on cadre posts of Head Constables and Inspectors, respectively. Subsequently, on 01.05.1999, the State Government issued another statutory order referable to Section 2 of the Police Act, 1861, by which it laid down that out of turn promotions would be against the vacancies existing in the cadre, however, promotion would be treated ex cadre and its benefit will not be available for the purposes of determination of seniority. He pointed out that at the time of issuance of the aforesaid statutory orders dated 03.02.1994 and 01.05.1999, there were no service rules framed by the State Government under Section 46-2 (c) of the Police Act, 1861. Therefore, all the out of turn promotees were, thus, promoted on the cadre posts and the said promotions were granted by the State Government in accordance with Government Orders which were issued in exercise of the statutory powers available to it under the provisions of the Police Act, 1861. Thus, it is clear that promotion of the appellants were made in accordance with the procedure, then, prevailing in law and were made on cadre posts.
(e) Sri Kalia has further stated that in exercise of powers made to it under Section 2 of the Section 46 read with Section 2 of the Police Act, 1861, the State Government framed the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (hereinafter referred to as the "Rules, 2008"). The Rules, 2008 were deemed to come into force w.e.f. 02.12.2008. Rule 3 of the Rules, 2008 lays down the definitions. Rule 3(i) of Rules, 2008 provides ''member of service', which means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service. Rule 3 (l) provides ''service', which means that the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service. The definition of substantive appointment has been laid down in Rule 3 (m), which provides that substantive appointment means an appointment, not being an ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government. He argued that a bare reading of the aforesaid Rules and after taking into consideration the same, that out of turn promotees were appointed on cadre posts as per the then existing procedure issued by the State Government under the provisions of the Act, 1861, such out of turn promotees were member of the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service having been substantively appointed on a cadre post prior to the issuance of the Rules, 2008 and after the advent of the said rules, they continued in the said capacity. It has been pointed out by Sri Kalia that cadre of service has been defined in Rule 4 of the Rules, 2008, which lays down that the strength of service and of each category of service therein shall be such as may be determined by the Government from time to time. Rule 19 of the Rules, 2008 relates to the appointment and proviso to Rules 19 (2) of the Rules, 2008 prescribed that any person appointed to a post in the service prior to the commencement of these rules and is working on the post shall be deemed to have been substantively appointed under these rules and such substantive appointment shall be deemed to have been made under these rules. Rule 22 of the Rules, 2008 lays down that the seniority of the persons appointed to the post in service shall be determined in accordance with Uttar Pradesh Government Servant Seniority Rules, 1991 (hereinafter referred to as "Seniority Rules, 1991") as amended from time to time. Further Rule 28 of the Rules, 2008 empowers the State Government to grant relaxation from the conditions of service if it is satisfied that operation of any rule, regulating the condition of service of persons appointed to the service causes undue hardship in any particular case, it may notwithstanding any thing contained in the Rules applicable to the case, by order dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the cases in just and equitable manner. Rule 30 of the Rules, 2008 grants overriding effect to the said rules notwithstanding anything contrary contained in any other rules, government order or administrative instructions made or issued by the State Government and further Sub-Rule 4 of Rule 30 also provides that notwithstanding such rescission, the benefit of selection, promotion, training, appointment, determination of seniority and confirmation etc. granted before 02.12.2008 under the prevalent rules, government orders or administrative instructions shall not be withdrawn.
(f) Sri Kalia has stated that on 07.06.2014, the State Government issued an order under Section 2 of the Police Act, 1861, by means of which the mechanism of out of turn promotion was done away with and in its place other arrangements, namely, cash reward and grant of medals was brought into force, as such prior to 07.06.2014, the Government Orders dated 03.02.1994 and 01.05.1999 was being applied for granting out of turn promotion on cadre posts on personnel who had shown exemplary courage, while carrying out their duties. He argued that once, on 07.06.2014, the State Government took a decision of rescinding its policy of granting out of turn promotion and replacing the same with other arrangement, the State Government in order to rectify the anomaly created vide earlier order dated 01.05.1999 which provided that although promotions would be made on cadre post, the same would be treated ex cadre and the same would not confer any benefit for determination of seniority, issued the order dated 23.07.2015 rectifying the said anomaly by means of which the earlier order dated 01.05.1999 was rescinded with immediate effect and it was provided that 990 Non-Gazetted Police Officers/ Employees, who had been granted out of turn promotion w.e.f. 1994 till 2014, their probation shall be counted with effect from their date of out of turn promotion.
(g) Elaborating his submission, Shri Kalia has submitted that the order dated 23.07.2015 was also issued by the State Government exercising powers available to it under Section 2 of the Police Act, 1861. The said order was challenged by the writ petitioners on the ground that the same has been issued in violation of the express provisions of the Rules, 2008 and operation of which would cause them undue hardship, since the out of turn promotees would be placed higher in rank in the seniority list. He argued that seniority is a civil right available to a Government servant to be determined by the policy of the employer and further it is always open for the employer/State Government to amend/modify its policy and, thus, there is no vested right available to a Government servant if such policy is changed. To strengthen his submission, he has placed reliance upon the judgment of the Apex Court rendered in Prafful Kumar Das Vs. State of Orissa : (2003) 11 SCC 614.
(h) Sri Kalia has pointed out that the writ petitioners have worked under the out of turn promotees for considerable period of time i.e. from 1994 till 2014 and have choosen not to challenge the arrangement of grant of out of turn promotion and as such, only on the ground that they would be facing hardship by loss of seniority is no ground to strike down the policy of the State Government as laid down vide order dated 23.07.2015. He argued that the provisions of Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2015 (hereinafter referred to as "Rules, 2015") have been framed by the State Government in exercise of power available to it under Section 46-2 (c) of the Police Act, 1861 read with Section 2 of the Police Act, 1861, wherein the arrangement provided vide order dated 23.07.2015 has been specifically saved and incorporated in the Rules, 2015 and further out of turn promotions have been statutorily saved for all purposes. Rule 3 of the Rules, 2015 lays down the definitions and further Rule 3(i) provides for ''member of service', which means a person appointed to a post in service under these rules or any previous rules before the commencement of these rules. Rule 3 (m) of Rules, 2015 provides the definition of ''Service' which means the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service. The definition of ''Substantive Appointment' has been laid down in Rule 3 (n) of Rules, 2015, which means an appointment, not being an ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government.
(i) Sri Kalia has further pointed out that Cadre of Service has been defined in Rule 4 (1) of the Rules, 2008, which lays down that the strength of service and of each category of service therein shall be such as may be determined by the Government from time to time. Rule 18 of the Rules, 2008 relates to appointment and proviso to Rules 18 (2) of the Rules, 2008 provides that any person appointed before the commencement of these rules to a post under the service and is working on the that post shall be deemed to have been substantively appointed under these rules and such substantive appointment shall be deemed to have been made under these rules. Rule 22 of the Rules, 2015 lays down that the seniority of the persons appointed to the post in service shall be determined in the manner laid down therein and further Rule 22 (3) of the Rules, 2015 deals with determination of seniority of Inspectors. He argued that under the provisions of Rule 22 (4) of the Rules, 2015, the seniority in some special case determined according to previously determined policy shall remain unchanged. He argued that a perusal of the Rule 22 (4) of the Rules, 2015 makes it abundantly clear that the policy as determined by the State Government vide order dated 23.07.2015 has been specifically saved by operation of the aforesaid rule. He further argued that Rule 27 of the Rules, 2015 empowers the State Government to grant relaxation from the conditions of service, if it is satisfied that operation of any rule, regulating the condition of service of persons appointed to the service cause undue hardship in any particular case, it may not withstanding anything contained in the Rules applicable to the case by order dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the cases in just and equitable manner. Thus, from a conjoint reading of the Rules, 2008 and Rules 2015, it is unambiguously clear that the appellants were members of service from the initial date of their out of turn promotion on the post of Inspector, for the reason firstly, that their promotion was against a vacancy in the cadre, secondly it was in accordance with the procedure prescribed by law i.e. under the Government Order issued under the provisions of Section 2 of the Police Act, 1861 and thirdly it was a substantive appointment. Thus, seniority could not have been denied to them by any stretch of imagination or by operation of any law.
(j) It has further been stated by the learned Senior Counsel Sri Kalia that the policy decision taken by the State Government vide order dated 23.07.2015 does not suffer from any illegality and is not violative of any of the provisions of Rules, 2008 and Rules, 2015 rather the same is protected under both the rules and further the writ petitioners have not challenged the aforesaid provisions contained in the said Rules and the same is neither arbitrary nor discriminatory in any manner so as to render it violative of Article 14 of the Constitution of India.
(k) Sri Kalia has pointed out that it was nobody's case that the Government Order dated 23.07.2015 impugned in the writ petitions has not been issued by the State Government, hence the learned Single Judge erred in law in holding that there is no order of his Excellency the Governor. Thus, it is axiomatic that the writ petitions were not maintainable on the first count itself and further the same were bereft of any merit in them. The policy of the State Government issued vide order dated 23.07.2015 impugned in the writ petitions was legally justified and the same could not have been impeached alleging violation of the Rules, 2008 as well as Rules, 2015, wherein the said policy decision has been specifically saved and granted statutory recognition. He argued that the aforesaid propositions of fact and law was not considered by the learned Single Judge while passing the judgment and order under appeal for the reason that the counsel for the appellants could not be heard and, thus, it is clear that judgment and order under appeal is hit by the doctrine of per incurium as well as the doctrine of sub silentio. Hence, the judgment and order under appeal by which bunch of writ petitions were allowed, is liable to be set-aside and the said writ petitions are liable to be dismissed.
(l) Sri Anoop Trivedi, learned Senior Advocate, appearing on behalf of the appellants in Special Appeal No. 103 of 2019 has reiterated the aforesaid submissions advanced by Shri S.K. Kalia and has argued that the issue in the writ petitions is in respect of the promotions of Sub-Inspectors to the rank of Inspectors. The aforesaid promotions had been governed by the Government Order dated 05.11.1965, which provided for the method of selection of Sub-Inspector for promotion to the rank of Inspector. The Government Order dated 05.11.1965 issued by the Government is referable to Section 2 of the Police Act, 1861. The Government Order dated 29.10.1983 issued under Section 2 of the Police Act, 1861 provided for a selection committee for the purpose of selecting Sub-Inspectors for promotion to the post of Inspectors. The Government Order dated 05.11.1965 and subsequent Government Orders were rescinded/modified by the Government Order dated 24.07.2003 issued under Section 2 of the Police Act, 1861 providing for the Selection Process for promotion of Sub-Inspector (Civil Police) to the Inspector (Civil Police). The aforesaid Government Orders dated 05.11.1965, 29.8.1983 and 24.07.2003 were providing selection process for normal promotion of the Sub-Inspectors to the rank of Inspectors. These Government Orders have been issued under Section 2 of the Police Act, 1861 and were having statutory force, hence they are having mandatory and binding effect as held by the Full Bench of this Court in Vijay Singh and others Vs. State of U.P. and others : (2005) 2 AWC 1191 and State of U.P. and others Vs. Rajendra Singh and another : 2015 (4) ADJ 575.
(m) Sri Trivedi has submitted that the Police Act is a State subject under Entry 82 of the State list to the 7th Schedule of the Constitution of India. The Police Act was enacted in the year 1857 and received the assent of the then Governor General on 22.03.1861. Section 2 of the Police Act, 1861 provides for the constitution of force. Sub-section 2 of Section 46 of Police Act, 1861 confers a rule making power upon the State Government. He argued that from the aforesaid, it is quite evident that Section 2 of the Police Act, 1861 is the exclusive provision empowering the State to issue Government Order from time to time for enrollment of police personnel and constitution of Police Force. Section 46 (2) of the Police Act, 1861 provides that the State Government may from time to time by notification in the Gazette, make rules consistent with the act, Enrollment/recruitment of police personnel or anything related to that is not provided under Section 46 (2) of the Police Act, 1861. He pointed out that the Rules, 2008 have come into operation on 02.12.2008.
(n) Sri Trivedi, while drawing our attention to Rule 3 (i), 3 (m), 19 (1) and (2) of the Rules 2008, has contended that Sub-Rule 2 of Rule 19 of Rules, 2008 clarifies that any person appointed prior to the commencement of rules to a post under the service and working on that post shall be deemed to have substantive appointment under the Rules. He, thereafter, drawing our attention to Rule 28, 30 (1), 30 (2), 30 (3), 30 (4) of Rules, 2008, and has argued that sub-rule (4) of Rule 30 of the Rules, 2008 provides that the benefit of selection, promotion, training, appointment, seniority and confirmation etc. granted before the commencement of the Rules under the Government Orders or the administrative instructions shall not be withdrawn. He also drawing our attention of Rule 3 (i), 3 (n), 18 (2), 22 (3), 22 (4), 26 and 27 of the Rules, 2015 and has contended that these statutory provisions have not been considered by the learned Single Judge while passing the judgment and order under appeal. He argued that Rule 3 (m) of Rules, 2008 though has been noted by the learned Single Judge but part of it has not at all been considered which provides that where there were no rules, the substantive appointment means in accordance with the procedure prescribed for the time being as per the executive instructions provided by the Government. Similarly, Rule 3 (n) of the Rules, 2015 though noted by the learned Single Judge, however, were not completely considered by the learned Single Judge and the part of the said Rules, 2015, where there were no rules, the substantive appointment means in accordance with the procedure prescribed for time being by executive instructions issued by the Government has all together been ignored.
(o) Sri Trivedi has further submitted that the learned Single Judge has also not considered the object of the Government Order dated 03.02.1994. In a previous judgment of this Court rendered by the learned Single Judge in the case of Krishna Kumar Pandey Vs. State of U.P. and others : 2001 (3) AWC 2163, the object of the Government Order dated 03.02.1994 was considered and in paras 6 to 8 of the aforesaid report, it has been categorically held that the aforesaid Government Order does not contemplate merely courage rather indomitable courage for grant of out of turn promotion and for an act of bravery, a police officer can be rewarded according to Chapter XXXI of Police Regulations, but the Government Order dated 03.02.1994 required something more than good work and bravery and for out of turn promotion, the police officers must have shown indomitable courage and gallantry. However, the learned learned Single Judge, while passing the impugned judgment, was much influenced with the promulgation of Rules, 2008 and discarded the orders issued under Section 2 of the Police Act, 1861 because the learned Single Judge escaped attention of the fact that the Government Order issued under Section 2 of the Police Act, 1861 and Rules framed under Section 46 (2) of the Police Act, 1861 are both pieces of subordinate/delegate legislation. He argued that as the object of Government Order dated 03.02.1994, its source, its nature etc. could not be considered by the learned Single Judge and, as such, the nature of appointment by way of out of turn promotion could not be tested by the learned Single Judge. In fact the out of turn promotion was having a statutory backing.
(p) It has been contended by Sri Trivedi that the learned Single Judge, while considering Rules, 2008, has not taken into consideration the meaning of term ''members of service'. Rule 3 (i) of Rules, 2008 categorically provides that any person substantively appointed under the orders enforced prior to the commencement of these Rules to a post of Cadre of the Service shall be deemed to be substantively appointed in service. Further, learned Single Judge has completely ignored the part of definition of substantive appointment as occurring in Rule 3 (m) of the Rules, 2008. The part which was conjuncted after the word ''and' has not been taken into account. The part which was highlighted in bold in the impugned judgment has only been considered and the part which provides that the substantive appointment would also mean to the appointment in accordance with the procedure prescribed for the time being by executive instructions issued by the Government, if there were no rules, has not been considered. Similarly proviso to sub-rule 2 of Rule 19 of the Rules, 2008 has also not been taken into consideration, which provides that any person appointed to a post in the service prior to commencement of the Rules, 2008 and was working on the post shall be deemed to be substantively appointed under the said Rules. The learned Single Judge has also not taken into consideration the sub-rule 4 of Rule 30 which categorically provided that nothing contained in the Rules can withdraw the benefit of the selection, promotion, training appointment, determination of seniority and confirmation etc. granted before 02.12.2008 under the prevalent Government Orders. Similarly, learned Single Judge could not give any findings to the policy decision contemplated under Government Order dated 07.06.2014 and, therefore, could not have the occasion to test the need of issuing Government Order dated 23.07.2015. He argued that the learned Single Judge could not advert to the necessity of bringing a new set of Rules after the policy decision dated 23.07.2015 and their impact/effect on the policy decision dated 23.07.2015. He argued that the effect of Government Order dated 23.07.2015 is quite apparent in the Rules, 2015. A bare glance on the relevant statutory provisions of Rules, 2015 established that the policy decision dated 23.07.2015 taken with reference to Section (2) of Police Act, 1861 is clearly saved by Rules, 2015.
(q) Elaborating his submission, Sri Trivedi has submitted that the learned Single Judge could not advert himself to the Rule 3 (I) and 3 (n) of Rules, 2015, which provides for the term ''members of service' and ''substantive appointment', respectively. The learned Single Judge has also not considered the proviso to the Rule 18 (2) of the Rules, 2015. The aforesaid proviso categorically provides that any person appointed before the commencement of Rule, 2015 to a post under the service and working on that post shall be deemed to have been substantively appointed under the said Rules. However, this aspect of the matter has been completely ignored by the learned Single Judge. Similarly, sub-rule (3), (4) and (5) of Rule 22 of the Rules, 2015 have not been considered which proceed to save the policy decision contemplated under Government Order dated 23.07.2015 wherein the sub-rule 4 provides that the seniority in some special case determined according to previous determined policy shall remain unchanged. Furthermore, the learned Single Judge has also remained oblivious to Rule 28 of the Rule, 2008 and Rule 27 of Rules, 2015, which provide for relaxation. To strengthen his submission, he has placed reliance upon Narendra Chadha and others Vs. Union of India and others : 1986 (2) SCC 157, Union of India and others Vs. Pratap Narain and others : 1992 (3) SCC 268, State of U.P. and others Vs. Rajendra Singh and another : 2015 (4) ADJ LB (FB), Vijay Kumar Gaur Vs. State of U.P. and another : 2016 (11) ADJ 502 (LB), Vijay Singh and others Vs State of U.P. and others : 2005 AWC 1191 (FB), Ajay Kumar Bhuyan Vs. State of Orissa : 2003 (1) SCC 707, Prem Kumar Upadhyay Vs. State and others : 2014 (1) ADJ 536, Kandwa Kumar Mishra Vs. State (Special Appeal No. 117 of 2014, decided on 03.02.2014), Krishna Kumar Pandey Vs. State of U.P. and another : 2001 (3) AWC 2163.
(r) It has been submitted by Sri Trivedi that the learned Single Judge has not taken into consideration the relevant statutory provisions, relevant Government Orders and the previous judgments of the Apex Court and this Court and thus the judgment of the learned Single Judge can be termed to be per incuriam and the same suffers from the vice of doctrine of sub silentio. In support of this submission, he has placed reliance upon the judgments of the Apex Court in V. Kishan Rao Vs. Nikhil Super Specialty Hospital : 2010 (5) SCC 513, Government of A.P. and another Vs. B. Satyanarayan : 2000 (4) SCC 262, Young Vs. Bristol Aeroplane Company : 1948 78 L.I.L Rep 6, Municipal Corporation of Delhi Vs. Gurnam Kaur : 1989 (1) SCC 101, Nirmaljeet Kaur Vs. State of M.P. and another : 2004 (7) SCC 558, Tuples Educational Society and another Vs. State of U.P. and another : 2008 (3) AWC 2499 (FB), State of U.P. and another Vs. Synthetics and Chemicals Ltd. and another : 1991 (4) SCC 139, Public Welfare Hospital, Varanasi Vs. State of U.P. and others : 2011 (5) AWC 4757, and U. Barkath Vs. Director General of Police : 2019 SCC Online Mad. 4347.
(s) The other submission of the learned Senior Counsel Sri Trivedi is that once the policy decision has been taken vide Government Order dated 07.06.2014, the Government Order dated 23.07.2015 became need of the hour to be issued under Section 2 of the Police Act, 1861. This was done in order to save those appointments and further to protect the right accrued to all those police officers who were promoted out of turn. The policy decisions has further necessitated to promulgate the new set of rules in consonance with the said policy decision. The rule pertaining to appointment i.e. Rule 18 in 2015 Rules which goes to demonstrate that proviso to sub-rule (2) that any person appointed before the commencement of these rules and working over the post deemed to have been substantively appointed under the said rules. He argued that Rule 22 pertaining to seniority was also suitably amended in furtherance of the policy decision contained in Government Order dated 07.06.2014 and 23.07.2015 but the learned Single Judge has not taken into consideration sub-rule 3, 4 and 5 of the Rule 22 of the Rules, 2015 even though the Rule 4 categorically provides that the seniority in some special case shall be determined on the basis of previously determined policy shall remain unchanged.
(t) Sri Trivedi has further stated that at the best, Government Order dated 23.07.2015 can be treated to be integration in the cadre or amalgamation/merger of the cadre and ex cadre. He argued that it is settled law that questions relating to creation/abolition of cadre/categories of posts pertain to the field of policy decision and the same is within the exclusive discretion and jurisdiction of the State. Similarly, amalgamation/merger/bifurcation of the cadre creation or abolition of different category post or cadre classification re-constitution and re-structure the pattern and cadres/categories of service fall within the exclusive domain of the policy decision of the State Government. There is no right of any employee of the State to challenge such action on the ground of co-incidental prejudice or the reduced chances of promotion. A Government servant has no right to challenge the authority of the State to amend, alter and bring into new rules. But in the instant case, the State Government has taken policy decision of integration/merger of ex cadre into cadre. The amalgamation of employees by the Government Order dated 23.07.2015 was the need of the hour in the wake of the policy decision dated 07.06.2014. The legislature was also conscious of the aforesaid policy decisions and thus, Rules, 2008 were repealed and in its place, new Rules 2015 have been promulgated. These rules which have saved these policy decisions have not been challenged by the writ petitioners/ private respondents with regard to competence of the State Government for taking action of amalgamation/merger of the Government Servants or the creation/management of the cadre.
(u) To strengthen the aforesaid submission, Sri Trivedi has relied upon S.P. Shivprasad Pipal Vs. Union of India : 1998 AIR (SC) 1982, S.I. Roopal and another Vs. Lt. Governor through Chief Secretary, Delhi and others : AIR 2000 SC 594, State of Maharastra Vs. Chandrakant Anand Kulkarni : 1981 AIR (SC) 1990, P.U. Joshi and others Vs. Accountant General, Ahemedabad and others : 2003 (2) SCC 632, Tej Narain Tiwari Vs. State of Bihar and others : 1993 Supp (2) SCC 623, Prakash Ranjan Kumar and others and Ajit Kumar Saha vs. State of Bihar and others : 2007 (2) BLJR 2987, On Prakash Sharma and others Vs. Union of India and others : 1985 (Supp) SCC 218, S.A. Siddiqui Vs. M. Wajid Khan : 1999 AIR (SC) 604, Reserve Bank of India Vs. N.C. Paliwal and others : (1976) 4 SCC 838, Prafulla Kumar Das and others Vs. State of Orissa and others : (2003) 11 SCC 614, State of Rajasthan and another Vs. Shatilal Jain and others : 1989 Supp (2) SCC 777, Tamil Nadu Education Department Ministerial and General Subordinate Services Association and others Vs. State of Tamil Nadu and others : (1997) 8 SCC 522, Union of India and others Vs. S.L. Dutta and others : AIR 1991 SC 363.
APPELLANTS/STATE CASE (17) On behalf of the State, submission of Sri Manjive Shukla, learned Additional Chief Standing Counsel is as under :-
(a) The necessary parties were not impleaded as respondents in the writ petitions and, therefore, the writ petitions ought to have been dismissed by the learned Single Judge for non-joinder of necessary parties. He argued that the Government Order dated 23.07.2015 was related to 990 employees including Head Constables, but without impleading affected parties, learned Single Judge has quashed the Government Order dated 23.07.2015 and therefore, the impugned judgment and order dated 20.02.2019 is unsustainable in the eyes of law. He also argued that writ petitions were not maintainable in view of non-compliance of the provisions of Order I Rule 8 of the Code of Civil Procedure, 1908.
(b) The next submission of the learned Additional Chief Standing Counsel is that out of turn promotees were appointed in accordance with the procedure prescribed for the said purpose under law against substantive vacant posts in the cadre and thus, since the date of their initial appointment/promotion, they were ''member of service' having been born in the cadre since their date of initial appointment on the post of Inspector and as such, their appointment on the post of Inspector on out of turn basis cannot be at all treated to be ex cadre, and treating their appointment on the post of Inspector as an ex cadre, appointment/promotion would not only be illegal, but would also be absolutely factually incorrect. He argued that as per Section 2 of the Police Act, 1861, the State Government has been conferred power to lay down the conditions of service and pay of the members of sub-ordinate police force. Section 46 (2) (c) of the Police Act, 1861 further empowers the State Government to make Rules consistent with the provisions of the Act by Notification under official gazette for giving effect to the provisions of the Police Act, 1861. Thus it is quite clear that the State Government, while laying down the conditions of service of police personnel exercises statutory powers available to it under Section 2 as well as Section 46 (2) (c) of the Police Act, 1861.
(c) Elaborating his submission, learned Additional Chief Standing Counsel has submitted that under Section 2 of the Police Act, 1861, statutory orders are issued and under Section 46 (2) (c) of the Police Act, 1861, rules are framed by the State Government. However, orders, under Section 2 and Rules under Section 46 (2) (c) of the Police Act, 1861, both have statutory origin and none is subordinate to the other. He argued that in exercise of powers available to it under Section 2 of the Police Act, 1861, the State Government issued an order dated 03.02.1994 by means of which it was provided that those Constables and Sub-Inspectors/Platoon Commanders, who have shown exemplary courage, be given appointment from the post of Constable to Head Constable and from the post of Sub-Inspector and Platoon Commander to Inspector/Company Commander on ex cadre posts, would be created by the State Government on the proposal of the Inspector General of Police, Lucknow. The aforesaid office memorandum dated 03.02.1994 further provided that it has overriding effect over any other existing orders. He argued that although the aforesaid order contemplated that the promotions would be made ex cadre posts, which were to be sanctioned by the State Government for the said purpose every year. However, no such post were ever created and the out of turn promotions were made on cadre posts of Head Constables and Inspectors, respectively. Subsequently, on 01.05.1999, the State Government issued another statutory order referable to Section 2 of the Police Act, 1861 by means of which it laid down that out of turn promotions would be against the vacancies existing the cadre. However, it would be on ex cadre basis and its benefit will not be available for the purposes of determination of seniority. He pointed out that at the time of issuance of statutory orders i.e. 03.02.1994 and 01.05.1999, there were no service rules framed by the State Government under Section 46 (2) (c) of the Police Act, 1861.
(d) It has been stated by the learned Additional Chief Standing Counsel that in exercise of power available to it under sub-Section (2) of Section 46 read with Section 2 of the Police Act, 1861, the State Government has framed the Rules, 2008. This rules were deemed to come into force w.e.f. 02.12.2009. Rule 3 of the Rules, 2008 lays down the definitions and further Rule 3 (i) provides for ''member of service', whereas definition of ''service' has been laid down in Rule 3 (l) and the definition of ''Substantive Appointment' has been laid down in Rule 3 (m) of Rules, 2008. He argued that a bare reading of the aforesaid Rules and after taking into consideration the same that out of turn promotees were appointed on cadre posts as per the existing procedure issued by the State Government under the provisions of the Police Act, 1861 and such out of turn promotees were of the U.P. Sub-Inspector and Inspector (Civil Police) Service having been substantively appointed on a cadre post prior to the issuance of Rules, 2008 and after the advent of the said Rules, they continued in the said capacity.
(e) Learned Additional Chief Standing Counsel has further stated that ''Cadre of Service' has been defined in Rule 4 of the Rules, 2008, which lays down that the strength of service and of each category of service therein shall be such as may be determined by the Government from time to time. Rule 19 of the Rules, 2018 relates to appointment and proviso to Rule 19 (2) prescribes down that any person appointed to a post in the service prior to the commencement of these Rules and is working on the post shall be deemed to have been substantively appointed under these rules and such substantive appointment shall be deemed to have been made under these Rules. Rule 22 of the Rules, 2018 lays down that the seniority of the persons appointed to the post in service shall be determined in accordance with U.P. Government Servant Seniority Rules, 1991, as amended from time to time. Rule 28 of the Rules, 2008 empower the State Government to grant relaxation from the conditions of service, if it is satisfied that operation of any rule, regulating the condition of service of persons appointed to the service cause undue hardship in any particular case, it may notwithstanding anything contained in the Rules applicable to the case, by order dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the cases in just and equitable manner.
(f) It has been argued by the learned Additional Chief Standing Counsel that Rule 30 of the Rules, 2008 grants overriding effect to the said rules notwithstanding anything contrary contained in any other rules, Government Order or administrative instructions made or issued by the State Government and further sub-rule (4) of Rule 30 also provides that notwithstanding such rescission, the benefit of selection, promotion, training, appointment, determination of seniority and confirmation etc. granted before 02.12.2008 under the prevalent rules, government orders or administrative instructions shall not be withdrawn. He further argued that on 07.06.2014, the State Government issued an order under Section 2 of the Police Act, 1861, by which the mechanism of out of turn promotion was done away with and in its place, other arrangement, namely, cash reward and grant of medals, was brought into force and as such, prior to 07.06.2014, the Government Orders dated 03.02.1994 and 01.05.1999 was being applied for granting out of turn promotion on cadre posts of personnel who had shown exemplary courage, while carrying out their duties. His submission is that once the State Government on 07.06.2014 took a decision for rescinding its policy for granting out of turn promotion and replacing the same with other arrangement, the State Government, in order to rectify the anomaly created vide earlier order dated 01.05.1999, which provided that although promotions would be made on cadre post but the same would be treated ex cadre and the same would not confer any benefit for determination of seniority, issued the order order dated 23.07.2015 rectifying the said seniority anomaly by means of which the earlier order dated 01.05.1999 was rescinded with immediate effect and it was provided that 990 non-gazetted Police Officers/Employees, who had been granted out of turn promotion w.e.f. 1994 till 2014, their probation shall be counted w.e.f. their date of out of turn promotion. This Government Order dated 23.07.2015 was issued by the State Government in exercise of powers available to it under Section 2 of the Police Act, 1861.
(g) Learned Additional Chief Standing Counsel has stated that the aforesaid Government Order dated 23.07.2015 was challenged by the writ petitioners on the ground that the same has been issued in violation of the express provisions of the Rules, 2008 and operation of which would cause them undue hardship, since the out of turn promotees would be placed higher in rank in the seniority list. He, while placing reliance upon Prafull Kumar Das Vs. State of Orissa : 2003 (11) SCC 614, has argued that the seniority is a civil right available to a Government Servant to be determined by the policy of the employer and further it is always open for the employer/State Government to amend /modify its policy and thus there is no vested right available to a Government Servant if such policy is changed. He argued that the writ petitioners have worked under the out of turn promotes for considerable point of time i.e. from 1994 till 2014 and have chosen not to challenge the arrangement of grant of out of turn promotion and as such, only on the ground that they would be facing hardship by loss of seniority is no ground to strike down the policy of the State Government laid down vide order dated 23.07.2015.
(h) Elaborating his submission, learned Additional Chief Standing Counsel has drawn our attention to Rules, 2015 and argued that Rules 2015 have been framed by the State Government in exercise of powers available to it under Section 46 (2) (c) read with Section 2 of the Police Act, 1861, wherein the arrangement provided vide order dated 23.07.2015 has been specifically saved and incorporated in the Rules, 2015 and further out of turn promotions have been statutorily saved for all purposes.
(i) Learned Additional Chief Standing Counsel has also drawn our attention to Rules 3 (i), 3 (m), 3 (n), 4 (1), 22 (3), 22 (4), 27 and 28 of Rules, 2015 and Rule 18 (2) of Rules, 2008, and argued that from a conjoint reading of Rules, 2008 and Rules, 2015, it is unambiguously clear that the appellants were members of service from the initial date of their out of turn promotion on the post of Inspector, for the reason firstly, that their promotion was against a vacancy in the cadre, secondly it was in accordance with the procedure prescribed by law i.e. under the Government Order issued under the provisions of Section 2 of the Police At, 1861 and thirdly it was a substantive appointment and, thus, seniority could not have been denied to them by any stretch of imagination or by operation of any law. He further argued that the policy decision taken by the State Government vide order dated 23.07.2015 impugned in the writ petitions does not suffer from any illegality and the same is not violative of any of the provisions of the Rules, 2008 and Rules, 2015 rather the same is protected under both the Rules. He pointed out that the writ petitioners have not challenged the aforesaid provisions contained in the said Rules and the same is neither arbitrary nor discriminatory in any manner so as to render it violative of Article 14 of the Constitution of India. Thus, the learned Single Judge, while passing the impugned order, has not at all considered the aforesaid aspect of the matter and the judgment and order under appeal is hit by the doctrine of per incurium as well as the doctrine of sub silentio, hence the impugned order passed by the learned Single Judge is liable to be set-aside and also the writ petitions are also liable to be dismissed.
PRIVATE RESPONDENTS' CASE (18) On behalf of the respondents, the submission of learned Counsels are as under :-
(a) Sri Asit Kumar Chaturvedi, learned Senior Advocate, assisted by Sri V.S. Ojha, appearing on behalf of the writ petitioners/private respondents has submitted that if the policy decisions of the Government is under challenge on the ground of being violative of Article 14 and 16 of the Constitution of India, the proceedings are analogous to those in which the constitutionality of a statutory rules regulating seniority of the Government Servant is assailed, in such proceedings the necessary parties to be impleaded or those against whom the relief is sought and in whose absence no effective decision can be rendered by the Court. In the present case, relief was claimed against the State Government, which has been impleaded through its representative. The individuals who are likely to be affected as a result of readjustment of the writ petitioners/private respondents in the seniority list in accordance with law were at the most, proper parties and not necessary parties, and their non-joinder could not be fatal to the writ petition. In support of his submission, he has relied upon G.M. South Central Railways Sikandarabad Vs. A.V.R. Siddhanti : (1974) 4 SCC 335 and A. Janardana Vs. Union of India : (1983) 3 SCC 601.
(b) Elaborating his submission, Sri Chaturvedi has stated that since the number of ex cadre out of turn promotees Inspectors, who have been included in the seniority list dated 24.02.2016, were very large, therefore, thirteen ex cadre out of turn promotees Inspectors were made parties in the array of respondents in the writ petitions in the representative capacity to represent ex cadre out of turn promotees Inspectors, at the time of filing of the writ petition. Thereafter, few ex cadre out of turn promotees were impleaded in compliance of the orders passed by the learned Single Judge and few applications were allowed as Intervener during the writ proceedings. However, only five ex cadre out of turn promotees, who were respondents in the writ petitions, have filed four special appeals and none else. In support of his submission, he has placed reliance upon Prabodh Verma and others Vs. State of U.P. and others : (1984) 4 SCC 251.
(c) The submission of Sri Chaturvedi, learned Senior Counsel is that it has been wrongly alleged on behalf of the appellants that none of Sub-Inspectors given out of turn promotion as Inspector, have been impleaded even in the representative capacity, whereas, as a matter of fact more than thirteen Sub-Inspectors granted out of the turn promotions as Inspectors were respondents in the writ petitions and even few were interveners out of which only five Inspectors earlier granted out of turn promotion from the post of Sub-Inspectors and further promoted as Depurty Superintendent of Police, during the pendency of writ petitions, have filed four special appeals and none who were not impleaded in representative capacity, have filed special appeal resulting which is not open for five appellants to plead non-impleadment in special appeals as well as compliance of principles of Order I Rule VIII of the Civil Procedure Code. The said ground only open to those who were not impleaded even in representative capacity. He further argued that five appellants, who were respondents in the writ petitions in the representative capacity, cannot plead that the judgment and order dated 20.02.2019 is ex parte as vide order dated 06.02.2019 passed in the bunch of the writ petitions, learned Single Judge has fixed the hearing of the bunch of the writ petitions for peremptorily hearing on 20.02.2019 and in this regard, a written notice dated 14.02.2019 (Annexure No. CA-23 of Special Appeal No. 103 of 2019) served upon the counsel for respondents as well as through e-mail on 15.02.2019 to Sri Anoop Trivedi but even then none appeared to argue on 20.02.2019. His submission is that the sanctity of peremptorily hearing on 20.02.2019 has to be honored without any exception and despite non-appearance on the date fixed for peremptorily hearing, it is not open for the appellants to plead that the judgment dated 20.02.2019 is ex parte. He argued that the Counsel for the State of U.P. was present and argument on his behalf has been considered and decided through the judgment and order dated 20.02.2019. It has not been pleaded on behalf of the State of U.P./appellants that the issue raised during the course of hearing on 20.02.2019 has not been considered and incorporated in the judgment dated 20.02.2019. He further argued that the averment made in the counter affidavit of the private respondents will not change or affect in any manner the findings recorded in paragraph 32, 35, 36 and 37 of the impugned judgment dated 20.02.2019. However, during the course of hearing on 20.02.2019, the averments made in the counter affidavit of private respondents was read by the learned Single Judge and only thereafter the relevant pleadings, the judgment dated 20.02.2019 was delivered.
(d) The next submission of the learned Senior Counsel for the private respondents Sri Chaturvedi is that the private respondents herein are regularly promoted Inspectors (Civil Police) from the cadre post of Sub-Inspector (Civil Police) in accordance with law applicable. The Police Act, 1861 was enacted with object to re-organise the police and to make it a more efficient instrument for the prevention and detection of crime. Section 2 of the Police Act, 1861 relates to the constitution of force. Section 12 of the Police Act, 1861 is related to the power of Inspector General to make rules. Section 46 of the Police Act, 1861 empowers the State Government to frame rules. He argued that prior to 02.12.2018, there were no rules, framed under Section 46 (2) read with Section 2 of the Police Act, 1861 so as to govern the matter of appointment of subordinate ranks i.e. Sub-Inspectors and Inspectors, and earlier entire matter to be governed by various orders issued by the State Government from time to time under Section 2 of the Police Act, 1861. On 03.02.1994, an Office Memorandum was issued by the State Government by which a provision was made for the appointment of Constables/Sub-Inpsectors/Platoon Commanders on the ex cadre post of Head Constables/ Inspectors/Company Commanders in the reorganization of their act of indomitable courage and bravery. On 10.02.1994, order was issued by the Inspector General of Police (Personnel) laying down the procedure with regard to cash reward and out of turn promotion, whereas order dated 10.02.1994 was not issued under Section 12 of the Police Act, 1861 as the same was not approved by the State Government. On 01.05.1999, another Government Order was issued in which it was provided that out of turn promotion would be made against the vacant posts in the cadre, which will be treated as ex cadre promotion and no benefit of same will be admissible in the fixation of seniority. It was also pleaded that in paragraph-2 of the aforesaid Government Order dated 01.05.1999 that such promotions should not be more than 2% in the year. He argued that in the promotion order of ex cadre out of turn promotees, it was specifically mentioned that in future, they would have to appear in the selection/examination for regular promotion on the post of Inspector (Civil Police) and after being declared successful, their seniority would be determined accordingly.
(e) Learned Senior Counsel for the private respondents has submitted that in exercise of powers conferred under sub-Section 2 read with Section 46 read with Section 2 of the Police Act, 1861, the Government of Uttar Pradesh framed Rules, 2008 in supersession of all existing rules issued in this behalf with a view to selection, promotion, training, appointment, determination of seniority and confirmation etc., which came into effect from 02.12.2008. At this stage, he has drawn our attention to sub-rule (i), (l) and (m) of Rules 3, 4, 5 (1) (iii), 5 (2) (b), 17, 22, 28, 29 and 30 and has argued that proviso appended to the Sub-Rule 2 of Rule 19 of Rules, 2008 is referable to Rule 15, which relates to recruitment of Sub-Inspectors and not to the Inspectors. Thus, the Government Orders dated 03.02.1994, 02.01.1998 and 01.05.1999 continued to operate subject to Rule 5 (1) (iii) and Rule 5 (2) (b) of the Rules, 2008.
(f) At this stage, learned Senior Counsel for the private respondents has drawn our attention to the service details of the appellants, which are reproduced as under :-
Name Sub Inspector One Time Promotion Inspector (Date of Regular Promotions) Dy. S.P. Special Appeal No. Umesh Nath Mishra 1989-90 29.10.1994 12.07.2013 (Sl. No. 1671) 11.07.2016 99 (SPLA) 2019 Harimohan Singh 1989-90 31.01.1998 12.07.2013 (Sl. No. 1645) 11.07.2016 98 (SPLA) 2019 Vinod Singh Sirohi 1989-90 13.12.2004 11.07.2016 100 (SPLA) 2019 Upendra Kumar 1995-96 03.07.2004 11.07.2016 103 (SPLA) 2019 Rajesh Kumar Dwivedi 1989-90 27.12.1998 12.07.2013 (Sl. No. 1407) 11.07.2016 103 (SPLA) 2019
(g) It has been submitted by the learned Senior Counsel for the private respondents that pursuant to the aforesaid Office Order dated 03.02.1994, 02.01.1998 and 01.05.1999, out of turn promotion on the ex cadre post of Inspector (Civil Police) were given on 29.03.2013 to Sri Udai Pratap Singh (SI 2007-08 Batch) (respondent no.6 in writ petition No. 13625 (SS) of 2016) and Sri Rajendra Kumar Nagar (SI 2007-08 Batch) (respondent no.7 in writ petition no. 13625 (S/S) of 2016) and their names find place at Serial No. 616 and 617, respectively, in the seniority list dated 24.02.2016. He argued that on the basis of the recommendation of U.P. Police Recruitment and Promotion Board and approval by the Director General of Police, U.P., the respondent no.5 (Devi Prasad Shukla in writ petition no. 13625 (SS) of 2016) was promoted from the post of Sub-Inspector (Civil Police) to Inspector (Civil Police) on regular basis on 12.07.2013 in accordance to the provisions of the U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 as amended in 2013. The name of respondent no.5 in writ petition no. 13625 of 2016 (S/S) i.e. Devi Prasad Shukla herein appears at serial no. 1719 in the promotion order dated 12.07.2013.
(h) It has been argued by the learned Senior Counsel for the private respondents that another Government Order was issued by the State Government on 07.06.2014, whereby the Government Order dated 03.02.1994, which was related to ex cadre out of turn promotees of non-gazetted staff of the police department was cancelled and consequently a decision was taken by the State Government to award the non-gazetted staff of the police department who had shown exemplary courage with the police medal, Chief Minister's appreciation letter and Rs.25,000/- cash reward instead of out of turn promotion in terms of the Government Order dated 07.06.2014. A circular to the said effect was issued by the Director General of Police, U.P. on 14.08.2014. He argued that after issuance of the aforesaid Government Order dated 07.06.2014, cancelling the Government Order dated 03.02.1994, no benefits can be extended to the ex cadre out of turn promotees Inspector (Civil Police) beyond the provisions of the Circular dated 14.08.2014. He further argued that the Director General of Police, Lucknow, on 06.02.2015 and 20.05.2015, wrote to the Principal Secretary, Department of Home, Government of U.P., refusing for grant of seniority to the ex cadre out of turn promotees from the date of their out of turn promotion, who were engaged in the security of the Hon'ble Chief Minister, on the ground that in the Government Order dated 01.05.1999, it was provided that out of turn promotees would be made against the vacant posts in the cadre which will be treated as ex cadre promotions and no benefit of the same will be admissible in the fixation of seniority. Thereafter, Government Order dated 23.07.2015 was issued, whereby decision was taken by the State Government to give seniority to the ex cadre out of turn promotee non-gazetted police officers/employees and, thereafter, pursuant to Government Order dated 23.07.2015, consequential order was issued by the Director General of Police, U.P. on 29.07.2015 in violation of Rules, 2008.
(i) Sri Chaturvedi, learned Senior Counsel has submitted that the Government Order dated 23.07.2015, which was related, to ex cadre out of turn promotion of non-gazetted staff of Police Department had already been cancelled by the State Government vide Government Order dated 07.06.2014 and as such, no benefit contradictory to the Government Order dated 07.06.2014 could be made to the out of turn promotees. The findings recorded by the learned Single Judge in paragraph-32 of the impugned judgment dated 20.02.2019 is perfectly justifiable. He argued that the statutory provisions relied upon on behalf of the appellants in the counter affidavit filed in writ petitions will not change or affect the findings recorded in paragraph 32, 35, 36 and 37 of the impugned judgment dated 20.02.2019 as the Government Order dated 23.07.2015 has to be tested only on the touch stone of Rules, 2008 as the same was applicable from 02.12.2008 to 18.08.2015, which was framed in exercise of powers confirmed under Section 46 (2) read with Section 2 of the Police Act, 1861 and all other powers enabling the State Government in this behalf and in superssession of all existing Rules issued in this behalf, read with Rule 30 (overriding effect of the Rules, 2008 added through notification dated 05.04.2010) to regulate the selection, promotion, training, appointment, determination of seniority and confirmation etc. of Sub-Inspectors and Inspectors. Whereas the Government Order dated 23.07.2015 was only in exercise of power under Section 2 of the Police Act, 1861, resulting which the Government Order dated 23.07.2015 being in conflict with the Preamble, Sub-rule (i), (l) and (m) of Rules 3, 4, 5 (1) (iii), Rule 5 (2) (b), Rule 17, Rule 19, Rule 22, Rule 28, Rule 29 and Rule 30 of Rules, 2008. He argued that the appellants have deliberately skipped preamble, sub-rule (l) of Rule 3, Rule 5 (2) (b), Rule 17, Rule 29 as well as the fact, criteria and procedure for out of turn promotion as Inspector was to be governed only by the procedure laid down in paragraph 6 of the letter dated 10.02.1994 issued by Inspector General of Police (Personnel) of the office of Director General of Police, U.P., Lucknow which was not even in exercise of powers under Section 12 of the Police Act, 1861. Whereas criteria and procedure for regular promotion as Inspector is to be governed in pursuance of Government Orders dated 05.11.1965, 29.08.1983 and 24.07.20003 or Rule 17 of Rules, 2018 during the relevant period between 10.02.1994 to 07.06.2014.
(j) It has been contended by Sri Chaturvedi that the criteria and procedure dated 05.11.1965, 29.08.1983 and 24.07.2003 and Rule 17 of the 2008 had statutory backing, whereas letter dated 10.02.1994 have no statutory backing. The criteria and procedure for regular promotion as Inspector is uniformly to be applied for all Sub-Inspectors including Sub-Inspectors promoted as Inspector as ex cadre out of turn promotee in terms of Rules 5 (2) (b) read with Rule 17 substituted vide notification dated 06.06.2013 and same procedure was adopted while regular promotion of three appellants through order dated 12.07.2013, whereas the remaining two appellants were not regularly promoted till 23.07.2015. Neither the three appellants have challenged their promotion order dated 12.07.2013 nor all the five appellants have challenged their terms and conditions of out of turn promotions. However, the Government Order dated 23.07.2015 is not saved under Rule 29 of the Rules, 2008 as only the orders existing till 02.12.2008 were saved even the Government Order dated 12.07.2013 i.e. promotion order has not been superseded or revised till date. He further argued that the Government Order dated 23.07.2015 is not management/ amalgamation/merger of cadre as there is no cadre, of out of turn promotee Sub-Inspectors. There is only one cadre of Sub-Inspectors which has two posts i.e. Sub-Inspectors and Inspectors. As the seniority of regularly promoted Inspectors is determined only on the basis of substantive appointment on the post of Sub-Inspectors except those who are later on regularly promoted as Inspector on account of any reason.
(k) Sri Chaturvedi has submitted that the law of sub silentio and per incuriam is not applicable with respect to the paragraph 32, 35, 36 and 37 of the impugned judgment dated 20.02.2019. He argued that the judgments relied by the appellant are not relevant and applicable. He further argued that in exercise of powers conferred under Clause-(c) to sub-Section (2) of Section 46 read with sub-section (3) of the said section and Section 2 of the Police Act, 1861, the State Government framed Rules, 2015 in supersession of all existing Rules or orders issued in this behalf with a view to regulating the selection, promtion, training, appointment, determination of senrioity and confirmation etc. of Sub-Inspectors and Inspectors of (Civil Police in Uttar Pradesh Police Force), which came into force with effect from 19.08.2015. The relevant rules for the purposes of instant case are preamble, sub-rule (i), (m) and (n) of Rule 3, Rule 4, Rule 5 (1) (iii), Rule 5 (2) (b), Rule 17 (1) (b), Rule 17 (2) (b), Rule 18, Rule 22, Rule 26 and Rule 27 and Rule 28. The proviso appended to the sub-rule 1 of Rule 18 is referable to Rule 15 and Rule 16, which relates to the recruitment of Sub-Inspectors and not to the Inspectors. The proviso appended to the Sub-Rule 2 of Rule 18 is referable to Rule 17 (1), which relates to the recruitment of Sub-Inspectors by promotions and not to the Inspectors. He argued that on 04.02.2016, tentantive, combined seniority list of Commanders was circulated by the U.P. Police Headquarter, Allahabad under the signature of the Deputy Inspector General of Police (Establishment), U.P. and objections were invited against said list by 12.02.2016, keeping in view of Government Order dated 23.07.2015 in paragraph 3 (10) of Tentative Seniority List dated 04.02.2016. Against the aforesaid tentative seniority list dated 04.02.2016, the writ petitioners/respondents filed their objection to the Inspector General of Police (Establishment), U.P. The respondents herein/writ petitioners in their objection specifically indicated that the tentative seniority list was prepared in violation to Rules, 2008 and names of ex cadre out of turn promotee Inspectors (Civil Police) has wrongly been included in the tentative seniority list because out of turn promotions/ appointments are not the substantive promotion/appointment. He argued that in paragraphs 39, 40 and 41 of his objection dated 12.02.2016, respondent no.6 specifically stated that the Government Order dated 23.07.2015 cannot override or supersede the statutory Rules, 2008. It has also been indicated in the objection that out of turn ex cadre promotee Inspector (Civil Police) cannot be placed over and above the substantively appointed/promoted Inspector (Civil Police) and tentative seniority list dated 04.02.2016 has been issued in utter violation to the provisions of Rules, 2008 and further seniority should be determined in accordance with the provisions of Rules, 2008. He argued that on 24.02.2016, combined final seniority list of Inspectors (Civil Police), Reserve Inspectors and Company Commanders has been issued in de horse the Rules and no heed has been paid to the objections filed by the writ petitioners/respondents herein and objections were rejected through non-speaking and unreasoned order and in utter disregard and violation to the provisions of Rules, 2015, the seniority list has been finalized and number of ex cadre out of turn promotee Inspector (Civil Police), who are ranked junior to the writ petitioners/respondents herein treating their out of turn ex cadre promotion date as their date of regular promotion on the basis of the Government Order dated 23.07.2015, which was in violation of Rules, 2008 and was not to be saved by 2015 Rules which came into force w.e.f. 19.08.2015, therefore, action of the State cannot be justified on the touchstone of reasonableness and fairness, hence same cannot be sustained in the eyes of law.
(l) Sri Chaturvedi has submitted that the direction issued by the Apex Court vide order dated 30.06.2016 was not complied within the stipulated period of three months and the writ petitions were decided after two years and seven months due to delaying tactics adopted by the appellants/respondents which will be evident from the order-sheet of the writ petitions. He further argued that prior to 03.02.1994 and after 07.06.2014, there was provision for cash rewards in terms of Government Orders/Police Regulations which is compilation of Government Orders with regard to categories covered under Government Orders dated 03.02.1994, 02.01.1998 and 01.05.1999 whereas between 03.02.1994 to 07.06.2014, it was out of turn promotion which is in effect is a reward as they have to be considered again for regularization of their promotion on their turn in accordance with the procedure laid down in the Government Orders dated 05.11.1965, 24.07.2003 and Rules of 2008 and 2015. He further argued that the word ''Special Categories' used in Rule 28 of the Rules, 2015 can include ''Other Backward Class Categories' applying the doctrine ''Ejusdem Generis'.
(m) It has been argued by the learned Senior Counsel for the private respondents that the police force is a uniform disciplined service governed by rank and the benefits conferring higher status and rank to juniors will disturb the entire edifice which is foundation to strict discipline based on seniority, rank and status and of utmost importance in a disciplined uniform police force. He further argued that ex cadre out of turn promotions were granted in pursuance of Government Order dated 03.02.1994 and 01.05.1999. According to Service Rules, an ex cadre out of turn promotee cannot be substantive appointee/promotee until they are granted regular promotion. After coming into force of service rules, ex cadre out of turn promotee Inspector (Civil Police) cannot be extended seniority benefits in contravention to the provisions of service rules. He further argued that on 22.11.2019, combined seniority list of Inspector (Civil Police), Reserve Inspector and Company Commander has been issued giving the benefit of Government Order dated 23.07.2015 by the Deputy Inspector General of Police Personnel/ Establishment i.e. respondent no.11, rejecting the objection dated 28.07.2019 submitted by the respondent no.6 vide order dated 20.11.2019, during the pendency of the special appeal in utter violation to the judgment and order dated 20.02.2019 as well as order dated 28.03.2019 passed in Special Appeal.
(n) Submission of the learned Senior Counsel Sri Chaturvedi is that the condition of recruitment cannot be relaxed. The condition of recruitment are mandatory for appointment by promotion and any appointment in contravention thereof would negate the scheme of the Rules. The power to relax the Rules does not include the power to relax recruitment rules. In support of his submission, he relied upon Syed Khalid Rizbi and others vs. Union of India and others : 1993 Supp. (3) SCC 575, The Food Commissioner, U.P. and others Vs. Om Pal Singh and others (Special Appeal No. 1960 of 2011, decided on 05.10.2018, M. Venketeswarlu and others Vs. Government of A.P. and others : 1996 (5) SCC 167, U.P. Jal Nigam and others vs. Narinder Kumar Agarwal : 1996 (8) SCC 43, Suraj Prakash Gupta and others Vs. State of J & K and others : 2000 (7) SCC 516, Rajasthan State Industrial Development and Investment Cooperation Vs. Subhash Sindhi Cooperative Society Jaipur and others : 2013 (5) SCC 427, Chairman, Public Service Commission, J & K and Anr. Vs. Sudarshan Singh Jamwal and others : 1998 (9) SCC 327, U.P. Unaided Medical Colleges Welfare Association Vs. Union of India and others : 2016 (3) UPLBEC 2363, Bhupendra Nath Hazarika and others Vs. State of Assam and others : 2013 (2) SCC 516.
(o) Sri Chaturvedi has further stated that ''proviso' cannot be read independently, the proviso will have to be read with the main provision and further proviso cannot travel beyond the scope of main provision and same cannot be inconsistent to the main provision. In support of his submission, he relied upon J.K. Industries Ltd. and others Vs. Chief Inspector of Factories and Boilers and others : 1996 (6) SCC 665.
(p) The next submission of Sri Chaturvedi is that the executive instruction or orders cannot override the statutory rules. In support of his submission, he relied upon Vijay Singh and others vs. State of U.P. and others : 2005 (2) AWC 1191 (FB), K. Kuppusamy and another Vs. State of Tamil Nadu and others : 1998 (8) SCC 469, Dr. Rajinder Singh Vs. State of Punjab : 2001 (5) SCC 482, Bindeshwari Ram Vs. State of Bihar and others : 1989 (4) SCC 465, Anurag Yadav and others Vs. State of U.P. and others : 2010 (3) UPLBEC 2261, K. P. Sudhakaran and another Vs. State of Kerala and others : 2006 (5) SCC 386, Mahadev Bhau Khilare (Mane) and others Vs. State of Maharashtra and others : (2007) 5 SCC 524.
(q) The other submission of Sri Chaturvedi is that in the guise of removing a difficulty, Government cannot change the scheme and essential provision of the Act. In support of his submission, he relied upon Madeva Upendra Sinai and others vs. Union of India and others : 1975 (6) SCC 765, Delhi Development Authority and another Vs. Joint Action Committee Allottee of SF's Flats and others : 2008 (2) SCC 672.
(r) The next submission of Sri Chaturvedi is that if there is conflict between specific provision and general provision, then, specific provision will prevail over general provision. In support of his submission, he relied upon J.K. Cotton Spinning and Weaving Mills Company Ltd. Vs. State of U.P. : AIR 1961 (SC) 1170, Dharni Sugars and Chemicals Ltd. Vs. Union of India and others : 2019 (5) SCC 480.
(s) Sri Chaturvedi has further stated that if a person has continued to work, that by itself will not confer any right upon him since principle of holding over or concept of adverse possession is not applicable in service jurisprudence. In support of his submission, he relied upon M. S. Patil (Dr.) Vs. Gulbarga University : 2010 (10) SCC 63, State of Orissa and another Vs. Mamta Mohanty : 2011 (3) SCC 436, A. Umarani Vs. Registrar Cooperative Societies and others : 2004 (7) SCC 112.
(t) Sri Chaturvedi has stated that out of turn promotees Inspector cannot claimed equivalence with regularly promoted Inspectors keeping in view the Government Order dated 05.11.1965, 29.08.1983, 24.07.2003 and Rule 5 (2) (b) read with Rule 17 of the Rules, 2018 viz a viz Government Order dated 03.02.1994, I.G. (k) letter dated 10.02.1994, Government Order dated 02.01.1998, 01.05.1999 and 07.04.2014. In the intra court appeal, Courts Act as a Court of correction to correct its own judgment/order in exercise of the same jurisdiction as was vested in the Single Bench and not as a Court of error. In support of his submission, he relied upon Baddula Lakshmaiah and others Vs. Sri Anjaneya Swami Temple & others : 1996 (3) SCC 52 and Managing Director, ECIL, Hyderabad and others Vs. B. Karunakar and others : 1993 (4) SCC 727. He argued that the purpose of legislation /Government actions should be the happiness of greatest number. Its object should be with two motives procuring pleasure and avoiding pain. In the instant case, action of Government extents pleasure for few and inflicting pain to a large number and as such, action of Government, while issuing Government Order dated 23.07.2015 is not sustainable. Thus, the judgment and order dated 20.02.2019 do not suffer from any illegality, irregularity and impropriety and the same is just and proper.
DISCUSSION (19) Before entering into the merits of the case, it would be apt to first deal with the following preliminary submissions of the learned Senior Counsel appearing on behalf of the appellants :-
"(a) 990 employees/persons, who were covered by the Government Order dated 23.07.2015 and who might be prejudicially and adversely affected by the outcome of the writ petitions, were not impleaded as party respondents in the writ petitions and only few of them were impleaded in the writ petitions as private respondents, hence the writ petitions ought to have been dismissed by the learned Single Judge for non-joinder of necessary parties but the learned Single Judge did not consider this aspect of the matter even though specific plea in this regard has been taken by the private respondents/appellants herein in the writ petitions but that too was not considered.
(b) The writ petitions were not maintainable and ought to be dismissed as no permission under Order I Rule 8 of the Code of Civil Procedure, 1908 was applied for, nor granted, prior to passing the judgment under appeal, hence necessary parties were not put to notice and as such, on this ground alone the judgment and order under appeal deserves to be set-aside.
(c) The impugned order under appeal is an ex parte order as it has been passed by the learned Single Judge without hearing the learned counsel for the appellants/private respondents in writ petitions.
(20) It transpires from the record of the writ petitions that by a common judgment and order dated 20.02.2019, the learned Single Judge decided three writ petitions i.e. writ petition No. 13625 (S/S) of 2016, 5677 (S/S) of 2016 and 10759 (S/S) of 2016. It comes out that in writ petition no. 13625 (S/S) of 2016, three out-of-turn promotees on ex cadre posts were impleaded as private respondents; in writ petition no. 5677 (S/S) of 2016, six out-of-turn promotees on ex cadre posts were impleaded as private respondents; and in writ petition no. 10759 (S/S) of 2016, four out-of-turn promotees on ex cadre posts were impleaded as private respondents.
(21) It is not in dispute that by the final outcome of the writ petitions viz. by the impugned order under appeal, almost 990 non-gazetted police personnel might be affected. Further, learned Counsel for the appellants/private respondents were not present at the time of final hearing of the bunch of writ petitions and the impugned order under appeal has been passed by the learned Single Judge without hearing the learned Counsel for the appellants/private respondents. It also transpires from the impugned order under appeal that the aforesaid preliminary submissions of the appellants/private respondents have not been discussed or decided by the learned Single Judge.
(22) Now, the question whether the aforesaid preliminary submissions ought to be addressed by the learned Single Judge and whether the appellants/private respondents have ever raised the aforesaid preliminary submissions before the learned Single Judge or any assertion in this regard on behalf of the private respondents/appellants have been made in the counter version in the writ petitions or not.
(23) The specific stand of the appellants/private respondents is that respondent no.6/Uday Pratap Singh has filed a supplementary counter affidavit along with application for taking memo of appearance and supplementary counter affidavit on records (C.M. Application No. 59422 of 2017) in Writ Petition No. 13625 of 2016 (S/S) and in paragraphs 3 to 6 in the supplementary counter affidavit, it has been stated as under :-
"3. That the order impugned affects 990 non-gazetted police officers consisting of Head Constables, Sub-Inpsectors, Inspectors/Company Commanders.
4. That the quashing of the Government Order dated 23rd July, 2015 has been prayed, however, neither any Head Constable nor any Sub Inspector, nor any Company Commander has been impleaded as party-respondent in the above noted writ petition.
5. That further, all the Inspectors covered under the Government Order dated 23rd July, 2015 have also not been made party-respondent in the Writ petition. Moreover, none of the Inspectors have been impleaded in representative capacity by seeking leave of the Court. It is specifically stated here that the neither any application for impleading any set of Inspectors under the representative capacity has been preferred nor any step whatsoever akin to the provisions contemplated under Order I Rule 8, 9, 9A C.P.C. have been taken.
6. In the circumstances the above writ petition deserves to be dismissed on the ground of non-impleadment of necessary and proper parties."
(24) Submission of the learned Senior Counsel appearing on behalf of the appellants/private respondents is that even if the learned Counsel for the private respondents were not present at the time of hearing of the writ petitions, the learned Single Judge ought to have taken into consideration the material brought by means of aforesaid supplementary counter affidavit by the private respondents but the learned Single Judge has not appreciated the aforesaid contents made in the supplementary counter affidavit filed on behalf of the private respondents in writ petition No. 13625 of 2016 (S/S) while passing the impugned order appeal even though in the absence of their counsel. According to them, there was no rebuttal on behalf of the writ petitioners to the aforesaid contents of the supplementary counter affidavit in the aforesaid writ petition.
(25) Per contra, it has been contended by the learned Senior Counsel appearing on behalf of the writ petitioners/private respondents herein that since the number of ex cadre out of turn promotees Inspectors, who have been included in the seniority list dated 24.02.2016 was very large, therefore, thirteen ex cadre out of turn promotees Inspectors were made parties in the array of respondents in the writ petitions in the representative capacity to represent ex cadre out of turn promotees Inspectors, at the time of filing of the writ petition. Thereafter, few ex cadre out of turn promotees were impleaded in compliance of the orders passed by the learned Single Judge and few applications were allowed as intervener during the writ proceedings. However, only five ex cadre out of turn promotee, who were respondents in the writ petitions, have filed four special appeals and none else. In these backgrounds, his submission is that plea of the appellants for non-compliance of the principles of Order I Rule 8 of the Civil Procedure Code is not sustainable as the said ground only open to those who were not impleaded even in representative capacity.
(26) It is noted here that both the learned Senior Counsels i.e. appellants side and respondents side, have placed reliance upon Prabodh Verma and others Vs. State of U.P. and others (supra) in support of their contentions. Therefore, decision of the Apex Court in Prabodh Verma and Others v. State of Uttar Pradesh and Others (supra) requires to be addressed. The facts in the said case deserved to be stated. In the said case the principal question that arose for determination before the Apex Court was the constitutional validity of two Uttar Pradesh Ordinances, namely, (1) The Uttar Pradesh High Schools and Intermediate Colleges (Reserve Pool Teachers) Ordinance, 1978 (U.P. Ordinance 10 of 1978), and (2) The Uttar Pradesh High Schools and Intermediate Colleges Reserve Pool Teachers) (Second) Ordinance, 1978 (U.P. Ordinance 22 of 1978). This Hon'ble High Court for certain reasons had struck down the ordinance. Be it noted, the writ petition was filed by the Uttar Pradesh Madhyamik Shikshak Sangh. Apart from the question of validity, the subsidiary question that arose before the Apex Court is whether the termination of the services of the appellants and the petitioner before the Apex Court as secondary school teachers and intermediate college lecturers following upon the High Court judgment is valid and, if not, the relief to which they are entitled. After narrating the facts, the Apex Court observed that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. We think it appropriate to reproduce the statement of facts as reproduced in the judgment.
"28. The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh's case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable, defects. The first defect was that of non-joinder of necessary parties. The only respondents to the Sangh's petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties - not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sangh's writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non- joinder of necessary parties."
(27) Thereafter, the Apex Court proceeded to summarise its conclusion and the relevant conclusion for the present purpose are reproduced below:-
"50 (1) A High Court ought not to hear and dispose of a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least some of them being before it as respondents in a representative capacity if their number is too large to join them as respondents individually, and, if the petitioners refuse to so join, then the High Court ought to dismiss the petition for non-joinder of necessary parties.
(2) The Allahabad High Court ought not to have proceeded to hear and dispose of Civil Miscellaneous Writ No. 9174 of 1978 - Uttar Pradesh Madhyamik Shikshak Sangh v. State of Uttar Pradesh - without insisting upon the reserve pool teachers being made respondents to that writ petition or at least some of them being made respondents thereto in a representative capacity as the number of the reserve pool teachers was too large and, had the petitioners refused to do so, to dismiss that writ petition for non- joinder of necessary parties."
(28) On perusal of the aforesaid dictum of the Apex Court, it is crystal clear that the Apex Court had opined that when the constitutional validity of a provision is challenged and there are beneficiaries of the said provision, some of them in a representative capacity have to be made parties failing which the writ court would not be justified in hearing a writ petition in the absence of the selected candidates when they are already appointed on the basis of the provision which was under assail before the Writ Court.
(29) On a perusal of the order impugned, we find that only 13 persons were made respondents in the writ petitions. It is well settled in law that no adverse order can be passed against persons who were not made parties to the litigation.
(30) In the case at hand neither any rule nor regulation was challenged. Thirteen persons, who were impleaded, were not treated to be in the representative capacity. In this regard, it is profitable to refer to some authorities.
(31) In Indu Shekhar Singh and others v. State of U.P. and others : 2006 (8) SCC 129, the Apex Court has held thus: -
"There is another aspect of the matter. The appellants herein were not joined as parties in the writ petition filed by the respondents. In their absence, the High Court could not have determined the question of inter se seniority."
(32) In Km. Rashmi Mishra v. M.P. Public Service Commission and others : (2006) 12 SCC 724, after referring to Prabodh Verma (supra) and Indu Shekhar Singh (supra), the Apex Court took note of the fact that when no steps had been taken in terms of Order 1 Rule 8 of the Code of Civil Procedure or the principles analogous thereto, all the seventeen selected candidates were necessary parties in the writ petition. It was further observed that the number of selected candidates was not many and there was no difficulty for the appellant to implead them as parties in the proceeding. Ultimately, the Apex Court held that when all the selected candidates were not impleaded as parties to the writ petition, no relief could be granted to the appellant therein.
(33) In Tridip Kumar Dingal and others v. State of West Bengal and others : (2008) 1 SCC 768, the Apex Court approved the view expressed by the tribunal which had opined that for absence of selected and appointed candidates and without affording an opportunity of hearing to them, the selection could not be set aside. In paragraph-41, the Apex Court has held as under :-
"Regarding protection granted to 66 candidates, from the record it is clear that their names were sponsored by the Employment Exchange, they were selected and appointed in 1998-99. The candidates who were unable to get themselves selected who raised a grievance and made a complaint before the Tribunal by filing applications ought to have joined them (selected candidates) as respondents in the Original Application, which was not done. In any case, some of them ought to have been arrayed as respondents in a `representative capacity'. That was also not done. The Tribunal was, therefore, wholly right in holding that in absence of selected and appointed candidates and without affording opportunity of hearing to them, their selection could not be set aside."
(34) In Public Service Commission, Uttaranchal v. Mamta Bisht and others : AIR 2010 SC 2613, the Apex Court, while dealing with the concept of necessary parties and the effect of non-implementation of such a party in the matter when the selection process is assailed, observed thus: -
"In case the respondent No.1 wanted her selection against the reserved category vacancy, the last selected candidate in that category was a necessary party and without impleading her, the writ petition could not have been entertained by the High Court in view of the law laid down by nearly a Constitution Bench of this Court in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar & Anr., AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called CPC) provide that non- joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh Vs. State of Gujarat; AIR 1965 SC 1153; Babubhai Muljibhai Patel Vs. Nandlal, Khodidas Barat & Ors., AIR 1974 SC 2105; and Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior & Ors. AIR 1987 SC 88)"
(35) In Vijay Kumar Kaul and Ors. v. Union of India and Ors. : 2008 (6) SCC 797, the Apex Court has ruled thus:
"Another aspect needs to be highlighted. Neither before the Tribunal nor before the High Court, Parveen Kumar and others were arrayed as parties. There is no dispute over the factum that they are senior to the Appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant."
(36) In State of Rajasthan v. Ucchab Lal Chhanwal : (2014) 1 SCC 144, the Apex Court opined that: -
"Despite the indefatigable effort, we are not persuaded to accept the aforesaid preponement, for once the Respondents are promoted, the juniors who have been promoted earlier would become juniors in the promotional cadre, and they being not arrayed as parties in the lis, an adverse order cannot be passed against them as that would go against the basic tenet of the principles of natural justice."
(37) In view of the aforesaid enunciation of law, it is crystal clear that in such a case when all the appointees were not impleaded, the writ petition was defective and hence, no relief could have been granted to the writ petitioners.
(38) In the instant case, undisputed facts are that prior to passing of the impugned judgment under appeal, no advertisement or publication was issued regarding the institution of the aforesaid writ petitions. Thus, it is clear that the judgment under appeal has been passed without granting opportunity to the necessary parties to a lis to come and defend themselves.
(39) At this stage, it would be relevant to reproduce Order I Rule 8 of the Code of Civil Procedure, which is as under :-
"Rule 8 - One Person May Sue Or Defend On Behalf Of All In Same Interest.- (1) Where there are numerous persons having the same interest in one suit,-
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation.-For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the person on whom behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.]"
(40) Considering the aforesaid facts, it is noted here that the provisions of Order I Rule 8 of the Code of Civil Procedure have not been complied with by the writ petitioners. Thus, we are of the considered view that impugned order under appeal is liable to be dismissed on the ground of non-joinder of the parties in the writ petitions.
(41) However, since the dispute relating to seniority and promotion is pending for quite long time before this Court, therefore, with the consent of the learned Counsel for the parties, now we proceed to hear the matter on merits also.
(42) Before adverting to the rival submissions, it would be apt to have a glance to the relevant statutes/statutory provisions, dealing with the recruitment and appointment as also the conditions of service of Police Officers of subordinate rank in U.P. Police Force.
(43) The Full Bench of this Court in State of U.P. and others Vs. Rajendra Singh and others : 2015 (4) ADJ 575 (LB) (FB) has held in para-25, 33 and 42 as under :-
"25. Now, it is in this background that we must have due regard to the applicability of the rules framed under Article 309 of the Constitution to the police force. Before we do so, it is necessary to recapitulate that Section 2 of the Police Act mandates that the entire police establishment under a State Government is deemed to be one police force for the purposes of the Act. The force is to be formally enrolled and is to consist of such number of officers and men, and shall be constituted in such manner, as shall from time to time be ordered by the State Government. Moreover, the pay and all other conditions of service of the members of subordinate ranks of the police force shall be such as may be determined by the State Government subject to the provisions of the Act. Three aspects of the provision stand out. The first is that for the purposes of the Act, the entire police establishment under a State Government is deemed to be one police force. The second is that the State Government is empowered, from time to time, to order the formal enrolment of the force, the strength of the force consisting of officers and men and the manner in which the force shall be constituted. The third aspect is that the pay and all other conditions of service of members of the subordinate ranks of the police force are to be such as is determined by the State Government subject, however, to the provisions of the Act. Under Section 7, the power to dismiss, suspend or reduce any police officer of the subordinate ranks is subject to Article 311 of the Constitution and to such rules as the State Government may, from time to time, make under the provisions of the Act. A specific rule-making power is conferred upon the State Government by Section 46 (2) (c) generally for giving effect to the provisions of the Act. The decision of the Constitution Bench in Babu Ram Upadhya (supra) holds that the Police Act and the rules framed under it constitute a self-contained Code."
"33. The judgment in A B Krishna (supra) was followed by another Bench of two learned Judges of the Supreme Court in Chandra Prakash Tiwari (supra). This judgment specifically dealt with the rules framed by the Governor of Uttar Pradesh under Article 309 of the Constitution and their applicability in view of an order which was made in pursuance of the Police Act. On 5 November 1965, the Governor issued a direction to the effect that promotions from the post of Sub Inspectors to Inspectors would be made on the basis of merit. Under the Uttar Pradesh Government Service (Criterion for Recruitment by Promotion) Rules, 1994 framed by the Governor under the proviso to Article 309 of the Constitution, the criterion for promotion was seniority subject to rejection of the unfit. The Supreme Court, after adverting to the earlier decision in A B Krishna, held that the Police Act was a complete Code in itself which had made special statutory provisions for appointment, dismissal, placement and all other steps required to reorganise the police and to make it a more efficient instrument for the prevention and detection of crime. The Supreme Court held that unless the specific provisions contained in the Government Order dated 5 November 1961 which have been framed under the provisions of the Police Act was repealed, the general rules framed under Article 309 of the Constitution would not prevail. In that context, the Supreme Court observed as follows:
"On a conspectus of the whole issue, it is thus difficult to comprehend that the General Rule framed under Article 309 should or would also govern the existing special rules concerning the police rules. Admittedly, the guidelines as contained in the Government Order dated 5.11.1965 have been under and in terms of the provisions of the Police Act. There is special conferment of power for framing of Rules dealt with more fully herein before, which would prevail over any other Rule. Since no other rule stands formulated and the Government Order of 1965 being taken as the existing rule pertaining to the subject matter presently under consideration with recent guide-lines as noted above, its applicability cannot be doubted. Unless the General Rule specifically repeal the effectiveness of the special rules, question of the latter rule becoming ineffective or inoperative would not arise. In order to be effective, an express mention is required rather an imaginary repeal. It is now a well settled principle of law for which no relation is further required that law Courts rather loath repeal by implication. The General Rule framed under Article 309 has been for all State Government officials on and since 1994. List II (State List) of the 7th Schedule specially refers to the powers of the State Legislature to frame Rules specially for the Police. In this context Item 2 thereof would be significant which reads as follows:
"List II-State List"
"2 Police (including railway and village police) subject to the provisions of entry 2A of List I."
Police force admittedly has a special significance in the administration of the State and the intent of the framers of our Constitution to empower the State Government to make rules there-for has its due significance rather than being governed under a general omnibus rule framed under the provisions under Article 309. When there is a specific provision unless there is a specific repeal of the existing law, question of an implied repeal would not arise..."
"42. Insofar as the present controversy is concerned, it would now be necessary for the Court to formulate the basic principles which have emerged on the subject:
(i) The Police Act 1861 and the Rules framed under it constitute a self-contained Code and by virtue of the provisions of Article 313 of the Constitution, the Act and the Rules continue to remain in force, under Article 313 of the Constitution;
(ii) Rules and Government Orders referable to a specific source of power under the Police Act 1861 such as Section 2 or, as the case may be, Section 46 (2) (c) would continue to hold the field and would not be abrogated merely by the exercise of the general rule-making power conferred by the proviso to Article 309 of the Constitution;
(iii) Under the proviso to Article 309, rules regulating the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the Union and of the States can be made until a provision in that behalf is made by or under legislative enactment of the appropriate legislature. Any rule so made will have effect subject to the provisions of the Act;
(iv) When there is a specific provision, unless there is a specific repeal of the existing law, the question of an implied repeal would not arise;
(v) The rules framed under the proviso to Article 309 of the Constitution would apply, generally speaking to Government servants appointed in connection with the affairs of the Union or, as the case may be, the States but the police force would be governed by the provisions of the Police Act 1861 and by the rules and administrative determinations referable to a specific source of power under the Police Act 1861;
(vi) Under Section 2 of the Police Act 1861, the State Government has been vested with power to determine the pay and all other conditions of service of members of the subordinate ranks of the police force. The determination within the meaning of Section 2 may be both by means of the exercise of the rule-making power as well as by an administrative direction. The Police Act 1861, being a complete Code as enunciated by the Constitution Bench of the Supreme Court, it occupies the entire field of the determination of service conditions. The power to determine all the conditions of service of members of the subordinate ranks of the police force is vested with the state government. The state government has the rule making power under Section 46 (2) (c) to carry out the purposes of the Act by framing rules;
(vii) Once a self-contained Code in the form of the Police Act has been enacted by the legislature and its continuance after the adoption of the Constitution is ensured by Article 313 and Article 372 of the Constitution, the field relating to recruitment and conditions of service of members of the police force in the State stands occupied by the legislation. Any rule or order relating to the determination of the conditions of service of the police force can be made only under the provisions of the Police Act or by the legislation enacted by the State legislature governing the service conditions of the police force. Section 2, Section 7 and Section 46 of the Police Act clearly evince an intent of the legislature to occupy the whole of the field relating to conditions of service of the police force;
(viii) The ratio of the decision of the Supreme Court in A B Krishna's case is that if the legislature has already made a law and the field is occupied, in such a situation, rules can be made under the law enacted by the legislature and not under Article 309;
(ix) The rules framed under a legislative enactment constitute delegated or subordinate legislation. The rules made under Article 309 are not of that nature. The rules which have been framed under Article 309 and the rules under an enactment of the state legislature are referable to two distinct sources of power. The rules made under the proviso to Article 309 are intended to deal with a situation where the President or the Governor, as the case may be, may regulate the recruitment and conditions of service of persons appointed to services and posts in connection with the affairs of the Union or, as the case may be, of the States until a provision in that behalf is made under an Act of the appropriate legislature under the Article. Though, the authority to frame rules in Article 309 vests with the Governor while the authority to frame subordinate legislation under the state enactment is vested with the State Government, the two jurisdictions are entirely different. One is referable to a transitional power which is vested in the President or the Governor, as the case may be, under the proviso to Article 309 while the other is traceable to the substantive power to frame subordinate legislation which is delegated to the State Government under a legislative enactment. Once a law has been enacted by the competent legislature and particularly in a situation where legislation, such as the Police Act is construed as a complete Code, it constitutes special statute governing the police force incorporating within its field, matters relating to appointment, dismissal, placement and all other steps required to reorganise the police and make it a more effective instrument for the prevention and detection of crime, as was held in Chandra Prakash Tiwari's case by the Supreme Court;
(x) In Chandra Prakash Tiwari, the Supreme Court after considering the consistent position of the State Department of Home, held that 'by reasons of the provisions of a special statute, namely, the Police Act read with the authorization contained therein by way of executive order, the Governor of Uttar Pradesh obviously did not in fact intend to apply the general law to all and sundry'16. In this background, it has been held that unless the general rules which are framed under Article 309 of the Constitution specifically repeal the special rules and unless there is a specific repeal of the existing law, the question of an implied repeal would not arise. The rules framed under Article 309 are for Government servants in general while the police force would be guided by the provisions of the Police Act. This interpretation which has been placed by the Supreme Court has been held to be consistent with the position adopted in inter-ministerial correspondence of the State Government; and
(xi) The decision in Chandra Prakash Tiwari's case specifically deals with the Police Act and the applicability of the Rules framed under the proviso to Article 309 to members of the police force in the State of Uttar Pradesh. This decision of the Supreme Court has been duly followed by the Full Bench of this Court in Vijai Singh (supra) while holding that since the field of regulation of service conditions of members of the police force is occupied by the provisions of the Police Act and it continues to be in operation under Article 313, the Rules framed under Article 309 would not be attracted."
(44) From the aforesaid, it is crystal clear that the Police Act, 1861 is a special statute and a complete code.
(45) At the cost of repetition, it is relevant to mention here that selection of Inspectors in Uttar Pradesh stands effected on the basis of merit arranged in order of seniority and the Government Order dated 5.11.1965 being the background thereto. Thereafter, for the purpose of promotion from the post of Sub-Inspector (Civil Police) to Inspector, a Committee was constituted vide order dated 29.10.1983. Under Section 46 of Police Act, 1861, power to frame Rules has been conferred upon State Government.
(46) It is not disputed by the parties that till 2008 there were no Rules framed under Section 2 read with Section 46 of Act, 1861 so as to govern the matter of recruitment and appointment of Police Officers of subordinate rank, i.e. Constables, Head Constables and Sub-Inspectors. The entire matter earlier used to be governed by various orders issued by State Government from time to time which were considered to be "Statutory Orders" issued/ referable under/to Section 2 of Act, 1861.
(47) It is in this context, an Office Memorandum dated 3.2.1994 was issued by Principal Secretary (Home). This Office Memorandum was in reference to the appointment of a Police Inspector/ Company Commander on a non cadre post of Deputy Superintendent of Police where such Police Inspector/Company Commander P.A.C. has shown an act of exemplary courage and gallantry. Conditions on which such appointment against a non cadre post of Deputy Superintendent of Police, was permissible, provided in the Office Memorandum dated 03.02.1994.
(48) On the same date, i.e., 3.2.1994 another Government Order No. 605 ¼11½ N&iq&1&24@93 was issued by Principal Secretary (Home) providing for a similar ex cadre "Out of Turn" promotion to Constables and Sub-Inspectors/Platoon Commander on the post of Head Constable and Inspector/ Company Commander respectively. The conditions of such appointment are similar to the earlier Government Order except for the difference of designations of post and rank.
(49) The aforesaid Government Orders being orders relating to recruitment and conditions of service of Police Officers of subordinate rank, hence statutory by virtue of Section 2 of the Police Act, 1861.
(50) Thereafter, the Inspector General of Police has issued a Circular on 10.02.1994 laying down the procedure with regard to cash reward and out of turn promotion . This Circular dated 10.02.1994 was not under Section 12 of the Police Act, 1861 as it was not approved by the State Government.
(51) Subsequently, the aforesaid Government Order dated 3.2.1994 was modified in respect of Constable by Government Order dated 02.01.1998. On 01.05.1999, another Government Order was issued, in which it was provided that out of turn promotion would be made against the vacant posts in the cadre, which will be treated as ex cadre promotion and no benefit of the same will be admissible in the fixation of seniority. It was also provided in paragraph-2 of the aforesaid Government Order dated 01.05.1999 that such promotions should not be more than 2% in the year. Another Government Order dated 07.06.2014 was issued by the State Government, whereby the Government Order dated 03.02.1994, which was related to ex cadre out of turn promotees of non-gazetted staff of the police department was cancelled and consequently, a decision was taken by the State Government to reward the non-gazetted staff of the police department who had shown exemplary courage, with the police medal, Chief Minister's appreciation letter and Rs.25,000/- cash reward instead of out of turn promotion in terms of the Government Order dated 07.06.2014. On 14.08.2014, the Director General of Police, U.P. has issued a circular with regard to the Government Order dated 07.06.2014.
(52) Thereafter, another Government Order dated 23.07.2015 was issued, whereby decision was taken by the State Government to give seniority to the ex cadre out of turn promotee non-gazetted police officers/employees.
(53) Thereafter, the Director General of Police (Establishment), Uttar Pradesh, Lucknow has issued the consequential order on 29.07.2015 in regard to Government Order dated 23.07.2015.
(54) It transpires from the aforesaid Government Orders that the State Government, while exercising the powers enshrined to it under Section 2 of the Police Act, 1861, issued order dated 03.02.1994, which shows that those Constables and Sub-Inspectors/Platoon Commanders, who have shown exemplary courage, be given appointment from the post of Constable to Head Constable and from the post of Sub-Inspector and Platoon Commander to Inspector/Company Commander on ex cadre posts. In the aforesaid Government Order dated 03.02.1994, it was clearly provided that for each year, such ex cadre posts would be created by the State Government on the proposal of Inspector General of Police, Lucknow. This Government Order dated 03.02.1994 has overriding effect over any other existing orders. The Government Order dated 03.02.1994 also contemplates that the promotions would be made on ex cadre posts, which were to be sanctioned by the State Government for the said purpose every year, however, no such posts were ever created and out of turn promotions were made on cadre posts of Inspectors and Head Constables, respectively.
(55) On 01.05.1999, the State Government had issued another statutory order referable to Section 2 of the Police Act, 1861, by which it transpires that out of turn promotions would be against the vacancies existing in the cadre, however, it would be on ex cadre basis and its benefit will not be available for the purposes of determination of seniority.
(56) It is relevant to mention here that Section 46 (2) of the Police Act, 1861 provides that the State Government may, from time to time, by notification in the official gazette, make Rules consistent with the Act. Enrolment/recruitment of police personnel or anything related to police personnel or anything related to that which is not provided under Section 46 (2) of the Police Act, 1861. Therefore, Section 2 of the Police Act, 1861 is the exclusive provision empowering the State to issue Government Orders from time to time for enrollment of police personnel and constitution of police force.
(57) It is not in dispute that at the time of issuance of statutory orders dated 03.02.1994 and 01.05.1999, there were no service rules framed under Section 2 of the Police Act read with Section 46 of the Police Act, 1861 so as to govern the matter of recruitment and appointment of Police Officers of subordinate ranks i.e. Constables, Head Constables and Sub-Inspectors. The entire matter earlier used to be governed by various orders issued by the State Government from time to time which were considered to be ''Statutory Orders' issued/referable under/to Section 2 of the Police Act, 1861.
(58) Here, it is relevant to mention that both orders under Section 2 of the Police Act, 1861 and rules framed under Section 46-2 (c) of the Police Act, 1861 have statutory origin and none is subordinate to the other.
(59) At this juncture, it would be apt to mention here that the Full Bench of this Court in Vijay Singh Vs. State of U.P. : 2005 (2) AWC 1191 (FB), while considering the dictum of the Apex Court rendered in various cases, has held that the legislature, while enacting the provisions of Section 2 of the Act, 1861 itself delegated the power to the statutory authorities to fix the eligibility including the age etc. and statutory authorities had performed their duties in exercise of the delegated powers from time to time without any deviation therefrom. Paras-61, 62, 63, 64 are reproduced as under :-
"61. It may be pertinent thereto that observation made by the Hon'ble Supreme Court in Ajay Kumar Bhuyan (supra) that unless the orders issued by the Government are published in the Official Gazette cannot be given effect to, are not applicable here as Section 2 of the Act, 1861 does not provide for it and Rules framed Under Section 46(2) of the Act, 1861 have to be published in the Official Gazette. More so, the Kerala Act provided for publication of orders in the State's Official Gazette.
62. Purpose of publication is to make the people aware of the law. The issue as to whether in every case, the law requires to be published in the Official Gazette, came for consideration before the Hon'ble Supreme Court in B.K. Srinivasan v. State of Karnataka : [1987] 1 SCC 658. The Court held as under :
"Where the parent Statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent Statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a made of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication.There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient. [Narayana Reddy v. State of A.P. : (1969) 1 Andh WR 77]."
63. So far as the police service is concerned, admittedly, it does not concern the masses. It may be relevant for those only, who have attained eligibility and went to join police service. Government Orders issued Under Section 2 of the Act, 1861 have never been published in the Official Gazette rather have always been published in the Police Gazette. Thus, we do not find any force in the submissions made by Mr. Chaudhary that Government Orders so issued can not be given effect to for want of publication in the Official Gazette.
64. In the view of the above, we reach the inescapable conclusion that statutory rules cannot be set at naught by issuing executive instructions. But the facts of the instant case do no make the said proposition of law applicable at all. As herein the field is already occupied by the provisions of Act, 1861 which is in operation by virtue of the provisions of Article 313 of the Constitution, thus. Rules, 1972 could not be attracted at all. The Government Orders issued for fixing the maximum age for recruitment on subordinate police posts operate in an entirely different field and are not in conflict with the Rules, 1972. The case stands squarely covered by the Apex Court judgment in Chandra Prakash Tiwari (supra) and, thus, it is not possible for us to take any other view. The main submissions made by Mr. Chaudhary that Pre-Constitutional law stands abrogated altogether by commencement of the Rules, 1972, is devoid of any merit. Therefore; our answer to question No. 1 is that the field stood occupied on account of the provisions of Section 2 of the Act, 1961. The Legislature while enacting the provisions of Section 2 of Act, 1961 itself delegated the power to the statutory authorities to fix the eligibility including the age etc, The statutory authorities had performed their duties in exercise of the delegated powers from time to time without any deviation therefrom.
65. In such facts and circumstances, there was no occasion for His Excellency, the Governor to frame the Rules under the proviso to Article 309 of the Constitution, also applicable in the case of recruitment of subordinate police officers."
(60) From the aforesaid Government Orders dated 05.11.1965, 29.08.1983 and 24.07.2003, it transpires that these Government Orders were provided selection process for normal promotion of the Sub-Inspectors to the rank of Inspectors. These Government Orders have been issued under Section 2 of the Police Act, 1861 and were having statutory force, hence they are having mandatory and binding effect as these are termed as statutory orders.
(61) The Government Order dated 03.02.1994 shows that this Government Order relates to out of turn promotion of the Sub-Inspector to the post of Inspector and the ground for such out of promotion was the indomitable courage shown by the Sub-Inspectors in discharge of their duties. This Government Order is also referable to Section 2 of the Police Act, 1861. Vide circular dated 10.02.1994 issued by the Director General of Police, Uttar Pradesh in pursuance of the statutory Government Order dated 03.02.1994, a complete mechanism/procedure was provided for out of turn promotion. The Government Order dated 03.02.1994 does not contemplate merely courage rather indomitable courage for grant of out of turn promotion. For an act of bravery, a police officer can be rewarded according to Chapter XXXI of the Police Regulations, but the Government Order dated 03.02.1994 required something more than good work and bravery.
(62) It is not disputed by the parties that Government Orders 05.11.1965, 29.08.1983 and 24.07.2003 are referable to the same source i.e. Section 2 of the Police Act, 1861 and further statutory order dated 03.02.1994 continuously remain in existence from 03.02.1994 till 07.06.2014 and all these Government Orders were co-existing as they were operating in different field providing for different contingencies.
(63) It is also not in dispute that under Section 2 of the Police Act, 1861, the State Government has been vested with power to determine the pay and all other conditions of service of members of the subordinate ranks of the police force. The determination within the meaning of Section 2 may be both by means of the exercise of the rule-making power as well as by an administrative direction. Thus, the Police Act, 1861 being a complete code and it occupies the entire filed of the determination of service condition. The power to determine all the conditions of service of member of the subordinate ranks of the police force is vested with the State Government and the State Government has the rule making power under Section 46 (2) (c) of the Police Act, 1861 to carry out the purposes of the Act by framing rules.
(64) From perusal of the impugned order dated 20.02.2019, it transpires that the learned Single Judge has not considered the object of the Government Order dated 03.02.1994, its source, its nature etc., hence the nature of the appointment of the appellants by way of out of turn promotion appears to be not tested by the learned Single Judge while passing the impugned order dated 03.02.1994. It appears that the learned Single Judge, while passing the judgment and order dated 20.02.2019, has laid much emphasis upon Uttar Pradesh Sub-Inspectors and Inspector (Civil Police) Service Rules, 2008 and not considered the statutory Government Orders, as referred to hereinabove, which have been issued under Section 2 read with Section 46 (2) of the Police Act, 1861.
(65) Rule 28 of the Rules, 2008 empowers the State Government to grant relaxation from the conditions of service, if it is satisfied that operation of any rule, regulating the condition of service of persons appointed to the service cause undue hardship in any particular case, it may notwithstanding anything contained in the Rules applicable to the case, by order dispense with or relax the requirement of that rule to such extent and subject to such condition as it may consider necessary for dealing with the cases in just and equitable manner. Rule 30 of the Rules, 2008 grants overriding effect to the said rules notwithstanding anything contrary contained in any other rules, Government Order or administrative instructions made or issued by the State Government and further sub-rule 4 of Rule 30 also provides that notwithstanding such recission, the benefit of seniority and conformation etc. granted before 02.12.2008 under the prevalent rules, government orders or administrative instructions shall not be withdrawn.
(66) At the cost of repetition, it is apt to mention that on 07.04.2014, the State Government issued order under Section 2 of the Police Act, 1861, by which the mechanism of out of turn promotion was done away with and in its place, other arrangements, namely, cash, reward and grant of medals was brought into force, as such, prior to 07.06.2014, the Government Order dated 03.02.1994 and 01.05.1999 was being applied for granting out of turn promotion on cadre posts on personnel, who had shown exemplary courage, while carrying out their duties.
(67) It appears that in order to rectify the anomaly created vide earlier order dated 01.05.1999, by which although promotions would be made on cadre post but the same would be treated ex cadre and the same would not confer any benefit for determination of seniority and also considering the aforesaid order dated 07.06.2014 for rescinding its policy of granting out of turn promotion, the State Government, in exercise of powers available to it under Section 2 of the Police Act, 1861, issued an order dated 23.07.2015, rectifying the said seniority anomaly, by which the earlier order dated 01.05.1999 was rescinded with immediate effect and it was provided that 990 non-gazetted Police Officers/Employees, who had been granted out of turn promotion w.e.f. 1994 till 2014, their probation shall be counted w.e.f. their date of out of turn promotion. This order dated 23.07.2015 was challenged by the writ petitioners inter alia on the ground that the same has been issued in violation of the provisions of Rules, 2008 and operation of which would cause them undue hardship, since the out of turn promotees would be placed higher in rank in the seniority list.
(68) In Praful Kumar Das Vs. State of Orissa (Supra), the Constitution Bench of this Court has held that the seniority is a civil right available to the Government Servant to be determined by the policy of the employer and further it is always open for the employer/State Government to amend/modify its policy and thus, there is no vested right available to a Government Servant if such policy is changed.
(69) Rule 3 (i) of Rules, 2008 has clearly provided that any person substantively appointed under the orders enforced prior to the commencement of these Rules to a post of Cadre of the Service shall be deemed to be substantively appointed in service. The word ''substantive appointment' defined in Rule 3(m) of Rules, 2008, which clearly provided that substantive appointment means an appointment, not being ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government. Sub-Rule 2 of Rule 19 of the Rules, 2008 provides that any person appointed to a post in the service prior to commencement of Rules, 2008 and was working on the post shall be deemed to be substantively appointed under the said Rules. ''Cadre of service' has been defined in Rule 4 of the Rules, 2008, which lays down that the strength of service and of each category of service therein shall be such as may be determined by the Government from time to time.
(70) The question before the learned Single Judge in the writ petitions was that whether the Government Order dated 23.07.2015 and the seniority list of Inspectors in civil police dated 24.02.2016 are legal and valid or they are arbitrary, illegal and unjust.
(71) It transpires from the record that out of turn promotions have been granted to the private respondents on the ex cadre posts of Inspectors in pursuance to the Government Order dated 03.02.1994 for showing exemplary courage and gallantry by them. It is not in dispute that the Government Order dated 03.02.1994 has been issued by the State Government in exercise of power available to it under Section 2 of the Act, 1861. This Government Order dated 03.02.1994 contemplated that the promotions would be made on ex cadre posts, which were to be sanctioned by the State Government for the said purpose every year, however, no such post were ever created and the out of turn promotions were made on cadre posts of Inspectors and Head Constables, respectively. Subsequently, the State Government on 01.05.1999 issued another statutory order referable to Section 2 of the Act, 1861, which laid down that out of turn promotions would be against the vacancies existing in the cadre, however, promotion would be treated ex cadre and its benefit will not be available for the purpose of determination of seniority.
(72) It is not in dispute that at the time of issuance of the aforesaid statutory orders i.e. 03.02.1994 and 01.05.1999, there were no service rules framed by the State Government under sub-section 2 (c) of Section 46 of the Police Act, 1861. Thus, all the out of turn promotions were promoted on cadre posts and the said promotions were made by the State Government in accordance with the Government Orders, which were issued in exercise of the statutory powers available to it under the provisions of Police Act, 1861. In these backdrops of the matter, is appears that promotion of the appellants were made in accordance with the procedure then prevailing in law and were made on cadre posts.
(73) A bare reading of Rule 3 (i), 3 (l) and 3 (m) of Rules, 2008 and on considering the fact that out of turn promotees were appointed on cadre posts as per the then existing procedure issued by the State Government under the provisions of Police Act, 1861, it transpires that such out of turn promotees were member of the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service having been substantively appointed on a cadre post prior to the issuance of the Rules, 2008 and after the advent of the Rules, 2008, they continued in the said capacity.
(74) On 07.06.2014, the State Government issued an order under Section 2 of the Police Act, 1861, by which the mechanism of out of turn promotion was rescinded and in its place, other arrangements, namely, cash reward and grant of medals was brought into force. Hence, prior to 07.06.2014, the Government Orders dated 03.02.1994 and 01.05.1999 were being applied for granting out of turn promotion on cadre posts of personnel who had shown exemplary courage, while carrying out their duties. It appears that once the State Government on 07.06.2014 took a decision of rescinding its policy of granting out of turn promotion and replacing the same with the other arrangement, the State Government in order to rectify the anomaly created vide order dated 01.05.1999, which provided that although promotions would be made on cadre post, the same would be treated ex cadre and the same would not confer any benefit for determination of seniority, issued the order dated 23.07.2015 rectifying the said anomaly by which earlier order dated 01.05.1999 was rescinded with immediate effect and it was provided that 990 Non-Gazetted Police Officers/employees who had been granted out of turn promotion w.e.f. 1994 till 2014, their probation shall be counted with effect from their date of out of turn promotion. This Government Order dated 23.07.2015 were challenged by the writ petitioners/private respondents before the learned Single Judge.
(75) It transpires from the impugned judgment and order dated 20.02.2019 that the learned Single Judge, while considering Rules, 2008, has not taken into consideration the meaning of term ''members of service', which has been defined in Rule 3 (i) of the Rules, 2008. Further, the learned Single Judge, though considered Rule 3 (m) of the Rules, 2008 but part which was conjuncted after the word ''and' i.e. ''and if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government' has not been taken into account and the part which has highlighted in the bold in para-7 of the impugned judgment i.e. ''on a post in the cadre of the service' has only been considered. It also transpires that proviso to sub-rule 2 of Rule 19 of the Rules, 2008 has also not been taken into consideration, which specifically provided that any person appointed to a post in the service prior to commencement of the Rules, 2008 and was working on the post shall be deemed to be substantively appointed under the said Rules. The learned Single Judge has also lost sight of the sub-rule (4) of Rule 30, which categorically provided that notwithstanding such recission, the benefit of selection, promotion, training, appointment, determination of seniority and confirmation etc. granted before 02.12.2018 (the date on which Rules, 2008 came into force) under the prevalent rules, Government Orders or Administrative instructions shall not be withdrawn. The learned Single Judge has also not considered the policy decision as contemplated under Government Order dated 07.06.2014.
(76) It reveals from perusal of Rule 3 (i) and 3 (n) of the Rules, 2015 that it provides for the term of members of the service and substantive appointment, whereas Rule 18 (2) of the Rules, 2015 provides that if more than one order of appointment are issued in respect of any one selection under Rule-17, then a combined order shall also be issued, mentioning the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted. Proviso to sub-rule 2 of Rule 18 provides that any person appointed before the commencement of these rules to a post under the service and working on that post shall be deemed to have been substantively appointed under these rules and such substantive appointment shall be deemed to have been made under these rules.
(77) In the instant case, there are two classes i.e. (1) out of turn promotee cadre; (2) direct recruitee cadre. These two classes were subsequently merged into one class of cadre. However, a dispute arose. Direct recruitee/private respondents have claimed that they are senior to the out of turn promotee cadre, whereas out of turn promotee cadre/appellants claims that as they are being working since the date of giving out of turn promotion on the strength of the statutory orders which have been issued in terms of Section 2 of the Police Act, 1861, therefore, the policy decision taken by the State Government vide order dated 23.07.2015 and the consequential orders are perfectly justifiable.
(78) At this juncture, it is relevant to add that the issue of merger of cadres has been examined by the Apex Court repeatedly and it has been laid down as a principle of law that merger of cadre and the matter of creation of post is a prerogative of the State policy. It is always open to the State Government to create post or merge the cadres. No employee has the right to object to the merger/integration of the cadre of different departments on the ground that it will adversely affect the prospects of promotion or cover other service benefits. The Apex Court in Shivprasad Pipal Vs. Union of India and others : (1998) 4 SCC 598, after re-emphasising that merger of cadre was essentially a matter of policy went on to lay down certain guidelines, which had to be observed before any decision to merge the cadres can be said to be a valid merger. Paragraphs 4 and 5 of the aforesaid report is reproduced as under :-
"4.However, when different cadres are merged certain principles have to be borne in mind. These principles were enunciated in the case of State of Maharashtra and Anr. V. Chandrakant Anant Kulkarni & Ors. (1982 1 SCR 665 at page 678) while considering the question of integration of government servants allotted to the services of the new States when the different States of India were reorganised. This Court cited with approval the principles which had been formulated for effecting integration of services of different States. These principles are: In the matter of equation of posts, (1) where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis but (2) where there were no such similar cadres, the following factors will be taken into consideration in determining the equation of posts:-
(a) Nature and duties of a post;
(b) Powers exercised by the officers holding a post the extent of territorial or other charge held or responsibilities discharged;
(c) The minimum qualifications, if any, prescribed for recruitment to the post and;
(d) the salary of the post.
5. This court further observed that it is not open to the court to consider whether the equation of posts made by the central Government is right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps the only question the Court can enquire into is whether the four principles cited above had been properly taken into account. This is the narrow and limited field within which the supervisory jurisdiction of the Court can operate."
(79) Keeping in mind the aforesaid dictum of the Apex Court, we find herein that before and after the merger of two cadres into one cadre, nature and duties of the post in question are more or less identical. Furthermore, the qualifications prescribed for appointment on the post in question on the date the private respondents and appellants were appointed, were the same. The appellant's date of substantive appointment on the post in question is admittedly prior in the point of time to that of the private respondents.
(80) Now, the issue is as to what place is to be assigned to the officers, who are earlier ex cadre and have been subsequently merged with another cadre in the facts of the case in the cadre posts covered by Rules, 2008 and Rules 2015.
(81) In the case of S. Sivaguru Vs. State of Tamil Nadu : (2013) 7 SCC 335the Apex Court in paragraphs 60, 72, 72.7 & 72.9 has held as follows :
"60. Upon merger of the two posts, it was no longer permissible to treat the re-designated Health Inspector Grade IA differently from Health Inspector Grade IB. Since 1997, all incumbents on the posts of Health Inspector Grade IA and Health Inspector Grade IB were performing the same duties. There was intermixing of the duties performed by the two categories of the Health Inspector Grade IA and IB. Both the posts had lost their original identity since 27th June, 1997, and formed one homogenous cadre. Further, having relaxed the qualifications on the basis of their length of service and experience, they were at par with the Health Inspector Grade IA. Thereafter, the State was not justified in denying to the erstwhile Health Inspector Grade IB, the same treatment as was given to Health Inspector Grade IA. Therefore, the Respondents could not have been denied the benefit of service on the post of Health Inspector Grade I from the date of the initial integration. It would be appropriate to notice the ratio of law laid down in the case of Sub-Inspector Rooplal (supra), wherein it was inter-alia held that the previous service of the transferred officials who are absorbed in an equivalent cadre in the transferred post is permitted to be counted for the purpose of determination of seniority. It would be appropriate to notice here that Leprosy Inspectors re-designated as Health Inspector Grade IB have not been granted the benefit of seniority in their cadre from the date of their initial appointment. They have been deprived of their service on the post of Leprosy Inspector upto 27th June, 1997 when they were integrated and re-designated as Health Inspector Grade IB. However, upon merger w.e.f. 27th June, 1997, there was no distinction in the services rendered by Health Inspector Grade IA and Health Inspector Grade IB. Therefore, in our opinion, the provision in G.O. (MS) No. 382 of 2007 not to grant the Health Inspectors Grade IB/erstwhile Leprosy Inspectors the benefit of the service from 1997 for determination of their seniority for promotion to the post of Block Health Supervisor was completely unjustified.
72. At this stage, we may summarise the conclusions recorded by us in the following manner:
72.7 The denial of seniority to the redesignated Health Inspectors Grade IB i.e. Erstwhile Leprosy Inspectors on the post of Health Inspector Grade I w.e.f. 1-8-1997 to 12-10-2007 violated Articles 14 and 16 of the Constitution of India. The Division Bench of the High Court has correctly concluded that the integrated Leprosy Inspectors, redesignated as Health Inspector Grade IB are to be redesignated as Health Inspector Grade I and to be given seniority as well as consequential reliefs such as seniority and further promotions.
72.9 The continuance of the existing promotion channels as Non-Medical Supervisor and Health Educator to the redesignated Health Inspector Grade I (erstwhile Leprosy Inspectors) did not amount to bestowing a double benefit upon this category. Therefore, the High Court did not enforce negative equality. The High Court has correctly observed that upon integration and merger into one cadre, the pre-existing length of service of the Leprosy Inspectors redesignated as Health Inspector Grade IB had to have been correctly placed at the bottom of the seniority list of the already existing Health Inspectors Grade I w.e.f. 27-6-1997. Therefore, it cannot be said that benefit has been given to the Leprosy Inspectors/Health Inspector Grade IB/Health Inspector Grade I with retrospective effect."
(82) Considering the aforesaid dictum of the Apex Court and the facts that the appellants are members of the service and substantively appointed out of turn on the strength of the statutory Government Orders, we are of the view that the policy of the State Government issued vide order dated 23.07.2015 was legally justified and the learned Single Judge erred in quashing the Government Order dated 23.07.2015 and the seniority list (83) There is one another aspect also, of the issue. As stated hereinabove, the learned Single Judge, while passing the impugned order, has failed to appreciate the object of the Government Order dated 03.02.1994, its source, its nature etc. and also failed to appreciate the nature of the appointment of the appellants. Furthermore, the learned Single Judge has not considered Rule 3 (i) and part of Rule 3 (m) of the Rules, 2008, which was conjuncted after the word ''and'. Even the Governments Orders dated 05.11.1965, 29.08.1983 and 24.07.2003, which are the statutory orders as held by the Apex Court in Chandra Prakash Tiwari Vs. Shakuntala Shukla : AIR 2002 SC 2322 and by the Full Bench of this Court in State of U.P. and others Vs. Rajendra Singh and another : 2015 (4) ADJ 575 (LB) (FB), has not been appreciated.
(84) It is settled law that when a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered per incuriam. This concept of per incurium has been explained in many decisions of the Apex Court, viz. Government of A.P. and another Vs. B. Satyanarayan : 2000 (4) SCC 262, Nirmaljeet Kaur Vs. State of M.P. and another : 2004 (7) SCC 558, Tuples Educational Society and another Vs. State of U.P. and another : 2008 (3) AWC 2499 (FB).
(85) For the reasons aforesaid, the special appeals are allowed. The impugned judgment and order dated 20.02.2019 is hereby set-aside. Consequently, writ petition Nos. 5677 of 2016 (S/S) : Mahanth Yadav and 6 others Vs. State of U.P., 13625 of 2016 (S/S) : Kamal Singh Yadav Vs. State of U.P. and others and writ petition No. 10759 of 2016 (S/S) : Prabhakar Tripathi and 6 others Vs. State of U.P. and others, are hereby dismissed.
(Saroj Yadav, J.) (Ramesh Sinha, J.)
Order Date :- 16.12.2021
Ajit/-