Allahabad High Court
Ram Babu Yadav & 93 Ors. vs State Of U.P. Through Prin. Secy. Home ... on 30 January, 2018
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
AFR
Case :- SERVICE SINGLE No. - 4379 of 2013
Petitioner :- Ram Babu Yadav & 93 Ors.
Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors.
Counsel for Petitioner :- Gaurav Mehrotra,Akhilesh Kumar Srivastava,Harsh Vardhan Mehrotra,Laltaprasad Misra,Santosh Kumar Tripathi
Counsel for Respondent :- C.S.C.,A P Singh,Akhilesh Srivastava,Dr V K Singh,S M Royekwar,Vinayak Saxena
Alongwith
Case :- SERVICE SINGLE No. - 5377 of 2014
Petitioner :- Mohammad Irshad & 7 Ors.
Respondent :- State Of U.P. Through Prin. Secy. Home Lko. & Ors.
Counsel for Petitioner :- Gaurav Mehrotra
Counsel for Respondent :- C.S.C.
And
Case :- SERVICE SINGLE No. - 28189 of 2016
Petitioner :- Suresh Kumar Yadav And 2 Ors.
Respondent :- State Of U.P.Thru Prin.Secy.Home Up Civil Sectt. Lko. & Ors.
Counsel for Petitioner :- Gaurav Mehrotra,Harsh Vardhan Mehrotra
Counsel for Respondent :- C.S.C.
And
Case :- SERVICE SINGLE No. - 28191 of 2016
Petitioner :- Rajesh Singh And 46 Ors.
Respondent :- State Of U.P. Thru Prin.Secy.Home U.P. Civil Sectt.Lko.& Ors
Counsel for Petitioner :- Laltaprasad Misra,Gaurav Mehrotra,Santosh Kumar Tripathi
Counsel for Respondent :- C.S.C.,Anurag Shukla,S K Tripathi
And
Case :- SERVICE SINGLE No. - 6586 of 2017
Petitioner :- Rajeev Srivastava And 4 Ors.
Respondent :- State Of U.P. Thru Prin.Secy.Deptt.Of Home Lucknow & Ors.
Counsel for Petitioner :- Mahendra Prakash Raju
Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. This bunch of writ petitions raise common questions of law and fact, and have been heard together. They are, thus, being disposed of by this common judgment. Writ Petition No.4379(S/S) of 2013 (Ram Babu Yadav & Others Vs. State of U.P. & others) is taken as the leading case.
2. Petitioners have been promoted as Sub-Inspectors after clearing departmental competitive examination, in civil police, in 2008, and are claiming seniority from a previous date. Parity is sought with those who have been promoted as Sub-Inspectors under seniority subject to rejection category, as well as direct recruits appointed pursuant to recruitment exercise initiated in the same year of recruitment as that of petitioners. The seniority list as well as the orders rejecting their claim in this regard are the subject matter of challenge in these writ petitions.
3. Background facts, giving rise to the controversy are therefore noticed first. Police Act, 1861 is the parent legislation operating in the field. On 29.10.1965, a Government Order was issued laying down procedure for the selection of Constable/Head Constable for their admission to the Sub-Inspector, Civil Police Course at Police Training College, Moradabad. This Government Order was issued with reference to paragraph 245 of the report of the Uttar Pradesh Police Commission, 1960. A subsequent Government Order was issued on 5.11.1965 for the selection of Sub-Inspector for promotion to the Rank of Inspectors. This Government Order was referable to recommendation contained in para 246 of the U.P. Police Commission Report. On 31.8.1977, a fresh Government Order was issued in supersession of previous Government Orders laying down procedure for training on the post of Sub-Inspector, Civil Police for the departmental candidates (Rankers). This Government Order provided educational qualification of Intermediate or equivalent, with three years' service as Constable, or Head Constable who has passed police course and for him educational qualification was not relevant. A note was appended that educational qualification of Intermediate in place of High School would apply only in respect of those candidates who join police department after issuance of this order. The maximum age for Rankers was increased from 30 years to 40 years and age was to be computed with reference to January 1 of the year of recruitment.
4. On 15.7.1986, a Government Order was issued fixing ratio of 50:50 between direct recruits and promotees, for appointment to the post of Sub-Inspector (Civil Police). It was contemplated that recruitment in the cadre of Sub-Inspector (Civil Police) be made in such a way that in future their ratio remains 50:50, as far as feasible, provided eligible candidates are available. This Government Order was partially modified on 8.3.1995 providing that 25% post would be filled by seniority from Head Constables, who possess requisite eligibility in terms of Government Order dated 31.8.1977, by following the principles of seniority subject to rejection of unfit. Remaining 25% vacancy under promotion quota was to be filled from departmental candidates (Rankers) who clear departmental competitive examination in the manner provided, whereas remaining 50% vacancy was to be filled by direct recruitment. This Government Order was to apply uniformally to Civil Police, P.A.C. and Armed Police. This Government Order is relevant for the controversy raised, and therefore, is extracted hereinafter:-
**Lksok esa] iqfyl egkfuns'kd] mRrj izns'k] y[kuÅA fo"k;% lc bULisDVj in ij izf'k{k.k ds fy, foHkkxh; vH;fFkZ;ksa gsrq vkj{k.k fd;k tkukA mi;qZDr fo"k;d 'kklukns'k la[;k 4138@vkB&10&86&1200 ¼39½ fnukad 15 tqykbZ] 1986 esa vkaf'kd la'kks/ku djrs gq, eq>s ;g dgus dk funsZ'k gqvk gS fd 'kklu }kjk fopkjksijkUr mi fujh{kd ukxfjd iqfyl dh fjfDr;ksa ds 25% izfr'kr in ij 'kklukns'k la[;k 4256@vkB&2&1200 ¼55½@76 fnukad 31 vxLr] 1977 esa fu/kkZfjr vgZrk /kkjd gsM dkULVsfcyksa dks ofj"Brkdze esa] vuqi;qDr dks NksM+rs gq, izksUur fd;s tkus dk fu.kZ; fy;k x;k gSA vkns'kkuqlkj foHkkxh; vH;fFkZ;ksa ds fy, vkjf{kr 50 izfr'kr fjfDr;ksa esa ls 25 izfr'kr fjfDr;kW ofj"Brkdze esa vuqi;qDr dksa NksM+rs gq, izksUufr nsdj rFkk 'ks"k 25 izfr'kr fjfDr;kW iwoZ esa foHkkxh; izfr;ksfxrk ds vk/kkj ij Hkjh tk;saxhA lh/kh HkrhZ gsrq fu/kkZfjr fjfDr;ksa dh la[;k 50 izfr'kr jgsxhA 2- mijksDr vkns'k rRdkfyd izHkko ls ykxw le>s tk;sa rFkk ;g vkns'k flfoy iqfyl] ih,lh rFkk vU; iqfyl ij leku :i ls ykxw gksaxsA vr% vuqjks/k gS fd d`i;k vkns'kksa dk vuqikyu lqfuf'pr djkus dk d"V djsaA** Although 1564 candidates were to be selected by promotion but this figure was restricted to 1176 because of the observations made in Writ Petition No.39756 of 1997 (Ranbir Singh and others vs. State of U.P. and others). 388 posts were earmarked for those who were eligible for promotion in order of seniority between 8.3.1995 and 19.5.1998.
5. Aforesaid Government Order was followed with yet another Government Order issued on 19.5.1998, which provided that 50% post of Sub-Inspector would be filled by direct recruitment, whereas remaining 50% would be filled on the basis of departmental examination. Instructions thereafter were issued vide Government Order dated 23.1.1999 laying down procedure for holding of departmental examination. Selection was to be held on the basis of physical test, preliminary written examination, main written examination, personality test and assessment of Character Roll etc. Further guidelines in that regard were also issued. On 3.2.1999, Special Secretary of the State directed for selection to be held on the vacant 1478 seats of Sub-Inspectors out of total seats of 2956 Sub-Inspectors in the Civil Police. The total number of vacancies available for promotees was 1478. By another order dated 10.1.2000 additional 86 posts were added for promotees. Total seats available for the purpose were thus 1564.
6. While Government Orders were being issued from time to time laying down manner and methodology of recruitment to the post of Sub-Inspector, by direct recruitment and promotion, a Government Notification dated 15.9.1997 followed with consequential order of 18.9.1997 was issued, permitting a Head Constable to carry out investigation of criminal cases of specified nature, which otherwise was to be investigated by a Sub Inspector. Challenge to this order was made by a group of 20 Head Constables in Writ Petition No.39756 of 1997 (Ranbir Singh and others Vs. State of U.P. and others) on the ground that State Government is arbitrarily conferring authority on Head Constables, many of whom were junior to them, while ignoring claim of Senior Head Constables. It was contended that instead of making regular promotion to the post of Sub-Inspector, the State Government is trying to create a class amongst class, and thereby indulging in arbitrary exercise of power. This writ petition came to be allowed, in part, on 19.4.1999, and following directions were issued:-
"In view of the uncontroverted averments in the writ petition, it is directed that the respondents shall forthwith resort to the process of fulfilling all the existing vacancies of the post of Sub-Inspectors first by making promotion to the extent of 50% (25% by departmental examination and the 25% on the basis of seniority subject to unfit) and after completing said promotion alone, direct recruitment shall be made on the post of Sub-Inspector. The said process of making promotion must be completed within four months from the date of having received certified copy of the judgment which must be communicated by the learned standing counsel within three weeks from today. The learned standing counsel is directed to communicate this order to the concerned authorities.
The writ petition is allowed partly subject to the observations made above. There will be no order as to costs."
(emphasis supplied)
7. Process of appointment for the post of Sub-Inspector was accordingly initiated, both by way of direct recruitment and promotion, in 1999. Advertisement was issued on 1.5.1999. So far as recruitment to the post of Sub-Inspector by direct recruitment was concerned, the process was pursued after inviting applications by holding of preliminary examination, physical test, main written examination etc. Final results were declared on 7.7.2001. Appointment orders were issued to direct recruits on 29.8.2001. They were sent on training on 10.9.2001 which got completed on 12.9.2002. Direct recruits thereafter were posted in different districts vide orders issued on 16.9.2002.
8. Rankers, however, were not that lucky. The process of holding departmental examination initiated in 1999 landed in trouble. Preliminary written test was held on 5.9.1999, and its result was declared on 5.11.1999. PT/IT Test was conducted in December, 1999 whereafter main written examination was to be held on 11.2.2000. 9671 candidates qualified at the end of the preliminary written test and were called for interview. Litigation at this stage started with filing of Writ Petition No.9694 of 2000, by Triloki Nath Pandey and others, who had failed in preliminary written examination. The writ petition was allowed on 10.3.2000 and the result of IT/PT test was quashed with a direction to hold selection in light of the observations made in the judgment. This judgment was carried in appeal by the State of U.P., being Special Appeal No.382 (D) of 2000. The appeal was allowed and the judgment of learned Single Judge dated 10.3.2000 was quashed with a direction to the appellant State to proceed with selection process, expeditiously. It was thereafter that main written examination was held on 25.12.2005 and results were declared on 24.1.2006. Interviews were held between May to July, 2006 and result was declared on 11.11.2006. Some of those who failed, including Mamta Yadav and others challenged the selection by filing Writ Petition No.9786 of 2006. This writ petition was allowed on 23.5.2007. State of U.P. and the selected candidates preferred bunch of special appeals, including Special Appeal No.982 of 2007 etc. which came to be allowed by the Division Bench on 14.3.2008. Rankers thereafter completed their training on 31.3.2008 and were issued appointment orders as Sub Inspectors, Civil Police, on 1.4.2008.
9. At this juncture, it would be appropriate to note that the judgment of learned Single Judge dated 19.4.1999 in Ranbir Singh and others vs. State of U.P. and others was challenged by State of U.P. in Special Appeal No.1372 of 1999, which came to be allowed in part. The Division Bench observed that the vacancies on the post of Sub Inspector created between 8.3.1995 and 19.5.1998 was required to be filled in the manner contemplated in the government order dated 8.3.1995, and the direction of learned Single Judge, to that extent, was maintained. However, part of the direction of learned Single Judge insofar as the government order dated 15.9.1997 and subsequent order of 18.9.1997 had been quashed was set aside. As against direction of learned Single Judge to fill up the posts earmarked for promotion and to proceed with direct recruitment thereafter, the Division Bench clarified that appointment by direct recruitment as well as by promotion be carried out simultaneously, to the extent it is possible. Observations of the Division Bench contained in the order dated 9.12.2004 is reproduced hereinafter:-
"We, therefore, see no cogent reason to interfere with the judgment and order of the learned Single Judge. However, as the matter is pending since long and some of the eligible candidates may have retired by now, their cases may also be considered for grant of the notional benefits. This exercise may be completed as early as possible.
However, in view of the Full Bench judgment of this Court in the case of Vijay Singh vs. State of U.P. (2004) 4 ESC, 2209 the following observations made by the learned Single Judge are required to be set aside.
"In view of the statutory provision of Police Regulations, particularly paragraph 51, which lays donw that the powers and duties to investigate cases are that of Sub Inspector and Regulations 50 and 55(a) and (d), which provide that only in a specified contingency and subject to exception of Regulation 51(4) a Head Constable may be required, as an adhoc arrangement to perform duties of investigation as Investigating Officer. This leaves no doubt that the duties of investigation cannot be conferred upon the Head Constable by a general order as is being done and sought through the impugned Notification dated 15th September, 1997 and the letter dated 18th September, 1997 (Annexure-5). The Government Notification dated 15th September, 1997 itself provides that the said Notification shall not be implemented as a general rule and that the Head Constable in the prescribed pay scale, if required to undertake investigation, as contemplated under the said Notification, shall not be treated as a distinct class and to this extent the order dated 18th September, 1997 (Annexure-5) shall also not be given effect to so as to create a different cadre and class having designation in contradistinction to those contemplated under the U.P. Police Regulations."
Thus, we do hereby set aside the said observations.
We also clarify that appointments by direct recruitment as well as by promotions may be carried simultaneously to the extent it is possible.
The Special Appeal, therefore, succeeds to the extent indicated above."
(emphasis supplied)
10. Insofar as rankers falling in 25% quota to be filled by way of seniority subject to rejection of unfit was concerned, an order came to be passed by the Deputy Inspector General of Police, Establishment, on 25.8.2008, referring to the order passed in Special Appeal No.1372 of 1999, granting notional promotion to 388 Sub-Inspectors from March 8 of the year of approval and regular promotion from the date they assumed charge. Para 3 of the order dated 25.8.2008 is extracted below:-
**3- ,rn~fo"k;d fo'ks"k vihy la[;k 1372@1999 m0iz0 jkT; ljdkj o vU; cuke~ juohj flag o vU; esa fnukad 19-12-2004 dks ikfjr fu.kZ;@vkns'k ,oa fo'ks"k vihy la[;k 982@2007 m0iz0 jkT; ljdkj o vU; cuke~ vkj{kh 1761 'khyk nsoh o vU; esa ek0 mPp U;k;ky; bykgkckn dh [k.MihB y[kuÅ }kjk fnukad 14-03-2008 dks ikfjr vfUre fu.kZ; ds ifjis{; esa ofj"Brk ds vk/kkj ij p;fur jSadj mi fujh{kdksa dks mi fujh{kd uk0iq0 ds in ij muds uke ds lEeq[k lwph esa vafdr vuqeksnu o"kZ dh 08 ekpZ ls dkYifud izksUufr (NOTIONAL PROMOTION) rFkk dk;ZHkkj xzg.k djus dh frfFk ls okLrfod izksUufr iznku dh tkrh gSA dkYifud izksUufr dh frfFk ls okLrfod izksUufr dh frfFk ds e/; dh vof/k dkYifud vof/k gksxh rFkk No work no pay ds fl)kUr ds vk/kkj ij bl dkYifud vof/k dk mi fujh{kd uk0iq0 ds in dk osru HkRrk vkfn ns; ugha gksxkA**
11. Recruitment to the post of Sub-Inspectors continued to be governed by government orders, referred to above. Statutory rules came into being for the purpose, for the first time, in the year 2008, with framing of "The Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008" (hereinafter referred to as "the Rules of 2008") on 2.12.2008. These rules were framed under sub-section (2) of section 46 read with section 2 of the Police Act, 1861. By virtue of rule 5 of the Rules of 2008, 50% post of Sub-Inspector was to be filled by direct recruitment whereas remaining 50% was to be filled by way of promotion through the U.P. Police Service Recruitment and Promotion Board from amongst substantively appointed head constables and constables of U.P. Civil Police. Rule 22 of the Rules of 2008 provided for determination of seniority in following words:-
"22. The seniority of 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."
12. Rules of 2008 have been superseded by "The Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2015" (hereinafter referred to as 'the Rules of 2015'). 50% promotion under the rules of 2015 is now to be made through the U.P. Police Recruitment and Promotion Board from amongst the substantively appointed head constables of civil police on the basis of seniority subject to rejection of unfit, who have been found successful in physical efficiency test of qualifying nature, and have completed three years of service on the first day of year of recruitment. Rule 22 now provides for two separate set of norms for determining seniority of Sub-Inspectors i.e. those recruited before 2.12.2008 and the Sub-Inspectors recruited after 2.12.2008. Rule 22 of the Rules of 2015 is reproduced hereinafter:-
"22. 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 02.12.2008
(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 instructions.
(b) Sub inspectors trained in one training session shall be junior to all sub inspector trained in previous training session and shall be senior to all sub inspectors trained in subsequent training sessions. Restrictions 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 promotees 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 02.12.2008
(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 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 dependents 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 the alphabetical order of the names in High School Certificate 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 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 Department according to policy of the Government.
13. Regulation 406 and 534 of the Police Regulations are also relevant as it provides that Sub Inspectors of Civil Police must pass through the Provincial Police Training College. Para 406(a) and 534 are therefore reproduced hereinafter:-
"406. (a) Civil Police - Sub-Inspectors, Civil Police, are appointed by Deputy Inspectors General from the list of candidates who qualify at the prescribed cadets course at the Police Training College.
534. Sub-Inspectors of the Civil Police must pass through the Provincial Police Training College, For their training at the College, and their practical training in districts see the Uttar Pradesh Police Training College Manual. Part III.
From the date on which they are posted to districts as sub-inspectors, civil police, sub-inspectors shall be on probation for a period of two years, on the expiry of which if he considers them fit for permanent appointment they may be confirmed by the Deputy Inspector General."
14. By virtue of regulation 534, U.P. Police Training College Manual also assumes significance. Course of practical training to be imparted at the training college is specified and the candidate must successfully clear it, before he is placed on probation. Seniority of cadets passing the training test is to be determined on the basis of marks obtained in the final examination. Para 41 of the Manual reads as under:-
"41. (1) The practical training of cadets will follow the general lines of the course prescribed in paragraphs 516-519 of the Police Regulations for the training of probationary sub-inspectors. No cadet whose legal status is that of a constable, however, can be entrusted with the investigation of case and accordingly the provisions of paragraph 516(1)(c) do not apply to him.
(2) The practical training of cadets will continue until the end of the year in which they are posted to districts.
Special instructions will be given in any subject in which a cadet may have failed to qualify at the final examination.
(3) At the end of the prescribed period of practical training the Superintendent of Police of the district to which the cadet has been sent for training shall report to his Range Deputy Inspector General whether the cadet has attained the requisite degree of proficiency.
(4) Every cadet who, at the end of his practical training, fails to satisfy his Superintendent that he has acquired the requisite proficiency shall, except in cases when there are extraordinary circumstances, such as illness, which in the opinion of the Inspector General justify a further period of practical training, be forthwith discharged if he is a public cadet or reverted to his substantive post if he is is a promoted cadet, and shall be ineligible for any further instructions or training as a cadet.
(5) The examination Board shall prepare a list of cadets who have attained the requisite degree of proficiency and shall place those cadets in order of seniority determined according to the marks obtained in the final examination.
(6) Until such time as a cadet is appointed as a probationary sub-inspector he shall continue to receive practical training in a district."
(emphasis supplied)
15. Petitioners have been assigned seniority from the date they have successfully completed their training at the police training college i.e. in the year 2008 as per the marks obtained in the final examination. They assert that process of recruitment to the post of Sub-Inspector had been initiated in the year 1999 for all sources i.e. direct recruitment; promotion under seniority subject to rejection of unfit category and; promotion by way of departmental competitive examination. It is asserted that promotion by way of seniority subject to rejection of unfit has been granted in the year 1998-99, whereas appointment to the post by way of direct recruitment was made in 2002 and seniority has been accorded accordingly, but they have been discriminated for no fault of theirs. It is contended that process having been initiated in the same year i.e. 1999, they are entitled to be placed at par in the matter of seniority viz-a-viz promotees, based upon seniority subject to rejection of unfit or alternatively seniority of direct recruits. Contention of Sri Kalia, learned senior counsel is that rankers were eligible for promotion in 1999 and the process of promotion by departmental competitive examination had also commenced in 1999 and the mere fact that process got delayed due to intervention of Court ought not to result in deprivation of their seniority viz-a-viz direct recruits, or promotees based on seniority subject to rejection of unfit. It is also contended that unless seniority to Rankers is restored viz-a-viz direct recruits and promotees based on seniority subject to rejection of unfit the respective quota assigned to them would not be filled in rotational order and quota-rota rule would be violated. Learned Senior Counsel also placed reliance upon the observation of Division Bench dated 9.12.2004 in Special Appeal No.1372 of 1999, as per which appointment by direct recruitment as well as promotion was to be made simultaneously. Apart from Government Order dated 8th of March, 1995, the provisions of U.P. Government Servants Seniority Rules, 1991 (hereinafter referred to as 'Rules of 1991') are also pressed into service, particularly rule 8 thereof in support of such argument, which is reproduced hereinafter:-
"8. Seniority where appointments by promotion and direct recruitment. - (1) Where according to the service rules appointments are made both by promotion and by direct recruitment, the seniority of persons appointed shall, subject to the provisions of the following sub-rules, be determined from the date of the order of their substantive appointments, and if two or more persons are appointed together, in the order in which their names are arranged in the appointment order:
Provided that if the appointment order specifies a particular back date, with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will mean of issuance of the order :
Provided further that a candidate recruited directly may lose his seniority, if he fails to join without valid reasons, when vacancy is offered to him the decision of the appointing authority as to the validity of reasons, shall be final.
(2) The seniority inter se of persons appointed on the result of any one selection,-
(a) through direct recruitment, shall be the same as it is shown in the merit list prepared by the Commission or by the Committee, as the case may be;
(b) by promotion, shall be as determined in accordance with the principles laid down in Rule 6 or Rule 7, as the case may be, according as the promotion are to be made from a single feeding cadre or several feeding cadres.
(3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees 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 the two sources.
Illustrations (1) Where the quota of promotees and direct recruits is in the proportion of 1 : 1 the seniority shall be in the following order-
First ...
Promotee Second ...
Direct recruits and so on.
(2) Where the said quota is in the proportion of 1 : 3 the seniority shall be in the following order-
First ...
Promotee Second to Fourth ...
Direct recruits Fifth ...
Promotee Sixth to eight ...
Direct recruits and so on:
Provided that-
(i) where appointment from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, for seniority, to subsequent year or years in which there are vacancies in accordance with the quota;
(ii) where appointments from any source fall short of the prescribed quota and appointment against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which their appointments, are made, so however, that their names shall be placed at the top followed by the names, in the cyclic order of the other appointees;
(iii) where, in accordance with the service rules the unfilled vacancies from any source could, in the circumstances mentioned in the relevant service rules be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies of their quota."
16. Sri Kalia further contends that post in the cadre of Sub- Inspectors has to be filled as per quota prescribed, by rotation. It is submitted that their claim in this regard stands accepted under an order passed by Deputy Inspector General of Police (Establishment), dated 22.4.2013, applying the provisions of rule 8(3) of the Rules of 1991. Parity, however, in the matter of seniority viz-a-viz promotees of seniority subject to rejection of unfit was declined and to that extent the order is assailed. It is claimed that the order dated 22.4.2013 has been passed pursuant to the directions issued by this Court in Writ Petition No.6613 of 2011, decided on 8.3.2013, and has attained finality. Submission is that determination of seniority made now, vide orders impugned in the writ petition, is contrary to the provisions applicable as also the orders of authorities passed pursuant to the orders of this Court and is otherwise illegal and arbitrary.
17. In order to appreciate the argument, it would be appropriate to take note of the order passed by this Court in Writ Petition No.6613 of 2011, dated 8.3.2013, which reads as under:-
"The petitioners, who were promoted to the post of Sub-Inspectors from the post of Head Constables under Regulation 445 of the Regulations framed under the U.P. Police Regulations through a Departmental Examination, have claimed parity with those Head Constables who were promoted to the post of Sub-Inspectors on the basis of seniority.
In this connection, learned counsel for the petitioners has pointed out that 50% of the posts of Sub-Inspector are required to be filled up by direct recruitment and the remaining 50% by promotion and out of the 50% posts meant for promotion, 75% are required to be filled through a Departmental Examination and the remaining 25% posts by seniority subject to rejection as unfit. It is further pointed out that the Head Constables, who were promoted on the post of Sub-Inspectors under the 25% quota, have been granted retrospective promotion from the date the vacancy occurred but the Head Constables who are promoted as Sub-Inspector under the 25% quota have been granted promotion from the date of declaration of result.
The contention of the learned counsel for the petitioners is that the same principle should have been adopted by the respondents for promotion of Head Constables to the post of Sub-Inspectors through Departmental Examination as was adopted while granting promotion on the basis of seniority by giving promotion from the date the vacancy occurred and not from the date the examination result was declared and there is no justifiable reason for denying such benefit to them. In this connection, learned counsel for the petitioners has submitted that the petitioners would be satisfied if a direction is issued by the Court to the respondents to decide the representation dated 25th April, 2009 filed by the petitioners before the Deputy Inspector General of Police (Establishment) Police Headquarters, U.P. Allahabad.
Learned Standing Counsel appearing for the respondents states that the representation filed by the petitioners shall be decided expeditiously if it has not been decided as yet.
This writ petition is, accordingly, disposed of with a direction to the Deputy Inspector General of Police (Establishment) Police Headquarters, U.P. Allahabad to decide the representation filed by the petitioners after hearing the parties concerned, by a reasoned and speaking order expeditiously, preferably within a period of two months from the date a certified copy of this order is filed by the petitioners.
It is made clear that the Court has not adjudicated on the merits of the case which shall be examined by the Deputy Inspector General of Police (Establishment) Police Headquarters, U.P. Allahabad in accordance with law."
18. Incidentally, on the very date of passing of aforesaid order of this Court, an order came to be passed by the Deputy Inspector General of Police (Establishment), laying down norms for determination of seniority which is extracted hereinafter:-
**2& mDr ofj"Brk lwph fuEuor~ jhfr ls fu/kkZfjr dh x;h gS%& ¼1½ ftl ih0Vh0lh0 izf'k{k.k l= esa lh/kh HkrhZ ,oa foHkkxh; ijh{kk ds ek/;e ls p;fur vH;FkhZ ,d lkFk ,d cSp esa izf'k{k.k ik;s gSa mudh ofj"Brk ih0Vh0lh0 esa vftZr vad ds vk/kkj ij iwoZ ls rS;kj@izdkf'kr Js"Brk dze esa gh j[kk x;k gSa o blesa fdlh izdkj dk ifjorZu ugha fd;k x;k gSA ¼2½ ftl ih0Vh0lh0 izf'k{k.k l= esa lh/kh HkrhZ ,oa foHkkxh; jSadj ijh{kk ds p;fur vH;FkhZ ,d lkFk izf'k{k.k ugha ik;s gSa] mudh ijLij ofj"Brk] ofj"Brk fu/kkZj.k fu;ekoyh 1991 ds fu;e&8 ¼3½ ds vuqlkj izFke inksUur o f}rh; lh/kh HkrhZ ds pdzkdze esa HkrhZ l= ds vuqlkj dh x;h gSaA lh/kh HkrhZ ijh{kk 1999 ,oa jSadj ijh{kk 1999 ds p;fur vH;fFkZ;ksa dh ofj"Brk mijksDr fof/k ls dh x;h gSa Hkys gh lu~ 1999 ds jSadj vH;fFkZ;ksa }kjk lh/kh HkrhZ l= 2001 ds ckn izf'k{k.k iw.kZ fd;k x;k gksA ;gh izfdz;k gj l= ds fy;s izHkkoh gSA ¼3½ fdlh HkrhZ l= ds izrh{kk lwph ds p;fur vH;fFkZ;ksa dh ofj"Brk izFker ml l= ds fu;fer p;fur vH;fFkZ;ksa ds lkFk ih0Vh0lh0 vad ds vuqlkj rS;kj dh x;h gS rnUrj lh/kh HkrhZ ,oa jSadj ijh{kk ds vH;fFkZ;ksa dh ofj"Brk mijksDr fcUnq&2 ds vuqlkj rS;kj dh x;h gSA ¼4½ ,d gh l= ds fofHkUu izf'k{k.k laLFkkuksa esa izf'k{k.k ik;s vH;fFkZ;ksa ds izf'k{k.k ds iw.kkZad leku u gksus ij muds iw.kkZad ,oa izkIrkad dks izfr'kr esa fudky dj vftZr vadksa ds izfr'kr ds vuqlkj ikjLifjd Js"Brk dze esa ofj"Brk fu/kkZfjr dh x;h gSA ,d ls vf/kd vH;fFkZ;ksa ds leku vad gksus ij mudh tUefrfFk dh ofj"Brk dks gh ikjLifjd ofj"Brk fu/kkZj.k dk vk/kkj cuk;k x;k gSA** (emphasis supplied)
19. The relevant portion of the order of D.I.G. (Establishment) dated 22.4.2013, which is heavily relied upon by the petitioners, is also taken note of at this stage, and is extracted hereinafter:-
"(11)orZeku es mi fujh{kd uk0iq0 dh ofj"Brk fuEuor~ fu/kkZfjr dh tkrh gS%& ¼d½ ftl ih0Vh0lh0 izf'k{k.k l= es lh/kh HkrhZ ,oa foHkkxh; ijh{kk ds ek/;e ls p;fur vH;FkhZ ,d lkFk ,d cSp es izf'k{k.k ik;s gS] mudh ofj"Brk ih0Vh0lh0 es vftZr vad ds vk/kkj ij iwoZ ls rS;kj@izdkf'kr Js"BrkØe esa j[kk tk; o blesa fdlh izdkj dk ifjorZu u fd;k tk;A ¼[k½ ftl ih0Vh0lh0 izf'k{k.k l= es lh/kh HkrhZ ,oa foHkkxh; jSadj ijh{kk ds p;fur vH;FkhZ ,d lkFk izf'k{k.k ugha ik;s gS] mudh ijLij ofj"Brk ofj"Brk fu/kkZj.k fu;ekoyh 1991 ds fu;e&8¼3½ ds vuqlkj izFke inksUur o f}rh; lh/kh HkrhZ ds pØkØe es HkrhZ l= ds vuqlkj fd;k tk;sxkA ;Fkk lh/kh HkrhZ ijh{kk 1999 ,oa jSadj ijh{kk&1999 ds p;fur vH;fFkZ;ksa dh ofj"Brk mijksDr fof/k ls dh tk; Hkys gh lu~ 1999 ds jSadj vH;fFkZ;ksa }kjk lh/kh HkrhZ l= 2001 ds ckn izf'k{k.k iwoZ fd;k x;k gks ;gh izfØ;k gj l= ds fy, izHkkoh fd;k tk;A ¼x½ fdlh HkrhZ l= ds izrh{kk lwph ds p;fur vH;fFkZ;ksa dh ofj"Brk izFker% l l= ds fu;fer p;fur vH;fFkZ;ksa ds lkFk ih0Vh0lh0 vad ds vuqlkj rS;kj dh tk; rnUrj lh/kh HkrhZ ,oa jSadj ijh{kk ds vH;fFkZ;ksa dh ofj"Brk mijksDr fcUnq&2 ds vuqlj rS;kj dh tk;A ¼?k½ ,d gh l= ds fofHkUu izf'k{k.k laLFkkuksa esa izf'k{k.k ik;s vH;fFkZ;ksa ds izf'k{k.k ds iw.kkZad leku u gksus ij muds iw.kkZad ,oa izkIrkad dks izfr'kr esa fudky dj vftZr vadksa ds izfr'kr ds vuqlkj ikjLifjd Js"Brk Øe esa ofj"Brk fu/kkZfjr dh tk;A ,d ls vf/kd vH;fFkZ;ksa ds leku vad gksus ij mudh tUefrfFk dh ofj"Brk dks gh ikjLifjd ofj"Brk fu/kkZj.k dk vk/kkj cuk;k tk;A 5& mi;ZqDr ls Li"V gS fd ;kphx.k dks cSp ds ofj"Brk ds vk/kkj ij inksUufr blfy, iznku ugh dh tk ldrh gS D;ksafd ofj"Brk rRle; izpfyr O;oLFkk ds vuqlkj iznku dh x;h gS] tks rRle; dh O;oLFkk gSA lh/kh HkrhZ ds ek/;e ls fu;qDr mi fujh{kdx.k] LiksV~Zl dksVs ds vUrxZr fu;qDr mi fujh{kdx.k dks nh x;h inksUufr@fu;qfDr dks vk/kkj ekudj fnukad&31&12&98 ls inksUufr iznku djus dh ;kpuk fujk/kkj ik;h x;h rFkk buds dFku o izLrqr rdZ cyghu ik;s x;s gSA vr% ;kph dk izR;kosnu izLrj&11 esa dh x;h ;kpuk ds vuqlkj ofj"Brk fu/kkZj.k dh dk;Zokgh dh tk;sxhA vr,o ;kph dk izR;kosnu mijksDrkuqlkj fuLrkfjr fd;k tkrk gSA"
20. In leading Writ Petition No.4379 (S/S) of 2013, petitioners have sought quashing of the aforesaid order dated 22.4.2013, insofar as it relates to rejection of claim for grant of notional seniority w.e.f. 9.3.1998, extended to Sub-Inspectors under seniority subject to rejection category, and a direction is sought to grant notional seniority to petitioners (rankers) also from 9.3.1998. By way of amendment, allowed subsequently, an alternative prayer has been made to grant seniority to the petitioners in cyclic order, alongwith direct recruits, in accordance with circular of 8th March, 2013 and order dated 22.4.2013, issued by D.I.G. (Establishment). A further prayer is made to direct the respondents to grant notional promotion to the petitioners on the post of Sub-Inspector (Civil Police) alongwith direct recruits with effect from 2002 with all consequential benefits including fixation of salary.
In Writ Petition No.5377 (S/S) of 2014 also, a prayer is made to challenge the order dated 22.4.2013, insofar as it rejects petitioners' prayer for grant of notional seniority w.e.f. 9.3.1998 to the post of Sub-Inspector (Civil Police), and a direction is sought in the nature of mandamus to grant notional seniority from 9.3.1998.
In Writ Petition No. 28189 (S/S) of 2016, three petitioners have challenged the final seniority list dated 13.11.2016, on the ground that Rule 8(3) of Rules of 1991 have not been applied correctly. It is contended that recruitment by promotion through departmental competitive examination as well as by direct recruitment was one selection, and therefore, by virtue of Rule 8(3), seniority was liable to have been fixed in cyclical order from 2001. It is also contended that Rules of 2015 could not have been given a retrospective effect and in view of the orders passed on 8.3.2013 and 22.4.2013, their seniority was liable to have been determined in cyclical order, and all such orders as well as determination of seniority are saved by virtue of Clause 4 of Rule 22 of the Rules of 2015. Petitioners have also challenged the promotion granted to 319 persons on the post of Inspector, on the basis of seniority determined, allegedly in teeth of Rule 8(3). It would also be relevant to note at this stage that an amendment application was filed on 16.12.2016 seeking to assail validity of Rule 22(1) of the 2015 Rules by inserting prayer clause V(a). A subsequent application, however, has been filed on 23.8.2017 for withdrawing the amendment application dated 16.12.2016. This application has been allowed on 23.8.2017. Petitioners have therefore given up their challenge to the validity of Rule 22(1) of the 2015 Rules.
In Writ Petition No.28191 (S/S) of 2016 also, the seniority list of 13.11.2016 is challenged alongwith challenge to the order dated 20.11.2016 rejecting the representation as well as promotion orders passed on 22.11.2016 on the post of Inspector (Civil Police), based upon the final seniority list dated 13.11.2016. Prayer as well as grounds of challenge in Writ Petition Nos.28189(S/S) of 2016 and 28191(S/S) of 2016 are similar.
Last writ petition in this bunch is Writ Petition No.6586(S/S) of 2017, wherein prayer is made to include the name of petitioners in the seniority list of Sub-Inspector (Civil Police) 2001 Batch, in compliance of the order dated 8.3.2013 and to consider their claim for promotion to the post of Inspector (Civil Police) alongwith other batchmates of 2001 Batch.
21. All the petitioners, therefore, assert that they are entitled to be placed at par with Sub-Inspectors, who have been promoted on the basis of seniority subject to rejection of unfit, vide order dated 25.8.2008, and in the alternative to be placed at par with direct recruits appointed in the same year of recruitment i.e. 1999, by placing them in cyclical order by virtue of Rule 8(3).
22. Petitioners claim is opposed by the State, as well as by the direct recruits, contending that there is no legal and vested right in petitioners to claim promotion at par with direct recruits or promotees of seniority subject to rejection of unfit. It is contended that seniority Rules of 1991 do not apply, inasmuch as prior to introduction of Rules of 2008 service conditions of Sub-Inspectors were never governed by statutory Rules framed under proviso to Article 309, and a Government Order of the year 1996 is relied upon to contend that the Rules of 1991 are restricted to service rules framed under the proviso to Article 309 and it would not extend to police force. It is also contended that prior to 2.12.2008 there did not exist any quota-rota rule nor Rules of 1991 were applicable, and in its absence the petitioners cannot claim any benefit of seniority from a previous date. Alternatively, it is contended by Sri Sandeep Dikshit, Advocate, that rule 8(3) of 1991 Rules would otherwise not apply inasmuch as it does not deal with an eventuality where two modes of promotion are contemplated. Further contention is that petitioners since had applied for promotion under competitive departmental examination category and their promotion was dependent upon passing such examination, as such they cannot claim parity in promotion viz-a-viz promotees under the seniority subject to rejection category. It is also argued that benefit of Rule 8(3) cannot be extended in respect of selection held prior to 2.12.2008 and claim of petitioners is unsustainable.
23. On the basis of respective case set up by the parties, the issue that arises for consideration in these bunch of cases is as to whether promotee Sub-Inspectors falling in competitive departmental examination category are entitled to seniority viz-a-viz promotees under seniority subject to rejection of unfit category, or direct recruits, applying the principle of quota-rota rule?
Answer to the issue would first require determination of following ancillary questions:-
(i) Whether there existed any rule providing for quota-rota in 1999 or thereafter but prior to 2.12.2008?
(ii) Whether seniority could be claimed as a matter of right if proceedings for direct recruitment and promotion are initiated in the same year of recruitment, even in absence of quota-rota rule, dislodging long standing seniority?
(iii) Whether petitioners have already been granted benefit of seniority with direct recruits applying the provisions of Rule 8(3) of 1991 Rules, by virtue of orders dated 8.3.2013 and 22.4.2013?
(iv) Whether seniority list published in 2016 is contrary to the applicable rules as also the orders previously passed by the authorities?
24. I have heard Sri S.K. Kalia, learned Senior Counsel assisted by Sri Gaurav Mehrotra and Dr. L.P. Misra for the petitioners, Sri Sandeep Dikshit, Sri Anurag Shukla, Sri S.M. Singh Royekwar, Sri A.P. Singh and Sri J.N. Mathur, learned Senior Advocate assisted by Sri Vinayak Saxena for the private respondents and intervenors. Sri Vivek Kumar Shukla, learned Additional Chief Standing Counsel has been heard for the State.
25. At the threshold it would be proper to analyse the statutory scheme operating in the matter of recruitment and promotion to the post of Sub-Inspector in Civil Police. Prior to 2.12.2008 there was no statutory service rule framed for the purpose. Field was occupied by executive instructions. Based upon recommendation contained in para 245 of the U.P. Police Commission, 1960, a Government Order was issued on 29.10.1965 containing procedure regarding promotion to the rank of Sub-Inspector, Civil Police. It provided for the method to be followed for selection of Constables/Head Constables for their admission to the Sub-Inspector, Civil Police Course at the Police Training College, Moradabad. A subsequent Government Order dated 5.11.1965, contemplated procedure for selecting Sub-Inspector for their promotion to the post of Inspector. In supersession of previous instructions another Government Order was issued on 31.8.1977 for selecting Sub-Inspectors (Civil Police) for their training. It was only on 15.7.1986 that ratio of 50:50 was fixed between promotion and direct recruitment for the post of Sub-Inspector, as far as feasible, provided eligible candidates were available. Promotional quota was further split vide Government Order dated 8.3.1995 in the ratio of 1:1, between promotees on the basis of seniority subject to rejection of unfit and through competitive departmental examination. By the subsequent Government Order of 19.5.1998 promotion to the post of Sub-Inspector was left entirely to be made on clearing the departmental competitive examination. It was only between the period 8.3.1995 and 19.5.1998 that two avenues were available for promotion i.e. by way of seniority subject to rejection of unfit and departmental competitive examination.
26. There was, however, no provision in the applicable executive instructions for rotation. It was only when statutory Rules of 2008 were introduced that seniority Rules of 1991 was made applicable. It is otherwise not in issue that prior to 2.12.2008 there was no determination of seniority applying the principles of rotation. In such circumstances it can be safely observed that neither there existed any provision in the applicable executive instructions for applying rotation rule nor was it actually applied during the relevant period when recruitment was made i.e. from 1999 to 2.12.2008. As a matter of fact there is nothing on record even otherwise to show that any practice existed in the department applying rotation rule while determining seniority of Sub-Inspectors. Any determination of seniority subsequently i.e. after 2.12.2008 would not be relevant for the period under consideration.
27. Learned counsel for the petitioners have relied upon the Rules of 1991 in order to contend that sub-rule (3) of rule 8 would provide for rotation even if such a provision did not exist in the applicable executive instructions. Reliance is placed upon a Division Bench judgment of this Court in Ravindra Nath Pandey vs. State of U.P. through Principal Secretary, Revenue reported in (2014) 4 UPLBEC 2731, to contend that expression 'one selection' occurring in rule 8(2) of 1991 Rules would mean direct recruitment and promotion made in a 'recruitment year'. Para 31 of the report, relied upon for the purpose, is reproduced hereinafter:-
"31. So far as the mandate contained in Rule 2 of 1991 Seniority Rules to the effect where appointments are made both by promotion and direct recruitment on the result of one selection, seniority of promotee and direct recruits will be determined by a cyclic order, is concerned, since admittedly and ordinarily, in one selection, appointment and direct recruitment may not be done, then while construing the provisions harmoniously, the provision contained in Sub Rule (3) may be interpreted relating it to the year of recruitment as defined by Sub Rule (m) of Rule 3 of 1992 Rules. It means all persons who have been appointed by direct recruitment or by promotion in a recruitment year shall be entitled to be considered for seniority in pursuance to 1991 Seniority Rules. The seniority list shall contain the names of officers in order of their recruitment against substantive vacancy relating back to the recruitment year. The appointment should have been done in accordance with rules."
(emphasis supplied)
28. Petitioners have also placed reliance upon a decision of this Court in Umesh Chandra Pandey vs. State of U.P. and others (Writ Petition No.8783 of 2002) to contend that Rules of 1991 would be applicable upon the police department. Following observations from the judgment is relied upon:-
"From a perusal of the aforesaid it is clear that the seniority of the candidate would be such as shown in the merit list in a particular selection. Para 41(5) of the U.P. Police Training College Manual is quoted herein below:-
"(5) The examination board shall prepare a list of cadets who have attained the requisite degree of proficiency and shall place those cadets in order of seniority determined according to the marks obtained in the final examination."
From the perusal of the aforesaid, it is clear that the list of seniority would be of cadets which are prepared in the order of seniority determined according to the marks obtained in the final examination. Rule 8(2) of the Rules of 1991 and paragraph 41(5) of the U.P. Police Training College Manual speaks the same language and makes it apparently clear that the seniority would be determined as shown in the merit list."
29. Argument in this regard is seriously opposed on the ground that Rules of 1991 do not apply upon police force, ipso facto, and has otherwise been made applicable only under the Rules of 2008.
30. Rules of 1991 clarifies its applicability. Rule 2 thereof defines its application in following words:-
"2. Application- These rules shall apply to all government servants in respect of whose recruitment and conditions of service, rules may be or have been made by the Governor under the proviso to Article 309 of the Constitution."
31. Admittedly, service rules in respect of Sub-Inspectors of Civil Police or any other branch have not been framed by the Governor under the proviso to Article 309 of the Constitution. For them, service rules have been framed 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 Police Act, 1861. It would be difficult to accept the contention of petitioners that Rules of 1991 would be attracted upon the Sub-Inspectors of Civil Police, particularly when it is intended to apply to services for which rules are to be or have been framed under the proviso to Article 309 of the Constitution of India.
32. In A.B. Krishna and others vs. State of Karnataka and others, AIR 1998 SC 1050, the issue has been examined by the Apex Court in para 8 and 9 which are reproduced hereinafter:-
"8. The Fire Services under the State Government were created and established under the Fire Force Act, 1964 made by the State Legislature. It was in exercise of the power conferred under Section 39 of the Act that the State Government made Service Rules regulating the conditions of Fire Service. Since Fire Service had been specially established under an Act of the Legislature and the Government, in pursuance of the power conferred upon it under that Act, has already made Service Rules, any amendment in the Karnataka Civil Services (General Recruitment) Rules, 1977 would not affect the special provisions validly made for Fire Services. As a matter of fact, under the scheme of Article 309 of the Constitution, once a Legislature intervenes to enact a law regulating the conditions of service, the power of Executive, including the President or the Governor, as the case may be, is totally displaced on the principle or "Doctrine of Occupied Field". If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a Rule under Article 309 in respect of that matter.
9. It is no doubt true that the Rule-making authority under Article 309 of the Constitution and Section 39 of the Act is the same, namely, the Government (to be precise, Governor, under Article 309 and Govt. under Section 39), but the two jurisdictions are different. As has been seen above, power under Article 309 cannot be exercised by the Governor, if the legislature has already made a law and the field is occupied. In that situation, Rules can be made under the Law so made by the legislature and not under Article 309. It has also to be noticed that Rules made in exercise of the rule- making power given under an Act constitute Delegated or Sub- ordinate legislation, but the Rules under Article 309 cannot be treated to fall in that category and, therefore, ont he principle of "occupied field", the Rules under Article 309 cannot supersede the Rules made by the legislature."
33. The issue has again been examined by the Apex Court in the context of Police Act, 1861, in Chandra Prakash Tiwari and others vs. Shakuntala Shukla and others, (2002) 6 SCC 127. The judgment in A.B. Krishna (supra) was quoted with approval in Chandra Prakash Tiwari (supra). After noticing the provisions of Act of 1861 as well as proviso to Article 309 in respect of police personnel, their Lordships of Apex Court observed as under in para 36 and 37 of the report:-
"36. On a conspectus of the whole issue, it is thus difficult to comprehend that the General Rules 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 hereinbefore, 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 guidelines as noted above, its applicability cannot be doubted. Unless the General Rules specifically repeal the effectiveness of the special rules, question of the latter rules becoming ineffective or inoperative would not arise. In order to be effective, an express mention is required rather than an imaginary repeal. It is now a well-settled principle of law for which no dilation is further required that law courts are rather loath to repeal by implication. The General Rules framed under Article 309 have been for all State Government officials on and since 1994. List II (State List) of the Seventh 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 2-A of List I."
37. 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 therefor 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. In any event, the General Rules are only prospective in nature and as such could not have affected the selection process which commenced in the year 1993 and it is on this score the parties advanced quite lengthy submissions but in our view question of further consideration thereof would not arise by reason of the commencement of the selection process in 1993."
(emphasis supplied)
34. Neither the provisions of 1991 Rules nor the judgment of the Apex Court in A.B. Krishna (supra) and Chandra Prakash Tiwari (supra) have been brought to the notice of the learned Single Judge in Umesh Chandra Pandey (supra). In such circumstances, with utmost respect, I am of the opinion that the decision in Umesh Chandra Pandey (supra) does not lay down the correct law and cannot be relied upon. In such view of the matter, I am of the considered opinion that prior to 2.12.2008 there existed no provision in the applicable law or the executive instruction providing for rotation rule to be applied in determining seniority of Sub-Inspectors.
35. This takes us to the next ancillary question as to whether rotation rule would apply in the matter of determining seniority where recruitment is made both by direct recruitment and also by promotion, even in the absence of rule in that regard?
36. Sri Kalia submits that when actual appointment is delayed on account of factors which are beyond their control, notional seniority must be given so as to avoid inequality resulting in arbitrariness. Reliance is placed upon decision of the Apex Court in Dr. A.R. Sircar v. State of U.P., (1993) Supp (2) SCC 734. Para 6 of the decision is relied upon and is reproduced below:-
"6. The decision of the High Court is primarily based on the proviso to Rule 20(1) extracted earlier which clearly states that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be the date of his substantive appointment, otherwise the relevant date will be the date of the order of appointment. The order of October 31, 1989 which has been reproduced in the judgment of the High Court does not specify any back date and, therefore, ordinarily the appellant's appointment would be taken as from the date of issuance of the order. But the order clearly states that the appointment is on the basis of selection by direct recruitment. It may be mentioned that in the counter-affidavit filed on behalf of the State Government it has been clarified in paragraph 3(k) that the direct recruitment was for the vacancy of 1982-83 but on account of a clerical omission this fact was not mentioned in the appointment order. This statement clarifies that although the appointment was made on October 31, 1989, it related to the vacancy of 1982-83. That is even otherwise obvious from the fact that the advertisement issued in December 1984 was for filling up the vacancy of the year 1982-83 by direct recruitment. There can, therefore, be no doubt whatsoever that the appointment of the appellant was for the vacancy of 1982-83. Had it not been for the intervening stay order granted by the High Court in Writ Petition No. 1545 of 1986, the appellant would have been appointed long before the regularisation of promotion of respondents 4 and 5 under the 1988 Rules. Respondents 4 and 5 who were instrumental in seeking the interim order from the High Court staying the implementation of the select list cannot be allowed to take advantage of their own wrong. The dismissal of their petition on July, 24, 1989 goes to show that they had successfully blocked the regular entry of the appellant on a substantive vacancy of the year 1982-83 by filing an untenable writ petition. The interim order passed by the High Court kept the appellant out from securing a regular appointment on a substantive vacancy and in the meantime respondents 4 and 5 by virtue of the 1988 Rules secured regularisation of their ad hoc appointments as Professors of Medicine. It is, therefore, obvious that on the one hand they precluded the appellant from occupying the substantive vacancy of the year 1982-83 and on the other they got their ad hoc appointments regularised under the 1988 Rules. If the intervening stay order had not prevented the appellant's appointment to the substantive vacancy, there can be no doubt that the appellant would have occupied that post earlier in point of time if Dr Aggarwal was not prepared to join. In that case the appellant would have been senior to respondents 4 and 5. One cannot loose sight of the fact that respondents 4 and 5 had competed along with the appellant for selection to the post as a direct recruit but had failed. It, therefore, stands to reason, both in principle and in equity that respondents 4 and 5 are not permitted to take advantage of the situation of their creation. Even if the Act is taken as non-est and the rules framed thereunder are ignored, on first principles also, there is no reason why the appellant should be denied the benefit of appointment in the vacancy of 1982-83 on Dr Aggarwal declining to join. Throughout in the seniority list prepared by the State authorities the appellant was shown to be senior to respondents 4 and 5. The High Court, however, went strictly by the language of the proviso to Rule 20(1) and concluded that since the appointment order of the appellant did not specify the back date, the seniority of the appellant must be reckoned from the date of the order of appointment. But the High Court failed to realise that the selection of the appellant was for the vacancy of 1982-83 meant for direct recruits. The appellant was appointed under the order of October 31, 1989 pursuant to his selection and empanelment in the select list. Therefore, the appellant's appointment must relate to the vacancy of 1982-83. Even the appointment order specifically states that the appointment is ''on the basis of the selection by direct recruitment'. The draftsman had, therefore, the vacancy of 1982-83 in mind. It is true that the appellant was at serial No. 2 and could claim placement in the slot of 1982-83 only if Dr Aggarwal declined to join. Unfortunately because of the intervening stay order the wish of Dr Aggarwal could not be ascertained till after the dismissal of the writ petition on July 24, 1989. We are, therefore, of the view that the High Court was not right in fixing the date of entry of the appellant into the regular service as October 31, 1989."
(emphasis supplied) Reliance is placed upon para 20 and 21 of the decision in U.D. Lama vs. State of Sikkim, (1997) 1 SCC 111, which is reproduced below:-
"20. On the other hand, it cannot be overlooked that the appellants were not appointed by following the regular procedure of appointment. Under Rule 4(1), recruitment could be made to the newly-created State Civil Service by competitive examinations to be held by the Sikkim Public Service Commission. This competition is not confined to persons who are already in government employment. The second method of recruitment is selection from persons "serving in connection with the affairs of the State of Sikkim". In the second category of recruitment, specifically no provision of holding written examination and viva voce has been laid down. The respondents claim that had the procedure in Rule 4(1)(b) been followed, they would have got into the Service without any examination. But their lawful expectation was denied by the failure of the Government to set up a Commission or appoint a Chairman. What would have happened in normal course, did not happen because of the Government's failure. Only because of this, quite contrary to the Rules, written and oral tests were held. This was upheld by this Court principally on the ground of what was described as "peculiar situation" which was created by the absence of a Commission and its Chairman. The selection and appointments made in 1982 were dictated by peculiar circumstances obtaining at that time. The appointments were not made strictly in accordance with the Rules but, as was held by this Court, in exercise of the executive power of the State. It is true that some of the respondents appeared in the tests and did not qualify but there is substance in the contention of the respondents that they were entitled to be appointed even without these tests if Rule 4(1)(b) was followed. They were deprived of this chance. Even for Rule 4(1)(b), the instrumentality of Public Service Commission was necessary for making any appointment. Now that the Public Service Commission has been set up, the State Government has to undo the wrong that was initially done to these employees by subjecting them to tests which was not warranted by Rule 4(1)(b). Therefore, they should not be made to suffer in the matter of seniority or promotion in any way by failure of the State Government to implement the Rules laid down by it. In these circumstances by directing the new recruits to be treated to have been recruited on the day the appellants were recruited, the State Government has not done anything contrary or wrong but has really restored (sic removed) the injustice done to the respondents by the State Government's failure to recruit them into the Service in accordance with Rule 4(1)(b). In fact, the only door that was open to the appellants under the Rules to enter the Service was through Rule 4(1)(b). They might have also joined through open competition but neither of the two steps were taken or could be taken. In these circumstances, the appellants have really tried to steal a march upon the respondents by being successful in the tests which should not have been held in any event.
21. We are of the view that the contention of the respondents must be upheld. The point in dispute has been examined in depth by two Committees set up by the State Government. The earlier judgment of this Court upholding the recruitment of the appellants was because of the failure of the State Government to appoint the State Public Service Commission. As no appointments were being made for a number of years, the Government adopted the device of holding a written test which was not laid down by the Rules. This Court held that under the peculiar circumstances, it was justified. This, however, does not mean that the State Government would not be entitled to regularise the service on the basis of the rules framed. The appellants who were appointed under very special circumstances cannot claim any special right in the matter of promotion or seniority. It was not the fault of the respondents that appointments according to rules could not be made in time. Taking an overall view of the matter, we are of the opinion that the High Court has come to a correct decision. The appeal is, therefore, dismissed with no order as to costs."
(emphasis supplied) In Balwant Singh Narwal vs. State of Haryana and others, (2008) 7 SCC 728, following observations made in para 7, 8, 9 & 10 are relied upon and are reproduced below:-
"7. The High Court rejected the writ petition by the impugned order dated 5-10-2004. It held that appointments of Respondents 4 to 16 were in regard to an advertisement issued prior to the advertisement, in response to which the appellants were selected; that the actual appointment of Respondents 4 to 16 was delayed not for want of any vacancies but on account of litigation which were beyond their control; that but for the decision rendered by the learned Single Judge on 4-4-1994 declaring selections beyond 18 to be illegal, they would have been appointed on 2-6-1994 when the other candidates from the said merit list were appointed; and that therefore, the State Government was justified in giving Respondents 4 to 16 benefit of notional seniority with effect from 2-6-1994 and placing them above the appellants who were appointed against subsequent vacancies/advertisements.
8. The said decision is challenged by the appellants reiterating the contentions urged before the High Court. Reliance was also placed on the decisions of this Court in S.K. Saha v. Prem Prakash Agarwal [(1994) 1 SCC 431 : 1994 SCC (L&S) 574 : (1994) 26 ATC 607] , Chandra Prakash (Dr.) v. State of U.P. [(2002) 10 SCC 710 : 2003 SCC (L&S) 308] and State of Uttaranchal v. Dinesh Kumar Sharma [(2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594] and other cases which lay down the general proposition that selection by the Public Service Commission is merely recommendatory and does not imply automatic appointment and that the appointing authorities should not give notional seniority without valid reason, from a retrospective date, which would affect the seniority of those who have already entered service.
9. There is no dispute about these general principles. But the question here is in regard to seniority of Respondents 4 to 16 selected on 1-10-1993 against certain vacancies of 1992-1993 who were not appointed due to litigation, and those who were selected against subsequent vacancies. All others from the same merit list declared on 1-10-1993 were appointed on 2-6-1994. Considering a similar situation, this Court, in Surendra Narain Singh v. State of Bihar [(1998) 5 SCC 246 : 1998 SCC (L&S) 1317] held that candidates who were selected against earlier vacancies but who could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, will have to be placed above those who were appointed against subsequent vacancies.
10. This Court while allowing the appeals by Respondents 4 to 16 by order dated 6-12-1999 made it clear that all the 30 persons recommended by the Commission as per merit list dated 1-10-1993, including Respondents 4 to 16 are entitled to be appointed. The State Government submitted that but for the order dated 4-4-1994 of the High Court, Respondents 4 to 16 would have been appointed on 2-6-1994 itself. The order dated 4-4-1994 was ultimately set aside by this Court and Respondents 4 to 16 who were consequently appointed should not be denied the benefit of seniority. Therefore, the State Government was justified in giving them only notional seniority and placing them immediately below the other 16 candidates selected in the common merit list (published on 1-10-1993) and appointed on 2-6-1994. Respondents 4 to 16 have been given retrospective seniority not from the date of their selection as wrongly assumed by the appellants, but from 2-6-1994 when other selected candidates in their merit list were appointed."
(emphasis supplied) In Asis Kumar Samanta vs. State of West Bengal, (2014) 10 SCC 357, para 20 & 21 is relied upon and is reproduced below:-
"2. In the first place, there is already a three-Judge Bench decision, namely, U.D. Lama v. State of Sikkim [U.D. Lama v. State of Sikkim, (1997) 1 SCC 111 : 1997 SCC (L&S) 142] on the issue referred by the two-Judge Bench [Asis Kumar Samanta v. State of W.B., (2007) 5 SCC 800 : (2007) 2 SCC (L&S) 262] . In U.D. Lama [U.D. Lama v. State of Sikkim, (1997) 1 SCC 111 : 1997 SCC (L&S) 142] , this Court held in paras 20 and 21 of the Report as follows: (SCC pp. 121-22) "20. On the other hand, it cannot be overlooked that the appellants were not appointed by following the regular procedure of appointment. Under Rule 4(1), recruitment could be made to the newly-created State Civil Service by competitive examinations to be held by the Sikkim Public Service Commission. This competition is not confined to persons who are already in government employment. The second method of recruitment is selection from persons "serving in connection with the affairs of the State of Sikkim". In the second category of recruitment, specifically no provision of holding written examination and viva voce has been laid down. The respondents claim that had the procedure in Rule 4(1)(b) been followed, they would have got into the service without any examination. But their lawful expectation was denied by the failure of the Government to set up a Commission or appoint a Chairman. What would have happened in normal course, did not happen because of the Government's failure. Only because of this, quite contrary to the Rules, written and oral tests were held. This was upheld by this Court principally on the ground of what was described as ''peculiar situation' which was created by the absence of a Commission and its Chairman. The selection and appointments made in 1982 were dictated by peculiar circumstances obtaining at that time. The appointments were not made strictly in accordance with the Rules but, as was held by this Court, in exercise of the executive power of the State. It is true that some of the respondents appeared in the tests and did not qualify but there is substance in the contention of the respondents that they were entitled to be appointed even without these tests if Rule 4(1)(b) was followed. They were deprived of this chance. Even for Rule 4(1)(b), the instrumentality of Public Service Commission was necessary for making any appointment. Now that the Public Service Commission has been set up, the State Government has to undo the wrong that was initially done to these employees by subjecting them to tests which was not warranted by Rule 4(1)(b). Therefore, they should not be made to suffer in the matter of seniority or promotion in any way by failure of the State Government to implement the Rules laid down by it. In these circumstances by directing the new recruits to be treated to have been recruited on the day the appellants were recruited, the State Government has not done anything contrary or wrong but has really restored (sic removed) the injustice done to the respondents by the State Government's failure to recruit them into the service in accordance with Rule 4(1)(b). In fact, the only door that was open to the appellants under the Rules to enter the service was through Rule 4(1)(b). They might have also joined through open competition but neither of the two steps were taken or could be taken. In these circumstances, the appellants have really tried to steal a march upon the respondents by being successful in the tests which should not have been held in any event.
21. We are of the view that the contention of the respondents must be upheld. The point in dispute has been examined in depth by two Committees set up by the State Government. The earlier judgment of this Court upholding the recruitment of the appellants was because of the failure of the State Government to appoint the State Public Service Commission. As no appointments were being made for a number of years, the Government adopted the device of holding a written test which was not laid down by the Rules. This Court held that under the peculiar circumstances, it was justified. This, however, does not mean that the State Government would not be entitled to regularise the service on the basis of the Rules framed. The appellants who were appointed under very special circumstances cannot claim any special right in the matter of promotion or seniority. It was not the fault of the respondents that appointments according to rules could not be made in time. Taking an overall view of the matter, we are of the opinion that the High Court has come to a correct decision. The appeal is, therefore, dismissed with no order as to costs."
(emphasis supplied) We are in respectful agreement with the legal position exposited in U.D. Lama [U.D. Lama v. State of Sikkim, (1997) 1 SCC 111 : 1997 SCC (L&S) 142] .
3. Applying the above legal position to the facts of the present case, it may be noted that vacancy against promotion quota in the cadre of 22 Forest Rangers occurred on 1-1-1989. But their case could not be processed because of the interim order passed by the High Court restraining the authorities from giving them promotion to the West Bengal Forest Service. The stay order was vacated on 11-12-1990. It was only thereafter the selection process for promotion commenced. It was for this reason that the Public Service Commission recommended that private respondents be given retrospective seniority with effect from 31-12-1990. As per Rule 6(2) of the W.B. Services (Determination of Seniority) Rules, 1981 (for short "the 1981 Rules") the promotees shall be en bloc senior to the direct recruits of the same year; the private respondents in the writ petition were given notional seniority with effect from 1-1-1990.
4. The legal position in U.D. Lama [U.D. Lama v. State of Sikkim, (1997) 1 SCC 111 : 1997 SCC (L&S) 142] squarely applies to the present fact situation. The private respondents could not have been made to suffer because of intervention by the Court by way of interim relief. The State Government was not in a position to proceed with the selection by way of promotion under the Rules in view of the stay order passed by the Court. No sooner the stay order was vacated, the process for the selection by way of promotion commenced. The impugned seniority list cannot, in these circumstances, be said to be legally flawed."
Reliance is also placed upon a Division Bench judgment of this Court in Smt. Premkala Singh and another vs. High Court of Judicature at Allahabad and others, Service Bench No.16569 of 2016 alongwith connected cases for the same proposition. Relevant portion of the judgment is reproduced below:-
"In view of above judgment of the Supreme Court and the factual scenario which has arisen in this case we do not find any fault on the part of the respondents in giving appointments to direct recruits with retrospective effect (without salary) i.e. from the date the last candidate of 1998-2000 recruitment joined, as, it balanced the equities to some extent, as, said respondents had been selected earlier in the year 2004 in pursuance to an advertisement of June, 2000 and their appointments were delayed by many years till 2011/2012 on account of pendency of the dispute aforesaid before the Courts at the behest of promotees, while others selected along with them by direct recruitment were given appointment during the year 2005-07. They have not been given appointment/ seniority from date of occurrence of vacancy nor date of selection but from date of joining of last of the other direct recruits of the same recruitment. In fact, but for the judgment dated 25.8.2004 they would have been appointed in 2005 itself, moreover, they were also before the Supreme court challenging the judgment dated 25.8.2004 along with Ashok Pal Singh. The case at hand is an exception to the general proposition prohibiting direct appointment with retrospective effect and seniority based thereon as were the case of Balwant Singh Narwal (supra) and A.K. Sirkar (supra). Thus, they are entitled to seniority accordingly alongwith other appointees of the same recruitment but in terms of Rule 26 of the Rules, 1975. Issue No.(vi) is decided accordingly"
37. Per contra, it is contended on behalf of the respondents that seniority is to be reckoned from the date of substantive appointment and not from the date of accrual of vacancy. Submission is that date of entry in a particular service is the safest criterion for fixing seniority and that any departure from it must be based upon applicable rules or a valid classification which does not exist in this case. It is also contended that the judgments relied upon by the petitioners are distinguishable on facts and have no applicability in the instant case. It is also submitted that long standing seniority otherwise ought not to be disturbed unless required specifically by the rules. Reliance is placed upon the following judgments of the Apex Court:-
In A.P. Public Service Commission, Hyderabad and other vs. B. Sarat Chandra and others, (1990) 2 SCC 669, para 7 is relied upon and is reproduced below:-
"7. The rule prescribes the minimum as well as the maximum age for appointment as Deputy Superintendent of Police. Minimum age is 21 years. The candidate must have completed 21 years on the first day of July of the year in which the selection is made. He should not have also completed 26 years as on that day. The Tribunal while construing this rule has observed:
"According to the procedure the process of selection begins with the issue of the advertisement and culminates in forwarding the list to the appointing authority. The essence of the process lies in the preparation of the list. A selection can be said to have been done only when the list is prepared. In this view the eligibility of the candidates as to age has to be determined at this stage."
If the word ''selection' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the rule making authority."
In Ram Janam Singh vs. State of U.P. and another, (1994) 2 SCC 622, observations made in para 10 is relied upon and is reproduced below:-
"10. From time to time controversy regarding inter se seniority is raised between persons recruited from different sources to the same service. In past, notional seniority used to be given to one group of officers, purporting to mitigate their hardship or to rectify any alleged wrong done to them in the process of recruitment or promotion. Ultimately it was realised that if liberty is given to fix seniority of an officer or group of officers belonging to a particular category with reference to a notional date, that will lead to great uncertainty in public service. The date of entry into a particular service was considered to be the most safe rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from the different sources. After referring to different judgments of this Court, a Constitution Bench in the case of Direct Recruit Class II Engineering Officers' Assn. v. State of Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] came to the same conclusion. The same has been reiterated in the case of State of W.B. v. Aghore Nath Dey [(1993) 3 SCC 371 : 1993 SCC (L&S) 783 : (1993) 24 ATC 932] . It is now almost settled that seniority of an officer in service is determined with reference to the date of his entry in the service which will be consistent with the requirement of Articles 14 and 16 of the Constitution. Of course, if the circumstances so require a group of persons, can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority. But, whether such group of persons belong to a special class for any special treatment in matters of seniority has to be decided on objective consideration and on taking into account relevant factors which can stand the test of Articles 14 and 16 of the Constitution. Normally, such classification should be by statutory rule or rules framed under Article 309 of the Constitution. The far-reaching implication of such rules need not be impressed because they purport to affect the seniority of persons who are already in service. For promotional posts, generally the rule regarding merit and ability or seniority-cum-merit is followed in most of the services. As such the seniority of an employee in the later case is material and relevant to further his career which can be affected by factors, which can be held to be reasonable and rational."
In Pawan Pratap Singh vs. Reevan Singh and other, (2011) 3 SCC 267, principles laid down in para 45 is relied upon and thus is reproduced below:-
"45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows:
(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."
In State of U.P. vs. Ashok Kumar Srivastava,(2014) 14 SCC 720, para 24 & 25 thereof is relied upon and is reproduced below:-
"24. The learned Senior Counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh [(2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481] where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are reproduced below: (SCC pp. 281-82, para 45) "45. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
***
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."
25. In view of the aforesaid enunciation of law, the irresistible conclusion is that the claim of the first respondent for conferment of retrospective seniority is absolutely untenable and the High Court has fallen into error by granting him the said benefit and accordingly the impugned order [Ashok Kumar Srivastava v. State of U.P., (2010) 5 All LJ 550] deserves to be lancinated and we so do."
Reliance is also placed upon a Division Bench judgment of this Court in Shanti Shekhar Singh vs. State of U.P. and others, 2017 (6) ADJ 30. Para 111 of the report is relied upon wherein this Court has followed the Constitution Bench judgment of the Apex Court in Direct Recruit Class II Engineering Officers Association vs. State of Maharashtra, (1990) 2 SCC 715 and is reproduced hereinafter:-
"111. The Constitution Bench of Apex Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and Ors. - (1990) 2 SCC 715 stated the legal position with regard to inter se seniority of direct recruits and promotees and while doing so, inter alia, it was stated that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The legal position with regard to determination of seniority in service was summarized by the Apex Court as follows:
"(i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made.
(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.
(iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.
(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time."
(emphasis supplied)
38. In light of the decisions relied upon by the learned counsel for the parties, claim of petitioners for grant of notional seniority from a previous date needs to be examined. So far as the promotees in the seniority subject to rejection of unfit category is concerned, it would be seen that promotion in such a case is not dependent upon fulfillment of any condition like passing of any examination etc. but is to be granted on the basis of seniority subject to rejection of unfit. Ordinarily such benefit is to be granted as a matter of course if conditions of seniority is fulfilled and is not dependent upon fulfillment of any other condition like passing of exam etc. An affidavit is also filed on behalf of the State contending that 388 Sub-Inspectors relating to seniority of rejection of unfit category also the benefit of seniority has not been extended inasmuch as their names were never included in the final seniority list. This stand is, however, denied by the petitioners. Without going further into merits of the contention, particularly as those 388 persons are not before this Court, it would be appropriate to note that Sub-Inspectors in the category of seniority subject to rejection of unfit clearly constituted a separate and distinct class, inasmuch as grant of promotion to them was not dependent upon fulfillment of any condition like passing of competitive examination etc. Sri Anurag Shukla appearing for the respondents has contended that these 388 police personnel belonged to a separate class which originated in the integrum period to two Government Orders i.e. 8.3.1995 and 19.5.1998. It is contended that in the Division Bench judgment dated 9.12.2004 delivered in Special Appeal No.1372 of 1999, as also in subsequent special appeal decided on 14.3.2008, such class of personnel are treated as a special class.
39. The submission of respondents is worth acceptance. The candidates belonging to seniority subject to rejection of unfit quota cannot be equated with the petitioners. These 388 persons were claiming rights against post falling vacant between 8.3.1995 and 19.5.1998 on the basis of seniority, whereas petitioners staked claim pursuant to process initiated in 1999. In the case of writ petitioners the grant of promotion was not as a matter of routine and was dependent upon passing of preliminary written test, main written test, physical test, interview etc. Unless petitioners cleared the hurdles in their way by passing all such examinations, no right could be claimed by them. Plea of petitioners, therefore, of parity viz-a-viz promotees under seniority rule does not appear to be well founded.
40. So far as the parity with direct recruits are concerned, the position is not much different. During the relevant period neither there existed any rule of rotation nor petitioners were identically placed viz-a-viz direct recruits. Source of recruitment as well as rules regulating it were distinct. Petitioners had to qualify the examination and unless that happened no right would accrue to them.
41. Much emphasis has been laid on behalf of petitioners upon the observation of the Apex Court in Dr. A.R. Sircar (supra) to contend that any delay in the process of appointment, owing to intervention by Court, ought to be corrected by giving a retrospective effect to the appointment. In order to deal with the submission advance, facts of the case in Dr. A.R. Sircar (supra) need be taken note of. Appointment therein was to be made for the vacancy occurring in the year 1982-1983. The process was initiated and candidates from the open market as also ad hoc appointees applied. Ad hoc appointees could not clear the exam. Selection, however, was challenged by the ad hoc appointees. An interim order came to be passed in their favour. Writ petition was ultimately dismissed on 24.7.1989. Only thereafter appointment orders could be issued to candidates from open market. It was in this context that the Apex Court observed that ad hoc appointees had successfully blocked entry of direct recruits to the cadre, and in between got themselves regularized under the Rules of 1988. It was observed that but for the stay order, the direct recruits would have been appointed prior to regularization of ad hoc appointees. Apex Court, therefore, observed that the ad hoc appointees could not be permitted to take advantage of the situation created by them. It was in this context that benefit of appointment was extended from a previous date to candidates from open market. In contrast, the direct recruits herein had not challenged selection to be made by departmental competitive examination nor promotion of petitioners was in any manner blocked by the direct recruits. Considerations of applicable principles and equity do not therefore support the petitioners in claiming seniority from a previous date.
42. In U.D. Lama (supra) also the facts are clearly distinguishable. In that case appointment as per Rules could not be made due to non-existence of recruitment agency i.e. the Public Service Commission. Appointments were made at variance from the statutory rules due to peculiar circumstances prevailing and were protected. Public Service Commission was subsequently constituted and rights flowing from Rule 4(1)(b) was recognized. Apex Court observed that rights accruing from the statutory rules ought not to be made to suffer in the matter of seniority or promotion due to failure by State to implement the Rules. It was observed that tests conducted were since not referable to Rules, those who had cleared the examination not contemplated under the Rules ought not to be allowed to steal march over those entitled under the Rules. Facts in U.D. Lama (supra) are thus clearly distinct, and petitioners cannot claim any benefit on the basis of judgment in U.D. Lama (supra) also. Similarly facts in Balwant Singh Narwal (supra) and in Asis Kumar Samanta (supra) are also distinguishable. In Balwant Singh Narwal (supra) selection had already been made on 1.10.1993 against vacancies caused in 1992-1993, but it was stayed in respect of certain persons. Apex Court observed that but for the stay order, those selected on 1.10.1993 were entitled to benefit from the same date when others were selected in the same select list. Benefit of seniority was, therefore, granted to such persons over and above those who got selected against subsequent vacancies. In Asis Kumar Samanta (supra) it was observed that under the relevant Rules of 1981, promotees were en bloc entitled to seniority over direct recruits of the same year and in the facts of the case relief was extended relying upon the judgment in U.D. Lama (supra). These two judgments also have no applicability in the facts of the present case. The Division Bench judgment of this Court in Smt. Premkala Singh (supra) is also a decision rendered on the facts of its own, as is clear from the passage quoted above. Reliance was placed upon the judgment in Balwant Singh Narwal (supra) and Dr. A.K. Sircar (supra), which are clearly distinct and have no applicability on facts of the present case.
43. Rather, the Constitution Bench in Direct Recruit Class II Engineering Officers' Association (supra) clearly observed that inter-se seniority in a particular service has to be determined as per service rules. In absence of anything to the contrary appearing in the rule, the date of entry in a particular service or the date of substantive appointment has been held to be the safest criteria for fixing inter-se seniority. Any departure could be made based upon statutory rules, executive constructions or otherwise consistent with Articles 14 and 16 of the Constitution of India. In the present case, neither the rules nor executive instructions or considerations consistent with Articles 14 and 16 of the Constitution of India would require grant of seniority from a date prior to the entry of petitioners into service. The principles laid down by Apex Court in Pawan Pratap Singh (supra), which is to the similar effect as that in Direct Recruit Class II Engineering Officers' Association (supra) would be clearly applicable. It has been held that seniority cannot be reckoned from the date of occurrence of vacancy and cannot be given retrospective effect unless it is provided for in the relevant service rules. Upon consideration of materials placed on record, I have no hesitation in holding that in the absence of specific rule, long standing seniority cannot be dislodged only because direct recruitment and promotion had commenced in the same year of recruitment.
44. Coming to the next question whether petitioners have already been granted benefit of seniority with direct recruits, by virtue of order dated 20.4.2013, it is observed at the outset that the order dated 20.4.2013 has not been given effect to. No seniority list as per it has been finalized and published. The order dated 20.4.2013 merely lays down the guiding principles for determination of inter se seniority between the promotees and the direct recruits. No rights would accrue merely on the basis of guidelines issued. It is only when the order is given effect to and ultimate seniority is determined and published that any vested right could be claimed.
45. Similarly, the order of the Deputy Inspector General of Police (Establishment) dated 8.3.2013 at best could be claimed as laying down the principles for determining inter-se seniority between the direct recruits and the promotees. Nothing however has been shown to hold that any seniority list in fact got published on its basis.
46. The order dated 8.3.2013 as also the order dated 22.4.2013 were issued during the currency of 2008 Rules as per which inter-se seniority was to be determined in accordance with rule 8(3) of 1991 Rules. Actual seniority nevertheless could not be finalized as per 2008 Rules and it was only after Rules of 2015 came into being that seniority got determined. The competent authority vide its order dated 20.11.2016 has held that the instructions and the circulars dated 8.3.2013 and 22.4.2013 became meaningless and ineffective once the Rules of 2015 got enforced by repealing the Rules of 2008.
47. While examining the first ancillary issue it has been observed that prior to 2.12.2008 there existed no rule or executive instruction providing for quota-rota rule. Appointment of direct recruits as also the promotion of candidates pertaining to departmental competitive examination category took place prior to this date. Rule 8(3) of 1991 Rules was also not available. Petitioners therefore cannot claim that inter-se seniority between them and direct recruits ought to be determined as per Rules of 1991. This would be the position till the Rules of 2008 came into being. During currency of 2008 Rules no seniority could be determined, although, instructions were issued to formalize seniority as per Rules of 1991. Rights, however, never got crystallized in the petitioners of seniority as per Rules of 1991. In such circumstances, once different criteria for determination of seniority is laid down in the Rules of 2015, it would not be open for the petitioners to contend that benefit of seniority as per rule 8(3) of 1991 Rules has accrued to them on account of orders dated 8.3.2013 and 22.4.2013.
48. This leads to the last ancillary question posed for consideration. A final seniority list has been published on 13.11.2016 after rejecting objection of the petitioners. By a subsequent order dated 20.11.2016 the specific claim of seniority based upon Rules of 1991 and orders dated 8.3.2013 and 22.4.2013 has been rejected, for the reasons already noticed. The seniority list is drawn on the basis of Rules of 2015 as per which all Sub-Inspectors trained in one training session shall be junior to Sub-Inspectors trained in previous training session and shall be senior to the Sub-Inspectors trained in subsequent training session. Rule 22(1) of 2015 Rules, which provides for the aforesaid mechanism has already been extracted above in para 12 of this judgment.
49. Rule 22(1) of 2015 Rules had been challenged by way of amendment moved on 16.12.2016 in Writ Petition No.28189 (S/S) of 2016, but the same was subsequently not pressed vide application filed on 23.8.2017. Validity of Rules of 2015 therefore is not questioned. Admittedly, the seniority under challenge is as per the Rules of 2015.
50. Petitioners also contend that rules cannot be framed with retrospective effect when such jurisdiction is not vested upon the rule making authority in the statute itself. Reliance is placed upon the judgment of the Apex Court in State of Rajasthan and others vs. Basant Agrotech (India) Ltd., (2013) 15 SCC 1; Vice Chancellor, M.D. University, Rohtak vs. Jahan Singh, (2007) 5 SCC 77; Mahavir Vegetable Oils (P) Ltd. and another vs. State of Haryana and others, (2006) 3 SCC 62; Chairman, Railway Board and others vs. C.R. Rangadhamaiah and other, (1997) 6 SCC 623 and Union of India and others vs. Dr. S. Krishna Murthy and others, (1989) 4 SCC 689 in support of such contention.
51. Contention raised in this regard is fallacious. So far as determination of inter-se seniority of Sub-Inspectors in Civil Police is concerned, their did not exist any provision in that regard prior to 2.12.2008. It was only vide rule 22 of the 2008 Rules that the Rules of 1991 was incorporated for the purpose. During the continuance of Rules of 2008 also no seniority list was finalized. Even during this period the rules were not specific on the issue. Rule 8(3) of 1991 Rules have been extracted in para 15 of the judgment which would clearly go to show that it deals only with inter-se seniority amongst promotee and direct recruits. There is nothing to indicate as to how the inter-se seniority would be determined between promotee Sub-Inspectors under the category of seniority subject to rejection and the promotee under the competitive departmental examination category. There are no executive instructions for the purpose either. Even the orders dated 8.3.2013 and 22.4.2013 are silent on the issue.
52. Another ambiguity remains unresolved under the Rules of 1991. U.P. Police Training College Manual provides under para 41 (extracted in para 14 of this judgment) that seniority of the successful cadets would be determined according to their merit in the final examination of training. This provision would apparently be inconsistent with rule 8(3) of 1991 Rules as the seniority therein would have to be determined on the basis of rotation. These questions do not occur because of the fact that seniority itself never got determined as per Rules of 1991. It would nevertheless become relevant once a claim is raised for enforcing the Rules of 1991, as also the orders dated 8.3.2013 and 22.4.2013.
53. It is apparently to obviate such contradiction that specific norms have been laid to determine inter-se seniority in the Rules of 2015 consistent with para 41 of Manual and seniority has been determined accordingly. It is otherwise within the jurisdiction of rule making authority to frame rules for determining the inter-se seniority between direct recruits and the promotees from two different sources, particularly when the field was not occupied by any rule or executive instruction.
54. So far as the judgments relied upon by the petitioners are concerned, the Constitution Bench decision of Apex Court in Chairman Railway Board (supra), relied upon, holds the field and has been relied upon in subsequent decisions. Para 24 of the judgment which lays down the law is reproduced hereinafter:-
"24. In many of these decisions the expressions "vested rights" or "accrued rights" have been used while striking down the impugned provisions which had been given retrospective operation so as to have an adverse effect in the matter of promotion, seniority, substantive appointment, etc., of the employees. The said expressions have been used in the context of a right flowing under the relevant rule which was sought to be altered with effect from an anterior date and thereby taking away the benefits available under the rule in force at that time. It has been held that such an amendment having retrospective operation which has the effect of taking away a benefit already available to the employee under the existing rule is arbitrary, discriminatory and violative of the rights guaranteed under Articles 14 and 16 of the Constitution. We are unable to hold that these decisions are not in consonance with the decisions in Roshan Lal Tandon [AIR 1967 SC 1889 : (1968) 1 SCR 185 : (1968) 1 LLJ 576] , B.S. Vedera [AIR 1969 SC 118 : (1968) 3 SCR 575 : (1970) 1 LLJ 499] and Raman Lal Keshav Lal Soni [(1983) 2 SCC 33 : 1983 SCC (L&S) 231 : (1983) 2 SCR 287] ."
55. In High Court of Delhi and another vs. A.K. Mahajan and others, (2009) 12 SCC 62, their Lordships of the Apex Court interpreted the observations made in para 24 of the judgment in Chairman Railway Board (supra) as being applicable only where rights are vested or accrued and were affected retrospectively. Para 30 of the report in High Court of Delhi (supra) is reproduced hereinafter:-
"30. The things do not stop here. The substantial argument is that in this, the vested right of consideration was being affected. We have already explained the observations in para 24 of the judgment in Railway Board v. C.R. Rangadhamaiah [(1997) 6 SCC 623 : 1997 SCC (L&S) 1527] . We have also indicated as to how those observations have to be read and understood. In our opinion, when the writ petitioners suggested that their vested rights or accrued rights were affected because of the retrospective operation, they completely forgot that the observations pertained to the benefits which were already made available. We have, in the earlier paragraphs, already explained this concept."
56. In the facts of the present case, seniority as per Rules of 1991 was not determined and consequently no rights had accrued to promotees under competitive departmental examination category. By virtue of rule 22 the seniority was not determined automatically by operation of law but it was required to be determined. As a matter of fact, no such determination of seniority had been made, and therefore, the argument is sans merit. So far as judgment in State of Rajasthan vs. Basant Agrotech (India) Ltd. (supra) and Vice Chancellor, M.D. University, Rohatak (supra) are concerned, reliance therein is based upon para 41 to 43 of the judgment in Mahavir Vegetable Oils (P) Ltd. (supra) which lays down the proposition that a subordinate legislation can be given a retrospective effect only if such a power is given in the main Act. Para 41 and 42 of the report is reproduced hereinafter:-
"41. We may at this stage consider the effect of omission of the said note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect and retroactive operation, if any power in this behalf is contained in the main Act. The rule-making power is a species of delegated legislation. A delegatee therefore can make rules only within the four corners thereof.
42. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. (See West v. Gwynne [(1911) 2 Ch 1 : 104 LT 759 (CA)] ."
The proposition advanced is well settled but has no applicability in the facts of the present case.
57. Apart from the fact that in the absence of any accrued or vested right getting affected the proposition advanced would have no applicability, it would be appropriate to note that the Rules of 2015 have been framed exercising power under section 46(2) and (3) of the Police Act, 1861, which confers wide powers upon the State to make rules consistent with the Act. Relevant portion of section 46(2) & (3) is reproduced:-
"46.(2)..... the State Government may, from time to time, by notification in the Official Gazette, make rules consistent with this Act -
(a)-(b) ........
(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."
Rules of 2015 laying down criteria for determining inter-se seniority between the direct recruits and promotees in two category is not shown to be inconsistent with the Act in any manner. The seniority determined on 13.11.2016 by following the Rules of 2015 is held to be valid.
58. In view of the discussions made and the answer given to the question posed for consideration, it is held that petitioners promoted as Sub-Inspectors on 1.4.2008, against quota reserved for promotion by way of competitive departmental examination are not entitled to seniority with promotees under the seniority subject to rejection of unfit category, or with direct recruits who completed their training on 12.9.2002. The seniority list published on 13.11.2016, determining inter-se seniority between direct recruits and promotees, as also the order dated 20.11.2016, rejecting objection against it, are valid. Writ petitions accordingly fail and are dismissed. Parties to bear their own costs.
Order Date :- 30 January, 2018 Anil/Ashok Kr.
(Ashwani Kumar Mishra, J.)