Allahabad High Court
Alok Kumar Singh And Another vs State Of U.P. And 7 Others on 15 November, 2019
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 38 Case :- WRIT - A No. - 17331 of 2019 Petitioner :- Alok Kumar Singh And Another Respondent :- State Of U.P. And 7 Others Counsel for Petitioner :- Alok Mishra Counsel for Respondent :- C.S.C. Hon'ble Ashwani Kumar Mishra,J.
Petitioners are existing constables who have applied for appointment to the post of Sub Inspector in the direct recruitment quota and have been selected accordingly. They have approached this Court challenging an order dated 22.12.2015, passed by respondent no.1. This order records that while undergoing training the petitioners would only be treated as a trainee and would be entitled to stipend alone. Leave salary which was otherwise extended pursuant to a Government Order dated 16.9.1965 has been clarified as not being admissible to such class of persons. A prayer has further been made in the writ petition to direct the respondents to grant leave salary/allowances in addition to stipend admissible in light of the Govt. Order dated 16.9.1965 and the circular dated 3.11.1979 issued by the Deputy Director General of Police, Headquarter, Allahabad during the training of Sub Inspector.
Learned counsel for the petitioner has also placed reliance upon an order passed by the Apex Court in Transfer Case No.123 of 2017 dated 28.8.2019, which is extracted hereinafter:-
"Transfer Case (Civil) No.123 of 2017 arises out of Civil Miscellaneous Writ Petition No.4603 of 2016 filed by the present applicants in the High Court of Judicature at Allahabad, in which following reliefs were sought:
"a. Issue, a writ, order or direction, in the nature of certiorari, for quashing the impugned order dated 22/12/2015 passed by the Respondent No.6, the Deputy Inspector General of Police, Establishment, U.P. Police Headquarters, Allahabad, enclosed as Annexure, to the Writ Petition.
b. Issue, a writ, order or direction, in the nature of mandamous, directing the Respondents, to pay the salary and allowances for the post of Sub-Inspector, during the training period and also to pay the arrears of difference of salary and other benefits to the petitioners."
It was submitted that the applicants, who were constables/Head Constables in the police service in the State, had succeeded in the limited departmental examination and were to undergo training, whereafter they would be appointed as Sub- Inspectors in the police service that they would be paid stipend during the period of training.
However, it was submitted that all such candidates were also entitled to receive pay and allowances available to all the constables and head constables in police service, that is to say that even during the period of training the candidates must be extended all the facilities including pay and allowances.
The relevant guidelines in that behalf are to be found in GO No. 5134/VIII,-A-2000(30)/1963 dated 16th September, 1965 (Police) ? which state inter alia:-
"In so far as the question of allowing pay and allowances during the training period to much on incumbent is concerned, he should be allowed leave, salary for the period of leave admissible to him with allowances and in addition the stipend admissible to the public.
Cadets would be given only for the period no drawn leave salary at half or quarter average pay or --- on leave without pay during the period of training."
According to the G.O., the candidates would be entitled to leave, salary for the period admissible with allowances in addition to stipend admissible to the concerned persons. The idea is therefore very clear that it is not the regular pay i.e. admissible in such cases but in case there is any leave to the credit of the concerned person he can avail salary for the period of leave in addition to the stipend that would be admissible.
In the circumstances, we see no reason to interfere in the matter. Consequently, the Transferred Case and the Original Writ Petition stand dismissed.
Similar cases namely MA NO.806 of 2019 in T.C.(C) NO.159 of 2017, MA NO.801 of 2019 in T.C.(C) 203 of 2017, MA No.805 of 2019 in T.C.(C) NO.154 of 2017 also stand disposed of in the aforesaid terms."
Learned counsel for the petitioner submits with reference to the Govt. Order of the year 1965 that leave salary and other benefits are due and payable to the petitioners who are substantively appointed as Constable and have later on been selected for the post of Sub Inspector. Their status at present is that of a trainee. It is submitted that lien of the petitioners on the post of Constable subsists and as such denial of leave salary etc. by the order impugned is wholly arbitrary.
Petition is opposed by learned Standing Counsel, who submits that appointment on the post of Sub Inspector commences after completion of training and that training is not a part of the service itself. It is further highlighted that as against Sub Inspector, the Constable and Head Constable, who are governed by a separate set of rules are issued appointment and thereafter are sent on training, and therefore, any clarification issued by the State in respect of Constable/Head Constables would not be applicable in case of Sub Inspector.
Appointment to the post of Sub Inspector is governed by the U.P. Sub Inspector and Inspector (Civil Police) Service Rules, 2008. Recruitment to the post in the cadre is made in accordance with rule 5 which prescribes the source of recruitment. By virtue of rule 5(1)(i) of the Rules of 2008, 50% appointment on the post of Sub Inspector is to be made by direct recruitment through the Board and remaining posts are to be filled by promotion. It is admitted that though petitioners are constables but they are not seeking appointment in promotional quota and have applied in the category of direct recruitment and have been selected accordingly. Rule 15 of the Rules of 2008 provides for procedure for direct recruitment to the post of Sub Inspector. Training is regulated by rule 18 while appointment is referred to and dealt with in rule 19. Rule 18 & 19 of the Rules of 2008 would be relevant and are extracted hereinafter:-
"18. (1) The candidates finally selected for appointment under rules 15 and 16 to the post of Sub-Inspector shall be required to successfully undergo such training as prescribed by the Police Head Quarters from time to time prior to their appointment. The prescribed training shall be organized by the Head of the Department. After the successful completion of training, the Head of the Department shall forward the required number of names to the concerned appointing authorities.
(2) The candidates finally selected for appointment under rule 17 to the post of Inspector shall, after their appointment, be required to undergo a course regarding modern aspects of Police investigation.
19.(1) Subject to the provisions of clause (a) of rule 15 the appointing authority shall make appointment by taking the names of candidates in the same order in which they stand in the list prepared under clause (b) of rule 15.
(2) If more than one order of appointment are issued in respect of any one selection, a combined order shall also be issued, mentioning the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted.
Provided that any person appointed to a post in the service prior to the commencement of these rules and is working on the post, shall be deemed to have been substantively appointed under these rules and such substantive appointment shall be deemed to have been made under these rules."
Perusal of the statutory scheme would clearly go to show that after a candidate has been selected for appointment under rule 15, he shall be required to undergo training as prescribed by Police Headquarter from time to time prior to his appointment. It is only after successful completion of training that the appointment is to be offered to a candidate selected in the direct recruitment category. The rules, therefore, clearly go to show that training to such selected candidate is at a stage prior to appointment and is not on the job training inasmuch as appointment is offered only after training is successfully completed. Such training period, therefore, cannot be counted as a part of service tenure of the employee concerned. The benefit of leave and other service benefits are available to an employee only after appointment. Therefore, there would be no right to receive such service benefits during the period he undergoes training. The only benefit which would be admissible to such an employee would be to receive the amount of stipend fixed by the employer from time to time. The respondents, therefore, have committed no error in clarifying this aspect vide order dated 22.12.2015. The question of paying leave salary would not arise in case of a selected candidate prior to his appointment, while undergoing training. It would be worth noticing that position is not similar in case of a constable inasmuch as the rules in respect of constables contain a different scheme altogether, where appointment is offered before being sent on training. The parity with the Constable and Head Constable, who are governed by a separate set of rules, therefore, would not be available to the writ petitioners. Even otherwise, it would be worth observing that the Apex Court while disposing of the transfer case, referred to above, has been pleased to dismiss petitions raising similar reliefs.
In that view of the matter, there would be no occasion for this Court to interfere with the order impugned in the writ petitions. No mandamus is otherwise liable to be issued for payment of leave salary and other service benefits. So far as present petitioners are concerned, they have not resigned from the earlier post and lien etc. would be admissible in terms of the applicable rules.
Subject to the aforesaid observations, this writ petition is dismissed.
Order Date :- 15.11.2019 Ashok Kr.