Allahabad High Court
Sushil Kumar Singh And 127 Others vs State Of U.P. And 2 Others on 24 August, 2021
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 33
Case :- WRIT - A No. - 4924 of 2021
Petitioner :- Sushil Kumar Singh And 127 Others
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Prashant Mishra,Tarun Agrawal
Counsel for Respondent :- C.S.C.,Vikram Bahadur Yadav
Connected with
WRIT-A Nos. 5077 of 2021, 5324 of 2021, 5777 of 2021, 6132 of 2021, 6271 of 2021, 6272 of 2021, 6273 of 2021, 6274 of 2021, 6275 of 2021, 6277 of 2021, 6293 of 2021, 6298 of 2021, 6299 of 2021, 6303 of 2021, 6322 of 2021, 6326 of 2021, 6327 of 2021, 6328 of 2021, 6338 of 2021, 6341 of 2021, 6350 of 2021, 6351 of 2021, 6352 of 2021, 6353 of 2021, 6354 of 2021, 6355 of 2021, 6356 of 2021, 6357 of 2021, 6363 of 2021, 6365 of 2021, 6371 of 2021, 6373 of 2021, 6374 of 2021, 6420 of 2021, 6421 of 2021, 6440 of 2021, 6451 of 2021, 6473 of 2021, 6477 of 2021, 6490 of 2021, 6494 of 2021, 6516 of 2021, 6551 of 2021, 6552 of 2021, 6557 of 2021, 6559 of 2021, 6567 of 2021, 6577 of 2021, 6586 of 2021, 6646 of 2021, 6664 of 2021, 6705 of 2021, 6718 of 2021, 6724 of 2021, 6866 of 2021, 6889 of 2021, 6891 of 2021, 6915 of 2021, 6924 of 2021, 6979 of 2021, 6981 of 2021, 7008 of 2021, 7009 of 2021, 7015 of 2021, 7018 of 2021, 7326 of 2021, 7359 of 2021, 7460 of 2021, 7517 of 2021, 7533 of 2021, 7543 of 2021, 7553 of 2021, 7556 of 2021, 7594 of 2021, 7747 of 2021, 7758 of 2021, 7787 of 2021, 7798 of 2021, 7914 of 2021, 8079 of 2021, 8080 of 2021, 8123 of 2021, 8124 of 2021, 8144 of 2021, 8188 of 2021, 8415 of 2021, 8462 of 2021, 8818 of 2021 and 8892 of 2021.
Hon'ble Ashwani Kumar Mishra,J.
1. Recruitment to 9534 posts of Sub-Inspector, Civil Police (Male and Female), Platoon Commander PAC, and Second Officer in Fire Brigade came to be initiated by the Government of Uttar Pradesh, in furtherance of which an advertisement was issued by U.P. Police Recruitment Board, Lucknow (hereinafter referred to as the ''Board') on 24.2.2021. The advertised vacancies were of the recruitment years 2017-18, 2018-19 and 2019-20, respectively. Clause 3.4 of the advertisement required the age of applicant to be not below 21 years and not above 28 years as on 1.7.2021. Age relaxation was permissible for SC/ST candidates in terms of the State policy. The recruitment is regulated by the provisions of the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2015 (hereinafter referred to as the ''Rules of 2015').
2. On the relevant date i.e. 1.7.2021 all the writ petitioners were above 28 years of age and therefore ineligible to apply against aforesaid advertisement. Petitioners, however, assert that since advertised vacancies are of the years 2017-18, 2018-19 and 2019-20 and therefore, they be permitted to apply against the advertisement inasmuch as they were eligible when the vacancies arose, being below 28 years of age on the date vacancies occurred. It is also contended that respondents failed to advertise the vacancies in respective years despite an assurance having been given before the Supreme Court. As such the maximum age specified in Clause 3.4 of the advertisement be relaxed for them, as a one time measure, to enable them to apply for the recruitment in question.
3. Since prayer is made in this bunch of writ petitions is substantially the same, Writ Petition No.4924 of 2021 (Sushil Kumar Singh And 127 Others Vs. State Of U.P. And 2 Others) is treated as leading writ petition, wherein following prayer has been made:-
"I) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.1 to exercise powers under Section 46(2)(c) and 46(3) of the Police Act, 1861 and relax the upper age limit as provided in Rule 10 of the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2015 (hereinafter referred to as "Rules, 2015").
II) Issue a writ, order or direction in the nature of mandamus commanding the respondent no.1 to grant age relaxation to the petitioners and permit them to apply in pursuance of the advertisement dated 24.2.2021 by suitably amending the terms of the advertisement thereof;"
4. Petitioners have claimed above relief primarily on the basis of the orders passed by Supreme Court of India in Writ Petition (C) No. 183 of 2013 (Manish Kumar Vs. Union of India and others). According to them the State is bound by its undertaking given before the Court to fill up the vacancies caused in the respective recruitment years, annually, and their failure to honour such commitment has denied an opportunity to petitioners to apply for recruitment made to the posts of Sub-Inspector, Civil Police (Male and Female), Platoon Commander PAC, and Second Officer in Fire Brigade under advertisement dated 24.2.2021.
5. Before proceeding to examine the claim of petitioners, it would be appropriate to refer to the relevant provisions of Rules of 2015, which shall regulate recruitment, selection and appointment etc. on the posts so advertised. The Rules of 2015 have been framed by the Governor 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 with a view to regulate selection, promotion, training, appointment, determination of seniority and confirmation etc. of Sub-Inspectors and Inspectors of Civil Police in Uttar Pradesh Police Force.
6. Rule 3(b) specifies appointing authority to mean the Deputy Inspector General of Police, while Sub-rule (c) defines Board i.e. Uttar Pradesh Police Service Recruitment and Promotion Board. Rule 3(b), (c), (i), (m), (n) & (o) of the Rules of 2015 have bearing on the issues involved herein and are accordingly reproduced hereinunder:-
"3. In these rules unless there is anything repugnant in the subject or context,
(b) ''appointing authority' means the Deputy Inspector General of Police;
(c) ''Board' means the Uttar Pradesh Police Service Recruitment and Promotion Board, established in accordance with Government Orders issued from time to time in this regard;
(i) ''Member of services' means a person appointed to a post in service under these rules or any previous rules before the commencement of these rules.
(m) ''Service' means the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service;
(n) ''Substantive appointment' means an appointment, not being an adhoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government;
(o) ''Year of recruitment' means a period of twelve months commencing on the first day of July of a calendar year."
7. Rule 5 of Rules of 2015 provides for source of recruitment. By virtue of Sub-rule 1, 50% of appointment on the post of Sub-Inspector has to be made by direct recruitment through the Board. Rule 10 prescribes the age and is, therefore, relevant for our purposes, which reads as under:-
"10. A candidate for direct recruitment must have attained the age of 21 years and must not have attained the age of more than 28 years on the first day of July of a calendar year in which vacancies for direct recruitment are advertised:
Provided that the upper age limit in the case of candidate belonging to the Scheduled Caste, Scheduled Tribes and such other categories may be greater by such number of years as may be specified in the Act and prevalent Government Orders applicable at the time of the notification of the vacancies by the Board."
8. Rule 14 of Rules of 2015 provides for determination of vacancies and is quoted hereinafter:-
"14. The appointing authority shall determine and intimate to the Head of the Department the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under rule 6. The Head of the Department shall intimate the number of vacancies for both male and female candidates separately, to the Board and also to the Government. Subsequently the Board shall notify the vacancies for both male and female candidates separately in the following manner:-
(i) by issuing advertisement in daily Hindi and English newspapers having wide circulation;
(ii) by pasting the notice on the notice board of the office or by advertising through Radio/Television and other Employment newspapers;
(iii) by notifying vacancies to the Employment Exchange; and
(iv) by other means of mass communication."
9. Rule 19 provides for training which is to be imparted to Sub-Inspectors selected under Rule 15 and 16 of the Rules of 2015. Rule 19 is also extracted hereinafter:-
"19. (1)(a) The candidates finally selected to the post of sub inspector under rules 15 and 16 shall be required to pass the training prescribed by the Head of the Department. Provisions of Police Training College Manual shall be effective on the cadets during the basic training. If the candidate finally selected for basic training does not report for training within the stipulated time limit then his selection/candidature shall be cancelled.
(b) Re-examination of the cadets failing in basic training shall be organized by the Head of the Department after their supplementary training. The proceeding for termination of service of candidates failing in examination of training after supplementary training shall be done by the Appointing Authority.
2. The candidates appointed by promotion under rule 17 shall be required to complete the training prescribed by the Head of the Department."
10. Writ Petition (C) No.183 of 2013 (supra) which was in the nature of public interest litigation (PIL) was entertained by Supreme Court of India wherein one of the grievances raised was with regard to non-recruitment of police personnels in different States and Union Territories of India. On 24.4.2017 the Court passed following order:-
"State of Uttar Pradesh
1. 11,376 vacant posts of Sub-Inspector of Police, are to be filled up by way of direct recruitment. Mr. Debasish Panda, Principal Secretary (Home), Government of Uttar Pradesh, who is present in Court in person, affirms, that 3200 vacancies of the posts of Sub-Inspector of Police, will be filled up each year over four years commencing from the year 2018. The advertisement notifying the vacancies for 2018 will be issued in the month of January, 2018, the result of the selection process will be declared in October, 2018, the training of the selected candidates will commence in February, 2019, and will conclude in January, 2020. The schedule for the next three years, we are assured, will remain the same, as for the year 2018.
2. Insofar as the posts of Constables of Police are concerned, which are also to be filled up by direct recruitment, it was submitted, that 30000 Constables will be recruited annually for four years, i.e., during the years 2017, 2018, 2019 and 2020. The annual process of issuing the advertisement, notifying the vacancies will be published in August every year. The results thereof will be declared in June of the following year. For each process of selection, training will commence in the month of October in the year of the declaration of the result, and the training process will conclude in the month of September of the next following year.
3. We hereby approve the recruitment process for selection of direct recruits, at the level of Sub-Inspector of Police, as also, that of Constables of Police.
4. We also further direct, that promotions to the various ranks shall be made from time to time as may be feasible, depending on the cadre strength.
5. Mr. Debasish Panda, Principal Secretary (Home), Government of Uttar Pradesh, who is present in Court in person, shall ensure that the selection, recruitment and training is conducted in the manner indicated hereinabove (which is truly the proposal submitted by the State Government itself). For ensuring that the submission made to this Court is not breached, we direct the Principal Secretary (Home), Government of Uttar Pradesh to ensure, that the Chairman of the Police Recruitment and Selection Board shall not be changed midstream, i.e., during the period intervening the issuance of the advertisement notification(for filling up the vacancies of different cadres) till the process of selection is completed.
6. In case of breach of the time lines indicated hereinabove, the officer mentioned hereinabove, shall be personally responsible."
Aforesaid writ petition has since been disposed of, finally, vide following order passed on 11.3.2019:-
"The prayers made in the writ petition as amended in terms of the Interlocutory Application No. 2 of 2013 read as follows:
"A. Direction to all the States & Union Territories to constitute Police Commission to deal with allegation of police action, redressal of grievances of police and to make recommendations for the welfare of police force.
B. Directions to the States to formulate and implement the guidelines for prevention and control of violent mass agitations and destruction of life & property, in terms of the guidelines suggested by this Hon'ble Court in the decision reported as 2009(5)SCC 212.
C. Directions to the States and Union Territories to fill up the vacant posts in the Police and State Armed forces so that the police forces does not remain overburdened.
D. Directions to all the States and Union Territories to provide for periodic training and upgradation of police force and to fix the working hours for the police personnel.
E. Direction to the Union of India to prescribe guidelines for the Media Reporting of the violent mass agitation and police action for prevention and control thereof.
F. Order or Direction restraining the States from drawing a presumption against the action of police acting under the constitutional and statutory obligations."
From the material on record and the Orders passed by this Court from time to time it appears that one of the central issues canvassed till date is the filling up of the large number of vacancies in the different posts in the police forces in the States. In this regard detailed affidavits have been filed by a large number of States. In view of the factual matrix at some point of time it was in the contemplation of the Court that the matter be sent to High Court(s) for effective monitoring instead of this Court continuing with the present writ petition. Issue and problems are State specific and can be appropriately dealt with by the respective High Courts.
Having considered the matter, we are of the view that the records pertaining to each of the States including affidavits etc. be sent by the Supreme Court Registry to the Registry of the concerned High Courts with a request to Hon'ble the Chief Justice of the High Court to entertain the matter on the Judicial Side as suo motu Public Interest Litigation and monitor the prayers made from time to time.
With the aforesaid directions and observations, this Writ Petition shall stand disposed of."
11. Petitioners contend that while abovenoted writ petition was pending consideration before Supreme Court, a similar controversy arose regarding appointments for the posts of Constable on account of delayed issuance of advertisement, in Special Leave to Appeal (C) No.12569 of 2018, arising out of a judgment of this Court dated 16.2.2018 in Writ Petition No.6128 of 2018. Advertisement to fill up vacancies for the year 2017 was published on 14.1.2018 in the above matter. On account of above large number of applicants were deprived from applying since they became overage between 1.7.2017 to 30.6.2018. It was thus urged on behalf of aspiring candidates that in case vacancies of the year 2017 were advertised in calendar year 2017 itself then such candidates would have had a chance to compete. For Constables the required age was 18 to 22 years as on 1.7.2018. The State Government in above scenario took a benevolent decision to allow age relaxation which is recorded in the following order passed by the Supreme Court on 13.6.2018 in above mentioned special leave to appeal:-
"1. Order dated 24th April, 2017 passed by this Court in Writ Petition (Civil) No.183 of 2013, as regards State of Uttar Pradesh recorded as under:-
"2. Insofar as the posts of Constables of Police are concerned, which are also to be filled up by direct recruitment, it was submitted, that 30000 Constables will be recruited annually for four years, i.e., during the years 2017, 2018, 2019 and 2020. The annual process of issuing the advertisement, notifying the vacancies will be published in August every year. The results thereof will be declared in June of the following year. For each process of selection, training will commence in the month of October in the year of the declaration of the result, and the training process will conclude in the month of September of the next following year.
3. We hereby approve the recruitment process for selection of direct recruits, at the level of SubInspector of Police, as also, that of Constables of Police."
2. It has been stated at the bar that the last selection for the posts of Constables of Police in State of Uttar Pradesh through the Selection Board was undertaken in the year 2015. In spite of the statement so recorded in the aforesaid order, no selection was undertaken in the year 2017. Apparently, the process for making appropriate modifications in the Rules was underway. The advertisement was thereafter issued on 14.01.2018 which is annexed at Page No.65 of the paper-book.
3. Rule 10 of the Uttar Pradesh Police Constable and Head Constable Services Rules, 2015 stipulates that for direct recruitment for the post of constable, male candidates must have attained the age of 18 years and must not have attained the age of 22 years on the day of 1st July of the calender year in which the vacancies for direct recruitment are advertised. Since the advertisement in question was issued on 14.01.2018, the reckonable date for the purpose of Rule 10 is to be 01.07.2018.
4. The grievance raised by the petitioners is - that the prescribed age limit of not less than 18 years and not more than 22 years is such a short period that if the selections are not undertaken on year to year basis the concerned candidates are bound to be prejudiced. It is their submission that since a representation was made, which was duly recorded in the order quoted hereinabove that selection would be undertaken in the year 2017, an advertisement ought to have been issued in that year itself. However, since the advertisement was issued in January, 2018, going by the text of the Rules the reckoning date would be 01.07.2018. Since the last selection was in the year 2015 and if the reckoning date today is taken to be 01.07.2018 large body of candidates including the petitioners stand deprived of chance to compete. It is, therefore, submitted that since the selection was to be undertaken in the year 2017, in the fitness of things the reckoning date should be 01.07.2017. Resultantly, candidates including the petitioners would not become age barred for the purpose of being considered for selection. We see force in the submission and find that the grievance so raised merits consideration.
5. We, therefore, put to Mr. V. Shekhar, learned senior counsel representing State of Uttar Pradesh and asked him to take appropriate instructions in the matter so that the grievance raised by the petitioners could be appropriately addressed.
6. Mr. V. Shekhar, learned senior counsel after seeking instructions from Principal Secretary (Home), made following statement:-
- In the ensuing examination after the present selection, an exception shall be made in favour of such candidates who missed out merely because the date of reckoning for the present selection happens to be 01.07.2018 instead of 01.07.2017 and at least one more chance shall be given to such candidates to compete.
7. We record the statement and direct the State through its Principal Secretary (Home), to file an appropriate affidavit detailing out the facility to be afforded to such candidates. Said affidavit shall be filed within seven days from today and shall form part of the record. On the strength of the statement of Mr. V. Shekhar, learned senior counsel, we dispose of this special leave petition.
No further order is called for in the impleadment application.
Pending applications, if any, shall also stand disposed of. "
12. Petitioners herein by drawing a parallel with above order contend that they are identically placed, and therefore State Government cannot be allowed to discriminate against them. The argument is that State Government cannot act differently, in similar circumstances, and that State action in denying age relaxation to the petitioners is discriminatory and violative of Article 14 of the Constitution of India. In short it is pleaded on behalf of petitioners that there should be similar treatment in similar circumstances as different treatment in equal/similar circumstances amounts to discrimination. In the garb of classification, discrimination cannot be allowed. It is also urged that petitioners legitimately expected that State Government shall honour the undertaking given before the Supreme Court and this Court must compel/bind the State Government to act upon its undertaking given to the Supreme Court. In furtherance of aforesaid it is urged that a party which gives an undertaking before the Court cannot be permitted to resile from the undertaking/promise so given. To lend support to aforesaid, reliance is placed upon judgments of Supreme Court in Y.V. Rangaiah Vs. J. Srinivas Rao, (1983) 3 SCC 284; D.D.A. Vs. Skipper Construction Company, (1996) 4 SCC 622; Noorali Babul Thanewala Vs. K.M.M. Shetty and others, (1990) 1 SCC 259, and also an order of the Supreme Court in SLP (Civil) No.846 of 1987 (R.K. Rama Rao Vs. State of A.P.), decided on 8.5.1087. The plea of legitimate expectation is also pressed with reference to the judgments of Supreme Court in Ram Pravesh Singh and others Vs. State of Bihar and others, (2006) 8 SCC 381; State of Jharkhand Vs. Brahmaputra Metallics Ltd. and another, 2020 SCC Online SC 968. Further reliance is placed upon Rama Narang Vs. Ramesh Narang and another, (2009) 16 SCC 126 on the import of term ''undertaking'. Reference is also placed upon Sabarimala Review case, (2020) 2 SCC 1 and Spencer & Co. Vs. Vishwadarshan Distt. Pvt. Ltd., (1995) 1 SCC 259 to contend that this Court is a judicial authority in terms of Article 144 of the Constitution of India and therefore must act in aid of Supreme Court, so as to compel the State of U.P. to act upon its undertaking, so given before Supreme Court itself.
13. On behalf of State respondent and the Board, it is urged that petitioners do not have any right to claim age relaxation and the writ petition merits rejection. It is sought to be contended that vacancies occasioned in the years 2017-18, 2018-19 and 2019-20 could not be advertised in the respective years in which they occurred on account of pendency of dispute regarding recruitment for the posts of Sub-Inspector, Civil Police (Male and Female), Platoon Commander PAC, and Second Officer in Fire Brigade undertaken in the year 2016 before this Court, and later before the Supreme Court of India. It is thus sought to be contended that the recruitment in the aforesaid years could not be undertaken for reasons beyond control of the State/Board and that the State otherwise has acted fairly. The case of Constables is attempted to be differentiated on the ground that only limited relaxation was allowed, on a timely challenge, which is not the case here. Submission is that no right otherwise accrues to a prospective applicant to claim age relaxation merely because posts have not been advertised in a particular recruitment year. The respondents further contend that more than 12 lac applicants have already applied against the advertisement and the process would be further delayed if any age relaxation is allowed to the writ petitioners since similar plea would then be raised by lacs of candidates who have become overage between 2017 to 2021.
14. Affidavits have been exchanged in the leading writ petition. With the consent of learned counsel for the parties all the writ petitions are being disposed of finally as at the admission stage. Writ Petition No.4924 of 2021 is taken as the lead case.
15. I have heard Sri Tarun Agrawal and Sri Prashant Mishra for the petitioners in the leading writ petition and Sri Manish Goel, learned Additional Advocate General assisted by Sri Vikram Bahadur Yadav and Mrs. Akanksha Sharma for the respondents. Sri L.M. Singh, Sri R.K. Singh, Sri M.I. Farooqui and Sri M.H. Qadeer have also argued for the petitioners in different writ petitions.
16. Undisputed facts may be summarized in a nutshell. Last recruitment for the vacant posts of Sub-Inspector was initiated by the State in the year 2016 with issuance of advertisement on 17.6.2016. Written examination was held from 12.12.2017 to 23.12.2017 and the final result was declared on 28.2.2019. Large number of writ petitions were filed before this Court and also before Lucknow Bench challenging the select list. Ultimately leading Writ Petition No.23733 of 2018 (Atul Kumar Dwivedi and 108 others Vs. State of U.P. and others) came to be allowed on 11.9.2019 and the select list dated 28.2.2019 was quashed. The Lucknow Bench has also followed aforesaid judgment in Service Single No.6540 of 2019 (Manish Kumar Yadav and 49 others Vs. State of U.P. and others), which has been decided vide order dated 18.10.2019. The above judgments were challenged by State of U.P. in S.L.P. (Civil) Nos.29972 of 2019 as well as 3157 of 2020. The matter was heard finally on 5.2.2021 and the judgment was reserved.
17. According to the State respondents unless the recruitment cycle in a given year is complete, it would not be possible for the State to initiate the next recruitment cycle. This primarily is the reason for not undertaking recruitment exercise in the subsequent years despite undertaking having been given before Supreme Court. Submission on behalf of State of U.P. is that due to unavoidable circumstances it has not been possible to conduct recruitment for the years 2017 to 2020. It is thus vehemently urged that on account of above no right accrues to the petitioners to claim relaxation in maximum age prescribed under the rules. Petitioners have strongly refuted such stand and contend that State was bound to act as per its undertaking given before Supreme Court that yearly recruitment for the posts of Sub-Inspector, Civil Police (Male and Female), Platoon Commander PAC, and Second Officer in Fire Brigade shall be made.
18. On the rival contentions urged by counsel for the parties the question that arises for consideration is whether State had justifiable reasons, for not initiating yearly recruitment on the post of Sub-Inspector despite its undertaking given to Supreme Court in the case of Manish Kumar (supra)? As a corollary to above an issue would also arise as to whether the writ petitioners are entitled to claim relaxation in maximum age as a consequence of non-adherence of the above undertaking?
19. Merits of the explanation offered by the State for not holding yearly recruitment for the posts of Sub-Inspector in respective years will have to be examined with reference to the rights of petitioners, if any, to claim age relaxation on account of non-holding of yearly recruitment.
20. Another issue that falls for determination is as to whether petitioners are entitled to parity in the matter of relaxation of maximum age at par with Constables, in view of the stand taken by State of U.P. before Supreme Court in permitting age relaxation, as is noticed in the order of the Court dated 13.6.2018 in Special Leave to Appeal (C) No.12569 of 2018?
21. Process of recruitment to the post of Sub-Inspector commences with determination of vacancies by the appointing authority to be filled during the course of year of recruitment. Year of recruitment is defined in Rule 3(o) of the "Rules of 2015" to mean a period of twelve months commencing the first day of July of a calendar year. Appointing authority i.e. Deputy Inspector General of police is required to determine the vacancies to be filled during the period of twelve months commencing the first day of July of a calendar year. For illustration we may take Ist of July, 2017 in order to understand the scheme of recruitment to the service. All vacancies that are to be filled between Ist of July 2017 to 30th June, 2018 will have to be worked out by the appointing authority and intimated to the head of the department i.e. the Director General of Police, Uttar Pradesh by virtue of Rule 3(h) of the Rules of 2015. The appointing authority is also under an obligation to determine the number of vacancies to be filled by candidates belonging to the Scheduled Caste, Scheduled Tribes and other reserved categories in accordance with the provisions of the Acts specified in rule 6. Appointing authority is thereafter required to intimate the same to the Director General of Police U.P. The Director General of Police shall in turn then intimate the number of vacancies for male and female candidates separately to the Board and also to the Government. The Board shall then notify the vacancies for both male and female candidates, separately in the manner specified in Rule-14.
22. The recruitment process, as indicated above, is supposed to be a yearly exercise in the Rules. Rule 15 contemplates filling up of application form in the manner prescribed. Requisite details as required are to be specified by the Board on its own website. The process of recruitment commences with the issuance of advertisement and is followed by uploading of call letters; scrutiny of documents; physical efficiency test, which is qualifying in nature. A candidate who qualifies this stage is to appear in the written examination. Based upon the performance in the written examination the Board shall prepare, as per the vacancies, a select list of each category of candidates and send it to the head of department. The head of department shall thereafter accord his approval and send the list to appointing authority. The candidates recommended for appointment by appointing authority will be required to undergo medical examination at Police Lines of concerned district. A candidate declared medically unfit will not be appointed and the vacancy shall be carried forward for next selection. A candidate who is found medically fit shall then be subjected to character verification.
23. Rule-19 of the Rules of 2015 provides that the candidate selected finally to the post of Sub Inspector shall be required to pass the training prescribed by the head of the department. The provisions of Police Training College Manual shall form the basis of training. If a candidate fails in examination for training or after supplementary training shall have to face termination. It is only after passing the examination for training that a candidate is appointed substantively and placed on a probation period of two years.
24. Process of yearly recruitment as detailed above is clearly contemplated in the Rules and is expected to be followed so that vacancies occurring in a calendar year starting from Ist of July be filled by 30th June of the subsequent calendar year. It is in this context that age of candidates assumes significance.
25. Rule-10 of the Rules of 2015 prescribes that permissible age of applicant for recruitment is to be not below 21 years and not above 28 years on Ist of July of the calendar year. It is this date on the basis of which age of applicants is to be determined as per Rule 10 of the Rules of 2015. In the event recruitment exercise is not undertaken in the year of recruitment and is held in a subsequent year then an applicant who may be fulfilling the age criteria as per rule 10 in the year of recruitment may become overage in the subsequent year when recruitment is held. It is in aforesaid context that this Court has to examine as to what relief can be granted to such an applicant, who looses an opportunity to apply for recruitment only because no recruitment was held in the year of recruitment in which he was otherwise eligible.
26. Grant of relief is directly linked to the nature of right possessed by one and not on the basis of declaration of right. Ordinarily, it is always open for an employer to fill up a post or to leave it vacant. When the employer is State or its agency or instrumentality the only departure is that its action cannot be arbitrary or discriminatory as it is otherwise expected to be a model employer. But for such exception, the State is at liberty whether or not to fill up the vacancy. As such no right accrues to a prospective candidate for consideration of his claim nor any relief in the form of age relaxation can be granted only because recruitment was not undertaken in a recruitment year.
27. Law regarding rights of a prospective candidate as well as a selected candidate stands fairly settled by now. It is apposite to mention here that an eligible candidate has no right to apply against a post on accrual of vacancy. When a candidate has no right to apply on a post on accrual of vacancy, therefore, no right shall accrue to a prospective candidate for consideration of his claim regarding age relaxation. The conflicting claims of the parties have to be examined in the context noted above. The law in this regard stands fairly settled and only requires to be noted for the sake of clarity.
28. In Rajasthan Public Service Commission Vs. Smt. Anand Kanwar and others in Civil Appeal No. 52 of 1993, decided on 8.2.1995, the Supreme Court has crystallized the law on the subject in following words:-
"3. ....... It is settled proposition of law that the eligibility of a candidate has to be determined on the basis of the terms and conditions of the advertisement in response to which the candidate applies. There is nothing on the record to show that the State Government was in any manner negligent or at fault in not making the direct recruitment during the period 1983-89. Be that as it may, the High Court was not justified in taking the clock back to the period when unfilled vacancies were existing and holding that since the respondent was eligible on the date when vacancies fell vacant, she continues to be so till the time the vacancies are filled. Due to inaction on the part of the State Government in not filling the posts year-wise, the respondent cannot get a right to participate in the selection despite being over-aged."
29. Constitution Bench of Supreme Court in Shankarsan Dash Vs. Union of India, 1991(3) SCC 47 has observed as under in para 7:-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899."
30. This Court in Dinesh Pratap Singh Vs. State of U.P. and others, 2005 SCC online (All) 1020 in para 43 has observed as under:-
"43. Further as suggested from the respondent' side, where the Appointing Authority does not deem it expedient to initiate recruitment process, the candidates who were eligible but who have lost eligibility subsequently cannot allege deprivation of any vested right to compete for a particular service. ......."
31. In Hirandra Kumar Vs. High Court of Judicature at Allahabad and another, 2019 SCC online SC 254, Supreme Court considered the claim of age relaxation of petitioner in larger prospect and observed as follows in paragraphs 19, 34, 35 and 37:-
"19. The real issue is as to whether the decision in Malik Mazhar Sultan (supra) can be construed as leading to a vested right in a candidate who applies for recruitment to the HJS to assert that they may be granted an age relaxation by virtue of the fact that between the last date of recruitment and the current, the candidate has crossed the prescribed age limit.
34. In the alternative, it has been urged on behalf of the petitioners that since they have been granted permission to appear at the examinations in pursuance of the interim directions that were issued during the pendency of these proceedings, the Court may exercise its jurisdiction under Article 142 of the Constitution of India to direct that the results be declared.
35. We are unable to accede to that request. For one thing, there would be other candidates who have not approached this Court and who would have been in the same position of not meeting the age criterion. Moreover, allowing a group of candidates to breach the age criterion by taking recourse to the power under Article 142 of the Constitution of India would, in our view not be appropriate inviting, as it does, a breach of the governing Rules for the UP Higher Judicial Service.
37. In the facts and circumstances of the present batch of cases, we see no reason or justification to interfere. The petitioners had sufficient opportunities in the past to appear for the HJS examinations at a time when they were within the age limit. Having not succeeded in that, their attempt at moving this Court to seek a relaxation of the Rules or through a challenge to the Rules, is misconceived."
32. Reference may also be made to a Division Bench judgment of this Court in Sanjay Agarwal Vs. State of U.P. and others, 2007 (6) ADJ 272 in which following observations have been made in paragraph 41:-
"(41) Further a person if fulfils requisite educational and other qualifications does not possess a fundamental or legal right to be considered for appointment against any post or vacancy as soon as it is available irrespective of whether the employer has decided to fill in the vacancy or not. The right of consideration does not emanate or flow from existence of the vacancy but commences only when the employer decides to fill in the vacancy and the process of recruitment commences when the notification or advertisement of the vacancy is issued. So long as the vacancy is not made available for recruitment, no person can claim that he has a right of consideration since the vacancy exists and therefore, he must be considered. We have not been confronted with any statutory provision or authority in support of this contention that the petitioners have a right of consideration on mere existence of vacancy. On the contrary, we are of considered view that the right of consideration would come in picture only when the vacancy is put for recruitment, i.e., when the advertisement is published. That being so, the right of consideration commences when the recruitment process starts. The incumbent would obviously have right of consideration in accordance with the provisions as they are applicable when the advertisement is made and in accordance with conditions provided in the advertisement read with relevant rules. It is also obvious that if there is any inconsistency between the advertisement and Rules, the statutory rules shall prevail. In Malik Mazhar Sultan (supra), the Apex Court has clearly held that recruitment to the service could only be made in accordance with the Rules and not otherwise."
(emphasis supplied by me)
33. A Full Bench of this Court in Sanjay Kumar Pathak Vs. State of U.P. and others, writ petition no. 65189 of 2006, decided on 25th May, 2007, has reiterated as under:-
"Nobody can claim as a matter of right that recruitment on any post should be made every year."
34. In light of law as crystallized by above-noted judgments it can now safely be concluded that only because advertisements were not issued to fill up the vacancies arising in respective recruitment years 2017-18, 2018-19 and 2019-20 would not mean that petitioners acquire an unfeasible right of relaxation in maximum age prescribed for appointment to the posts, contrary to what is provided under the relevant rules.
35. Sri Tarun Agrawal, learned counsel for petitioner was alive to the above proposition and therefore rightly did not claim any right to age relaxation on the general proposition of law on the subject. He has based his arguments mainly on the undertaking given by State before the Supreme Court to submit that State be directed to act upon its own undertaking.
36. In order to appreciate aforesaid argument it would be necessary to refer to the order of the Supreme Court itself which notices the undertaking given by the State. Order of the Supreme Court dated 24.4.2017 has already been extracted in para 10 of the judgment. The Apex Court noticed the stand of the State of Uttar Pradesh as per which 11376 vacancies for the post of Sub-Inspector were in existence. The Principal Secretary (Home), Government of Uttar Pradesh affirmed that 3200 vacancies will be filled up, each year, for four continuous years commencing from the year 2017. The schedule was also quoted in the order as per which the advertisement was to be issued in January, 2018 and the result of the selection process was to be declared in 2018, to be followed with commencement of training in February, 2019 and its conclusion in January, 2020. Same schedule was to be followed for the next four recruitment process. The court also issued directions not to change the Chairman of the Board midstream, and further recorded that schedule fixed for the purpose was based upon the proposal submitted by State of U.P. itself.
37. The above undertaking of the State is substantially in conformity with the scheme of recruitment contemplated in the Rules of 2015 itself. The Supreme Court while addressing the public concern of not filling up of large vacancies in Police Department of different States and union territories reminded the State of its obligations to fill up vacant posts in Police Department, in the manner undertaken by them. The State of Uttar Pradesh was expected to carry out its undertaking by holding selections, annually, as per the schedule indicated by the State so that vacancies could be filled within the period specified in the order of the Supreme Court itself.
38. The events unfolded, however, are at complete variance with what was expected in the Rules of 2015 as also the order of the Supreme Court. No recruitment was held in the years 2017-18, 2018-19 and 2019-20. It is after four years that the process of recruitment has commenced with issuance of the advertisement dated 24.2.2021.
39. The petitioner's contention that undertaking given by State of U.P. before Supreme Court is not being honoured is clearly apparent on record.
40. As per the undertaking given to the Court the process of recruitment ought to have started with issuance of advertisement in the month of January, 2018 itself. No such advertisement was actually issued. The apparent violation of undertaking was repeated in January, 2019 and again in January, 2020. No grievance was raised by anyone, including the writ petitioners. Neither any application was moved before the Supreme Court highlighting failure on part of State of U.P. in honouring its undertaking given to the Supreme Court nor any writ petition was filed even before this Court for enforcement of right which accrued under the order of the Supreme Court dated 24.4.2017 which is the basis for present bunch of writ petitions.
41. It appears that neither the State nor the petitioners had any objection to what was actually happening. In the event any grievance was raised before the appropriate forum the Supreme Court or the High Court, as the case may be, could have examined the scenario and issued needful directions for observance of State's undertakings. This, however, has not happened. The grievance in this regard has been raised for the first time, now, in the year 2021. No explanation regarding silence on the part of petitioners for a period of four years is conspicuous by it's absence.
42. The compliance of the undertaking given to the Supreme Court is now not possible. The power of writ court, whosoever wide it may be, does not empower this Court to put the clock back in point of time. This Court cannot loose sight of the fact that there may be many more candidates like petitioners and in equity their claim cannot be ignored. Accepting the claim of petitioners would be opening a Pandora's box. No direction can, therefore, now be issued to complete the recruitment as per the undertaking given to the Court.
43. The petition of Manish Kumar (supra) remained pending for nearly two years before the Supreme Court but no attempt was made before the Supreme Court to highlight the apparent default on part of State in honouring its undertaking. The writ petition of Manish Kumar (Supra) was finally decided on March 11, 2019. The Supreme Court took note of the materials placed on record of the writ petition and the orders pass, therein, from time to time. The Court categorically observed that issues and problems are State specific and can be appropriately dealt with by the respective High Courts. The proceedings were concluded by the Supreme Court and records pertaining to each of the States including affidavits were sent to each of the States with a request to the Chief Justice to entertain the matter on judicial side as suo-moto Public Interest Litigation and monitor the prayers made from time to time.
44. The last order of the Court is specific inasmuch as the issues and problems being State specific were to be examined by the respective High Courts by registering a suo-moto PIL writ. It does not appear that any application was even filed before the High Court raising a grievance about non holding of recruitment in the year 2019 or even in the year 2020. No reasons are disclosed in the writ petition as to why a timely challenge was not laid to the inaction on part of State in failing to honour its undertaking given in the case of Manish Kumar (supra).
45. The proposition canvassed on behalf of the petitioners that the High Court being a judicial authority in terms of Article 144 of the Constitution of India must act in aid of the orders passed by the Supreme Court is too well accepted and does not require any detailed deliberations. It has only to be seen as to what orders are required to be passed in the factual scenario of the present case. In the event a timely plea was raised by the petitioners this Court could have scrutinized the matter and issued necessary directions for honouring the undertaking given by the State before the Court. However, at such a belated stage and after expiry of several years from the date of order dated 24.4.2017 any direction by this Court for compliance of Supreme Court's order in Manish Kumar's case (supra) would itself delay the process of selection which shall be contrary to the order of Apex Court. The clock cannot be put back. Delay and latches in raising the grievance has made it impossible for this Court to entertain these petitions. Petitioners must suffer the consequences for the delay and latches in not raising their grievance at the first opportunity.
46. Regarding the issue of State's culpability in not honouring its own undertaking given in Manish Kumar's case (supra) it is apparent that time period which has expired since then has rendered compliance of the undertaking given by State of U.P. before Supreme Court now impossible. The doctrine of impossibility would thus clearly be attracted in present scenario.
47. As a matter of fact the writ petitioners neither had nor have any serious grievance in not holding of yearly recruitment, annually, despite the assurance given by State of U.P. to the Court in Manish Kumar's case (supra). The petitioners actually want a concession from the State in the form of the relaxation, only because it has failed to honour its undertaking given to the Court.
48. Petitioners assume that age relaxation would be a natural consequence of non-holding of recruitment, annually, in terms of the undertaking given to the Court, and the writ petition is primarily based on such an assumption, which is wholly misplaced.
49. Supreme Court in the order dated 24.4.2017 directed the State of U.P. to honour its undertaking of holding annual recruitment for the posts of Sub-Inspector. The order is absolutely silent about the consequences of its non compliance. There is no direction nor an undertaking given before the Court that in the event recruitment is not held annually the State shall allow age relaxation to the proposed applicants. Responsibility for honouring the undertaking of annual recruitment is upon the Principal Secretary of the department concerned. In normal circumstances, any violation of undertaking given to Court would require inquiry into facts as to ascertain whether the violation is willful/deliberate or was occasioned for justifiable reasons. In the event default is willful/deliberate, the Court shall impose appropriate punishment depending upon the gravity of breach or the proceedings would be dropped if justification exists for not honouring the undertaking.
50. Law is settled that Court shall not expect the State authorities to do what cannot possibly be performed by it. The doctrine of impossibility is based on the maxim "lex non cogit ad impossibilia". In Chandra Kishore Jha Vs. Mahavir Prasad and others, 1999 (8) SCC 266, the Supreme Court considered above-noted doctrine and observed as under in paragraph 17:-
"17. In our opinion insofar as an election petition is concerned, proper presentation of an election petition in the Patna High Court can only be made in the manner prescribed by Rule 6 of Chapter XXI-E. No other mode of presentation of an election petition is envisaged under the Act or the rules thereunder and, therefore, an election petition could, under no circumstances, be presented to the Registrar to save the period of limitation. It is a well-settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. (See with advantage: Nazir Ahmad v. King Emperor [(1935-36) 63 IA 372 : AIR 1936 PC 253 (II)] , Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322 : 1954 SCR 1098] , State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 SCWR 57] .) An election petition under the rules could only have been presented in the open court up to 16-5-1995 till 4.15 p.m. (working hours of the Court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation. That, however, was not done. However, we cannot ignore that the situation in the present case was not of the making of the appellant. Neither the Designated Election Judge before whom the election petition could be formally presented in the open court nor the Bench hearing civil applications and motions was admittedly available on 16-5-1995 after 3.15 p.m., after the obituary reference since admittedly the Chief Justice of the High Court had declared that "the Court shall not sit for the rest of the day" after 3.15 p.m. Law does not expect a party to do the impossible -- impossibilium nulla obligatio est -- as in the instant case, the election petition could not be filed on 16-5-1995 during the court hours, as for all intents and purposes, the Court was closed on 16-5-1995 after 3.15 p.m."
51. Yet another maxim of Roaman Law i.e. "Nemo Tenetur ad impossibilia" is equally recognized in law and is to the effect that "no one is bound to do an impossibility".
52. This takes the Court to the question whether failure on part of State in honouring its undertaking was for justifiable reasons or not?
53. Sri Manish Goel, learned Addl. Advocate General for the State has referred to different passages from the counter affidavit which refers to pending litigation in respect of recruitment held in the year 2016-17 for the posts of Sub Inspector. Bunch of writ petitions were filed in the year 2018 challenging the recruitment proceedings on various grounds. The writ petitions have been allowed by this Court only in the year 2019 and thereafter by the Lucknow Bench whereby and whereunder the select list dated 19.2.2019 was quashed. A fresh select list has been drawn in terms of this Court's order whereafter selected candidates have been sent on training. The State has challenged aforesaid judgments before Supreme Court, wherein hearing has concluded and the judgment is awaited.
54. A specific question was posed to Sri Manish Goel, Additional Advocate General appearing for the State as to what prevented the State Government from proceeding with next recruitment cycle even if the previous cycle was disrupted on account of pending litigation.
55. The scheme for recruitment as per Rules of 2015 has already been noticed above. The process of recruitment starts with determination of vacancy, to be followed with issuance of advertisement and making of application by the candidates and concludes with publication of select list. The process, however, does not end here since the selected candidate must undergo training and pass the training examination before the selected candidate can be posted for active duty.
56. According to the respondents it has limited capacity of imparting training to the selected candidates. In para-6 of the supplementary counter affidavit filed by State it is stated that there are only seven training centres for imparting training to Sub-Inspectors in U.P. The total capacity of trainee personnel is 5050 and on account of Covid-19 its capacity stands reduced to 2530 trainees.
57. In para-7 of the supplementary counter affidavit it is stated that selected sub-inspectors of 2016-17 recruitment could be sent for training only after a fresh select list was drawn in compliance of the Division Bench judgment in the case of Atul Kumar Dwivedi (supra) and their training is yet incomplete.
58. Petitioners have not disputed the averments made in supplementary counter affidavit filed by State. Learned counsel for petitioners stated before the Court that they do not propose to file any reply to the supplementary counter affidavit which fact is clearly noticed in the order of the Court dated 3.8.2021.
59. Considering the limited capacity available with the State in offering training to selected candidates, the decision of the State Government to await the conclusion of one recruitment cycle before commencing the next recruitment exercise cannot be termed as imprudent.
60. In addition to above it is also sought to be urged that 50% of the posts in cadre of Sub-Inspector are to be filled by way of promotion and the promotees also have to be imparted training which is at the same centre.
61. Aforesaid facts are clearly admitted to the writ petitioners also. Raising of grievance in the matter of recruitment or pendency of dispute before the Courts are an aspect on which State cannot be expected to have any control. Delays in resolution of such issues are common and the State or the Board alone cannot be held responsible for it.
62. Deferment of recruitment cycle on account of pendency of dispute relating to previous recruitment cycle as also due to limited availability of training facility, which does not permit simultaneous batches of different recruits to undergo training at the same time, cannot be said to be unreasonable or arbitrary.
63. Having given its undertaking before Supreme Court to conduct recruitment, annually, the State ought to have apprised the Supreme Court about the compelling circumstances to defer recruitment but the failure to do so by itself would not render the State action arbitrary or unreasonable. This is particularly so, as the proceedings before Supreme Court have otherwise been concluded with the cause being remitted to this Court. None of the petitioners immediately or later came forward to espouse their cause.
64. In view of the decisions made hereinabove and the conclusions arrived at in preceding paragraphs, this Court has no hesitation in holding that justification does exists on record for the State in not conducting annual recruitment for the posts of Sub-Inspector in spite of the undertaking given before Supreme Court.
65. As already noted above the directions issued for conducting recruitment continuously during the years 2017-18, 2018-19 and 2019-20 cannot be directed to be carried out now, as the clock cannot be put back. Moreover, the failure to comply with the undertaking given before Supreme Court is not found to be willful or deliberate as such no further directions are required.
66. The petitioners cannot assert that non observance of undertaking before the Supreme Court by holding annual recruitment would either create a right in them to claim relaxation in upper age of recruitment or to assert such right on the principle of legitimate expectation.
67. The ambit and scope of the principle of legitimate expectation has been examined recently by Supreme Court in the context of right to employment in Kerala State Beverages (M and M) Corporation Ltd. Vs. P.P. Suresh and others, (2019) 9 SCC 710. In the context of a vested right of employment claimed on the basis of Government Order dated 20.2.2002 which allowed 25% reservation for displaced excise workers the Court observed as under in paragraphs 14 to 18:-
"B. Legitimate expectation
14. The main argument on behalf of the respondents was that the Government was bound by its promise and could not have resiled from it. They had an indefeasible legitimate expectation of continued employment, stemming from the Government Order dated 20-2-2002 which could not have been withdrawn. It was further submitted on behalf of the respondents that they were not given an opportunity before the benefit that was promised, was taken away. To appreciate this contention of the respondents, it is necessary to understand the concept of legitimate expectation.
15. The principle of legitimate expectation has been recognised by this Court in Union of India v. Hindustan Development Corpn. [Union of India v. Hindustan Development Corpn., (1993) 3 SCC 499] If the promise made by an authority is clear, unequivocal and unambiguous, a person can claim that the authority in all fairness should not act contrary to the promise.
16. M. Jagannadha Rao, J. elaborately elucidated on legitimate expectation in Punjab Communications Ltd. v. Union of India [Punjab Communications Ltd. v. Union of India, (1999) 4 SCC 727]. He referred (at SCC pp. 741-42, para 27) to the judgment in Council of Civil Service Unions v. Minister for the Civil Service [Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] in which Lord Diplock had observed that for a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which, "27. ... (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or
(ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn." (AC p. 408)
17. Rao, J. observed in this case, that the procedural part of legitimate expectation relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. The substantive part of the principle is that if a representation is made that a benefit of a substantive nature will be granted or if the person is already in receipt of the benefit, that it will be continued and not be substantially varied, then the same could be enforced.
18. It has been held by R.V. Raveendran, J. in Ram Pravesh Singh v. State of Bihar [Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381 : 2006 SCC (L&S) 1986] that legitimate expectation is not a legal right. Not being a right, it is not enforceable as such. It may entitle an expectant: (SCC p. 391, para 15) "(a) to an opportunity to show cause before the expectation is dashed; or
(b) to an explanation as to the cause for denial. In appropriate cases, the courts may grant a direction requiring the authority to follow the promised procedure or established practice.""
Subjective legitimate expectation has been specifically dealt with in paras 19 to 21 which are reproduced hereinafter:-
"Substantive Legitimate Expectation
19. An expectation entertained by a person may not be found to be legitimate due to the existence of some countervailing consideration of policy or law. [ H.W.R. Wade & C.F. Forsyth, Administrative Law (Eleventh Edn., Oxford University Press, 2014).] Administrative policies may change with changing circumstances, including changes in the political complexion of Governments. The liberty to make such changes is something that is inherent in our constitutional form of Government. [Hughes v. Department of Health and Social Security, 1985 AC 776, 788 : (1985) 2 WLR 866 (HL)]
20. The decision-makers' freedom to change the policy in public interest cannot be fettered by applying the principle of substantive legitimate expectation. [Findlay, In re, 1985 AC 318 : (1984) 3 WLR 1159 : (1984) 3 All ER 801 (HL)] So long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by judicial review on the ground of a legitimate expectation of an individual or a group of individuals being defeated.
21. The assurance given to the respondents that they would be considered for appointment in the future vacancies of daily wage workers, according to the respondents, gives rise to a claim of legitimate expectation. The respondents contend that there is no valid reason for the Government to resile from the promise made to them. We are in agreement with the explanation given by the State Government that the change in policy due was to the difficulty in implementation of the Government Order dated 20-2-2002. Due deference has to be given to the discretion exercised by the State Government. As the decision of the Government to change the policy was to balance the interests of the displaced abkari workers and a large number of unemployed youth in the State of Kerala, the decision taken on 7-8-2004 cannot be said to be contrary to public interest. We are convinced that the overriding public interest which was the reason for change in policy has to be given due weight while considering the claim of the respondents regarding legitimate expectation. We hold that the expectation of the respondents for consideration against the 25% of the future vacancies in daily wage workers in the Corporation is not legitimate."
68. Distinction has been drawn between substantive legitimate expectation and procedural legitimate expectation. In order to make out a case for substantive legitimate expectation, it will have to be shown that change in policy is not on account of changed circumstances or in public interest and that the action is otherwise arbitrary and unreasonable. In the facts of the present case it has already been found that State had not acted arbitrarily and justification exists for not holding annual recruitment on the post of Sub-Inspector despite the undertaking given by State of U.P. before Supreme Court.
69. Sri Tarun Agrawal for the petitioners has laid much emphasis on the contention that the State having given the undertaking before the Supreme Court for conducting recruitment, annually, a legitimate expectation did arise in favour of petitioners to be able to apply for recruitment against posts of the previous years when petitioners were within the age of eligibility.
70. The contention has force. Had the petitioners approached this Court, in time, the Court could have issued necessary directions for holding the recruitment annually. However, by the time cause has been brought before this Court the time period for compliance has already elapsed and as already observed above, the clock cannot be put back. As the justification for not holding of recruitment annually is found to have substance the plea of legitimate expectation would not come to the aid of petitioners so as to make them entitled for any relief.
71. Even otherwise, there are no pleadings in the writ petition to the effect that petitioners have altered their position based on the undertaking before the Court, even if it is accepted that undertaking of State amounted to a promise. In order to make out a case of legitimate expectation it will have to be shown that the petitioners have acted upon the promise made. Sri Goel is therefore right in contending that factual foundation has not been laid by the petitioners to claim substantive legitimate expectation.
72. There is yet an another aspect which needs to be emphasized at this stage. It has to be borne in mind that fixation of minimum and maximum age of recruitment is essentially a matter of policy governing the recruitment and unless the policy is found to be contrary to law or otherwise irrational or perverse no interference would be warranted. The fixation of minimum and maximum age i.e. 21 years and 28 years is a matter of policy and lies within the domain of executive. Nothing has been brought on record to demonstrate that there is perversity in the decision or it is biased.
73. In the event petitioners' contention for relaxation in age is accepted on the grounds urged, then all such candidates who are eligible to apply in the recruitment years 2017-18 onwards will have to be allowed age relaxation. The maximum age otherwise fixed as 28 years would stand extended upto 32 years.
74. The process of recruitment has already been delayed by nearly four years and any interference at the asking of petitioners, at this stage, will require further extension in cut off date for accommodating similarly placed persons. This course will clearly cause further delay in complying with the orders of Supreme Court and hence is not permissible. Only permitting the writ petitioners to age relaxation will be causing injustice to all those who are similarly placed but have not approached this Court. While granting relief this Court is expected to keep in mind the interest of similarly placed other persons also.
75. Rule 10 of the Rules of 2015 otherwise specifies the maximum age for recruitment and the petitioners have already crossed it. Rule 10 is not under challenge and therefore no direction can be issued contrary to it. It is now an accepted rule that law is harsh, but it is the law and courts are there to uphold the majesty of law.
76. A writ in the nature of mandamus has been prayed by the petitioners to command the State to exercise powers under Section 46 (2)(c) and 46(3) of the Police Act, 1861 and relax the upper age limit provided in Rule 10 of the Rules of 2015. Section 46 of the Police Act, 1861 provides for the scope of Act. Sub-section (2) of Section 46 is reproduced hereinafter:-
"46. Scope of Act.- (1) ......
(2) When the whole or any part of this Act shall have been so extended, the State Government may, from time to time, by notification in the Official Gazette, make rules consistent with this Act-
(a) to regulate the procedure to be followed by Magistrates and police-officers in the discharge of any duty imposed upon them by or under this Act;
(b) to prescribe the time, manner and conditions within and under which claims for compensation under section 15A arc to be made, the particulars to be stated in such claims, the manner in which the same are to be verified, and the proceedings (including local inquiries, if necessary) which are to be taken consequent thereon; and
(c) generally, for giving effect to the provisions of this Act."
77. The State Government has already made Rules of 2015 in exercise of powers under Clause (c) of Sub-section (2) read with Sub-section (3) and Section 2 of the Police Act, 1861 which specifies the age of recruitment and is otherwise not under challenge. The Writ Court, therefore, cannot issue any mandamus to the State to relax the upper age limit provided in Rule 10 in the manner it is prayed by the petitioners. A writ of mandamus can be issued only when there is in existence a legal right with corresponding legal duty. Prayer so made has, therefore, to be rejected. No provision otherwise exists in the Police Act, 1861 or the Rules of 2015 which empowers the State to relax the maximum age of recruitment specified in Rule 10.
78. The petitioners have also sought parity with the Constables who have been allowed age relaxation allegedly in similar circumstances. It is urged that vide orders passed on 13.6.2018 the Supreme Court has accepted plea of age relaxation only because the advertisement was delayed. The observations contained in para 3 and 4 are reproduced hereinafter:-
"3. Rule 10 of the Uttar Pradesh Police Constable and Head Constable Services Rules, 2015 stipulates that for direct recruitment for the post of constable, male candidates must have attained the age of 18 years and must not have attained the age of 22 years on the day of 1st July of the calender year in which the vacancies for direct recruitment are advertised. Since the advertisement in question was issued on 14.01.2018, the reckonable date for the purpose of Rule 10 is to be 01.07.2018.
4. The grievance raised by the petitioners is - that the prescribed age limit of not less than 18 years and not more than 22 years is such a short period that if the selections are not undertaken on year to year basis the concerned candidates are bound to be prejudiced. It is their submission that since a representation was made, which was duly recorded in the order quoted hereinabove that selection would be undertaken in the year 2017, an advertisement ought to have been issued in that year itself. However, since the advertisement was issued in January, 2018, going by the text of the Rules the reckoning date would be 01.07.2018. Since the last selection was in the year 2015 and if the reckoning date today is taken to be 01.07.2018 large body of candidates including the petitioners stand deprived of chance to compete. It is, therefore, submitted that since the selection was to be undertaken in the year 2017, in the fitness of things the reckoning date should be 01.07.2017. Resultantly, candidates including the petitioners would not become age barred for the purpose of being considered for selection. We see force in the submission and find that the grievance so raised merits consideration."
79. The State apparently accepted aforesaid plea and allowed one more chance by counting the maximum age as on 1.7.2017 instead of 1.7.2018. Paragraphs 6 and 7 of the Supreme Court order dated 13.6.2018, wherein above aspect has been dealt with, is reproduced hereinunder:-
"6. Mr. V. Shekhar, learned senior counsel after seeking instructions from Principal Secretary (Home), made following statement:-
In the ensuing examination after the present selection, an exception shall be made in favour of such candidates who missed out merely because the date of reckoning for the present selection happens to be 01.07.2018 instead of 01.07.2017 and at least one more chance shall be given to such candidates to compete.
7. We record the statement and direct the State through its Principal Secretary (Home), to file an appropriate affidavit detailing out the facility to be afforded to such candidates. Said affidavit shall be filed within seven days from today and shall form part of the record. On the strength of the statement of Mr. V. Shekhar, learned senior counsel, we dispose of this special leave petition."
80. The above order of the Court was passed in Special Leave to Appeal (C) No.12569 of 2018 which arose out of a final judgment of this Court in Special Appeal No.6128 of 2018. The context in which the aforesaid order was passed needs to be noticed in order to correctly appreciate the petitioners' claim for age relaxation.
81. The recruitment rules for Constables specify the minimum and maximum age of recruitment as 18 and 22 years, respectively. The applicant at best gets four chances to compete for the post. Last recruitment was held in the year 2015. Fresh recruitment in terms of order dated 24.4.2017 in the case of Manish Kumar (supra) required the State to issue advertisement in the year 2017 but the same was issued only on 14.1.2018 rendering the maximum age of recruitment of 22 years reckonable as on 1.7.2018. The plea for age relaxation was raised promptly before the High Court and thereafter before the Supreme Court.
82. The Supreme Court took note of the fact that no recruitment was held after 2015 and in the event age relaxation was not allowed large number of applicants would be denied of a chance to appear against the posts advertised. There was otherwise delay of only 14 days or else the age of 22 years would have been counted w.e.f. 1.7.2018 instead of 1.7.2017. It was in this context that the State undertook to grant age relaxation by counting the age of 22 years as on 1.7.2017 instead of 1.7.2018.
83. Facts in the present case, however, are distinct. The minimum and maximum age of recruitment is 21 and 28 years. Last recruitment was held in the year 2016. It cannot be said that those who loose out due to non-holding of annual recruitment would have no chance of appearing for recruitment, unlike the Constables. The relaxation sought in this case is four years if the basis of petitioners' claim is accepted unlike one year for the Constables. The process of recruitment, already stands delayed by several years and would be further delayed in case prayer made by petitioners is accepted. Thus the very object of Supreme Court's order dated 24.4.2017 of early appointment shall stand frustrated.
84. In view of the facts and reasons noted hereinabove this Court comes to the inescapable conclusion that despite assurance given by State of U.P. before Supreme Court no ground exists to accept petitioners' claim for grant of age relaxation on the ground of parity with Constables for the purpose of recruitment.
85. As a result all the writ petitions fail and are therefore liable to be dismissed.
86. They are accordingly dismissed.
87. Costs made easy.
Order Date :- 24.8.2021 Anil/n.u.
(Ashwani Kumar Mishra, J.)