Allahabad High Court
Prem Kumar Upadhyaya vs State Of U.P. & Others on 13 January, 2014
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 20.11.2013/06.12.2013 Delivered on 13.01.2014 Court No. - 34 (1) Case :- WRIT - A No. - 16879 of 2010 Petitioner :- Prem Kumar Upadhyaya Respondent :- State Of U.P. & Others Counsel for Petitioner :- Vijay Gautam Counsel for Respondent :- C.S.C. (2) Case :- WRIT - A No. - 60687 of 2013 Petitioner :- Kandwa Kumar Mishra (S.I. In C.P) Respondent :- State Of U.P.& 7 Ors. Counsel for Petitioner :- Sanjay Kumar Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal, J.
1. In both these matters, the question of law involved is common. Though both were heard on different dates and judgments reserved, but since the issue involved is common, therefore, I am deciding both the writ petitions by this common judgment.
2. The issue of "Out of Turn" promotion in U.P. Civil Force in the light of Government Orders dated 3.2.1994, 2.1.1998 and the Director General of Police, U.P., Lucknow (hereinafter referred to as "DGP")'s Circular dated 29.12.1998 is involved in both the writ petitions.
3. In Writ Petition No. 16879 of 2010 (hereinafter referred to as "First Petition"), Sri Vijay Gautam, learned counsel for petitioner and learned Standing Counsel were heard and the arguments concluded on 20.11.2013 and judgment was reserved. While the judgment was awaited, similar issue came up for hearing on 6.12.2013 in Writ Petition No. 60687 of 2013 (hereinafter referred to as "Second Petition") in which Sri Sanjay Kuamr, Advocate, advanced his arguments and learned Standing Counsel appeared and made a submission on behalf of respondents. In this case also the judgment was reserved on 6.12.2013. As already said, since the question of law involved in both the matters is common, and this Court had advantage of assistance rendered by different counsels covering entire aspect of the matter, therefore, I am deciding both these writ petitions by this common judgments considering all the issues raised in these matters.
4. Petitioner, Prem Kumar Upadhyaya, in the First Petition, is Constable in U.P. Police Force (Civil Police) having been appointed on 15.2.1988. While he was posted at Mathura, Senior Superintendent of Police, Mathura vide letter dated 12.12.2003, recommended him for "Out of Turn" promotion on the basis of his outstanding performance in service as also his achievements and performance in the sports and athletics. In 2002, during the course of service, petitioner was rewarded with honour of certificate of appreciation. The Deputy Inspector General of Police, Agra Range, Agra accepting the aforesaid recommendation forwarded above proposal vide letter dated 3.3.2004 which was further forwarded by Additional Director General/Inspector General of Police, Kanpur Zone, Kanpur by letter dated 12.3.2004. All the authorities were clearly of the view that petitioner has satisfied all the requirements for being given "Out of Turn" promotion as per Government Order dated 2.1.1998 and Circular dated 29.12.1998. The matter remained pending for consideration before State Government, hence reminders/letters were also sent by Field Officers on 4.9.2006, 1.10.2006 and 4.10.2006. Petitioner, in First Petition then came to this Court in Writ Petition No. 33409 of 2008 which was disposed of finally on 15.7.2008 directing the State Government to take a final decision in the matter within a period of six weeks. It is pursuant thereto, petitioner's matter was examined by the Committee constituted for considering cases of "Out of Turn" promotion. The Committee did not find favour with petitioner's claim for "Out of Turn" promotion. Agreeing to the recommendation of said Committee, DGP also did not find petitioner entitled for "Out of Turn" promotion and passed order accordingly on 13.12.2009. Hence, the First Petition, challenging the aforesaid decision of departmental committee for "Out of Turn" promotion and the consequential decision taken by DGP. To put things straight, some more facts be stated in regard to First Petition. The recommendation of Senior Superintendent of Police, Mathura for "Out of Turn" promotion to petitioner was considered by departmental committee. It rejected the said proposal in its meeting dated 22.11.2007. It is this decision which was communicated to petitioner by order dated 15.9.2008 which he challenged in Writ Petition No. 66053 of 2008 which was allowed on 7.8.2009 and the order dated 15.9.2008 was quashed. Respondents were directed to re-consider the matter strictly in accordance with Government Orders dated 3.2.1994 and 2.1.1998. Again the DGP reiterated decision by means of impugned order dated 13.12.2009. Hence, the First Petition.
5. In Second Petition, Kandwa Kumar Mishra, the sole petitioner was directly appointed as Sub-Inspector in Civil Police in 2001-2002 recruitment. While he was posted in District Chitrakoot, Superintendent of Police, Chitrakoot, respondent no. 6, made a recommendation vide letter dated 9.12.2011 for consideration of petitioner (in Second Petition) for one rank "Out of Turn" promotion showing act of outstanding gallantry and courage in arresting a rewarded dacoit Kharag Singh on 7.1.2009 after facing indiscriminatory firing and chasing the criminals. Another similar recommendation was made by Senior Superintendent of Police, Varanasi in regard to petitioner's participating in a daring encounter in which a hardened criminal and shooter, Bunti alias Afroz, was killed on 7.10.2008. A third recommendation is said to be made by by Superintendent of Police, Jaunpur vide letter dated 21.5.2013. Since no decision was taken by respondents, a writ of mandamus has been sought in Second Petition directing respondents to consider petitioner for one rank "Out of Turn" promotion in the light of this Court's judgments dated 24.5.2013 in Writ Petition No. 2782 of 2009 (Manoj Kumar Singh and others Vs. State of U.P. and others) and dated 20.12.2011 in Writ Petition No. 66308 of 2006 (Ravindra Kumar Saini Vs. State of U.P. and others).
6. Sri Vijay Gautam, learned counsel for petitioner in First Petition contended that petitioner's claim is squarely covered by policy of "Out of Turn" promotion but respondents have denied the same arbitrarily and illegally though time and again, in a most discriminatory and selective manner, such "Out of Turn" promotions have been allowed to a large number of Police officials. Reference of some such cases have been given in paragraph 29 to 36 of First Petition, which I would be dealing at appropriate stage. Sri Sanjay Kumar has also made similar arguments.
7. Before coming to rival submissions, it would be appropriate to have a bird eye view over the relevant statutes/ statutory provisions, dealing with the recruitment and appointment as also the conditions of service of Police officers of subordinate rank in U.P. Police Force.
8. It is not in dispute that the entire matter relating to recruitment and appointment of persons enrolled in U.P. Police Force (in particular Civil Police and Armed Police), is presently governed by Police Act, 1861 (hereinafter referred to as "Act, 1861). Section 2 thereof reads as under:
"2. Constitution of force.- The entire police establishment under a State Government shall for the purposes of this Act, be deemed to be one police force, and shall be formally enrolled, and shall consist of such number of officers, and men, and shall be constituted in such manner, as shall from time to time be ordered by the State Government.
Subject to the provisions of this Act the pay and all other condition of service of members of the subordinate ranks of police force shall be such as may be determined by the State Government."
9. Under Section 46 of Act, 1861, power to frame Rules has been conferred upon State Government. It is not disputed by the parties in both these writ petitions that till 2008 there were no Rules framed under Section 2 read with Section 46 of Act, 1861 so as to govern the matter of recruitment and appointment of Police Officers of subordinate rank, i.e. Constables, Head Constables and Sub-Inspectors. The entire matter earlier used to be governed by various orders issued by State Government from time to time which were considered to be "Statutory Orders" issued/ referable under/to Section 2 of Act, 1861.
10. It is in this context, an Office Memorandum dated 3.2.1994 was issued by Principal Secretary (Home). This Office Memorandum was in reference to the appointment of a Police Inspector/ Company Commander on a non cadre post of Deputy Superintendent of Police where such Police Inspector/Company Commander P.A.C. has shown an act of exemplary courage and gallantry. Conditions on which such appointment against a non cadre post of Deputy Superintendent of Police, was permissible, provided in the Office Memorandum, reads as under:
^^1- vnE; lkgl ,oe~ 'kkS;Z iznZ'ku djus okys iqfyl cy ds fujh{kd@ dEiuh dek.Mj dks iqfyl mik/kh{kd ds fu% laoxhZ; jktif=r in dk l`tu djds fu;qfDr fd;k tk;sxkA 2- iqfyl cy ds ,sls fujh{kd@ dEiuh dek.Mj vnE; lkgl ,oe~ 'kkS;Z iznZ'ku djus okys fujh{kd@dEiuh dek.Mj dh dksfV esa vk;sxs] ftUgksus dq[;kr vkradoknh ;k t?kU; vijk/kh ds lkFk esa eqBHksM+ esa ;k mudh fxjQ~rkjh esa vnE; lkgl vkSj 'kkS;Z iznf'kZr fd;k gks ;k vius drZO; ikyu ds nkSjku tksf[ke Hkjk dk;Z fd;k gksA 3- bl lEcU/k esaa iqfyl mik/kh{kd ds fu% laoxhZ; in dk l`tu iqfyl egkfuns'kd] mRrj izns'k fd laLrqfr ij 'kklu }kjk fd;k tk ldsxkA 4- iqfyl mik/kh{kd ds fu% laoxhZ; in ij fu;qfDr iqfyl egkfuns'k dh laLrqfr ij 'kklu }kjk dh tk;sxhA 5- ;g vkns'k bl fo"k; ij le; le; ij tkjh vkns'kksa esa fdlh vU; ckr ds gksrs gq, Hkh izHkkoh gksxkA 6- ;g vkns'k rkRdkfyd izHkko ls ykxw gksxkA^^ English Translation by the Court:
1. Inspectors/ Company Commanders of police force who have shown invincible courage and gallantry shall be appointed to the ex-cadre gazetted posts of Deputy Superintendent of Police by creating such posts.
2. Those Inspectors/ Company Commanders of police force who have shown invincible courage and gallantry in encounters with notorious terrorists or dreaded criminals or in their arrests or have taken risks while discharging their duties, shall be categorized as Inspectors/ Company Commanders showing invincible courage and gallantry.
3. In this regard, ex-cadre posts of Deputy Superintendent of Police shall be created by the Government upon the recommendation of the Director General of Police, Uttar Pradesh.
4. Appointments to the ex-cadre posts of Deputy Superintendent of Police shall be made by the Government upon the recommendation of the Director General of Police.
5. This order shall be effective, notwithstanding anything being in the orders issued on the subject from time to time.
6. This order shall come into force with immediate effect.
11. On the same date, i.e., 3.2.1994 another Government Order No. 605 ¼11½ N&iq&1&24@93 was issued by Principal Secretary (Home) providing for a similar ex cadre "Out of Turn" promotion to Constables and Sub-Inspectors/ Platoon Commander on the post of Head Constable and Inspector/Company Commander respectively. The conditions of such appointment are similar to the earlier Government Order except of the difference of designations of post and rank but for ready reference, these conditions are also noticed as below:
^^1- vnE; lkgl ,oe~ 'kkS;Z iznZ'ku djus okys iqfyl cy ds mDr dfeZ;ksa dks ;FkkfLFkfr vkj{kh ls eq[; vkj{kh rFkk mifujh{kd ls fujh{kd@ dEiuh dek.Mj dks ds fu% laoxhZ; in ij fu;qfDr fd;k tk;sxkA 2- izR;d foRrh; o"kZ ds fy, ;FkkfLFkfr eq[; vkj{kh ;k fujh{kd@ daiuh dek.Mj ds fu%laoxhZ; inksa dk l`tu jkT; ljdkj }kjk iqfyl egkfuns'kd] mRrj izns'k ds izLrko ij fd;k tk;sxkA 3- iqfyl cy ds ,sls vkj{khx.k mifujh{kd@ IykkVwu dek.Mj vnE; lkgl vkSj 'kkS;Z iznZ'ku djus okys iqfyl dehZ dh dksfV esa vk;saxss] ftUgksus dq[;kr vkradoknh ;k t?kU; vijk/kh ds lkFk esa eqBHksM+ ;k mudh fxjQ~rkjh esa lkgl vkSj 'kkS;Z iznf'kZr fd;k gks ;k vius drZO; ikyu ds nkSjku tksf[ke Hkjk dk;Z fd;k gksA 4- mDr fu%laoxhZ; inksa ij fu;qfDr iqfyl egkfuns'kd ds iwokZuqeksnu ds mijkUr fu;qfDr izkf/kdkjh }kjk dh tk;sxhA 5- ;g vkns'k bl fo"k; ij le; le; ij tkjh vkns'kksa esa fdlh vU; ckr ds gksrs gq, Hkh izHkkoh gksxkA 6- ;g vkns'k rkRdkfyd izHkko ls ykxw gksxkA^^ English Translation by the Court:
1. The said officials showing invincible courage and gallantry shall be appointed on the ex-cadre posts from Constable to Head Constable and from Sub Inspector to Inspector/Company Commander, as the case may be.
2.For each financial year, ex-cadre posts of Head Constables or Inspectors/ Company Commanders, as the case may be, shall be created by the State Government upon the recommendation of the Director General of Police, Uttar Pradesh.
3. Those Constables and Inspectors/ Company Commanders of police force who have shown invincible courage and gallantry in encounters with notorious terrorists or dreaded criminals or in their arrests or have taken risks while discharging their duties, shall be categorized as police officials showing invincible courage and gallantry.
4. Appointments to the aforesaid ex-cadre posts shall be made by the Appointing Authority after prior approval of the Director General of Police.
5. This order shall be effective, notwithstanding anything being in the orders issued on the subject from time to time.
6. This order shall come into force with immediate effect.
12. A third Government Order dated 2.1.1998 was issued by Principal Secretary stating that such Constables, who are found suitable for "Out of Turn" promotion on the basis of their outstanding service by DGP or Home Secretary, shall also be entitled for such promotion under Government Order dated 3.2.1994 and earlier Government Order dated 3.2.1994 was amended accordingly. In order to lay down certain guidelines to understand the term "Outstanding Service" a Circular was issued by DGP, Head Quarter, U.P. Lucknow on 29.12.1998, in which yardsticks to find out whether a Constable satisfy requirement of "Outstanding Service" or not, were laid down. The same read as under:
^^1& vkj{kh dh U;wure 10 o"kZ dh lsok iw.kZ gksA 2& 10 o"k dh lsok ds nkSjku de ls de 5 o"kZ QhYM fM~;wVh esa vkj{kh fu;qDr jgk gksA 3& 10 o"kZ ds nkSjku pfj=iath esa okf"kZd eUrO; esa ls 5 o"kZ ds eUrO; mRd`"V Js.kh ds ,oa 5 o"kZ ds eUrO; de ls de vfr mRre Js.kh ds gksaA 4& vkj{kh dks ^mRd`".k lsok lEeku fpUg^ vFkok ljkguh; lsok lEeku fpUg ls foHkwf"kr fd;k x;k gksA 5& vkj{kh dh pfj+= iath esa dksbZ Hkh izfrdwy izfrf"V vafdr u gks rFkk dksbZ n.M iznku u fd;k x;k gksA 6& mRd`"V dk;Z gsrq de ls de 20 udn iqjLdkj iznku fd;s x;s gksaA 7&mi;qZDr vgZrk iw.kZ djus okys vkj{kh ds vkmV vkQ VuZ izksUufr gsrq izLrko@ laLrqfr lEcfU/kr iqfyl mi egkfujh{kd@ iqfyl egkfujh{kd ds ek/;e ls izkIr gksA^^ English Translation by the Court:
1. The constable must have completed at least 10 years' service.
2. The constable, during his 10-year service, must have been posted on field duty for at least 5 years.
3. Of the annual entries in the Character Roll in course of 10 years, entries must at least be excellent for 5 years and outstanding for remaining 5 years.
4. The constable must have been awarded with 'an honour for excellent service' or with 'an honour for commendable service'.
5. In the Character Roll, no adverse entry must have been recorded for the constable; nor must he have been awarded with the punishment.
6. He must have been awarded with at least 20 cash rewards for excellent work.
7. The resolution/recommendation for out-of-turn promotion to the constable fulfilling aforementioned eligibility, must have been received through concerned Deputy Inspector General of Police/Inspector General of Police.
13. The above Government Orders being orders relating to recruitment and conditions of service of Police Officers of subordinate rank, hence statutory by virtue of Section 2 of Act, 1861. They had the force of law. The situation, however, changed in 2008 when statutory rules were framed by State Government in exercise of power under Section 2 read with 46 (2) and (3) of Act, 1861 in respect to Constables, Head Constables, Sub-Inspectors and Inspectors (Civil Police) of U.P. Police Force.
14. Two sets of Rules were framed, one, U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (hereinafter referred to as "SI&I Rules, 2008"), which came to be published in U.P Gazette Extraordinary dated 2.12.2008. Another one is U.P. (Civil Police) Constables and Head Constable Service Rules, 2008 (hereinafter referred to as "C&HC Rules, 2008" ) which were also published in U.P. Gazette Extraordinary dated 2.12.2008. The aforesaid Rules declare that the same are being made in exercise of powers under Sub-section 2 of Section 46 read with Section 2 of Act, 1861 and in supersession of all existing Rules or Orders issued in this behalf. The aforesaid two sets of Rules have been framed to regulate selection, promotion, training, appointment, determination of seniority and confirmation etc. of the aforesaid cadres of U.P. Police Officers.
15. Under C&HC Rules, 2008, post of Head Constable in it entirety is to be filled in by promotion in the manner provided in Rule 17 thereof, i.e., 50 per cent by departmental examination, and, 50 per cent by promotion on the basis of a selection on the criteria of "seniority subject to rejection of unit", along with physical efficiency test of a qualifying nature.
16. Similarly under SI&I Rules, 2008, post of Sub-Inspector is to be filled in by two sources, i.e., 50 per cent by direct recruitment and 50 per cent by promotion, through a Board, on the basis of departmental examination, from amongst Head Constables and Constables, who fulfill eligibility conditions, i.e., completion of three years service after probation and age, not more than 40 years. The post of Inspector is to be filled in by promotion through a Board on the basis of departmental examination. The above sources of recruitment is provided under Rule 5 of SI&I Rules, 2008. No other manner of appointment/ promotion on any of the posts of Constable, Head Constable and Sub-Inspector is contemplated in the aforesaid Rules.
17. Now it is in these facts and circumstances, there are 2 questions, up for consideration, to answer the issue, raised in both these writ petitions. First, whether petitioners in both the writ petitions are to be governed by Government Orders dated 3.2.1994 and 2.1.1998, even after enforcement C&HC Rules, 2008 and SI&I Rules, 2008; and, second, whether petitioners are entitled for any relief in the facts and circumstances of their individual cases.
18. So far as first issue is concerned, none of the learned counsels for petitioners went to the extent of arguments that the orders issued by State Government, even if they have statutory force in absence of otherwise statutory rules framed under Act, 1861, can still hold the field, when statutory rules have been framed by State Government in exercise of powers under Section 46 read with Section 2 of Act, 1861. It is well settled that an executive order cannot override or prevail over statutory rules. In the present case, the orders issued in 1994 and 1998 may have force of law, since the recruitment and appointment on the post of Head Constable, Constable, Sub-Inspector and Inspector at that time was governed by different Government Orders, issued from time to time; and provisions of a Government Order can be altered, amended, modified etc. by another Government Order, issued in the same manner, but that situation ceased when statutory rules were framed in 2008 in exercise of powers under Section 46 read with Section 2 of Act, 1861 following a different procedure. Even otherwise, the statutory rules, by way of clarification, declare that the same are being issued in supersession of all existing Rules in respect to selection, promotion, appointment, etc. relating to various posts which are governed by the aforesaid Rules of 2008. It thus, goes without saying, that after enforcement of C&HC Rules, 2008 and SI&I Rules, 2008, no appointment/ promotion, even by way of "Out of Turn" promotion, can be given to any person as that would be in direct teeth of the Rules of recruitment and appointment/ promotion of 2008 and such appointment, if any, would be patently illegal and void-ab-initio. An appointment taking recourse to an executive order cannot be validly made when such procedure is not recognized under the statutory rules holding the field with respect to recruitment and appointment, whether direct or by promotion. Now the appointment shall be made as per the procedure prescribed in the above Rules.
19. Moreover, when the statutory rules have been framed in supersession of existing rules and orders etc., one cannot rely on an existing Rule or Order, which contemplates a procedure for appointment or promotion, not recognized by subsequently framed statutory rules. This Court, therefore, has no hesitation in holding that, on and after 2.12.2008, no appointment in any manner, whether promotion or otherwise, cannot be made which is not consistent with the provisions of C&HC Rules, 2008 and SI&I Rules, 2008. I further make it very clear that no appointment can be made in contravention of C&HC Rules, 2008 and SI&I Rules, 2008, by taking recourse to Government Order dated 3.2.1994, as amended from time to time, for the reason that the said Government Orders have ceased to operate, on and after enforcement of C&HC Rules, 2008 and SI&I Rules, 2008 and cannot be resorted to for making any "Out of Turn" promotion. In other words, no "Out of Turn" promotion now can be made by taking recourse to Government Orders issued prior to 2.12.2008 as that would be inconsistent and contrary to statutory rules. Such Government Orders cannot be given effect to, on and after 2.12.2008, when the aforesaid Rules of 2008 became operative.
20. I may also clarify at this stage that there are some subsequent amendments in Rules of 2008 but I need to go into details thereof for the reason that whatever is the procedure for recruitment and appointment/ promotion under the Rules of 2008, only that will hold the field. The Government Orders issued prior to enforcement of C&HC Rules, 2008 and SI&I Rules, 2008 have became inoperative, invalid and shall not provide validity to any appointment/ promotion, which is not made in accordance to scheme and procedure prescribed in C&HC Rules, 2008 and SI&I Rules, 2008. Therefore, the claim of petitioner in Second Petition, where petitioner is seeking recourse to the Government Order of 3.2.1994 in respect to a cause of action which has arisen after enforcement of Rules of 2008, neither can stand nor is sustainable and, therefore, Second Petition deserves to be dismissed on this ground alone.
21. Now I come to second question which now only survive in respect to petitioner in First Petition. There I find that the eligibility conditions, under the Government Order dated 2.1.1998 read with the Circular dated 29.12.1998, whereby yardstick and entitlement have been laid down to find out outstanding service record of Police Officer concerned, are not satisfied.
22. One of the conditions is that incumbent must have remained posted for five years as a field staff but in the impugned order respondents-authorities have found that petitioner actually worked as a Clerk etc. and lacked postings in field. On this aspect, learned counsel for petitioner has not, at all, addressed this Court, and it is not his case that this finding is incorrect. In fact, I also do not find appropriate pleadings in writ petition to challenge the above findings of fact recorded in the impugned order.
23. Secondly, it is said that one of the conditions is that Police officer must have earned outstanding entries in five years and very good in another five years in the last ten years of service. Petitioner, admittedly, earned six outstanding entries but only three are very good. He was, therefore, short of requisite entitlement provided in the Circular dated 29.12.1998 so as to justify his performance to be treated as "Outstanding Service". On this aspect also there is neither any pleading nor learned counsel for petitioner did address this Court to show that these findings are perverse or incorrect. What he claims is that in respect to certain other persons, "Out of Turn" promotions have been given, even when such conditions were not fulfilled in their cases.
24. Suffice is to mention that those appointments are not under challenge in the present writ petition. Moreover, if respondents have done something wrong or illegal, the principle of equality is not attracted to claim a negative parity, i.e., parity in the matter of illegality. One cannot claim that since in respect to other persons, an illegality has been committed, therefore, it should be repeated in his case also. Article 14 does not contemplate an equality of opportunity in the matter of illegality. One cannot have a legal right compelling an authority to do something wrong in his case also which such authority has done in respect to one or more others. Moreover, this Court has no justification to compel an authority to do something, which is patently illegal by taking recourse to Article 14. Such assumption on the part of petitioners for claiming parity is clearly misconceived and erroneous. On the contrary, in State of Karnataka & others Vs. Gadilingappa & others (2010) 2 SCC 728, the Court said that it is well settled principal of law that even if a mistake is committed in an earlier case, the same cannot be allowed to be perpetuated.
25. It is well settled that if a wrong has been committed by the respondents in respect to some other persons, that will not provide a cause of action to claim parity on the ground of equal treatment since the equality in law under Article 14 is applicable for claiming parity in respect to legal and authorized acts. Two wrongs will not make one right. The Apex Court in the case of State of Bihar and others Vs. Kameshwar Prasad Singh and another, AIR 2000 SC 2306; Union of India and another Vs. International Trading Co. and another, AIR 2003 SC 3983; Lalit Mohan Pandey Vs. Pooran Singh and others, AIR 2004 SC 2303; M/s Anand Buttons Ltd. etc. Vs. State of Haryana and others, AIR 2005 SC 5565; and Kastha Niwarak G. S. S. Maryadit, Indore Vs. President, Indore Development Authority, AIR 2006 SC 1142 has held that Article 14 has no application in such cases.
26. In view thereof, even the petitioner in First Petition, in my view, has rightly been held ineligible for "Out of Turn" promotion in accordance with scheme, as it was available before enactment of statutory rules of 2008, and has rightly been declined the said benefit.
27. In the result, both the writ petitions lack merit. Dismissed.
28. There shall be no order as to costs.
29. Learned counsel for petitioner, at this stage, contended that Police force is a uniform disciplined service, governed by rank and file. An illegal benefit conferring higher status and rank to some while denying to others, would disturb the entire edifice which is foundation of strict discipline, based on seniority, rank, status. It is of utmost importance in a disciplined uniform Police force.
30. I find some substance in the submission and in my view, this aspect justify to issue a direction to the Principle Secretary (Home) and Director General of Police U.P. Lucknow to constitute a committee to find out, whether any "Out of Turn" promotion has/have been allowed, after enforcement of C&HC Rules, 2008 and SI&I Rules. If such appointment(s) has/have been made, though it is impermissible in law, in view of above discussion, appropriate correcting measures shall immediately be taken by recalling such orders, after giving due opportunity of hearing to all concerned parties in accordance with law. This exercise shall be completed within six months from the date of receipt of a certified copy of this order, so that no person may continue to retain an illegal benefit, affecting discipline, rank and file in a force, like, U.P Police Service, which otherwise would have a negative impact on the disciplined and orderly behavior of Police Officers of subordinate ranks.
31. The Register General is directed to forthwith send a copy of this judgment to Principal Secretary (Home), and Director General of Police, U.P. Lucknow for information and compliance of the directions, as said above.
Dt. 13.01.2014 PS