Uttarakhand High Court
Vivek Singh And Others vs Contstable Mohan Singh Tomkiyal And ... on 28 November, 2016
Author: V.K. Bist
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 238 of 2016
With
Delay Condonation Application No. 9046 of 2016
Application for Leave to Appeal No. 9048 of 2016
Vivek Singh & others. ............ Appellants
Versus
Constable 243 CP Mohan Singh Tomkiyal
& others. ............. Respondents
Special Appeal No. 608 of 2015
Constable 377 CP Santosh Kumar & others. ............ Appellants
Versus
State of Uttarakhand & others. ............. Respondents
Special Appeal No. 622 of 2015
With
Intervention Application No. 8659 of 2016
Intervention Application No. 10023 of 2016
Vikas Kumar & others. ............ Appellants
Versus
Constable 22 CP Mohan Singh Tomkiyal
& others. ............. Respondents
Special Appeal No. 625 of 2015
Pradeep Sharma & others. ............ Appellants
Versus
Constable 22 CP Mohan Singh Tomkiyal
& others. ............. Respondents
Special Appeal No. 637 of 2015
Constable 181 AP Ashok Kumar & others. ............ Appellants
Versus
State of Uttarakhand & others. ............. Respondents
Special Appeal No. 635 of 2015
With
Miscellaneous Application No. 13797 of 2015
Constable 292 CP Naveen Chandra & others............. Appellants
Versus
Constable 181 AP Ashok Kumar & others. ............. Respondents
2
Special Appeal No. 649 of 2015
With
Delay Condonation Application No. 14248 of 2015
Man Singh Negi & others. ............ Appellants
Versus
State of Uttarakhand & others. ............. Respondents
Special Appeal No. 655 of 2015
With
Delay Condonation Application No. 14380 of 2015
Constable 22 CP Mohan Singh Tomkiyal
& others. ............ Appellants
Versus
State of Uttarakhand & others. ............. Respondents
Special Appeal No. 13 of 2016
Head Constable 87 CP
Yogendra Singh Chauhan. ............ Appellant
Versus
State of Uttarakhand & others. ............. Respondents
Special Appeal No. 306 of 2016
Manoj Singh ............. Appellant
Versus
Santosh Kumar & others ............. Respondents
Special Appeal No. 282 of 2015
Mansha Ram & others. ............. Appellants
Versus
State of Uttarakhand & others. ............. Respondents
Writ Petition (S/S) No. 2266 of 2015
Ramesh Giri Goswami. ............ Petitioner
Versus
State of Uttarakhand & others. ............. Respondents
3
Writ Petition (S/S) No. 2368 of 2015
With
Impleadment Application No. 13642 of 2015
Constable CP 650 Rajbhanu Bisht. ............ Petitioner
Versus
State of Uttarakhand & others. ............. Respondents
Writ Petition (S/S) No. 2532 of 2015
Constable CP 228 Sher Singh. ............ Petitioner
Versus
State of Uttarakhand & others. ............. Respondents
&
Writ Petition (S/S) No. 516 of 2016
Anuj Kumar & others. ............ Petitioners
Versus
State of Uttarakhand & others. ............. Respondents
Mr. Shobhit Saharia, Advocate for the appellants in Special Appeal Nos. 622 of 2015,
625 of 2015, 635 of 2015 and 282 of 2015.
Mr. D.S. Bohra, Advocate for the appellants in Special Appeal No. 238 of 2016.
Mr. Vinay Kumar, Advocate for the appellants in Special Appeal Nos. 655 of 2015,
608 of 2015 and 649 of 2015.
Mr. Yogesh Pacholia, Advocate for the appellant in Special Appeal No. 13 of 2016.
Mr. Piyush Garg, Advocate for the appellant in Special Appeal No. 306 of 2016.
Mr. Ravindra Garia and Mr. C.S. Rawat, Advocate for the appellants in Special
Appeal No. 637 of 2015 and petitioners in WPSS Nos. 2266 of 2015 and 2368 of
2015.
Mr. J.P. Joshi, Senior Advocate, assisted by Mr. Sushil Vashishth, Advocate for the
petitioner in Writ Petition (S/S) No. 2532 of 2015.
Mr. Manoj Tiwari, Senior Advocate, assisted by Mr. Alok Mahra, Advocate for the
petitioner in Writ Petition (S/S) No. 516 of 2016.
Mr. Paresh Tripathi, Chief Standing Counsel, with Mr. Rajeev Singh Bisht, Brief
Holder for the State of Uttarakhand.
Mr. Rakesh Thapliyal, Advocate for the Uttarakhand Technical Education Board.
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
Dated: 28th November, 2016 4 K.M. JOSEPH, C.J. (Oral) Heard. The Delay Condonation Applications filed in Special Appeal Nos. 238 of 2016, 649 of 2015 and 655 of 2015 will stand allowed and the delay will stand condoned. Leave granted.
2. Eleven Special Appeals arise out of a common judgment rendered in four writ petitions. Special Appeal Nos. 622 of 2015, 625 of 2015 and 655 of 2015, along with Special Appeal No. 238 of 2016, arise out of judgment in Writ Petition (S/S) No. 257 of 2015. Special Appeal No. 13 of 2016, Special Appeal No. 608 of 2015 and Special Appeal No. 306 of 2016 arise out of judgment in Writ Petition (S/S) No. 2125 of 2015. Special Appeal Nos. 635 of 2015 and 637 of 2015 are directed against the judgment in Writ Petition (S/S) No. 650 of 2015. The judgment in Writ Petition (S/S) No. 256 of 2015 has generated Special Appeal No. 649 of 2015. Special Appeal No. 282 of 2015 arises from the judgment passed in Writ Petition (S/S) No. 859 of 2015.
3. These matters, essentially, arise from the selection made to the post of Sub-Inspector (Rankers) in the Uttarakhand Police. Different questions arise in different appeals.
4. The question, which is raised in Special Appeal Nos. 622 of 2015, 625 of 2015, 238 of 2016 and 655 of 2015, arising out of judgment in Writ Petition (S/S) No. 257 of 2015, is as to whether Constables belonging to the Provincial Armed Constabulary (hereinafter referred to as the "PAC") and the Indian Reserve Battalion (hereinafter referred to as the "IRB") are entitled to be included in the selection process for consideration / appointment as Sub-Inspector (Rankers). The learned Single Judge found that, in view of the directions contained in the judgment in earlier round of litigation and as the matter has not been considered as directed therein, constables belonging to PAC and IRB could not be included.
55. The question, which is raised in Special Appeal No. 608 of 2015, Special Appeal 13 of 2016 and Special Appeal No. 306 of 2016, arising out of judgment in Writ Petition (S/S) No. 2125 of 2015, is concerned with the effect of 140 candidates as found by the learned Single Judge, who were permitted to fill-in the OMR sheet.
6. The question, which is raised in Special Appeal Nos. 637 of 2015 and 635 of 2015, arising out of Writ Petition (S/S) No. 650 of 2015, relate to the award of marks for ACR. The question also raised therein was to the marks to be given for reward under Regulation 464(b) of the Police Regulations and the true purport of the word "basic course" for which no marks are to be given. The learned Single Judge did not find merit in the said writ petition and the same was dismissed.
7. In Special Appeal No. 635 of 2015, in fact, filed by persons belonging to IRB cadre constabulary, appellants are aggrieved by the observations made, which show that the court took the view that even the courses, which the appellants describe as counter insurgency and jungle war fare, will be treated as basic courses and, for which, IRB personnel would not get the marks.
8. Writ Petition (S/S) No. 256 of 2015, which has led to Special Appeal No. 649 of 2015, relates to the question of age-based seniority.
9. The prayer sought in Writ Petition (S/S) No. 257 of 2015 is to quash Communication dated 28.01.2015 of the Principal Secretary, Home, Government of Uttarakhand and the Communication dated 31.01.2015 of the Inspector General of Police, Personnel. Therein, writ petitioners also sought to quash Advertisement dated 12.02.2014 issued by the Inspector General of Police calling applications for undergoing civil police training and it is described as contrary to the provisions of the Uttarakhand Police Act, 2007 (hereinafter referred to as the "2007 Act"). Proposal dated 07.09.2010 of the Police Establishment Committee, Uttarakhand (hereinafter referred to as the "PEC") prescribing the procedure for 6 making promotion on the post of Ranker Sub-Inspector, Civil Police on the basis of merit was also sought to be quashed.
10. The learned Single Judge took note of the judgment passed in Writ Petition (S/S) Nos. 741 of 2014 and 914 of 2014. Therein, the court had taken the view that, though rules may be framed under Section 87 of the 2007 Act, the absence of rules would not be fatal in the matter of making selection. In regard to Section 38 of the 2007 Act, the court took note of paragraphs 31 and 32 of the earlier judgment and took the view that the Committee had not applied its mind as to why it is including the other wings of the police force, nor was the exercise approved by the Government and the decisions dated 07.03.2015 and 18.03.2015 are post the exercise and post the actual decision taken after the actual written examination and the same is not sustainable and, therefore, the court directed that, in the present exercise, only Constables and Head Constables belonging to the Civil Police, Armed Police and Intelligence shall be considered. As far as PAC and IRB and other wings are concerned, they could be considered only subject to what has already been said above in paragraph 26 of the earlier judgment.
11. In order to appreciate the contentions, it is necessary to set out Section 38 of the 2007 Act, as much turns on the same. It reads as follows:
"38. Police Establishment Committee:
(1) The State Government shall, as soon as may be, constitute a Police Establishment Committee (hereinafter referred to as the 'Committee') with the Director General of Police as its Chairperson and two other senior most police officers in the Department, not below the rank of Inspector General of Police, as members.
(2) Establishment Committee shall perform the following functions and duties, namely:
(a) lay procedures for the selection and promotions in the Subordinate Ranks;
(b) transfer of subordinate officers from one Range to another;
(c) transfer of officers of the rank of Deputy Superintendent of Police / Assistant Superintendent of Police;7
(d) recommend to the State Government, regarding the transfer and posting of police officers of the rank of Additional Superintendent of Police and above;
(e) prescribe guidelines and instruction for transfer of subordinate officers from one Police District to another; and
(f) analyse and redress the grievances of the police personnel and wherever necessary, suggest remedial measures to the State Government.
(3) The State Government may, in such matters as it may deem fit, for reasons to be recorded in writing, alter or amend the decision of the Committee."
12. It is interpreting the same that PEC had taken a decision on 07.09.2010 to include members of PAC and IRB for selecting Sub- Inspector (Rankers). Selection was, in fact, held on the said posts in the year 2010. Selection for the posts of Sub-Inspector (Civil) was proposed to be held on 12.02.2014. It is, thereafter, that the earlier writ petitions, including Writ Petition (S/S) No. 741 of 2014, were filed. Therein, it is inter alia contended that recruitment for the posts was being held without rules being framed under Section 87 of the 2007 Act. The learned Single Judge rejected the said contention, though noted that it would have been desirable to frame the rules. Thereafter, the learned Single Judge took the view that the decision taken by PEC should have been formally placed before the Government within the meaning of Section 38(3) and the Government should have formalized it, which had not been done till date. Paragraphs 31 and 32 of the earlier judgment, which have been relied on and the effect of which forms much of the bone of contention between the parties, being necessary for proper consideration, are referred to and extracted as under:
"31. As regarding Constables and Head Constables of other branches of the Police being made eligible, this Court is in no position to take a formal stand, which is for various reasons, but primarily as the entire facts are not before this Court, as to what is the organization of the police and what are the different cadres, what is the strength of different cadres, and more particularly, these Constables or Head Constables who have now been made eligible under the decision of the Committee are also not before this Court. Yet, this aspect needs consideration, both by the Committee as well as by the State Government, which is whether members of outside 8 cadre (through the same police force), can be included in the "feeding cadre" to the promotion of Sub Inspector in Civil Police.
32. Let the decisions of the Committee be placed before the Principal Secretary (Home), Uttarakhand, who shall examine the decisions of the Committee and the entire procedures laid down by the Committee, and thereafter pass a formal order therein, which should then be made public and will be in the knowledge of entire Police Force so that they are well aware of the recruitment or promotional exercise. Subject to the above, this Court is presently not interfering with the decision of the Committee. However, this court directs the Director General of Police, Uttarakhand to place its decision (under which the promotion exercise was to take place) before the State Government, which should then exercise its power under Section 38(3) if need be, and in the light of the observation of this Court formalize the "decisions"."
13. The earlier judgment was rendered on 26.11.2014. It is, thereafter, that the Government issued order dated 28.01.2015. This order is described in paragraph 13 of the judgment, which is impugned before us, as an order directing that the examination will be held to the post of Sub- Inspector (Rankers). Still further, the Director General of Police issued the formal order on 31.01.2015 to hold the examination. Writ Petition (S/S) No. 257 of 2015 was filed on 23.02.2015. On 26.02.2015, the learned Single Judge passed a common order in Writ Petition (S/S) No. 256 of 2015 and Writ Petition (S/S) No. 257 of 2015. The court inter alia took note of paragraphs 31 and 32 of the earlier judgment dated 26.11.2014 and he also took note of the submission that the State Government had already spent about Rs. 15 lacs in the promotional exercise as of then. Noting it to be not the criteria for allowing the examination to take place, it was noted that what is to be seen is that such candidates, who fall in the eligibility zone, are not present before the court and that the date of examination was declared on 10.02.2015 and the examination itself has to be conducted barely couple of days later i.e. on 01.03.2015, the learned Single Judge, accordingly, permitted the respondents to go on with the written examination, but further ordered that nothing further will be done in the promotional exercise such as physical test, etc. It was directed not to declare the result of this examination until further orders of the court. It was made clear that the candidates, who will appear in the examination, were also to be informed 9 about the interim order of the court and that the result would depend upon the final determination by the court in these writ petitions. Later, by order dated 15.09.2015, this court vacated the interim stay in all the writ petitions as regards the declaration of written examination result conducting medical / physical fitness examination only. The State / Police Headquarters was at liberty to start the medical / physical fitness examination of each candidate, who qualified the written examination so far, but it was to desist from declaring the final result including the allotment of marks on various counts as was indicated till the controversy is decided. It is, thereafter, that the impugned judgment was pronounced on 06.11.2015.
14. During the pendency of the writ petitions, PEC has proceeded to issue order dated 07.03.2015. In short, it appears to be an order giving reasons and an attempt to comply with what was perceived as the direction contained in paragraph 31 of the judgment in the earlier round of litigation, which we have already adverted to. Still later, on 18.03.2015, the Government has passed an order purporting to accept what is contained in order dated 07.03.2015. The learned Single Judge took the view that orders dated 07.03.2015 and 18.03.2015 cannot be treated as in compliance of the directions in the earlier round of litigation as they are post the exercise taken including the written examination, which was held on 01.03.2015.
15. With reference to the said finding, Mr. Shobhit Saharia, learned counsel appearing for the appellants in Special Appeal Nos. 622 of 2015 and 625 of 2015 filed on behalf of Constables drawn from PAC and IRB, would point out that the true scope of Section 38 of the 2007 Act may be appreciated. Under Section 38(2)(a), PEC has been conferred with the authority to lay down the procedure for selection and promotion in the subordinate ranks. This was already done by virtue of the decision taken on 07.09.2010. Once a decision is taken by PEC, it does not require any further formalization at the hands of the Government and it comes into force on its own as the competent authority to lay down the procedure for 10 selection for the post of Sub-Inspector (Rankers) inter alia is the PEC. Section 38 must be understood as only meaning that a power is lodged with the State Government to amend or modify the decisions, which have been taken under Section 38(2) by the PEC. The decision of the PEC dated 07.09.2010, under which the selection was in fact already undertaken and completed in the year 2010 and under which selection was again purported to be undertaken pursuant to Advertisement dated 12.02.2014 and which was challenged in the earlier round of litigation, has not been modified or amended by the State Government exercising power under Section 38(3). It is in this connection pointed out that a perusal of paragraph 32 of the earlier judgment makes it clear that the learned Single Judge had not quashed the proceedings in the earlier round. All that the learned Single Judge must be deemed to have directed is the Government to take a decision. It was so understanding the proceedings that the Government issued order dated 28.01.2015 pursuant to judgment dated 26.11.2014. The Government had before it the entire file relating to the matter and the court should not proceed on the basis that the Government would not have perused the same. It is submitted that as far as the Constables drawn from PAC are concerned, from the year 1983 onwards, in the State of Uttar Pradesh of which the State of Uttarakhand was a part till 09.11.2000, selection to the post of Sub-Inspector (Rankers) was being made including Constables drawn from PAC. Selection conducted for the posts of Sub-Inspector (Rankers) after the birth of the State of Uttarakhand in 2000 was conducted in the years 2007, 2008 and 2010 including the officers of PAC. Therefore, the learned counsel for the appellants Mr. Shobhit Saharia would emphasise that the Court may not lose sight of this historical perspective, namely, the practice which has been followed for a long period of time. He would submit that the learned Single Judge has erred in approaching the decisions dated 07.03.2015 and 18.03.2015 by describing them as post decisional hearing. He would contend that the concept of post decisional hearing has been mis-applied by the learned Single Judge. He would submit that the concept of post decisional hearing has its origins in the view taken by the courts when authorities have attempted to justify violations of natural justice at the 11 first instance by pointing out that the party has been given a hearing thereafter. He would further submit that, in this context, all that happened was, apparently understanding the earlier judgment as only a direction to the Government to consider and approve the decision taken by PEC, that a decision was taken on 28.01.2015. It is, thereafter, that the examination was held after it was permitted by order dated 26.02.2015 on 01.03.2015. Appreciating the scope of what is contained in paragraph 31 of the earlier judgment, PEC again undertook the exercise resulting in proceedings dated 07.03.2015 giving reasons for inclusion of officers from PAC and IRB. This was accepted by proceedings dated 18.03.2015. Even though they are, no doubt, taken after the decision taken on 28.01.2015 and the holding of the examination on 01.03.2015, having regard to the substance of the matter and the justice of the case, the court should not have interfered with the matter having regard to the facts as set out already and the nature of the issue which fell for consideration. He would further submit that, if the directions contained in the judgment in earlier round of litigation were violated, the only remedy open to the petitioners was to file contempt. A fresh writ petition would not lie. He would further contend that the parties affected were not impleaded in the writ petition. He would submit that the officers from PAC are transferred and posted in the civil branch, so also IRB Constables are transferred and posted in the PAC and civil branch.
16. In regard to the finding by the learned Single Judge on the merits of the matter, which are contained in paragraph 23 of the judgment, we deem it appropriate to refer to it and extract the same as under:
"23. The arbitrariness of the "Committee", the Police Department, and the Government is writ large in the manner this promotional exercise is being conducted. This Court has to remark, even at the cost of repetition, that perhaps the Police Department is the only Department in the Government where services of employees, as regarding recruitment and promotion, is without any definite Rules. Directing the Government to frame Rules for the purpose, may perhaps be an overreach on the part of this Court and it is for this reason that this Court even in the earlier round of litigation, though fully convinced with the desirability of such 12 Rules, had refrained from issuing any mandamus for that purpose. It would have been better had the Government framed Rules on its own. It has on the contrary failed to comply even with the direction of the Court. The direction of this Court in its order dated 26.11.2014 in WPSS No. 741 of 2014 have not been followed as there has been no application of mind as to why other wings of the Police Force are also to be considered for this promotion except now a post facto justification. To that extent, at least, this promotion exercise is bad. In the present exercise therefore police personnel i.e. Constables and Head Constables of only Civil Police, Armed Police and Intelligence shall be considered. Consequently the respondents shall declare the result of only such candidates who are in the Civil Police, Armed Police & Intelligence. The reason why Armed Police and Intelligence are being included in the present exercise is that these three wings i.e. Civil Police, Intelligence and Armed Police perform by and large same nature of duties and transfer from one wing to another is frequent as stated by the learned Chief Standing Counsel, unlike the case with either PAC or IRB, which seem to be a separate force. As far as PAC is concerned it is largely governed by a separate Act known as The U.P. Pradeshik Armed Constabulary Act, 1948 (hereinafter referred to as "PAC Act") and whereas vide Section 86 of the Uttarakhand Police Act, 2007 the Indian Police Act, 1861 has been repealed PAC Act is still in force. Similarly IRB i.e. Indian Reserve Battalion is a separate force, raised for a particular and distinct purpose."
17. It is submitted that the learned Single Judge has not understood the true scope of the U.P. Pradeshek Armed Constabulary Act, 1948 (hereinafter referred to as the "PAC Act of 1948"). Section 5 of the same is relied on.
18. On the strength of the same, Mr. Shobhit Saharia would submit that it is clear that the Constable, who is enrolled under the PAC Act of 1948, is a deemed police officer under the Police Act of 1861. The Police Act of 1861, no doubt, has been repealed by the 2007 Act. But the purport of Section 5 is that a Constable of the PAC is to be deemed to be a police officer under the Police Act of 1861 and, consequently, he would have all the powers and privileges and would be subject to all the liabilities, which a police officer who is enrolled under the Police Act of 1861 would have and be subjected to. This relevant aspect has been overlooked by the learned Single Judge, who has merely referred to the Constables from PAC being officers constituted under the PAC Act of 1948. Further, their 13 appointment orders are issued under the Police Act of 1861. Their appointment orders are issued by officers, who are subordinate to the Director General of Police of Uttarakhand. As far as IRB personnel are concerned, it is pointed out that they are raised for the first time as a battalion in the year 2005. The officers from IRB have been transferred to the civil police. Reliance is placed on the Advertisement issued in the year 2005, which led to their selection. In the same, it was mentioned that IRB Battalion would be a part of the PAC. It is further emphasized that they have been appointed under the Police Act of 1861, appointments have been issued by officers subordinate to the Director General of Police and, as already noticed, they are transferable. In fact, it is pointed out that one of the petitioners in Writ Petition (S/S) No. 257 of 2015 was selected as a Constable in IRB and he has been transferred to the civil police and he vied for selection as Sub-Inspector (Rankers) on the said basis. Reliance is placed on the definition of the words "police officer", "police personnel" and "subordinate rank" under the 2007 Act.
19. It is contended that PAC and IRB perform functions, which have been perceived as police functions and the competent authority has laid down the procedure and exercised powers under Section 38(2) finding them to be suitable for such inclusion. Merit is the criteria for selection. Therefore, the learned Single Judge was not justified in interfering with the matter.
20. Mr. Vinay Kumar, learned counsel appearing for the writ petitioners in Writ Petition (S/S) No. 257 of 2015 and who has filed Special Appeal No. 655 of 2015, would address the following submissions before us:
(i) Pressing Special Appeal No. 655 of 2015, which has been filed by the writ petitioners in Writ Petition (S/S) No. 257 of 2015, he would submit that the learned Single Judge has erred in not quashing the proceedings and the selection. He would submit that the learned Single 14 Judge, after finding that the directions issued in the earlier judgment had not been followed, ought to have quashed the entire selection.
(ii) As far as the principal issue, namely, whether members of PAC and IRB are entitled to be included, he would submit as follows:
(a) IRB Constables were recruited pursuant to Government Order dated 04.07.2002 issued by the Government of India. He would submit that the said order contemplates IRB personnel being recruited for a particular purpose and there can be no question of transferring Constables recruited to IRB to the civil police. He would submit that it is also in violation of Regulation 525 of the Police Regulations, which have been held to be statutory in nature. We have already referred to the Government Order dated 04.07.2002.
(b) He would further submit that Regulation 396 contemplates different branches of the police and neither PAC nor IRB figures in the same.
(c) Equally, he relies on Regulation 397, which reads as follows:
"397. The gazette officers of the Force are -
(1) Inspector-General
(2) Deputy Inspectors-General
(3) Superintendents
(4) Assistant Superintendents
(5) Deputy Superintendents."
(d) He would point out that there is no order of the Government under
Section 2 of the Police Act, 1861. He would also submit that the police personnel belonging to PAC cannot be transferred to the civil police. He would point out Section 4 of the PAC Act of 1948, which reads as follows:
"4. Enrolment and discharge of officers of the Pradeshik Armed Constabulary (Act V of 1861). - Before any person, whether already enrolled in Uttar Pradesh Police Force under Police Act, 1861, or not so enrolled, is appointed to be an 15 officer of the Pradeshik Armed Constabulary, the statement in the Schedule shall be read, and if necessary, explained to him by a Magistrate, Commandant or Assistant Commandant, shall be signed by him in acknowledgement of its having been so read and explained to him and shall be attested by the Magistrate, Commandant or Assistant Commandant as the case may be."
(e) He would further complain that the court may not overlook the fact that members of PAC and IRB have their own promotional channel and it is besides the same that they are being permitted to compete with Constables and Head Constables of the civil police for the post of Sub- Inspector (Rankers). Reliance is placed on Regulation 406 of the Police Regulations, which reads as follows:
"406. (a) Civil Police. - Sub-Inspectors, Civil Police, are appointed by Deputy Inspectors-General from the list of candidates who qualify at the prescribed cadets course at the Police Training College.
Officiating appointment of under-officers are made by Superintendents under paragraph 191, Police Office Manual.
(b) Armed Police. - Permanent promotions to the rank of sub-inspector in the armed police are made by Deputy Inspectors-
General from the list of those who have qualified at the course prescribed under paragraph 448. Superintendents may promote in officiating r temporary vacancies.
(c) Mounted Police. - Permanent and officiating promotions to the rank of sub-inspector in the Mounted Police is made by the Deputy Inspector-General according to the seniority on the provincial list."
21. Addressing contentions for the petitioner in Writ Petition (S/S) No. 2532 of 2015, Sri J.P. Joshi, learned Senior Counsel would submit that the petitioner calls in question orders dated 23.11.2015 and 02.12.2015 and he also seeks a direction to complete the selection in terms of order dated 07.09.2014 and Advertisement dated 12.02.2014. The complaint, which is essentially projected before us is that, whereas the training undergone by the Constables is being treated as a basic course, the training which is undergone by the Head Constables is being treated as an advance course. The resultant position is that the Head Constables get 8 marks by virtue of their having undergone the training, which is wrongly being treated as an advance course. The learned Senior Counsel would complain of 16 discrimination between the Constables and Head Constables in this regard. This is for the reason that the training undergone by the Constables is being treated as basic course and no marks are being allotted in terms of what is provided in order dated 07.09.2014 and Advertisement dated 12.02.2014; whereas, marks are being given for the training undergone by the Head Constables. It is contended that this amounts to changing the rules of the game after the game had begun and the decisions taken in this regard by the impugned orders are termed as "illegal". Mr. J.P. Joshi would contend that the training undergone by the Head Constables can, at best, be treated as a refresher course and it cannot be treated as an advance course.
22. Per contra, the learned Chief Standing Counsel would contend that training is undergone by a person when he is recruited at the entry level as a Constable. This is a basic course. When a Constable, after several years, is appointed as Head Constable, the training which he undergoes cannot again be treated as basic course. The training which a person undergoes as Constable alone can be treated as basic course. Both the courses cannot be treated as basic course. Besides this, he emphasizes that the post of Constable is an entry level post. The learned Chief Standing Counsel would also submit that the rules of the game had not been changed.
23. In Writ Petition (S/S) No. 516 of 2016, we heard Mr. Manoj Tiwari, learned Senior Counsel appearing for the petitioners and Mr. Shobhit Saharia, learned counsel for private respondents. Mr. Manoj Tiwari would submit that the persons drawn from the PAC and IRB cannot be included and he would submit that there is a separate seniority for the police personnel in the civil branch and the personnel from IRB and PAC. There is no common seniority. He also referred to the provisions of the PAC Act of 1948. He presses his argument by contending that the personnel from PAC and IRB cannot be included.
1724. In Special Appeal No. 637 of 2015, which arises from Writ Petition (S/S) No. 650 of 2015, we heard Mr. Ravindra Garia, Advocate along with Mr. C.S. Rawat, Advocate on behalf of the appellants. The complaint raised in this case is regarding the marks awarded de hors and contrary to the procedure, which was proclaimed allegedly. In other words, under the procedure, 15 marks are awarded for the ACR. He would submit that the marks have to be awarded on the basis of registers to be maintained. No registers have been maintained in which entries are made showing performance of the individual officers. The basis of the ACR is not known.
25. In Writ Petition (S/S) No. 2368 of 2015, we heard Mr. Ravindra Garia and Mr. C.S. Rawat, Advocates for the petitioner. The learned counsel would submit that the Advertisement dated 12.02.2014 provides that, for basic and refresher course, no marks will be awarded; but, contrary to the same, marks are being awarded for such courses. He referred us to Annexure No. 4, which purports to be communication dated 20.03.2015, wherein it is pointed out that the promotional course for the post of Head Constable falls under the courses, which are categorized as basic course. The course undertaken by the direct recruit appointees on the post of Sub-Inspector and the course undertaken by the Rankers Sub- Inspectors are also basic courses.
26. In Writ Petition (S/S) No. 2266 of 2015, we heard Mr. Ravindra Garia, learned counsel for the petitioner. The issue relates to the marks in relation to Question Nos. 56, 118 and 149. What is pressed before us is the awarding of same marks to all the candidates in regard to Question No. 118.
27. According to the petitioner, the first answer, namely, up to 18 years was the correct answer and there is no occasion to hold otherwise. He relied on a judgment of the Apex Court in the case of Prabhu Dayal Sesma vs. State of Rajasthan & another, reported in (1986) 4 SCC 59.
1828. He also relied on judgment of a Division Bench of the Delhi High Court in Writ Petition (C) No. 3453 of 2016 (Sumit Kumar vs. High Court of Delhi & another).
29. He would further submit that, in regard to Question No. 149, the complaint is that Question No. 149 is a repetition of Question No. 147. All the candidates have been given equal marks. Persons, who have given the wrong answers, have been given an unfair advantage. To the same, Mr. Arvind Vashistha, learned Senior Counsel would submit that this is a matter, where the court should defer to the view of the experts and, as far as awarding of marks for Question Nos. 147 and 149 is concerned, the proficiency was to be tested with reference to a certain number of questions. Since there was a repetition, it was decided that equal marks will be awarded.
Findings in Writ Petition (S/S) No. 2266 of 2015:
30. The relief sought in this writ petition is to reconsider Question Nos. 56, 118 and 149 and to declare them undisputed and, accordingly, grant marks for the aforesaid questions. The learned counsel for the petitioner presses the relief in respect of Question Nos. 118 and 149 only. The grievance of the petitioner is that Question Nos. 118 and 149 are not disputed and, therefore, common marking, as has been done, cannot be done in regard to the same.
31. Question No. 118, in substance, is upto what age is a person treated as a child under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the "POCSO Act"). Option No. A was till 18 years; Option No. B was till 16 years; Option No. C was till 12 years; and Option No. D was till 7 years. According to the petitioner, the word "child" has been defined in the POCSO Act as meaning any person below the age of 18 years. Therefore, according to the petitioner, Option No. A is the right answer; but the respondents disputed the same and gave common marks to all the candidates. The learned counsel for the 19 petitioner would contend that, actually, Option No. A is correct. According to him, when Option No. A is 'upto 18 years', it means that it is in consonance with the definition of the word "child", which provides that a person will be treated as a child if he is below the age of 18 years. In this regard, he drew our attention to a judgment passed by the Division Bench of the Delhi High Court in Writ Petition (C) No. 3453 of 2016 (Sumit Kumar vs. High Court of Delhi & another). Therein, the Division Bench, inter alia, held as follows:
"10. The first issue which requires examination and is common to the two writ petitions pertains to question No.91 of Series B. The question and the suggested answers read as under:-
"Q91. B.B. King, who passed away in 2015 was a famous:
1. Singer
2. Musician
3. Writer
4. Cartoonist"
The correct answer as per the respondent is "Musician (2)". The petitioners submit that there is sufficient material which acknowledges that B.B. King was a singer as well as a musician and, therefore, option 1 i.e. singer is also correct. Another contention raised is that the question and the answers suggested itself were ambiguous and, therefore, should be deleted as there were two correct answers. We, however, for several reasons find that the said contention has to be rejected. One of the reasons is that question paper booklet on the first page itself had informed and advised the candidates as under:-
"Choose the most appropriate option and darken the circle completely corresponding to (1), (2), (3) or (4) against the relevant question number."
The candidates, therefore, had to choose the most appropriate option. This position would be true when we examine other challenged questions and answer key. It is an accepted and admitted position that B.B. King was a reputed singer and equally a well- known electric guitarist, music composer and song writer. B.B. King, therefore, was a musician, rather than only a singer. The question framed and the answer as suggested would be the most appropriate answer out of the four options given. Suggestion 1 that B.B. King was a singer would indicate that he was a vocalist and not a known electric guitarist, composer or song writer. The choice of answers was indicative and was testing the candidate's 20 awareness and knowledge of the talent of the person concerned and his ability to comprehend the distinction between a singer and a musician. Many a person know that B.B. King was a singer but may not know that he was equally a well-known and renowned electric guitarist, composer and song writer, for the first facet or talent is more prominent and advertised. The candidate also must know the difference between a broader term like "musician" and narrower term like "singer". The challenge, therefore, to question No.91 would fail.
12. We would observe that there are several websites and books, which clearly opine that Robert Peary was the first person to have reached the North Pole. When we examine question No.168 and the suggested answers, it is apparent that Robert Peary was the correct and the only answer. The reason is that the candidates were required to select the most appropriate answer from the suggested answers. In case and if Frederick Cook had been mentioned and included in the list of suggested answers, the situation would have been different. Pertinently, when we approach the question and suggested answers, we have to keep in mind the dictum in Kanpur University (supra) that the answer key should be assumed to be correct unless it is proved to be wrong and the answer should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. We do not think that the model answer key is demonstrated to be wrong that no reasonable body of men well-versed in the subject would regard as correct. It is not ambiguous and it is not the case where more than one suggested answer was correct."
32. Therefore, he would submit that when the answer key was originally given where Option No. A was shown as the correct answer, thereafter to cancel the said answer key and to give common marks to all who had given answer on the basis that Option No. A is not the correct answer, was not justified. Initially, in the answer key, Option No. A was shown as correct; but, in Annexure No. 6 Final Answer Key, in regard to Question No. 118, it is shown as disputed.
33. Learned counsel for the petitioner also relied on the judgment of the Apex Court in the case of Prabhu Dayal Sesma vs. State of Rajasthan & another, reported in (1986) 4 SCC 59. The point involved in that case was whether the appellant, having his date of birth as 02.01.1956, had attained the age of 28 years on 01.01.1984 and was, therefore, disqualified for direct recruitment to the Rajasthan Administrative Service. We deem 21 it appropriate to refer to and extract paragraph 14 of the said judgment, which reads as follows:
"14. It is in recognition of the difference between how a person's age is legally construed how it is understood in common parlance. The Legislature has expressly provided in s. 4 of the Indian Majority Act, 1875 that how the age of majority is to be computed. It reads: "4. Age of majority how computed- In computing the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to have attained majority, if he falls within the first paragraph of s. 3, at the beginning of the twenty-first anniversary of that day, and if he falls within the second A paragraph of s. 3, at the beginning of the 18th anniversary of that day." The Section embodies that in computing the age of any person, the day on which he was born is to be included as a whole day and he must be deemed to have attained majority at the beginning of the eighteenth anniversary of that day. As already stated, a legal day commences at 12 o'clock midnight and continues untill the same hour the following night. It would therefore appear that the appellant having been born on January 2, 1956, he had not only attained the age of 28 years but also completed the same at 12 o'clock on the midnight of January 1, 1984. On the next day i.e. On January 2, 1984, the appellant would be one day more than 28 years. The learned Judges were therefore right in holding that the appellant was disqualified for direct recruitment to the Rajasthan Administrative Service and as such was not entitled to appear at the examination held by the Rajasthan Public Service Commission in 1983. We affirm the view taken by the learned Judges as also the decisions in G. Vatsala Rani's case, (supra)."
34. Per contra, Mr. Arvind Vashistha, learned Senior Counsel would contend that Option No. A cannot be treated as the correct answer for Option No. A clearly conveys an impression that a person will be a child up to the age of 18 years, which will include the point of time when he becomes 18 years of age; whereas, the POCSO Act defines a "child" as a person, who is below 18 years and, therefore, no interference is called for.
35. We are of the view that there is no merit in the case of the petitioner in regard to Question No. 118. The answer contained in Option No. A appears to suggest that a person can be treated as a child up to the age of 18 years, which would include the day when he completes the 18th year; whereas, the POCSO Act contemplates a person being below 18 years in 22 order to treat him as a child. It is, apparently, in view of this ambiguity that the authorities decided to modify the original answer key and to publish the final answer key, whereby they had given marks for all the answers given apparently on the basis that none of the options provided the completely correct answer. In fact, the judgment in (1986) 4 SCC 59 (supra) does not appear to advance the case of the petitioner. From the example given in paragraph 14 of the said judgment, it is clear that a person would be deemed to have attained 18 years at the beginning of the 18th anniversary of that day. A legal day begins at 12 O' clock in the midnight and continues until the same hour of the following night. The moment a person attains 18 years, he will not be a child under the POCSO Act. Therefore, Option No. A, suggesting that up to 18 years a person is a child, cannot be treated as the correct answer. The judgment of the Division Bench of the Delhi High Court relied on by the learned counsel for the petitioner also does not appear to assist him. It is to be noted that the statement in paragraph 12 of the said judgment contemplates that the answer should not be held wrong by an inferential process of reasoning or by a process of rationalization. It is to be noted that the court proceeded to hold in the very same paragraph that the model answer key is demonstrated to be wrong that no reasonable body of men well-versed in the subject would regard it as correct. It is also found that it is not ambiguous and not a case where more than one suggested answer was correct. In this case, we would think that Option No. A is quite clearly ambiguous and, therefore, it cannot be accepted as the correct answer. This is a case, where the authorities themselves have come out with a final determination and, being experts, the court must defer to their understanding of the situation, which, in turn, is not demonstrated to be wrong.
36. As far as Question Nos. 147 and 149 are concerned, therein, the problem arises in this way, namely, Question No. 149 is the repetition of Question No. 147. Option No. B is the right answer. The authorities had given common marks to all. Per contra, Mr. Arvind Vashistha, learned Senior Counsel, would submit that, actually, being a repetition, it was 23 decided to give common marks as the merit had to be determined with reference to particular number of questions and, since there was a repetition, the authorities decided to give marks to all the candidates. In this regard, the learned counsel for the petitioner would question the awarding of equal marks to those who had given correct answer and the wrong answer. The fair procedure would have been that those who had given the correct answer should have been given the marks and, since there was a negative marking, those who had given wrong answer should have been given negative marks all over again for Question No. 149, which is a repetition of Question No. 147.
37. At first blush, there appears to be some merit in the case of the petitioner. Those who had given correct answer and those who had given wrong answer are treated in the same manner. But the other aspect of the matter is that merit is to be determined with reference to the answers given for a particular number of questions and, since it was a case of repetition, apparently, the authorities took the view that all those who had given answers for Question No. 149 should be given common marks, irrespective of the fact whether they are correct or not, as this was a surplus question which was not contemplated. We would think that we should not, in the facts of this case, interfere with the decision, as, otherwise, the candidates will be given marks, either positive or negative, for more than what was contemplated by way of questions as it is a case of repetition of a same question.
38. In such circumstances, Writ Petition (S/S) No. 2266 of 2015 is found meritless and it is dismissed.
Findings in Writ Petition (S/S) No. 2368 of 2015 and Writ Petition (S/S) No. 2532 of 2015:
39. The relief sought in Writ Petition (S/S) No. 2368 of 2015 is to declare the training course for promotion on the post of Head Constable Civil Police / Armed Police as basic course. A further mandamus is 24 sought to restrain the respondents from allotting marks under the heading "marks for courses" for promotional training course of the post of Head Constable, Civil Police / Armed Police in the selection of the cadres for undergoing training for Rankers Sub-Inspector instituted pursuant to the advertisement dated 12.02.2014.
40. Petitioner is a Constable in the Uttarakhand Police. He is working in the civil police. In the examination held for selecting Rankers Sub- Inspector Civil Police, the total marks are 400. 300 marks are for written examination and 100 marks are for the service record. The petitioner had obtained 246 marks in the written examination and he qualified the physical examination held on 28.09.2015. Thereafter, it is stated in paragraph 11 of the writ petition as follows:
"11. That the advertisement issued on 12th February 2014 provided that the 100 marks will be awarded on the basis of the Service Record. One of the component to be taken into consideration for awarding the marks on the basis of service record was the marks to be allotted for courses, for which maximum of 15 marks was to be awarded. The said 15 marks to be awarded on the basis of courses undertaken by the applicant for last 10 years and the same were bifurcated in following manner:
(i) Course of 03 days to 07 days 02 marks
(ii) Course of 07 days to 14 days 04 marks
(iii) Course of 14 days to 30 days 02 marks
(iv) Course of 01 month and more 08 marks
(Basic & Refresher course will not be counted)"
41. Appointment to the post of Constable in subordinate police force is by way of direct recruitment; whereas, appointment on the post of Head Constable is by way of 50% promotion on the basis of seniority subject to rejection of unfit and 50% is by way of examination / selection. Annexure No. 4 dated 20.03.2015 is alleged to be the information provided by the Deputy Superintendent of Police, Uttarakhand Police Headquarters under the Right to Information Act, wherein it is mentioned that promotional course for the post of Head Constable is a basic course. A similar information was subsequently received to the effect, in essence, that the training completed by Constables for promotion on the posts of 25 Head Constables is treated as basic course. But, vide Annexure No. 8 dated 17.06.2015, information was provided that Head Constable, Civil Police / Armed Police will also be granted marks for the training completed by them for the post of Head Constable. It is the case of the petitioner that the Advertisement, pursuant to which selection for Sub- Inspector Rankers is held, specifically provides that courses, which are of particular duration, will only be granted marks and that the basic as well as refresher courses will not be taken into consideration. The training undergone for being promoted on the post of Head Constable is being categorized as advance course. It is alleged that the training for the Constables in terms of the Police Regulations is the same as given to the Head Constables. Besides this, there is also a case for the petitioner that the competent authority to take a decision in this regard is the PEC. On this basis, the petitioner has approached this Court seeking the declaration as above.
42. The prayers made in Writ Petition (S/S) No. 2532 of 2015 are as follows:
"(i) Issue a writ, order or direction in the nature of certiorari quashing the decision of the Police Establishment Committee dated 23rd November 2015 as well as the communication dated 2nd December 2015 of the Inspector General of Police, Headquarters as the same has been taken by the authorities, as the said decisions amount to change of the condition of advertisement after the initiation of the Selection Process of Rankers Sub Inspector Civil Police Examination-2014.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to conclude the selection process of Rankers Sub Inspector Civil Police Examination 2014 in accordance to the procedure prescribed by the Police Establishment Committee in its meeting dated 7th September 2010 and as per the conditions of advertisement dated 12th February 2014."
43. Here also, the question to be decided is whether the promotional course undergone by a Constable for promotion as Head Constable is to be treated as the basic course or an advance course. Mr. J.P. Joshi, learned Senior Counsel appearing for the petitioner, contends that there is 26 discrimination and, in fact, if at all, it can only be treated as a refresher course, i.e. even if it is not treated as a basic course. It is stated that the Constables and Head Constables are being treated unequally. Per contra, the argument of the learned Chief Standing Counsel is that the post of Constable is the entry level post and a person becomes Head Constable after several years and the training which he undergoes was rightly treated as an advance course.
44. We see no merit in the contentions of Mr. J.P. Joshi, learned Senior Counsel for the petitioner. In Writ Petition (S/S) No. 2532 of 2015, which was filed on 08.12.2015, specific averment is made in regard to the decision of the PEC dated 23.11.2015 in paragraph 20, which reads as follows:
"20. That after the judgment of this Hon'ble Court dated 6th November 2015 a meeting of the Police Establishment Committee was held on 23rd November 2015 for taking decision on 03 points in respect of the allotment of 100 marks based on service record. The Point No. 1 for consideration before the Police Establishment Committee was in respect of grant of the marks for Head Constable Promotional Course in the category of courses to be provided within 100 marks based on service record. The Police Establishment Committee decided that in the meeting held on 7th September 2010 the marks to be allotted for the category of courses was decided and on the basis of the said policy the Ranker Sub Inspector Civil Police Examination 2010-11 was held. In the 2010-11 Rankers Sub Inspector Civil Police Examination a communication was issued by the Police Headquarters on 11th March 2011 to all the Districts / Battalions / Units with a direction that the Basic Course will only be the training which a Constable undergoes after selection at Recruit Training Centre. The Head Constable Civil Police / Armed Police will be given the marks as is given to other courses / training and the same was given in the Recruitment Year 2010-11. The Police Establishment Committee concluded that since the Head Constable Promotion Course is done by the Constable after coming into Services of the Police Department after being selected for promotion as Head Constable, therefore, the Head Constable Promotion Course is not a basic course."27
45. Apparently, at the time when Writ Petition (S/S) No. 2368 of 2015 was filed, the said decision had not been taken and which is why, apparently, a ground is also taken that the competent authority is the PEC and there is no such decision. Annexure No. 10 dated 02.12.2015 is a communication by the Inspector General of Police, Headquarters, to the Inspector General of Police, PAC / Chairman, Selection Committee, wherein it is inter alia stated that, under the heading "courses", courses of last 10 years will only be counted. It was also stated that the Advertisement was issued on the basis of the policy prescribed by PEC and the same has been mentioned in the Advertisement. Point No. 4 in the communication dated 02.12.2015 was in respect of the promotional training given to the Head Constables. It was clarified that the PEC had taken a decision to grant marks for Head Constables Promotional Training Course by including the same under the heading "course".
46. We see no merit in the contention of the petitioners that it goes against the decision taken on 07.09.2010 or the Advertisement. This is for the reason that neither of the said documents clearly define as to what is to be treated as a basic course or a refresher course. It is to be noted that, at the bottom of the police hierarchy, we find the Police Constable, which is the post at the entry level. When a police officer is recruited for the first time and he is given training, quite clearly, there is logic in treating this as basic training, as it is essential to equip him in various aspects of policing; whereas, it is after several years of experience as Police Constable that a person gets promoted as Head Constable. The training, which he receives and which will be the second training, was thought of as a training which is advance in nature. There is logic in the same also as he is receiving it at a higher level in the police hierarchy having regard to the experience that he would have gathered as a Police Constable and the nature of the training that would be imparted to him on promotion as Head Constable. Since there is no articulation of what is a basic course or a refresher course and since the competent authority, namely, the PEC has itself taken a decision, we find no merit in the case of the petitioners.
2847. As far as discrimination between Constables and Head Constables is concerned, we must remind ourselves that what Article 14 of the Constitution of India frowns upon is hostile discrimination differentiating between equals or treating unequals equally. Constables cannot be treated as equal to Head Constables. They fall in different classes. A Police Constable represents the entry point; whereas, Head Constable is one rank up in the ladder. Therefore, if they are treated differently and the courses, which they undergo, are treated differently, clearly, it cannot amount to hostile discrimination, which, alone, is forbidden under Article 14.
48. Therefore, we see no merit in Writ Petition (S/S) No. 2368 of 2015 and Writ Petition (S/S) No. 2532 of 2015. They are, accordingly, dismissed.
Findings in Special Appeal No. 608 of 2015, Special Appeal No. 13 of 2016 and Special Appeal No. 306 of 2016:
49. These appeals are directed against the judgment passed in Writ Petition (S/S) No. 2125 of 2015. Special Appeal No. 608 of 2015 is filed by the petitioners in the said writ petition.
50. We have heard Mr. Vinay Kumar, learned counsel on behalf of the writ petitioners / appellants in Special Appeal No. 608 of 2015, Mr. Yogesh Pacholia, learned counsel for the appellant in Special Appeal No. 13 of 2016 and Mr. Piyush Garg, learned counsel for the appellant in Special Appeal No. 306 of 2016; besides Mr. Paresh Tripathi, learned Chief Standing Counsel for the State, and Mr. Rakesh Thapliyal, learned counsel for the Board.
51. The prayers sought in Writ Petition (S/S) No. 2125 of 2015 are as follows:
29"(i) Issue a writ, order or direction in the nature of certiorari quashing the communications dated 19th September 2015 and 26th September 2015, whereby the respondent State authorities have taken decision to remove the discrepancies in the OMR Sheets of 140 candidates and further to hold 2nd Physical Test of the candidates who were absent on the Physical Test held on 28th September 2015 respectively.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to cancel the entire selection process initiated for supplying the vacancies on the post of Ranker Sub Inspector Civil Police pursuant to the Advertisement dated 12th February 2014 issued by the Uttarakhand Police Headquarters, Uttarakhand Dehradun as the respondents themselves have violated the procedure for selection at every level as a result of which the entire selection vitiated.
(iii) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent to reject the candidature of 140 candidates participated in the selection process of Ranker Sub Inspector, Civil Police Training Session 2014-15, whose defects in the OMR Sheets were subsequently rectified / corrected on the behest of the respondents, for which the respondents were not competent.
(iv) Issue a writ, order or direction in the nature of mandamus restraining the respondents from re-conducting / holding the physical test of those candidates, who were absent on the date of physical test held on 28th September 2015 for selection on the post of Ranker Sub Inspector Civil Police 2014-15."
52. The prayers, which are pressed before us, are prayer Nos. (i) to (iii). Prayer No. (iv) is not pressed before us.
53. The case of the writ petitioners is based on the plea of lack of transparency. It is the case of the writ petitioners that a Selection Committee of four members was constituted. A written examination was held on 01.03.2015 at different centres. The question booklet contained instructions for the candidates. It was mentioned that, if the candidate does not fill in the OMR sheet his Roll Number, Number of Question Booklet, Set Number of Question Booklet, etc., or the same are wrongly filled, then the OMR Sheet of the said candidate will not be evaluated and the entire responsibility will be that of the candidate. The writ petitioners received information under the Right to Information Act that the Deputy Superintendent of Police (Headquarters) informed the Public Information 30 Officer that the examination is being conducted as per Office Memorandum dated 03.08.2010, whereby the Uttarakhand Technical Education Board (hereinafter referred to as the "Board") was nominated as the recruiting agency. Nearly 10,000 candidates applied. The result was declared on 23.09.2015, in which around 3000 candidates successfully qualified the written examination. The writ petitioners lay store by Annexure No. 10 communication dated 19.09.2015 issued by the Board to the Inspector General of Police (Headquarters) for removal of certain discrepancies. Paragraph 21 of the writ petition being relevant, we extract the same as under:
"21. That the communication dated 19th September, 2015 shows that around 134 candidates have not indicated the number of Question Booklet Code on the OMR Sheet, 02 candidates have not indicated their Roll Number in the OMR Sheet and the Roll Number of 04 candidates were found to be duplicated. The communication dated 19th September 2015 also mentions that instructions issued by the Board / Police Department specifically mentioned that the unfilled OMR Sheets will not be evaluated. It was further mentioned that though the candidates as well as the Room Incharge have signed on the OMR Sheets, however, both have not checked the entries on the OMR Sheets."
54. It is the case of the writ petitioners that the communication dated 19.09.2015 required the Police Headquarters to remove the discrepancies in the OMR Sheets within a period of two days and to provide the same. It is the case of the writ petitioners that the Police Headquarters issued communication to all the subordinate authorities for removal of discrepancies in the OMR Sheets and they were removed within 24 hours and were submitted to the Board, which, on 23.09.2015 issued the result. It is specifically averred in the writ petition that result of the 140 candidates, whose OMR Sheets were found to be incomplete by the Board, was also declared after removal of discrepancies and they were permitted to appear for the physical test. This is alleged to be beyond their competence and it creates doubt about the intention of the Selection Committee and the selection is not conducted in a free and impartial manner.
3155. In the counter affidavit, which was filed in the writ petition, in fact it was not disputed that, in respect of 140 candidates, they were permitted to rectify the OMR Sheets. It is stated that 134 candidates had not filled the question paper code on Set A, Set B, Set C and Set D; 02 candidates had not mentioned their roll numbers on the OMR Sheets; and 04 candidates had mentioned their duplicate roll numbers on the OMR Sheets.
56. The learned Single Judge, in fact, found that this procedure adopted could not be countenanced; but, noting that only 8 candidates out of the 140 candidates, who were permitted to correct the OMR Sheets, had become successful, the learned Single Judge directed that the said 8 candidates be not considered.
57. Mr. Vinay Kumar, learned counsel appearing for the writ petitioners / appellants would submit that the manner, in which it was done, cast a cloud on the transparency of the selection process and, therefore, the entire selection process, itself, becomes suspect and vulnerable and, hence, liable to be interfered with. He would submit that Part A contains the Questions and Answers. According to the Board, Part A was scanned and one copy of the CD was sent to the Headquarters, whereas one copy was retained by it. He poses the question that when the letter was written by the Board, how they were able to identify the persons whose application forms were not filled-up as prescribed in the instructions, which had to be followed. He would submit that, only when the answer was given under the Right to Information Act, the matter relating to the 140 candidates was unraveled. This shows that the selection is tainted and, therefore, the entire selection must go and the learned Single Judge should have granted the relief, instead of limiting the grant of relief to the 140 candidates.
58. Per contra, the learned Chief Standing Counsel, with reference to the definite pleadings of the writ petitioners and also the stand in the 32 counter affidavit, would point out that, while it is true that what was permitted to be done could not be countenanced, it cannot afflict the entirety of the selection in which nearly 10,000 candidates participated and, therefore, no relief could be granted to the writ petitioners.
59. We are also of the view that the writ petitioners / appellants have not made out a case for interfering with the selection on the basis of the case relating to the OMR Sheets being allowed to be corrected. The definite case of the writ petitioners / appellants related only to the 140 candidates, as already noted. In regard to them, the learned Single Judge has granted the relief. Apart from contending that this raised doubt about the transparency of the selection as a whole, there is no other material made available for us to paint the entire selection with the same brush. We see no reason at all to set aside the selection of the rest of the candidates.
60. Accordingly, Special Appeal No. 608 of 2015 will stand dismissed.
61. As far as Special Appeal No. 13 of 2016 is concerned, the same has been filed by one of the 8 candidates mentioned hereinbefore forming part of the 140 candidates, who were permitted to correct the OMR Sheets.
62. Mr. Yogesh Pacholia, learned counsel for the appellant would, no doubt, contend that no opportunity was given to the appellant to defend himself and that the appellant was declared successful in the written examination. It is also stated that the affected persons were not made parties. It is the case of the appellant that there is no manipulation in the examination. It is stated that the appellant had filled the OMR Sheet cautiously, he had also endorsed the paper book code as D in the OMR Sheet; but, inadvertently, he could not mark it in circle. The said mistake is described in the appeal as a very small mistake and the Board sought guidance from the Police Headquarters to rectify the defect; the Police Headquarters passed on the paper book code to the appellant and other similarly situated persons; and provided it to the Board and, on the basis 33 of the communication, the result was declared, wherein the appellant was selected.
63. We are of the view that, while it is true that the appellant was not made a party, the admitted fact is that the appellant had not marked the paper book code in the circle, as was expected of him. There is clearly an omission on his part. The candidates were expected to follow the instructions and mark the OMR Sheets. It was their responsibility. Abdication of the responsibility, even if it is described as a very small mistake, and permitting it to be done in the manner as was done and as has been frowned upon by the learned Single Judge, in our view, cannot be accepted. Selection by a public authority must be fair and transparent. Permitting the candidates to do, which was apparently not contemplated, vitiates the selection, at least to the extent that what was impermissible was done. We see no reason to grant relief to the appellant in this special appeal.
64. Special Appeal No. 13 of 2016 is, accordingly, dismissed.
65. Special Appeal No. 306 of 2016 (filed with leave) also relates to one of the 8 candidates, who are affected by the judgment of the learned Single Judge. But, in this case, the facts are clearly different. The vice attributed to appellant's application arises out of duplication of the roll number. In other words, he had entered his roll number, which was identical with the roll number allocated to some other candidate, namely, Roll No. 121442. It is his contention that, on matching Part A with Part B with the help of bar code, the technical board could get the booklet number of the appellant as far as the other candidate is concerned and ascertained as to which answer sheet belonged to which candidate, as distinct booklet code number was available on the record. It was apparently a mistake of the Police Department, as the same roll number had been allotted to the appellant and the other candidate, namely, Jagat Singh. Resultantly, realizing the mistake, appellant was allotted a new roll number. He was successful and, in fact, he is one of the candidates 34 whose merit otherwise entitled him to be sent for training and he was also sent for training. The other candidate, who also had the same roll number, was not so successful.
66. In this case, we would think that the appellant's case stands on a different footing. This is for the reason that the appellant had not done any wrong and he had only filled-up the OMR form with the roll number allotted to him. As already noted, there is no mistake attributable to him. According to the appellant, he has not done anything and, on the Police Department being notified by the Board, it is the Police Department which allotted a new roll number to him.
67. No doubt, Mr. Vinay Kumar, learned counsel appearing for the private respondents, would contend that, who made the entries in the original OMR sheet. That is to say, the procedure, which was adopted, was as follows:
68. The examinations were held in the centers of the Police Department. Thereafter, the scanning was got done through the Board. The Board sent one copy of CD of the scanned papers to the Police Department and corrections in respect of 140 candidates were made only in the copies.
69. He poses the question, who made the entries in the original. On instructions, Mr. Rakesh Thapliyal, learned counsel appearing for the Board, would, in fact, submit that no entries were made in the original and, instead, it was on the basis of the entries made in the copies that the results were declared.
70. We would think that no mistake was committed by the appellant. In such a situation, the appeal filed by the appellant in Special Appeal No. 306 of 2016 is to be allowed.
3571. Accordingly, Special Appeal No. 306 of 2016 will stand allowed and the judgment of the learned Single Judge will stand modified to the extent that in respect of the appellant, we hold that the appellant is entitled to be considered for selection as per his merit.
Findings in Special Appeal No. 635 of 2015 and Special Appeal No. 637 of 2015:
72. These appeals arise from the judgment passed in Writ Petition (S/S) No. 650 of 2015. Special Appeal No. 637 of 2015 is filed by the petitioners in the said writ petition.
73. The writ petitioners sought to quash Clause 5 of the procedure prescribed by the PEC dated 07.09.2010 as well as Clause 7 of the Advertisement dated 12.02.2014 insofar as the same provides for 100 marks on the basis of service record in the departmental promotion examination for the post of Sub Inspector Rankers Civil Police. A mandamus is also sought to restrain the respondents from taking into consideration the ACR entries of the candidates in the selection unless the same has been prepared on the basis of the procedure prescribed in Government Order dated 07.06.2008. A direction was also sought to fill the ACR entries of the Constables and Head Constables of the Uttarakhand Police Service as per the procedure prescribed in the Government Order dated 07.06.2008 and, thereafter, categorize the ACR entries in the service record.
74. We have heard Mr. Ravindra Garia along with Mr. C.S. Rawat, learned counsel for the appellants / writ petitioners and Mr. Paresh Tripathi, learned Chief Standing Counsel.
75. The reliefs, which are pressed before us, are relief Nos. 2 and 3. In other words, it is the case of the appellants / writ petitioners that there is a Government Order dated 07.06.2008. Under Section 21 of the 2007 Act, communication dated 07.06.2008 was issued. It is provided therein that, 36 in future, the ACR entries in the service record of the non-gazetted police officers / employees will be made as per that procedure. Paragraph 8 of the writ petition being relevant, we extract the same as under:
"8. That Clause-3 of the Communication dated 7th June 2008 specifically mentioned that the efficiency of work and conduct of the officers will be analyzed by the Reporting Authority on following points:-
(i) Integrity;
(ii) Personality;
(iii) Manner of dealing with public specially members of Scheduled Caste / Scheduled Tribe / Women and members of weaker section;
(iv) Relations with subordinate officials and higher authorities;
(v) Leadership and Management quality;
(vi) Knowledge on subjects of Law and Police;
(vii) Contribution in maintaining Law & Order / Quality of disposing of work allotted in a time bound manner;
(viii) Contribution in prevention of crime and level of investigation / quality of work done;
(ix) Discipline;
(x) Health.
Clause -3 further provided that for each quality maximum of 10 marks will be provided. Out of 100 marks on obtaining 35 or less mark the same will be treated as Bad / Unsatisfactory category, 50-60 marks will be treated as Good, 60-80 marks will be treated as Very Good, 80 and above will be treated as Outstanding. It is further provided that the above procedure will be indicated in the Character Roll. Reviewing / Accepting authority will take a different view from the Reporting Authority only on the above points."
76. The communication also contemplated that, for analyzing the work of the Constable / Head Constable in the above manner, with immediate effect, a register was to be maintained. It is the case of the appellants / writ petitioners that no register has been maintained for analyzing the work and the ACR entries are filled-up in an arbitrary manner. In the Sub-Inspector (Rankers) selection, the written examination was to consist of 300 marks. It is further stated in paragraph 14 of the writ petition as follows:
37"14. That Clause - 5 further provided for allotment of maximum 20 marks for Award / Medal. It provided that for each Cash Award 01 marks (Maximum upto 10 marks) will be awarded. For each Good entry 0.5 marks (Maximum upto 05 marks) will be awarded. It further provided that on the basis of ACR entries maximum of 40 Marks will be provided as under:-
A) Outstanding - 04 marks for each entry.
B) Very Good / Excellent- 03 marks for each entry.
C) Good - 02 marks for each entry.
D) Satisfactory - 01 mark for each entry."
77. It is stated that, from information received under the Right to Information Act, petitioners were made aware that Government Order dated 07.06.2008 is being followed. The complaint of the appellants / writ petitioners is that their ACR entries, which they have seen personally, have not been maintained by the respondents in terms of the Government Order dated 07.06.2008 in spite of lapse of seven years. The registers have not been maintained in the police stations. Regulation 464 of the Police Regulations provides for rewards. It reads as follows:
"464. Rewards are of four kinds:-
(a) reward proclaimed for information leading to the arrest and conviction of criminals.;
(b) rewards for definite acts of good service or bravery meritorious work during training, and good marksmanship during annual weapon firing during musketry competitions;
(c) rewards given to village chaukidars (1) for meritorious services and (2) for special services;
(d) rewards paid by departments other than the Uttar Pradesh Police Department, and by Courts, private companies or persons.
Rewards of class (a) and (b) are paid from the same grant, and may be given to private persons as well as to non-gazetted officers of the police force. Rewards of Class (a) but not of Class
(b) may also be given to village chaukidars. The grant is provisional, but after provisions has been made for provincial reserve it is divided by the Inspector General and administered by Deputy Inspectors General, who make allotments to districts and sections, themselves retaining reserves to meet large rewards in special cases. The amount allotted to each district or section must be regarded as the maximum to be expended under normal conditions, and an extra will not be made unless it is shown that special circumstances, e.g., a case of extraordinary importance, have rendered the sum insufficient. Superintendents of Police will keep a careful watch on expenditure and must only pay rewards in specially meritorious cases. They must intimate the amount of 38 probable excess of savings to the Deputy Inspector General of the range by 15th January, at the latest, to enable any necessary adjustments to be made.
Deputy Inspectors General are authorized to re-appropriate savings.
The Criminal Investigation Department grant for rewards of classes (a) and (b) is separate from the provincial grant. The Deputy Inspector General, CID exercises the same powers in respect to it as a range Deputy Inspector General in respect to the provincial grant."
78. The learned counsel for the appellants / writ petitioners would point out that the learned Single Judge has dealt with Writ Petition (S/S) No. 650 of 2015 in the following manner:
"34. As far as writ petition (WPSS No. 650 of 2015) is concerned the petitioners have challenged the arbitrariness in giving marks to the candidates out of 100 marks, which is for the service record. The contention of Mr. Vinay Kumar, learned counsel for the petitioners is that in the evaluation of these notes, there is an arbitrariness. This Court is not inclined to accept the entire contention of the petitioners except the fact that in case marks are being given only for the "foundation" or "basic course", such as in the case of IRB. The marks given to the basic course does not seem to be correct, as there are clear instructions that no marks will be given for foundation or basic course. For the remaining this Court is in no position to make any evaluation.
36. According to the learned counsel for the petitioners the marks have been given for even "good office work". This does not come under any of the "outstanding work", which is evaluated in Regulation 464 of the Act or to the contrary. The learned Chief Standing Counsel for the State has pointed out Regulation 464 (b) of the Act (referred above) particularly for definite "act of good service" and on which the candidate who has done good service, even in the office can be given marks.
37. This Court agrees with the submission of the Chief Standing Counsel for the State and no interference is being made as far above point is concerned. Accordingly, the writ petition (WPSS No. 650 of 2015) is hereby dismissed, subject to the exception given in Para 36 supra."
79. In paragraph 35 of the judgment, Regulation 464 is extracted. Thereafter, paragraphs 36 and 37 contain the observations and, finally, in paragraph 37, the writ petition is dismissed subject to what is stated in paragraph 36. The learned counsel for the appellants / writ petitioners 39 would point out that the contentions have not been considered and the relief should have been granted.
80. Per contra, the learned Chief Standing Counsel would point out the stand of the State. It is contended that, under Section 21 of the 2007 Act, approval of the State is required for the Inspector General to issue an order within the meaning of Section 21. It is his case that order dated 07.06.2008, which is the basis of the appellants' claim, can only be treated as an advisory in the absence of approval given by the Government. Therefore, it is not to be taken as binding. It is the further case of the learned Chief Standing Counsel that the Court may also note that, in the order dated 07.06.2008, the entries are contemplated only in respect of police officers working in the police stations and nearly 60 per cent of the police officers would be left out as they would be working in places other than police stations. It is also contended that there is a Government Order dated 30.09.2010, which provides for the writing of annual remarks and disposal of representation and it was circulated to all District / Battalions / Units for ensuring compliance.
81. Therefore, the case is that order dated 07.06.2008 is not legally enforceable. Apparently, reliance is placed on Government Order dated 30.09.2010 in the matter of writing annual remarks.
82. While it is true that there is no finding as such given by the learned Single Judge, we do not think that the appellants / writ petitioners have made out a case for overturning the selection, which has been made. There is no specific case that communication dated 07.06.2008 had the approval of the State Government. In the absence of approval accorded by the State Government, it would not possess statutory flavor so as to make it enforceable as such. We may also notice the stand of the State that, even implementing communication dated 07.06.2008 on the principle that, even if the order does not have statutory flavour, it must still bind the public authority (see B.S. Minhas vs. Indian Statistical Institute & others, (1983) 4 SCC 582), it would not be feasible or just as 40 it would not be possible to embrace within its scope a large number of officers, who are not working in the police stations. We also notice that the authorities are following the procedure based on Government Order dated 30.09.2010, which we have mentioned earlier. A contention is taken that, in the matter of grant of rewards, there is violation of the regulation. The learned Single Judge has, in fact, noted the argument of the State that even any good service rendered in the office would come under the category of act of good service and can be given marks. Learned counsel for the appellants would contend that there are yardsticks, which have been indicated as to how the rewards are to be given. It is to be noted that there is no relief sought in this regard. In fact, it is pointed out that the appellants also received rewards, which could not have been given if the yardstick espoused by the learned counsel for the appellants was applied. On this, the learned counsel for the appellants would submit that their marks may be taken away and the norms may be enforced. As already noticed, there is no relief sought in this regard. No doubt, in the supplementary affidavit, the appellants have referred to certain cases, where rewards were given, which, according to them, falls foul of the legal norms. We would think that, when there is no relief sought in this regard and the particulars are not given with affected persons being made parties, no relief should be granted on this score.
83. Therefore, Special Appeal No. 637 of 2015 being meritless, it is dismissed.
84. Special Appeal No. 635 of 2015 is filed seeking leave to file appeal. Appellants therein belong to the IRB batch of 2005. They are working in the Armed Police / Civil Police. Their complaint is relating to denial of marks in respect of their undergoing advance course in counter insurgency with the ITBP (Indo Tibetan Border Police), SSB (Seema Suraksha Bal) and Indian Army. The complaint is based on the observations made by the learned Single Judge while disposing of Writ Petition (S/S) No. 650 of 2015 as contained in paragraph 34, which we have already extracted above. It is pointed out by Mr. Shobhit Saharia, 41 learned counsel appearing for the appellants that, in the said paragraph, even though the appellants were not parties, observation is made that "the court is not inclined to accept the entire contention of the petitioners except the fact that in case marks are being given only for the "foundation" or "basic course", such as in the case of IRB", the marks given to the basic course does not seem to be correct in view of the clear instructions that marks will not be given for foundation or basic course. According to Mr. Shobhit Saharia, learned counsel for the appellant, appellants have undergone not only the basic course, but they have also undergone the courses which we have already mentioned. Their courses cannot be characterized as basic or foundation courses. They are specialized courses undergone with the ITBP, SSB and the Army. It is also contended that, in fact, writ petitions had been filed, where a stand was taken by the Government that the persons undergoing said courses will be given marks and, therefore, the observations of the learned Single Judge have created an obstacle (in fact, it is submitted by Mr. Paresh Tripathi, learned Chief Standing Counsel that, following the judgment of the learned Single Judge, in the selection process, marks have not been given to the persons like the appellants for the courses in question). It is also submitted that persons, who have undergone the same course in the Civil Branch, are given marks treating them as advance course.
85. It is the case of the appellants that, on receiving the information that there are only five courses, which are called basic course, they had approached this Court by filing Writ Petition (S/S) Nos. 732 of 2015 and 733 of 2015, wherein the respondent authority submitted that the appellants and other similar persons will be granted marks for the advance courses undertaken by them and, in the light of the same, the said writ petitions were disposed of as infructuous. It is on the basis of the same that the appellants would contend that the observations made in paragraph 34 of the judgment are unjustified.
86. Per contra, it is pointed out by the respondents that a learned Single Judge in Writ Petition (S/S) No. 229 of 2012 has taken the view that 42 persons in the IRB are not entitled to get marks for the so called specialized courses. Since the judgment is a very brief judgment, we deem it appropriate to extract the same as under:
"1. Heard Mr. A. K. Joshi, Advocate for the petitioners and Mr. N. P. Sah, Standing Counsel for the State.
2. The petitioners are Constables in Uttarakhand Police and have appeared in a selection process which was for promotion amongst the Constables and Head Constables, but they could not be selected and hence the present writ petition. The case of the petitioners is that during the selection process, the petitioners have not been given marks for the number of courses as they have done in the police force. The petitioners contend that the courses which they had done are some special courses and the weightage of these courses should have been given to them.
3. In the counter affidavit, the State denies the claim of the petitioners and submits that the so-called special courses which the petitioners have done are the part of their duties and no special marks are liable to be granted to the petitioners.
4. From the arguments, it transpires that the petitioners were recorded as Constables in the year 2005 in the Indian Reserve Battalion (I.R.B.). Now for the regular Constable, the basic course is of 9 months training, but the training period for Constables in I.R.B. is of 18 months. In other words, 18 months training is given to a Constable recruited for I.R.B. and the Constable so selected will have to undergo 9 months extra training. There is no provision for awarding marks for basic and refresher training separately. The training schedule is given in rejoinder affidavit, which reads as under:-
"12. .............................A perusal of the said documents would reveal that the training for the recruits of the Indian Reserve Battalion was of 18 months which was divided in two phase of 9 months duration of each. Phase-I of the 9 months period was the basic training which is compulsory and the training for Phase-II of 9 months was after completion of the basic training and was known as integrated training."
5. However, combined reading of entire course shows that it is an integrated course and the combined course has to be treated as basic training course. No special / additional marks are liable to be given to the petitioners. Consequently, the writ petition fails and is hereby dismissed. No order as to costs."
4387. It is after the rendering of the said judgment that, apparently, appellants in Special Appeal No. 635 of 2015 had approached this Court by filing writ petitions, wherein counter affidavits were filed supporting the case of the appellants. Those writ petitions, in turn, were disposed of as infructuous. It was so done, according to Mr. Shobhit Saharia, in view of the stand taken by the Government in the counter affidavit, which supported the appellants' case; but no adjudication has taken place in the said writ petitions. There is now the third judgment, which is the impugned judgment. We ascertained from the learned Chief Standing Counsel as to what is the stand of the Government in this matter. On instructions, it is submitted by Mr. Paresh Tripathi, learned Chief Standing Counsel that the stand of the Government is that the courses undergone by the IRB personnel will be treated as basic course and will not entitle them to earn marks.
88. We would think that the appeal must fail. This is for the reason that, though there is a period of 18 months, which is divided in two phases of nine months, that is nine months further training, this being done at the entry level, this cannot be treated as basic to the entry level post in the IRB. In other words, it is to equip the person, who discharges the duties as a member of the IRB, which is a reserved battalion, to deal with volatile law and order situations.
89. Therefore, Special Appeal No. 635 of 2015 fails and it is dismissed.
Findings in Special Appeal No. 649 of 2015:
90. This appeal is directed against the judgment passed in Writ Petition (S/S) No. 256 of 2015. Appellants are the writ petitioners. The writ petitioners are all Head Constables (Civil) in the Uttarakhand Police. They filed the writ petition seeking to quash Advertisement dated 12.02.2014, as also the decisions of the PEC dated 07.09.2010, 17.01.2014 and 26.02.2014. Further, they sought to have the report of the third respondent dated 16.12.2014 (Annexure No. 20) and the order of the 44 second respondent dated 28.01.2015 (Annexure No. 3) quashed. Further, a mandamus is sought to reconsider the issue and formulate appropriate procedure for promotion to the post of Sub-Inspector (Civil) after considering all relevant aspects.
91. Sub-Inspectors (Special Category) and Head Constables (Special Category) were allotted certain responsibilities. Government of Uttarakhand, in 2005, created 466 posts of Head Constable (Special Category) and 198 posts of Sub-Inspector (Special Category). The Sub- Inspectors (Special Category) were allowed to do all the work of Head Constable, to make inquiry on the complaints received, investigation of the crime which falls in the category of summon cases and to prepare inquest. By order dated 25.07.2008, the Government issued an order for creation of the posts of Head Constable (Special Category) and Sub- Inspector (Special Category). It was decided that 50% of the total number of eligible Constables and Head Constables would be temporarily given the rank of Head Constable (Special Category) and Sub-Inspector (Special Category). It was on the basis of seniority subject to rejection of unfit. Then came the decision of the Apex Court in the case of Prakash Singh vs. Union of India & others, reported in (2006) 8 SCC 1 directing steps towards police reforms. This was followed by the 2007 Act. The State Police Reforms Commission was notified. It sought opinion from the public as well as the departmental employees. Question No. 55 of the questionnaire dealt with the issue concerning Constables and Head Constables. It included as to how these officers could be empowered to achieve the goals of the police force and also the matters relating to recruitment. In its report (Annexure No. 18), it recommended in Clause 19 that, at least, three promotions in the entire career would boost the morale of the non-gazetted officers. It was also suggested that Head Constables should be promoted on the post of Sub-Inspector on the basis of seniority and the remaining be filled-up by way of departmental examination. The Government did not take any decision and, thereafter, on 12.02.2014, the Advertisement was issued.
4592. The writ petitioners had earlier approached this Court by filing Writ Petition (S/S) No. 741 of 2014 seeking various reliefs, which included the reliefs of quashing the decisions of the PEC dated 07.09.2010, 17.01.2014 and 26.02.2014, and also to restrain the respondents from proceeding on the basis of the decision taken and the Advertisement dated 12.02.2014 till the Government takes a decision on the recommendation of the State Police Reforms Commission. Then followed the judgment, which we have already referred to. The Director General of Police, by communication dated 16.12.2014, informed the Principal Secretary, Home that, in the years 2007-2008 and 2008-2009 inter alia, Rankers' Sub-Inspector Examination was held on the basis of the procedure applicable at the relevant time in the erstwhile State of U.P. The third respondent, it is alleged, without taking any decision as to how Constables and Head Constables of other branches can be included, simply requested to approve the selection process earlier adopted by the Department. It is contended that from the noting received under the Right to Information Act, it was revealed that, on the aforesaid letter, it was specifically noticed in the Government file that, in service matters, mostly the provisions applicable in the State of U.P. are being followed in the State of Uttarakhand so as to not adversely affect the interest of the employees. Non application of mind is alleged against the second respondent Principal Secretary (Home) to the unreasoned and mechanical request, it is alleged, of the Director General of Police. There is also a reference to the Home Minister directing the Principal Secretary to discuss the issue. It is the case of the writ petitioners that there is no whisper in the file as to what discussion took place. The matter was placed before the Chief Minister, who approved the suggestion of the Principal Secretary on 27.01.2015. But, it is the case of the writ petitioners that the Chief Minister directed that a separate proposal for promotion of the remaining senior Head Constables be prepared. What is essentially contended in this case by the learned counsel for the writ petitioners Mr. Vinay Kumar is that the said file noting by the Chief Minister amounts to a decision within the meaning of Section 38(3) of the 2007 Act and, therefore, without implementing the same, the present selection is bad.
4693. There is no dispute that under the decisions, which are impugned, the maximum age limit for the Head Constables to apply for Sub- Inspector (Rankers) Examination, which stood at 40 years, has been enhanced to 45 years and, apparently, the writ petitioners have all overshot even the latter upper age limit and this is part of their grievance. Thus, in substance, according to them, Senior Head Constables, having regard to the length of service they have put in, should be provided with promotion to Sub-Inspector (Rankers) as a separate source of recruitment.
94. The stand of the State is that the file, which was before the Chief Minister, essentially related to the proposal to continue with the selection as originally advertised and that was marked as 'Ka'; that proposal was approved; and it was contended that the Chief Minister only directed that proposal be made for catering to the Head Constables.
95. We may notice that the writ petitioners had, in fact, filed Writ Petition (S/S) No. 741 of 2014 and that came to be disposed of by the judgment passed by the learned Single Judge, relevant portions of which we have already taken notice of. The very same orders, which are challenged in prayer No. 1 in this writ petition, had been challenged in the earlier round also. The said prayers were not specifically granted. No doubt, the learned Single Judge has proceeded to take the view that, under Section 38(3) of the 2007 Act, the decisions of the Committee must be placed before the State Government, the decision of the Committee has no formal approval of the State Government as visualized in the statute. Subsequently, there is a decision dated 28.01.2015. The writ petitioners have, no doubt, challenged the said decision. The principal basis for challenge to the said decision, which is pressed in this writ petition, is relating to the grievance of the Head Constables (Civil) that, when the proposal came before the Chief Minister, even though he had approved the proposal of the PEC, a proposal was directed to be made in respect of Head Constables.
4796. The question to be answered in the light of this development is whether the Chief Minister, who apparently was holding the portfolio also in question as Minister for Home, intended that the ongoing selection pursuant to Advertisement dated 12.02.2014 was to be put on hold and proceeded with only after a proposal is framed by the PEC in regard to the senior Head Constables like the writ petitioners and the matter receives further attention. We are of the view that the noting cannot be so read. The PEC's proposal was, undoubtedly, reiterating its stand. That was in regard to the Advertisement dated 12.02.2014. The idea of a fresh proposal in regard to the senior Head Constables cannot be treated as a modification of the decision of the PEC within the meaning of Section 38(3) of the 2007 Act. At any rate, we find it difficult to accept the contention of the writ petitioners that it was intended that the ongoing selection process be kept in abeyance and it was to be proceeded with only after a proposal in this regard was made and considered. No doubt, the writ petitioners have a case that, if it was otherwise, the vacancies will all be filled-up; but, we cannot also ignore the contention of the State that the vacancies will continue to arise. It is to be noticed that, under the orders, which have been passed, the maximum age limit is 45 years. Apparently, the writ petitioners are ineligible being age-barred. To think that the entire selection process is to be frozen until the entire matter receives consideration so that the writ petitioners can be accommodated by framing new proposal is unacceptable. In this regard, we notice that the proposal to continue with the selection was, itself, approved by the Chief Minister. So, this direction by the Chief Minister can only be understood as meaning that the PEC was to consider the aspect of the senior Head Constables so that, in future, they could possibly be considered by framing appropriate provisions for their promotion based on principles of seniority alone or along with other suitable criteria and without undergoing the test and also overlooking the age factor.
97. The learned Single Judge has noted the contentions of the writ petitioners and held that no direction can be given to the Government on this aspect, but the Government will be at liberty to either fill-up the entire 48 vacancies or to keep certain posts vacant for such promotion, which can be made only after the exercise as directed above is completed i.e. the State Government in consultation with the committee may include a provision for the promotion of their senior Head Constables as well, but in accordance with law.
98. In this view of the matter, Special Appeal No. 649 of 2015 being bereft of merit, it will stand dismissed.
Findings in Special Appeal 282 of 2015:
99. This Special appeal arises from the judgment passed in Writ Petition (S/S) No. 859 of 2015. The prayers sought in the said writ petition are as follows:
"I. Issue a writ, order or direction in the nature of mandamus commanding the respondents to grant and extend the benefit of reservation to the Schedule Caste category candidates in the selection process initiated consequent to order dated 28.01.2015 for appointment on the post of Sub Inspector (Civil Police) in terms of Article 16(4) of the Constitution of India read with the provisions of Uttar Pradesh Public Services (Reservation for Schedule Caste, Schedule Tribes and other Backward Classes) Act, 1994 and G.O. dated 18.7.2001.
Or in the alternate II. Issue a writ order or direction in the nature of mandamus commanding the State Government to consider for granting promotion to the petitioners, belonging to Schedule Caste Category, in terms of G.O. No. 904 dated 05.09.2012, simultaneously and along with the promotion to be granted in the cadre vacancies on the post of Sub Inspector (Civil Police), consequent to the exercise undertaken for the year 2014-15 pursuant to Government Order dated 28.01.2015 to the post of Sub Inspector (Civil Police) from amongst the eligible Constable / Head Constable belonging to Civil Police, Armed Police, PAC, LIU in the State Police Services, if the same is construed and declared as a promotional exercise undertaken for promotion to the post of Sub Inspector (Civil Police).
III. Issue a writ, order or direction in the nature of mandamus directing the State Government to immediately request and direct for submission of appropriate report by the Irshad 49 Husain Committee which was otherwise in terms of its constitution through G.O. No. 903 dated 05.09.2012, was to be submitted within three months, though it is still not submitted after an expiry of more than 2 ½ years and thereby causing irreparable loss and injury to the petitioners, who in the absence of such appropriate report, are being deprived of their constitutional right as provided under Article 16(4-A)."
100. Appellants / writ petitioners claimed benefit of reservation. It is their complaint that, construing the selection process as a promotional exercise, respondents are depriving the writ petitioners of their statutory as well as constitutional right for grant of reservation for selection as Sub- Inspectors (Civil Police). Reference is made to a decision of the Apex Court in M. Nagaraj vs. Union of India, reported in (2006) 8 SCC 212. Justice Irshad Hussain Committee was appointed to study the issues related to backwardness, inadequacy of representation and maintenance of administrative efficiency in terms of M. Nagaraj's case. Further, it is the case of the writ petitioners that, in view of the fact that it is not a promotional exercise, they are entitled for reservation. They contend that it is not a promotional exercise. Alternatively, it is their case that, following the judgment in M. Nagaraj's case, Justice Irshad Hussain Committee has been appointed and Government Order dated 05.09.2012 was promulgated providing that, during the intervening period till the Committee submits its report, persons belonging to the Scheduled Caste category and who are eligible to get the benefit of reservation in promotion before the passing of the judgment should be given promotion by creating ex-cadre posts and such benefit of promotion being granted on ex-cadre will be applicable only one time. Reference is made to the said order to contend that it specifically provided that, during the intervening period, appointments in the ex-cadre posts and promotions during DPC in regular cadre posts should be done simultaneously. The writ petitioners are denied the benefit of Article 16(4-A) and they are also not granted the benefit of Government Order No. 904 dated 05.09.2012.
101. The learned Single Judge took the view that it is a promotional exercise. It is also found that the appellants / writ petitioners had the 50 benefit of reservation as per Government Order dated 18.07.2001 at the time of their initial selection and, therefore, on the second selection, they cannot claim benefit of reservation.
102. The stand of the Government also is that 50 per cent of the posts of Sub-Inspector are to be filled-up by direct recruitment and 50 per cent by promotion through departmental examination. Departmental examination is held on the basis of merit in which 300 marks were allotted for the written examination and 100 marks are allotted for the service record, length of service, rewards, etc.
103. The prayers sought in the alternative, namely, prayers II & III are only to be rejected in the light of the latest judgment of the Apex Court in the case of Suresh Chand Gautam vs. State of Uttar Pradesh & others, reported in AIR 2016 SC 1321.
104. As far as the first prayer is concerned, i.e. to give them benefit of reservation treating it as a selection process (apparently not as a promotional exercise), the same cannot be granted. This is for the reason that it is clearly a promotional exercise and, therefore, in view of the fact that Section 3(7) of the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 has been struck down, there cannot be any reservation in promotion for the members of the Scheduled Caste category.
105. The resultant position is that no case is made out for grant of any relief in Writ Petition (S/S) No. 859 of 2015 and the appeal will stand dismissed.
Findings in Special Appeal Nos. 622 of 2015, 625 of 2015, 655 of 2015, 238 of 2016 and Writ Petition (S/S) No. 516 of 2016:
51106. Special Appeal Nos. 622 of 2015, 625 of 2015, 655 of 2015 and 238 of 2016 are all directed against the judgment passed by the learned Single Judge in Writ Petition (S/S) No. 257 of 2015.
107. Writ Petition (S/S) No. 516 of 2016 is filed on 11.03.2016. The prayers sought in this writ petition are as follows:
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 13th January 2016 issued by the Director General of Police, Headquarters, Uttarakhand, Dehradun whereby 27 persons have been sent for undergoing training for the post of Sub Inspectors Rankers Civil Police even though their names have not been included in the select list issued on 7th January 2016.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to send the petitioners for training for the post of Sub Inspector Rankers Civil Police pursuant to the Rankers Examination-2014 as the petitioners are immediately below the last selected candidate in the select list dated 7th January 2016."
108. The complaint in the writ petition, in brief, is that respondent Nos. 4 to 30, who are members of the PAC and IRB and whose names have not been included in the select list dated 07.01.2016, have been sent for training, whereas the present petitioners, whose names appear immediately below the last selected candidate, have not been sent for training, in spite of the fact that the selection process was initiated by the respondents for 300 posts of Sub-Inspector (Rankers) Civil Police. There is reference to order dated 07.09.2010 of the PEC, the advertisement dated 08.11.2010, communications dated 11.03.2011 and 17.01.2014. Communication dated 11.03.2011 provides that the training undergone by the recruits constables in the centre after the selection will be treated as basic course and that all training, rewards, medals received during the entire service will be taken into consideration. The decision dated 17.01.2014 of the Committee was to amend certain criteria for Sub- Inspector (Rankers) Civil Police as well as Sub-Inspector (Rankers) Armed Police / Platoon Commander. The maximum age was fixed at 45 years as on 1st January of the selection year. The candidates had to run 5 52 kms. in 30 minutes for male candidates and 3 kms. in 21 minutes for female candidates. The decision dated 26.01.2014 amended the decision dated 17.01.2014 to the extent of taking into consideration the service record in question inter alia. The petitioners have applied in terms of the advertisement dated 12.02.2014 and they qualified in the written examination as well as in the physical test. There is reference to the interim order passed in Writ Petition (S/S) No. 257 of 2015 and there is further reference to the final judgment passed in the said case. Reliance is placed on the direction to declare the result of Rankers Examination, except for members of the PAC and IRB. There is also reference to Annexure No. 9, which is an interim order passed by this Court. The result was published on 07.01.2016 in respect of 279 candidates only. It did not include the 27 private respondents, who are members of the PAC and IRB. On 13.01.2016, the Police Headquarters issued an order, whereby it issued another list of 27 persons, whose names were not included in the earlier order dated 07.01.2016 for the reason that their lien was with the PAC, on the ground that the same is being issued in view of the interim order of the Division Bench dated 23.12.2015. It is contended that the result was declared by the Police Headquarters only for 279 vacancies. The subsequent list of 27 candidates cannot be treated as a select list, as the same has not been issued in continuation of the selection list dated 07.01.2016, as per which only 279 candidates' result was declared. The petitioners are immediately below the last selected candidate in the select list of 279 candidates, but they are not sent for training. Since training is being conducted in batches, non-sending of the petitioners would adversely affect their seniority. It is, accordingly, that they are before this Court.
109. In the counter affidavit, it is inter alia contended that it is in compliance with the interim order passed by the Division Bench that the result of PAC and IRB personnel was declared on the condition that it will be subject to the final order.
53110. The contentions raised by Mr. Manoj Tiwari, learned Senior Counsel, are essentially on the lines of the arguments addressed in the connected matters and the fate of this writ petition is essentially consequential upon the fate in the other appeals.
111. The question, which essentially arises for consideration, is whether Constables and Head Constables of the PAC and IRB are eligible to be included in the feeder categories for participating in the Sub-Inspector (Rankers) Civil Examination and vie for selection.
112. The learned Single Judge, noticing the directions contained in paragraphs 31 and 32 of the judgment dated 26.11.2014 passed in the earlier round (WPSS Nos. 741 of 2014 and 914 of 2014), took the view that the directions have not been observed by the authorities. The judgment in the earlier round was rendered on 26.11.2014. Thereafter, the Government decided to proceed on the basis of order dated 28.01.2015. Writ Petition (S/S) No. 257 of 2015 came to be filed. On 26.02.2015, an interim order was passed and the examination was permitted to be held, no doubt, subject to the final result of the writ petition. Examination took place on 01.03.2015. It is while so that, during the pendency of the writ petition, the PEC took the decision dated 07.03.2015. Still further, on 18.03.2015, the Government also passed an order purporting to approve the selection process. Order dated 07.03.2015 is an order passed by the PEC giving reasons for the inclusion of the PAC and IRB among others. By order dated 18.03.2015, taking note of the order dated 07.03.2015, the Principal Secretary, Home, Government of Uttarakhand, has concluded that the promotional exercise should go on. The learned Single Judge took the view that these two orders are post decisional having been passed after the holding of the written examination on 01.03.2015. They are passed after the filing of the writ petition. It is to be noted that the Application for Amendment, by which the said two orders were sought to be challenged, was not actually allowed and, what is more, there is no ground taken in the appeal filed by 54 the writ petitioners contending that the Amendment Application ought to have been allowed.
113. The learned Single Judge further reasons that there were two directions given to the State Government in the earlier judgment dated 26.11.2014. The first was that the PEC must apply its mind and give reasons regarding inclusion of other wings and the matter was to be considered by the Principal Secretary, Home, Government of Uttarakhand and, still further, wide publication must be given and the matter be formalized. The learned Single Judge notes the stand of the learned Chief Standing Counsel that though things have not been done in the manner they ought to have been done as there is no prior reasoning given by the PEC, but the subsequent decisions actually justified their stand regarding the inclusion of the two wings. Thereafter, the learned Single Judge notes that the biggest establishment in the police department is indeed the civil police having the highest number of posts at each level, namely, Constable, Head Constable and Sub-Inspector. The reasons justifying the inclusion are briefly referred to. Still further, the learned Single Judge notes as follows:
"21. From the submissions made by the learned Chief Standing Counsel before this Court it is clear that the promotional exercise is being justified in terms of fairness and equal opportunity to all police personnels. Although there may be a logic in this justification given by the respondents, but the fact remains that the respondents have already initiated the exercise and conducted the written examination as per the recommendations of the Committee was back on 07.09.2010, which were never considered or approved by the State Government, at any level. It is now being justified, as in fact there is no other option for the State Government, but to hold on to its decision. Therefore, the order of this Court, which was a direction to the Committee to undertake the exercise before commencing with the examination has clearly been violated. This is evident from the fact that in the present exercise, in spite of the respondents continuous emphasis that the Police Department is one single force, etc. the fact is that all 'wings' of the Police Department are not really under the zone of consideration. For example, the "Fire Department" which the petitioners would argue may also be a part of the larger police force is not under the zone of consideration. Why keep this department out of the consideration, has not been explained! 55
22. The main thrust of the argument of the petitioners is that the respondents have not followed the directions given by this Court in order dated 26.11.2014 (in WPSS No. 741 of 2014 and 914 of 2014; the directions have already been referred above). There has actually been no consideration by the Committee, as to why different wings of Police Force are being taken into a consideration zone for the promotional exercise and the so called consideration dated 07.03.2015 and 18.03.2015 are "post decisional" exercises which are mere justification of the deeds already done! The Committee could do nothing except justify its action already taken.
23. The arbitrariness of the "Committee", the Police Department, and the Government is writ large in the manner this promotional exercise is being conducted. This Court has to remark, even at the cost of repetition, that perhaps the Police Department is the only Department in the Government where services of employees, as regarding recruitment and promotion, is without any definite Rules. Directing the Government to frame Rules for the purpose, may perhaps be an overreach on the part of this Court and it is for this reason that this Court even in the earlier round of litigation, though fully convinced with the desirability of such Rules, had refrained from issuing any mandamus for that purpose. It would have been better had the Government framed Rules on its own. It has on the contrary failed to comply even with the direction of the Court. The direction of this Court in its order dated 26.11.2014 in WPSS No. 741 of 2014 have not been followed as there has been no application of mind as to why other wings of the Police Force are also to be considered for this promotion except now a post facto justification. To that extent, at least, this promotion exercise is bad. In the present exercise therefore police personnel i.e. Constables and Head Constables of only Civil Police, Armed Police and Intelligence shall be considered. Consequently the respondents shall declare the result of only such candidates who are in the Civil Police, Armed Police & Intelligence. The reason why Armed Police and Intelligence are being included in the present exercise is that these three wings i.e. Civil Police, Intelligence and Armed Police perform by and large same nature of duties and transfer from one wing to another is frequent as stated by the learned Chief Standing Counsel, unlike the case with either PAC or IRB, which seem to be a separate force. As far as PAC is concerned it is largely governed by a separate Act known as The U.P. Pradeshik Armed Constabulary Act, 1948 (hereinafter referred to as "PAC Act") and whereas vide Section 86 of the Uttarakhand Police Act, 2007 the Indian Police Act, 1861 has been repealed PAC Act is still in force. Similarly IRB i.e. Indian Reserve Battalion is a separate force, raised for a particular and distinct purpose.
24. It is open to the Government to either fill all the posts of Sub Inspector (Ranker), or to keep some posts vacant to be filled by other wings, which are presently being kept out, as their inclusion 56 in the promotion would depend upon a proper justification by the Government, as and when it happens."
114. We may also notice paragraph 38 of the judgment, which reads as follows:
"38. Ultimately, therefore, this Court has come to the conclusion that since the direction of this Court has not been followed, as given in the earlier writ petition (WPSS No. 741 of 2014), and the Committee had not applied its mind as to why it is including other wings of Police Force nor was the exercise approved by the Government, and the decision dated 07.03.2015 and 18.03.2015 is post the exercise and post the actual decision taken after the written examination. The same is not sustainable.
Therefore, in the present exercise only Constables and Head Constables belonging to Civil Police and Armed Police and Intelligence shall be considered. As far as PAC, IRB and other wings are concerned, they shall only be considered, subject to what has already been said above in para 26 supra."
115. On this basis, the writ petition stood disposed of.
116. The matter was elaborately argued by Mr. Shobhit Saharia on behalf of the appellants in Special Appeal Nos. 622 of 2015 and 625 of 2015 espousing the cause for inclusion of members of the PAC and IRB; Mr. Manoj Tiwari, learned Senior Counsel opposing such inclusion along with Mr. Vinay Kumar, learned counsel for the writ petitioners.
117. Firstly, we will explore the statutory framework in regard to the police. In fact, we may take note of the judgment of the Apex Court in the case of H.C. Pradeep Kumar Rai & others vs. Dinesh Kumar Pandey & others, reported in 2015 AIR (SC) 2342. Paragraph 10 of the said judgment reads as follows:
"10. Regulation 445 of the said Regulations of UP Government (as amended upto 31.08.1977) provides for qualifications and procedure for promotion from rank of Constable and Head Constables to Sub Inspectors. The procedure therein consists of Notice, pre-examination (essay type written exam), examination of character roll, main written examination and finally interview. The Regulation provides that the number of candidates 57 called for interview, on the basis of the merit of the main written examination, shall be four times the number of vacancies. In the interview, 40% marks are to be allocated to the service record. It has been submitted and clarified to us that these regulations are actually a compilation of Government Orders issued from time to time. Therefore, we find that the Regulations are not a superior law as compared to the Government Orders and it may be amiss to suggest that Regulations would prevail over the Government Orders by virtue of being called Regulations. Having said that, we go on to examine the Government Orders issued by the UP Government in 1999."
Therefore, it may not be correct to describe it as statutory. In the year 1861, the Police Act was enacted. It continued to hold the field till it was repealed by the 2007 Act. There is not much dispute that the members of the PAC and also IRB have been issued appointment orders purporting to be under Section 2 of the Police Act, 1861 (hereinafter referred to as the "1861 Act"). Section 2 of the 1861 Act reads as under:
"2. Constitution of the 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 conditions of service of members of the subordinate ranks of any police-force shall be such as may be determined by the State Government."
118. This is one significant fact, which is harnessed by Mr. Shobhit Saharia to contend that the members of the PAC and IRB are police officers within the meaning of the 1861 Act and members of the PAC were part of the Uttarakhand Police on the birth of the State of Uttarakhand on 09.11.2000 under the State Reorganization Act.
119. Next, we must consider Section 5 of the PAC Act of 1948. It reads as follows:
"5. Members of PAC to be deemed Police officers. - Subject always to the provisions of Sections 6 to 8 every member of the Pradeshik Armed Constabulary shall upon his 58 appointment and as long as he continues to be a member thereof, be deemed to be a Police officer, and, subject to any terms, conditions and restrictions, as may be prescribed, to have and be subject to, insofar as they are not inconsistent with this Act or any rules made thereunder, all the powers, privileges, liabilities, penalties, punishments and protection as a Police officer duly enrolled has or is subject to by virtue of the Police Act, 1861, or any other law for the time being in force, or any rules or regulations made thereunder."
120. Therefore, the case of Mr. Shobhit Saharia is that members of the PAC are deemed to be police officers under the 1861 Act. More on this aspect will follow after we consider the developments, which have taken place by way of laws and orders issued in regard to the matter. We may notice the following extract from the PAC Manual:
"Introduction to PAC Manual. - Prior to 1942, our State had Military Police Department, I.G.P. as head of the Central Reserve Coy., which was meant to deal with extreme cases of violence, communal riots, etc. and to train the Armed Wing of the State Police. Later, the necessity brought in the creation of Special Armed Constabulary in the year 1942 constituted under UPSAC Act.
After the partition of the country in the year 1947, the communal riots had broken and the services rendered by the SAC during this period necessitated further increase in its strength. The Military Police and the SAC were, thereafter, amalgamated and its further strength was raised with a new name, Pradeshik Armed Constabulary, given to this organization vide GO No. 55-39- AZ/VIII-144-47, under the UPPAC Act, 1948.
Since then the PAC has been discharging very important role on all needed occasions and has beneficially helped the Police as a parallel force on the pattern of quasi-military force in maintaining law and order. At present our State has 28 Battalions, located at various districts with commandants as its head, supervised and controlled by the DIGs, PAC and IG, PAC, UP as the head of the force. The services of the officers of the PAC and the Police are interchangeable and the provisions of the Police Regulations are applicable to PAC.
The Government have in the year 1973 further taken some administrative decisions to improve this organization, and the GO No. 7298/VII-2-1100(35)-1973, dated October 12, 1973 is also given here after the PAC Manual for reference."
121. Therefore, we may notice that it was discerned that the PAC has been discharging a very important role and has beneficially helped the 59 police as a parallel force on the pattern of quasi-military force in maintaining law and order. It may, at once, be remembered that maintaining of law and order is an important aspect of policing and is the duty of the police force. In the course of the quest for relevant inputs to decide the issue, it is necessary to ascertain as to what is the concept of police force. In this regard, Mr. Shobhit Saharia would draw our attention to a central enactment, namely, the Police Forces (Restriction of Rights) Act, 1966 (hereinafter referred to as the "1966 Act"). The said Act, it is pointed out, came into force on 28.03.1973 in the State of Uttar Pradesh. Therefore, being a law within the meaning of the State Reorganisation Act, 2000, under which State of Uttarakhand was created, the same also would apply in the State of Uttarakhand unless it was done away with, for which nobody has a case. Section 2(a) of the 1966 Act defines "member of a police force" as meaning any person appointed or enrolled under any enactment specified in the Schedule. The word "police-force" is defined under Section 2(b) of the 1966 Act as including any force charged with the maintenance of public order. Under Section 3 of the 1966 Act, various restrictions have been imposed on the members of the police force. In the Schedule, it is relevant to notice, the 1861 Act figures at serial No. 3. So also at serial No. 17 is the PAC Act of 1948. Therefore, it tends to indicate that members of the PAC would be treated as members of the police force. (It is true that this aspect does not figure in the consideration by the PEC or by the Government, this being a matter of law).
122. Now, we may divert to what actually transpired in regard to the members of the PAC vying for selection as Sub-Inspector (Rankers) Civil. In the year 1983, the Government of U.P. decided to permit the Constables from PAC also to compete for selection as Sub-Inspector (Rankers) Civil. This practice continued and, even after the birth of the State of Uttarakhand, it is not irrelevant, but on the other hand most relevant, to notice that the members of the PAC were being permitted to participate in the selection for Sub-Inspector (Rankers) Civil. This occurred during the selection, which took place in 2007, 2008, 2010 and it 60 is also contemplated in this selection launched under the Advertisement dated 12.02.2014, which is the subject matter of the present controversy. The Uttarakhand Legislature enacted the Uttarakhand Police Act in the year 2007. Under Section 38 of the 2007 Act, power was lodged with the PEC to lay down the procedures for selection of the police officers as mentioned therein. Section 38(2)(a) reads as follows:
"38 (2) Establishment Committee shall perform the following functions and duties, namely:
(a) lay procedures for the selection and promotions in the Subordinate Ranks;"
123. This provision was subject matter of the earlier litigation, namely, in Writ Petition (S/S) Nos. 741 of 2014 and 914 of 2014. As already noticed, in 2007, 2008 and 2010, members of the PAC were permitted to participate. After establishment of the PEC under the 2007 Act, the PEC brought out proceedings dated 07.09.2010. Thereunder, the members of the PAC and also the IRB among others were allowed to participate in the selection as Sub-Inspector (Rankers) Civil Police. Following the said decision of the PEC, the Advertisement was issued on 12.02.2014 for conducting selection to the posts of Sub-Inspector (Rankers) Civil Police. Members of the PAC and the members of the IRB were also permitted to participate. It was this which led to the filing of Writ Petition (S/S) Nos. 741 of 2014 and 914 of 2014. Therein, the major point, which was raised, related to the inclusion of the members of the PAC and IRB. The learned Single Judge repelled the contention that framing of the rules was essential; but, he took the view that it is desirable to frame rules. Thereafter, we think it apposite to notice paragraphs 28 to 32 of the said judgment passed in the earlier round:
"28. The other contention of the petitioner is that the decision taken by the Committee in any case is no decision, as it has nowhere been notified. Although the rebuttal to this argument of the learned Additional Advocate General of the State was that the counsel for the petitioner filed a copy of the decision, which is freely available in the website and at least two promotional exercises have already been taken place, under the procedures laid down by the Committee, hence it is totally wrong to say that this 61 decision which they are presently challenged in the writ petitions were never in their knowledge.
29. The petitioner, however, relies upon Section 38(3) of the Police Act and submits that the Statute itself accepts that the decisions taken by the Committee have to be placed before the State Government for its approval, as unless it is formally placed before the State Government, the State Government would be in no position to take decision in under Section 38(3) of the Police Act. Under Section 38(3) of the Police Act the State Government has powers to alter or amend the decisions of the Committee.
30. This Court is in agreement with the petitioner on the above point as since the decision of the Committee was never formally placed before the State Government, the State Government had no opportunity to exercise its discretion or apply its mind, as provided under Section 38(3) of the Police Act. It does not have formal approval of the State Government as visualised by the Statute itself.
31. As regarding Constables and Head Constables of other branches of the Police being made eligible, this Court is in no position to take a formal stand, which is for various reasons, but primarily as the entire facts are not before this Court, as to what is the organisation of the police and what are the different cadres, what is the strength of different cadres, and more particularly, these Constables or Head Constables who have now been made eligible under the decision of the Committee are also not before this Court . Yet, this aspect needs consideration, both by the Committee as well as by the State Government, which is whether members of outside cadre (though of the same police force), can be included in the "feeding cadre" to the promotion of Sub Inspectors in Civil Police.
32. Let the decisions of the Committee be placed before the Principal Secretary (Home), Uttarakhand, who shall examine the decisions of the Committee and the entire procedures laid down by the Committee, and thereafter pass a formal order therein, which should then be made public and will be in the knowledge of entire Police Force so that they are well aware of the recruitment or promotional exercise. Subject to the above, this Court is presently not interfering with the decision of the Committee. However, this Court directs the Director General of Police, Uttarakhand to place its decision (under which the promotion exercise was to take place) before the State Government, which should then exercise its power under Section 38(3) if need be, and in the light of the observation of this Court formalise the "decisions".
124. This judgment was rendered on 26.11.2014. It is, thereafter, that the decision was rendered by the Government on 28.01.2015. It is necessary for us to advert and extract the English translation of the same, which reads as follows:
62"Annexure - A.11 From, M. H. Khan Principal Secretary Government of Uttarakhand To, Director General of Police Uttarakhand, Dehradun Home Section - 7 Dehradun, Dated :-28th January 2015 Sub: In regard to provide the approval to the selection process prescribed for the conducting the Ranker Sub-Inspector Examination by the Police Departmental Committee constituted under Uttarakhand Police Act, 2007.
Sir, The following order was passed on 29.11.2014 by Hon'ble Nainital High Court in Writ Petition No. 741(S/S) of 2014 filed against the advertisement/ notification no. DG-One-201-2014(1) issued by Police Headquarter for conducting the ranker Sub- Inspector Examination 2014-15 against the vacant posts of Sub- Inspector promotion quota in police department :-
"Let, the decisions of the Committee be placed before the Principal Secretary (Home), Uttarakhand, who shall examine the decisions of the Committee and the entire procedures laid down by the Committee and thereafter pass a formal order therein, which should then be made public and will be in the knowledge of entire Police Force so that they are well aware of the recruitment or promotional exercise. Subject to the above, this Court is presently interfering with the decision of the Committee, However, this Court directs the Director General of Police Uttarakhand to place its decision (Under which the promotion exercise was to take place) before the State government, which should then exercise its power under Section 38(3) if need be and in the light of the observation of this Court formalize the "decisions."
It is made clear though the stay orders passed in the petitions are being vacated, but State Government shall not take any further steps for recruitment or promotion till such a final decision is taken by the State Government, as directed above."
2. In view of the said judgment of the Hon'ble High Court Nainital, it has been made aware by the Police Headquarter, Nainital that after the constitution of the State of Uttarakhand, the Ranker Sub-Inspector Examination were conducted in the year 2007-08 and 2008-09 on the basis of the selection procedure prevalent in the erstwhile State of U.P. After coming into the force of Uttarakhand Police Act, the Police departmental committee was 63 constituted by section 38 (1) of the said Act, vide Government Order No. 1232/22(1)/408/ Police/ 2008 dated 07.11.2008. Under section 38 (2) of the said Act, the responsibility of prescribing the criteria for the selection of the subordinate post and for the promotion is vested with the Police Departmental Committee.
3. In view of conducting the Ranker Sub-Inspector Examination, the regular meeting of the Police Departmental committee are held for analyzing the selection procedure prevalent for inclusion for participation in this examination. In the said meeting dated 07.09.2010, the prescribed qualification for participating in Ranker Sub-Inspector examination, the written examination procedure, physical efficiency examination procedure, procedure for the evaluating the service record of the applicants, the determination of the marks of the service record by terminating certain provisions from the interview process and by including few new provisions of the amendment selection procedure for conducting the Ranker Sub-Inspector examination was prescribed. On the basis of the said selection procedure, the Ranker Sub- Inspector examination was conducted undisputedly.
4. The advertisement/ notification no. DG-One-201- 2014 (1) dated 12.02.2014 for conducting the Ranker Sub-Inspector Examination-2014-15 on 17.01.2014 by the Police Departmental Committee. The eligibility, age, experience, cadre, service record etc was prescribed by the Police Departmental Committee for the said examination. The written examination and physical efficiency examination shall be conducted by the selection committee to be constituted at the headquarters' level for the purpose of the selection amongst the candidate fulfilling the eligibility criteria.
5. All the documents made available by the police headquarter were duly perused and examined in view of the order dated 26.11.2014 of the Hon'ble High Court Nainital, it is clear, keeping in view the selection procedure prescribed by the committee constituted under Uttarakhand Police Act, 2007 and all the records in the ranker examination that the clear selection procedure prescribed for conducting the examination by the said committee.
6. Sub Inspector is the post vested with the right in the Police Department, it is responsibility of the Police Departmental Committee that it should prescribe the procedure for the selection and promotion on the subordinate post.
The notification / advertisement was issued after prescribing all the eligibility criteria in accordance with law by the police departmental committee in which they does not appear to be requirement of any kind of interference. It is clear from the perusal of the entire fact that they doesnot appear to be requirement of any kind of amendment or change in the decision for getting the ranker examination conducted by the Police Departmental Committee.
64Therefore, the approval is granted to the employees of other cadre PAC/IRB / Armed Forces Police for the purpose of participating in the Sub Inspector Ranker Examination- 2014-15 Yours' faithfully Sd/- illegible M.H. Khan Principal Secretary"
125. This led to the filing of Writ Petition (S/S) No. 257 of 2015. Though, originally, order of stay was obtained, it was vacated. Examination was allowed to be held and it took place on 01.03.2015. Then came the so-called post decisional exercise by the PEC. It is most relevant to advert to the same as much may turn on its effect and we do so as under (English translation):
"Annexure P-13 Minutes of the meeting of the Police Establishment Committee held on 07.03.2015 in compliance with the order dated 28.02.2015 passed by the Hon'ble High Court, Nainital in Writ Petition No. 257/2014 and 258/2015 in respect of the Ranker Sub Inspector Examination of the Sessions 2014-15 in force:-
The files related to the case above are availed before the Committee. It is evident from records that Writ Petition No. 257/2015 Mohan Singh Lokmanya and Others vs. the State and Others and Writ Petition No. 256/2015 Man Singh Negi and Others vs. the State filed in the Hon'ble High Court against the Ranker Sub Inspector Examination of the year 2014-15 are pending in the Hon'ble High Court.
2. The Hon'ble High Court listing the date of appearance on 26.02.2015 on 24.02.2015j in Writ Petition No. 256/2015 and 257/2015 directed to produce the facts of the case with the records on the fixed date so the Chief Standing Counsel was informed with the facts with the relevant records by the letter dated 24.02.2015 of the Police Headquarter.
3. After hearing of both the said writ petitions, the Hon'ble High Court has directed in the order passed on 26.02.2015 that the detailed reply be filed within 3 weeks in respect of the objections / expectations of the petitioners in writ petition in question, the written examination be conducted on the date fixed, however, the result of the examination of the examination would not be declared until the next order of the Hon'ble Court. The date of 20.03.2015 is listed for the next hearing in the above writ petitions. The written examination has been held on 01.03.2015 as per the said order of 65 the Hon'ble High Court, however, the further proceedings related to the selection to be made after the written examination has been kept stayed.
4. It has been observed in the order dated 26.02.2015 of the Hon'ble High Court that since the justification of including the personnel of other branches of the police force in addition to the Constables / Head Constables of Civil Police in the Ranker Sub Inspector Examination to be held for the promotion on the post of Sub Inspector Civil Police being not clear before the Court, the directions had been given in para 31 and 32 of the order passed on 26.11.2014 that the case be forwarded to the Government clearing the situation by the Police Establishment Committee on the subject of including the Head Constables / Constables of Armed Police / PAC / IRB in addition to the Head Constables / Constables of the City police in the Ranker Sub Inspector Examination for consideration and only after the approval of the Government, further proceedings be carried out.
5. Although the written examination has been held on 01.03.2015 as per the order of the Hon'ble High C our, this meeting has been held to clarify the justification for including the Head Constables / Constables of the Armed Police / PAC / IRB in Ranker Sub Inspector Examination in compliance with the said orders of the Hon'ble Court.
6. The Committee discussed intensively the following arguments / facts in the meeting:
(1) The particulars of the sanction/ availability and vacancies of the posts from the constables to the Inspector level in Civil Police, Intelligence, Armed Police, PAC and IRB in the Uttarakhand Police Department are as under:-
Name Constable HC Sub Inspector / Inspector / Company of the Platoon Commander Commander Cadre Allo- Avail- Va- Allo- Avai- Va- Allo- Avai- Vac- Alloc- Avail- Va-
cation able cant cation lable cant cation lable ant ation able cant
Civil 7931 7712 219 1024 957 67 1363 773 590 122 103 19
Police
Intell- 471 447 24 319 290 29 267 199 68 68 88 -
igence
Armed 2820 3111 291 768 638 130 66 21 45 22 21 01
Police
PAC 2569 2260 309 584 463 121 84 85 19 29 26 03
IRB 1260 1095 165 314 196 118 44 40 04 14 12 02
(2) There is the provision to recruit the 50% by direct recruitment and 50% posts through the departmental promotion 66 examinations out of total sanctioned posts of the Sub Inspector City Police / Sub Inspector Intelligence, Platoon Commander PAC / Sub Inspector Armed Police.
(3) It is clear in para - one of the decision made in the meeting of the police establishment Committee held on 07.09.2010 in respect of the conduct of the Ranker Sub Inspector Examination as per the records available that the male / female Head Constable / Constable of the City Police / Armed Police / PAC / Intelligence would be eligible to participate in the Ranker Sub Inspector Examination.
The Sub Inspector Civil Police is very important post having rights in the Police Department. The armed police / PAC / ARB in addition to the Constables / Head Constables City Police Intelligence are included in the Ranker Sub Inspector Examination to be held against the posts of the promotion quota of the Sub Inspector City Police at present due to the following reasons:-
(1) The Civil Police are the main executive force of the Police Department. The Civil Police through the all districts, tehsils, blocks/ reporting outposts and watch ward outposts have very important roles in general security of the citizens, law and order, control of crime, prevention of crimes in the State, successful unveiling of the investigations, traffic management, VIP Security, security, law and order during the local fairs / festivals and national festivals on the basis of public traditions / beliefs, anti social elements activities such as terrorism and effective control of the naxelite activities.
On the other hand, PAC and IRB is special armed force in the police organization, which works as the supporter to the executive force. These Special Forces do not have any independent work area and responsibility; however, their roles are limit to assist the main executive force as per the requirement. Therefore, working area and responsibility of the civil police is wider and more important compared to the armed police, PAC and IRB.
(2) The post of Sub Inspector in the police Department is the axle of the Police Department. The post of Sub Inspector Civil Police is very important and full of rights. The Sub Inspector Civil Police have extensive rights to conduct the Investigation into the cases under Sections 155 and 156 of the Criminal Procedure Code.
It is clear from the estimation of the promotion on the post of the Sub Inspector in the police organization that there only 194 posts of the Platoon Commander / Sub Inspectors in PAC / IRB, armed police, in which the posts of promotion are only 97, while there are total 1630 posts of Sub Inspector CP an Sub Inspector Intelligence, in which the posts of promotion are 815, which is much higher. As such due to challenging work variation of the Civil Police and more 67 opportunities of the promotion compared to the personnel in the Civil Police, to render service coming on these posts of the Sub Inspector Civil Police coming from the said other branches by the examination is the desire of every police personnel. Therefore, keeping in view the selection of the excellent candidates on the post of the Sub Inspector Civil Police, the personnel of the armed police, PAC and IRB are also included.
(3) It is pertinent that the selection on the post of the Constables Civil Police and Constables PAC, Constables IRB is made through the single examination on the basis of the single standard, in which the selected candidates the cadre is allotted on the basis of examination merit / option to the candidates selected. The first option of the candidates is normally Civil Police, due to which the candidates having higher merit come in the cadre of the Civil Police, while the candidates of the minimum merits are allotted PAC and IRB cadres. Those personnel, who are bereft from the selection in the Civil Police on the basis of the merit get opportunity again to discharge the challenging responsibility of the police on the basis of the skill and talent while remaining in the police service through the Ranker Sub Inspector Examination.
(4) The candidates are selected on the basis of the merit of the marks obtained in the service records and the written examination in the examination to be held on the State level openly for the employees having merit and qualities for the promotion on the post of the Ranker Sub Inspector. The question paper of the written examination of 300 marks is in three parts, the first part consist of 100 marks of general knowledge / General Hindi, second part on 100 marks of police procedure and third part on 100 mars of law. The candidate is declared successful in the written examination only upon obtaining minimum 50% marks. The examination of physical fitness of the candidate succeeded in the written examination is held, which is only qualifying in nature. The service records of the candidates qualifying the physical fitness examination are valuated. Total 100 marks are specified for the service whose distribution is as under:
service period maximum 15 marks, education maximum 10 marks, Course - maximum 15, reward / medal maximum 20 marks, yearly remarks maximum 40 marks. The selection is made on the basis of the merit based on the total of the marks obtained in the written examination and service records of the candidates. As such there is the competent of the service records of 100 marks with the written examination of 300 marks in the said selection procedure, in which weight is given to the service period, education, courses, rewards / medals and yearly remarks of the candidate.68
(5) According to the provisions stipulated in para 525 of the Police Regulations, there is also the provision to charge lien by transferring the constables working in different branches of the police organization from one cadre to anther cadre permanently / temporarily and permanently from PAC, IRB in Civil Police / Armed police. On the basis of this very provision, the mutual transfer from PAC to IRB and from IRB to PAC. Salary/Post/ nature of duty of the PAC/IRB personnel being similar, IRB personnel are included in the all promotional selection procedure / examinations with the PAC personnel themselves by organizing the separate promotional examinations of IRB Personnel. Therefore, the personnel of IRB are included in the Ranker Sub Inspector Examination like the personnel of PAC.
On the personnel recruited in Civil Police / PAC / IRB are appointed on the post of Constables / Head Constables in other branches of the Police Department such as armed police, intelligence, CID, Vigilance, traffic, horse rider, armorer, forensic science, CID, Water Police, SDRF, BDS, Ship team, QRT, CPU and other units.
(6) The sanction to include Constable Armed Police / Constable PAC in the category of the Ranker Candidates was granted for the selection of the post of the Sub Inspector Civil Police (Departmental) by the Government Order No. 1383/Eight - 10-83 (1200) (55)/76 dated 31.10.1983. Thereafter, the sanction to include the Head Constables Armed Police/ PAC also in the category of the ranker candidates was granted by the Government Order No. 2397/Eight-10-85 1200 (55)/76 dated 05.06.1996 issued in respect of the above for the selection on the post of the Sub Inspector Civil Police (Departmental). As such, the constables / head constables of the all the said branches including Civil Police, Intelligence, Armed Police and PAC are included in the Ranker Sub Inspector Examination for the selection against the vacancies of the Sub Inspector Civil Police Promotion Quota from the last 30 years from the very time of Uttar Pradesh, which reveals that the head constables / constables of the Civil Police, Armed Police, PAC and IRB have been included under the arrangement prevalent earlier in the Ranker Sub Inspector Examination.
(7) It is pertinent that the Ranker Sub Inspector Examinations against the vacancies of the promotion quota of the Sub Inspector Civil Police were held in the years 2007-2008 and 2008-2009 after the State of Uttarakhand was constituted only the basis of the rules / provisions in force in UP for the time being, in which the head constable / constables of the armed police / PAC / IRB also were included. 69 candidates got selected from the armed police / PAC / IRB in the Ranker Sub Inspector Examination held in 2007-08 against 222 69 posts. Similarly 13 candidates of the armed police / PAC/ IRB were selected in the Ranker Sub Inspector Examination held in the year 2008-09 against 137 posts. The Ranker Sub Inspector Examination was held against 51 posts in the year 2010-11 on the basis of the selection procedure of the Ranker Sub Inspector specified by the Police Establishment Committee under the Police Act, 2007, in which 7 candidates from the armed police / PAC / IRB got selected. The candidates selected from PAC / IRB on the basis of the excellence of the said three Ranker Sub Inspector Civil Police / Sub Inspector Intelligence.
7. After due consideration on the amendments made on 17.01.2015 and 26.02.2015 in the selection procedure and the selection procedure specified in the meeting held on 07.09.2010 by the Police Establishment Committee to conduct the Ranker Sub Inspector Examination under the provisions stipulated in the Uttarakhand Police Act, 2007 this Police Establishment Committee does not find any requirement to make any amendment / change finding the selection procedure based on the merit prescribed earlier and the amendments made therein in the Uttarakhand Police as excellent, good for the selection of the Sub Inspector Civil Police.
8. After due consideration on the basis of the said all arguments / facts the Committee is of the only opinion that if the head constables / constables of the armed police, PAC and IRB are included with the Civil Police in the Departmental Ranker Sub Inspector Examination to be held for the selection on the very important and sensitive post like the Sub Inspector of the Police Department, the qualified and excellent candidates get opportunity to obtain the promotion for the post of Sub Inspector, which is quite proper in the interest of the department.
9. Therefore, after perusal of the said all facts, the Committee has found it proper to include the Constables and Head Constables of the armed police, PAC and IRB with the Civil Police in the Ranker Sub Inspector Examination.
Sd/- 07.03.15 Sd/- 07.03.15
(RS Meena) (Anil K. Raturi
Additional Director General of Additional Director General of
Police, Administration Police, Crime and Law & Order /
Uttarakhand CID, Uttarakhand
Sd/-
(B.S. Siddhu)
Uttarakhand"
126. This was followed finally by decision dated 18.03.2015 taken by the Principal Secretary, Home, purporting to approve the selection. It is 70 necessary to advert to the same also. English translation of the same reads as follows:
"Govt. of Uttarakhand Home section -7 No. 378/XX-7-2015-01(78) 2014 Dehradoon Dated 18th March 2015 OFFICE MEMO Following order was passed on 29.11.2014 by Hon'ble Nainital High Court in Writ Petition No. 741 (S/S) of 2014 and Writ Petition No. 941 (S/S) of 2014 filed against the advertisement/notification no. DG-One-201-2014(1) issued by Police Headquarter for conducting the ranker Sub-Inspector Examination 2014-15 against the vacant posts of Sub-Inspector promotion quote in police department :-
"Let, the decisions of the Committee be placed before the Principal Secretary (Home), Uttrakhand, who shall examine the decisions of the committee and the entire procedures laid down by the Committee and thereafter pass a formal order therein, which should then be made public and will be in the knowledge of entire Police Force so that they are well aware of the recruitment or promotional exercise. Subject to the above, this Court is presently not interfering with the decision of the Committee. However, this Court directs the Director General of Police, Uttrakhand to place its decision (Under which the promotion exercise was to take place) before the State government, which should then exercise its power under Section 38(3) If need be and in the light of the observation of this Court formalize the "decisions."
It is made clear though the stay orders passed in the petitions are being vacated, but State Government shall not take any further steps for recruitment or promotion till such a final decision is taken by the State Government, as directed above."
2. In para -32 and 33 of the Judgment dated 26.11.2004 passed by the Hon'ble High Court Nainital after hearing the Writ Petition No. 257 of 2015 Mohan Singh Tomakayal & Anr Vs State & Anr filed in the Hon'ble High Court Nainital against Ranker Sub- Inspector Examination, the order has been given to give the detailed reply by making the purpose of including the employees of Armed Forces Police/ PAC/ IRB in the ranker examination.
3. In view of the said judgment of the Hon'ble High Court Nainital, it has been made aware by the police headquarter Nainital that after the constitution of the State of Uttrakhand, the Ranker Sub-Inspector Examination were conducted in the year 2007-08 and 2008-09 on the basis of the selection procedure, prevalent in the erstwhile state of U.P. After coming into the force of Uttrakhand Police Act, the Police Establishment committee was constituted under section 38 (1) of the said Act, vide Government Order No. 1232/XX(1)/408/ Police/ 2008 dated 07.11.2008. Under 71 section 38 (2) of the said Act, the responsibility of prescribing the criteria for the selection of the subordinate post and for the promotion is vested with the Police Establishment Committee. In addition to it, employees of IRB has been considered to be like of employee of PAC in the meeting of the Police Departmental Committee held on 07.03.2015.
4. In view of conducting the Ranker Sub-Inspector Examination, regular meeting of the Police Establishment committee are held for analyzing the selection procedure prevalent for inclusion for participation in this examination. In the said meeting dated 07.09.2010, the prescribed qualification for participating in Ranker Sub-Inspector Examination, the written examination process, physical efficiency examination process, procedure for the evaluating the service record of the applicants, the determination of the marks of the service record by terminating certain provisions from the interview process and by including few new provisions of the amendment, selection process for conducting the Ranker Sub-Inspector examination was prescribed. On the basis of the said selection process, the Ranker Sub-Inspector examination was conducted undisputedly.
5. The advertisement/ notification no. DG-One-201- 2014(1) dated 12.02.2014 for conducting the Ranker Sub-Inspector Examination-2014- 15 on 17.01.2014 by the Police Departmental Committee. The eligibility, age, experience, cadre, service record etc was prescribed by the Police Departmental Committee for the said examination. The written examination and physical efficiency examination shall be conducted by the selection committee to be constituted at the headquarters' level for the purpose of the selection amongst the candidate fulfilling the eligibility criteria.
6. All the documents made available by the police headquarter were duly perused and examined in view of the order dated 26.11.2014 of the Hon'ble High Court Nainital, it is clear, keeping in view the selection procedure prescribed by the committee constituted under Uttrakhand Police Act, 2007 and all the records in the ranker examination that the clear selection procedure prescribed for conducting the examination by the said committee. Sub- Inspector is the post vested with the right in the Police Department, it is responsibility of the Police Establishment Committee that it should prescribe the procedure for the selection and promotion on the subordinate post. The notification/ advertisement has been issued after prescribing all the eligibility criteria in accordance with law by the police departmental committee in which they does not appear to be requirement of any kind of interference. It is clear from the perusal of the entire fact that there does not appear to be requirement of any kind of amendment or change in the decision for getting the ranker examination conducted by the Police Establishment Committee. Therefore, the approval is granted to the employees of other cadre PAC/IRB/Armed Forces Police for the purpose of participating in the Sub-Inspector Ranker Examination- 2014-15 held on 07.03.2015 by the Police Departmental Committee for being included in the said selection procedure.
72Sd/- illegible M.H. Khan Principal Secretary No. 378/XX-7-2015-01(78)2014 dated as above Copy forwarded to following for information and necessary action
1. Director General of Police, Uttrakhand in respect of letter dated 10th March 2015.
2. Guard File.
By Order Sd/- illegible M.H. Khan Principal Secretary"
127. Whether contempt alone will lie as contended by Mr. Shobhit Saharia?
128. We find the argument of Mr. Shobhit Saharia meritless that, if the writ petitioners' case is of non-compliance, the only thing that could be done was to lodge contempt. Contempt proceedings are maintainable when there is a willful disobedience of the court's order. Short of willful disobedience in a matter relating to civil contempt, contempt action may not lie. But, if a decision is rendered disregarding the earlier directions of the court, that may not prevent the aggrieved party from challenging the decision by filing a fresh writ petition. It, in fact, furnishes a fresh cause of action. There is, undoubtedly, a duty on the part of the State and the authorities to act in terms of the directions, as this is fundamental to the upkeep of the rule of law and, to say that an action in contempt is the sole relief which can be sought, may not represent the correct position in law.
129. However, we must also be detained by the argument that there was a reason for the State and the authorities to act in the manner they did and that is the ambiguity in paragraphs 31 and 32 of the judgment in the earlier round, which we have already extracted. It is pointed out by Mr. Shobhit Saharia and also Mr. Paresh Tripathi, learned Chief Standing Counsel that this Court may notice the directions, which are contained in paragraph 32. A perusal of paragraph 32, it is contended, would show that it was directed by the learned Single Judge that the decision passed 73 by the PEC (Director General of Police is the Head of the Committee), which led to the selection, was to be placed before the State Government and the State Government was to formalize it and, if need be, exercise the power under Sections 38(3) of the 2007 Act. It is contended that this was actually done by the decision taken on 28.01.2015. In this connection, Mr. Shobhit Saharia would contend that the entire file was before the Government and, when the Government approves the matter, it is not as if reasons are to be given. There is also a case for the both, Mr. Shobhit Saharia and the learned Chief Standing Counsel, that the understanding of Section 38 by the learned Single Judge is flawed. Under Section 38(2), as held by the learned Single Judge, even in the absence of the rules made under Section 87, it is open or, rather, it is the function and duty of the PEC to lay down the procedure for selection. It laid down such procedures by its decision dated 07.09.2010. In fact, the learned Single Judge has noticed in the earlier round itself that it had been published in the website and, what is more, selection had been under the same in 2010. It is their contention, therefore, that there was no need to place it as such before the Government. What is necessary is that, even without placing it as such formally before the Government, the issuance of the norms by the PEC (which undoubtedly took place on 07.09.2010) constituted the laying down of the procedures and it came into force without anything more. What Section 38(3) of the 2007 Act provides is only a power with the Government to modify, amend or repeal the decision of the PEC. For that, there is no need for it to be placed before the Government. As already noticed, there is publication in the website and selection took place once in the year 2010 under the aegis of the said decision.
130. More importantly, it is contended by Mr. Shobhit Saharia that, at any rate, the issue is not to be approached as if it is a case involving violation of natural justice and the concept of post decisional hearing, therefore, may not be apposite.
131. At this juncture, it is relevant to notice the basis for the learned Single Judge proceeding on the basis that there is disregard of its earlier 74 directions. The premise for such finding appears to be found in the observations in paragraph 31 of the judgment in the earlier round. Therein, after noticing the difficulties in appreciating challenge to the decision dated 07.09.2010, by which members of the PAC and IRB were included, which included the fact that persons affected were not before the court and the nature of the cadre, etc., the learned Single Judge has held that "yet, this aspect needs consideration, both by the Committee as well as by the State Government, which is whether members of outside cadre (though of the same police force), can be included in the "feeding cadre"
to the promotion of Sub-Inspectors in Civil Police".
132. At the same time, we cannot ignore the fact that the learned Single Judge proceeded to take the view that the decision of the Committee was to be placed before the Principal Secretary, who was to examine the decision and the entire procedures and to pass a formal order, which was to be made public. But the learned Single Judge further notes that, "subject to the above, this Court is presently not interfering with the decision of the Committee". Therefore, though there was a challenge to the decision of the PEC dated 07.09.2010 among other orders, the same was not quashed. It is, therefore, that the argument runs for the appellants in Special Appeal No. 622 of 2015, as also for the Chief Standing Counsel, that, on an understanding of the judgment that the decision dated 07.09.2010 was to be placed before the Government, the matter was placed before the Government and the Government has passed order dated 28.01.2015 permitting the selection to go on. It is, thereafter, when the writ petition was filed and the matter came up, that it was realized that, to give effect to the observations in paragraphs 31 and 32 of the judgment in the earlier round, it was required that PEC must apply its mind again and, thereafter, the Government must decide the issue and the decisions dated 07.03.2015 and 18.03.2015 were rendered. It is, in this context, that the argument of Mr. Shobhit Saharia that contempt alone would lie, may have some significance. The question to be posed and answered would be, will the entire selection, which has reached the stage of the written examination and, on subsequent modification of the order, the further 75 stage is undergone, be rendered ineffective on the ground that, in a manner of speaking, the cart was put before the horse; in that, the examination was first held on 01.03.2015, the PEC considered the issue seven days thereafter on 07.03.2015 and the Government approved it on 18.03.2015. Would the deliberations of the PEC and the Government stand vitiated on account of non-adherence to the directions of the learned Single Judge as such or will it be treated as sufficient if, though not strictly done as directed, in substance the directions have been complied with and whether we need answer the question that there was justification for inclusion of the members of the PAC and IRB? Equally, we must ask whether it would be a case, where as the decisions have been taken post the examination, the decisions must be afflicted with the bias of a decision maker, who, first, takes a decision and, then, gives reasons in support thereof.
133. In order to answer these questions, we must notice what the learned Single Judge has found in regard to the inclusion of PAC and IRB. What we find, essentially, in paragraph 23 of the judgment, which we have extracted, is that members of the PAC are constituted under a separate enactment, namely, the PAC Act of 1948. Whereas, under Section 86 of the 2007 Act, the 1861Act has been repealed, the PAC Act of 1948 is still in force. In respect of inclusion of Civil Police, Armed Police and Intelligence, the learned Single Judge reasoned by holding that they perform by and large the same nature of duties and transfer from one wing to another is frequent, as stated by the State counsel, unlike the case with either the PAC or IRB, which seems to be a separate force.
134. It is here that we must pause to consider the sustainability of these findings. Mr. Shobhit Saharia, learned counsel for the appellants would complain that, apart from referring to the separate enactment in respect of PAC, the learned Single Judge has not dwelt upon the provisions of the 2007 Act or the 1861 Act and has not considered various other relevant facts, which have been considered by the PEC.
76135. A perusal of the decision taken on 07.03.2015 by the PEC would reveal that they have taken the following aspects into consideration:
(i) Constables of Civil Police and PAC are recruited through a common examination and, on securing higher marks, are, according to their choice, allocated to the Civil Police on a preferential basis.
(ii) There are transfers effected from the PAC to the Civil Police and vice-versa.
(iii) Since selection is on the basis of a written examination followed by other selection procedures, meritorious candidates among the candidates from various branches are selected. This has been established with reference to the figures in the previous selection.
(iv) Sub-Inspectors (Civil Police) are entrusted with investigation works under the Code of Criminal Procedure. It would be the desire of police officers of the PAC and IRB to discharge such powers.
136. Allied with this is the fact that, taking the Armed Police, PAC and IRB, though there is a separate channel for promotion, number of posts available are 194. For promotion, however, it is limited to 97 (apparently, the balance would go to the direct recruitment quota); whereas, a large number of posts of Sub-Inspector are available for the Civil Police (as per the Table, it is 1363). Police Constables from PAC have been vying for selection since the time of the State of U.P.
137. It is apart from this that we must also contrast and consider and bear in mind the following aspects, which are brought to our notice:
Members of the PAC are deemed police officers under Section 5 of the PAC Act of 1948. They are deemed to be police officers under the 1861 Act. They have been issued orders appointing them under the 1861 Act.77
138. At this juncture, we may immediately notice an argument raised on behalf of the writ petitioners and by Mr. Manoj Tiwari, learned Senior Advocate, that they have not been expressly enrolled under the 1861 Act. We would think that it may not matter that they are not enrolled having regard to Section 5 of the PAC Act of 1948. It is, at this juncture, that we may also notice another contention raised by Mr. Manoj Tiwari, learned Senior Advocate. He would contend that under Section 5 of the PAC Act of 1948, while it is true that members of the PAC are deemed to be police officers, the Court must bear in mind the limitations of a deeming clause. It is contended that, by being a deemed police officer, it is intended to give certain protection to the police officer. In this regard, we may notice the following (Principles of Statutory Interpretation by Justice GP Singh):
"In interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created.....
As was observed by James, L.J.: "When a statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for what purposes and between what person the statutory fiction is to be resorted to". "When a legal fiction is created", stated S.R. Das, J. "for what purpose, one is led to ask at once, is it so created?"
After ascertaining the purpose, "full effect must be given to the statutory fiction and it should be carried to its logical conclusion" and to that end "it would be proper and even necessary to assume all those facts on which alone the fiction can operate". In an oft-quoted passage, Lord Asquith stated: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitable have flowed from or accompanied it - . The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs". Thus if A is deemed to be B, compliance with A is in law compliance with B and contravention of A is in law contravention of B."
78139. With this statement of law in mind, if we examine the scope of Section 5 of the 1861 Act, it becomes clear to us that the purpose of the deeming provision appears to be to treat the members of the PAC as police officers under the 1861 Act insofar as they are not inconsistent with the PAC Act of 1948 in regard to all the powers, privileges, liabilities, penalties, punishments and protection as the police officer duly enrolled has or is subject to under the 1861 Act. Therefore, it dispenses with a further enrollment as such under the 1861 Act. Secondly, protection as a police officer under Section 1861 Act is only one aspect covered by the deeming provision. The members of the PAC, on being duly appointed, would enjoy all the powers, privileges and be subject to the liabilities, penalties and punishments also under the 1861 Act. In other words, the deeming provision must be widely construed and it must certainly be brought to its logical conclusion. Therefore, we would think that the learned Single Judge was not justified in merely referring to the fact that members of the PAC are constituted under a separate enactment. Despite the said fact, the question to be posed was whether, having regard to Section 5 of the PAC Act of 1948 and being a police officer under the 1861 Act through the said provision, being subject to liabilities, penalties and punishments and possessing the powers and privileges of a police officer under the 1861 Act, including him in the feeder categories for promotion to the post of Sub-Inspector (Rankers) Civil was justified. We would think that the learned Single Judge ought to have considered this aspect. Though we must at once notice that there is no reference to this either in the decision dated 07.03.2015 or the decision dated 18.03.2015, but, being matters of law, we can safely consider this among other aspects.
140. We are not impressed by the submissions of Mr. Manoj Tiwari based on Sections 6 and 7 of the PAC Act of 1948. They provide that an officer of the PAC would be subject to more severe punishments than a police officer, who is enrolled under the 1861 Act, would be. As already noticed, this is in consonance with the scheme of Section 5 itself, as it provides that the officer would be deemed to be a police officer under the 79 1861 Act, to the extent they are not inconsistent with the provisions of this Act. Therefore, to the extent Sections 6 and 7 subject the officers of the PAC to more stringent punishments, necessarily they will hold sway, but it is a far cry from saying that these will detract from the members of the PAC being part of the police force under the 1861 Act. Equally unimpressed we are with reliance placed on Section 9 of the PAC Act of 1948, read with Section 10. Section 9 provides that notwithstanding anything contained in the 1861 Act, or in any other law, no member of the PAC shall be entitled to be discharged from the Constabulary. The argument raised by Mr. Manoj Tiwari, learned Senior Counsel, was that this is in contrast with Section 9 of the 1861 Act. Section 9 provides that no police officer shall be at liberty to withdraw himself from the duties of his office unless expressly allowed to do so by the District Superintendent or by some other officer authorized to grant such permission, or without the leave of the District Superintendent, to resign his offices, unless he shall have given to his superior officer notice in writing, for a period of not less than two months, of his intention to do so. True it is that the members of the PAC would be governed by Section 9 of the PAC Act of 1948 in regard to discharge. However, as already noticed, this is in consonance with the scheme of Section 5 of the PAC Act of 1948 and this deviation from Section 9 of the 1861 Act being expressly provided must hold good, but again it has absolutely nothing to do with the question, which is posed before us, namely, the true width and scope of the deeming provision under Section 5 of the PAC Act of 1948. The efforts made by Mr. Manoj Tiwari, learned Senior Counsel, to point out that Section 10 of the PAC Act of 1948 provides for reversion of a Commandant or an Assistant Commandant notwithstanding anything contained in Section 9 to U.P. Police and officer of the PAC who has been seconded from the Police Force, cannot advance his case. It is true that Constables and Head Constables are not covered by Section 10; but the purpose of adverting to the Acts in question is to find out whether members of the PAC are part of the larger police force of the State of Uttarakhand and whether the decision of the PEC and the Government in including members of the PAC for promotion as Sub-Inspector (Rankers) 80 is perverse or flawed in the Wednesbury sense that it becomes unsustainable. These differences in the position of the members of the PAC as distinct from members who are expressly enrolled under the 1861 Act, in our view, may not be relevant to answer the question and, hence, we repel these contentions.
141. Equally, we would notice that the attempt of Mr. Manoj Tiwari, learned Senior Counsel, to draw sustenance from Section 7 of the 1861 Act, which provides the power for appointment, dismissal, etc. of inferior officers being lodged with the Inspector General, Deputy Inspectors General, Assistant Inspectors General and District Superintendents of Police; and whereas, the power is lodged in respect of members of the PAC with the Commandants, is without any basis. As noticed, members of the PAC are appointed under the 1861 Act. It is significant to notice that there is not much dispute that the appointment orders were issued by the officers, who are subordinate to the Director General of Police.
142. It is at this juncture that we may notice the 2007 Act. Section 3 of the 2007 Act provides that there shall be a Police Force for the State. Sub-Section (3) of Section 3 reads as follows:
"3(3) The administration of the Police Force of the State, subject to the overall control of the State Government, shall vest in the Director General of Police."
143. The word "police force" is not defined in the 2007 Act as such.
"Police officer" is, however, defined in Section 2(p) and Section 2(q) defines the word "police personnel". They read as follows:
"2(p) "Police Officer" means any officer, belonging to the Indian Police Service, Uttarakhand Police Service or Uttarakhand Police Subordinate Service and includes any other service, constituted under this Act.
2(q) "Police Personnel" means and includes such police officers and all other persons, whom the Appointing Authority is the Director General of Police or any officer subordinate to him."81
144. We may also notice Section 2(y), which defines "subordinate rank"
as under:
"2(y) "Subordinate Rank" means all ranks, below the rank of Assistant or Deputy Superintendent of Police."
145. No doubt, Mr. Vinay Kumar, learned counsel for the writ petitioners, would submit that Section 6 of the 2007 Act provides for a district level special cell. Section 9 provides for Railway Police. Section 10 provides that the State Government may, by a general or special order, create a State Intelligence Department for collection, collation, analysis and dissemination of intelligence. Section 11 provides for crime investigation department. Section 12 deals with specialized police force. Section 13 being the subject matter of argument, we extract the same as under:
"13. To assist the civil police in enforcement of law and maintenance of order or in situations of likely breach of peace or in disaster management functions, in escort or prisoners, or to discharge such other duties, which may require special weapons and tactical teams or presence or armed police, the State Government shall create Armed Police Units or Special Armed Police Units with appropriate manpower strengths in the form of an Armed Police Reserve for each Police District and Armed Police Battalions for the State. The constitution, recruitment, training, deployment and administration of such Reserve Battalions shall be as per rules made under this Act."
146. Section 14 enables appointment of Special Police Officers in consultation with the District Magistrate by the Superintendent of Police in special circumstances.
147. The argument of Mr. Vinay Kumar is absence of any reference to the PAC or IRB in the 2007 Act as such. In regard to Section 13, it contemplates that recruitment, inter alia, is to be done as per the rules made under this Act. Mr. Shobhit Saharia does not dispute the absence of rules and, in fact, submits that PAC and IRB are not to be treated as constituted under Section 13; but, he would submit that the members of 82 the PAC would certainly be police personnel as defined in the 2007 Act as the appointing authority is subordinate to the Director General of Police and, therefore, they would certainly be police personnel.
148. Section 86 of the 2007 Act being relevant, we extract the same as under:
"86. (1) The Indian Police Act, 1861 (Act 5 of 1861) is hereby repealed in its application to the State of Uttarakhand.
(2) The repeal under sub-section (1) shall not affect the previous operation of the enactments so repealed and anything done or action taken or deemed to have been done or taken earlier (including any appointment or delegation made or notification, order, direction or notice issued). Rules or Regulations made under the provisions of the said Act shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been made under the corresponding provisions of this Act, and shall continue to be in force unless and until superseded by anything done or action taken under this Act."
149. It is relevant to notice that Section 2 of the 1861 Act contemplates the police establishment, which is to be deemed to be one police force. No doubt, Mr. Vinay Kumar, learned counsel for the writ petitioners, would contend that there is no Government Order within the meaning of Section 2. But, we cannot be oblivious to Section 5 of the PAC Act of 1948 and the further fact that the officers have been appointed under the 1861 Act in their orders of appointment and they are also appointed by officers subordinate to the Director General of Police. We cannot help, but think that members of the PAC would be part of the "entire police establishment" and, therefore, of the police force.
150. It is relevant to notice that policing can broadly be divided into investigation of crimes and maintenance of law and order. It may be further sub-divided into Intelligence, the Armed Police and the supporting Battalions like the PAC and the IRB. It is also true that Sub-Inspectors (Civil) are exclusively entrusted with duties relating to investigation of crimes, filing reports in courts, besides of course assignments relating to maintenance of law and order. We must notice that the learned Single 83 Judge has found that members of the Armed Police discharge similar functions. If that is so, certainly the members of the PAC are also charged with the duty of maintaining law and order essentially. A reference was made by Mr. Manoj Tiwari, learned Senior Counsel, to Section 23 of the 1861 Act, which relates to duties of police officers. It includes the duty of obeying and executing all orders and warrants, collecting and communicating intelligence affecting public peace, preventing commission of offences and public nuisances, detecting and bringing offenders to justice and apprehending all persons whom he is legally authorized to apprehend. It is rendered lawful for every police officer, for any of the purposes mentioned in this Act, without a warrant to enter and inspect any drinking shop, gaming house or other place of resort of loose and disorderly characters. It is, therefore, contended that such powers cannot be exercised by the members of the PAC. There are, in fact, two ways of looking at this. Firstly, having regard to Section 5 of the PAC Act of 1948, the powers under the 1861 Act of a police officer are available to the members of the PAC. It is at this juncture that we must notice that members of the PAC have been transferred to Civil Police and also to the Armed Police. At any rate, when they are transferred, they would enjoy the powers under Section 23 of the 1861 Act. Secondly, as noticed from the PAC Manual, it is discernable that members of the PAC have been an effective parallel force supplementing the police force in the matter of maintaining of law and order. When the question is being examined from the point of view whether their inclusion is relevant, the issue must, in the first place, be best left to the competent authorities. They know the role played, the powers, privileges, liabilities, duties and functions of members of various branches of police, be they members of the police described as Civil, Armed, Intelligence, PAC or IRB. The Court would be usurping the role of the administration, if it were to sit in judgment over the matter as if it were the decision-maker itself. Its province is limited to interference based on principles of illegality and irrationality.
84151. Section 24 of the 1861 Act, which is relied on by Mr. Manoj Tiwari, provides that a police officer may lay information before a Magistrate and apply for summons, warrants, search warrants and other legal process. It is contended that such powers are not available to the members of the PAC. Section 31 of the 1861 Act charges the police of the duty to keep order on the public roads. Section 34, which is relied on by Mr. Manoj Tiwari, provides for punishment for certain offences on roads. We do not see any significance of Section 34, as it does not relate to offences by the police officers, but, on the other hand, relates to certain offences by members of the public on roads. We would think that the proper way to appreciate the 1861 Act is that it is in respect of a officer of the PAC to be read as supplementary and subject to the extent that it may make way for any other law also, for instance, the Code of Criminal Procedure may require an officer of a particular rank alone to discharge certain functions, which are subsequent circumstances. Otherwise, subject to any inconsistency to be found in the PAC Act of 1948, which is a latter Act, the police officers must be endowed with the powers, privileges and subject to liabilities, penalties as provided in the 1861 Act.
152. Much is made of certain provisions in the Police Regulations, which are stated to be possessing statutory flavour, about which we have already adverted to by way of reference to the judgment of the Apex Court in H.C. Pradeep Kumar Rai & others vs. Dinesh Kumar Pandey & others (supra). Regulation 396, relied on by Mr. Manoj Tiwari and Mr. Vinay Kumar, reads as follows:
"396. The Police Force consists of the following bodies:
(1) Provincial Police, Civil, Appointed and enrolled Armed and Mounted. under Act V of 1861.
(2) Government Railway Police.
(3) Village chaukidars Appointed in Agra under Act XVI of 1873 and in Oudh under Act XVIII of 1876.
Not enrolled under Act V of 1861."
85153. Relying on the same, it is contended that there is no reference to either the PAC or the IRB. It is further contended that, under Regulation 406, there is reference only to Civil Police, Armed Police and Mounted Police. Again, there is no reference either to PAC or IRB. To this, the answer of Mr. Shobhit Saharia is that, in Regulation 396, apart from Civil, Armed and Mounted, there is reference to provincial police and the members of the PAC would also come within provincial police. These aspects, we must notice, have not been considered by the PEC or by the Government in the impugned decisions.
154. Another contention, which is to be noted, is based on Regulation
525. It reads as follows:
"525. Constable of less than two years' service may be transferred by the Superintendent of Police from the armed to the civil police or vice versa. Foot police constables may be transferred to the mounted police at their own request. Any civil police constable of more than two and less than ten years' service may be transferred to the armed police and vice versa by the Superintendent for a period not exceeding six months in any one year. All armed police constables of over two years' service and civil police constables of over two and under ten years' service may be transferred to the other branch of the force for any period with the permission of the Deputy Inspector-General.
In all other cases the transfer of Police Officers from one branch of the force to another or from the police service of other Provinces to the Uttar Pradesh Police requires the sanction of the Inspector-General."
155. It is, therefore, contended that it does not contemplate transfer from PAC to Civil or from IRB to Civil. But, Mr. Shobhit Saharia seizes upon the last part of the said Regulation, that is, in all other cases, transfer of police officers from one branch of the force to another only requires the sanction of the Inspector General. We stand informed that the members of the PAC have been frequently transferred to the Civil Police. We would think that there is merit in the contention of Mr. Shobhit Saharia that there is power to transfer members of the PAC to Civil Police. Members of the Civil Police have been transferred to PAC. In this connection, emerges the admitted fact that Constables of the PAC and of 86 the Civil Police are recruited through a common examination, the fact about which there is no dispute. Members opting for Civil or PAC have their options determined on the basis of merit secured in the examination.
156. As far as the members of the PAC are concerned, we would think that it cannot be said that there is no justification for including them in the selection as Sub-Inspector (Rankers). Right from 1983 onwards in the undivided State of U.P., Government has declared the policy of including them and this fact has, in fact, continued even after formation of the State of Uttarakhand and, in the selections held in 2007, 2008 and 2010, which preceded the selection of 2014, members of the PAC were included. This is a very important aspect, which cannot be ignored. Secondly, as already noticed, the selection to the post of Constable in the PAC and Civil Police is done on the basis of common test. On the basis of the merit and option, the candidates are allotted to Civil Police and PAC respectively. Members of the PAC are transferrable to the Civil Police. Merit is the criterion for selection. Therefore, it is not as if a member of the PAC gets an automatic entry into the post of Sub-Inspector (Rankers) Civil Police by merely being a member of the PAC. Apparently, the authorities have found that members of the PAC have earned their right by virtue of being successful in the selection process, which involves assessment of their knowledge on various aspects, including various laws. Also while a mere desire as such cannot be the sole raison d'etre for taking a decision of this nature as contended by Mr. Shobhit Saharia, service rules to be reasonable should provide against stagnation and should cater to the need to accommodate employees in higher echelons. There is, in everyone, innate expectation that he will make progress in his career. Equally, we cannot brush aside the figures, which have been referred to by the PEC showing that a large number of posts are available in the cadre of Sub-Inspector Civil and, while there are promotional avenues available separately for the members of the PAC, what is uppermost in our minds is the free play in the joints, which must be vouchsafed to the decision makers in matters of this nature. We are here not concerned with the merit of the decision, as much as we are concerned with the decision making process. Is it a case, 87 where there were no relevant materials or there were relevant materials? We would think, it is the latter. Whether this Court would have arrived at the same conclusion, is a different matter. We say this because, left to ourselves, we realise that while, on the one hand, members of the Civil Police cannot straightaway compete for selection to the higher posts in the stream of PAC or, for that matter, even IRB and, instead, they can opt to come over to the IRB or PAC and, then, vie for selection and, on the other hand, members of the PAC, while they remain members of the PAC, can compete for selection as Sub-Inspector (Civil Police), these are all matters, which we should view with a certain measure of latitude as, finally, the question to be resolved is, whether the decision of the authorities to include certain categories in the feeder categories for competing to a particular post is so vitiated that it requires interference. There is large element of policy behind this, which apparently is based on objective criteria, which cannot be brushed aside as irrelevant. Therefore, having regard to the final and substantive decision to be taken in this matter, we would think that we cannot find the stand of the PEC or of the Government to be legally flawed that it warrants interference. We do appreciate the fact that the decision of the PEC is taken on 07.03.2015 and that of the Government on 18.03.2015, which is after the date of holding of the exam and, of course, after the decision of the Government itself on 28.01.2015. But, as already noticed, there was some measure of ambiguity in the earlier judgment contained in paragraphs 31 and 32. Therefore, in such a situation, when, though during the pendency of the petition, the PEC and the Government have come up with reasons and, if these reasons are found to be convincing, we would think that the directions given by the learned Single Judge may not be sustainable. Mr. Paresh Tripathi, learned Chief Standing Counsel, would in fact, in regard to the issue relating to the power to transfer, rely upon order dated 12.10.1973. The said order provides that persons can be transferred from PAC to the Civil Police and vice-versa. Mr. Vinay Kumar would submit that, while the order so provides, the same has not been implemented. But we noticed this order so that we can reject the argument of the writ petitioners that there is no power with the State to transfer persons. The 88 fact of the matter is that the past practice shows that there have been transfers. There is also the Government Order, which provides for transfers. This is apart from noticing the stand of Mr. Shobhit Saharia about the latter part of Regulation 525 empowering such transfers. Accordingly, in regard to the PAC, we would think that there was sufficient material though they may not have emerged in exactly the same manner, which was intended by the learned Single Judge in the earlier round, but nonetheless, in the facts of this case, we would think that they provide enough justification for inclusion of the members of the PAC for competing as Sub-Inspector (Rankers).
157. Then there remains the issue relating to IRB. The first unit of IRB in the State of Uttarakhand was raised in the year 2005. The members of the IRB, it is contended, were raised in terms of the Government Order of 2002. Therefore, it was the contention of Mr. Vinay Kumar that, in terms thereof, it could not be said that they could be brought into the Civil Police as this would require the permission from the Central Government. The stand of Mr. Shobhit Saharia is that they were not raised exactly in terms of the Government Order of 2002 and what is pressed before us is that it was expressly held out in the Advertisement is that it was being raised as part of the PAC and, what is more important, orders were issued appointing them under the 1861 Act. The orders were issued by the officers, who were subordinate to the Director General of Police.
158. The Government of India order dated 04.07.2002, relied on by Mr. Vinay Kumar, reads as follows:
"No. II-27011/8/2002-PF.II(v) Government of India Ministry of Home Affairs New Delhi the 4th July, 2002.
To, The Chief Secretary, Govt. of Uttranchal, Dehradun.89
Subject: Raising of India Reserve Bn by Government of Uttranchal.
Sir, I am directed to convey the sanction of the President for raising of one IR Bn by Government of Uttranchal. The standard cost for raising of this IR Bn not exceeding an amount of Rs. 13,00,00,000/- (Rupees Thirteen crores only) will be reimbursed by the Central Government. The condition of reimbursement of initial raising cost and other guidelines for raising of the one IR Bn are indicated below:-
(d) Under the scheme of India Reserve (IR) Battalions, the Government of India meets the standard cost of raising of IR Bn. by way of 50% grant and 50% long term interest free loan to the State Government subject to actual. The Bn is required to be raised broadly on the pattern fixed by the Government of India. The standard pattern, authorization of transport and wireless equipments, Arms and Ammunition etc. is enclosed as Annexure- I & II.
(e) As far as the State Government is concerned, in addition to the annual recurring expenditure for this IR Bn, the State has to incur Capital expenditure for providing the basic infrastructure to the Bn. The expenditure on the Bn after initial raising is borne by the State Government. However, if the Bn is deployed ex-state, the expenditure is borne by the borrowing State. When Bn is deployed in any of the exempted category States, expenditure is borne by the Central Government. When the Bn remains un-deployed as reserve for Central Government, the expenditure is borne by the Central Government. In all other situations, the State Government concerned meets the expenditure on the India Reserve Bns.
(f) During 1999, this Ministry had circulated a syllabus of basic training of IR Bn devised by Bureau of Police Research and Development (copy enclosed as Annexure-III). The training of the IR Bn. accordingly has to be based on the model training syllabus in order to make these IR Bn. operationally effective as and when deployed outside their parent state.
(d) Recruitment of personnel for the India Reserve Bns would be made by constitution of selection board on regional basis within the State. One representative of the CPMFs not below the level of Commandant will be a member on the selection board. This member would be nominated by the Ministry of Home Affairs.
The State Government should request in advance to the Ministry of Home Affairs prior to initiating the recruitment process, for nominating a suitable member for the selection board.
903. The Government of India would exercise the right of first call on this India Reserve Bn. This means that Government of India would have full authority to ask the State Government to make the Bn available for deployment elsewhere in the country as and when required. The State Government would be bound by such guidelines and instructions as may be issued by the Central Government from time to time in this behalf.
3. Since the Bn may be required to serve anywhere in the country, the State Government would, at the time of recruitment and training, take care to ensure that the Bn has a cosmopolitan character and is suitably oriented.
4. The conditions as laid down above for raising of the IR Bn should be scrupulously adhered to. Any deviation without the specific approval of Ministry of Home Affairs, would result in stoppage of further release of the initial raising cost under the scheme. The Central Government, at any point of time, during the raising of the Bn may audit the process of raising, training etc.
5. This issues with the concurrence of Ministry of Finance vide their I.D. No. 920/E-Coord-1/2001 dated 21.6.2002 and IFD, vide their Dy. No. 1136/Fin.III/2002 dated 3.7.2002.
Yours faithfully, Sd/-
(Sisir Das) Under Secretary to the Govt. of India Tel. No. 3092214 th No. II-27011/8/2002-PF.II(v) dated the 4 July, 2002 Copy to:-
3. Director General of Police, Govt. of Uttranchal, Dehradun.
4. Cabinet Secretariat, Rashtrapati Bhawan, w.r.t. their D.O. CSS/17/2000(iii) Dated 6.11.2000.
5. Fin.III/Budget-I/ 'G' Desk/MHA.
6. Guard file.
(Sisir Das) Under Secretary to the Govt. of India Tel. No. 3092214 Copy for information to:-
1. Sr. PPS to HS
2. PPS to JS(P)"
159. Therefore, it is the case of Mr. Vinay Kumar that, in terms of Clause 4, IRB has been raised in 2005 in terms of certain conditions as laid down therein and deviation required specific approval of the Ministry of Home Affairs. The members of the IRB could be deployed in any part of India when need arises and, therefore, the members of the IRB being sent on transfer to the PAC and also to the Civil Police and being promoted in the cadre of Sub-Inspector (Civil Police) was uncontemplated in the Government Order and countenancing the argument on behalf of 91 the IRB personnel would involve breach of the Government Order, which the Court may not countenance. Equally, it is pointed out to us that Section 3 of the PAC Act of 1948 contemplates rules for raising a PAC Battalion. Section 3 reads as follows:
"3. Constitution of PAC. - There shall be raised and maintained by the State Government a force to be called the Pradeshik Armed Constabulary and it shall be constituted in one or more companies in such manner and for such period as may be prescribed."
160. It is contended that since there are no rules made in respect of this Battalion, which is raised, therefore the contentions made on behalf of the members of the IRB are only to be rejected.
161. On the other hand, what is contended by Mr. Shobhit Saharia is as follows:
In Uttarakhand, only one Unit of IRB was raised. That was in the year 2005. He would contend that the Battalion of IRB was not raised in terms of order dated 04.07.2002. Instead, he places before us (though not produced by filing it as part of the record) a communication dated 29.11.2004. Therein, there is reference to large number of posts being created for the purpose of IRB. More importantly, he would point out the terms of the advertisement pursuant to which the IRB Battalion was raised in the State of Uttarakhand in the year 2005. What is stated in the said advertisement dated 04.06.2005 is inter alia that the advertisement is issued to fill-up 955 posts of male Constables in the three Battalions of PAC, Uttaranchal and IRB Battalion, which is part of PAC, Uttaranchal.
He would, therefore, point out that it is held out to persons like the appellants that they were being recruited for the posts of Constable in the three Battalions of PAC of Uttaranchal and IRB, which is part of PAC. It was held out to them, in other words, that they would be part of the PAC. Members were selected and posted in PAC or IRB pursuant to the said advertisement. Many persons, who were selected pursuant to the said selection and who were posted in IRB, got transferred to Civil Police.
92They have competed on the said basis for the posts of Sub-Inspector (Rankers), Civil Police. It is also contended that, actually, persons, who were in the PAC, got posted in the IRB by transfer and they had competed in the selection, which took place in the year 2007 on the strength of adding the service they had in the PAC along with the service they had acquired in the IRB. This submission is made in the context of the provision that a person must have three years' service to complete for selection as a Sub-Inspector (Rankers) Civil Police. Persons, who were directly selected in the year 2005 in IRB, obviously did not have three years, but still they were treated as interchangeable. Apparently, as aforesaid, persons, though they were in the PAC and they were transferred to IRB, competed taking into consideration their aggregate service. This fact is canvassed to point out that members of the IRB were always treated as part of the PAC and they were treated as part of the police force of State of Uttarakhand. It is emphasized before us that the word "police force" is not defined in the 2007 Act. As far as the word "police personnel" is concerned, members of the IRB fulfill the requirements of the definition as they have been issued orders of appointment under the Police Act of 1861 and the orders were issued by the officers, who are subordinate to the Director General of Police. Therefore, they are police officers within the meaning of the Police Act of 1861 and they are members of the larger police force, in which latter connection, support is also sought to be derived from the 1966 Act, which we have already adverted to. Members of the IRB, who got transferred to the PAC, became entitled to compete. Members of the IRB, who were transferred from IRB to the Civil Police, are allowed to compete. If that be so, it is contended, there is no reason to exclude the members of the IRB. As far as Section 3 of the PAC Act of 1948 is concerned, it is contended that, even in the State of U.P., Battalions of PAC were raised on the basis of the Government Orders constituting them. No rules are produced before us. In fact, Mr. Vinay Kumar also would submit that whenever the police battalion was increased, it was done by virtue of issuing orders. Therefore, this may not advance the case of the petitioners, runs the argument of the appellants.
93162. In regard to the IRB, it is undoubtedly true that there are certain distinguishing features when compared to members of the PAC. There is no order similar to the order of 1983 of the State of U.P. as per which the members of the PAC were included. In fact, the first Battalion of IRB was raised in the State of Uttarakhand only in the year 2005. It appears to be the position that they however did compete in the year 2010. Members, who aspire to become Constables of the PAC, compete in a common examination along with persons, who vie to become members of the Civil Police. There is no case of a common test by which they can vie for selection for becoming Constables in the Civil Police. In fact, as per the advertisement of 2005, selection was made for selecting persons for 955 posts of Constables (Male) inter alia, which posts were available in the three Battalions of the PAC and for the IRB, which, it may be emphasized, was declared to be part of the PAC. So, there is a common selection for PAC and IRB. IRB was treated as part of the PAC. We have already held that members of the PAC are entitled to be considered for selection to the posts of Sub-Inspector (Rankers) Civil Police. Furthermore, the other aspects, namely, merit being the criteria for selection, the availability of large number of vacancies in the cadre of Sub-Inspector Civil Police and innate desire to become a Sub-Inspector, who is vested with the powers of investigation, are all present in the case of the members of the IRB also. This is, essentially, a policy decision. We cannot completely be oblivious to the contention of Mr. Shobhit Saharia that the case of the writ petitioners in Writ Petition (S/S) No. 257 of 2015 is, essentially, based on chances of promotion being diminished. It may be true that allowing members of the IRB to compete with the members of the Civil Police and PAC as also the Armed Police and Intelligence Wing may result in reduction of chances of promotion. At the same time, we cannot lose sight of the fact that such an exercise, by throwing open the doors of opportunity to other sections, who are also connected with policing work and selection being made on the basis of merit, it cannot be said that such an exercise should invite interference at the hands of the court. There is a case for the learned Chief Standing 94 Counsel that the State has incurred about Rs. 92 crores as recurring expenses in the upkeep of the IRB Battalion and only a small amount of about Rs. 11 crores was made available by the Central Government. No doubt, to a pointed question as to whether the State would be under an obligation to send members of the IRB Battalion to any part of the country on request being made by the Centre, the learned Chief Standing Counsel would answer in the affirmative. It is true that we may not be inclined to accept the case of Mr. Shobhit Saharia that the IRB, which was raised in the year 2005 in the State of Uttarakhand was not as such raised under Government Order dated 04.07.2002. While it may be true that the order dated 29.11.2004, relied on by Mr. Shobhit Saharia, refers to a large number of posts, in our view, it is to be read together with the earlier Government Order dated 04.07.2002. Therefore, we must proceed on the basis that the IRB was raised with reference to the Government Order dated 04.07.2002 issued by the Government of India also, which we have adverted to. It may also be true that, under the said Government Order, members of the IRB can be deployed anywhere in India. More importantly, any change in their conditions would have required the permission of the Government of India. No doubt, we also notice in this regard the submission of the learned Chief Standing Counsel that it is the Government of Uttarakhand, which has spent huge amount towards the upkeep of the IRB and only a relatively small amount was provided by the Central Government. But the fact of the matter appears to be that, notwithstanding this dimension, members of the IRB have been treated as members of the PAC. This is self-evident from the advertisement itself. Members of the IRB have been transferred to the Civil Police. Secondly, the factors like merit being the criterion and a large number of posts available relatively as also the fact that IRB is essentially being treated as part of the larger police force of the State of Uttarakhand and it essentially involves a police decision and by inclusion of the IRB, the argument of the writ petitioners can only be the reduction of the chances of promotion, we do not think that the matter should receive further attention of the Government, a course of action we did toy with as this aspect has not been considered by the Government. The 95 members of the IRB, as already noticed, were allowed to participate in the year 2010 apparently on the basis of decision dated 07.09.2010 for selection to the post of Sub-Inspector. We would think that, in the circumstances of the case, in view of the practice prevalent in the State and the decision taken by the PEC and the Government, the members of the IRB also should be allowed to compete for the post in question.
163. The learned Chief Standing Counsel would, in fact, submit that members of the IRB can get transferred to the Civil Police and the Armed Police and the members of the PAC get transferred to the Civil Police. He would also submit that the members of the Civil Police can go to IRB though, ordinarily, they do not go.
164. One of the issues, which arises, is while, on the one hand, members of the IRB and PAC, when they are transferred and posted in the Civil Police as Constables or Head Constables, there can be no objection in considering them for promotion as Sub-Inspector, a question may be raised why they should be considered when they are holding posts in the PAC or IRB. One contention raised by Mr. Paresh Tripathi, learned Chief Standing Counsel and Mr. Arvind Vashistha, learned Senior Counsel, is that the Court may keep in mind that their experience as members of the Armed Force, be it PAC or IRB, equips them with the ability to deal with law and order, which is also a part of policing. A Sub-Inspector of Police (Civil) is not only expected to conduct investigation into crimes, but he is also charged with the duty of maintaining law and order. We find merit in this contention. Members of the PAC or the members of the IRB, even without being transferred to the Civil Police, are apparently being considered as they are part of the larger police force and the police force is expected to ensure law and order and their experience in the PAC and IRB would certainly not be an irrelevant input, but would be a highly relevant input.
165. Special Appeal No. 655 of 2015 is filed by the petitioners in Writ Petition (S/S) No. 257 of 2015. As already noted, it is the case of Mr. 96 Vinay Kumar, learned counsel for the appellants, that, having found that there was a breach of the directions contained in the earlier judgment, the learned Single Judge should have allowed the writ petition by quashing the entire selection. The orders dated 28.01.2015 and 07.09.2010, which were challenged, should have been quashed and, equally, orders dated 07.03.2015 and 18.03.2015 also should have been quashed.
166. We have already found that the judgment passed by the learned Single Judge cannot be sustained and we are inclined to allow Special Appeal Nos. 622 of 2015 and 625 of 2015, besides Special Appeal No. 238 of 2016. This would necessarily involve non-acceptance of the case of the writ petitioners in Writ Petition (S/S) No. 257 of 2015. We may also notice that, though the writ petitioners in Writ Petition (S/S) No. 257 of 2015 filed an Application to amend the writ petition seeking to challenge orders dated 07.03.2015 and 18.03.2015, the amendment was not allowed. No complaint is made about not allowing the amendment in the appeal memorandum. So, in effect, there is no challenge mounted to orders dated 07.03.2015 and 18.03.2015. It is true that, even without the amendment being allowed as such, the learned Single Judge has proceeded to sit in judgment over the said documents in the manner which we have adverted to.
167. The judgment passed in Writ Petition (S/S) No. 257 of 2015 is liable to be set aside and Special Appeal No. 655 of 2015 is only to be dismissed.
168. The resultant position is that Special Appeal Nos. 622 of 2015, 625 of 2015 and 238 of 2016 will stand allowed and Writ Petition (S/S) No. 257 of 2015 will stand dismissed. Special Appeal No. 655 of 2015 and Writ Petition (S/S) No. 516 of 2016 will stand dismissed. As already ordered, Special Appeal No. 306 of 2016 will stand allowed as hereinbefore mentioned. All other appeals and writ petitions will stand dismissed. We make it clear that the dismissal of Writ Petition (S/S) No. 97 257 of 2015 would mean that members of the PAC and IRB would be entitled to be considered as per their merit.
169. There will be no order as to costs.
(V.K. Bist, J.) (K.M. Joseph, C. J.)
28.11.2016 28.11.2016
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