Allahabad High Court
Mahanth Yadav (Inspector Civil P.No. ... vs State Of U.P. Thru Prin.Secy.Home ... on 20 February, 2019
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 8 AFR 1. Case :- SERVICE SINGLE No. - 5677 of 2016 Petitioner :- Mahanth Yadav (Inspector Civil P.No. 82232085) And 6 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Home Deptt.Govt.Of Up Lko.&Ors. Counsel for Petitioner :- Varadraj Shreedutt Ojha Counsel for Respondent :- C.S.C.,Brijendra Singh,Ravi Singh,Sameer Kalia 2. Case :- SERVICE SINGLE No. - 13625 of 2016 Petitioner :- Kamal Singh Yadav Respondent :- State Of U.P. Thru.Prin. Secy.Home Deptt.Govt Of U.P. & Ors. Counsel for Petitioner :- Varadraj Shreedutt Ojha,Dr. V.K. Singh Counsel for Respondent :- C.S.C.,Arjun Krishna,Brijendra Singh,Laltaprasad Misra,Sameer Kalia,Vibhu Rai And 3. Case :- SERVICE SINGLE No. - 10759 of 2016 Petitioner :- Prabhakar Tripathi (Ins.Civil Police P.No.822660837)& 6 Ors. Respondent :- State Of U.P. Thru Prin.Secy.Home Deptt.Govt.Of Up Lko.& Ors Counsel for Petitioner :- Varadraj Shreedutt Ojha,Sameer Kalia Counsel for Respondent :- C.S.C.,Anoop Trivedi,Arjun Krishna,Brijendra Singh,Vikas Vikram Singh Hon'ble Dinesh Kumar Singh,J.
1. Since the common questions of fact and law are involved in all three writ petitions, it would be appropriate to note the facts of leading Writ Petition No.5677(SS) of 2016 for convenience.
2. The petitioners are regularly promoted Inspectors from the cadre of Sub-Inspector against cadre posts of the inspector in civil police. The petitioners have filed these writ petitions aggrieved by the Government Order dated 23.07.2015 whereby it has been decided to give seniority to the out of turn promotee Inspectors on ex-cadre posts as well as consequential order dated 29.07.2015 for giving one time seniority to 990 non Gazetted police officials who were given out of turn promotions between 1994 to 2014 in pursuance to the Government Order dated 03.02.1994.
The petitioners have also challenged the Seniority List dated 24.02.2016 whereby the persons junior to them in the feeder cadre of Sub-Inspector but were given out of turn promotions on ex-cadre posts have been assigned seniority much above them. Seniority of these ex-cadre promotees Sub-inspector has been determined in pursuance to the Government Order dated 23.07.2015.
3. The office memorandum dated 03.02.1994 envisaged that Constable and sub-Inspectors who had shown exemplary courage and gallantry while on duty would be appointed to ex-cadre posts which were to be created by the State Government upon the recommendation of the Director General of Police. Such acts of courage and gallantry would be commended when they had taken place in encounters with notorious terrorists and dreaded criminals or where the members of the police force had demonstrated courage and had assumed risks in arresting such persons.
4. Detail of seven petitioners in the present writ petition who were initially appointed on the posts of Sub-Inspector and later on substantively promoted to the post of Inspector against the cadre posts of Inspector is given as under:-
S.N. Name PTC batch S.I. Date of substantive appointment promotion on the post of Inspector Seniority position in the seniority list dated 24.02.2016 Prensent place of posting 1 Mahanth Yadav 1981-82 27.10.2005 302 S.H.O. Wazirganj, Lko 2 Mohd. Naseem Khan 1981-82 27.10.2005 307 Inspector Cooperative Cell Lko 3 Kamla Kant Mishra 1981-82 27.10.2005 313 Inspector Kotwali Gazipur 4 Raj Bahadur Sahu 1982-83 29.10.2005 296 Inspector DCRB BBK 5 Siddha Gopal Tiwari 1982-83 29.10.2005 363 Inspector LIU Shamli 6 Ramesh Chandra Pandey 1989-90 12.07.2013 Inspector Intelligence Special Branch Jalaun 7 Amar Singh Raghuvanshi 1989-90 12.07.2013 S.H.O. Khero Raebareli
5. The private respondents (respondent Nos.5 to 12) were admittedly junior to the petitioners in feeder cadre of Sub-inspector had been given out of turn promotions on ex-cadre posts of Inspector in pursuance to the Government Order dated 03.02.1994. They have been assigned seniority as per Government Order dated 23.07.2015 in impugned seniority list above the petitioners treating them to have been substantively appointed on the posts of Inspector in cadre of Inspector after they completed the probation.
6. On 01.05.1999, another Government Order was issued and it was specifically mentioned in the aforesaid Government Order that out of turn promotions given in pursuance to the Government Order dated 03.02.1994 should be treated as promotions on ex-cadre posts and thus, promotees would not be entitled for seniority from the date of their promotions. It was also said that such promotions should be limited to 2% of the total promotions made in a selection year.
7. The Government framed the U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (hereinafter referred to as '2008 Rules') and the U.P. (Civil Police) Constables and Head Constables Service Rules, 2008 on 02.12.2008. These rules were framed in exercise of the powers conferred by Section 2 read with Section 46(2) of the Police Act, 1861 and in suppression of all existing rules and orders made in that behalf. These rules had been framed to regulate the selection, promotion, training, appointment and determination of seniority and confirmation etc., of the Inspectors and Sub-Inspectors of Civil Police of the State of U.P and likewise Constables and Head Constables.
The Rule 3(m) and (n) defined substantive appointment and year of recruitment as under:-
"3...
(m) 'Substantive appointment' means an appointment, not being ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government.
(n) 'year of recruitment' means a period of twelve months commencing on the first day of July of a calendar year."
(Emphasis Supplied)
8. Rule 22 of the aforesaid Rules provided for seniority which reads as under:-
"22. Seniority- The Seniority of persons substantively appointed to a post in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991 as amended from time to time."
9. Under the provisions of 2008 Rules, a person could be said to have been substantively appointed when his appointment was on a cadre post after selection in accordance with the rules. The out of turn promotees were not appointed against the cadre posts of the inspector and their appointments were not substantive appointments. Under Rule 22 of 2008 Rules, the seniority of persons substantively appointed was to be determined in accordance with the U.P. Government Servants Seniority Rules, 1991 as amended from time to time. The 1991 Rules are the General Rules applicable to all Government Services unless there are specific rules governing the seniority of persons in a particular service. Rule 6 of 1991 Rules provides that where appointments are only by promotion from a single feeder cadre, inter se seniority on promotion shall be the same as it was in the feeder cadre.
Rule 6 of 1991 Rules reads as under:-
"6. Seniority where appointment by promotion only from a single feeding cadre- Where according to the servie rules, appointments are to be made only by promotion from a single feeding cadre, seniority inter se of persons so appointed shall be the same as it was in the feeding cadre."
10. Appointments on the posts of Inspector are to be made on promotion from a single feeder cadre of Sub-Inspector and thus, under Rule 22 of 2008 Rules read with Rule 6 of 1991 Rules, the inter se seniority of the persons appointed on the posts of inspector should have been same as of the sub-inspector viz feeder cadre.
11. On 7.06.2014, the State Government issued an office memorandum by which it rescinded with immediate effect the provisions contained in the office memorandum dated 03.02.1994 for grant of out of turn promotions. Instead and in place, a provision was made by which police personnel who demonstrate exemplary acts of courage while on duty would be entitled to monetary awards on the recommendation of the Director General of Police and in the case of acts of courage of a high order, a monthly allowance would be allowed.
12. When 2008 Rules were in vogue, the Government came out with impugned Government Order dated 23.07.2015 whereby it was provided that the Government Order dated 01.05.1999 was rescinded and as one time measure out of turn promotions granted in pursuance to the Government Order dated 03.02.1994 would be treated as promotions in the cadre and the persons given out of turn promotions from 1994 to 2014 would be entitled for seniority from the dates of their appointment after completion of probation. Thus, a policy decision was taken vide Government Order dated 23.07.2015 to give one time seniority to the persons given out of turn promotions in pursuance to the Government Order dated 03.02.1994.
13. In 2015, the Government came out with new set of service rules which came into effect from 19.08.2015. These Rules are called U.P. Inspector and Sub-Inspector (Civil Police) Service Rules, 2015 (hereinafter referred to as '2015 Rules'). These Rules have been framed in suppression of all existing Rules or Orders made in that behalf. Rule 3(n) defines the substantive appointment as under:-
"3...
(n) Substantive appointment means an appointment, not being an ad hoc appointment, on a post in the cadre of service, made after selection in accordance with the rules and, if there were no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government;"
(Emphasis Supplied)
14. Sub Rule 3 of Rule 22 of the 2015 Rules provides for determination of seniority of Inspectors as under:-
"(3)Determination of seniority of Inspectors- Seniority of inspectors appointed on the basis of promotion shall be determined from their date of selection. Inter se seniority of inspectors appointed on same date of selection shall be according to their seniority in their feeder cadre and inspectors selected in previous year shall be senior to inspectors selected in subsequent year. Here date of selection means the date on which the Head of the Department approves the select list sent by the Board or the selection committee after the completion of recruitment process."
15. From perusal of Sub-Rule 3 of Rule 22 of the 2015 Rules, it would be evident that the seniority of Inspectors appointed on the basis of promotion is to be determined from the date of their selection. In case of the inspectors appointed on the same date of selection, their inter se seniority would be their seniority in the feeder cadre. It is further provided that the Inspectors selected in previous year shall be senior to the Inspectors selected in the subsequent year.
16. Learned counsel for the petitioners, Mr. Varadraj Shreedutt Ojha submits that seniority is a very valuable and substantive right of a person in the service. A person who is appointed on a ex-cadre post is not substantively appointed. His appointment is not on a post in cadre of Inspector. A person who has not been appointed on a post in the cadre, is not entitled to seniority from the date on which he is appointed on ex-cadre post. He further submits that Government Order dated 01.05.1999 was issued keeping in view the general principles for determining the seniority as laid down by the Supreme Court in the several judgments as well as jurisprudence developed over the years for determining inter se seniority in the cadre. The said Government Order rightly provided that the persons given out of turn promotions on ex-cadre posts were not entitled to seniority on being appointed in pursuance to the out of turn promotions granted on ex-cadre posts.
17. He further submits that under 2008 Rules, the seniority was to be determined in accordance with 1991 Rules. Rule 6 of 1991 Rules specifically provides that the seniority in a cadre is to be determined from the date of substantive appointment in accordance with Rules. When these Rules were in existence and very much in operation, the Government had come out with the impugned Government Order dated 23.07.2015 whereby it rescinded the Government Order dated 01.05.1999 and took the decision to treat the ex-cadre promotions as substantive promotions from the date of their appointment after probation and assign them seniority from the date of appointment on ex-cadre posts after completion of probation period. He, therefore, submits that the policy decision of the Government taken vide Government Order dated 23.07.2015 is in violation of statutory prescription of the 2008 Rules and, therefore, it is liable to the quashed.
18. He further submits that even under 2015 Rules the seniority of Inspectors is to be governed under Rule 22(3) which provides that seniority of the Inspectors shall be determined from the date of selection and inter se seniority of the Inspectors appointed on the same selection date will be their respective seniority in the feeder cadre. He submits that it is not in dispute that the private respondents and others who were promoted on the ex-cadre posts were junior to the petitioners in the feeder cadre and they have been given seniority much above the petitioners in pursuance to the Government Order dated 23.07.2015 in the impugned Seniority List dated 24.02.2016. He, therefore, submits that the Government Order dated 23.07.2015 as well as Seniority List dated 24.02.2016 have been issued in violation of statutory prescription of the 2008 Rules as well as 2015 Rules and, therefore, are liable to be set aside.
19. Since the petitioners were senior in the feeder cadre of the Sub-inspector to the Inspectors given out of turn promotion on ex-cadre posts, they should have been assigned the seniority above the private respondents and similar other Inspectors who were promoted in pursuance to Government Order dated 03.02.1994 against ex-cadre posts.
20. On the other hand, Sri Vinayak Saxena, learned Standing Counsel representing the State submits that the impugned seniority list dated 24.02.2015 has been prepared in pursuance to the 2015 Rules and Rule 22(4) specifically provides that seniority in some special case determined according to previously determined policy would remain unchanged. He, therefore, submits that since the seniority of ex-cadre Inspectors was assigned to them in accordance with the policy decision dated 23.07.2015, the aforesaid seniority is protected under Sub-Rule 4 of Rule 22.
21. Sri Vinayak Saxena, learned Standing Counsel further, submits that the policy decision as spelled out in the Government Order dated 23.07.2015 is neither arbitrary nor runs contrary to any statutory prescription and, therefore, this Court while exercising the powers under Article 226 of the Constitution of India should not interfere with the policy decision giving seniority to the inspectors promoted out of turn on ex-cadre post.
22. This Court on 17.03.2016 passed the following order:-
"Heard learned counsel for the parties.
The contention of the petitioners is that out of turn promotions were made earlier against Ex-Cadre post without following the regular procedure for promotion with the condition that such promotees shall have to appear subsequently in the regular promotion. Now, by means of the impugned Government Order dated 23.07.2015 the opposite party no. 1 has cancelled the Government Order dated 01.05.1999 with immediate effect and has ordered to treat such out of turn promotees as promoted against Cadre posts and to determine their probation from the date of out of turn promotion and to determine their one time seniority accordingly, meaning thereby, all these persons will now get seniority from the date of out of turn promotion which in fact was against an Ex-Cadre post by treating the same as promoted against the Cadre post thereby affecting the seniority of the petitioners herein which is a valuable right for the purposes of their career and service benefits. The contention is also that the impugned order is in gross violation of the all cannons of law and service jurisprudence as also relevant service rules.
In compliance of aforesaid government order the seniority list has been issued on 24.02.2016 based on which the opposite parties plan to proceed to make promotions to the higher post of Deputy Superintendent of Police which is bound to adversely effect the right of the petitioners.
Issue notice to opposite parties no. 5 to 10 returnable at an early date.
Let counter affidavit be filed by the opposite parties before the next date.
List this case on 18.04.2016 as fresh.
Any action taken in the meantime by the opposite parties based on such seniority list shall be subject to further orders of this Court in this writ petition.
The application for interim relief shall be considered on the next date."
23. It appears that in one of the connected Writ Petition No.13625(SS) of 2016, an interim order dated 07.06.2006 was passed by the learned Single Judge against which an intra-court appeal was preferred before the Devision Bench of this Court. The Devision Bench vide judgment and order dated 14.06.2016 allowed the Special Appeal against which one of the petitioner (Writ Petition No.13625(SS) of 2016) approached the Supreme Court. Supreme Court vide judgment and order dated 30.06.2016 dismissed the S.L.P. on the ground that it is directed against an interim order. However, the Supreme Court requested this Court to dispose of the writ petition expeditiously preferably within a period of three months from the date of receipt of copy of this order.
24. Thus, the case has been listed today as peremptorily. No one has appeared on behalf of the private respondents and no argument has been advanced by them, despite so many counsels namely Mr. Brijendra Singh, Mr. Ravi Singh, Mr. Sameer Kalia have put in appearance on earlier occasions when the case was listed. In absence of any assistance on behalf of the private respondents, I have to decide this case on the basis of submissions put forth by learned counsel for the petitioners and private respondents.
25. I have considered the submissions on behalf of the learned counsel for the parties and perused the record carefully.
26. The facts of the case are not in dispute. The question whether the Government Order dated 23.07.2015 and the seniority list of inspectors in civil police dated 24.02.2016 are legal and valid or they are arbitrary, illegal and unjust inasmuch as these have been issued against the statutory prescription.
27. Out of turn promotions have been granted to the private respondents on the ex-cadre posts of Inspector in pursuance to the Government Policy dated 03.02.1994 for showing exemplary courage and gallantry by them. These out of turn promotions were made on the ex cadre posts whereas the petitioners have been promoted on the cadre posts of the Inspector in service in accordance with the rules after undergoing selection process. Admittedly, the petitioners are senior to these persons promoted on ex-cadre posts of Inspector in the feeder cadre of the Sub-inspector. The Government specifically came out with Government Order dated 01.05.1999 whereby it was made known that the persons promoted against ex-cadre posts would not be given seniority. This Government Order dated 01.05.1999 has not been challenged by the ex cadre promotees Inspectors and they had no objection with aforesaid order for not giving them seniority from the date of their appointments.
28. The Government thereafter, came out with another Government Order dated 23.07.2015 whereby it rescinded Government Order dated 01.05.1999 and decided that the persons promoted against ex cadre posts in pursuance to the Government Order dated 03.02.1994 would be treated as substantively appointed after they completed the probation period and be assigned seniority from the date of appointment after probation. Rule 22 of 2008 Rules specifically provided that the seniority would be determined in accordance with the Government Servants Seniority Rules, 1991. Rule 6 of 1991 Rules provides that if the post is to be filled up by single source through promotion, inter se seniority of on promotion would be that of the feeder cadre.
29. In the judgment of High Court of Judicature for Rajasthan versus Veena Verma and another: (2009) 14 SCC 734, it has been held that the post created dehors the cadre is known as ex cadre post.
30. The petitioners and others who have been regularly promoted to the posts of inspector on cadre posts are substantively appointed in accordance with the service rules. On the other hand the private respondents and others like them have been given out of turn promotions against ex cadre posts i.e. dehors the cadre in pursuance to the policy decision dated 03.02.1994. Their promotions are not in accordance with the rules against the substantive posts. Thus, regular promotees and out of turn promotees are two distinct and separate class.
31. Normally, an ex-cadre post means a post outside the cadre of posts comprised in a service. The Supreme Court in the case of O.P. Singla and Ors. versus Union of India and ors: (1984) 4 SCC 450 in para 26 has held as under:-
"26. The prerequisite of the right to inclusion in a common list of seniority is that all those who claim that right must, broadly, bear the same characteristics. The mere circumstance that they hold posts which carry the same designation will not justify the conclusion that they belong to the same class. Persons who are appointed or promoted on an ad hoc basis or for fortuitous reasons or by way of a stopgap arrangement cannot rank for purposes of seniority with those who are appointed to their posts in strict conformity with the rules of recruitment, whether such latter class of posts are permanent or temporary. The rules in the instant case do not require that persons belonging to the former category have to satisfy any particular prescription like consultation with the High Court. We are informed that in practice, persons who are promoted to the Delhi Higher Judicial Service on an ad hoc basis or for fortuitous reasons or by way of a stopgap arrangement are appointed only after their names are cleared or approved by the High Court. That may or may not be so. The point of the matter is that there is no provision in the Rules which requires that such appointments must also be made in accordance with any set formula. The courtesy shown by the authorities to the High Court when certain appointments are made, is one thing: The obligation imposed by the Rules on the authorities that the High Court shall be consulted when certain other appointments are made, is quite another. Indeed, there is a distinction between the process of consultation with the High Court and the screening of the promotees done by the High Court, may be at the instance of the authorities, when their names are considered for appointment as Additional District and Sessions Judges on an ad hoc, fortuitous or stopgap basis."
32. Considering the Government Order dated 23.07.2015 in the light of 2008 Rules, it is evident that it had been issued in violation of the 2008 Rules which were in existence when the said Government Order and consequential order dated 29.07.2015 were issued. Since, these Government Orders were issued dehors the statutory Rules of 2008, they are held to be void ab initio.
33. In 2015 the Government has issued fresh set of Service Rules 2015 which came into existence with effect from 19.08.2015. Rule 22(3) of 2015 Rules provides for seniority of Inspectors promoted substantively against the cadre posts in accordance with the rules.
34. The next question which falls for consideration is that after Government enacted fresh set of service rules i.e. Rules of 2015 which came into force w.e.f. 19.08.2015, whether the Government Order dated 23.07.2015 is saved under the Rule 22 Sub-Rule 4 of 2015 Rules. Sub-Rule 3 of Rule 22 of 2015 Rules provides the method of determination of seniority of inspectors. It says that the seniority of inspectors who have been substantively appointed in accordance with rules, is to be counted from the date of selection and inter se seniority of persons appointed as a result of same selection would be that of the feeder cadre. Rule 22(4) provides that the seniority in some special case determined according to a previously determined policy shall remain unchanged.
35. Promotees of ex-cadre posts were not appointed against substantive posts in the cadre in accordance with the Rules. Their appointments on promotion in pursuance to the Government Order dated 03.02.1994 were on ex-cadre posts. Since, the Government Order dated 27.07.2015 was in contravention of 2008 Rules, the seniority determined on the basis of such policy decision which was in violation of the statutory prescription cannot be saved even by Rule 22(4) of the 2015 Rules. The policy decision issued in contravention of the statutory regime cannot be held to be valid policy decision and is liable to be struck down. Once the policy decision dated 23.07.2015 is found to have been issued in contravention of 2008 Rules, any action taken in pursuance to the said policy decision is illegal, improper and liable to be struck down. Therefore, Sub Rule 4 of Rule 22 of 2015 Rules is of no help to save seniority list dated 24.02.2016 which has been prepared in pursuance to the policy decision dated 23.07.2015. Once the Government Order dated 23.07.2015 is held to be void ab initio, all subsequent actions taken in pursuance to the said policy decision would also be void and illegal.
36. The next submission advanced by Sri Vinayak Saxena, learned Standing Counsel is that under Rule 27 of 2015 Rules, the Government is empowered to dispense with or regularise the requirement of a Rule and thus, it should be held that in exercise of the power under Rule 27 of 2015 Rules while preparing the impugned seniority list dated 24.02.2016, the Government has dispensed with the rigor of Rule 22(3) of 2015 Rules and seniority list dated 24.02.2016 is not liable to be quashed. The fallacy of the aforesaid argument is clearly evident. There is no order by the Governor exercising the power under Rule 27 dispensing with the rigor of seniority Rule i.e. 22(3) of the 2015 Rules while issuing the impugned seniority list dated 24.02.2016. Therefore, the submission of Mr. Vinayak Saxena, learned Standing Counsel for the State that the Seniority List dated 24.02.2016 is deemed to have been prepared by the Government after exercising the power under Rule 22(4) of 2015 Rules is devoid of any substance and is rejected. The said seniority does not even stand the scrutiny of 2015 Rules.
37. The private respondents and others who were junior to the petitioners in the feeder cadre of Sub-Inspector on promotion to the posts of inspector cannot be assigned seniority for they were appointed on ex-cadre posts under the Government Order dated 03.02.1994. Ex-cadre posts are not the posts within the cadre and their appointments were not substantive appointments. They cannot claim seniority on the basis of their appointment on ex-cadre posts over the petitioners. The petitioners were senior to the private respondents and others similarly placed ex-cadre promotees. The seniority of all the Inspectors are to be governed in accordance with Rule 22(3) of 2015 Rules which provides that seniority of the inspectors is to be determined from the date of substantive appointment after selection and inter se seniority of the promotees of same selection is to be that of the seniority in the ex-cadre posts.
38. In view of the aforesaid, I quash the Government Order dated 23.07.2015, Consequential Order dated 29.07.2015 and Seniority List dated 24.02.2016.
The writ petitions are allowed.
39. The respondents are directed to prepare a fresh seniority list in accordance with Rules 22(3) of the 2015 Rules and assign the seniority to the promotees of ex-cadre posts from the date when their immediate juniors were promoted to the post of Inspector in accordance with the service rules against cadre posts. This exercise is to be completed within a period of two months from the date of this judgment. After preparing the seniority list as directed, consequential orders in respect of promotions etc., are directed to be issued.
Order Date :- 20.2.2019 prateek