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Gujarat High Court · body

2009 DIGILAW 582 (GUJ)

Ajra Himmatkumar Naranbhai v. State of Gujarat

2009-08-28

M.R.SHAH

body2009
ORDER : 1. Rule. Ms. Sangita Vishen learned AGP waives service of notice of rule on behalf of the respondents in each of the petitions. With the consent of the learned advocates appearing on behalf of the respective parties, the matters are taken up for final hearing today. As common question of law and facts are arise in these group of petitions, they are being disposed of by this common judgment and order. 2. In all these petitions, respective petitioners who are serving as Constables in different Districts in State of Gujarat have prayed for an appropriate writ, direction and order directing the respondents to accept their applications for Recruitment of Police Sub Inspector (Unarmed) Class III by (Mode-2) Special Competitive Examination by notice dated 13.5.2009 and 8.5.2009 and permitting them to participate in the said recruitment process by considering them eligible and to give appointment to them as Police Sub -Inspector (Unarmed) Class III if they successfully pass out the written test, physical endurance test and oral test (interview). It is also further prayed for an appropriate writ, direction and order to hold and declare that the Recruitment Rules at Annexure C (Collectively) are arbitrary, discriminatory and violative of Articles 14 & 16 of the Constitution of India and hence bad in law in so far as they consider only the Head Constables having three years of service as eligible for promotion to the post of P.S.I by Mode-2 on the basis of Special Competitive Examination and insofar as they do not consider the Constables having more than 12 years of service as eligible for such promotion. It is also further prayed for an appropriate writ, direction and order to hold and declare that the respective petitioners and such other Police Constables who have put in more than 12 years of total service and who have been given higher grade pay scales of the promotional post of Head Constable as per G.R. dated 16.8.1994 since more than three years are also eligible for promotion to the post of P.S.I by Mode-2 on the basis of Special Competitive Examination as per rules at Annexure C (collectively). 3. Before considering the rival submissions made on behalf of the learned advocates appearing on behalf of the respective parties, the relevant rules governing for the post in question deserves to be reproduced. 3. Before considering the rival submissions made on behalf of the learned advocates appearing on behalf of the respective parties, the relevant rules governing for the post in question deserves to be reproduced. In exercise of powers here by Clause(b) of Section 5 of the Bombay Police Act, 1951 and in supersession of all the rules made in that behalf, the Government of Gujarat has made Police Sub-Inspector (Unarmed) Class III Recruitment Rules, 2008 (hereinafter referred to as "Recruitment Rules, 2008") to provide for regulating the recruitment to the post of Police Sub Inspector (Unarmed) Class III, (hereinafter referred to as "post in question") in the Gujarat State Police Service. Rule 2 of the Recruitment Rules, 2008 provides manner of appointment which reads as under : 1. Short title - These rules may be called the Police Sub-Inspector (Unarmed) Class III, Recruitment Rules, 2008. (2) They shall come into force on the date of their publication in the Official Gazettee. (3) These rules are provided for regulating the recruitment to the post of Police Sub Inspector (Unarmed) Class III in the Gujarat State Police Service. 2. Manner of appointment.- Appointment to the post of Police Sub- Inspector (Unarmed) Class III, in the Gujarat State Police Service shall be made either- (1) by promotion of a person of proved merit and efficiency from amongst the persons who- (a) have worked for not less than five years in the cadre of Assistant Sub-Inspector (Unarmed), Class III, in the Gujarat State Police Service: Provided that where the appointing authority is satisfied that a person having the experience as specified above is not available for promotion and that it is necessary in the public interest to fill up the post by promotion even of a person having experience for a lesser period; it may for reasons to be recorded in writing promote such person who possesses experience of a period of not less then two thirds of the period specified above: (b) have passed the departmental examination as prescribed under Rule 165 of the Gujarat Police Manual, 1975 (Part-I); (c) have passed the qualifying examination for computer knowledge in accordance with the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006; and (d) have fulfilled the minimum requisite standards of physical efficiency test, as may be prescribed by the Government from time to time in this behalf: Or 2. by promotion of a person on the basis of merit rank obtained in the Special Competitive Examination conducted in accordance with the rules prescribed by Government in that behalf and who- (a) have worked for not less than three years either in the cadre of Assistant Sub-Inspector (Unarmed), Class III or Head Constables (Unarmed), Class III in the Gujarat State Police Service. (b) have passed the departmental examination as prescribed under Rule 165 of the Gujarat Police Manual, 1975 (Part-I); (c) have passed the qualifying examination for computer knowledge in accordance with the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006; (d) have fulfilled the minimum requisite standards if physical efficiency test, as may be prescribed by the Government from time to time in this behalf: (e) have passed the Higher Secondary School Certificate Examination (Standard XII, 10 + 2 pattern) or Secondary School Certificate Examination (Standard XI old pattern) conducted by the State's Secondary and Higher Secondary Examination Board or possess an equivalent qualification recognised as such by the Government; Or (3) by direct selection 3. Ratio for appointment. - Appointment by promotion by Special Competitive Examination and by direct selection shall be made in the ratio of 1:4:5 respectively. 4. The dispute in all these petitions are with respect to sub-rule (2) of Rule 2 of Recruitment Rules, 2008 which provides for promotion to the post in question. Sub-rule (2) of Rule 2 of the Recruitment Rules 2008 provides for filling of post in question by promotion of a person on the basis of merit rank obtained in the Special Competitive Examination and for eligible for promotion to the said post in question under sub-rule (2) of Rule 2 of Recruitment Rules 2008, a person must have worked for not less than three years either in the cadre of Assistant Sub-Inspector (Unarmed), Class III and /or Head Constables (Unarmed), Class III in the Gujarat State Police Service and has passed the departmental examination as prescribed under Rule 165 of the Gujarat Police Manual, 1975 (Part-I) and has to fulfill all other eligibility criteria as mentioned in sub- rule (2) of Rule 2. In the present case, admittedly all the petitioners are serving as Unarmed Police Constables and none of them fulfill the eligibility criteria as provided under clause (a) of sub-rule (2) of Rule 2 of the Recruitment Rules, 2008 inasmuch as none of the petitioners have worked for not less than three years either in the cadre of Assistant Sub-Inspector (Unarmed), Class III or Head Constables (Unarmed), Class III in the Gujarat State Police Service. In the aforesaid background and the factual position all these petitions are required to be considered. 5. By notice dated 8.5.2009 the Director General of Police invited applications for filling up of 554 vacancies of post in question and as the eligibility for the said recruitment is minimum 3 years experience as Head Constable/ASI and as stated herein above none of the petitioners fulfill the aforesaid eligibility criteria of having minimum three years experience as Head Constables/ASI and they are considered to be ineligible for appearing in the Special Competitive Examination for the post in question, the respective petitioners at that stage have preferred the present Special Civil Applications. 6. It is the case on behalf of the respective petitioners that respective petitioners are serving as a Police Constable under the Respondents in various districts for more than 12 years. That on completion of 9 years of service as Constables they have already been granted Higher Grade Pay Scales of the promotional post of Head Constable in view of the limited opportunities of promotion in their respective Districts/Commissionerate. It is the case on behalf of the respective petitioners that on the other hand, there are several other Constables who were appointed subsequent to the petitioners but they have been given promotion as Head Constables in their respective Districts depending upon the fortuitous circumstances of serving in a particular district. It is submitted that several other persons who are much junior to the petitioners who have been appointed as Police Constables in other Districts have been granted promotion as Head Constables within a span of 6 or 7 years of their service and, therefore, are considered eligible for the recruitment in question. It is submitted that there is no fault on the part of the respective petitioners in not getting the promotion as Head Constables in spite of the fact that they served for more than 12 years as constables. It is submitted that there is no fault on the part of the respective petitioners in not getting the promotion as Head Constables in spite of the fact that they served for more than 12 years as constables. It is submitted that aforesaid anomalous situation is causing grave injustice and tremendous heart - burning to the petitioners and other similarly situated large number of Police Constables who are otherwise exactly similarly situated just as the above stated junior Police Constables who have been granted promotion as Head Constables in their respective Districts. It is submitted that as a matter of fact, most of the petitioners are highly meritorious and are satisfying all other requirements of educational qualification, norms of physical standards, possessing knowledge of computer, etc. It is submitted that most of the petitioners and other similarly situated Police Constables are as such more educationally qualified against the requirement of only HSC/SSC provided in the Recruitment Rules. It is submitted that the fortuitous circumstance of appointment of Police Constables in one District as against other Districts has resulted into so much anomalous situation that in some districts the Police Constables are getting promotion as Head Constables within a span of 6 or 7 years of service whereas in other Districts/Commissionerates the Police Constables are granted promotion as Head Constables for more than 20 years or 25 years and therefore they are not being considered eligible for recruitment on the post of PSI by Mode-2. 7. It is further submitted that as such all the petitioners have been given higher grade pay scales of the promotional post of Head Constables, since more than 3 years, by virtue of G.R. dated 16-8-1994, therefore, they are to be considered are eligible for promotion to the post of PSI. It is submitted the grant of benefit of higher grade scale of other Head Constable is nothing but the promotion to the cadre of Head Constables and they having been granted the aforesaid benefit of the higher grade pay scale of Head Constables, for all practical purpose, they are Head Constables and hence, they should be included in the Rules of 2008 for the purpose of promotion in the cadre of PSI. 8. 8. It is also further submitted that all the petitioners though designated as constables, have been discharging and performing all the function as Head Constables since very long time, under the Standing Orders issued by the higher authorities. It is submitted that aforesaid position is reaffirmed by the recent Standing Order No.1/09 issued by the Director General of Police on 18-6-2009, wherein the Director General of Police has clearly recorded the facts that the cadre of Police Constable is the largest in the Police Force and presently more and more candidates who are Graduate, possessing better qualifications are joining as Police Constables and therefore they can be assigned more and more duties, that there is shortage of good quality investigating officers and therefore due to heavy work load on them the quality of investigation suffers many a times, that on the other hand the Graduates and more impressive persons are being appointed as Constables. In view of these facts it is ordered that the Police Constables shall be assigned the investigation in the bailable offences if such Police Constables have completed 5 years of service and if they are Graduate and if the Police Station In charge considers them competent for such investigation. Therefore, it is submitted that in view of the aforesaid facts and even otherwise there is absolutely no distinction in the matter of discharging of duties and functions, between the petitioners and other Police Constables who have put in more than 12 years of service and who are getting higher grade pay scales of the promotional post of Head Constable because of lack of opportunities of promotion and those Constables who have been given promotion as Head Constables since more than 3 years. Therefore, it is submitted that they cannot be given discriminatory treatment in the matter of their eligibility for promotion to the post in question by Mode-2 recruitment. 9. Shri Pujara, Shri Paresh Upadhyay, Shri Anand Gogia, Shri Prabhakar Upadhyay, Shri Daxesh Dave and Shri A.M. Parekh, learned advocates have appeared on behalf of the respective petitioners in respective petitions. The learned Advocates for the respective petitioners have submitted that admittedly the cadre of Police Constable is a District Cadre from which promotion lies to the cadre of Head Constable which is also a District Cadre. The said promotion is based only on the basis of seniority and no examination is provided for such promotion. The learned Advocates for the respective petitioners have submitted that admittedly the cadre of Police Constable is a District Cadre from which promotion lies to the cadre of Head Constable which is also a District Cadre. The said promotion is based only on the basis of seniority and no examination is provided for such promotion. However, from the cadre of Head Constable the promotion lies to the cadre of PSI which is the State Cadre. Therefore, the fortuitous circumstance of the Police Constables having been appointed in 'X' district as against the Police Constables appointed in 'Y' District is leading to an anomalous situation of Police Constables getting promotion as Head Constables within 6 to 7 years of service in 'X' District and Police Constables appointed in the 'Y' District not getting promotion as Head Constables even after service of 20 years or 25 years or 30 to 35 years and therefore they have to suffer in the matter of promotion to the cadre of PSI which is the State Cadre. 10. Shri Pujara, learned Advocate for some of the petitioners has submitted that as such the grievance of the petitioners is squarely covered by the decision of the Hon'ble Supreme Court in the case of Mohd. Usman v. State of U.P. reported in AIR 1971 SC 1801 : (1971 Lab IC 1114). It is submitted that similar situation was prevailing in A.P. where the Grade II Sub-Registrars were in a State-wise cadre whereas the Upper Division Clerks and Lower Division Clerks were belonging to a District-wise cadre. The promotion from LDC to UDC was made District-wise. The chances of promotion from LDC to UDC in one district materially differed from another district. It depended upon the number of posts available in a particular district. In one District a LDC might be promoted as an UDC as soon as he put in a service of 5 years, whereas in another District a LDC possessing the same or better qualification as well as efficiency might not be promoted as an UDC for 15 years or more. That being so, while making recruitment to a State-wise Cadre it was not possible for the State to make distinction between the LDCs and UDCs. That being so, while making recruitment to a State-wise Cadre it was not possible for the State to make distinction between the LDCs and UDCs. The only reasonable basis that could have been adopted was to treat the UDCs and LDCs as one class for the purpose of recruitment to the State Cadre of Grade-II Sub-Registrar. The Rules made by the State Government adopting such reasonable basis was challenged by some UDCs as ultra-vires Article 14, contending that unequals were being treated as equals. Upholding the Rule and rejecting the challenge, the Hon'ble Supreme Court held in Mohd. Usman v. State of A.P., AIR 1971 SC 1801 : (1971 Lab IC 1114) that "if the State had treated the UDCs as being superior to LDCs for the purpose of that recruitment it would have resulted in a great deal of injustice to a large section of the Clerks. The fortuitous circumstance of an Officer in a particular district becoming an UDC would have given him an undue advantage of over his seniors who might have been as efficient as or even more efficient than himself, merely because they chanced to serve in some other districts. For the reasons mentioned above, we do not think that in the present case the State can be said to have treated unequals as equals. The rule of equality is intended to advance justice by avoiding discrimination." 11. It is further submitted that exactly identical situation of facts was in the case of State Bank of India v. Kashinath Kher, AIR 1996 SC 1328 . In the said case the requirement for promotion from MMGS-II to MMGS-III was, inter alia, that the officer should have completed satisfactorily 2 years of line assignment as Branch Manager of a Business Division and should have also completed 3 years stay in rural/semi-urban branch and despite the circulars and repeated instructions the directions of posting officers to the line assignment as well as rural/semi urban services were not being complied with. As a consequence, heart burning was brewing amongst the officers who did not have opportunity to serve in the line assignment and also rural/semi-urban services. It was only a fortuitous circumstance. As a consequence, heart burning was brewing amongst the officers who did not have opportunity to serve in the line assignment and also rural/semi-urban services. It was only a fortuitous circumstance. In order to avoid the hardships or injustice for no fault of theirs to those officers who were otherwise eligible the bank decided to put officers in list A, B and C. The list A consisted of Officers who had put in 2 years of required service of line assignment. The list B comprised of Officers who had not completed 2 years service but had done partly and list C consisted of officers who had not had the service at all. The list B Officers were in issue before the Hon'ble Supreme Court wherein clubbing of the Officers in list B with those of list A was challenged as unconstitutional violating Article 14, as being unequals they were treated as equals. The said contention was negatived by the Hon'ble Supreme Court relying upon the earlier decision in Mohd. Usman v. State of A. P., AIR 1971 SC 1801 : (1971 Lab IC 1114) and holding that fortuitous circumstances of some officers completing the criteria would be a ground to steal a march over the officers who are otherwise eligible and they cannot be made to suffer injustice. Denial of legitimate expectation to consider their cases for promotion would be unjust and unfair. The Hon'ble Supreme Court upheld the procedure adopted by the bank as just, fair and reasonable. 12. Learned Advocate for the respective petitioners have also relied upon the decision of the Hon'ble Supreme Court in the case of Jagdish Parsad Sinha v. Bhagwat Prasad reported, AIR 1989 SC 1794 : (1989 Lab IC 1955). In the said judgment the joint seniority list of teachers of Higher Secondary and Secondary Teachers of Upper Division of Subordinate Education Service was prepared which was challenged and the said challenge was rejected by the Hon'ble High Court as well as the Hon'ble Supreme Court. Thereafter, by a subsequent Notification the said integrated cadre was disintegrated into two separate cadres. Thereafter, by a subsequent Notification the said integrated cadre was disintegrated into two separate cadres. The said action was challenged and the Hon'ble Supreme Court set aside the disintegration of the integrated cadre and observed that "courts have always taken notice of the fact that those who stood together and fell in line to proceed further have to be provided all opportunities in respect of their avenues of promotion alike without breaking that order, so that one who ranks higher in the grade may not go down in due course of service." Therefore, it is submitted that the grievances of the petitioners raised in present Special Civil Applications are squarely covered by the aforesaid decision. 13. It is further submitted that promotions are matters of legitimate expectation in an employment giving of at least 3 and promotions during the tenure of a police officer is recognized. Therefore, if the prayers made in the petitions are not granted, they will not get even one promotion in their entire career and such a situation is therefore required to be avoided by harmonious interpretation of the Recruitment Rules. 14. It is further submitted by learned advocate appearing on behalf of the petitioners that the Recruitment Rules should be so interpreted that the petitioners are held eligible to be considered for promotion to the post in question by Mode-2 recruitment, or in the alternative, the Recruitment Rules should be held arbitrary and discriminatory and violative of Articles 14 and 16 as the same are treating the equals as unequals, and thereby denying the right of being considered as eligible to the petitioners for promotion to the post of PSI by Mode-2 recruitment. 15. In the alternative, it is submitted by Shri Pujara, learned advocates for some of the petitioners that the petitioners have already made representation to the respondents through their Advocate, and, therefore, it is requested to issue appropriate direction to the respondents to consider the same so as to redress the petitioners' grievance. 15. In the alternative, it is submitted by Shri Pujara, learned advocates for some of the petitioners that the petitioners have already made representation to the respondents through their Advocate, and, therefore, it is requested to issue appropriate direction to the respondents to consider the same so as to redress the petitioners' grievance. It is submitted that in the past also, after the State Government published the Recruitment Rules dated 22-8-2003, several aggrieved candidates approached this Court by way of writ petitions and this Court directed the respondents to consider representation of the said petitioners and thereupon the State Government considered the same and amended the Recruitment Rules and also decided to grant the benefit of the so amended Recruitment Rules to the candidates who had approached the Court and they were allowed to participate in the selection process during the pendency of the petitions. Therefore, similar treatment deserves be given in the case of the present petitioners also. 16. It is submitted that because of the interim orders passed by this Court, the Respondents have already accepted applications/forms of the petitioners, and, therefore, petitioners should be allowed to participate in the selection process, and if they successfully clear the written examination and physical endurance test and oral interview, then they may be given appointments as PSI by Mode-2. By making above submissions and relying upon the aforesaid decisions it is requested to allow the present Special Civil Applications. 17. All these petitions are opposed by Shri Kamal Trivedi, learned Advocate General with Ms. Sangeeta Vishen, learned AGP appearing on behalf of the respondent State. 18. By opposing the present petitions, it is submitted that in exercise of the powers conferred by clause (b) of Section 5 of the Bombay Police Act, 1951 and in supersession of all the earlier rules, the State Government in its Home Department framed the Rules of 2008 providing for regulating the recruitment to the post of P.S.I (Unarmed) Class-III. The feeder cadre for promotion to the PSI is Assistant Sub-Inspector and Head Constable as provided in the Gujarat Police Manual. Rule 2 of the Rules of 2008 provides for manner of appointment. The feeder cadre for promotion to the PSI is Assistant Sub-Inspector and Head Constable as provided in the Gujarat Police Manual. Rule 2 of the Rules of 2008 provides for manner of appointment. The appointment is made by promotion by Special Competitive Examination and by direct selection in the ratio of 1:4:5, Rule 2(1) envisages appointment by promotion of a person of proved merit and efficiency from amongst the persons who have worked for not less than five years in the cadre of Assistant Sub Inspectors. Rule 2(2) similarly provides for appointment by promotion of a person on the basis of in accordance with the Rules and who have worked for not less than three years either in the cadre of Assistant Sub Inspector (Unarmed) Class-III or Head Constable (Unarmed) Class-III in the Gujarat State Police. Rule 2(3) provides for recruitment to the post of Police Sub-Inspector (Unarmed) Class-III by direct selection. 19. It is further submitted that as such the aforesaid Rules of 2008 are verbatim copy with minor relaxation of the earlier Rules. As aforesaid, three modes of appointments to the Police Sub-Inspector (Unarmed) Class-II are prescribed by the Rules of 2008. First mode is appointment by promotion from amongst the Assistant Sub-Inspectors; Second mode is again appointment by promotion through Special Competitive Examination from amongst the Assistant Sub-Inspectors and Head Constables; and the Third mode is by direct selection. The Third mode i.e. appointment by direct selection is open for all the candidates who fulfills the required eligibility criteria and can compete with other candidates for getting themselves selected for the post of Police Sub- Inspector (Unarmed) Class III. In the present case, none of the petitioners have availed of that opportunity and after waking up from a slumber, the petitioners are now challenging the Rules of 2008 on the grounds that the Rules are violative of Articles 14 and 16 of the Constitution, in so far as the Rules do not include the Constables is misplaced. 20. In the present case, none of the petitioners have availed of that opportunity and after waking up from a slumber, the petitioners are now challenging the Rules of 2008 on the grounds that the Rules are violative of Articles 14 and 16 of the Constitution, in so far as the Rules do not include the Constables is misplaced. 20. It is further submitted that it is well settled position of law that framing of Recruitment Rules is a policy matter which requires a higher level of competence within the higher echelons of the administration and what should be the criteria for promotion and how the selection for promotion should be made are wholly administrative matters to be decided by the Government and unless the said action of the Government is arbitrary or discriminatory or is vitiated by mala fide, this Hon'ble Court may not like to interfere in exercise of power of Judicial Review under Article 226 of the Constitution of India. It is submitted that in the present case, it is nobody's case that the cadres of Police Constables and Head Constable are at par and are performing similar duties. It is submitted that the element of mala fide also is not alleged. The petitioners have failed to establish the existence of any of the aforesaid factors so as to warrant the interference by this Hon'ble Court to judicially review the policy of the State Government in exercise of its extra- ordinary powers under Article 226 of the Constitution of India. 21. It is therefore, submitted that this Hon'ble Court may not like to judicially review the exercise of the powers by the State Government in framing the Rules more particularly when the petitioners in none of the petitions have been able to establish violation of Articles 14 and 16 by placing on record any material worth the name to show that they are similarly situated as being performed by the Head Constables in the Police Department. 22. Shri Trivedi, learned Advocate General, appearing on behalf of the State has further submitted that in the present case, except the petitioners being subjected to hardship, no other grounds have been raised by the petitioner- Constables in support of that challenge to the Rules of 2008. 22. Shri Trivedi, learned Advocate General, appearing on behalf of the State has further submitted that in the present case, except the petitioners being subjected to hardship, no other grounds have been raised by the petitioner- Constables in support of that challenge to the Rules of 2008. It is submitted that as held by the Hon'ble Supreme Court in catena of decisions mere hardship cannot be a ground to challenge the action of the Government in framing Rules unless a specific case is made out of violative of provisions of Constitution of India. It is submitted that mere alleging the violation is also not sufficient and one has to prove to the hilt that there is a violation of provisions of Constitution viz. (i) by placing materials as to how the petitioner Constables are similarly situated, (ii) similar nature of duties performed by them as being performed by the Head Constables, (iii) legal right in their favour flowing from a statute and corresponding duty on the part of the State Government to perform the same. It is submitted that none of the aforesaid factors have been satisfactorily proved by the petitioner Constables except making a grievance of hardship caused to them in not getting the promotion for years together. 23. Shri Trivedi, learned Advocate General appearing on behalf of the State has submitted that it is the categorical stand of the State Government that none of the petitioners are performing the duty of Head Constable and that the nature of the duty presently being performed by the petitioners are not identical with the nature of duties being performed by the Head Constable. It is submitted that paras 36 and 38 of the Gujarat Police Manual, 1975, under the heading "Powers & Duties" succinctly set out the duties of the Head Constables and Constables. It is further submitted that, that apart at no point of time, any of the petitioners have come forward with the claim that they should have been paid the wages equal to the pay of Head Constables since they are performing identical duties. Shri Trivedi, learned Advocate General has relied upon the decision of the Hon'ble Supreme Court in the case of State of Haryana v. Tilak Raj, reported in AIR 2003 SC 2658 . 24. Shri Trivedi, learned Advocate General has relied upon the decision of the Hon'ble Supreme Court in the case of State of Haryana v. Tilak Raj, reported in AIR 2003 SC 2658 . 24. It is further submitted by Shri Trivedi, learned Advocate General that mere grant of higher pay scales of promotional post is not ipso facto promotion to the promotional post and, therefore, reliance placed on the Resolution dated 16.8.1994 for the purpose of inclusion of cadre of constables in the Rules of 2008 is misconceived and illogical. It is further submitted that even as per clause 3(20) of the resolution dated 16.8.1994 granting benefit of higher pay scale it specifically provides that in a case where after granting of benefit of higher grade pay scales, a employee who is actually offered the promotion subsequently and he refuse to accept the promotion, in that case, higher grade pay scales which is granted on the promotional post which is offered to him, can be cancelled. Therefore, it is submitted that merely because the higher grade scale has been granted to the petitioners of the promotional post, ipso facto would not be considered as actual promotion on the post of Head Constable. 25. Now, meeting with the submission of the petitioners relying upon the recent circular dated 18.6.2009 of the Director General of Police to the effect that all the Police Constables are directed/permitted to perform the duty of head constables with respect to investigation of case etc. It is submitted that the aforesaid submission is absolutely on misinterpretation and misreading of the said circular dated 18.6.2009. It is submitted that the circular has been issued considering the definition of "Police Officer" as per Section 2(4) and Section 2 c (1) (sic) of the Bombay Police Act and it is clarified that Police Constables can also be said to be a "Police Officer" for the purpose of investigation of certain cases. Therefore, it is submitted that the aforesaid circular dated 18.6.2009 cannot be construed to mean that all the Police Constables are directed to perform the duty of Head Constables. 26. Therefore, it is submitted that the aforesaid circular dated 18.6.2009 cannot be construed to mean that all the Police Constables are directed to perform the duty of Head Constables. 26. Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case of State of Rajasthan v. Fate Chand Soni reported in (1996) 1 SCC 562 by the learned advocates appearing on behalf of the respective petitioners in support of their proposition that if an officer has been extended the higher scale, the same is promotion to the next post is concerned, it is submitted by Shri Trivedi learned Advocate General that the said decision will not be of any assistance to the petitioners in the facts of the present case. It is submitted that in the case before the Hon'ble Supreme Court, rule 33 was specifically providing for the determination of seniority. As per the said rule, selection scale was treated as promotion from senior scale. It is submitted that since the rule was specifically providing the grant of selection grade in the same post (i.e. grant of higher pay scale) for promotion, the Hon'ble Supreme Court while dealing with the term 'promote' observed that the term 'promotion' does not only cover advancement to a higher position or rank but also implies advancement to a higher grade in the same post. It is submitted that this judgment cannot be made applicable to the facts of the present case inasmuch as there is no such specific rule providing for such a selection or grant of higher grade to be treated as promotion. 27. It is submitted that this judgment cannot be made applicable to the facts of the present case inasmuch as there is no such specific rule providing for such a selection or grant of higher grade to be treated as promotion. 27. Meeting with the decisions of the Hon'ble Supreme Court in the case of State Bank of India ( AIR 1996 SC 1328 ) (supra), Jagdish Parsad Sinha (1989 Lab IC 1955) (supra) and State of Rajasthan (supra) relied upon the learned advocates appearing on behalf of the respective petitioners, Shri Trivedi, learned Advocate General has submitted that while relying upon the aforesaid judgments, what has been lost sight of is the well settled legal position to the effect that the Government or the Executive is the authority to decide as regards the service conditions of the officers/employees and if in a given case, the Government has decided to integrate the posts, that by itself does not create a right in favour of the petitioners-constables that they should also be extended similar treatment. It is submitted that in the aforesaid cases, Government found the recourse of integration of two different posts for the promotion to the higher post, as fair and proper and the said approach was upheld by the Hon'ble Supreme Court when challenged on the ground that State Government cannot treat two unequals as equals. It is submitted that it was in context of the said back-ground that the Apex Court ruled that the High Court should not have over-looked the rationale behind such an integration where the idea was to give equal chance to all the candidates of two different posts for promotion to the higher post. 28. It is submitted that though in the present case, integration of posts has not been provided for by the State with reference to the post of Head Constable and Constable, such an effect of integration of posts or treating them at par has been given in sub-rule (2) of Rule 2 of the Rules of 2008 in case of post of ASI and Head Constable and in sub-rule (3) of Rule 2 read with Rule 4 of the Rules of 2008 in case of all the posts including the post of Constable, for promotion to the higher post of PSI. It is submitted that as such, framing of Recruitment Rules is a policy matter and the same falls within the realm of the Executive. Questions relating to the constitution, pattern, nomenclature of posts, cadre, categories, amalgamation thereof, prescription of qualifications, other conditions of service including avenues of promotion and criteria to be fulfilled for such promotions pertain to the field of policy and the same is within the exclusive discretion and jurisdiction of the State, subject of course, to the limitation or restrictions envisaged in the Constitution of India. 29. Shri Trivedi, learned Advocate General has relied upon the decision of the Hon'ble Supreme Court in the case of P.U. Joshi and Ors. v. Accountant General, Ahmedabad and Ors. reported in (2003) 2 SCC 632 : (2003 Lab IC 435). The Hon'ble Supreme Court while dealing with the bifurcation and restructure of the various cadres of establishment in the India Audit and Accounts Department relating to the Office of the Accountant Generals in the State with effect from 1.3.1994, observed in para 10 to the effect that the State by appropriate Rules is entitled to amalgamate Departments or bifurcate Departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres of categories of service as may be required from time to time by existing cadres/post and creating new cadres/posts. The Hon'ble Supreme Court further observed that there is no right in any employee of the State to claim the rules governing the conditions of his service should be forever the same as the one when he entered the service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter, and bring into force new Rules relating to even an existing service. 30. 30. While relying upon the decision of the Hon'ble Supreme Court in the case of State of J&K v. Shiv Ram Sharma & Ors., reported in (1999) 3 SCC 653 : (1999 Lab IC 2096), Shri Kamal Trivedi, learned Advocate General has submitted that in the said case the Hon'ble Supreme Court while dealing with the Rules promulgated under Section 124 of the Constitution of Jammu and Kashmir, styled as 'Jammu and Kashmir Geology and Mining (Subordinate) Service Recruitment Rules, 1990' observed in para 6 as under:- "The law is well settled that it is permissible for the Government to prescribe appropriate qualifications in the matter of appointment or promotion to different posts. The case put forth on behalf of the respondents is that when they joined the service, the requirement of passing Zmatriculation was not needed and while they are in service, such prescription has been made to their detriment. But it is clear that there is no indefeasible right in the respondents to claim for promotion to higher grade to which qualification could be prescribed and there is no guarantee that those rules framed by the Government in that behalf would always be favourable to them. In Roshan Lal Tandon v. Union of India ( AIR 1967 SC 1889 ), it was held by this court that once appointed, an employee has no vested right in regard to the terms of service but acquires a status and, therefore, the rights and obligations thereto are no longer determined by the consent of the parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. The High Court has also noticed that there was an avenue provided for promotion but the prescription of the qualification was not favourable to the respondent...." (Emphasis supplied) 31. Shri Trivedi, learned Advocate General has also relied upon the decision of the Hon'ble Supreme Court in the case of Mangilal v. State of Rajasthan reported in (2007) 9 SCC 189 (paras 10 & 11) : (2007 Lab IC 3222). Shri Trivedi, learned Advocate General has also relied upon the decision of the Hon'ble Supreme Court in the case of Mangilal v. State of Rajasthan reported in (2007) 9 SCC 189 (paras 10 & 11) : (2007 Lab IC 3222). He has also relied upon the decision of the Hon'ble Supreme Court in the case of T. Venkateswarulu v. Tirumala Tirupathi Devasthanams reported in (2009) 1 SCC 546 : (2009 Lab IC 452), in the said decision the Hon'ble Supreme Court has categorically held that giving weightage for promotion between two categories of servants inducted from different sources is purely a matter of Government policy and if one group suffers a hardship, mere hardship without anything arbitrary in the Rules does not call for judicial intervention especially when it flows out a policy which is not basically illegal. 32. Relying upon the decision of the Hon'ble Supreme Court in the case of Director of Settlement, A.P. v. M.R. Apparao, reported in (2002) 4 SCC 638 : ( AIR 2002 SC 1598 ), it is submitted by the learned Advocate General that it is held in the said decision that one of the conditions for exercising power under Article 226 for issuance of a mandamus is that the court must come to the conclusion that the aggrieved person has the legal right which entitles him to any of the rights and that such right has been infringed. It is submitted that it has been further observed that existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority could be enforced by issuance of a writ of mandamus. In the present case, the petitioners do not have any such legal right for claiming promotion to the post of PSI. By making above submissions and relying upon the above decisions, it is requested to dismiss the present Special Civil Applications and vacated the ad-interim order passed by this Court. 33. Heard the learned advocates appearing on behalf of the respective parties at length. By making above submissions and relying upon the above decisions, it is requested to dismiss the present Special Civil Applications and vacated the ad-interim order passed by this Court. 33. Heard the learned advocates appearing on behalf of the respective parties at length. The dispute is with respect to the promotion to the post in question and in exercise of powers conferred by clause (b) of Section 5 of Bombay Police Act, 1935 and in supersession of all earlier rules, the State Government has framed the Recruitment Rules, 2008 providing for regulating the recruitment to the post in question and the relevant rule is reproduced herein above. Rule 2 of Rules of 2008 provide for manner of appointment. The appointment is provided by promotion by Special Competitive Examination and by direct selection in the ratio of 1:4:5. Sub-rule (1) of Rule 2 envisages appointment by promotion of persons, a person of proved merit and efficiency from amongst the persons who have worked for not less than five years in the cadre of Assistant Sub-Inspector (Unarmed), Class III, in the Gujarat State Police Service. Similarly sub-rule (2) of Rule 2 provides for appointment by promotion of a persons on the basis of merit rank obtained in the Special Competitive Examination conducted in accordance with the rules and who has worked for not less than three years either in the cadre of Assistant Sub- Inspector (Unarmed), Class III or Head Constables (Unarmed), Class III in the Gujarat State Police Service. Sub-rule (3) of Rule 2 provides for recruitment to the post in question by direct selection. In the present group of petitions we are concerned with sub-rule (2) of Rule 2 of the Recruitment Rules, 2008. As per sub- rule (2) of Rule 2 of the Recruitment Rules, 2008 feeder cadre for promotion to the PSI is Assistant Sub-Inspector and Head Constable as provided in the Gujarat Police Manual. Admittedly, none of the petitioners have worked for not less than three years either in the cadre of Assistant Sub-Inspector (Unarmed) Class III or Head Constables (Unarmed) Class III in the Gujarat State Police. Admittedly, none of the petitioners have worked for not less than three years either in the cadre of Assistant Sub-Inspector (Unarmed) Class III or Head Constables (Unarmed) Class III in the Gujarat State Police. However, it is the contention on behalf of the respective petitioners that as the respective petitioners are granted higher pay scale of promotional post of the Head Constable, since more than three years, they are required to be treated as having been granted promotion as Head Constable and accordingly they are to be treated as eligible for appearing in Special Competitive Examination while for promotion to the post in question by Mode 2. It is the case on behalf of the respective petitioners that considering the Government Resolution dated 16.8.1994 higher grade pay scale is given to the next promotional post only in a case where the employee has fulfilled all the eligibility criteria inclusive of selection etc. of the promotional post and, therefore, by granting higher grade pay scale it is to be considered that all the petitioners are promoted to the post of Head Constable. The aforesaid contentions/submissions has no substance and cannot be accepted. Merely because, considering the policy of the State Government to avoid any stagnation due to non promotion for number of years either due to non availability of the promotional post or for some other reasons, higher grade pay scale of next promotion is granted to the employee, it cannot be said that such a employee is actually promoted to the next promotional post. The purpose and object of granting the higher pay scale is required to be considered and it is to avoid stagnation in the service due to non promotion for number of years. It is also required to be noted at this stage that even considering the Clause 3(20) of the Government Resolution dated 16.8.1994 with respect to grant of higher grade pay scale on completion of 9 years in the same cadre and pay scale, even in a case where after granting of benefit of higher grade pay scale to an employee, who is actually offered the promotion subsequently and he refuse to accept the promotion, in that case, higher grade pay scale which is granted on the promotional post which is offered to him, can be cancelled. Therefore, merely because the respective petitioners have been granted benefit of higher grade scale of the post of Head Constable, by that itself it cannot be said that they are actually promoted on the said post. Submission on behalf of the respective petitioners, therefore, that as they have got the benefit of higher grade scale of Head Constables since more than three years and, therefore, they should be held eligible for appearing in the Special Competitive Examination cannot be accepted. 34. It is next contended on behalf of the respective petitioners that all the petitioners are serving as Constables since last more than 12 years and other similarly situated police Constables in other districts have got the promotion to the post of Head Constables within a span of 5 to 6 years due to fortuitous circumstances of their appointment in a particular district and, therefore, they shall be considered as eligible for appearing in the Special Competitive Examination while making the recruitment in Mode 2 as the aforesaid anomalous situation is causing grave injustice and tremendous heart-burning to the petitioners. It is also the case on behalf of the petitioners that those Police constables who have got the promotion as Head Constables in their respective districts are juniors to the petitioners. It is submitted that as the respective petitioners are in a district where there are large number of Police Constables and Head Constables and, therefore, they could not get the promotion to the post of Head Constables in spite of more than 15 to 20 years. It is also submitted that there is no fault on the part of the petitioners. It is submitted that as such the cadre of police constables is a District cadre from it lies to the cadre of ASI it is also district cadre and the said promotion is based only on basis of seniority and no examination is provided for such promotion. It is submitted that, therefore, equal are treated as unequal and, therefore, all the petitioners are to be treated as eligible for appearing in the Special Competitive Examination for the post in question and, therefore, it is submitted on behalf of the petitioners that sub-rule (2) of Rule 2 of the Recruitment Rules, 2008 is to be interpreted in such a manner that no injustice is caused to the petitioners and other Constables like petitioners. In support of their submissions they have relied upon the decision of the Hon'ble Supreme Court in the case of Mohd. Usman (1971 Lab IC 1114) (supra): Kashinath Kher (supra) and Jagdish Prasad Sinha (1989 Lab IC 1955) (supra). They have also relied upon the decision of the learned single Judge in the case of Samrathdan Dajibhai (supra). The aforesaid submissions seems to be attractive but has no substance and cannot be accepted. It is required to be noted that admittedly promotion to the post of Head Constables is district wise and on the basis of the seniority in the cadre of Police Constables in the particular District and therefore in a given case it might be that due to some fortuitous circumstances some Constables might have got the promotion to the Head Constables earlier than respective petitioners though they might have joined as a constables after the respective petitioners. However, that by itself cannot be a ground to struck down sub- rule (2) of Rule 2 of the Recruitment Rules, 2008 as illegal and/or arbitrary. All those constables are promoted to the post of Head Constables considering their respective seniority in the concerned districts where they are appointed as constables and, therefore, respective petitioners cannot make any grievance. It is not in dispute that the seniority in the cadre of Constables is also prepared district-wise and consequently the promotions are given to the post of Head Constables on the basis of their respective seniority in the particular districts where they are working those employees in other districts who might have been appointed after the respective petitioners as Constables, cannot be said to be the junior to the respective petitioners where they are serving as Constables. Similarly, petitioners also cannot be said to be senior to the respective constables who are appointed in other districts after the petitioners. The respective petitioners can make a grievance only if a junior employee to the respective petitioners in the concerned district where the respective petitioners are serving as Constables is promoted to the post of Head Constables and then and then only the respective petitioner can make a grievance. 35. It is the contentions on behalf of the respective petitioners that legality and validity of the relevant rules i.e. sub-rule (2) of Rule 2 is required to be tested considering the hardships caused to the respective petitioners. 35. It is the contentions on behalf of the respective petitioners that legality and validity of the relevant rules i.e. sub-rule (2) of Rule 2 is required to be tested considering the hardships caused to the respective petitioners. So far as the legality and validity of the Rule is concerned, one has to consider the class as a whole and not the hardship to an individual employee. Even otherwise as held by the Hon'ble Supreme Court in the case of Prafulla Kumar Das and others v. State of Orissa and others reported in (2003) 11 SCC 614 : (2004 Lab IC 54), mere hardship is no ground to struck down a valid legislation. Mere hardship cannot be a ground to challenge the action of the respondent in framing the rules unless a specific case is made out of violation of provisions of Constitution of India. Only on mere hardship due to the aforesaid fortuitous circumstance alleging heart burning to the petitioners rule cannot be struck down being illegal. The relevant Recruitment Rules have been framed by the State Government in exercise of powers conferred by clause (b) of Section 5 of Bombay Police Act, 1935 and except hardship learned advocates appearing on behalf of the respective petitioners have failed to satisfy the Court how the relevant Recruitment sub-rule (2) of Rule 2 is unconstitutional. 36. It is also required to be noted at this stage that as such as per the earlier recruitment Rules of 2003 appointment to the post in question was provided by way of direct selection or by special selection from amongst person working as head Constables (Unarmed) Class III or Assistant Sub- Inspector (Unarmed) Class III but have completed 5 years continuous service in the Gujarat State Police and have passed Special Competitive Examination. However, it was provided that they may not be more than 45 years of age at the commencement of the Sub Inspector course at the Gujarat State Police Academy and they shall have passed Standard 12. However, it was provided that they may not be more than 45 years of age at the commencement of the Sub Inspector course at the Gujarat State Police Academy and they shall have passed Standard 12. The aforesaid was challenged by way of Special Civil Application No. 14557 of 2003 and at the stage issuance of notice, the learned single Judge considered the submissions on behalf of such Head Constables who have already crossed 45 years and by virtue of prescribing age limit in the rules the candidates were eligible would not get the promotion to the post in question from the post of Head Constables and it was submitted that petitioners would like to make appropriate representation to the State Government to relax the age limit and the educational qualification and the learned single Judge while issuing the notice directed that it will be open for the petitioners to make such representation and if any such representation is made, the same may be disposed in accordance with law. It appears that the State Government examined the grievance of the petitioners sympathetically and a policy decision was taken to the effect that age criteria of 45 years stipulated in Recruitment Rules, 2003 shall be relaxed to the extent of 50 years and the educational qualification stipulated in the Recruitment Rules, 2003 that the applicant should have passed Standard 12 came to be modified to include those persons also who have passed Standard 11. Accordingly, notification came to be issued amending earlier Recruitment Rules, 2003. That thereafter, in supersession of earlier rules, present Recruitment Rules, 2008 has been framed. It appears that as such for the purpose of promotion to the post in question as per sub-rule (2) of Rule 2 post of ASI (Unarmed) Class, III and Head Constables (Unarmed) Class III are treated at par. Therefore, conscious policy decision has taken while framing the Recruitment Rules of 2008. It cannot be disputed that framing of rules is policy matter and same falls within realm of executive. Therefore, conscious policy decision has taken while framing the Recruitment Rules of 2008. It cannot be disputed that framing of rules is policy matter and same falls within realm of executive. Shri Trivedi, learned Advocate General is right in making submission that the question relating to the Constitution of India, pattern, nomenclature of post, cadre, categories, amalgamation thereafter prescription of qualification, other conditions of service including avenues of promotion and criteria to be fulfilled for such promotion pertain to the field of policy and the same is exclusive discretion and jurisdiction of the State however, subject to limitation of restriction envisage in the Constitution of India. On the aforesaid propositions, if any decision is required they are in the case of P.U. Joshi and others (2003 Lab IC 435) (supra) and Shiv Ram Sharma (1999 Lab IC 2096) (supra). Even the decision of the Hon'ble Supreme Court in the case of T. Venkateswarulu (2009 Lab IC 452) (supra) is on the aforesaid point. Therefore, unless it is shown that sub-rule (2) of Rule 2 of the Recruitment Rules, 2008 is absolutely illegal and/or unconstitutional, this Court would not like to interfere with the policy decision of the State Government which is within the exclusive domain of the State Government. 37. Now, so far as the contentions on behalf of the respective petitioners to the effect that respective petitioners have been discharging of the duties and performing all the function of the Head Constables since very long time and reliance placed by the Standing Order No. 1 of 2009 issued by the Director General of Police dated 18.6.2009 and, therefore, to treat the respective petitioners who are serving as a Constable as Head Constables is concerned, it appears that the same is based on misinterpretation and misreading of aforesaid Standing Order No. 1 of 2009. On considering the aforesaid Standing Order, it appears that considering the relevant provisions of Bombay Police Manual and considering the Bombay Police Act and the definition of Police Officer it is observed that police constables can also be said to be "police officer" for the purpose of investigation with respect to certain offences and, therefore, such police constables are treated as "Police Officers" for the purpose of investigation of certain offences which were being performed by the Head Constables also. That does not mean that all the petitioners are performing all the duties of Head Constables. That does not mean that all the petitioners are performing all the duties of Head Constables. Except general statement that all the petitioners are performing the duty which are being performed by the Head Constables, no specific averments have been made with respect to the duty performed by the constables and duty performed as Head Constables. On the contrary, it is specifically denied by the State that nature of duty as Constables and Head Constables is altogether different. The categorical stand of the State Government is that none of the petitioners has been performing duty of head constables and the nature of duty presently being performed by the petitioners are not identical with the nature of duty being performed by the head constables. The aforesaid stand of the State Government in considering paras 36 and 38 of the Gujarat Police Manual, 1975, under the heading "Powers & Duties" which succinctly set out the duties of the Head Constables and Constables. Therefore, the contention on behalf of the respective petitioners that they may be treated as Head Constables and, therefore, eligible for appearing in the Special Competitive Examination for the post in question cannot be accepted. 38. Now, so far as the reliance placed upon the decision of the Hon'ble Supreme Court in the case Mohd. Usman (1971 Lab IC 1114) (supra): Kashinath Kher ( AIR 1996 SC 1328 ) (supra) and Jagdish Prasad Sinha (1989 Lab IC 1955) (supra) relied upon by the respective petitioners is concerned, in fact in all those cases it was the State Government's own policy/ rules to treat certain post at par and to that the Hon'ble Supreme Court ruled that when the State Government had taken a policy decision treating two classes as equal the Court would not like to interfere with the same. Therefore, in a given case, the Government has decided to integrate the post and the same came to be upheld by the Hon'ble Supreme Court, and therefore that by itself does not create a right in favour of the petitioners -constables to claim that they should also be extended the similar treatment. Under the circumstances, the aforesaid decisions would not be of any assistance to the respective petitioners. 39. Under the circumstances, the aforesaid decisions would not be of any assistance to the respective petitioners. 39. Now so far as the decision of the learned single Judge in the case of Samrathdan Dajibhai (supra) relied upon by the respective petitioners it appears that the same is relied upon by the respective petitioners in support of their submissions that as the petitioners being Constables and are also performing the duties which are being performed by the Head Constables and therefore, their cases are required to be considered for the post in question and they should be permitted to apply and appear in the Special Competitive Examination and compete with other Head Constables. It is the case on behalf of the respective petitioners that the learned single Judge in the aforesaid decision considered the cases of those constables who were sent on deputation in CID/Crime and they were also considered for eligible for next promotional post treating them as head constables. On considering the entire decision of the learned single Judge, it appears that there is no absolute proposition of law laid down by the learned single Judge in the said decision which is sought to be canvassed on behalf of the respective petitioners. The decision of the learned single Judge is based upon the fact that that State Government itself granted and considered those Constables as Head Constables applying own rules and considering the same, the learned single Judge held that petitioners are also entitled to the same benefit (para 19 of the said decision). It is also required to be noted that in the case before the learned single Judge those candidates who were sent on deputation to CID/Crime were in fact granted one step promotion and even the State Government also considered the post of AIO as equivalent to the post of Head Constables and, therefore, on facts the said decision would not be applicable to the facts of the present case. 40. For the reasons stated above, the sub- rule (2) of Rule 2 of the Recruitment Rules, 2008 cannot be said to be illegal. 40. For the reasons stated above, the sub- rule (2) of Rule 2 of the Recruitment Rules, 2008 cannot be said to be illegal. Admittedly, the feeder cadre for the promotion to the post in question as sub-rule (2) of Rule 2 of Recruitment Rules, 2008, is Assistant Sub-Inspector or Head Constables and as per sub-rule (2) of Rule 2 only those persons who have worked for not less than 3 years in the cadre of ASI (Unarmed) Class III or Head Constable (Unarmed) Class III in the Gujarat State Police Service are eligible for appearing in the Special Competitive Examination and admittedly none of the petitioners are fulfilling the said eligibility criteria as admittedly all the petitioners are constables and therefore, the respective petitioners are rightly held not eligible for appearing in the Special Competitive Examination for recruitment / promotion to the post in question as Mode 2 i.e. under sub- rule (2) of Rule 2. 41. Now, so far as the submissions on behalf of the respective petitioners with respect to legitimate expectation and their submissions that if their cases are not considered for promotion to the post of ASI they will be denied the promotion is concerned, it is to be noted that exactly for the same reasons the State Government has framed the scheme with respect to grant of higher pay scale on the next promotional post on completion of 9 years of service in the same cadre and same pay scale. Therefore, there shall not be any limitation to the petitioners. Even otherwise, on the aforesaid ground sub-rule (2) of Rule 2 of Recruitment Rules, 2008 cannot be struck down. 42. Now, so far as the contention on behalf of the respective petitioners that concerned respondents are to be directed to consider the representation of some of the petitioners sympathetically as has been considered in past is concerned, no mandamus can be issued directing the respondents to consider the representation sympathetically. It is for the concerned authority to consider the same. Even otherwise, looking to the serious stand by the respondents no purpose will be served to direct the respondents to consider the representation sympathetically. 43. It is for the concerned authority to consider the same. Even otherwise, looking to the serious stand by the respondents no purpose will be served to direct the respondents to consider the representation sympathetically. 43. Now, so far as the contention on behalf of the petitioners that as by way of ad interim relief the applications/forms of the respective petitioners for appearing in the Special Competitive Examination for the post in question have been accepted and, therefore, the respective petitioners should be permitted to appear in the examination is concerned, the same cannot be accepted and the said request to be rejected outright. Merely because, the ex-parte ad interim relief has been granted subject to ultimate outcome of the petition and in view of dismissal of the present Special Civil Applications petitioners cannot be permitted to appear in the examination merely because their forms have been accepted by interim order. In view of the above observations and findings of this Court respective petitioners are rightly not considered eligible for appearing in examination for the post in question as the respective petitioners are not fulfilling the requisite eligibility criteria of having worked for not less than more than three years on the post of Head Constables (Unarmed) Class III. Therefore, the aforesaid request cannot be accepted. 44. In view of the above and for the reasons stated above, all the petitions deserves to be dismissed and are accordingly dismissed. Rule discharged. Ad- interim relief granted earlier stand vacated forthwith. Petitions dismissed.