Research › Search › Judgment

Uttarakhand High Court · body

2012 DIGILAW 165 (UTT)

Ashok Kumar v. State of Uttarakhand

2012-04-17

TARUN AGARWALA

body2012
Judgment : Hon’ble Tarun Agarwala, J. 1. Heard Mr. Parikshit Saini, the learned counsel for the petitioners and Mr. P. C. Bisht, the learned brief holder for the respondents. 2. An advertisement was published by the Director General of Police, Uttarakhand for the recruitment of Constables in the police department. The petitioners applied and were selected in the recruitment process. The petitioners were issued an appointment letter on 14th December, 2007 and were sent for training from 01st January, 2008. The training period is confined to nine months and is also stipulated through various orders that during the training period, the newly appointed recruits would be paid a stipend. The petitioners completed their training on 30th September, 2008 and, as per their appointment letter, were posted at different places and started discharging their regular duties on the post of Constables as specified in paragraph 9 of the writ petition. 3. It transpires that a Police Establishment Committee under the Chairmanship of the Director General of Police took a decision on 24th July, 2008 holding that the newly appointed recruits would be given a stipend upto 31st March, 2009. Based on the said decision of the Committee, the impugned order dated 02.08.2008 was passed by the Director General of Police directing payment of stipend to the recruits till 31st March, 2009. 4. The petitioners, being aggrieved by the impugned order, has filed the present writ petition. The respondents have filed their counter affidavit. Paragraph 9 of the writ petition, namely, that upon completion of training on 30.09.2008 the petitioners joined their respective places of posting and are discharging their regular duties, has not been denied by the respondents in paragraph 11 of the counter affidavit. The respondents, however, contend that the Police Establishment Committee constituted under Section 38 of the Uttarakhand Police Act, 2007 (hereinafter referred to as the Act) has determined the selection / promotion process indicating that the stipend would be paid upto 31st March, 2009 and consequently, based on the said decision, the impugned order was issued, which does not suffer from any error of law. 5. Having heard the learned counsel for the parties at some length, the court fails to fathom the mindset of the respondents as disclosed in their counter affidavit. The counter affidavit does not reveal that the period of training was extended beyond nine months. 5. Having heard the learned counsel for the parties at some length, the court fails to fathom the mindset of the respondents as disclosed in their counter affidavit. The counter affidavit does not reveal that the period of training was extended beyond nine months. The information given to the petitioner under the Right to Information Act (Annexure 3 to the writ petition) clearly indicates that the period of training in the recruitment process was for 9 months. Reliance on the provisions of Section 38 of the Act by the respondents is also patently erroneous. For facility, Section 38 of the Act is extracted hereunder:- “38. Police Establishment Committee:- (1) The State Government shall, as soon as may be, constitute a Police Establishment Committee (hereinafter referred to as the ‘Committee’) with the Director General of Police as its Chairperson and two other senior most police officers in the Department, not below the rank of Inspector General of Police, as members. (2) Establishment Committee shall perform the following functions and duties, namely- (a) lay procedures for the selection and promotions in the Subordinate Ranks; (b) transfer of subordinate officers from one Range to another; (c) transfer of officers of the rank of Deputy Superintendent of Police, Assistant Superintendent of Police; (d) recommend to the State Government, regarding the transfer and posting of police officers of the rank of Additional Superintendent of Police and above; (e) prescribe guidelines and instructions for transfer of subordinate officers from one Police District to another; and (f) analyse and redress the grievances of the police personnel and wherever necessary, suggest remedial measures to the State Government. (3) The State Government may, in such matters as it may deem fit, for reasons to be recorded in writing, alter or amend the decisions of the Committee.” 6. A perusal of this provision indicates that the State Government would constitute a Police Establishment Committee, who would perform the functions and duties under sub-clause (2) of Section 38 of the Act. Reliance has been made to sub-clause 2(a) of Section 38 of the Act, namely, that the Committee can lay down the procedure for the selection and promotion in the subordinate ranks. The learned brief holder for the State submitted that under this provision, the Committee had the power to fix the stipend of the recruits. 7. Reliance has been made to sub-clause 2(a) of Section 38 of the Act, namely, that the Committee can lay down the procedure for the selection and promotion in the subordinate ranks. The learned brief holder for the State submitted that under this provision, the Committee had the power to fix the stipend of the recruits. 7. The court, upon perusal of Annexure-2 to the counter affidavit, finds that the Police Establishment Committee was constituted by a Notification dated 07th November, 2008 whereas the decision of the said Committee is dated 24th July, 2008. No explanation whatsoever has been given as to how a Committee, which was not even constituted and existing on 24th July, 2008, could have taken such a decision. Even otherwise, clause (5) of the decision dated 24th July, 2008 of the alleged Committee indicates that the stipend would be paid upto 31st March, 2009. The said resolution does not indicate that the training period would be extended beyond 9 months upto 31st March, 2009. 8. In the light of the aforesaid, the reliance of the respondents on the decision of the Committee dated 24th July, 2008 cannot be made since the Committee was constituted only on 07th November, 2008. Any decision taken by the Police Establishment Committee prior to its formation can only be a informal constitution having no sanctity of law. 9. In Writ Petition No.161 of 2010 (S/S) titled as Constable (M) Deepak Joshi & others Vs. State of Uttarakhand & others, a similar controversy arose with regard to the payment of stipend after the initial training period. The court in its decision dated 19.04.2010 held that the Director General of Police directing payment of stipend upon completion of training was without jurisdiction. The court further held that once the petitioners had joined pursuant to the select list and, upon completion of the initial training, no direction for payment of stipend could be made and that any subsequent training could be ordered, but, the petitioners would be entitled for payment of regular salary. The controversy involved in the present writ petition, in the opinion of the court, is squarely covered by the decision dated 19.04.2010 passed in Constable (M) Deepak Joshi (supra). The controversy involved in the present writ petition, in the opinion of the court, is squarely covered by the decision dated 19.04.2010 passed in Constable (M) Deepak Joshi (supra). It has been brought to the notice of the court that the decision passed in Constable (M) Deepak Joshi (supra) has been affirmed by the Division Bench of this Court vide judgment dated 06.01.2011 passed in Special Appeal No.214/2010. 10. In the light of the aforesaid, the impugned order dated 02.08.2008 cannot be sustained and is quashed. The writ petition is allowed and a writ of mandamus is issued to the respondents to pay regular salary to the petitioners for the period w.e.f. 01st October, 2008 to 31st March, 2009 on the post of Constables.