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2017 DIGILAW 245 (UTT)

Subhash Chandra v. State of Uttarakhand

2017-04-19

SUDHANSHU DHULIA

body2017
JUDGMENT : Sudhanshu Dhulia, J. 1. Heard Mr. B.D. Upadhyaya, Senior Advocate assisted by Ms. Soniya Chawla, learned counsel for the petitioner, Mr. Avtar Singh Rawat, Senior Advocate assisted by Mr. Kartikey Hari Gupta, Mr. Vinay Kumar and Mr. Vipul Sharma, learned counsel for the private respondents and the interveners at length on various occasions. 2. The petitioners before this Court are Sub-Inspectors in Uttarakhand Civil Police, who have filed these writ petitions with the prayer of writ, order or direction in the nature of certiorari for quashing the orders dated 13.07.2016 and 28.03.2016 (Annexure Nos. 1 and 2 to the writ petition respectively). The prayer is common in the two writ petitions, however, for the sake of convenience the facts which are narrated are the ones which relate to Writ Petition No. 1432 of 2016 (S/S). 3. Primarily the prayer of the petitioners before this Court is for quashing the order dated 13.07.2016 passed by the Principal Secretary, Government of Uttarakhand by which the representation of the petitioners for calculating their seniority from the year 2001 on the post of Sub-Inspector has been rejected and it has been held that the petitioners will be given seniority from 2008, when they were substantially appointed on the post of Sub-Inspector. 4. As this case has a somewhat chequered history, the facts must be stated first. These are as follows: 5. Prior to the creation of the State of Uttarakhand, when the present territory of Uttarakhand was a part of erstwhile State of Uttar Pradesh, the petitioners were serving in the erstwhile Uttar Pradesh Civil Police as Constables or Head Constables (as the case might be), when in the year 1999 the process for filling up 2956 posts of Sub-Inspector in Uttar Pradesh Civil Police was initiated. Admittedly 50% of the posts were to be filled by way of direct recruitment and the remaining 50% posts were to be filled by a process of selection from amongst the feeding cadre of Constables and Head Constables in U.P. Civil Police. The petitioners who were already in service of U.P. Police as Constables or Head Constables were candidates in the promotional exercise. This was not a simple promotional exercise, but it required a detail selection process where there was initially a preliminary examination and only such successful candidates, who qualified the preliminary examination could appear for the Physical Test and Infantry Test. This was not a simple promotional exercise, but it required a detail selection process where there was initially a preliminary examination and only such successful candidates, who qualified the preliminary examination could appear for the Physical Test and Infantry Test. After qualifying these tests they were made eligible for the main examination. Ultimately the candidate who qualified all the above tests/examinations had to appear in an interview and thereafter the select list was to be published. Finally these selected candidates had to undergo a training for a period of about six moths and only after completing successfully their training, were they appointed on the post of Sub-Inspector and were considered to be substantially inducted in the cadre of Sub-Inspectors! 6. Unfortunately there was rupture in the selection process, for two reasons. The preliminary examination as well as Physical Test and Infantry Test held between 16.10.1999 to 20.11.1999 and the results were declared, which came to be challenged in a writ petition before the High Court of Judicature at Allahabad. The writ petition of such petitioners was allowed by a learned Single Judge of the Allahabad High Court on 10.03.2000. The result of Physical Test and Infantry Test was quashed and the respondent State as well as Police Authority was directed to hold selection process afresh. The decision of the learned Single Judge, however, was challenged by the State Government before the Division Bench in special appeal. The Division Bench ultimately allowed the special appeal and set aside the order of the learned Single Judge vide judgment dated 02.12.2004 with a direction that the selection process be initiated from the stage it was stopped. Four to five years were thus lost in this litigation. It is ultimately after the order of the Division Bench that the selection process which had come to a halt for nearly five years, was re-initiated. The petitioners then went through a written examination which was conducted at Bijnore in Uttar Pradesh and thereafter were declare successful and ultimately, after undergoing the training of Sub-Inspector were substantially inducted in service only in March 2008. Hence, the first rupture was due to the intervention of the Court, as it is being argued. 7. The second rupture was the creation of the new State of Uttarakhand itself, which came into existence on 9th November, 2000 by an Act of Parliament known as “Uttar Pradesh Re-organization Act”. Hence, the first rupture was due to the intervention of the Court, as it is being argued. 7. The second rupture was the creation of the new State of Uttarakhand itself, which came into existence on 9th November, 2000 by an Act of Parliament known as “Uttar Pradesh Re-organization Act”. Undisputedly since on the appointed day, i.e. 09.11.2000, all the petitioners were working in the territory of Uttarakhand as Constables or Head Constables (as the case might be), they were ultimately allocated to the Uttarakhand cadre, as Constables or Head Constables in Uttarakhand Police in the year 2001. Meanwhile, after the judgment of the Division Bench of High Court of Judicature at Allahabad, the process of promotion which had come to a standstill started again and the petitioners were ultimately appointed as Sub-Inspectors. 8. The question raised by the petitioners earlier was of their seniority. Interestingly, the petitioners are not contesting their seniority vis-à-vis the direct recruits. As we have noticed, the process for selection for both, i.e. direct recruits as well as by promotion began in the year 1999 itself. All the same, though the promotional exercise was stalled, the direct recruitment continued and the candidates were ultimately appointed in the year 2001 in the State of Uttar Pradesh. Admittedly all of them were absorbed in the State of Uttar Pradesh, as none was allocated to Uttarakhand. Therefore, there is no dispute between the petitioners i.e. the promotees and the direct recruits of the same year. It was only later, in the year 2003 when the State of Uttarakhand initiated its process for direct recruitment to the posts of Sub-Inspectors. The private respondents are the ones, who were recruited in this process and were substantially inducted in the cadre of Sub-Inspectors in the year 2003. In the year 2013, a further promotional exercise was initiated for the post of Inspectors from the feeding cadre of Sub-Inspector in Uttarakhand Police. The necessary condition for one to be included in the zone of consideration for this promotion exercise was a mandatory qualifying period of 10 years of substantive service in Uttarakhand Civil Police as Sub Inspectors. Since the petitioners were substantially inducted in Uttarakhand Civil Police as Sub-Inspector only in the year 2008, they had obviously not completed 10 years of service which was mandatory. Since the petitioners were substantially inducted in Uttarakhand Civil Police as Sub-Inspector only in the year 2008, they had obviously not completed 10 years of service which was mandatory. As they were not considered for the next promotion, the petitioners had filed a writ petition before this Court claiming that since the recruitment process in their case had started way back in the year 1999 when the process of direct recruitment was also initiated and the direct recruits were ultimately appointed in the year 2001, therefore, once there are two sources of recruitment – one by way of promotion and another by way of direct recruitment in the same year, then the promotees will be given seniority over the direct recruits as per the Rules. The reliance was placed on Rule 8 (3) of the Uttaranchal Government Servants Seniority Rules, 2002, which reads as under: “8. Seniority where appointment by promotion only from and direct recruitment- (1)…. (2)…. (3) Where appointments are made both by promotion and direct recruitment on the result of any one selection the seniority of promotees vis-à-vis direct recruits shall be determined in a cyclic order the first being a promotee as far as may be, in accordance with the quota prescribed for the two sources.” 9. The learned Single Judge of this Court, however, dismissed the writ petition (Writ Petition (S/S) No. 1841 of 2011) on ground that the petitioners cannot claim seniority from 2001, as in the year 2001 they were never inducted in the cadre of Sub-Inspectors and the date of their induction would always be a date when they were substantially inducted as per the Police Regulation 448-A. Regulation 448-A of the Police Regulations reads as under: “448-A. Relative seniority will be governed by the date of passing the Sub- Inspector Armed Police Course and for men passing the same course by their position obtained in the final examination of Sub- Inspector Armed Police Course between two men obtaining equal marks in the same final examination (i) promoted man will take seniority over directly recruited candidate, (ii) if both men are directly recruited the age will be the determining factor and in the case of the ranker cadets it will be length of service.” 10. Aggrieved by the said order of the learned Single Judge, the petitioner filed a special appeal, being SPA No. 224 of 2013 before a Division Bench of this Court. Interestingly, the Division Bench has not considered the legality of the order of the learned Single Judge but has come to the conclusion that since the matter relates to seniority of the petitioners and the issue of seniority has to be decided by the State Government in accordance with prevailing Rules and Law and directed that the question of seniority of the petitioners/appellants shall be decided by the State Government in accordance with prevailing Rules and law. The operative portion of the judgment dated 05.08.2015 passed by the Division Bench reads as under:- “In view of the above, present appeals are being disposed of with the direction that question of seniority of the petitioners/appellants shall be decided by the State Government in accordance with prevailing Rules and Law preferably within six weeks from today. We, however, clarify that petitioners/appellants, if so advised, may send their written submission in the shape of representations to the D.G.P., Uttarakhand within ten days from today. We further clarify that while taking decision on the question of seniority of the petitioners/appellants, respondent Authorities shall not be prejudiced by any observations made by learned Single Judge while dismissing the writ petitions.” 11. The directions of the Division Bench of this court were for a decision be taken by the State Government, on the seniority aspect. Though the representations were to be filed before the Director General of Police, Dehradun, but there was no direction by the Division Bench to the Director General of Police to decide the matter. 12. All the same, this issue of seniority was decided by the Director General of Police vide order dated 21.03.2016 and he came to the conclusion that the petitioners are liable to be given notional seniority since 2001 and, therefore, directed that the petitioners be given seniority since 2001. When this matter was brought to the knowledge of the State Government, the State Government, after taking legal opinion came to the conclusion that the order passed by the Director General of Police is in violation of the order of this Court and subsequently it was set aside vide order dated 28.03.2016. When this matter was brought to the knowledge of the State Government, the State Government, after taking legal opinion came to the conclusion that the order passed by the Director General of Police is in violation of the order of this Court and subsequently it was set aside vide order dated 28.03.2016. Thereafter the matter was considered afresh by the State Government, this time by the Principal Secretary (Home), Government of Uttarakhand, Dehradun. After considering all the relevant aspects, the Government has come to the conclusion that the petitioners were not liable to be given seniority since 2001, as the rules were absolutely clear that seniority has to be calculated from the date of substantive appointment, which was in the year 2008. The representation of the petitioners was decided vide order dated 13.07.2016, which has now been challenged by the petitioners before this Court in the present writ petitions. 13. The principal submission of the learned Senior Counsel for the petitioners Mr. B.D. Upadhyaya is that the petitioners have suffered for no fault on their part. They were candidates in the promotional exercise which was initiated way back in the year 1999 when the private respondents were not even a part of Uttar Pradesh or Uttarakhand Police. In normal course, the entire promotional exercise should have been completed within a year or at best within two years. The process for direct recruitment, which was initiated in the year 1999, was ultimately completed in the year 2001 but since the writ petition was filed before the High Court of Judicature at Allahabad and the interim order passed therein, it was only in the year 2004 when the matter was finally decided by the Division Bench of the Allahabad High Court in special appeal that the selection process was initiated afresh. In other words, for a period of five years the selection process was stalled due to the intervention of the Court and in such an event the petitioners’ case for notional seniority since 2001 is just and proper. 14. Mr. B.D. Upadhyaya, learned Senior Counsel for the petitioners has relied upon a judgment of Hon’ble Apex Court in the case of Asis Kumar Samanta & others Vs State of West Bengal & others reported in 2014(10) SCC 357 . 15. In the above case, relying upon the three Judges Bench decision of Supreme Court (U.D. Lama and Others Vs. Mr. B.D. Upadhyaya, learned Senior Counsel for the petitioners has relied upon a judgment of Hon’ble Apex Court in the case of Asis Kumar Samanta & others Vs State of West Bengal & others reported in 2014(10) SCC 357 . 15. In the above case, relying upon the three Judges Bench decision of Supreme Court (U.D. Lama and Others Vs. State of Sikkim & others, reported in (1997) 1 SCC 111 ), the Apex Court has come to the conclusion that the promotional exercise could not be carried out in that given case because of the interim order passed by the High Court restraining the authorities for giving promotion to the officers in West Bengal Forest Services. This stay order was only vacated on 11.12.1990. Meanwhile, for the same year, direct recruits were inducted in service. The High Court was of the opinion that since the Rules categorically provided that when the promotional exercise and direct recruits are made in the same year, the promotees will be senior to the direct recruits, yet the promotional exercise was stalled for one year due to the interim order of the Court. Hence, after the vacation of the interim order, employees were given seniority over the direct recruits, which was ultimately upheld by the Apex Court in the case of Asis Kumar Samanta and others Vs. State of West Bengal and others, reported in (2014) 10 SCC 357 . 16. There are two essential differences between the above case cited by the petitioners in their favour and the case at hand. Firstly, unlike in the case of Asis Kumar Samanta & others Vs. State of West Bengal and others, reported in (2014) 10 SCC 357 , where the criteria for promotion was seniority subject to the rejection of the unfit, in the present case which is before this Court, the promotion was to be a long drawn exercise based on merit and secondly and more importantly, whereas in the case before the Hon’ble Apex Court the contest for inter se seniority was between the direct recruits and promotees of the same year, where Rules clearly provided that if selections are to be made for the same year, the promotees will be held senior to direct recruits. In the present case, however, the contest is not between the direct recruits and promotees of the same year. In the present case, however, the contest is not between the direct recruits and promotees of the same year. As we have noticed the direct recruits are presently of the year 2003 and the promotees are of previous years and though in the case of promotees, the promotional exercise was started in the year 1999 but due to circumstances, which are wholly peculiar in the present case, their promotion was stalled. Therefore, the facts of the case before the Hon’ble Apex Court being entirely different, therefore, the benefit of that judgment cannot be granted to the petitioners. Moreover, the learned Single Judge of this Court in WPSS No. 1841 of 2011 has already held in his judgment that the petitioners are only liable to be given seniority from the date of their substantive appointment i.e. in the year 2008. Hence, no relief as sought by the petitioners can be granted to them. 17. The writ petitions fail and are hereby dismissed. Interim order, if any, is vacated.