Dinesh Verma & Others vs State Of Uttarakhand & Others

Sharad Kumar Sharma, J

The petitioners in the present writ petition, who are five in numbers have raised their grievances being aggrieved as against the method of

recruitment, which has been alleged to be resorted to by the respondent No.2, to the writ petition, for the purposes of conducting a process of selection

by way of promotion to the post of Sub Inspectors and Inspectors (Civil Police/ Intelligence), in pursuance to the advertisement dated 3rd January,

2022, as issued by respondent No.2 i.e. UK Subordinate Selection Commission.

The brief facts of the case are that the petitioners, principal grievance, is as against the mode of recruitment, which has been adopted by the

respondents by conducting the written examination of 100 marks only, for the process of promotion by selection, which according to the petitioners, it

runs in contradiction to the prescribed procedure of process of selection, as it has been prescribed under the Uttarakhand Police Sub Inspector and

Inspectors (Civil Police/ Intelligence) Service Rules 2018, as notified on 31st July 2018.

The contention of the petitioners, are that the petitioners, who are belonging to the different categories of the reserved category candidate, as well

as general category candidate, who are the aspirants, who fulfilled all the eligibility criteria of qualification, as well as the other eligibility provided for

the purposes of enabling them to take their examination, for promotion on the post of Inspectors and Sub Inspectors, as contemplated to be undertaken

by the respondents in pursuance to the advertisement dated 3rd January 2022.

The petitioners before this Court contended that under the Uttarakhand Police Act 2007, the State while exercising its power under section 87 of

the Uttarakhand Police Act 2007, had promulgated the Rules of 2018, by notifying the same in the Official Gazette of 31st July 2018, and as per the

process of recruitment contemplated, therein, it had provided that 34% post of the total cadre strength, is to be filled by way of the direct recruitment,

and the procedure of direct recruitment, according to the petitioners, was provided under Rule 14 of the Rules of 2018, and particularly, the method,

which the petitioners had made a reference to, to be made applicable post of direct recruitment is according to them is provided under sub-rule (4) of

Rule 14, of the Rules of 2018, which is extracted hereunder:-

“(4) Written Exam

All the candidates declared successful in physical fitness test under sub-rule (3) shall have to undergo a written test procedure for which is given in

appendix- 4.â€​

If sub-rule (4) of Rule 14 of the Rules of 2018, are taken into consideration, it provided the procedure/method for conducting the written

examination, and the procedure, which has been provided, therein, to be followed, has been contained under Appendix 4 to the Rules of 2018, which is

extracted hereunder:-

Appendix -4

(See Rule 14 (4)]

Written Exam for Direct recruitment- The written test shall be of 300 marks and shall be of objective type. The details of the test are as under:-

(1) General Hindi (High School 100 Marks (Time 01

Level) hour, each questions

having 01 mark

(2) General Knowledge and 200 marks (Time 02

mental aptitude test hours)

(a) General Intelligence and 50 questions (Each

rationality test question 01 mark)

(b) General awareness 75 questions (Each

question 01 mark)

(c) Mathematical Efficiency 75 questions (Each

(High School Level) question 01 mark)

(3) For each wrong answer a negative marking of ¼ marks shall be given. The answer sheet/OMR Sheet shall be in triplicate, alongwith a carbon

copy. The original copy of the OMR Sheet may be kept by the agency conducting the written exam. Concerning agency also keep one carbon copy

with Photostat copy in their records. One carbon copy of the OMR Sheet may be kept by the candidate. After the written test, the answer key of the

same shall be published on the website of Uttarakhand Police, i.e. uttarakhandpolice.uk.gov.in.

(4) In the written test the candidate of unreserved category and other backward classes shall have to secure 50% marks and those of schedule

caste/schedule tribes shall have to secure 40% marks and thereafter only they shall be included in the merit list.â€​

In fact, the principle Rules of 2018, in its Appendix-4, had contemplated, that a total written examination of 300 marks is to be conducted, which has

been further bifurcated into the classifications provided, therein, in the Appendix No.4, wherein, 100 marks of written examination was to be

conducted for the General Hindi, and General Knowledge of 200 marks, which were further divided into 50 questions for General Intelligence and

rationality test, 75 questions for General Awareness, 75 question of Mathematical Efficiency i.e totaling to 200 marks, which included the subjects

related to the General knowledge and Mental Aptitude Test also.

The contention of the petitioners in the writ petition were that if the process of selection, which has been resorted to, by the respondents in

pursuance to the advertisement dated 3rd January 2022, while inviting the applications from the probable candidates to participate in the written

examination, in fact, it is contrary to the Rules of 2018, because as per the stipulation of the advertisement dated 3rd January 2022, it was only a

written examination of 100 marks, which was supposed to be conducted for filling up the 65 vacancies of the Sub Inspectors Civil Police, and Sub

Inspector Intelligence etc., as given therein.

The petitioners contended that the advertisement issued by the respondent No.2, since it had modulated the method which has been otherwise

statutorily contemplated under Appendix 5, to the Rules of 2018, the written examination proposed to be conducted at the behest of the respondent

No.2, couldn’t have been curtailed to be a written examination of only 100 marks, as provided, therein, in the advertisement, because that has an

adverse effect of being contrary to the Rules of 2018, and apart from it, that it further reduces the probability of their selection as against the post,

which has been advertised, and particularly, the reference has been made to Clause VII Sub clause (IX), which provided an Objective Type Test of 2

hours for 100 marks, in relation to the multiple choice questions, for the different subjects, which has been detailed in the written examination, the

subjects which would be covered by it was also detailed therein i.e. Hindi, General Knowledge, General Studies.

Questioning the said change in the procedure for recruitment, the petitioners have prayed that the condition No.IX, of the advertisement dated 3rd

January 2022 itself to be declared as to be bad in the eyes of law, being contrary to the procedure of conduct of the examination which has been

provided under the Rules of 2018. If Clause IX of the advertisement is taken into consideration, apparently it seems to be in violation to Rule 14 (4), to

be read with Appendix 5, of the Rules of 2018.

The writ petition was earlier argued on couple of occasions, and lastly, the case as attempted to be argued by the learned counsel for the

Commission, was from the prospective, that the argument as extended by the learned counsel for the petitioners may not be sustainable, that the Rules

of 2018, mandated the written examination of 300 marks, that had has to be mandately adhered to under the Rules of 2018, which was framed under

sub-section (1) of section 87 of the Uttarakhand Police Act 2007.

The argument of the learned counsel for the petitioners is that once the Statute, and the Rules framed, thereunder, itself prescribes a method of

recruitment, which has to be resorted to, that couldn’t have been altered, on the basis of the decision, which was said to have been taken by the

Selecting Body, by altering the process of recruitment, which as per the petitioners is in contravention to the Rules, particularly, that as contained

under Section 14(4) of the Rules.

In response to it, it had been argued by the learned counsel for the respondent/Commission; that the State of Uttarakhand, itself had framed an

Act, by notifying it in the Official Gazette called as “Uttarakhand Subordinate Service Selection Commission Act of 2014â€, wherein,

according to the arguments which had been extended by the learned counsel for the Commission, he had submitted that as per the powers, which has

been vested with the Commission contemplated under Chapter 3, of the Act, it had rather provided an inbuilt mechanism, and as the power has been

vested with the Commission itself, to prepare the guidelines, or the matters relating to the “method†of recruitment, and hence what has been

attempted to be argued by the learned counsel for the respondent/Commission, is that the amended Rules of 2018, which is a subordinate legislation,

though framed under section 87 of the Uttarakhand Police Act 2007, will not have precedence over the provisions contained under Section 15 of the

Act of 2014, called as Uttarakhand Act No.20 Of 2014, and hence it was argued by the learned counsel for the Commission/respondent, that the

parameters of selection provided in the advertisement of holding 100% written examination only as, per Clause IX of the advertisement, which is

extracted hereunder, was well within the ambit of exercise of powers by the Commission, of laying the method of selection:-

“(ix) -

100 (Objective Type with Multiple Choice) 02 ,

, , ( ) â€

It has been argued by the Commission that this method adopted, it goes in consonance to the powers vested with the Commission under sub-clause

(a) of sub-section (1) of Section 15, wherein, it is contended by the learned counsel for the respondent/ Commission, that the Commission did had the

power vested with it by the Statute to prepare the “guidelinesâ€​ and the matters relating to the “methodâ€​ of the recruitment. In fact, what

has been argued is that if Rule 14 (4) of the Rules of 2018, is to be read with its Appendix 5, is taken into consideration, it constitutes to be the part of

the Rules, which is a subordinate legislation, and it will not have an overriding effect over the provisions of the principal Act, where the choice of the

method of recruitment and the powers of laying down the guidelines, has been exclusively left within the domain of the Commission to lay down the

guidelines and the method, to regulate the method of selection. The relevant provisions of Section 15 of the Act of 2014 is extracted hereunder:-

CHAPTER â€" III

POWERS AND DUTIES OF THE COMMISSION

AND ALLOCATION OF BUSINESS

Powers and duties of15. (1) The Commission shall have the following

the Commission powers and duties, namely-

(a) to prepare guidelines on matters relating to

method of recruitment.

(b) to conducted examinations, hold interview and

make selection of candidates;

In fact, what has been harped upon by the learned counsel for the Commission is that providing of a written test of 300 marks under the Rules of

2018, it is only a process of recruitment, and it is not having any relation with regards to the eligibility in the qualification or the change in the eligibility

criterion of the qualification, which has been provided under the Rules, but only thing is that its only the process or the method, which has been laid

down under sub-rule (4) of Rule 14 to be read with Appendix 5, and once it does not have any bearing in changing the eligibility criteria, the Rules of

2018, will not have precedence over the powers granted to the Selecting Body i.e. the Commission, for laying down the “guidelines†and the

matters relating to the “method of recruitment†provided under sub-clause (a) of sub-section (1) of Section 15 of the Act, because according to

the respondent/Commission, even the 100 marks written exams, even still covers all the field of required aptitude from the eligible candidates as per

Rules of 2014 itself, hence there is no anomaly.

The learned counsel for the respondent No. 2/Commission, in order to substantiate his argument has made a reference to the UP General Clauses

Act, which independently defines the Act and under the UP General Clauses Act, the act has been defined as to be a mandate of Legislature for

doing or undertaking a process, which commensurates to the existing law, and the powers vested under the Act will not or will ever be overridden by

the Rules or the Regulations framed under the Act, which has been defined under sub-rule (37) of Rule 4 of the UP General Clauses Act 1904, where

the Rules means the Rules made in the exercise of power conferred by an enactment and shall include the Regulation too which are made as a Rule

under the enactment, thus the Rules or the Regulations framed under the Act, takes the shape of subordinate legislation, and will not override the

provisions stipulated under the Act.

If Section 87 of the Uttarakhand Police Act, is taken into consideration under which the Rules of 2018, has been framed, it only confers the

powers upon the Competent Authority having legislative power to formulate the Rules, which falls to be within the ambit of definition provided under

sub-rule (37) of the Rule 4 of the UP General Clauses Act 1904, and the Rules framed under Section 87 of the Uttarakhand Police Act, will always

constitutes as to be a subordinate legislation, governing or regulating a procedure or the method of recruitment as against the posts for which the Rules

have been framed, which in the instant case, happens to be the posts for the Sub Inspectors (Civil Police) as well as Inspectors (Police Intelligence

Department).

Having heard the learned Counsels for the parties, if a reference is made to the Gazette Notification No.10/XXXVI (3)/2021/78(1)/2020, which

was notified in the Official Gazette on 8th January 2021, is taken into consideration, in fact by virtue of the said Notification, as issued by the State, it

dealt with only laying down the procedure for the recruitment to be made on the posts, which falls within the ambit of promotion or direct recruitment,

on a “Group C†posts, which is outside the purview of the Public Service Commission, whereby Section 3 of the Act No.20 of 2014 has been

repealed limited to Section 3 ( ).

Learned counsel for the respondent had submitted that the Act No.20 of 2014, where it provides a Subordinate Service Selection Commission,

with an extraordinary power for conducting the process of recruitment in relation to the “Group C†posts which are lying outside the purview of

the Public Service Commission, and it gives ample of powers to the Selection Commission. In that eventuality, the specified modalities provided under

the Rules framed under the proviso to Article 309 of the Constitution of India, as applicable to the “Group C†posts, which are to be filled in by

way of the promotion on the post lying outside the purview of the Public Service Commission, they would be in fact in the instant case would be

governed by the Act No. 20 of 2014, and the provisions provided under Section 15 of the said Act, where it gives ample of power to the Commission,

to modulate the “method of recruitmentâ€. In that eventuality, the conditions imposed under Clause IX of the advertisement dated 3rd January

2022, providing for a written examination limited for 100 marks only for the purposes of conducting the promotional exercise for Police Sub Inspectors

and the Inspectors (Civil Police and Intelligence Rules) do not suffer from any apparent legal vices, because the Selection Commission was well

within the ambit of exercise of its power, which has been provided under Section 15 of the Act of 2014.

The argument of the learned counsel for the Selection Commission is that any power, which is exercised by the Commission and which falls within

the powers vested in it under the Act of 2014, and particularly, when it does not changes the eligibility criteria or it disturbs the eligibility criteria

provided under the Rules of 2018, framed under Section 87 of the Uttarakhand Police Act for testing the capabilities of the probable candidates for

selection, the Commission was yet within its power to incorporate Clause IX in the advertisement dated 3rd January 2022, for providing for holding a

written examination of 100 marks only, in place of 300 marks, as provided under the Appendix 5 of Rules of 2014, and this modulation made in the

process of recruitment is not arbitrary, for the reason being, that it has been uniformly made applicable to all the probable candidates, who would be

the prospective aspirants for applying under the advertisement dated 3rd January 2022, and since once, it is confined only to, changing only the method

of recruitment, and not the eligibility of the candidate, Clause IX of the advertisement is not discriminatory or violative of Article 14 and 16 of the

Constitution of India, to call for any interference in the exercise of powers under Article 226 of the Constitution of India. Because the said method

adopted has a blend of legislative competence, and is not arbitrary as the same has been uniformly made applicable on all the candidates, hence

doesn’t deceive the purpose and intention of Article 14 and 16 of the Constitution of India.

This Court on a comparative scrutiny of the interplay of the Uttarakhand Police Act 2007, and the Rules framed under Section 87 of the Act, on

its comparative reading with the Act of 2014, governing the exercise of powers by the Selecting Body i.e. Subordinate Service Selection Commission,

this Court is of the view that under the definition clause of the UP General Clauses Act, where there is a specific classification, which has been made

about the legislative impact of the Act, the Rules, and the Regulations, which are framed under an enactment, it’s obvious that the procedure

which are prescribed under the provisions of the Act, which happens to be the principal enactment, will have a binding and overriding effect, and will

have a precedence over the procedure prescribed under the Rules, which takes the shape of a subordinate legislation, and that too particularly it has

been uniformly made applicable over all the candidates participating in the selection process.

Even in accordance with the Rule 24 of the Rules of 2018, which is extracted hereunder:-

Relaxation 24. Where the State government is satisfied that the from the

from the operation of any rule regulating the conditions of conditions of service

conditions of persons appointed to the service causes service undue hardship

of service in any particular case, it may notwithstanding anything contained in

the rules applicable to the case, by order dispense with or  relax the

requirements of that rule to such extent and subject to such conditions

as it may consider necessary for dealing with the Case in a just and

equitable manner.

Rule 24 of the Rules of 2018, provides an ample of power to the Authorities of the State, the method of selection, which is to be resorted to, and

the scope of the making alterations in the process of selection, is self permitted to be carried in accordance with the Rules of 2018. In that view of the

matter, in accordance with the aforesaid Rules, which is extracted above, and the action, which has been taken by the respondents of modifying the

process of selection in the exercise of its power conferred under the Act, cannot be said to be illegal in any manner whatsoever nor it happens to be

the discriminatory because the relaxation powers has been vested with the Competent Authority, including the State Government in order to fulfill the

objective of the Rules of 2018.

This Court is of the view, that the argument of the learned counsel for the petitioners, could have been sustained, if the exercise of powers by

respondent No.2, would had have been established to be outside the ambit and scope of exercise of powers under Section 15 of the Act. Particularly it

would have been having a bearing of making any changes in the eligibility of a candidate, who is supposed to participate in the process of selection,

and since by changing the process or the method, of providing for a written examination of 100 marks each, which according to the Clause IX of the

advertisement, it almost governs all the fields of subjects covered under Appendix 5, of the Rules of 2018, it cannot be contended satisfactorily to have

been established by the petitioners, that it was in violation of Article 14 and 16 of the Constitution of India, because it is not a deprivation of a right to

participate or a right of equality in considering the candidature for appointment to be made by way of the promotion, and if the implications of Clause

IX of the advertisement, is only limited to modifying the “process or method of recruitmentâ€, which would be well within the ambit of exercise of

powers by respondent No.2, and hence the contention of the petitioners, that it would be curtailing their scope of consideration by confining the written

examination to 100 marks only, in place of 300 marks, as provided under the Appendix 5, to the Rules of 2018, is not acceptable for the reason being

that it is not the petitioners who have to isolatedly take the examination for 100 marks for written exams, as proposed by the advertisement, and once

it has been uniformly made applicable without having any bearing on the qualification and eligibility criterion required, it is not in violation of Article 14

and 16 of the Constitution of India, and thus, no arbitrariness could be attached to the process of selection being carried by Respondent No.2, in

pursuance to the advertisement dated 3rd January, 2022. Hence, the writ petition lacks merit, and the same is accordingly dismissed.