Rajesh Kumar and Others vs State of U.P. and Others

Sunil Ambwani, J.—By these writ petitions, Petitioners serving as constables in civil police/armed police/P.A.C. in Uttar Pradesh, have challenged selections to the post of head constables, to the extent of 50% of the vacancies, held in pursuance of circular dated 12.10.2001 issued by U.P. Police H.Q., Allahabad, out of which 21% of the total number of 1392 vacancies were reserved for scheduled castes. Petitioners have prayed for directions, commanding the Respondents to rearrange the merit list of head constables selected for being sent for undergoing head constables training course in accordance with their seniority as visualised in paragraph 456 of U.P. Police Regulations and further for directions to complete the entries in the service records of Petitioners by including therein all the awards given to them and by completing the annual entries upto date, and thereafter to publish revised merit list.

The orders dated 18.4.2001 and 12.10.2001 issued by Police H.Q. under signatures of Inspector General of Police (Establishment), for holding "Prantiya Yogyata Pariksha, 2002", were challenged by some of the constables who appeared in the selections, on the grounds that Deputy Inspector General of Police H.Q., U.P., Allahabad, is not authorised to provide the method of selection inasmuch as the criteria for promotion, eligibility, and method can only be laid down by the State Government under the Police Act, 1861. The elimination of candidates in selection process after written examination and consideration of their service records, discriminated seniors in service, inasmuch as they have been deprived of the benefits of long period of their service, which is a relevant criteria for promotion, and that the selection board of I.T./P.T. was required to act as a body, whereas each member of the board acted individually and allocated marks to the group assigned to each member, whereby chances of the favouritism were increased. The selection was also challenged on the ground that vacancies were required to be filled up each year, and that by clubbing these vacancies for several years, those who have put in long years of service have been discriminated as against their juniors. The aforesaid grounds raised in a batch of writ petitions were considered and decided by this Court in Writ Petition No. 42286 of 2002 and other connected petitions in Kavindra Kumar and Ors. v. Deputy Inspector General of Police Moradabad Range, Moradabad, (2003) 1 ESC 235 .It was held that, selections are being held in pursuance of the Government orders dated 31st May, 1995, which is referable to Section 2 of the Police Act, 1861. The method of promotion was provided in the Government order dated 2.8.1949. These Government orders have amended/modified paragraphs 454 and 456 U.P. Police Regulations, and thus it cannot be said that the criteria for promotion has not been provided by the State Government. In selections to 50% quota for constables, seniority plays a secondary role. The submission with regard to irregularities and possible discrimination with regard to awarding marks and I.T./P.T. test, was not accepted and all the writ petitions were dismissed.

In these writ petitions the same selections have been challenged, albeit, on different grounds. Sri Ashok Khare leading the argument in these batch of writ petitions submits that paragraphs 454 and 456 of the U.P. Police Regulations provide for promotion of constables to head constables and for sending them for training. The opening part of para 456 provides that the promotion of constables of the civil police/armed police/P.A.C. to the rank of head constable will be made by seniority on the list of constables qualified for promotion. Minimum qualifying marks are prescribed, and as such all those who have qualified and have not failed have to be subsequently arranged in order of their seniority in service as constables, for being sent for training. He has relied upon a communication sent by Inspector General of Police Kanpur Zone dated 7.1.2002 which directs all the Senior Superintendent of Police Kanpur Zone/G.R.P. to prepare the list of constables selected in the ''Prantiya Yogyata Pariksha'' in accordance with their seniority for being sent for training. Sri Khare submits that there were 1392 vacancies but the result was declared only for 1246 candidates, leaving out 118 vacancies. For these 118 vacancies a second/supplementary examination was held. The Respondents had no authority to break up the vacancies for such candidates, who could not participate in the first examination, and some of the candidates who appeared in the first examinations have found their names in the select list of 118 Head Constables, which smacks arbitrariness. With regard to 100 marks reserved for service records, Petitioners submit that many service records were incomplete. Various entries have not been taken into consideration. Those who were suspended or were awarded adverse remarks, and criminal cases are pending against them have been placed in the merit list. Lastly he submits that the question of criteria for promotion has been referred by this Court to a larger Bench and until the larger Bench decides the matter in the reference made by Division Bench in Vijay Singh and Ors. v. State of U.P., and Ors. (2002) 49 ALR 811, the benefits of selection should not be given. All the other counsels appearing in the connected matters have adopted the arguments of Sri Ashok Khare.

Replying to the aforesaid submissions, Sri S. N. Srivastava, learned standing counsel submits that this Court had already held in Kavindra Kumar''s case (supra), that the criteria for promotion has been provided by Government orders dated 2nd August, 1949 and 31st May, 1995, and that modifications made from time to time do not disturb the criteria and tries to achieve the same purpose. According to him in selection to 50% posts, this Court has accepted the submission that seniority plays the secondary role. The remaining 50% posts are to be filled up by the criteria of seniority subject to rejection of unfit. Paras 454 and 456 of the Police Regulations read together show that only those constables will qualify for promotion who complete the course prescribed in the police training school and their respective seniority is to be regulated by the number of marks obtained by them in the training course. Thus, it is clear that the seniority of constables in their feeding cadre is not to be taken into consideration for these 50% quota to be filled up by selection. There are about 7,000 eligible constables for which 900 posts of head constables are available. The department has therefore provided for a fair and reasonable criteria and method for selection. A Prantiya Yogyata Pariksha was to be held in pursuance of circular dated 27.12.2000/9.1.2001 which was subsequently cancelled due to some errors. A number of constables had applied in pursuance of these circulars. Subsequently another circular was issued by Police H.Q. on 18.4.2001, with certain modifications in which apart from constables from civil police/constables from armed police and P.A.C. were also permitted to appear. The constables who had earlier moved their applications in pursuance of circular dated 27.12.2000/9.1.2001 and who had not applied afresh in pursuance of circular dated 18.4.2001, were not permitted to appear in the said examination. Aggrieved, they filed writ petitions. In one such Writ Petition No. 38469 of 2001, interim orders was passed on 29.11.2001, whereby Respondents were asked to consider feasibility of holding examination for candidates who had earlier applied, and were qualified. In pursuance of the aforesaid directions of this Court names were collected from the concerned district/units and these left over constables were allowed to undergo a process of selection by way of supplementary examination. The final result of the examination was earlier declared on 14.8.2002. Since these Petitioners in the above writ petitions were to appear in the supplementary examination under the orders of this Court, the result of only 1,247 vacancies were declared keeping 118 vacancies undeclared with intention to await the result of the supplementary examination which was held on 1.9.2002 and I.T./P.T. test and interviews were held on 4.10.2002 and 7.10.2002. Thereafter, the result according to marks obtained by these candidates appearing in supplementary examination was merged together with the original merit list dated 14.8.2002. It was found that none of the candidates who had appeared in the supplementary examination, could secure marks to include their names in merit list dated 14.8.2002. The last selected candidates in general category candidates secured 373.5 marks, scheduled tribes category 356 marks and scheduled tribe category 319 marks, and since none of the candidates who appeared in supplementary examination secured marks equal or higher, a supplementary result containing 115 names of those who had appeared in the first examination was declared in respect of total number of 1,389 vacancies. With the aforesaid change the last person who qualified in general category secured 371.5 marks whereas the last candidate belonging to scheduled caste categories secured 354 marks. The result of three candidates was not declared as it was found that they were given adverse remarks in the service record and that their matter is still under scrutiny. Sri Srivastava submits that in fact 86 candidates of general category and 29 candidates belong to reserved category, from the earlier examination were included in the merit list.

The first question to be considered is whether those who have qualified and have not failed to clear the examination should be sent for training in accordance with their seniority as constables or in accordance with the marks obtained by them in "Prantiya Yogyata Pariksha". Paras 454 and 456 of the Police Regulations are quoted as below:

The following constables will be eligible for promotion to the rank of Head Constables:

(a) Constables of the civil police who qualified before first January, 1941 in accordance with the rules then in force and who have also passed such course as the Inspector General may prescribe.

(b) Constables of the Armed Police who have already obtained a regimental drill certificate.

(c) Constables of the civil and Armed Police who have passed the prescribed course at the police training school Sitapur.

The promotion of constables of the civil and armed police to the rank of head constable will be made by seniority of the list of constables qualified for the promotion. Seniority for this purpose shall be determined:

(a) amongst those qualified at the police training school in different session by the session at which they qualified.

(b) amongst those qualified at the same session by the aggregate of marks obtained.

(c) amongst those qualified at the same session and with the same aggregate marks by length of service.

Whereas para 454 provides for eligibility for promotion to the rank of Head Constables, para 456 provides that their promotion will be made by seniority of the list of constables qualified for promotion. The method of determining seniority has been given in sub-paras (a), (b) and (c). This seniority is to be determined from amongst those who have qualified at the police training school in different sessions by the session at which they have qualified, along with those qualified in the same session by the aggregate marks obtained and among those qualified at the same session with the same aggregate marks by length of service. The criteria for promotion therefore, is the number of marks obtained in the selection. Para 456 gives emphasis upon the marks obtained by these persons at the police training school.

We are not concerned here with the final seniority list to be prepared after the completion of training but the seniority to be determined from among the successful candidate in ''Prantiya Yogyata Pariksha'', for being sent for training.

There are large number of eligible constables who appeared for limited number of vacancies on the post of head constables for selection in to 50% quota. All of them cannot be sent for training and thus by the Government orders dated 2nd August, 1949 and 31st May, 1995, a method of selection was produced. By this method the most meritorious, among eligible are selected to be sent for training. The foundation for submission that Petitioners have qualified and that the seniority list to be drawn from among those who have qualified must be based upon their seniority on the basis of length of their services, hinges the fact whether the Petitioners have qualified or have not been found suitable to be selected for being sent for training. Before deciding this question it had to be borne in mind that this 50% quota is based on selections on merit and not on the basis of seniority. This method provides an accelerated method of promotion in which merit is primary criteria as held in Kavindra Kumar''s case in which the judgment in Union of India (UOI) Vs. Mohan Lal Capoor and Others, and Sarat Kumar Dash and Others Vs. Biswajit Patnaik and Others, ,was relied upon. Where promotion is based upon merit, for inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority, plays only a secondary role. It is only when merit and suitability are roughly equal, the seniority will be determining factor.

Here in the present case all the Petitioners were eligible to appear in the test in short-listing them according to their merit for being sent for training as Head Constables. It was not a test which provided for qualifying marks but for selecting those who were the best amongst the eligible, on the basis of written examination, I.T./P.T. test and interview and which also included marks on the basis of service records and length of service. The merit therefore for the purpose of being sent for training, i.e., for promotion was governing factor and the most meritorious were placed in the order in which they secured marks in the test for training. It was more in the nature of a search to determine merit for small number of vacancies available than a qualifying examination from amongst those who were eligible. The Government orders, dated 31st May, 1995 provides that these 50% posts have to be filled as before by Department competitive examination. The select list therefore, has been prepared on the basis of the marks obtained in the test. The submission that the test is only to qualify is not correct. The communication dated 7.1.2002 sent by Inspector General of Police, Kanpur Zone, Kanpur is neither a Government order nor a policy decision by the State Government. Even otherwise it does not say that the seniority in the list has to be determined by length of service. This letter is not therefore, helpful to Petitioner.

The Respondents have discharged the burden by explaining that a supplementary test was held for 118 persons in pursuance of the order of this Court. Since none of these 118 persons secured marks higher than the last candidate selected in each of the categories, Petitioners'' were not prejudiced at all. The Respondents, therefore, rightly took up the next in the line of merit by accommodating 86 candidate from general category and 29 candidate from reserved category which brought down the qualifying marks obtained by the last selected candidate in general category from 373.5 to 371.5, and for scheduled caste category from 356 to 354. This explanation has taken care of the apprehension that 118 vacancies were arbitrarily reserved for granting favours.

Petitioners have not placed on record any individual case where the service record was not complete. They have not been able to point out any particular entry in the service records in respect of any candidate, which has not been taken into consideration. In the absence of any specific allegations with regard to the service records, which have not been taken into consideration, the Court cannot entertain and enquire into the correctness of the submission. Further the allegation that the persons who were suspended, or were having adverse entries or criminal prosecution pending against them have been placed in merit list has also not been substantiated by giving any particular names of the candidate who have been selected and any further details. In any case these are individual grievances for which the representations can be made, and if on enquiry they are found to be correct their names may be deleted provided the suspensions are not stayed and the adverse entries have not been expunged. The entire selection cannot be challenged on this ground. Petitioners have not been able to point out any particular representation which may have been made giving such adverse material, against any particular candidate.

The next argument relates to reference in Vijay Singh''s case (supra), to larger Bench. In the said reference a Division Bench has in fact questioned the correctness of the decisions of the Apex Court in Chandra Prakash Tiwari v. Shakuntla Shukla, AIR 2002 SCW 2457 .In the said case it was held by Supreme Court that, the Government can frame Rules even by executive orders. It was held that Police related Government orders were never specifically repealed by general rules and thus the U.P. Government Servants (Criterion for Recruitment by Promotion) Rules, 1994, made under Article 309 of Constitution of India will not override such special rules. The criteria for promotion laid down by Government orders made with reference to the Police Act will prevail. The Apex Court has also held that the Rules of 1994 are prospective in nature and could not have affected the selection process which commenced in 1993. The Division Bench in Vijay Singh''s case found that Chandra Prakash Tiwari case and Subhash Chandra Sharma Vs. State of U.P. and others, ,did not take into consideration, the decision of the Apex Court in Jagannath Prasad Sharma Vs. State of Uttar Pradesh and Others, and B.S. Vadera Vs. Union of India (UOI) and Others, The Division Bench however found that it is too difficult for it to finally dispose of the petition and that any contrary view will amount to judicial indiscipline as there are number of decisions of Apex Court which need to be mentioned, and thus referred the case to a larger Bench. The reference to the larger Bench is still pending.

The Division Bench in Vijay Singh''s case has pointed out the reasons for which Chandra Prakash Tiwari''s case and Subhash Chandra Sharma''s case required to be reconsidered. It has not specifically reconsidered these cases, nor has taken into consideration the different views taken by Supreme Court. Chandra Prakash Tiwari v. Shakuntla Shukla, 2002 AIR SCW 2457, still holds the field and that the criteria for promotion by selection in 50% quota continues to be regulated by Government orders, made in reference to the Police Act of 1981.

One last argument also requires to be considered. It was submitted that there is absence of criteria in rules which are to be made by the State Government, such criteria must be supplied by the State Government. Sri Khare relied upon the judgment of Apex Court in Dr. Krushna Chandra Sahu and others Vs. State of Orissa and others, ,in submitting that if the statutory rules have not been made, it is open to the appropriate Government to issue executive instructions. However, if the rules are framed and are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions. In the said cases Rule 3 of the Orissa Homeopathy Medical Teaching Services (Methods of Recruitment and Conditions of Services) Rules, 1980, were silent as to the guidelines on the basis of which suitability of the candidate for appointment to the post of junior teachers was to be adjudged. The Government did not issue any order or administrative instructions to fill up the omission. In the present case such situation does not arise. Paras 454 and 456 of the U.P. Police Regulations read with Government orders dated 2nd August, 1949 and 31st May, 1995 provide for criteria referable to Section 2 of the Police Act. Reading paragraphs 454 and 456 of Police Regulations and the aforesaid Government orders together, I find that the test is to be held from amongst the eligible constables and that their seniority for sending them for training is to be determined on the basis of the number of marks secured by them in the selections. Their final seniority as Head Constables has to be regulated by the second part of Para 456. The criteria for promotion and the method can be easily found from the aforesaid provisions and thus it cannot be said that the rules are silent.

For the aforesaid reasons, all the writ petitions are dismissed. There shall be no order as to costs.