Rajpal Singh vs State of U.P. and Others

Devi Prasad Singh, J.—The present writ petition has been preferred under Article 226 of the Constitution of India, claiming promotion from the rank of Inspector to the post of Deputy Superintendent of Police which has been-denied by the Respondents relying upon a rule which has been superseded by subsequent rule.

In brief, factual matrix of the present case is that, the Petitioner was appointed on the post of Sub-Inspector of Police on 1.3.1970. From time to time, he discharged duty as Station House Officer on various places. In the year 1982, the Selection Committee has approved for the Petitioner''s promotion on the post of Inspector. In consequence thereof, on 8.7.1983, the Petitioner joined as Inspector of Vigilance Establishment. Thereafter, he has discharged duty on the post of inspector at various places. The Petitioner''s services were confirmed on the post of Inspector on 7.8.1996. The dispute arose on 28.11.2000 when the 86 Inspectors were promoted on the post of Deputy Superintendent of Police. Having not found his name in the promotion list, the Petitioner preferred a representation dated 15.6.2001 to the Director General of Police, U.P. It has been stated by the Petitioner''s Counsel that without adjudicating the controversy raised by the Petitioner, again 83 Inspectors were promoted to the post of Deputy Superintendent of Police on 2.9.2001. Therefore, again, another representation dated 4.10.2001 was submitted by the Petitioner which also could not fetch any result, hence he has filed the writ petition in hand under Article 226 of the Constitution of India.

Mr. Amit Bose, learned Counsel appearing on behalf of the Petitioner while arguing the present writ petition submitted that the Respondents have not considered the Petitioner''s case on the ground that the selection was held on merit and the Petitioner was not found fit by the Committee concerned. He further submits that the plea taken by the Respondents that the selection for the post of Deputy Superintendent of Police by promotion is done under the U.P. Police Service Rules, 1942, in short, 1942 Rules is not sustainable. According to the Petitioner''s Counsel, in view of Article 313 of the Constitution of India, after coming into force, of the U.P. Government Servants Criterion for Recruitment by Promotion Rules, 1994, in short 1994 Rules, the 1942 Rules become superseded; rather deemed to be repealed. For convenience, Article 313 of the Constitution is reproduced as under:

Transitional provisions-Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India Service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution.

A plain reading of Article 313 of the Constitution, on the face of record indicates that the law existing in force immediately before the commencement of the Constitution shall cover the respective field until other provision is made.

The learned Counsel for the Petitioner has submitted that under Rule 17 of 1942 Rules, the criteria for promotion is merit. For convenience, Rule 17 of 1942 Rules is reproduced as under:

Recruitment by promotion-For the purposes of recruitment under Rule 5(ii) a selection based on the criterion of merit shall be made in the manner hereinafter provided from among permanent Inspectors of Police.

However, this Court''s attention has been drawn by the Petitioner''s Counsel towards Regulation 435 of the U.P. Police Regulations which provides that the criteria for promotion is seniority subject to rejection of unfit. However, Rule 4 of 1994 Rules provides that in Government service the criteria for promotion shall be seniority subject to fitness. New Rule 4 has been amended and introduced by notification dated 10.6.1998. For convenience, Rule 4 of 1994 Rules as amended, is reproduced as under:

Criterion for recruitment by promotion.-Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay scale the maximum of which is Rs. 6,700/- or above, shall be made on the basis of merit, and to rest of the posts in all services to be filled by promotion, including a post where promotion is made from a non-gazetted post to a gazetted post or from one service to another service, shall be made on the basis of seniority subject to the rejection of the unfit.

Thus, a plain reading of Rule 4 of 1994 Rules, as amended in the year 1998 indicates that the criteria for promotion of a government servant below the rank of Head of Department shall be seniority subject to fitness.

1994 Rules were notified in official gazette on 10.10.1994. Sub-rule (3) of Rule 1 provides that they shall be applicable to recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required. Rule 2 further provides that these Rules shall have effect notwithstanding anything to the contrary contained in any other service rules made by the Governor under the proviso to Article 309 of the Constitution, or orders, for the time being in force. Accordingly, 1994 Rules have got overriding effect over other rules or Government Order. It has been submitted that the promotion to the post of Deputy Superintendent of Police has been excluded from the purview of the U.P. Public Service Commission under the U.P. Public Service Commission (Limitation of Functions) Regulations, 1954.

Thus, from the combined reading of 1942 and 1994 Rules, read with U.P. Police Regulations, it appears that promotion to the post of Deputy Superintendent of Police from the post of inspector should be done in order of seniority subject to fitness.

The learned Standing Counsel has drawn the attention of this Court towards paragraphs 24 and 41 of the counter affidavit and submitted that criteria for promotion from the post of Inspector to the post of Deputy Superintendent of Police is merit and accordingly, the Petitioner''s case was considered on merit. In case it is so, then the opposite parties seem to have committed substantial illegality.

Promotion to the next higher post may be done either on merit or seniority subject to fitness or on merit-cum-seniority. Hon''ble Supreme Court in the case of B.V. Sivaiah and Others etc. Vs. K. Addankl Babu and Others etc., has held that when the criteria for promotion is seniority subject to merit or fitness, then the seniority shall play the dominant role for the purpose of promotion.

In view of the above, it appears that the Petitioner is entitled to be considered for promotion to the post of seniority subject to fitness in view of 1994 Rules (supra) as amended from time to time. The Respondents have failed to discharge duty vested in them while declaring the Petitioner unfit for the purpose of promotion to the post of Deputy Superintendent of Police.

Accordingly, the writ petition deserves to be and is hereby allowed. A writ in the nature of mandamus is issued commanding the opposite parties to consider the Petitioner''s case for promotion from the date his juniors have been promoted, in accordance with the provisions contained in the U.P. Government Servants Criterion for Recruitment by Promotion Rules, 1994, as amended from time to time. Let necessary exercise be done expeditiously, say within a period of four months from the date of service of a certified copy of this order.

Subject to above, the writ petition is allowed. No order as to costs.