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Judgment
This appeal questions the legality of the judgment dated 1.11.2006 delivered by the learned single Judge in a matter related to, what has been described by the Counsel for the respondents - petitioners to be an act of super accelerated promotion in respect of ministerial cadre posts of the police department that came into existence under the Government Order dated 6.9.1996. The impugned appointments on the post of Constables that was advertised, transformed into promotion of such Constables to the post of Assistant Sub Inspectors on the very next day and then within a period of 4 days they were again promoted as Sub Inspectors.
This grievance has been described by the learned single Judge in paragraph No. 4 of the impugned judgment.
There was a drive in the year 2002-03 to fill up backlog vacancies of Scheduled Castes and Scheduled Tribes. In order to achieve the said target, an advertisement were issued for appointment on the post of Constable (Ministerial) which is a cadre post under the Government Order dated 6.9.1966. 35 persons were selected as Ministerial Constables and appointed on 22.7.2003 and on the very next day they were promoted as Assistant Sub Inspectors of Police in the same Ministerial Cadre. After a lapse of 3 days, 34 candidates, who had been promoted as ASIs on 23.7.2003, were against promoted as Sub Inspector (Ministerial) vide order dated 26.7.2003. Thus, a candidate, who entered as a Constable (Ministerial) on 27.7.2003 by this accelerated promotion, became an Assistant Sub Inspector on the next day and within 3 days thereafter he was promoted as Sub Inspector of Police. The facts aforesaid remain undisputed.
It is these promotions and appointments to the promotional posts that came to be challenged in the writ petition.
A Counter-Affidavit was filed in the writ petition bringing on record the Government Order dated 24.5.2003 which provided that in order to achieve the target of filling up of such backlog vacancies to the promotional posts, this accelerated promotion is to be granted, for which the period of probation of 2 years on the feeding posts of Ministerial Constables would stand relaxed. Thus, the State Government consciously took a decision to waive the period of probation that was to be spent by a Constable (Ministerial) and get confirmation on the said post. In the absence of any such relaxation, the promotion would not have been possible.
When this fact came to the notice of the petitioners, they filed an amendment application challenging the said Government Order dated 24.5.2003 filed on behalf of the State justifying the said relaxation.
Learned single Judge, upon a challenge being raised, passed an interim order on 24.11.2004 which is extracted here under:-
Hon''ble Devi Prasad Singh, J.
Heard learned Counsel for the parties.
The submission of the learned Counsel for the petitioner is that respondent No. 4 to 33 were appointed on the post of Constable on 22.7.2003. On the very next date on 23 July 2003, respondent No. 4 to 33 were promoted on the post of Assistant Sub Inspector of Police. The submission of the learned counsel for the petitioner is that these promotions were done in violation of Regulation 456, 458 and 459 of the U.P. Police Regulations. I also failed to understand how and under what circumstances government can promote a persons to higher post without having any experience to his substantive post. These promotions seem to have been done for extraneous reasons and were done against the settled law and principle of service, Jurisprudence, through the Government has got right to promote a person of reserved category candidates within their respective quota and under the reservation policy but that should done in accordance to rules and experience of the substantive post. Any action or government order which provides a provision for promotion to higher post within 24 hours or within short span of time without experience to their substantive post prima-facie seems to be an arbitrary act and inference may be drawn that such order has been passed for extraneous reasons. It may also amount to direct recruitment on higher post in violation of rules. A Constable cannot gain experience skill and knowledge of Sub Inspector within 24 hours. The submission of the learned Standing Counsel that the Government had got power to fill up the vacancies of reserved quota as done in the present case seems to be misconceived. Petitioner''s Counsel submits that one such Writ Petition similar to the present writ petition has been admitted by this court i.e. W.P. No. 6530/SS/2004 and interim order has been passed. Under the above facts and circumstances, the present writ petition deserves for admission and interim relief.
Admit.
Issue notice to respondent No. 4 to 33 returnable at an early date.
Six weeks time is allowed to file counter-affidavit, two weeks for rejoinder affidavit. List thereafter along with W.P. No. 6530/SS/2004. Till further order of this Court, consequential promotion order in pursuance to appointment letter dated 22.7.2003 (Annexure-3) shall remain stayed. Till further order of this Court, respondent Nos. 4 to 33 shall continue to discharge duty on the post of constable till they are not promoted on the next higher post in accordance to Police Regulation or other rules time being in force.
Dt. 24.11.2004"
The said interim order of the learned single Judge was challenged by the respondents in Special Appeal No. 70 (S/B) of 2005 but the order was not interfered with and the appeal was disposed of with a direction to the parties to contest the matter before the learned single Judge by judgment dated 7.2.2005 extracted here under:-
Hon''ble Jagdish Bhalla, J.
Hon''ble M.A. Khan, J.
This special appeal arises out of an interim order dated 24.11.2004 passed in Writ Petition No. 24.11.2004.
The appellants have a grievance to the effect that the respondent No. 1 - petitioner is neither aggrieved person nor filed Public Interest Litigation petition. The appellants were working as Assistant Sub Inspectors but by the order dated 24.11.2014 Hon''ble Single Judge has restrained the appellants to work on the above post. During the course of argument it came before this Court that the appellants were appointed as Constables but on the following date they were asked to work in the officiating capacity on the post of Assistant Sub Inspectors. In case at this stage, if we would make any scrutiny in the matter pending before Hon''ble Single Judge, it may cause prejudice to either of the parties and also the order of Hon''ble Singh Judge.
The interest of justice will suffice, if the appellants may file counter-affidavit along with stay vacation application before the Hon''ble Single Judge. If any such application is made, the same be decided expeditiously by the Hon''ble Single Judge in accordance with law.
With the above observations and directions, the petition is disposed of finally.
Dt. 7.2.2005"
Thereafter the impugned judgment was delivered holding that in view of the provisions of the Police Act, 1861, read with the U.P. Police Regulations, the period of probation could not have been relaxed to the appointees as Constable (Ministerial) and they could not have been promoted without their confirmation as per the promotion rules which is a period of 2 years. The promotion as ASI and then the promotion as Sub Inspector were all quashed as they were carried out under the garb of filling up of backlog vacancies by making accelerated promotions in violation of the constitutional provisions of Articles 14 and 16.
The learned single Judge also quashed the Government Order dated 24.5.2003 whereby such relaxation in the probation period had been extended even prior to the advertisement in order to accommodate and fill up all backlog vacancies.
The recipients of this benefit, who were respondents in the writ petition, have, therefore, preferred this appeal questioning the correctness of the judgment of the learned single Judge. Sri C.B. Pandey, learned Counsel for the appellants, contends that the conclusion of the learned single Judge that U.P. Police Regulations will be deemed to apply to such promotions is contrary to the Government Order dated 24.5.2003. Sri Pandey submits that the Government Order dated 6.9.1966 clearly provides for framing of suitable regulations separately for the cadre of ministerial staff, but no separate regulations were framed and, therefore, the U.P. Police Regulations which were in existence even then could not be deemed to have applied as there was no express intention to apply the same under the Government Order dated 6.9.1966.
He further submits that the period of probation as provided under Regulation 541 of the U.P. Police Regulations were, therefore, not attracted at all and the learned single Judge has committed an error by assuming that such regulations would apply.
Sri C.B. Pandey, therefore, contends that such an erroneous assumption has led to a wrong conclusion and as a matter of fact in the ministerial cadre created under the 1966 Government order, such promotions have always been done and the respondents - writ petitioners were also beneficiary of such exercise which fact has been stated in the supplementary-counter-affidavit filed before the learned single Judge.
Sri H.S. Jain, on the other hand, contends that the learned single Judge has repelled this contention by clearly referring to the provisions of Police Act, 1861, and any concession granted by the government to fill up backlog vacancies by this method was unconstitutional. He submits that this is unknown to the realm of service jurisdiction that persons appointed as constables, on the very next day are promoted to a higher post which requires possession not only of experience but also other qualifications as well.
Sri Chaudhary Shatrughan for the State has supported the learned Counsel for the appellants and has urged that the State had carried out the letter and intent of the Government Order for filling up backlog vacancies which is a constitutional obligation and, therefore, the appellants were promoted validly and in accordance with the relevant Government Orders extending them the benefit of reservation meant for Schedule Caste and Schedule Tribes so as to fill up the backlog vacancies. In essence, the State has supported the appellants.
In rejoinder Sri Pandey has submitted that in the absence of any rule debarring the State from relaxing the probation period and in the absence of any law prohibiting such accelerated promotion, the learned single Judge was not right in quashing the promotions on general principles. He submits that even assuming that the police force is an establishment under the Police Act, 1861, yet it is exclusively under the Government Order of 1966 and no other regulation can be applied to dislodge the promotions of the appellants. He, therefore, contends that the appeal deserves to be allowed and the judgment of the learned single Judge deserves to be set aside.
Having considered the aforesaid submissions, we find that section 2 of the Police Act, 1861, runs as follows:-
"2. Constitution of force.--The entire police establishment under a State Government shall for the purposes of this Act, be deemed to be one police force, and shall be formally enrolled, and shall consist of such number of officers and men, and shall be constituted in such manner, as shall from time to time be ordered by the State Government.
Subject to the provisions of this Act the pay and all other condition of service of members of the subordinate ranks of police force shall be such as may be determined by the State Government."
The ministerial cadre was created under the Government Order dated 6.9.1966 which is extracted here under:-
"No. 7252/VIII-A-94/66
From
Sri S. Pandey U.P. Sachiv, Uttar Pradesh Shasan.
To
The Inspector General of Police, Uttar Pradesh, Allahabad/Lucknow.
HOME DEPARTMENT (POLICE.....) Dated : Lucknow, Sept. 6, 1996
SUBJECT : RECRUITMENT OF THE MINISTERIAL STAFF OF POLICE HEADQUARTERS POLICE ORGANISATION AND ITS UNITS UNDER POLICE ACT AND INTRODUCTION OF NEW SCALES OF PAY.
------------
Sir,
I am directed to say that Govt. have given due consideration to your proposal submitted some time ago to the effect that the Ministerial Staff of Police Organization should be enrolled under the Police Act and Police Ranks should be given to them and to communicate the following orders of the Governor in this respect:-
1) A new cadre with the following Police (Ministerial) ranks and scales of pay as also shown in Col. 5 of the annexure shall be constituted in the Police Force with immediate effect to be governed by Police Act, and suitable Regulations in this behalf shall be made, if necessary:-
2) The police (Ministerial) ranks and scales of pay assigned to the existing various cadres in the revised scales of pay will be as given in Col. 4 and 5 respectively of the Annexure.
3) the entire ministerial staff of Police Headquarters Police organization and its units etc. will henceforth be recruited to this new cadre and shall be subject to the various rules, regulations and orders made under the Police Act in respect of restrictions liabilities, penalties, privileges and facilities:
4) the revised scales of pay mentioned in Co. 5 of the annexure will be admissible only to those of the present incumbents who agree in writing to be governed by the Police Act and the Regulations thereunder, and come under the new cadre.
5) the revised scales of pay will be applicable with effect from the date of issue of these orders or the date of option by the present incumbents.
6) the pay in the revised scales as indicated in the Annexure, will be fixed in terms of Para 4 of the Audit Instructions regarding F.R. 22 of F.H.B., Vol. II, Part II-IV read with F.R. 27 ibid in relation to the grant of a certain minimum pay as shown in the remarks column of the Annexure to those existing incumbents who came over to these scales, loss emoluments where it occurs on fixation of pay immediately, should be made good by the grant of personal pay to be absorbed in future increments.
7) the period for exercising the option by the present incumbents will be 90 days which will count from the date of issue of these orders.
8) Dearness allowance will be allowed at the new rates as sanctioned on G.O. No. G-1-1507/X-139-65, dated February 28, 1966, with such modifications as may be made from time to time.
There may be some employees who have not yet opted for the new scales of pay introduced on the recommendations of the pay Nationalization Committee as shown in col. 3 of the Annexure. In their case, the following two situations can arise and their pay in the revised scales in col. 5 of the Annexure will be fixed in accordance with the procedure detailed below:-
These employees may went to opt for the revised scales mentioned in Co. 5 of the Annexure without opting for the new scales mentioned in Col. 3. If so, their pay in the revised scale will be fixed in the manner indicated in sub-para (6) of para 1 above.
OR
These employees may want to opt first for the new scale mentioned in column 3 of the Annexure provided they are entitled to exercise that option, and then for the revised scales in col. 5. In their case the pay shall first be fixed accordance with the principles mentioned in vitt vibhag G.O. No. G-1-263/X-143-65, dated Feb. 28, 1966 and then in the revised scales in accordance with sub-para (6) of Para 1 above.
I am to add that no special pay will be admissible on any of these posts in the revised scales of pay in the new cadre.
Since there is no provision for the purpose in the budget for the current Financial year and the expenditure is of an emergent nature it has been sanctioned by taking an advance of Rs. 7 Lakhs (Rupees seven Lakhs) from the State Contingency Fund pending authorization by the Legislature through the Supplementary Appropriation Act.
The cost on this account will ultimately be debited to relevant primary units and sub-head under the head, "23-Police-Non-Plan" in the budget for the current financial year.
These orders are being issued with the concurrence of Vitt Vibhag.
Yours faithfully Sd/- S. PANDE, UP SACHIV
.......... No. 7252(I)/VIII-of date.
Copy, together with a copy of the Annexure, forwarded, for information, to the:-
Accountant General, U.P., Allahabad.
Pay Fixation Cell, Office of the A.G., U.P., Allahabad.
Four spare copies are also enclosed.
Finance (E-2), Finance (G-1)/Border Development(B)/Civil Defence/Home (Police-E) Deptt., and Pay Committee Section.
BY ORDER Sd/- S. PANDEY, UP SACHIV TRUE COPY
Sd/- Head Clerk, PHQ, Allahabad-1"
A perusal of the same indicates the creation of a separate cadre of ministerial staff to be enrolled under the Police Act. Thus the cadre is within the provisions of the Police Act itself. Clause 1 of the said Government Order clearly recites that the cadre so created would be a police force to be governed by the Police Act. It then goes to state that suitable regulations in this behalf shall be made, if necessary. Clause 3 of the said Government Order provides that recruitment to this new cadre shall be subject to various rules and regulations and orders made under the Police Act. Sri Pandey contends that the learned single Judge erred in omitting to read the later part of clause 3 which states that it is in respect of restrictions, liabilities, penalties and facilities only. The submission of the learned Counsel for the appellants is that clause 3 cannot be read in relation to terms and conditions of appointment as provided under the regulations particularly Regulation 541 which prescribes probation. What he intends to say is that there is no restriction and the relaxation to the probation period as extended on 24.5.2003 would not be hit by any terms of the said Government Order dated 6.9.1966.
As noted above, the Government Order itself prescribes that it will be a police force to be governed by the Police Act. Section 2 clearly provides for constitution of a force. So far as police regulations are concerned, they have been framed in exercise of powers of the Police Act itself. Thus, the cadre of ministerial Constables and Sub Inspectors (Ministerial) are a cadre which are governed by the Police Act and are an establishment of the Police Force itself. Their duties and responsibilities may be different as urged by Sri Pandey but the facet of recruitment as per clause 3 of the Government Order is subject to various rules and regulations in respect of restrictions, liabilities, penalties, privileges and facilities. To our mind, restrictions in respect of recruitment also includes the modality of confirmation namely confirmation of an employee shall not take place unless he completes the period of probation. This by itself is a restriction and therefore the ministerial cadre cannot claim immunity from the Police Regulations.
The term regulations contains within its ambit both restrictions and liabilities in order to prevent any departure from the rule or to negate any deviation from the statutory requirement. If the department has taken recourse to any illegal action in the past, the same cannot be a ground to violate a mandatory provision.
What is surprising is the manner of accelerated promotion which has been extensively noted by the learned single Judge. In order to avoid any complication, the Government Order dated 24.5.2003 was introduced to completely waive the period of probation. In this regard, the previous and past practice is reflected in the Circular of the U.P. Police Headquarters dated 8.5.2002 where also the fact of non-existence of any separate Government Order regulating such appointment has been indicated which also notes that a minimum of 2 years period of probation on a post before promotion has also to be adhered to. It appears that in order to over come this provision that the Government Order dated 24.5.2003 was brought into force. The said exercise ex-facie is arbitrary and violates Article 14 of the Constitution of India.
Having considered the aforesaid submissions raised, we cannot find any justification for skipping over the probation period to be spent on a post before one is promoted. For all the reasons that have been given by the learned single Judge and the observations herein above, any such attempt made to over reach efficiency or any rule to provide promotions in the manner in which it was done, therefore, cannot be lawfully sustained. We, accordingly, hold that the judgment of the learned single Judge does not suffer from any infirmity for the reasons given therein as well as for the reasons stated herein above.
The Special Appeal lacks merits and is, accordingly, dismissed.