# 1601 C.P. Sudeep Kumar &Ors v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1408
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-09-04
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/1601-c-p-sudeep-kumar-ors-v-state-of-u-p-and-ors-42716
- **Pages:** 5

## Headnote

C.S.C.

U.P. Police Regulation-Regulation 398-
petitioners appointed as police constable in
Arm Police etc-in view of amended G.O.-
17.09.2002
denied
the
salary-which
3 All] 1601 C.P. Sudeep Kumar & Ors. State of U.P. and Ors.
1409
provides stipend during training periodheld-once appointed and became member
of police-entitled full pay and allowances
rather to meagre amount of stipendoffending
provision
of
amended
G.O.
17.09.02-struck down-petition allowed.

Held: Para-16 & 18

## Text

1408 INDIAN LAW REPORTS ALLAHABAD SERIES
work on the basis of the interim orders
passed by this Court or any other Court, shall
not be denied the benefit of service during
the said period."

3. Learned counsel for the petitioners
submitted that since the petitioners worked
after the age of 62 years on the basis of the
interim order thus are entitled for the salary
for the period during which they have
worked in view of the aforesaid directions of
the Apex Court.

4.

Learned
Standing
Counsel
submitted that in view of the direction of the
Apex Court, the petitioners are entitled for
the salary for the period during which they
worked in view of the interim order of the
Apex Court but their post retiral benefits will
be calculated on the basis of the salary drawn
by the petitioners on the date when they have
been superannuated after attaining the age of
62 years.

5. We have considered the rival
submissions. We find substance in the
argument of learned counsel for the
petitioners as well learned Standing Counsel.

6. In view of the above, the writ petition
is disposed of with the direction that the
petitioners are entitled for the salary for the
period, during which they have worked in
view of the interim order granted by any
Court or by the Apex Court even after
attaining the age of 62 years but their post
retiral benefits shall be calculated on the basis
of salary drawn when the petitioners attained
the age of superannuation, i.e. 62 years.
Respondents nos.2, 3 and 6 are directed to
make the payment to the petitioners after
necessary verification, within a period of two
months as directed above from the date of
presentation of the certified copy of this order
in accordance to law.

7. Further it is observed that we find
that number of writ petitions are being
filed for seeking the aforesaid direction.

8. In view of the above, we may
observe that above direction may also apply
in case of similarly situated persons and such
persons instead of approaching this Court,
may place our order before the authority
concerned and the authority concerned is
directed to comply with aforesaid direction
after verification.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ -A No. 62797 of 2012 alongwith
W.P. No. 45177 of 2012, W.P. No. 62938
of 2012, W.P. No. 65427 of 2012
W.P. No. 5283 of 2013, W.P. No. 5282 of
2013, 9302 of 2013, W.P. No. 9817 of
2013, W.P. No. 9820 of 2013, W.P. No.
11703 of 2013, W.P. No. 15423 of 2013,
W.P. No. 1550 of 2013, W.P. No. 15430
of 2013, W.P. 15546 of 2013, W.P. No.
15548 of 2013, W.P. No. 15428 of 2013
 W.P. No. 24737 of 2013, W.P. No. 24738
of 2013, W.P. No. 32140 of 2013
and W.P. No. 32157 of 2013

1601 C.P. Sudeep Kumar &Ors. Petitioners
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri B.N. Singh Rathore

Counsel for the Respondents:
C.S.C.

U.P. Police Regulation-Regulation 398-
petitioners appointed as police constable in
Arm Police etc-in view of amended G.O.-
17.09.2002
denied
the
salary-which
3 All] 1601 C.P. Sudeep Kumar & Ors. State of U.P. and Ors.
1409
provides stipend during training periodheld-once appointed and became member
of police-entitled full pay and allowances
rather to meagre amount of stipendoffending
provision
of
amended
G.O.
17.09.02-struck down-petition allowed.

Held: Para-16 & 18
16. The substitution of the word 'stipend',
therefore, is patently illegal in as much as,
all those who are appointed, constitute a
single cadre. There can be no discrimination
or distinction by carving out the same cadre
officers on the basis of nature of work taken
by the Government, like when they are
decided to be sent for training after
appointment.
On
appointment,
all
constitute one class & are entitled for
similar treatment.

18. The above observations make it very
clear
that
once
the
incumbents
are
appointed and become members of service,
they are entitled to full pay and allowances
and not a meagre amount of stipend. In this
view of the matter, the G.O. impugned in
this writ petition is patently illegal, arbitrary
and even otherwise, ultra virus . Hence, the
G.O. dated 17.9.2002 is struck down as
such. The respondents are directed to pay
salary and allowances to the petitioners as
admissible and payable to the appointees of
respective posts.

Case Law discussed:
W.P. No. 54870 of 2004

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. In all these writ petitions the
question of fact and law are common,
therefore, have been heard together and
are being decided by this common
judgement.

2. The petitioners are non-Gazetted
Police Officers in terms of regulation 398 of
Police Regulations(hereinafter referred to as
'Regulations') and are working as Constable
or Head Constable as the case may be. These
posts admittedly, are of Group ''C' category.
They constitute subordinate Police Officers
of general police force in the State of Uttar
Pradesh. After their selection in accordance
with relevant provisions, all of them have
been appointed between 17th September,
2002 to 02nd December, 2008. Earlier the
procedure before appointment was that the
selected candidates were used to be sent for
training
and
thereafter,
appointed
on
respective posts. During training, the
incumbents were paid stipend and after
appointment, they used to be placed in
regular pay scale with all attending
allowances etc.

3. In purported exercise of power
under Section 2 of Police Act 1861
(herein after referred to as 'Act 1861'),
Government Order (herein after referred
to as 'G.O.') was issued on 19th May,
1998, amended vide G.O. dated 08th
June, 1998 whereby, policy with regard to
appointment
of
Constables,
Sub
Inspectors, Platoon Commanders etc.
changed. The State Government directed
that henceforth, those who are selected for
appointment on the post of Constable,
Sub Inspector, Platoon Commanders,
shall first be appointed and paid salary &
allowances
etc.;
admissible
to
the
respective posts, they shall be sent for
training after appointment.

4. Those who were appointed
thereafter, were placed in regular pay scale of
the respective post(s) and paid salary &
allowances admissible to them, as a result
whereof, when they were sent for training,
they continued to receive salary and
allowances of respective post(s).

5. It is this G.O. dated 8th June, 1998
which has been amended again vide G.O.
dated 17th September, 2002, (impugned in
1410 INDIAN LAW REPORTS ALLAHABAD SERIES
this writ petition) only to the extent that in
place of "pay and allowances" mentioned in
the G.O. dated 8th June, 1998 it shall be read
as "stipend".

6. The effect of the amendment
brought by the G.O. dated 17th September,
2002 in the earlier G.O. dated 8th June, 1998
is that the persons who are selected for
appointment to the post of Constable, Sub
Inspector, Platoon Commanders, though
shall be appointed first and thereafter, sent
for training but from the date of appointment
and till completion of training, they shall be
paid only "stipend" and not regular pay scale
and allowances.

7. It is contended that once incumbent
has been appointed substantively on a regular
post, whether respondents (employer) deploy
them for discharge of normal duty of the post
or send them for training, irrespective
thereof, the appointee shall be entitled for the
salary admissible to the post and the same
cannot be denied but substituting by a
meagre amount of 'stipend.'

8. Learned counsel for the petitioners
contended that before appointment, it may
have been permissible for an employer to
pay stipend or other allowances, as the case
may be, during the period of training, as it
may determine, but once the incumbent has
been appointed, he is entitled for full
emoluments attached to the said post and
cannot be denied the same on the basis of
nature of duty. Reliance is placed on a
decision of this Court in Writ Petition
No.54870 of 2004 Nagesh Upadhyay and
Anr. Vs. State of U.P. and Ors. and other
connected matters decided vide judgement
dated 12.04.2005.

9. Learned standing counsel, on the
contrary submitted that it is a policy
decision and warrants no interference by this
Court. When an employer is not taking
regular duty from the employee concerned,
since,
before
deploying
such
person,
imparting of training is necessary, during this
period of training, one cannot insist to be
paid requisite pay scale or allowances, which
are admissible to a person who is deployed to
discharge duty of regular nature attached to
the post concerned.

10. Having heard the learned counsel
for the parties at length and perused the
record, in my view, these writ petitions
deserve to succeed. The reason for the view
taken above, is detailed as under.

11. Section 2 of Act 1861 empowers
the State Government to constitute a
Police establishment, and says that for the
purpose of Act, 1861, entire Police
establishment shall be deemed to be one
Police force, the officers and men, be
enrolled in the aforesaid Police force,
shall be in such a manner, provided by the
State Government.

12. The statutory orders and rules have
been compiled in part III chapter XXIX of
the Regulations which relate to appointment.
Regulation 396 provides that the Police force
shall consist of Provincial Police, Civil,
Armed and Mounted; and, Government
Railway Police. They shall be appointed and
enrolled under Act 1861. The Police force
also
consists
of
Village
Chaukidars
appointed in Agra under Act XVI of 1873
and in Oudh under Act XVIII of 1876, not
enrolled under Act V of 1861.

13.

Regulation
539,
chapter
XXXVII, provides that recruits both for
civil and armed police, will be trained at
such places and in such manner, as the
Inspector
General
may
determine.
3 All] 1601 C.P. Sudeep Kumar & Ors. State of U.P. and Ors.
1411
Regulation 541 talks of appointment of
recruits on probation from the date he begins
to officiate in a clear vacancy. The scheme
earlier was that a person selected for
appointment to a post used to be sent for
training first, and after successful completion
of training, appointed on a vacancy in the
Police force. When he was sent for training,
before appointment an amount called
'stipend' used to be paid which was/is much
lessor than salary in a pay scale. After
appointment, the incumbent becomes entitled
for the salary attached with the post.

14. By G.O. dated 8th June, 1998,
earlier G.O. dated 19.05.1998 underwent
amendment and the Government decided
that Constable, Sub Inspector, Platoon
Commanders, as the case may be, after their
fresh selection, shall first be entitled for
emoluments attached to the post, on which,
he is appointed. Para 1 of the G.O. dated 8th
June, 1998 provides that on appointment,
incumbent shall be paid salary/allowances
and thereafter, would be sent for training. It
is this G.O. which has been partly amended
by subsequent G.O. dated 17th September,
2002
whereby,
the
word
"pay
and
allowances" mentioned in para 1 of the G.O.
dated 8th June, 1998 was sought to be
deleted by the word 'stipend'.

15. Learned standing counsel could not
show any provision whereby, an amount less
than regular pay, has been prescribed or
attached with a post, to which, a person is
appointed. Once appointment is made, the
incumbent would hold a lien on the post. All
the perks attached to the post shall stand
attracted. He would be entitled to payment in
accordance with pay scale and other
allowances
attached
with
such
post,
irrespective of the fact, whether employer
takes work from him in regular channel or
sends him for training, or does not take any
work, but emoluments shall be payable to
such appointee in the manner, as attached to
the post concerned. There is no bar for
employer to send a person for training from
time to time even after appointment, but
emoluments payable to such incumbent,
attached to the post, cannot be reduced on the
basis of nature of work sought to be taken by
the employer after appointment. The very
concept of giving 'stipend' to an incumbent
appointed on the post is strange and not
recognized in service jurisprudence. No
provision has been shown to this Court to the
effect that for the posts in police force like
Constable,
Sub
Inspector,
Platoon
Commanders, instead of giving regular pay
scale and allowances, only stipend can be
made admissible. In other higher service in
Police Force like Deputy Superintendent of
Police or I.P.S. The incumbent after
appointment is sent for training but paid full
salary in regular pay scale.

16. The substitution of the word
'stipend', therefore, is patently illegal in as
much as, all those who are appointed,
constitute a single cadre. There can be no
discrimination or distinction by carving
out the same cadre officers on the basis of
nature of work taken by the Government,
like when they are decided to be sent for
training
after
appointment.
On
appointment, all constitute one class &
are entitled for similar treatment.

17. This aspect has also been
considered in the case of Nagesh
Upadhyay (Supra). In para 10 of the
judgement the court has said:

"once the petitioners are appointed and
became members of service, they were
entitled to full pay and allowances. The State
Government did not reverse the policy of
giving appointment before training. The
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
policy to first give appointment letters to and
then to send the recruits for training continued
to be operative. In case the State Government
had reversed the policy and had decided to
appoint the petitioner only after successful
completion of training, they were justified to
give such recruits on stipend at the rate
prescribed in the O.M. Once the recruits are
appointed and became members of service
they are entitled to full pay and salary in
accordance with the Fundamental Rules."

18. The above observations make it
very clear that once the incumbents are
appointed and become members of service,
they are entitled to full pay and allowances
and not a meagre amount of stipend. In this
view of the matter, the G.O. impugned in this
writ petition is patently illegal, arbitrary and
even otherwise, ultra virus . Hence, the G.O.
dated 17.9.2002 is struck down as such. The
respondents are directed to pay salary and
allowances to the petitioners as admissible and
payable to the appointees of respective posts.

19. The writ petitions stand allowed
in manner aforesaid.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.09.2013

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 68185 of 2010

Shri Bahadur
 ...Petitioner
Versus
State of U.P. and Ors.
. ..Respondents

Counsel for the Petitioner:
Sri B.N. Rai, Sri Adarsh Kumar

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Pandey
Sri Yashwant Singh
Constitution
of
India,
Art.-226-
Cancellation of fair Price shop-earlier
cancellation order as well as appellants
authority order-quashed as no copy of
enquiry
report
given
under
this
background remand for fresh decision
after giving copy of enquiry report-instead
of that prescribed authority again issued
show cause notice-on basis of fresh
enquiry report-without supply of enquiry
report-canceled license-appeal also get
same
fate-held-such
order
in
ulter
violation of principle of Natural Justiceapart from contempt-both orders quashedwith cost of Rs. 10,000/-govt. to take
drastic action against erring officer.

Held: Para-6
Without commenting any further on the
conduct of the officer concerned, the
Court finds that the impugned orders
passed by the Prescribed Authority is
violative of the principles of natural
justice, inasmuch as, the inquiry report
were never supplied to the petitioner nor
any
opportunity
was
given
to
the
petitioner to defend himself. If the
inquiry report is made the basis of the
cancellation of the licence, the authority
was required to supply a copy of the
report and issue a show cause notice.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The facts are glaring and depict a
sorry state of affairs in the Food and Civil
Supply Department.

2. The petitioner was granted a
licence to run a fair price shop. On
account of certain irregularities alleged to
have been committed by him, the licence
was suspended and a show cause notice
was issued as to why the licence should
not be cancelled. The petitioner gave a
reply, and eventually, the licence was
cancelled by an order dated 19.3.2009,
against which the petitioner preferred an
appeal, which was allowed on 18.7.2009
and the matter was remitted again to the