# Brijesh Kumar Pandey v. State of U.P. & Ors

- **Citation:** (2024) 8 ILRA 339
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-20
- **Case number:** Writ-A No. 9577 of 2006
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-kumar-pandey-v-state-of-u-p-ors-52326
- **Pages:** 19

## Headnote

(A) Service Law - The Police Act, 1861 -
The U.P. Police Regulations - recruitment
of Constables - Illegal and malicious
actions by authorities can be challenged -
Government
orders
and
medical
certification
override
initial
disqualifications - Right to consequential
benefits. (Para - 25,26, 35 to 38)

Petitioner applied for a Constable position (in
year 1994) - initially rejected due to a chest
measurement issue - found short by 1 cm -
Despite meeting eligibility criteria and repeated
court orders in their favor - Superintendent of
Police delayed and refused appointment -
prompting multiple writ petitions and contempt
cases
- court found evidence of willful
disobedience and bias - ordering charges
against the Superintendent and others. (Para - 1
to 16)

HELD: - Non-enlistment of petitioner as a
recruit constable in 1994 was illegal, arbitrary,
capricious, and malicious. Impugned order set
aside. Petitioner be treated in service as
Constable from the date from which the
selectee's of 1994 recruits as Constable have
340 INDIAN LAW REPORTS ALLAHABAD SERIES
been
appointed
as
Constables
with
all
consequential benefits of continuance in service,
fixation of pay, seniority and promotion etc. Pay
arrears from 12.04.2006. Respondents must Pay
costs to petitioner within 3 months.
(Para - 35
to 37)

Petition allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,942 of 64,808. This is a partial read: ask again with offset=39942 for what follows._

8 All. Brijesh Kumar Pandey Vs. State of U.P. & Ors.
339
together with the hard copies beyond the
prescribed date. This, in our view, would
not be permissible. We may also note that
in a judgment in Secretary, UP Public
Service
Commission
Vs
S
Krishna
Chaitanya', the Supreme Court has held
that the Commission cannot be directed to
declare
the
final
results
when
the
application form of a candidate had not
been received within the prescribed period.

For these reasons, we hold that
where
the
Commission
requires
the
submission of a hard copy of the online
application together with all accompanying
documents by a prescribed last date and
has clearly placed the candidates on notice
of the fact that an application which is
submitted beyond the last date together
with the prescribed documents would result
in the invalidation of the candidature, the
condition which has been imposed by the
Commission would have to be scrupulously
observed. It would not be open to the Court
to hold that notwithstanding such a clear
condition, an application which has not
been received by the last date should be
entertained. The Commission has given an
option to candidates of submitting their
applications in the hard copy by either of
the two modes, namely by registered post
or by personal delivery. A candidate who
has opted for one of the two modes, is
required to comply with the condition that
all the requisite four stages are completed
within the time stipulated."

8. Learned counsel for the petitioner
could not cite any authority disputing the
proposition of law as discussed in the
aforesaid Full Bench judgment of this
Court.

9. In view of the above settled legal
position, I do not find any justification to
grant indulgence in the matter.

10. Petition fails and is, accordingly,
dismissed.
----------
(2024) 8 ILRA 339
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.08.2024

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 9577 of 2006

Brijesh Kumar Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Dr. L.P. Mishra

Counsel for the Respondents:
C.S.C.

(A) Service Law - The Police Act, 1861 -
The U.P. Police Regulations - recruitment
of Constables - Illegal and malicious
actions by authorities can be challenged -
Government
orders
and
medical
certification
override
initial
disqualifications - Right to consequential
benefits. (Para - 25,26, 35 to 38)

Petitioner applied for a Constable position (in
year 1994) - initially rejected due to a chest
measurement issue - found short by 1 cm -
Despite meeting eligibility criteria and repeated
court orders in their favor - Superintendent of
Police delayed and refused appointment -
prompting multiple writ petitions and contempt
cases
- court found evidence of willful
disobedience and bias - ordering charges
against the Superintendent and others. (Para - 1
to 16)

HELD: - Non-enlistment of petitioner as a
recruit constable in 1994 was illegal, arbitrary,
capricious, and malicious. Impugned order set
aside. Petitioner be treated in service as
Constable from the date from which the
selectee's of 1994 recruits as Constable have
340 INDIAN LAW REPORTS ALLAHABAD SERIES
been
appointed
as
Constables
with
all
consequential benefits of continuance in service,
fixation of pay, seniority and promotion etc. Pay
arrears from 12.04.2006. Respondents must Pay
costs to petitioner within 3 months.
(Para - 35
to 37)

Petition allowed. (E-7)

List of Cases cited:

1. U.O.I. & Ors. Vs Pritilata Nanda, (2010) 11
SCC 674

2. U.O.I. Vs Mohan Singh Rathore & anr.,
(1996) 10 SCC 469

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Dr. L.P. Misra and Mrs.
Nandini Pandey, learned counsel for the
petitioner and Sri Shiv Ganesh Singh,
learned Additional Chief Standing Counsel
for the State-respondent.

2. By means of the present writ
petition, the petitioner seeks to challenge
the order dated 25.7.2006, passed by the
respondent No.4 (Superintendent of Police,
Sitapur). He has prayed as under :-

"(i) To issue a writ, order or
direction in the nature of certiorari
quashing the impugned order dated 25-072006 (Annexure No. 1) issued by opposite
party No. 4/ 5.

(ii) To issue a writ order or
direction in the nature of mandamus
commanding the opposite parties to accept
the joining of the petitioner submitted on
29-06-94 and issue Identity Card, Proper
dresses and requirements and treat the
petitioner
to
be
appointed
as
U.P.
Police/Constable in continuous service
from the date of the Hon'ble Governor's
sanction vide Government order No.
4017/6-PU-10-94 dated 28-06-94.

(iii) To issue a writ order or
direction
in
nature
of
mandamus
commanding the opposite party No. 4 /5
S.P.
Sitapur
to
issue
self
speaking
appointment order in the light of Govt.
order dated 17-06-94 & 28-06-94 and pay
him salary with all allowances regularly
day to day for the post of U.P. Constable
with all consequential benefits of service.

(iv) To issue writ order or
direction for payment of special damages
at the rate of Rs. 2,00,000/- per year
alongwith 22% interest per year in favour
of the petitioner for making mentally,
physically, socially and financially torture
and spoiling the future and career of the
petitioner as well as his dependents
maliciously,
willfully
and
arbitrary
delaying in the matter for about 12 years
without any fault of the petitioner with
biased and harassing attitude by ignoring
the clear-cut orders of Government as well
as order of I.G. establishment and various
orders of this Hon'ble court in the interest
of justice.

(v) To issue writ order or
direction to pay the cost of the petition in
favour of the petitioner against the opposite
parties.

(vi) To issue any other writ, order
or direction which this Hon'ble Court
deems fit and proper in the nature of the
case may also be passed in favour of the
petitioner and against the respondents."

3. Facts in brief are that in pursuance
to an advertisement issued in the year 1994
for
selection
and
appointment
of
Constables, the petitioner offered his
candidature and appeared at Sitapur Center
for consideration of his candidature vide
Registration No.1897 on the date fixed. He
was found short by 1 cm than the required
measurement in the category of expanded
chest. He made a representation to the State
8 All. Brijesh Kumar Pandey Vs. State of U.P. & Ors.
341
Government and a letter dated 15.06.1994
was issued by the State Government
addressed to the Chief Medical Officer,
Lucknow
for
getting
his
physical
measurement done and to send report to the
State Government. This letter is Annexure3 to the writ petition.

Consequent
upon
the
communication dated 15.06.1994, a copy
of which was also endorsed to the
petitioner, the Chief Medical Officer,
Lucknow conducted a physical standard
examination of the petitioner and reported
that his chest on expansion was 88 cm
which was more than the prescribed norms.

On receipt of the certification as
made by the Chief Medical Officer,
Lucknow, the State Government proceeded
to issue an order dated 17.06.1994
(Annexure-5) directing the Superintendent
of Police, Sitapur to take steps to appoint
the petitioner against reserved category of
Dependents of Freedom Fighter and Sports
as he was found eligible as per physical
fitness certificate issued by the Chief
Medical Officer, Lucknow.

4.

On
receipt
of
the
State
Government's
communication
dated
17.06.1994, the then Superintendent of
Police, Sitapur wrote a letter dated
19.06.1994 that the petitioner was found
unfit in the physical verification and the
physical verification made by the Chief
Medical
Officer
had
no
relevance.
Thereafter, the State Government issued a
detailed letter dated 28.06.1994 addressed
to the Director General of Police, U.P. at
Lucknow and Additional Director General
of Police, U.P., Police Headquarter at
Allahabad,
stating
that
the
physical
examination of the petitioner was done by
the Chief Medical Officer, Lucknow on
reference
being
made
by
the
State
Government and the same was done in
accordance
with
the
relevant
rules
prescribed for medical examination. The
petitioner was a good player of Judo game
and was grandson of freedom fighter and
therefore, the State Government has taken a
conscious decision that he should be
appointed
as
a
Constable.
In
this
government
order
stands
specifically
mentioned that in peculiar facts and
circumstances, a conscious decision has
been taken by the State Government to
relax all the rules and after selection the
petitioner be sent for receiving training and
the said letter shall not be treated as
precedence for any other matter. The
detailed government order is on record as
Annexure-7 to the writ petition.

5. After issuance of the government
order dated 28.06.1994, the petitioner
submitted his joining report before the
Superintendent of Police, Sitapur on
29.06.1994 after annexing a copy of the
government
order
dated
28.06.1994.
Another letter dated 27.11.1994 was issued
by the State Government addressed to the
Director General of Police, U.P., Lucknow
that the relaxation from the prescribed
procedure for recruitment of Constable was
consciously
granted
by
the
State
Government and there should not be raised
any
dispute
and
the
selection
and
appointment of the petitioner as Constable
be ensured. This document is on record as
Annexure-9 to the writ petition.

Nothing was done and again the
State Government issued a letter dated
22.03.2003 addressed to the Director
General of Police, U.P., Lucknow and
Additional Director General, U.P., H.Q.
Allahabad, clearly stating that despite the
directions having been issued in the
government
order
dated
28.06.1994,
342 INDIAN LAW REPORTS ALLAHABAD SERIES
negligence
was
shown
by
the
Superintendent of Police, Sitapur and a
compliance report be sent to the State
Government.

The Inspector General of Police
(Establishment), U.P. thereafter wrote a
letter dated 31.03.2003 addressed to S.P.,
Sitapur
that
the
compliance
of
the
government order dated 28.06.1994 be
communicated. This document is contained
as Annexure-11 to the writ petition. Even
then no action was taken by Superintendent
of Police, Sitapur.

6. The petitioner being aggrieved
against the inaction on the part of the
Superintendent of Police, Sitapur preferred
Writ Petition No.6143 of 2003 and vide
judgment and order dated 14.10.2003
(Annexure-12) this Court required the
petitioner to make a detailed representation
before the State Government and required
the State Government to take a reasoned
decision within a period of 3 months from
the date of such representation.

7. It appears that the representation
made thereafter by the petitioner was
processed
and
the
Deputy
Inspector
General of Police (Establishment), U.P.
Police H.Q., Allahabad wrote a letter dated
21.12.2003 communicating to the State
Government that the appointment of the
petitioner as a member of discipline force
i.e. Police force would not be in the interest
of Police Force and in the public interest
and after due consideration of such a
report, the State Government wrote back to
Deputy
Inspector
General
of
Police
(Establishment),
U.P.
Police
H.Q.,
Allahabad that in view of government's
letter
dated
27.11.1994
and
Police
Headquarter's letter dated 31.03.2003, the
report dated 25.12.2003 was not proper and
in compliance of the judgment dated
14.10.2003 passed by this Court, proper
and appropriate recommendations be made
available to the State Government. The
letter dated 21.05.2004 so written by the
State
Government
is
on
record
as
Annexure-13 of the writ petition.

8. The record of the writ petition
further reveals that no decision was taken
within the time stipulated in the judgment
and order dated 14.10.2003 passed by this
Court in Writ Petition No.6143 of 2003 and
the petitioner filed a Contempt Petition
marked as Criminal Miscellaneous Case
No.1722 (C) of 2004 and a notice was
issued on the said contempt petition by this
Court
on
07.10.2004.
After
taking
cognizance
on
contempt
for
noncompliance
of
the
judgment
dated
14.10.2003, the State Government passed
an order dated 25.11.2004 (Annexure-15)
rejecting the petitioner's representation and
further cancelling the government orders
dated 28.06.1994 and 27.11.1994 with
immediate effect.

9. The petitioner filed Writ Petition
No.1423 (S/S) of 2005 before this Court
challenging the order dated 25.11.2004
passed by the State Government and the
said writ petition was allowed vide
judgment and order dated 21.02.2005, a
copy of which is on record of the writ
petition as Annexure-16. The operative
portion of the judgment dated 21.02.2005
reads as under :-

"Consequently,
the
impugned
order dated 25.11.2004/ Annexure 1 to the
Writ Petition cannot be sustained and
liable to be set aside.

In the result, the impugned order
dated 25.11.2004/Annexure 1 to the writ
petition passed by Secretary/Respondent
no. 2 is hereby set aside, with a direction to
8 All. Brijesh Kumar Pandey Vs. State of U.P. & Ors.
343
the
Petitioner
to
file
additional
Representation (if any) and a certified copy
of
this
order
before
Principal
Secretary/Respondent no. 1 to requisition
the relevant record from the Secretary in
question
who
shall
decide
the
representation of the petitioner by passing
order
containing
reasons,
disclosing
application of mind, in accordance with
law and on the basis of material on record
before it. Decision shall be taken by the
respondent no. 1 within four weeks of the
receipt of a certified copy of this order and
its decision shall be communicated to the
petitioner forthwith."

10. The petitioner communicated the
certified copy of the judgment and order
dated 21.02.2005 passed by this Court in
Writ Petition No.1423 of 2005 and the
State Government issued an order dated
08.04.2005, rejecting the representation of
the petitioner on the premise that such
representations were already rejected by the
State Government. This order is annexed as
Annexure-17 to the writ petition.

11. The petitioner preferred Writ
Petition
No.4331
(S/S)
of
2005,
challenging the order dated 08.04.2005,
issued by the State Government, which was
allowed by this Court vide judgment and
order dated 12.04.2006. the relevant
portion of the order is as under :-

"A
numerous
documents
annexures-2 to 7 to the writ petition clearly
indicate
that
the
petitioner
was
recommended for appointment and training
by the higher authorities but the appointing
authority appears to be biased with the
petitioner, hence did not appoint the
petitioner ignoring the orders of the State
Government and thus the petitioner is
being harassed by the appointing authority.

In these circumstances the writ
petition is allowed. The order dated
8.4.2005 passed by the State Government
(annexure-1 to the writ petition) is hereby
quashed and a writ of mandamus is issued
to opposite party no.9, Superintendent of
Police, Sitapur to consider the case of the
petitioner for appointment in light of the
observations made above within a period of
two months from the date a certified copy
of this order is produced before him."

12. After passing of the judgment and
order dated 12.04.2006, the impugned
order dated 25.07.2006 was passed by the
Superintendent of Police, Sitapur which
stands challenged in the present writ
petition.

13. The record of the writ petition
further reveals that after filing of the writ
petition, the petitioner filed a contempt
petition marked as Criminal Miscellaneous
Case No. 2633 (C) of 2006 (Brijesh Kumar
Pandey Vs. Sri Dawa Sherpa and others) on
the ground that the order dated 25.07.2006,
which stands impugned in the present writ
petition
was
passed
by
the
alleged
contemnor in utter derogation of the
directions issued by the writ court vide
judgment and order dated 12.04.2006
passed in Writ Petition No. 4331 (S/S) of
2005.
In
exercise
of
the
contempt
jurisdiction, the Contempt Court passed an
order dated 11.10.2007, requiring the
Superintendent of Police, Sitapur to remain
present in person before the Court on
12.10.2007 along with complete records
from the Secretariat.

14. On 12.10.2007 the matter was
examined by the Contempt Court in depth
and it was observed that the case in hand
was one of those glaring cases which
depicts how the Government machinery
344 INDIAN LAW REPORTS ALLAHABAD SERIES
can harass an individual by taking resort to
passing of file from one table to the other
and referring the matter time and again to
its various hands with no relief to an
individual, apparently on account of nonfulfillment of demands of a petty clerk. The
Government officers have not been bold
and fair enough to take a stand and to take
an appropriate decision.

15. After relevant considerations
including the contents of the judgment and
order dated 12.04.2006 passed by the writ
court, the Contempt Court, as evident from
the order dated 20.12.2007 (Annexure-4 to
the petitioner's rejoinder affidavit dated
23.11.2021), required all the District
Superintendents of Police, Sitapur who
have remained posted during the last 13
years to be present before the Court for
taking the charge. The contents of the order
dated 20.12.2007 are quoted in verbatim
under:-

"This is one of those glaring
cases which depicts how the Government
machinery can harass an individual by
taking resort to passing of file from one
table to the other and referring the matter
time and again to its various hands with no
relief to an individual, apparently on
account of non-fulfillment of demands of a
petty clerk. The Government Officers have
not been bold and fair enough to take a
stand and to take an appropriate decision.
This
contempt
application
was
filed
alleging willful disobedience and noncompliance of the judgment of this Court
dated 12.04.2006 passed in Writ Petition
No. 4331 (S/S) of 2005.

The applicant had appeared in
the test for selection to the post of
constable in Civil Police in the year 199394. On account of certain objections that
the applicant did not fulfill the required
standard of physical fitness, he was not
selected. The applicant represented before
the Hon'ble Governor of the State. He was
re-examined by the Chief Medical Officer,
Lucknow,
who
gave
him
a
fitness
certificate, certifying that the applicant
fulfilled the requirements of physical
fitness. Thereafter the Hon'ble Governor
recommended that the applicant should be
selected. The State Government issued an
order dated 28.6.1994, addressed to the
Director General of Police and also to the
Additional Director General of Police
Headquarters
annexing
the
recommendation of the Hon'ble Governor
relaxing eligibility condition for selection,
and directing that the applicant may be
selected/ appointed and may be sent for
training immediately. The said letter Issued
by the Government also provides that the
decision taken in the case of the applicant
would not be treated as a precedent in
future.

The directions
of
the
State
Government was not being complied with
whereupon
a
second
letter
dated
27.11.1994 was issued by the State
Government, this time signed by the Joint
Secretary and addressed to the Director
General of Police to appoint the petitioner
as Constable in Civil Police and to send
him for training without any delay. The
applicant kept running from pillar to post
but was not given the appointment. The
State Government again on 22.3.2003
reiterated its stand and called for a report
from the Director General of Police and
also the Additional Director General of
Police, Headquarters. Subsequently the
Inspector General (Establishment) vide
letter dated 31.3.2003 wrote to the
Superintendent of Police, Sitapur directing
him to take necessary action in accordance
with law and to get the Government Order
implemented.
8 All. Brijesh Kumar Pandey Vs. State of U.P. & Ors.
345

When no orders were passed for
the appointment of the petitioner he filed a
writ petition before this Court, being Writ
Petition No.6143 of 2003. The said writ
petition was disposed of vide order dated
14.10.2003 directing the State Government
to pass an appropriate reasoned order in
the matter of the petitioner within a period
of three months. Again when no action was
taken the applicant filed a Contempt
Application being Criminal Misc. Case No.
1722 (C) of 2004. Thereafter it appears
that an order was passed on 25.11.2004.
The applicant challenged the said order by
means of Writ Petition No.1423 (S/S) of
2005. The said writ petition was allowed
vide order dated 21.2.2005 and the order
dated 25.11.2004 was quashed on the
ground that it was non-speaking order and
has been passed without application of
mind, in contravention to the directions
contained in the earlier order of this Court
dated 14.10.2003. It was further directed
that the Principal Secretary shall decide
the representation of the petitioner by a
reasoned order after application of mind
on the basis of the material on record
before it.

The State Government passed an
order dated 8.4.2005 again rejecting the
claim of the applicant. Against the said
order the petitioner filed another writ
petition being Writ Petition No. 4331 of
2005. The said writ petition was again
allowed vide judgment dated 12.4.2006.
This time the Court categorically held that
the applicant has been recommended for
appointment and training by the higher
authorities but the appointing authority
was biased with the petitioner and,
therefore, did not appoint him ignoring the
orders of the State Government. This time
while allowing the writ petition the Court
quashed the order of the State Government
dated 8.4.2005 and issued a writ of
mandamus to the respondent no.7 in the
writ petition, i.e. Superintendent of Police,
Sitapur to consider the case of the
petitioner for appointment in the light of
the observations made in the judgment
within a period of two months.The
judgment of this Court dated 12.4.2006 is
quoted as under :-

"Heard Dr. L.P. Mishra, learned
counsel for the petitioner and learned
Standing Counsel for the opposite parties.

By means of this writ petition the
petitioner prays for quashing of the order
impugned dated 8.04.05 by the State Govt.
rejecting the petitioner's representation
dated 25.2.05 for appointment as Police
Constable as contained in Annexure to the
writ petition.

The petitioner appeared before
Superintendent of Police, Sitapur for
appointment on the post of Constable but
he was declared unfit. He approached the
State Government, who directed the Chief
Medical Officer of Lucknow for physical
measurement and medical examination,
who found fit in all respects and issued a
certificate
to
that
effect.
The
State
Government was pleased to issue the
direction on 28.06.94, 27.11.94 and again
on
22.03.2003
for
appointment
and
training of the petitioner, even then
respondent no.9 did not comply with the
aforesaid direction, hence the petitioner
filed the Writ Petition No. 6143 (S/S) of
2003, which was disposed of with a
direction to the respondents to decide the
representation of the petitioner within three
months. This order was also not complied
with in right perspective. Thereafter
another writ petition no. 1423 (S/S) of 2005
was filed by the petitioner which was
allowed on 21.02.2005 setting aside the
office memorandum dated 25.11.2004. But
even then nothing was done hence the
petitioner filed a contempt petition no. 835
346 INDIAN LAW REPORTS ALLAHABAD SERIES
(C)
of
2005.
Consequently
feeling
aggrieved with the petitioner and another
office
memorandum
dated
8.04.2005
impugned in this writ petition has been
issued, saying that the relaxation was done
in the year 1994 of which no documents are
available in the Govt. Office hence no
comments could be made on the Govt.
Orders dated 28.06.94 and 27.11.94.

A
numerous
documents
annexures- 2 to 7 to the writ petition
clearly indicate that the petitioner was
recommended for appointment and training
by the higher authorities but the appointing
authority appears to be biased with the
petitioner, hence did not appoint the
petitioner ignoring the orders of the State
Government and thus the petitioner is
being harassed by the appointing authority.

In these circumstances the writ
petition is allowed. The order dated
8.4.2005 passed by the State Government
(annexure-1 to the writ petition) is hereby
quashed and a writ of mandamus is issued
to opposite party no.9, Superintendent of
Police, Sitapur to consider the case of the
petitioner for appointment in light of the
observations made above within a period of
two months from the date a certified copy
of this order is produced before him."

The petitioner submitted certified
copy of the judgment dated 12.4.2006
before
the
Superintendent
of Police,
Sitapur along with the covering letter dated
21.4.2006.
Superintendent
of
Police,
Sitapur thereafter instead of passing
appropriate order again referred the
matter to the State Government vide letter
dated 5.5.2006 seeking further directions
from the State Government, instead of
complying with the directions of this Court.
This Court had already held in the
judgment dated 12.4.2006 that despite the
specific directions of the State Government,
the Superintendent of Police, Sitapur has
been
delaying
the
matter
and
not
complying with the same deliberately in
order to harass the applicant. Yet again the
same story was repeated. After waiting for
sufficient time the applicant filed the
present
Contempt
Application
for
punishing the opposite parties.

As the time passed on and as the
Officers
were
transferred
and
new
incumbent
joined,
impleadment
applications were filed which have been
allowed. The present incumbent Sri V.K.
Dohare on the post of Superintendent of
Police, Sitapur has also filed his affidavit
in reply, to which a rejoinder affidavit has
also been filed by the applicant. During the
course of hearing on the previous date, a
detailed order was passed and the original
record available in the office of the
Superintendent of Police, Sitapur and the
U.P. Secretariat at Lucknow with regard to
the applicant's matter were summoned and
were produced before the Court. They have
also been perused by the Court.

I have heard learned counsel for
the applicant and also Sri Lalit Shukla,
learned Addl. Chief Standing Counsel on
behalf of the respondents.

It has been submitted on behalf of
the applicant that he is being harassed for
the last 13 years only on account of a clerk
in the office of the Superintendent of
Police, Sitapur, dealing with the file of the
applicant. According to the applicant this
person has been continuing on the post for
the last more than 15 years and has been
dealing with the file of the applicant right
from the beginning. He had made certain
demands, which were not fulfilled by the
applicant and, therefore, out of annoyance
he has been harassing the applicant on
account of malice. Right from 1994 the said
clerk has been handling the file and has
been making reports and notings which are
not consistent with the record. The said
8 All. Brijesh Kumar Pandey Vs. State of U.P. & Ors.
347
clerk has also been impleaded in this
Contempt application and notices were
also issued to him. He has not filled any
reply.

Having perused the record and
also having gone through the affidavit filed
by the Superintendent of Police, Sitapur in
my opinion it would not be necessary to go
into the question as to whether the Oppparty no. 4 Ibbadul Hag is guilty of
manipulating with the record or not but
disobedience
is
quite
apparent
and,
therefore, for the reasons stated hereinafter
in my opinion it is a case in which prima
facie
willful
disobedience
and
noncompliance of the directions of this Court is
established and the Opp-party must face
charges for committing contempt of this
Court.

From the original record it is
apparent that the applicant had been
pursuing the matter right from the
beginning with the Superintendent of
Police,
Sitapur
as
also
the
State
Government. On record is available the
various
letters
written
by
the
Superintendent of Police, Sitapur time and
again right from 1994, and again in 1999
asking for clarification and directions.
From the record of office of Superintendent
of Police, Sitapur, it also appears that there
are certain missing links as if certain
correspondence was not produced before
the court and some correspondence had
been removed from the record. Further
from the record of the State Government
what appears is that that the State
Government has not taken a stand that the
orders
issued
on
28.06.1994
and
17.11.1994 were forged or fictitious. Even
the subsequent letters issued by the State
Government 22.03.2003 and 05.07.2005
which clearly mention that no further
direction is required from the State
Government and the Superintendent of
Police, Sitapur may after obtaining legal
opinion comply with the directions of the
High Court. Despite such specific clear cut
orders what compelled the Superintendent
of Police, Sitapur to again write in May
2006 seeking further opinion of the State
Government
is
not
only
a
clear
disobedience of the direction of this Court
and of the State Government but shows the
jugglery of the Government officers in not
doing what they do not want to do and
somehow or the other trying to scuttle the
matter.

Along with the counter affidavit
of the Sri V.K. Dohara, the Superintendent
of Police, Sitapur dated 06.09.2007 is
annexed
an
order
dated
23.08.2007
rejecting the claim and representation of
the
applicant.
This
is
again
in
contravention of the directions of this
Court, which did not require him to test
correctness of the Government orders but
only required him to pass appropriate
order for appointment in accordance with
law. The liberty given to pass appropriate
orders in accordance with law was not to
test the correctness of the Government
order or the recommendation to appoint
the petitioner but this Court had only
required the Superintendent of Police,
Sitapur to pass orders for appointment in
terms of the Government order. He had no
business to again test as to whether the
appointment could be issued or not.

Normally if an order was passed
after a direction of this Court, it would be
open to the applicant to challenge the same
before the Writ Court submitted on behalf
of the State Officers but in the present case
what the Court notices is that despite the
Court holding in the judgment dated
12.04.2006 that the Appointing Authority
was biased and was not issuing the
appointment letter ignoring the order of the
State Government and thereby harassing
348 INDIAN LAW REPORTS ALLAHABAD SERIES
the applicant, it is writ large that
Superintendent Of Police, Sitapur is
definitely harassing the applicant and not
issuing the appointment order.

It is a fit case in my opinion in
which suitable action should be taken not
only against the present Superintendent of
Police, Sitapur but also against the
previous Officers posted as Superintendent
of Police, Sitapur for substantial period
and who have delayed the matter time and
again, may be at the pretext or at the
instance or at the false and incomplete
reporting of the clerk Ibbadul Hag, Oppparty no. 4. The applicant has been running
from pillar to post for the last 13 years.
Officers who have harassed him will have
to suitably compensate him.

List this matter on 22nd January,
2008 for framing of charges. The Oppparty no. 1, 4 and 5 shall remain present on
the said date before the Court even if they
have
been
transferred
from
Sitapur
wherever they may be posted.

Let a copy of this order be sent to
the Director General of Police, U.P. to
ensure presence of the Opp-party nos. 1, 4
and 5 on the next date.

16. Even after passing of such an
order dated 20.12.2007, the opposite parties
of the writ petition continued to drag their
feet contemptuously and the judgment and
order dated 12.4.2006 passed in Writ
Petition No.4331 (S/S) of 2005 was not
complied with in its letter and spirit and
even the contents of the order dated
20.12.2007, as quoted hereinabove, were
not shown the due regard, it is submitted by
learned counsel for the petitioner.

However, after a lapse of about
six years from the order dated 20.12.2007,
the petitioner was appointed as Constable
on May 26, 2013, a copy of which is filed
as Annexure-1 to the rejoinder affidavit.

17. In view of the facts narrated
above, submission advanced by learned
counsel for the petitioner in challenge to
the impugned order dated 25.07.2006
passed by Superintendent of Police, Sitapur
is that the order has not only been passed
illegally and arbitrarily, but patently suffers
from perversity inasmuch as that the
premise of the impugned order is that the
government
order
dated
17.06.1994,
28.06.1994 and 27.11.1994 were cancelled
by the State Government vide order dated
25.11.2004,
ignoring
the
roaringally
speaking circumstance that the government
order dated 25.11.2004 stood already set
aside by the High Court vide judgment and
order dated 21.02.2005, passed in Writ
Petition No.1423 (S/S) of 2005.

18. It is further submitted that once
the order dated 25.11.2004, passed by the
State Government, cancelling the earlier
government orders was quashed and set
aside by this Court, the necessary corollary
is that the government orders dated
17.06.1994, 28.06.1994 and 27.11.1994
stood automatically revived and passing of
the impugned order on the basis of the
government order dated 25.11.2004 is
nothing but a perverse approach for the
reasons best known to the author of the
impugned order.

The second reason assigned in
passing the impugned order is that the
petitioner did not complete the prescribed
eligibility and did not complete the
requisite examinations for which there were
no provisions of relaxation. It is submitted
that this reasoning is again not only
arbitrary and perverse but audacious in
nature for more than one reason.
8 All. Brijesh Kumar Pandey Vs. State of U.P. & Ors.
349

It is submitted that in the year
1994
when
the
advertisement
dated
31.03.1994 was issued, there were no
statutory rules governing the recruitment of
Constables in the State of U.P. and the
recruitment, training and appointment as
Constables used to be governed by the U.P.
Police Regulations framed under the Police
Act, 1861, an Act enacted with the assent
of the Governor General of India and
amended from time to time by various
amending Acts. Paragraphs 409 to 415 of
the U.P. Police Regulations read as under:-

"409. Enlistments of constables
for
the
Armed
and
Civil
Police.-
Enlistments of constables for the Armed
and Civil Police will be made by
Superintendents. No man who is less than
18 or more than 23 years old may be
enlisted (or re-enlisted). In the case of
candidates belonging to Scheduled Castes,
the upper age-limit shall be greater by five
years. Chaukidars of approved character
and qualifications may be drafted into the
Pradeshik Police up to the age of 30 years.
Military pensioners may be enlisted as
Constables in the Armed Police provided
they are not more than 35 years of age.
After appointment, they may draw their pay
as members of the Police Force in addition
to their Military pension subject to usual
rules in this respect. The enlistment should
be notified to the Controller of Military
Accounts.

Ex-soldiers
who
are
neither
reservists nor pensioners may be enlisted
as ordinary recruits both in Civil and
Armed Police provided they are not more
than 35 years of age. The Director-General
of Police will exercise powers of granting
relaxation from the minimum / maximum
age-limit only where in the interest of fair
dealing or in the public interest, it is
considered necessary under Notification
No. 1129(5)/II-175-39, dated 4th July,
1941. In districts where recruiting is bad,
Superintendent may apply to the Recruiting
Staff Officer for pensioners or ex-soldiers
other than reservists, Indian Armjed
reservists and members of the Indian
Territorial Force may not be enlisted in
any branch of the Police Force, and no
member of the Police Force (including
clerical staff) is permitted to join the Indian
Territorial Force or the Auxiliary Force,
India.

410. Rules for ex-soldiers, who
are enlisted as constable in U.P. Police.-
On their enlistment as constable in the
Uttar Pradesh Police the exsoldiers of the
following classes are entitled to count their
previous military service for increments in
the time-scale of pay of constables : (1) Exsoldiers of the combatant units of the
Indian Armed Forces, and (2) Ex-soldiers
of the combatant units of the late I.S.F. and
non-I.S.F. Provided that the military
service
of
a
military
pensioner
or
gratuitant will not count for incremental
pay if he continues to draw his pension, or
unless he refunds any bonus or service
gratuity that he may have received in lieu
of pension or since discharge from military
service
in
monthly
instalments
not
exceeding thirty-six. The question of refixation
of
pay
of
such
ex-military
personnel will be considered only after the
entire amount of the bonus/service gratuity
has been refunded in full by them. The
revised pay will, however, be allowed to
them with retrospective effect, i.e., form the
date of enlistment in the Police Force.
Appendix XXVIII of Army Regulations,
India, Volume II, should be consulted as
regards the branches of military service
which fall in the category of non-combatant
services. The cases of men with previous
service in units not mentioned in that
appendix should be referred to the
Inspector-General of Police for orders at
350 INDIAN LAW REPORTS ALLAHABAD SERIES
the time of enlistment unless governed by
rulings already generally notified. Indian
Army Reservists whose military service was
pensionable under military rules and who
before they have earned a pension under
such rules in respect of their military
service are appointed after discharge from
the reserve to the Police Force of Uttar
Pradesh may, at the discretion of the
Inspector-General, whether their military
service included service, with the colours in
addition to serve in the Reserve or was
service in the Reserve alone, be permitted
to count for increment of pay in the Police
Force the whole of their service with the
colours, if any, and half of their service
with the Reserve, subject to the condition
that they first refund any gratuity which
they may have reserved in respect of their
military service.

411. Physical requirement for a
recruit.- No recruit shall be enlisted whose
chest measurements is less than 34 inches
expanded with a minimum expansion of 2
inches and whose height is less than 5 feet
9 inches. To this rule there are the
following exceptions : (a) A recruit
between 18 and 20 years of age who shown
signs of growing, may be enlisted if his
height is not less than 5 feet 5 inches and if
his expanded chest is not less than 32
inches with a minimum expansion of 2
inches, provided that the Civil Surgeon
certified that he is under 20 years of age,
and that he is likely to attain standard
measurements. (b) In the case of hillmen,
the height may be not less than 5 feet 4
inches. (c) In the case of Tribal candidates,
the chest measurement must not be less
than 34" expanded with a minimum
expansion of 2" and the height must not be
less than 5'3".

Note.- (i) As far as possible tall
and well-built men should be enlisted in the
Police as constable as physical appearance
and personality are important factors for
efficient discharge of their duties.

(ii) Persons with bow legs,
irrespective of the degree of bow present,
shall not be recruited. Slight curvature of
legs, is , however, to be treated as normal
and should not lead to unnecessary
rejections.

412.