# Prem Kumar Upadhyaya v. State of U.P. & Ors

- **Citation:** (2014) 1 ILRA 511
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-01-13
- **Case number:** Civil Misc. Writ Petition No. 16879 of 2010
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-kumar-upadhyaya-v-state-of-u-p-ors-42916
- **Pages:** 10

## Headnote

C.S.C.

U.P.(Civil
Police)
Constable and
Head
Constables Service Rules, 2008-Rule-17-out
of turn promotion-in pursuance of circular
issued by secretary home affairs-claim for
promotion-after enforcement of the Rules
suppressing all government orders and
circulars-except as per rules no promotion
can be given out of turn basis-if promoted
ignoring the Rules follow up correcting
measures be taken-by forthwith-wrong
promotion contrary to Rules can not be
precedent-petition dismissed.

Held:Para-19
Moreover, when the statutory rules have
been framed in supersession of existing
rules and orders etc., one cannot rely on an
existing Rule or Order, which contemplates
a procedure for appointment or promotion,
not recognized by subsequently framed
statutory rules. This Court, therefore, has
no hesitation in holding that, on and after
2.12.2008, no appointment in any manner,
whether promotion or otherwise, cannot be
made which is not consistent with the
provisions of C&HC Rules, 2008 and SI&I
Rules, 2008. I further make it very clear
that no appointment can be made in
contravention of C&HC Rules, 2008 and
SI&I Rules, 2008, by taking recourse to
Government Order dated 3.2.1994, as
amended from time to time, for the reason
that the said Government Orders have
ceased
to
operate,
on
and
after
enforcement of C&HC Rules, 2008 and
SI&I Rules, 2008 and cannot be resorted
to for making any "Out of Turn" promotion.
In
other
words,
no
"Out
of
Turn"
promotion now can be made by taking
recourse to Government Orders issued
prior to 2.12.2008 as that would be
inconsistent and contrary to statutory
rules. Such Government Orders cannot be
given effect to, on and after 2.12.2008,
when the aforesaid Rules of 2008 became
operative.

Case Law Discussed:
(2010) 2 SCC 728; AIR 2000 SC 2306; AIR
2003 SC 3983; AIR 2004 SC 2303; AIR 2005
SC 5565; AIR 2006 SC 1142.; AIR 2006 SC

## Text

1 All] Prem Kumar Upadhyaya Vs. State of U.P. & Ors.

511
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 16879 of 2010
connected with W.P. No. 60687 of 2013

Prem Kumar Upadhyaya. ......Petitioner
Versus
State of U.P. & Ors...... .....Respondents

Counsel for the Petitioner:
Sri Vijay Gautam

Counsel for the Respondents:
C.S.C.

U.P.(Civil
Police)
Constable and
Head
Constables Service Rules, 2008-Rule-17-out
of turn promotion-in pursuance of circular
issued by secretary home affairs-claim for
promotion-after enforcement of the Rules
suppressing all government orders and
circulars-except as per rules no promotion
can be given out of turn basis-if promoted
ignoring the Rules follow up correcting
measures be taken-by forthwith-wrong
promotion contrary to Rules can not be
precedent-petition dismissed.

Held:Para-19
Moreover, when the statutory rules have
been framed in supersession of existing
rules and orders etc., one cannot rely on an
existing Rule or Order, which contemplates
a procedure for appointment or promotion,
not recognized by subsequently framed
statutory rules. This Court, therefore, has
no hesitation in holding that, on and after
2.12.2008, no appointment in any manner,
whether promotion or otherwise, cannot be
made which is not consistent with the
provisions of C&HC Rules, 2008 and SI&I
Rules, 2008. I further make it very clear
that no appointment can be made in
contravention of C&HC Rules, 2008 and
SI&I Rules, 2008, by taking recourse to
Government Order dated 3.2.1994, as
amended from time to time, for the reason
that the said Government Orders have
ceased
to
operate,
on
and
after
enforcement of C&HC Rules, 2008 and
SI&I Rules, 2008 and cannot be resorted
to for making any "Out of Turn" promotion.
In
other
words,
no
"Out
of
Turn"
promotion now can be made by taking
recourse to Government Orders issued
prior to 2.12.2008 as that would be
inconsistent and contrary to statutory
rules. Such Government Orders cannot be
given effect to, on and after 2.12.2008,
when the aforesaid Rules of 2008 became
operative.

Case Law Discussed:
(2010) 2 SCC 728; AIR 2000 SC 2306; AIR
2003 SC 3983; AIR 2004 SC 2303; AIR 2005
SC 5565; AIR 2006 SC 1142.; AIR 2006 SC
1142.

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

1. In both these matters, the question
of law involved is common. Though both
were heard on different dates and
judgments reserved, but since the issue
involved is common, therefore, I am
deciding both the writ petitions by this
common judgment.

2. The issue of "Out of Turn"
promotion in U.P. Civil Force in the light
of Government Orders dated 3.2.1994,
2.1.1998 and the Director General of
Police,
U.P.,
Lucknow
(hereinafter
referred to as "DGP")'s Circular dated
29.12.1998 is involved in both the writ
petitions.

3. In Writ Petition No. 16879 of
2010 (hereinafter referred to as "First
Petition"), Sri Vijay Gautam, learned
counsel
for
petitioner
and
learned
Standing Counsel were heard and the
arguments concluded on 20.11.2013 and
judgment
was
reserved.
While
the
512 INDIAN LAW REPORTS ALLAHABAD SERIES

judgment was awaited, similar issue came
up for hearing on 6.12.2013 in Writ
Petition No. 60687 of 2013 (hereinafter
referred to as "Second Petition") in which
Sri Sanjay Kuamr, Advocate, advanced
his arguments and learned Standing
Counsel appeared and made a submission
on behalf of respondents. In this case also
the judgment was reserved on 6.12.2013.
As already said, since the question of law
involved in both the matters is common,
and this Court had advantage of assistance
rendered by different counsels covering
entire aspect of the matter, therefore, I am
deciding both these writ petitions by this
common judgments considering all the
issues raised in these matters.

4.

Petitioner,
Prem
Kumar
Upadhyaya, in the First Petition, is
Constable in U.P. Police Force (Civil
Police)
having
been
appointed
on
15.2.1988. While he was posted at Mathura,
Senior Superintendent of Police, Mathura
vide letter dated 12.12.2003, recommended
him for "Out of Turn" promotion on the
basis of his outstanding performance in
service as also his achievements and
performance in the sports and athletics. In
2002, during the course of service,
petitioner was rewarded with honour of
certificate of appreciation. The Deputy
Inspector General of Police, Agra Range,
Agra
accepting
the
aforesaid
recommendation forwarded above proposal
vide letter dated 3.3.2004 which was further
forwarded
by
Additional
Director
General/Inspector
General
of
Police,
Kanpur Zone, Kanpur by letter dated
12.3.2004. All the authorities were clearly
of the view that petitioner has satisfied all
the requirements for being given "Out of
Turn" promotion as per Government Order
dated
2.1.1998
and
Circular
dated
29.12.1998. The matter remained pending
for consideration before State Government,
hence reminders/letters were also sent by
Field Officers on 4.9.2006, 1.10.2006 and
4.10.2006. Petitioner, in First Petition then
came to this Court in Writ Petition No.
33409 of 2008 which was disposed of
finally on 15.7.2008 directing the State
Government to take a final decision in the
matter within a period of six weeks. It is
pursuant thereto, petitioner's matter was
examined by the Committee constituted for
considering cases of "Out of Turn"
promotion. The Committee did not find
favour with petitioner's claim for "Out of
Turn"
promotion.
Agreeing
to
the
recommendation of said Committee, DGP
also did not find petitioner entitled for "Out
of Turn" promotion and passed order
accordingly on 13.12.2009. Hence, the First
Petition, challenging the aforesaid decision
of departmental committee for "Out of
Turn" promotion and the consequential
decision taken by DGP. To put things
straight, some more facts be stated in regard
to First Petition. The recommendation of
Senior Superintendent of Police, Mathura
for "Out of Turn" promotion to petitioner
was considered by departmental committee.
It rejected the said proposal in its meeting
dated 22.11.2007. It is this decision which
was communicated to petitioner by order
dated 15.9.2008 which he challenged in
Writ Petition No. 66053 of 2008 which was
allowed on 7.8.2009 and the order dated
15.9.2008 was quashed. Respondents were
directed to re-consider the matter strictly in
accordance with Government Orders dated
3.2.1994 and 2.1.1998. Again the DGP
reiterated decision by means of impugned
order dated 13.12.2009. Hence, the First
Petition.

5. In Second Petition, Kandwa
Kumar Mishra, the sole petitioner was
directly appointed as Sub-Inspector in
1 All] Prem Kumar Upadhyaya Vs. State of U.P. & Ors.

513
Civil Police in 2001-2002 recruitment.
While
he
was
posted
in
District
Chitrakoot, Superintendent of Police,
Chitrakoot, respondent no. 6, made a
recommendation
vide
letter
dated
9.12.2011 for consideration of petitioner
(in Second Petition) for one rank "Out of
Turn"
promotion
showing
act
of
outstanding gallantry and courage in
arresting a rewarded dacoit Kharag Singh
on 7.1.2009 after facing indiscriminatory
firing and chasing the criminals. Another
similar recommendation was made by
Senior Superintendent of Police, Varanasi
in regard to petitioner's participating in a
daring encounter in which a hardened
criminal and shooter, Bunti alias Afroz,
was
killed
on
7.10.2008.
A
third
recommendation is said to be made by by
Superintendent of Police, Jaunpur vide
letter dated 21.5.2013. Since no decision
was taken by respondents, a writ of
mandamus has been sought in Second
Petition directing respondents to consider
petitioner for one rank "Out of Turn"
promotion in the light of this Court's
judgments dated 24.5.2013 in Writ
Petition No. 2782 of 2009 (Manoj Kumar
Singh and others Vs. State of U.P. and
others) and dated 20.12.2011 in Writ
Petition No. 66308 of 2006 (Ravindra
Kumar Saini Vs. State of U.P. and
others).

6. Sri Vijay Gautam, learned counsel
for petitioner in First Petition contended
that petitioner's claim is squarely covered
by policy of "Out of Turn" promotion but
respondents
have
denied
the
same
arbitrarily and illegally though time and
again, in a most discriminatory and
selective manner, such "Out of Turn"
promotions have been allowed to a large
number of Police officials. Reference of
some such cases have been given in
paragraph 29 to 36 of First Petition, which
I would be dealing at appropriate stage.
Sri Sanjay Kumar has also made similar
arguments.

7.

Before
coming
to
rival
submissions, it would be appropriate to
have a bird eye view over the relevant
statutes/ statutory provisions, dealing with
the recruitment and appointment as also
the conditions of service of Police officers
of subordinate rank in U.P. Police Force.

8. It is not in dispute that the entire
matter
relating
to
recruitment
and
appointment of persons enrolled in U.P.
Police Force (in particular Civil Police
and Armed Police), is presently governed
by Police Act, 1861 (hereinafter referred
to as "Act, 1861). Section 2 thereof reads
as under:

"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."

9. Under Section 46 of Act, 1861,
power to frame Rules has been conferred
upon State Government. It is not disputed
by the parties in both these writ petitions
that till 2008 there were no Rules framed
under Section 2 read with Section 46 of
Act, 1861 so as to govern the matter of
514 INDIAN LAW REPORTS ALLAHABAD SERIES

recruitment and appointment of Police
Officers
of
subordinate
rank,
i.e.
Constables, Head Constables and SubInspectors. The entire matter earlier used
to be governed by various orders issued
by State Government from time to time
which were considered to be "Statutory
Orders" issued/ referable under/to Section
2 of Act, 1861.

10. It is in this context, an Office
Memorandum dated 3.2.1994 was issued by
Principal Secretary (Home). This Office
Memorandum was in reference to the
appointment of a Police Inspector/ Company
Commander on a non cadre post of Deputy
Superintendent of Police where such Police
Inspector/Company Commander P.A.C. has
shown an act of exemplary courage and
gallantry.
Conditions
on
which
such
appointment against a non cadre post of
Deputy Superintendent of Police, was
permissible,
provided
in
the
Office
Memorandum, reads as under:

^^1- vnE; lkgl ,oe~ 'kkS;Z iznZ'ku djus okys
iqfyl cy ds fujh{kd@ dEiuh dek.Mj dks iqfyl
mik/kh{kd ds fu% laoxhZ; jktif=r in dk l`tu
djds fu;qfDr fd;k tk;sxkA

2- iqfyl cy ds ,sls fujh{kd@ dEiuh
dek.Mj vnE; lkgl ,oe~ 'kkS;Z iznZ'ku djus okys
fujh{kd@dEiuh dek.Mj dh dksfV esa vk;sxs]
ftUgksus dq[;kr vkradoknh ;k t?kU; vijk/kh ds
lkFk esa eqBHksM+ esa ;k mudh fxjQ~rkjh esa vnE;
lkgl vkSj 'kkS;Z iznf'kZr fd;k gks ;k vius drZO;
ikyu ds nkSjku tksf[ke Hkjk dk;Z fd;k gksA

3- bl lEcU/k esa iqfyl mik/kh{kd ds fu%
laoxhZ; in dk l`tu iqfyl egkfuns'kd] mRrj
izns'k fd laLrqfr ij 'kklu }kjk fd;k tk ldsxkA

4- iqfyl mik/kh{kd ds fu% laoxhZ; in ij
fu;qfDr iqfyl egkfuns'k dh laLrqfr ij 'kklu }kjk
dh tk;sxhA

5- ;g vkns'k bl fo"k; ij le; le; ij
tkjh vkns'kksa esa fdlh vU; ckr ds gksrs gq, Hkh
izHkkoh gksxkA

6- ;g vkns'k rkRdkfyd izHkko ls ykxw gksxkA^^

English Translation by the Court:

1.
Inspectors/
Company
Commanders of police force who have
shown invincible courage and gallantry
shall be appointed to the ex-cadre
gazetted posts of Deputy Superintendent
of Police by creating such posts.

2.
Those
Inspectors/
Company
Commanders of police force who have shown
invincible courage and gallantry in encounters
with notorious terrorists or dreaded criminals
or in their arrests or have taken risks while
discharging their duties, shall be categorized
as
Inspectors/
Company
Commanders
showing invincible courage and gallantry.

3. In this regard, ex-cadre posts of
Deputy Superintendent of Police shall be
created by the Government upon the
recommendation of the Director General of
Police, Uttar Pradesh.

4. Appointments to the ex-cadre
posts of Deputy Superintendent of Police
shall be made by the Government upon
the recommendation of the Director
General of Police.

5. This order shall be effective,
notwithstanding anything being in the
orders issued on the subject from time to
time.

6. This order shall come into force
with immediate effect.

11. On the same date, i.e., 3.2.1994
another Government Order No. 605
1⁄4111⁄2 N&iq&1&24@93 was issued by
Principal Secretary (Home) providing for
a similar ex cadre "Out of Turn"
promotion
to
Constables
and
SubInspectors/ Platoon Commander on the
1 All] Prem Kumar Upadhyaya Vs. State of U.P. & Ors.

515
post
of
Head
Constable
and
Inspector/Company
Commander
respectively. The conditions of such
appointment are similar to the earlier
Government
Order
except
of
the
difference of designations of post and
rank but for ready reference, these
conditions are also noticed as below:

^^1- vnE; lkgl ,oe~ 'kkS;Z iznZ'ku djus okys
iqfyl cy ds mDr dfeZ;ksa dks ;FkkfLFkfr vkj{kh ls
eq[; vkj{kh rFkk mifujh{kd ls fujh{kd@ dEiuh
dek.Mj dks ds fu% laoxhZ; in ij fu;qfDr fd;k
tk;sxkA

2- izR;d foRrh; o"kZ ds fy, ;FkkfLFkfr eq[;
vkj{kh ;k fujh{kd@ daiuh dek.Mj ds fu%laoxhZ;
inksa dk l`tu jkT; ljdkj }kjk iqfyl egkfuns'kd]
mRrj izns'k ds izLrko ij fd;k tk;sxkA

3- iqfyl cy ds ,sls vkj{khx.k mifujh{kd@
IykkVwu dek.Mj vnE; lkgl vkSj 'kkS;Z iznZ'ku
djus okys iqfyl dehZ dh dksfV esa vk;saxs] ftUgksus
dq[;kr vkradoknh ;k t?kU; vijk/kh ds lkFk esa
eqBHksM+ ;k mudh fxjQ~rkjh esa lkgl vkSj 'kkS;Z
iznf'kZr fd;k gks ;k vius drZO; ikyu ds nkSjku
tksf[ke Hkjk dk;Z fd;k gksA

4- mDr fu%laoxhZ; inksa ij fu;qfDr iqfyl
egkfuns'kd ds iwokZuqeksnu ds mijkUr fu;qfDr
izkf/kdkjh }kjk dh tk;sxhA

5- ;g vkns'k bl fo"k; ij le; le; ij
tkjh vkns'kksa esa fdlh vU; ckr ds gksrs gq, Hkh
izHkkoh gksxkA

6- ;g vkns'k rkRdkfyd izHkko ls ykxw gksxkA^^

English Translation by the Court:

1.
The
said
officials
showing
invincible courage and gallantry shall be
appointed on the ex-cadre posts from
Constable to Head Constable and from
Sub Inspector to Inspector/Company
Commander, as the case may be.

2.For each financial year, ex-cadre
posts of Head Constables or Inspectors/
Company Commanders, as the case may
be, shall be created by the State
Government upon the recommendation of
the Director General of Police, Uttar
Pradesh.

3. Those Constables and Inspectors/
Company Commanders of police force
who have shown invincible courage and
gallantry in encounters with notorious
terrorists or dreaded criminals or in their
arrests
or
have
taken
risks
while
discharging
their
duties,
shall
be
categorized as police officials showing
invincible courage and gallantry.

4. Appointments to the aforesaid excadre posts shall be made by the
Appointing Authority after prior approval
of the Director General of Police.

5. This order shall be effective,
notwithstanding anything being in the
orders issued on the subject from time to
time.

6. This order shall come into force
with immediate effect.

12. A third Government Order dated
2.1.1998
was
issued
by
Principal
Secretary stating that such Constables,
who are found suitable for "Out of Turn"
promotion
on
the
basis
of
their
outstanding service by DGP or Home
Secretary, shall also be entitled for such
promotion under Government Order dated
3.2.1994 and earlier Government Order
dated 3.2.1994 was amended accordingly.
In order to lay down certain guidelines to
understand
the
term
"Outstanding
Service" a Circular was issued by DGP,
Head
Quarter,
U.P.
Lucknow
on
29.12.1998, in which yardsticks to find
out
whether
a
Constable
satisfy
requirement of "Outstanding Service" or
not, were laid down. The same read as
under:
516 INDIAN LAW REPORTS ALLAHABAD SERIES

^^1& vkj{kh dh U;wure 10 o"kZ dh lsok iw.kZ
gksA

2& 10 o"k dh lsok ds nkSjku de ls de 5
o"kZ QhYM fM~;wVh esa vkj{kh fu;qDr jgk gksA

3& 10 o"kZ ds nkSjku pfj=iath esa okf"kZd
eUrO; esa ls 5 o"kZ ds eUrO; mRd`"V Js.kh ds ,oa 5
o"kZ ds eUrO; de ls de vfr mRre Js.kh ds gksaA

4& vkj{kh dks ^mRd`".k lsok lEeku fpUg^
vFkok ljkguh; lsok lEeku fpUg ls foHkwf"kr fd;k
x;k gksA

5& vkj{kh dh pfj+= iath esa dksbZ Hkh izfrdwy
izfrf"V vafdr u gks rFkk dksbZ n.M iznku u fd;k
x;k gksA

6& mRd`"V dk;Z gsrq de ls de 20 udn
iqjLdkj iznku fd;s x;s gksaA

7&mi;qZDr vgZrk iw.kZ djus okys vkj{kh ds
vkmV vkQ VuZ izksUufr gsrq izLrko@ laLrqfr
lEcfU/kr
iqfyl
mi
egkfujh{kd@
iqfyl
egkfujh{kd ds ek/;e ls izkIr gksA^^

English Translation by the Court:

1.
The
constable
must
have
completed at least 10 years' service.

2. The constable, during his 10-year
service, must have been posted on field
duty for at least 5 years.

3. Of the annual entries in the
Character Roll in course of 10 years,
entries must at least be excellent for 5
years and outstanding for remaining 5
years.

4. The constable must have been
awarded with 'an honour for excellent
service'
or
with
'an
honour
for
commendable service'.

5. In the Character Roll, no adverse
entry must have been recorded for the
constable; nor must he have been awarded
with the punishment.

6. He must have been awarded with
at least 20 cash rewards for excellent
work.

7. The resolution/recommendation
for out-of-turn promotion to the constable
fulfilling aforementioned eligibility, must
have been received through concerned
Deputy
Inspector
General
of
Police/Inspector General of Police.

13. The above Government Orders
being orders relating to recruitment and
conditions of service of Police Officers of
subordinate rank, hence statutory by
virtue of Section 2 of Act, 1861. They had
the force of law. The situation, however,
changed in 2008 when statutory rules
were framed by State Government in
exercise of power under Section 2 read
with 46 (2) and (3) of Act, 1861 in respect
to Constables, Head Constables, SubInspectors and Inspectors (Civil Police) of
U.P. Police Force.

14. Two sets of Rules were framed,
one, U.P. Sub-Inspector and Inspector
(Civil
Police)
Service
Rules,
2008
(hereinafter referred to as "SI&I Rules,
2008"), which came to be published in
U.P
Gazette
Extraordinary
dated
2.12.2008. Another one is U.P. (Civil
Police) Constables and Head Constable
Service Rules, 2008 (hereinafter referred
to as "C&HC Rules, 2008" ) which were
also
published
in
U.P.
Gazette
Extraordinary
dated
2.12.2008.
The
aforesaid Rules declare that the same are
being made in exercise of powers under
Sub-section 2 of Section 46 read with
Section
2
of
Act,
1861
and
in
supersession of all existing Rules or
1 All] Prem Kumar Upadhyaya Vs. State of U.P. & Ors.

517
Orders issued in this behalf. The aforesaid
two sets of Rules have been framed to
regulate selection, promotion, training,
appointment, determination of seniority
and confirmation etc. of the aforesaid
cadres of U.P. Police Officers.

15. Under C&HC Rules, 2008, post
of Head Constable in it entirety is to be
filled in by promotion in the manner
provided in Rule 17 thereof, i.e., 50 per
cent by departmental examination, and,
50 per cent by promotion on the basis of a
selection on the criteria of "seniority
subject to rejection of unit", along with
physical efficiency test of a qualifying
nature.

16. Similarly under SI&I Rules,
2008, post of Sub-Inspector is to be filled
in by two sources, i.e., 50 per cent by
direct recruitment and 50 per cent by
promotion, through a Board, on the basis
of
departmental
examination,
from
amongst Head Constables and Constables,
who fulfill eligibility conditions, i.e.,
completion of three years service after
probation and age, not more than 40
years. The post of Inspector is to be filled
in by promotion through a Board on the
basis of departmental examination. The
above sources of recruitment is provided
under Rule 5 of SI&I Rules, 2008. No
other manner of appointment/ promotion
on any of the posts of Constable, Head
Constable
and
Sub-Inspector
is
contemplated in the aforesaid Rules.

17. Now it is in these facts and
circumstances, there are 2 questions, up
for consideration, to answer the issue,
raised in both these writ petitions. First,
whether petitioners in both the writ
petitions
are
to
be
governed
by
Government Orders dated 3.2.1994 and
2.1.1998, even after enforcement C&HC
Rules, 2008 and SI&I Rules, 2008; and,
second, whether petitioners are entitled
for
any
relief
in
the
facts
and
circumstances of their individual cases.

18. So far as first issue is concerned,
none
of
the
learned
counsels
for
petitioners
went
to
the
extent
of
arguments that the orders issued by State
Government, even if they have statutory
force in absence of otherwise statutory
rules framed under Act, 1861, can still
hold the field, when statutory rules have
been framed by State Government in
exercise of powers under Section 46 read
with Section 2 of Act, 1861. It is well
settled that an executive order cannot
override or prevail over statutory rules. In
the present case, the orders issued in 1994
and 1998 may have force of law, since the
recruitment and appointment on the post
of Head Constable, Constable, SubInspector and Inspector at that time was
governed
by
different
Government
Orders, issued from time to time; and
provisions of a Government Order can be
altered, amended, modified etc. by
another Government Order, issued in the
same manner, but that situation ceased
when statutory rules were framed in 2008
in exercise of powers under Section 46
read with Section 2 of Act, 1861
following a different procedure. Even
otherwise, the statutory rules, by way of
clarification, declare that the same are
being issued in supersession of all
existing Rules in respect to selection,
promotion, appointment, etc. relating to
various posts which are governed by the
aforesaid Rules of 2008. It thus, goes
without saying, that after enforcement of
C&HC Rules, 2008 and SI&I Rules,
2008, no appointment/ promotion, even
by way of "Out of Turn" promotion, can
518 INDIAN LAW REPORTS ALLAHABAD SERIES

be given to any person as that would be in
direct teeth of the Rules of recruitment
and appointment/ promotion of 2008 and
such appointment, if any, would be
patently illegal and void-ab-initio. An
appointment
taking
recourse
to
an
executive order cannot be validly made
when such procedure is not recognized
under the statutory rules holding the field
with
respect
to
recruitment
and
appointment,
whether
direct
or
by
promotion. Now the appointment shall be
made as per the procedure prescribed in
the above Rules.

19. Moreover, when the statutory
rules have been framed in supersession of
existing rules and orders etc., one cannot
rely on an existing Rule or Order, which
contemplates a procedure for appointment
or
promotion,
not
recognized
by
subsequently framed statutory rules. This
Court, therefore, has no hesitation in
holding that, on and after 2.12.2008, no
appointment in any manner, whether
promotion or otherwise, cannot be made
which
is
not
consistent
with
the
provisions of C&HC Rules, 2008 and
SI&I Rules, 2008. I further make it very
clear that no appointment can be made in
contravention of C&HC Rules, 2008 and
SI&I Rules, 2008, by taking recourse to
Government Order dated 3.2.1994, as
amended from time to time, for the reason
that the said Government Orders have
ceased
to
operate,
on
and
after
enforcement of C&HC Rules, 2008 and
SI&I Rules, 2008 and cannot be resorted
to for making any "Out of Turn"
promotion. In other words, no "Out of
Turn" promotion now can be made by
taking recourse to Government Orders
issued prior to 2.12.2008 as that would be
inconsistent and contrary to statutory
rules. Such Government Orders cannot be
given effect to, on and after 2.12.2008,
when the aforesaid Rules of 2008 became
operative.

20. I may also clarify at this stage
that
there
are
some
subsequent
amendments in Rules of 2008 but I need
to go into details thereof for the reason
that whatever is the procedure for
recruitment and appointment/ promotion
under the Rules of 2008, only that will
hold the field. The Government Orders
issued prior to enforcement of C&HC
Rules, 2008 and SI&I Rules, 2008 have
became inoperative, invalid and shall not
provide validity to any appointment/
promotion,
which
is not
made in
accordance to scheme and procedure
prescribed in C&HC Rules, 2008 and
SI&I Rules, 2008. Therefore, the claim of
petitioner in Second Petition, where
petitioner is seeking recourse to the
Government Order of 3.2.1994 in respect
to a cause of action which has arisen after
enforcement of Rules of 2008, neither can
stand nor is sustainable and, therefore,
Second Petition deserves to be dismissed
on this ground alone.

21. Now I come to second question
which now only survive in respect to
petitioner in First Petition. There I find
that the eligibility conditions, under the
Government Order dated 2.1.1998 read
with the Circular dated 29.12.1998,
whereby yardstick and entitlement have
been laid down to find out outstanding
service
record
of
Police
Officer
concerned, are not satisfied.

22. One of the conditions is that
incumbent must have remained posted for
five years as a field staff but in the
impugned order respondents-authorities
have found that petitioner actually worked
1 All] Prem Kumar Upadhyaya Vs. State of U.P. & Ors.

519
as a Clerk etc. and lacked postings in
field. On this aspect, learned counsel for
petitioner has not, at all, addressed this
Court, and it is not his case that this
finding is incorrect. In fact, I also do not
find appropriate pleadings in writ petition
to challenge the above findings of fact
recorded in the impugned order.

23. Secondly, it is said that one of
the conditions is that Police officer must
have earned outstanding entries in five
years and very good in another five years
in the last ten years of service. Petitioner,
admittedly, earned six outstanding entries
but only three are very good. He was,
therefore, short of requisite entitlement
provided in the Circular dated 29.12.1998
so as to justify his performance to be
treated as "Outstanding Service". On this
aspect also there is neither any pleading
nor learned counsel for petitioner did
address this Court to show that these
findings are perverse or incorrect. What
he claims is that in respect to certain other
persons, "Out of Turn" promotions have
been given, even when such conditions
were not fulfilled in their cases.

24. Suffice is to mention that those
appointments are not under challenge in
the present writ petition. Moreover, if
respondents have done something wrong
or illegal, the principle of equality is not
attracted to claim a negative parity, i.e.,
parity in the matter of illegality. One
cannot claim that since in respect to other
persons, an illegality has been committed,
therefore, it should be repeated in his case
also. Article 14 does not contemplate an
equality of opportunity in the matter of
illegality. One cannot have a legal right
compelling an authority to do something
wrong in his case also which such
authority has done in respect to one or
more others. Moreover, this Court has no
justification to compel an authority to do
something, which is patently illegal by
taking recourse to Article 14. Such
assumption on the part of petitioners for
claiming parity is clearly misconceived
and erroneous. On the contrary, in State
of Karnataka & others Vs. Gadilingappa
& others (2010) 2 SCC 728, the Court
said that it is well settled principal of law
that even if a mistake is committed in an
earlier case, the same cannot be allowed
to be perpetuated.

25. It is well settled that if a wrong
has been committed by the respondents in
respect to some other persons, that will
not provide a cause of action to claim
parity on the ground of equal treatment
since the equality in law under Article 14
is applicable for claiming parity in respect
to legal and authorized acts. Two wrongs
will not make one right. The Apex Court
in the case of State of Bihar and others
Vs.
Kameshwar
Prasad
Singh
and
another, AIR 2000 SC 2306; Union of
India and another Vs. International
Trading Co. and another, AIR 2003 SC
3983; Lalit Mohan Pandey Vs. Pooran
Singh and others, AIR 2004 SC 2303; M/s
Anand Buttons Ltd. etc. Vs. State of
Haryana and others, AIR 2005 SC 5565;
and Kastha Niwarak G. S. S. Maryadit,
Indore Vs. President, Indore Development
Authority, AIR 2006 SC 1142 has held
that Article 14 has no application in such
cases.

26. In view thereof, even the
petitioner in First Petition, in my view,
has rightly been held ineligible for "Out
of Turn" promotion in accordance with
scheme, as it was available before
enactment of statutory rules of 2008, and
has rightly been declined the said benefit.
520 INDIAN LAW REPORTS ALLAHABAD SERIES

27. In the result, both the writ
petitions lack merit. Dismissed.

28. There shall be no order as to
costs.

29. Learned counsel for petitioner, at
this stage, contended that Police force is a
uniform disciplined service, governed by
rank and file. An illegal benefit conferring
higher status and rank to some while
denying to others, would disturb the entire
edifice which is foundation of strict
discipline, based on seniority, rank, status.
It is of utmost importance in a disciplined
uniform Police force.

30. I find some substance in the
submission and in my view, this aspect
justify to issue a direction to the Principle
Secretary (Home) and Director General of
Police U.P. Lucknow to constitute a
committee to find out, whether any "Out
of
Turn"
promotion
has/have
been
allowed, after enforcement of C&HC
Rules, 2008 and SI&I Rules. If such
appointment(s) has/have
been
made,
though it is impermissible in law, in view
of
above
discussion,
appropriate
correcting measures shall immediately be
taken by recalling such orders, after
giving due opportunity of hearing to all
concerned parties in accordance with law.
This exercise shall be completed within
six months from the date of receipt of a
certified copy of this order, so that no
person may continue to retain an illegal
benefit, affecting discipline, rank and file
in a force, like, U.P Police Service, which
otherwise would have a negative impact
on the disciplined and orderly behavior of
Police Officers of subordinate ranks.

31. The Register General is directed
to forthwith send a copy of this judgment
to Principal Secretary (Home), and
Director General of Police, U.P. Lucknow
for information and compliance of the
directions, as said above.
--------