# State of U.P. and others v. Shakuntala

- **Citation:** High Court of Judicature at Allahabad #39257
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1998-05-19
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-and-others-v-shakuntala-39257
- **Pages:** 3

## Text

2ALL Head Constable CP 29 Shiv Mohan Singh and others V. State of U.P. and others 47
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By the Court

1. The petitioners were initially appointed
as
constables
under
the
U.P.
Police
Regulation read with Police Act, 1861. The
petitioners have been promoted as Head
Constables. The next promotion post of head
constables is sub-inspector. The petitioners
claim that a government order was issued on
6.8.1995 which provided that 50 percent
vacancies be filled by direct recruitment and
the remaining 50 percent were to be filled by
promotion. Out of this 50 percent which was
reserved for rankers 25 percent vacancies
were to be filled in accordance with seniority
subject to rejection of unfit and the remaining
25 percent vacancies were to be filled by
departmental examination. The respondents
issued
an
office
memorandum
dated
19.5.1998 which provided that 50 percent
vacancies will be filled from the constables
and head constables through departmental
examination. It is the validity of this order
which is under challenge in this petition.

2. I have heard Sri C.B. Yadav, learned
counsel for the petitioners and Sri Sabha Jeet
Yadav, learned standing counsel appearing for
the respondents.

3. Learned counsel for the petitioners has
urged that in view of rule 4 of U.P.
Government
Servants
(Criterion
for
Recruitment by promotion) Rules, 1994 (in
brief Rules 1994) the post of sub-inspector
which is a promotional post of constables and
head constables could only be filled in
accordance with seniority subject to rejection
of unfit. Learned counsel further urged that
after these rules came into force in 1994 the
respondents could not issue any government
order or office memorandum providing for
making promotion or selection to the post of
sub-inspectors by any method other than
provided by the aforesaid rule. Learned
counsel for the petitioner has placed reliance
on a division bench decision of this court in
State of U.P. and others V. Shakuntala
Shukla1999 (3) UPLBEC 1702.

4. On the other hand the learned standing
counsel has vehemently argued that the post
of sub-inspector is not the promotional post of
constables or head constables. He has urged
that the post of sub -inspector is a selection
post and, therefore, Rules 1994 shall not be
applicable, therefore, the respondents were
well within their rights to make appointment
and selection on the post of sub-inspector in
48 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
pursuance of office Memorandum dated
19.5.1998.

5. The short question that arises for
consideration of this court is as to whether the
post of sub-inspector is the promotional post
of constable or head constable or is a selection
post. The other question which arises for
consideration is whether in view of the Rules
1994 the respondents could issue government
order dated 6.8.1995 and office memorandum
dated 19.5.1998 and proceed to make
promotion on the post of sub-inspector.

6. There is no dispute that all the
petitioners are head constables. There is also
no dispute that 50 percent of the post of subinspectors in the state is to be filled by
promotion. There further appears no dispute
that the field of eligibility for such promotions
are from the constables or head constables. In
paragraph 3 (a) of the counter affidavit it is
admitted that recruitment to the post of subinspector is not regulated by any statutory
rules of recruitment framed under Police Act.
It is claimed by the State that it is regulated by
government order issued from time to time
and by government order dated 19.5.1998 a
policy decision was taken to fill 50 percent
vacancies
of
sub-inspector
by
direct
recruitment and remaining 50 percent by
promotion of departmental candidates through
competitive
examinations.
Since
the
government itself treats 50 percent post of
sub-inspector as promotional the argument of
learned standing counsel that it is selection
post cannot be accepted.

7. In 1994 the state government framed
U.P. Government Servants (Criterion for
Recruitment by Promotion) Rules, 1994. Rule
4 of the rules lays down the criteria for
promotion. It is extracted below:
"Criterion for recruitment by promotion-
Recruitment by promotion to the post of
Head of Department, to a post just one
rank below the Head of Department and to
a post in any service carrying the pay
scale, the maximum of which is Rs. 6700/-
or above, shall be made on the basis of
merit, and to rest of the posts in all
services
to
be
filled
by
promotion
including a post where promotion is made
from non-gazetted post or from one service
to another service shall be made on the
basis of seniority subject to rejection of
unfit."

8. This rule came up for consideration
before a division bench of this court in
Shakuntala
Shukla
(supra)
which
after
exhaustively dealing with its import in respect
of promotion of sub -inspector to circle
inspector where also there are no rules framed
by the government and the promotion is
governed by government orders issued from
time to time held:

"The rule apply to a recruitment by
promotion to a post service for which no
consultation with the Public Service
Commission is required and " have effect
notwithstanding anything to the contrary
contained in any other service rules made
by the Governor under the proviso to
Article 309 of the Constitution, or Orders
for the time being in force." Concededly,
the post of Inspector is not in respect of
which consultation with P.S.C. is required
and it will brook no dispute that if at all the
Rules are held to be applicable, the
criterion therein for selection of SubInspectors for promotion to the rank of
Inspector would be 'seniority subject to
rejection of unfit' and not 'merit' as
contemplated in the Government order
dated
5th
Nov.1965.
Therefore,
the
impugned selection which was made on
the
basis
of
the
G.O.
would
be
unsustainable being basically illegal."

9. This decision is also an authority for the
proposition that Rules 1994 applies to police
personals. In this view of the matter it appears
unnecessary to deal with various decisions
relied by learned standing counsel as they
2ALL Smt. Zohra Begum Widow and others V. VIIth A.D.J., Bareilly and another 49
have been dealt by the division bench and I
respectfully agree with it.

10. I may now deal with the government
orders issued from 1986 onwards. On
15.7.1986 an order was issued by the
government that the posts of sub-inspectors
shall be filled in the state by direct
recruitment as well as by promotion in
proportion of 50-50. Another order was issued
on 6.8.1995 that out of 50 percent vacancies
to be filled by promotion 25 percent would be
filled by seniority subject to rejection of unfit
and the remaining 25 percent were to be filled
by departmental examination. Another order
was issued on 19.5.1998 which provided that
the 50 percent to be filled by promotion shall
be by departmental examination. The effect of
this order was that the promotion on seniority
subject to rejection of unfit has been replaced
by promotion by departmental examination.
This criteria for promotion is contrary to Rule
4 which has been extracted above. The
government order or office memorandum
being executive in nature cannot supersede or
be contrary to the Rule 1994 framed under
Article 309 which is legislative in character.
The government orders/office memorandum
issued
by
the
government
regulating
promotion of sub-inspectors to the extent that
they attempt to fetter with legislative power
cannot exist. In Shakuntala Shukla (supra) the
argument that promotion on merits alone
having been provided by the government
order dated 5.11.1965 the field stood occupied
and rule 4 of the rules mentioned above could
not effect it was rejected as executive order
could not stand once the field was occupied
by rules framed under Article 309 of the
constitution. Once the government decided
that 50 percent of sub-inspectors could be
promoted from constable; and head constable
the criteria for promotion in absence of any
other
rule
by
government
governing
promotion to the post of sub-inspector could
only be as provided by rule 4j of Rules 1994.
The government orders issued after 1994
being contrary to the Rule 1994 cannot be
given effect to.

11. In the result the writ petition succeeds
and is allowed. The impugned selections
made by the respondents for the post of subinspectors under the office memorandum
dated 19.5.1998 stands quashed so far as it
relates to 50 percent of promotional quota.
The
respondents
are
directed
to
hold
selections afresh in accordance with U.P.
Government
Servant
(Criterion
for
Recruitment and Promotion) Rules, 1994. The
interim order is discharged.

12. The parties shall bear their own
costs.

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