# State of U.P. & Ors v. Vijay Singh

- **Citation:** (2022) 4 ILRA 726
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-21
- **Case number:** Special Appeal No. 410 of 2021
- **Bench:** Devendra Kumar Upadhyaya, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-vijay-singh-48304
- **Pages:** 10

## Headnote

A. Service Law - UP Police Service Rules,
2016 - Rule 16 - UP Government Servant
Seniority
Rules,
1991
-
Rule
7
-
Promotion
to
the
post
of
Deputy
Superintendent of Police - Combined
Seniority
List,
preparation
thereof
-
Dispute arise as to which rules apply -
Rules of 2016 the Rules 1991 - Held, U.P.
Government Service Seniority Rules, 1991
have been framed under Article 309 of the
Constitution of India, thus will have full
application
for
the
purposes
of
determination of seniority on the post of
Deputy
Superintendent
of
Police,
however, in the instant case the seniority
on the post of Deputy Superintendent of
Police or even on the post of Inspector
(Civil Police) or on the post of Inspector
(Armed Police) is not to be reckoned;
rather what needs to be prepared is the
'combined seniority list' for the purposes
of making promotions on the post of
Deputy Superintendent of Police in terms
of Rule 16 of the Rules of 2016 - Rule 7 of
Rules
of
1991
does
not
have
any
application
for
the
purposes
of
preparation of the 'combined seniority list'
as envisaged under Rule 16 of the Rules of

## Text

726 INDIAN LAW REPORTS ALLAHABAD SERIES
granted
appointment
unauthorisedly,
without
grant
of
relaxation
by
the
Competent Authority/ State Government.
Thus, the petitioner unauthorisedly and in
contravention of the government order,
without relaxation of period for submission
of application, obtained appointment on
compassionate ground, which is nullity.
Therefore, the appointing authority has
lawfully cancelled the order of appointment
of the petitioner. Hence impugned order of
the learned Single Judge does not suffer
from any manifest error of law.

23. In view of the law laid down by
Hon'ble Supreme Court and this Court
referred above, we do not find any error of
law in the impugned Judgment. Hence, the
Special Appeal is dismissed.
----------
(2022)04ILR A726
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2022

BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal No. 410 of 2021

State of U.P. & Ors. ...Appellants
Versus
Vijay Singh ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Bhanu Pratap Singh

A. Service Law - UP Police Service Rules,
2016 - Rule 16 - UP Government Servant
Seniority
Rules,
1991
-
Rule
7
-
Promotion
to
the
post
of
Deputy
Superintendent of Police - Combined
Seniority
List,
preparation
thereof
-
Dispute arise as to which rules apply -
Rules of 2016 the Rules 1991 - Held, U.P.
Government Service Seniority Rules, 1991
have been framed under Article 309 of the
Constitution of India, thus will have full
application
for
the
purposes
of
determination of seniority on the post of
Deputy
Superintendent
of
Police,
however, in the instant case the seniority
on the post of Deputy Superintendent of
Police or even on the post of Inspector
(Civil Police) or on the post of Inspector
(Armed Police) is not to be reckoned;
rather what needs to be prepared is the
'combined seniority list' for the purposes
of making promotions on the post of
Deputy Superintendent of Police in terms
of Rule 16 of the Rules of 2016 - Rule 7 of
Rules
of
1991
does
not
have
any
application
for
the
purposes
of
preparation of the 'combined seniority list'
as envisaged under Rule 16 of the Rules of
2016. (Para 34 and 37)
Special Appeal allowed. (E-1)

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J. & Hon'ble Subhash
Vidyarthi, J.)

1. Heard Sri Amitabh Rai, learned
Additional Chief Standing Counsel and Sri
Mohit Jauhari, learned Standing Counsel
representing the appellants-State authorities
and Sri Bhanu Pratap Singh, learned
counsel representing the respondent no.1.

2. The respondent nos. 2 and 3 are
proforma respondents in this appeal, who
despite notices having been issued did not
put in their appearance in the writ petition
before the learned Single Judge.

3. We have also perused the records
available before us on this special appeal.

4. This special appeal filed under
Chapter VIII, Rule V of the Rules of the
4 All. State of U.P. & Ors. Vs. Vijay Singh
727
Court, lays a challenge to the judgment and
order dated 22.09.2021 passed by the
learned Single Judge whereby Writ Petition
No. 34799 (SS) of 2019 filed by the
petitioner-respondent
no.1
has
been
allowed and the opposite parties therein
have been directed to prepare a fresh joint
seniority list of the Inspectors (Civil Police)
and Inspectors (Armed Police)/Company
Commanders in accordance with the
provisions contained in Rule 7 of the U.P.
Government Servant Seniority Rules, 1991
(hereinafter referred to as the ?Rules of
1991?) and, thus, to undertake the exercise
of promotion to the post of Deputy
Superintendent of Police.

5. Submission on behalf of learned
counsel representing the appellants-State
impeaching the judgment and order under
appeal is that Rule 7 of the Rules of 1991
does not have any application so far as the
preparation of joint seniority list for the
purposes of making promotion to the post
of Deputy Superintendent of Police is
concerned and, as such, learned Single
Judge while passing the judgment and
order under appeal has clearly erred in law
in directing preparation of the joint
seniority list in terms of Rule 7 of the Rules
of 1991. It has further been argued on
behalf of the appellants-State authorities
that as a matter of fact it is the Government
Order dated 24th of July, 2003, prescription
of which will govern the exercise of
preparation of joint seniority list to be
prepared for the purposes of making
promotion
to
the
post
of
Deputy
Superintendent of Police. His further
submission is that the Government Order
dated 24th July, 2003 having been issued in
exercise of powers vested in the State
Government under Section 2 of the Police
Act, 1861 (hereinafter referred to as the
?Act of 1861?) has statutory force and by
ignoring the prescriptions available in the
said Government Order, learned Single
Judge has clearly erred.

6. On the other hand, Sri Bhanu
Pratap Singh, learned counsel representing
the respondent no.1 submits that in the
facts and circumstances of the case as also
in the light of the discussions made by
learned Single Judge while passing the
judgment and order under appeal, no
interference in this special appeal is
needed, which is liable to be dismissed at
its threshold.

7. We have given our anxious
consideration to the rival submissions made
by
learned
counsel
representing
the
respective parties.

8. After hearing the learned counsel
appearing for the parties and going through
the records available before us, the issue
which emerges for consideration of the
court is as to what is the procedure
available
for
determination
of
joint
seniority list as prescribed in Rule 16 of
U.P.
Police
Service
Rules,
2016
(hereinafter referred to as the ?Rules of
2016?) for the purposes of making
promotion
to
the
post
of
Deputy
Superintendent of Police.

9. The case put forth by the petitionerrespondent no.1 in the writ petition before
learned Single Judge was that he was
appointed initially on the post of SubInspector
(Armed
Police)/Company
Commander on 11.11.1986 and thereafter
he was promoted on regular basis to the
post of Inspector (Armed Police)/Platoon
Commander on 24.02.2014. It was pleaded
by learned counsel for the petitioner before
the learned Single Judge in the writ petition
that one Ram Pal Singh was appointed in
728 INDIAN LAW REPORTS ALLAHABAD SERIES
the year 1990 i.e. four years after the
appointment of respondent no.1-petitioner,
on the post of Sub-Inspector (Civil Police)
and subsequently he was promoted as
Inspector (Civil Police) on 12.7.2013.
Further case sought to be established by
respondent
no.1-petitioner
before
the
learned Single Judge was that in July, 2019
a joint seniority list for the purposes of
making promotion to the post of Deputy
Superintendent of Police which comprised
of the Inspectors (Armed Police)/Company
Commanders and Inspectors (Civil Police),
was prepared where the petitioner was
placed below Ram Pal Singh though initial
appointment on the post of Sub Inspector of
the petitioner was made on 11.11.1986,
whereas Ram Pal Singh was appointed
initially on the post of Sub Inspector (Civil
Police) after four years of his appointment.
The respondent no.1-petitioner also pleaded
before learned Single Judge with a view to
consider
the
issue
relating
to
the
preparation of joint seniority list for the
purposes of making promotions to the post
of Deputy Superintendent of Police, a Two
Members
Committee
was
constituted
which
has
submitted
its
report
on
4.10.2019. According to the said report
submitted by the Two Members Committee
the joint seniority list was required to be
prepared in terms of the provisions
contained in Rule 7 of Rules of 1991. The
report of the said Committee is on record as
Annexure No.2 to the counter affidavit
filed by the respondent no.1.

10. In view of the said submissions,
prayer made in the writ petition by the
respondent no.1 was to issue a direction to
the State authorities to quash the joint
seniority list issued vide letter dated
22.11.2019 and also the order dated
20.11.2019, whereby the claim of the
respondent no.1-petitioner for placing him
over and above Ram Pal Singh was
rejected.

11. Learned Single Judge while
allowing the writ petition by means of the
judgment and order under appeal, dated
22.09.2021 has observed that the basis of
the joint seniority list which was under
challenge in the writ petition, is the
Government
Order
dated
24.07.2003,
however, as per the report submitted by the
two members committee, dated 4.10.2019
the Government Order dated 24.07.2003 is
non-existent
and
in
view
of
the
promulgation
of
Uttar
Pradesh
SubInspector and Inspector (Civil Police)
Services Rules, 2015 and Uttar Pradesh
(Pradeshik
Armed
Constabulary)
Subordinate Officers Service Rules, 2015
the joint seniority list is to be prepared in
accordance with Rule 7 of Rules of 1991.
In view of the said observation, joint
seniority list which was under challenge
before learned Single Judge has been
quashed and accordingly a direction has
been issued to prepare a fresh joint
seniority list in accordance with Rule 7 of
Rules of 1991.

12. The issue which emerges, as
observed above, for our consideration is, as
to
whether
there
is
any
procedure
prescribed for the purposes of preparing the
joint seniority list as envisaged in Rule 16
of the Rules of 2016 and as to whether
while preparing the joint seniority list,
which was under challenge before learned
Single
Judge,
such
prescription
was
followed or not.

13. The Rules of 2016 have been
framed by the State Government in
exercise of its powers conferred on it under
Article 309 of the Constitution of India.
Rule 5 of the Rules of 2016 provides that
4 All. State of U.P. & Ors. Vs. Vijay Singh
729
there shall be two sources of recruitment to
service in the Ordinary Grade. Fifty percent
posts are to be filled in by way of direct
recruitment
through
Public
Service
Commission on the basis of a competitive
examination and fifty percent posts in the
service in Ordinary Grade is to be filled in
by promotion through U.P. Public Service
Commission from amongst substantively
appointed Inspectors of Civil Police and
Inspectors of Armed Police, who have
completed five years of service on the first
day of their recruitment and are also
confirmed in their respective posts. Rule 5
of the Rules of 2016 is quoted hereinunder:

?5. (1) Recruitment to the Service in
the Ordinary Grade shall be made from the
following sources :-

(i) Fifty percent by direct recruitment
through the Commission on the basis of
competitive examination.

NOTE-A
Combined
Competitive
Examination is held by the Commission for
recruitment to the Uttar Pradesh Civil
Service (Executive Branch), Uttar Pradesh
Police Service, Uttar Pradesh Finance and
Accounts Service etc.

(ii) Fifty percent by promotion through
the Commission from amongst substantively
appointed Inspectors of Civil Police and
Armed Police who have completed five years
service as such on the first day of the year of
recruitment and are also confirmed in the
said Post:

Provided that two percent of the
vacancies for a year of recruitment may be
filled by out of turn promotion through the
Commission
on
the
specific
recommendation of the Government from
amongst such Police Inspectors/Company
Commanders of Uttar Pradesh Police Force
who have achieved the following awards :-

(a) After having been selected to the
Indian team should have participated in
World Championship, either in a team or
individual event, which is recognised by
the International Olympic Association and
should have earned a Gold or Silver or
Bronze Medal or up to the fourth place,

or

(b) After having been selected to the
Indian team should have participated in
Olympic Games which is recognised by
the International Olympic Association and
should have earned a Gold or Silver or
Bronze Medal or up to the fourth place,

or

(c) After having been selected to the
Indian team should have participated in
Asian Games/ Asian Championship which
is recognized by the International Olympic
Association and should have earned a
Gold or Silver Medal,

or

(d) If he/she has earned country's
highest award or excellence in sports
"Arjuna award"/ "Rajeev Gandhi Khel
Ratna". If any Inspector of Civil Police or
Armed Police qualifies the criterion laid
down for promotion in such case then a
proposal would be forwarded to the
Government by the Director General of
Police,
Uttar
Pradesh
with
clear
recommendation and the out of turn
promotion will be awarded by the State
Government with the concurrence of the
Commission. If such person or sufficient
number of such persons are not available
for out of turn promotion under this
proviso, the remaining vacancies shall be
filled in accordance with the general
procedure prescribed in this rule.

(2) Recruitment to the posts in Senior
Scale,
Additional
Superintendent
of
Police,
Additional
Superintendent
of
Police,
Special
Grade-11,
Additional
Superintendent of Police, Special Grade-I
and Additional Superintendent of Police,
Higher Grade shall be made by promotion
730 INDIAN LAW REPORTS ALLAHABAD SERIES
as per provisions of rule 17 of these
rules.?

14. The procedure for recruitment by
promotion to Ordinary Grade of service
under the Rules of 2016 can be found in
Rule 16 according to which recruitment by
promotion is to be made on the basis of
merit in accordance with the provisions
contained in Uttar Pradesh Promotion by
Selection in Consultation with Public
Service Commission (Procedure) Rules,
1970, as amended from time to time from
amongst substantively appointed Inspectors
of Civil Police and Armed Police as per
their joint seniority list to be prepared by
the Head of the Department. Rule 16 of the
Rules
of
2016
is
also
extracted
hereinbelow.

"16. Recruitment by promotion to the
Ordinary Grade shall be made on the
basis of merit in accordance with the Uttar
Pradesh
Promotion
by
Selection
in
Consultation
with
Public
Services
Commission (Procedure) Rules, 1970, as
amended from time to time, from amongst
substantively appointed Inspectors of Civil
Police and Armed Police as per their
combined seniority list to be prepared by
the Head of Department."

15. Thus, from a perusal of aforequoted Rule 16 of the Rules of 2016 what
we find is that the criteria for making
promotion
to
the
post
of
Deputy
Superintendent of Police is the merit and
recruitment
by
promotion
is
to
be
considered in terms of the procedure Rules
1970. The zone of consideration for the
purposes of making promotion to the post
of
Deputy Superintendent
of Police,
according to Rule 16, comprises of the
Inspectors of Civil Police and Inspectors
Armed Police, that is to say those SubInspectors who are initially appointed as
Sub-Inspector (Civil Police) and also those
Sub-Inspectors who are initially appointed
as Sub Inspector (Armed Police)/Platoon
Commander
and
are
subsequently
promoted to the post of Inspector (Civil
Police)
or
Inspector
(Armed
Police)/Company Commander, as the case
may be, are eligible to be considered for
promotion provided they have put in five
years of substantive service on their
respective posts of Inspectors and are also
confirmed in their respective posts.

16. Rule 16 of the Rules of 2016,
thus, speaks about making promotions from
combined seniority list to be prepared by
the Head of the Department which shall
comprise of Inspectors (Civil Police) and
Inspectors (Armed Police). Thus there are
two feeding cadres which from the the
eligibility zone for making promotions to
the posts of Deputy Superintendent of
Police namely; (1) the cadre of Inspectors
(Civil Police) and, (2) cadre of Inspectors
(Armed Police)/Company Commander.

17. The Rules of 2016 do not contain
any provision or prescription as to how the
combined seniority list for the purposes of
utilizing the same for making recruitment
by way of promotion under the Rules of
2016 is to be prepared. As a matter of fact
the phrase 'combined seniority list'
occurring in Rule 16 of Rules of 2016 is
clearly a misnomer. The list which is
mentioned in Rule 16, in fact, would be
better described as eligibility list prepared
for the purposes of making promotion to
the post of Deputy Superintendent of Police
which will include the eligible Inspectors
coming from both the cadres, namely,
Inspectors (Civil Police) and Inspectors
(Armed Police). It cannot be termed to be a
'seniority list' in the traditional sense of
4 All. State of U.P. & Ors. Vs. Vijay Singh
731
the word; rather it is an eligibility list as
observed above. At the cost of repetition,
we may observe that the Rules of 2016 do
not provide for any provision as to how the
combined seniority list is to be prepared.

18. Thus, it is in this background that
we are called uopn to consider the
submissions made by learned counsel
representing the appellants-State authorities
and learned counsel representing the
respondent no.1.

19. It has been argued by learned
State Counsel representing the appellants
that in absence of any statutory prescription
available in the Rules of 2016 for the
purposes of preparation of 'combined
seniority list' as envisaged in Rule 16,
such combined seniority list is to be
prepared as per the prescriptions available
in the Government Order dated 24.07.2003.
Submission is that the Government Order
dated 24.07.2003 has statutory force as it is
referable to the powers of the State
Government available to it under Section 2
of the Act of 1861. In this view the
submission is that the Government Order
dated 24.07.2003 is not an ordinary
executive circular or administrative order;
rather it is a statutory instrument having
been issued under Section 2 of the Act of
1861. Contention, thus, is that in absence of
any prescription available in the Rules of
2016 for the purposes of preparation of
'combined seniority list', the said list is to
be prepared in terms of the provisions
available in Clause 9 of the Government
Order dated 24.07.2003.

20. When we examine the said
submission advanced by learned counsel
appearing
for
the
appellants-State
authorities vis-a-vis the findings recorded
by learned Single Judge in the judgment
and order under appeal, what we find is that
the learned Single Judge has observed that
on promulgation of the 2015 Service Rules
for both the cadres, the Government Order
dated 24.07.2003 lost its existence and as
such determination of combined seniority
list is to be made in accordance with the
provisions contained in Rule 7 of the Rules
of 1991.

21. For reflecting upon the aforesaid
issue, we need to consider the statutory
prescriptions governing the conditions of
service of members of both the cadres.

22. Prior to the year 2008, recruitment
to the post of Sub Inspectors in both the
cadres, namely, in the cadre of Civil Police
as also in the cadre of Armed Police/P.A.C.
used to be made in terms of certain
government orders issued which were
referable to Section 2 of the Act of 1861,
however, in the year 2008, two sets of
statutory rules were framed by the State
Government which are known as (1) Uttar
Pradesh Sub-Inspector and Inspector (Civil
Police) Service Rules, 2008 and (2) Uttar
Pradesh Pradeshik Armed Constabulary
Subordinate Officers Service Rules, 2008.
The first set of Rules relating to SubInspectors and Inspectors in Civil Police
were framed by the State Government in
exercise of its powers conferred on it under
Section 46 (3) and 46 (2) (c) read with
Section 2 of the Act of 1861, whereas 2008
Service Rules relating to the Subordinate
Officers of U.P. Armed Constabulary were
made by the State Government in exercise
of its powers conferred on it under Section
15 of United Provinces Pradeshik Armed
Constabulary Act, 1948. Thus, these two
sets of Rules framed in 2008 by the State
Government are statutory in nature. The
2008 Service Rules pertaining to SubInspectors and Inspectors (Civil Police)
732 INDIAN LAW REPORTS ALLAHABAD SERIES
were notified by the State Government on
02.12.2008. The said notification itself
states that 2008 Service Rules were framed
in supersession of all existing Rules.
Similarly the 2008 Service Rules framed by
the State Government in respect of the SubInspectors and Inspectors pertaining to
equivalent rank officers in the Armed
Police/P.A.C. also provides that the said
Rules were framed in supersession of all
the then existing Rules. Thus, if we read
the two notifications issued by the State
Government both on 02.12.2008, whereby
the two sets of aforesaid 2008 Service
Rules were notified, what we find is that on
promulgation of those Rules the earlier
Rules stood issued in this behalf stood
superseded.

23. Subsequently, in supersession of
even 2008 Service Rules, the State
Government promulgated Uttar Pradesh
Sub-Inspector and Inspector (Civil Police)
Services Rules, 2015 which were notified
in August 19, 2015. Similarly, for the
purposes of governing the conditions of
service
of
the
Sub-Inspectors
and
Inspectors (Armed Police)/P.A.C., the State
Government promulgated another set of
Rules known as Uttar Pradesh (Pradeshik
Armed Constabulary) Subordinate Officers
Service Rules, 2015 which were notified on
August 14, 2015.

24.

In
the
instant
case
the
appointment of the petitioner-respondent
no. 1 was made in the year 1986 on the post
of Sub-Inspector (Armed Police) and he
was promoted to the post of Inspector
(Armed Police) on 24.02.2014, whereas the
combined seniority list for the purposes of
Rule 16 of the Rules of 2016 has been
prepared in the year 2019. Thus, so far as
the determination of seniority on the post of
Inspector separately these two separate
cadres is concerned, the provisions of the
aforementioned two sets of Service Rules,
2015 will have to be seen.

25. In the Service Rules, 2015
pertaining to Sub-Inspectors and Inspectors
(Civil
Police)
the
relevant
provision
relating to determination of seniority is
available in Rule 22 of Rules of 2015.
Similarly so far as the determination of
seniority
of
Sub-Inspectors/Inspectors
(Armed Police)/P.A.C. is concerned, the
relevant Rule available in 2015 Rules and
applicable to them is Rule 22.

26. We may make it clear that Rule
22 in both the aforesaid two sets of Rules
2015 does not anywhere speak that
determination of seniority in the respective
cadres shall be made in accordance with the
provisions contained in Rules of 1991,
which have been framed under Article 309
of the Constitution of India whereas the
aforesaid two sets of Service Rules, 2015
were framed by the State Government by
virtue of the powers conferred on its under
the Police Act or the United Provinces
Pradeshik Armed Constabulary Act, 1948.

27. However, what we further notice
is that the Service Rules governing the
conditions of service which will include the
process of recruitment as well on the post
of the Deputy Superintendent of Police
have been framed by the State Government
under Article 309 of the Constitution of
India. The Rules of 2016 clearly do not
make any mention that they were framed
under the Police Act; rather the notification
whereby the Rules of 2016 were notified
makes it abundantly clear that the same
have been framed by the State Government
under the proviso appended to Article 309
of the Constitution of India. Thus, in our
considered opinion, any prescription made
4 All. State of U.P. & Ors. Vs. Vijay Singh
733
by the State Government by issuing an
executive circular or order which owes its
existence to either the Police Act or the
P.A.C. Act, 1948 will have no application
so far as the regulation of conditions of
service
of
the
cadre
of
Deputy
Superintendent of Police is concerned.

28. Having observed as above, what
we also notice is that though Rule 16 of the
Rules of 2016 envisages preparation of a
'combined seniority list' for the purposes of
making promotions to the post of Deputy
Superintendent of Police, however, as to
what will be the criteria for preparation of
the said 'combined seniority list' is not
provided in 2016 Rules. Learned State
Counsel has also not been able to place any
other
Government
Order,
executive
circular/statutory Rules which provide for
any procedure or criteria for determining
the 'combined seniority list' mentioned
under Rule 16 of the Rules of 2016 except
the Government Order dated 24.07.2003,
which, admittedly, has been issued by the
State Government under Section 2 of the
Act of 1861.

29. An attempt has been made by the
learned State Counsel to submit that in fact
the entire police force is one having been
created under the Police Act and existence
of the entire Police Force including the
Deputy Superintendent of Police can be
traced in the provisions of Police Act and,
as such, the Government Order dated
24.07.2003 will have application so far as
the determination of 'combined seniority
list' for the purposes of making the
promotion
to
the
post
of
Deputy
Superintendent of Police is concerned.

30. In his submissions to the extent
that entire police force is one, learned State
Counsel may be correct, however, for
regulating the conditions of service of
Deputy Superintendent of Police, no
Service Rules have been framed under the
Police Act. The Service Rules regulating
the conditions of service of the SubInspectors and Inspectors both in Civil
Police and Armed Police have been framed
under the Police Act and the P.A.C. Act
whereas the Rules governing the conditions
of service including the recruitment on the
post of the Deputy Superintendent of Police
have been framed under Article 309 of the
Constitution of India. The submission of
learned State Counsel may have been
correct, had the Rules regulating the
conditions
of
service
of
Deputy
Superintendent of Police been also framed
under the Police Act.

31. As already observed above, there
is no document on record, statutory or nonstatutory, which can be said to throw some
light as to how and on what criteria the
'combined seniority list' as envisaged in
Rule 16 of the Rules of 2016 is to be
prepared. There is no doubt to the
submissions made by learned counsel
representing the appellants that it is general
law acceptable to all canons of service
jurisprudence that the seniority of any
government employee is to be reckoned
from
the
date
of
his
substantive
appointment, however, for the purposes of
preparing the 'combined seniority list' in
terms of the requirement of Rule 16 of
2016 Rules no prescription is available.
What we notice in this case is that the
respondent no.1-petitioner was appointed
on the post of Sub-Inspector four years
ahead of the appointment of one Ram Pal
Singh, who has been shown to be senior in
the 'combined seniority list' which was
under challenge before the learned Single
Judge. Despite having been appointed on
the initial post prior in time if a government
734 INDIAN LAW REPORTS ALLAHABAD SERIES
employee
faces
reduced
chances
of
promotion, it may cause some heart
burning. In this case the respondent no.1petitioner was placed below an incumbent
belonging to a different cadre who was
appointed on the initial post after him
which may give rise to some anomalous
situation, however, all this lies in the realm
of policy decision in respect of which is to
be taken by the Government.

32. In the light of the discussions
made above, what this court finds is that
unless and until the State Government
provides for some objective criteria for the
purposes of preparing the 'combined
seniority list' as envisaged in Rule 16 of the
Rules
of
2016,
which
can
more
appropriately be described as 'eligibility list
for the purpose of promotion', there will
always be chances of there being a grey
area which may not be conducive to proper
cadre management.

33. As far as the judgment rendered
by learned Single Judge, which is under
appeal herein is concerned, the learned
Single Judge has though found that the
Government Order dated 24.07.2003 is
non-existent after promulgation of two sets
of 2015 Service Rules, however, learned
Single Judge has further proceeded to give
a direction to prepare the joint seniority list
in terms of Rule 7 of the Rules of 1991.

34. We are unable to agree with the
said directions given by learned Single
Judge vide judgment and order under
challenge herein. U.P. Government Service
Seniority Rules, 1991 have been framed
under Article 309 of the Constitution of
India, thus will have full application for the
purposes of determination of seniority on
the post of Deputy Superintendent of
Police, however, in the instant case the
seniority
on
the
post
of
Deputy
Superintendent of Police or even on the
post of Inspector (Civil Police) or on the
post of Inspector (Armed Police) is not to
be reckoned; rather what needs to be
prepared is the 'combined seniority list' for
the purposes of making promotions on the
post of Deputy Superintendent of Police in
terms of Rule 16 of the Rules of 2016.

35. Rule 7 of Rules of 1991 is
extracted hereinbelow:

"(7). Where according to the service
rules, appointments are to be made only
by promotion but from more than one
feeding cadres, the seniority inter se of
persons appointed on the result of any one
selection shall be determined according to
the date of the order of their substantive
appointment in their respective feeding
cadres.

Explanation:- Where the order of the
substantive appointment in the feeding
cadre specifies a particular back date with
effect from which a person is substantively
appointed, that date will be deemed to be
the
date
of
order
of
substantive
appointment and, in other cases it will
meant the date of issuance of the order:

Provided that where the pay scales of
the feeding cadres are different, the
persons promoted from the feeding cadre
having higher pay scale shall be senior to
the persons promoted from the feeding
cadre having lower pay scale:

Provided further that the persons
appointed on the result of a subsequent
selection shall be junior to the persons
appointed on the result of a previous
selection.?

36. The afore-quoted Rule 7 of the
Rules of 1991 provides for the procedure as
to how the seniority is to be determined in a
4 All. Gaya Prasad Pandey Vs. State of U.P. & Ors.
735
situation where appointment on a particular
post is made by promotion from several
feeding cadres that is to say Rule 7 will
have an application for the purposes of
determination
of
seniority
once
the
promotion from the feeding cadres is made.
In this case Rule 7 of the Rules of 1991
will have application only once promotion
to the post of Deputy Superintendent of
Police is made from the two feeding cadres,
namely the cadre of Inspectors (Civil
Police) and the cadre of Inspectors (Armed
Police) and thereafter seniority list is to be
determined
on
the
post
of
Deputy
Superintendent of Police. Rule 7 is thus
available and applicable for the purposes of
determining
the
seniority
once
the
promotion is made and not prior to that.
The seniority list to be prepared under the
Government Servant Seniority Rules is not
to be confused by the 'combined seniority
list' which phrase occurs in Rule 16 of the
Rules of 2016.

37. In view of the aforesaid
discussions, we are of the considered
opinion that Rule 7 of Rules of 1991 does
not have any application for the purposes of
preparation of the 'combined seniority list'
as envisaged under Rule 16 of the Rules of
2016.

38. For the reasons aforesaid, we are
unable to agree with the judgment and
order passed by learned Single Judge, dated
22.09.2021, in Writ Petition No.34799 (SS)
of 2019.

39. The Special Appeal is, thus,
allowed and the said judgment passed by
learned Single Judge is hereby set aside.

40. We, however, while allowing the
special appeal, also direct the State
Government to consider framing of some
objective criteria for the purposes of
preparation of combined seniority list to be
prepared as per the requirement of Rule 16
of the Rules of 2016 for making promotion
to the Ordinary Grade of service as
described in the Uttar Pradesh Police
Service Rules, 2016. The said criteria shall
be framed by the State Government within
a period of two months from the date a
certified copy of this order is furnished.
The necessary exercise for promotion to the
post of Deputy Superintendent of Police
shall be undertaken thereafter.

41. There will be no order as to costs.
----------
(2022)04ILR A735
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 2630 of 2020

Gaya Prasad Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Samir Sharma, Sri Ajay Kumar Srivastava

Counsel for the Respondents:
C.S.C., Sri Awadhesh Kumar Saxena, Sri Avijit
Saxena

A. Service Law - UP Government Servants
(Disposal
of
Representation
Against
Adverse Annual Confidential Reports and
Allied Matters) Rules, 1995 - Rules 3, 4 &
5
-
Promotion
-
Adverse
entry
-
Representation
made
against
adverse
entry - Statutory period of 172 was
provided
to
take
decision
on
such
representation - Period of 172 days was
expired on 09.11.2017, but no decision
was taken on such representation - Other
adverse entry stood expunged - Effect -