# Sushil Kumar Singh & Ors v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 383
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-24
- **Case number:** Writ A No. 4924 of 2021
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-singh-ors-v-state-of-u-p-ors-46337
- **Pages:** 25

## Headnote

A. Service Law - Post of Sub-Inspector,
Police - Recruitment - No advertisement
for the Recruitment years 2017-18, 201819 and 2019-20 - Age relaxation, claimed
- Held, only because advertisements were
not issued to fill up the vacancies arising
in respective recruitment years 2017-18,
2018-19 and 2019-20 would not mean
that petitioners acquire an unfeasible
right of relaxation in maximum age
prescribed for appointment to the posts,
contrary to what is provided under the
relevant rules. (Para 34)
B. Service Law - UP Sub-Inspector and
Inspector (Civil Police) Service Rules,
2015 - R. 3(o) - Recruitment years -
Meaning - Year of recruitment is defined
to mean a period of twelve months
commencing the first day of July of a
calendar year. (Para 21)
C. Service Law - Policy matter - Judicial
review - Scope of interference - Fixation
of minimum and maximum age is a matter
of policy and lies within the domain of
executive - Held, unless the policy is
found to be contrary to law or otherwise
irrational or perverse no interference
would be warranted. (Para 72)
D. Service Jurisprudence - Right and relief
- Accrual of vacancy - Right to apply -
Grant of relief is directly linked to the
nature of right possessed by one and not
on the basis of declaration of right - Held,
an eligible candidate has no right to apply
against a post on accrual of vacancy.
When a candidate has no right to apply on
a post on accrual of vacancy, therefore, no
right
shall
accrue
to
a
prospective
candidate for consideration of his claim
regarding age relaxation. (Para 26 and 27)
E.
Jurisprudence
-
Doctrine
of
Impossibility - Maxim 'lex non cogit ad
impossibilia' - Court shall not expect the
State authorities to do what cannot
possibly be performed by it. (Para 50)
F. Civil Law - State's undertaking before
the
Court
-
Justifiability
-
Nonobservation of undertaking - It's effect -
Held, the petitioners cannot assert that
non observance of undertaking before the
Supreme
Court
by
holding
annual
recruitment would either create a right in
them to claim relaxation in upper age of
recruitment. (Para 66)
G. Service Jurisprudence - Right to
employment - Principle of legitimate
expectation
-
Ambit
and
Scope
-
Substantive legitimate expectation and
procedural
legitimate
expectation
-
Distinction - Change in policy - It's effect
- Overriding public interest which was the
reason for change in policy has to be given
due weight while considering the claim of
the
respondents
regarding
legitimate
expectation - In order to make out a case
for substantive legitimate expectation, it
will have to be shown that change in
policy is not on account of changed
circumstances or in public interest and
that the action is otherwise arbitrary and
unreasonable. (Para 67 and 68)
Writ petition dismissed. (E-1)
Cases relied on :-
384 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

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10 All. Sushil Kumar Singh & Ors. Vs. State of U.P. & Ors.
383
(2021)10ILR A383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2021

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 4924 of 2021
connected with other cases

Sushil Kumar Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Prashant Mishra, Sri Tarun Agarwal

Counsel for the Respondents:
C.S.C., Sri Vikram Bahadur Yadav, Mrs.
Akansha Sharma

A. Service Law - Post of Sub-Inspector,
Police - Recruitment - No advertisement
for the Recruitment years 2017-18, 201819 and 2019-20 - Age relaxation, claimed
- Held, only because advertisements were
not issued to fill up the vacancies arising
in respective recruitment years 2017-18,
2018-19 and 2019-20 would not mean
that petitioners acquire an unfeasible
right of relaxation in maximum age
prescribed for appointment to the posts,
contrary to what is provided under the
relevant rules. (Para 34)
B. Service Law - UP Sub-Inspector and
Inspector (Civil Police) Service Rules,
2015 - R. 3(o) - Recruitment years -
Meaning - Year of recruitment is defined
to mean a period of twelve months
commencing the first day of July of a
calendar year. (Para 21)
C. Service Law - Policy matter - Judicial
review - Scope of interference - Fixation
of minimum and maximum age is a matter
of policy and lies within the domain of
executive - Held, unless the policy is
found to be contrary to law or otherwise
irrational or perverse no interference
would be warranted. (Para 72)
D. Service Jurisprudence - Right and relief
- Accrual of vacancy - Right to apply -
Grant of relief is directly linked to the
nature of right possessed by one and not
on the basis of declaration of right - Held,
an eligible candidate has no right to apply
against a post on accrual of vacancy.
When a candidate has no right to apply on
a post on accrual of vacancy, therefore, no
right
shall
accrue
to
a
prospective
candidate for consideration of his claim
regarding age relaxation. (Para 26 and 27)
E.
Jurisprudence
-
Doctrine
of
Impossibility - Maxim 'lex non cogit ad
impossibilia' - Court shall not expect the
State authorities to do what cannot
possibly be performed by it. (Para 50)
F. Civil Law - State's undertaking before
the
Court
-
Justifiability
-
Nonobservation of undertaking - It's effect -
Held, the petitioners cannot assert that
non observance of undertaking before the
Supreme
Court
by
holding
annual
recruitment would either create a right in
them to claim relaxation in upper age of
recruitment. (Para 66)
G. Service Jurisprudence - Right to
employment - Principle of legitimate
expectation
-
Ambit
and
Scope
-
Substantive legitimate expectation and
procedural
legitimate
expectation
-
Distinction - Change in policy - It's effect
- Overriding public interest which was the
reason for change in policy has to be given
due weight while considering the claim of
the
respondents
regarding
legitimate
expectation - In order to make out a case
for substantive legitimate expectation, it
will have to be shown that change in
policy is not on account of changed
circumstances or in public interest and
that the action is otherwise arbitrary and
unreasonable. (Para 67 and 68)
Writ petition dismissed. (E-1)
Cases relied on :-
384 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Y.V. Rangaiah Vs J. Srinivas Rao; (1983) 3
SCC 284
2. D.D.A. Vs Skipper Construction Co.; (1996) 4
SCC 622
3. Noorali Babul Thanewala Vs K.M.M. Shetty &
ors.; (1990) 1 SCC 259
4. SLP (Civil) No. 846 of 1987; R.K. Rama Rao
Vs St. of A.P. decided on 8.5.1087
5. Ram Pravesh Singh & ors. Vs St. of Bihar &
ors.; (2006) 8 SCC 381
6. State of Jharkhand Vs Brahmaputra Metallics
Ltd. & anr.; 2020 SCC Online SC 968
7. Rama Narang Vs Ramesh Narang & anr.;
(2009) 16 SCC 126
8. Sabarimala Review case, (2020) 2 SCC 1
9. Spencer & Co. Vs Vishwadarshan Distt. Pvt.
Ltd.; (1995) 1 SCC 259
10. Civil Appeal No. 52 of 1993; Rajasthan
Public Service Commission Vs Smt. Anand
Kanwar & ors. decided on 8.2.1995
11. Shankarsan Dash Vs U.O.I.; 1991(3) SCC 47
12. Dinesh Pratap Singh Vs St. of U.P. & ors.;
2005 SCC online (All) 1020
13. Hirandra Kumar Vs High Court of Judicature
at Allahabad & anr.; 2019 SCC online SC 254
14. Sanjay Agarwal Vs St. of U.P. & ors.; 2007
(6) ADJ 272
15. Writ petition no. 65189 of 2006; Sanjay
Kumar Pathak Vs St. of U.P. & ors. decided on
25.052007
16. Chandra Kishore Jha Vs Mahavir Prasad &
ors.; 1999 (8) SCC 266
17. Kerala State Beverages (M and M) Corp. Ltd.
Vs P.P. Suresh & ors.; (2019) 9 SCC 710

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Recruitment to 9534 posts of SubInspector, Civil Police (Male and Female),
Platoon Commander PAC, and Second
Officer in Fire Brigade came to be initiated
by the Government of Uttar Pradesh, in
furtherance of which an advertisement was
issued by U.P. Police Recruitment Board,
Lucknow (hereinafter referred to as the
''Board') on 24.2.2021. The advertised
vacancies were of the recruitment years
2017-18, 2018-19 and 2019-20, respectively.
Clause 3.4 of the advertisement required the
age of applicant to be not below 21 years and
not above 28 years as on 1.7.2021. Age
relaxation
was
permissible
for
SC/ST
candidates in terms of the State policy. The
recruitment is regulated by the provisions of
the
Uttar
Pradesh
Sub-Inspector
and
Inspector (Civil Police) Service Rules, 2015
(hereinafter referred to as the ''Rules of
2015').

2. On the relevant date i.e. 1.7.2021 all
the writ petitioners were above 28 years of
age and therefore ineligible to apply against
aforesaid
advertisement.
Petitioners,
however,
assert
that
since
advertised
vacancies are of the years 2017-18, 2018-19
and 2019-20 and therefore, they be permitted
to apply against the advertisement inasmuch
as they were eligible when the vacancies
arose, being below 28 years of age on the
date vacancies occurred. It is also contended
that respondents failed to advertise the
vacancies in respective years despite an
assurance having been given before the
Supreme Court. As such the maximum age
specified in Clause 3.4 of the advertisement
be relaxed for them, as a one time measure, to
enable them to apply for the recruitment in
question.

3. Since prayer is made in this bunch
of writ petitions is substantially the same,
Writ Petition No.4924 of 2021 (Sushil
Kumar Singh And 127 Others Vs. State Of
U.P. And 2 Others) is treated as leading
writ petition, wherein following prayer has
been made:-
10 All. Sushil Kumar Singh & Ors. Vs. State of U.P. & Ors.
385

"I) Issue a writ, order or direction
in the nature of mandamus commanding
the respondent no.1 to exercise powers
under Section 46(2)(c) and 46(3) of the
Police Act, 1861 and relax the upper age
limit as provided in Rule 10 of the Uttar
Pradesh Sub-Inspector and Inspector (Civil
Police) Service Rules, 2015 (hereinafter
referred to as "Rules, 2015").

II) Issue a writ, order or direction
in the nature of mandamus commanding
the respondent no.1 to grant age relaxation
to the petitioners and permit them to apply
in pursuance of the advertisement dated
24.2.2021 by suitably amending the terms
of the advertisement thereof;"

4. Petitioners have claimed above
relief primarily on the basis of the orders
passed by Supreme Court of India in Writ
Petition (C) No. 183 of 2013 (Manish
Kumar Vs. Union of India and others).
According to them the State is bound by its
undertaking given before the Court to fill
up the vacancies caused in the respective
recruitment years, annually, and their
failure to honour such commitment has
denied an opportunity to petitioners to
apply for recruitment made to the posts of
Sub-Inspector, Civil Police (Male and
Female), Platoon Commander PAC, and
Second Officer in Fire Brigade under
advertisement dated 24.2.2021.

5. Before proceeding to examine the
claim
of
petitioners,
it
would
be
appropriate to refer to the relevant
provisions of Rules of 2015, which shall
regulate
recruitment,
selection
and
appointment
etc.
on
the
posts
so
advertised. The Rules of 2015 have been
framed by the Governor in exercise of
powers under Clause (c) of Sub-section
(2) of Section 46 read with Sub-section
(3) of the said section and Section 2 of
the Police Act, 1861 with a view to
regulate selection, promotion, training,
appointment, determination of seniority
and confirmation etc. of Sub-Inspectors
and Inspectors of Civil Police in Uttar
Pradesh Police Force.

6. Rule 3(b) specifies appointing
authority to mean the Deputy Inspector
General of Police, while Sub-rule (c)
defines Board i.e. Uttar Pradesh Police
Service
Recruitment
and
Promotion
Board. Rule 3(b), (c), (i), (m), (n) & (o)
of the Rules of 2015 have bearing on the
issues
involved
herein
and
are
accordingly reproduced hereinunder:-

"3. In these rules unless there is
anything repugnant in the subject or
context,

(b) ''appointing authority' means
the Deputy Inspector General of Police;

(c) ''Board' means the Uttar
Pradesh Police Service Recruitment and
Promotion
Board,
established
in
accordance with Government Orders
issued from time to time in this regard;

(i) ''Member of services' means
a person appointed to a post in service
under these rules or any previous rules
before the commencement of these rules.

(m) ''Service' means the Uttar
Pradesh Sub-Inspector and Inspector
(Civil Police) Service;

(n)
''Substantive
appointment'
means an appointment, not being an adhoc
appointment, on a post in the cadre of the
service, made after selection in accordance
with the rules and, if there were no rules, in
386 INDIAN LAW REPORTS ALLAHABAD SERIES
accordance with the procedure prescribed
for the time being by executive instructions
issued by the Government;

(o) ''Year of recruitment' means a
period of twelve months commencing on
the first day of July of a calendar year."

7. Rule 5 of Rules of 2015 provides
for source of recruitment. By virtue of Subrule 1, 50% of appointment on the post of
Sub-Inspector has to be made by direct
recruitment through the Board. Rule 10
prescribes the age and is, therefore,
relevant for our purposes, which reads as
under:-

"10. A candidate for direct
recruitment must have attained the age of
21 years and must not have attained the age
of more than 28 years on the first day of
July of a calendar year in which vacancies
for direct recruitment are advertised:

Provided that the upper age limit
in the case of candidate belonging to the
Scheduled Caste, Scheduled Tribes and
such other categories may be greater by
such number of years as may be specified
in the Act and prevalent Government
Orders applicable at the time of the
notification of the vacancies by the Board."

8. Rule 14 of Rules of 2015 provides
for determination of vacancies and is
quoted hereinafter:-

"14. The appointing authority
shall determine and intimate to the Head of
the Department the number of vacancies to
be filled during the course of the year of
recruitment as also the number of vacancies
reserved for candidates belonging to
Scheduled Castes, Scheduled Tribes and
other categories under rule 6. The Head of
the Department shall intimate the number
of vacancies for both male and female
candidates separately, to the Board and also
to the Government. Subsequently the Board
shall notify the vacancies for both male and
female
candidates
separately
in
the
following manner:-

(i) by issuing advertisement in
daily Hindi and English newspapers having
wide circulation;

(ii) by pasting the notice on the
notice board of the office or by advertising
through
Radio/Television
and
other
Employment newspapers;

(iii) by notifying vacancies to the
Employment Exchange; and

(iv) by other means of mass
communication."

9. Rule 19 provides for training which
is to be imparted to Sub-Inspectors selected
under Rule 15 and 16 of the Rules of 2015.
Rule 19 is also extracted hereinafter:-

"19. (1)(a) The candidates finally
selected to the post of sub inspector under
rules 15 and 16 shall be required to pass the
training prescribed by the Head of the
Department. Provisions of Police Training
College Manual shall be effective on the
cadets during the basic training. If the
candidate finally selected for basic training
does not report for training within the
stipulated
time
limit
then
his
selection/candidature shall be cancelled.

(b) Re-examination of the cadets
failing in basic training shall be organized
by the Head of the Department after their
supplementary training. The proceeding for
termination of service of candidates failing
10 All. Sushil Kumar Singh & Ors. Vs. State of U.P. & Ors.
387
in
examination
of
training
after
supplementary training shall be done by the
Appointing Authority.

2. The candidates appointed by
promotion under rule 17 shall be required
to complete the training prescribed by the
Head of the Department."

10. Writ Petition (C) No.183 of 2013
(supra) which was in the nature of public
interest litigation (PIL) was entertained by
Supreme Court of India wherein one of the
grievances raised was with regard to nonrecruitment
of
police
personnels
in
different States and Union Territories of
India. On 24.4.2017 the Court passed
following order:-

"State of Uttar Pradesh

1. 11,376 vacant posts of SubInspector of Police, are to be filled up by
way of direct recruitment. Mr. Debasish
Panda,
Principal
Secretary
(Home),
Government of Uttar Pradesh, who is
present in Court in person, affirms, that
3200 vacancies of the posts of SubInspector of Police, will be filled up each
year over four years commencing from the
year 2018. The advertisement notifying the
vacancies for 2018 will be issued in the
month of January, 2018, the result of the
selection process will be declared in
October, 2018, the training of the selected
candidates will commence in February,
2019, and will conclude in January, 2020.
The schedule for the next three years, we
are assured, will remain the same, as for the
year 2018.

2.
Insofar
as
the
posts
of
Constables of Police are concerned, which
are also to be filled up by direct recruitment,
it was submitted, that 30000 Constables will
be recruited annually for four years, i.e.,
during the years 2017, 2018, 2019 and 2020.
The
annual
process
of
issuing
the
advertisement, notifying the vacancies will be
published in August every year. The results
thereof will be declared in June of the
following year. For each process of selection,
training will commence in the month of
October in the year of the declaration of the
result, and the training process will conclude
in the month of September of the next
following year.

3.
We
hereby
approve
the
recruitment process for selection of direct
recruits, at the level of Sub-Inspector of
Police, as also, that of Constables of Police.

4. We also further direct, that
promotions to the various ranks shall be made
from time to time as may be feasible,
depending on the cadre strength.

5. Mr. Debasish Panda, Principal
Secretary (Home), Government of Uttar
Pradesh, who is present in Court in person,
shall ensure that the selection, recruitment
and training is conducted in the manner
indicated hereinabove (which is truly the
proposal submitted by the State Government
itself). For ensuring that the submission made
to this Court is not breached, we direct the
Principal Secretary (Home), Government of
Uttar Pradesh to ensure, that the Chairman of
the Police Recruitment and Selection Board
shall not be changed midstream, i.e., during
the period intervening the issuance of the
advertisement notification(for filling up the
vacancies of different cadres) till the process
of selection is completed.

6. In case of breach of the time
lines indicated hereinabove, the officer
mentioned hereinabove, shall be personally
responsible."
388 INDIAN LAW REPORTS ALLAHABAD SERIES

Aforesaid writ petition has since been
disposed of, finally, vide following order
passed on 11.3.2019:-

"The prayers made in the writ
petition as amended in terms of the
Interlocutory Application No. 2 of 2013
read as follows:

"A. Direction to all the States &
Union Territories to constitute Police
Commission to deal with allegation of
police action, redressal of grievances of
police and to make recommendations for
the welfare of police force.

B. Directions to the States to
formulate and implement the guidelines
for prevention and control of violent mass
agitations and destruction of life &
property, in terms of the guidelines
suggested by this Hon'ble Court in the
decision reported as 2009(5)SCC 212.

C. Directions to the States and
Union Territories to fill up the vacant
posts in the Police and State Armed
forces so that the police forces does not
remain overburdened.

D. Directions to all the States
and Union Territories to provide for
periodic training and upgradation of
police force and to fix the working hours
for the police personnel.

E. Direction to the Union of
India to prescribe guidelines for the
Media Reporting of the violent mass
agitation and police action for prevention
and control thereof.

F. Order or Direction restraining
the States from drawing a presumption
against the action of police acting under
the
constitutional
and
statutory
obligations."

From the material on record and
the Orders passed by this Court from time
to time it appears that one of the central
issues canvassed till date is the filling up
of the large number of vacancies in the
different posts in the police forces in the
States. In this regard detailed affidavits
have been filed by a large number of
States. In view of the factual matrix at
some point of time it was in the
contemplation of the Court that the matter
be sent to High Court(s) for effective
monitoring
instead
of
this
Court
continuing with the present writ petition.
Issue and problems are State specific and
can be appropriately dealt with by the
respective High Courts.

Having considered the matter, we
are of the view that the records pertaining to
each of the States including affidavits etc. be
sent by the Supreme Court Registry to the
Registry of the concerned High Courts with a
request to Hon'ble the Chief Justice of the
High Court to entertain the matter on the
Judicial Side as suo motu Public Interest
Litigation and monitor the prayers made from
time to time.

With the aforesaid directions and
observations, this Writ Petition shall stand
disposed of."

11. Petitioners contend that while
abovenoted writ petition was pending
consideration before Supreme Court, a
similar
controversy
arose
regarding
appointments for the posts of Constable on
account
of
delayed
issuance
of
advertisement, in Special Leave to Appeal
(C) No.12569 of 2018, arising out of a
judgment of this Court dated 16.2.2018 in
10 All. Sushil Kumar Singh & Ors. Vs. State of U.P. & Ors.
389
Writ
Petition
No.6128
of
2018.
Advertisement to fill up vacancies for the
year 2017 was published on 14.1.2018 in
the above matter. On account of above
large number of applicants were deprived
from applying since they became overage
between 1.7.2017 to 30.6.2018. It was thus
urged on behalf of aspiring candidates that
in case vacancies of the year 2017 were
advertised in calendar year 2017 itself then
such candidates would have had a chance
to compete. For Constables the required
age was 18 to 22 years as on 1.7.2018. The
State Government in above scenario took a
benevolent decision to allow age relaxation
which is recorded in the following order
passed by the Supreme Court on 13.6.2018
in above mentioned special leave to
appeal:-

"1. Order dated 24th April, 2017
passed by this Court in Writ Petition (Civil)
No.183 of 2013, as regards State of Uttar
Pradesh recorded as under:-

"2. Insofar as the posts of
Constables of Police are concerned, which
are also to be filled up by direct
recruitment, it was submitted, that 30000
Constables will be recruited annually for
four years, i.e., during the years 2017,
2018, 2019 and 2020. The annual process
of issuing the advertisement, notifying the
vacancies will be published in August
every year. The results thereof will be
declared in June of the following year. For
each process of selection, training will
commence in the month of October in the
year of the declaration of the result, and the
training process will conclude in the month
of September of the next following year.

3.
We
hereby
approve
the
recruitment process for selection of direct
recruits, at the level of SubInspector of
Police, as also, that of Constables of
Police."

2. It has been stated at the bar that
the last selection for the posts of Constables
of Police in State of Uttar Pradesh through
the Selection Board was undertaken in the
year 2015. In spite of the statement so
recorded in the aforesaid order, no selection
was
undertaken
in
the
year
2017.
Apparently,
the
process
for
making
appropriate modifications in the Rules was
underway.
The
advertisement
was
thereafter issued on 14.01.2018 which is
annexed at Page No.65 of the paper-book.

3. Rule 10 of the Uttar Pradesh
Police Constable and Head Constable
Services Rules, 2015 stipulates that for
direct recruitment for the post of constable,
male candidates must have attained the age
of 18 years and must not have attained the
age of 22 years on the day of 1st July of the
calender year in which the vacancies for
direct recruitment are advertised. Since the
advertisement in question was issued on
14.01.2018, the reckonable date for the
purpose of Rule 10 is to be 01.07.2018.

4. The grievance raised by the
petitioners is - that the prescribed age limit
of not less than 18 years and not more than
22 years is such a short period that if the
selections are not undertaken on year to
year basis the concerned candidates are
bound to be prejudiced. It is their
submission that since a representation was
made, which was duly recorded in the order
quoted hereinabove that selection would be
undertaken
in
the
year
2017,
an
advertisement ought to have been issued in
that year itself. However, since the
advertisement was issued in January, 2018,
going by the text of the Rules the reckoning
date would be 01.07.2018. Since the last
390 INDIAN LAW REPORTS ALLAHABAD SERIES
selection was in the year 2015 and if the
reckoning date today is taken to be
01.07.2018 large body of candidates
including the petitioners stand deprived of
chance to compete. It is, therefore,
submitted that since the selection was to be
undertaken in the year 2017, in the fitness
of things the reckoning date should be
01.07.2017.
Resultantly,
candidates
including the petitioners would not become
age barred for the purpose of being
considered for selection. We see force in
the submission and find that the grievance
so raised merits consideration.

5. We, therefore, put to Mr. V.
Shekhar,
learned
senior
counsel
representing State of Uttar Pradesh and
asked him to take appropriate instructions
in the matter so that the grievance raised by
the petitioners could be appropriately
addressed.

6. Mr. V. Shekhar, learned senior
counsel after seeking instructions from
Principal
Secretary
(Home),
made
following statement:-

- In the ensuing examination after
the present selection, an exception shall be
made in favour of such candidates who
missed out merely because the date of
reckoning for the present selection happens
to be 01.07.2018 instead of 01.07.2017 and
at least one more chance shall be given to
such candidates to compete.

7. We record the statement and
direct the State through its Principal
Secretary (Home), to file an appropriate
affidavit detailing out the facility to be
afforded to such candidates. Said affidavit
shall be filed within seven days from today
and shall form part of the record. On the
strength of the statement of Mr. V.
Shekhar,
learned
senior
counsel,
we
dispose of this special leave petition.

No further order is called for in
the impleadment application.

Pending applications, if any, shall
also stand disposed of. "

12. Petitioners herein by drawing a
parallel with above order contend that they
are identically placed, and therefore State
Government
cannot
be
allowed
to
discriminate against them. The argument is
that
State
Government
cannot
act
differently, in similar circumstances, and
that State action in denying age relaxation
to the petitioners is discriminatory and
violative of Article 14 of the Constitution
of India. In short it is pleaded on behalf of
petitioners that there should be similar
treatment in similar circumstances as
different
treatment
in
equal/similar
circumstances amounts to discrimination.
In the garb of classification, discrimination
cannot be allowed. It is also urged that
petitioners legitimately expected that State
Government shall honour the undertaking
given before the Supreme Court and this
Court
must
compel/bind
the
State
Government to act upon its undertaking
given to the Supreme Court. In furtherance
of aforesaid it is urged that a party which
gives an undertaking before the Court
cannot be permitted to resile from the
undertaking/promise so given. To lend
support to aforesaid, reliance is placed
upon judgments of Supreme Court in Y.V.
Rangaiah Vs. J. Srinivas Rao, (1983) 3
SCC 284; D.D.A. Vs. Skipper Construction
Company, (1996) 4 SCC 622; Noorali
Babul Thanewala Vs. K.M.M. Shetty and
others, (1990) 1 SCC 259, and also an
order of the Supreme Court in SLP (Civil)
No.846 of 1987 (R.K. Rama Rao Vs. State
10 All. Sushil Kumar Singh & Ors. Vs. State of U.P. & Ors.
391
of A.P.), decided on 8.5.1087. The plea of
legitimate expectation is also pressed with
reference to the judgments of Supreme
Court in Ram Pravesh Singh and others Vs.
State of Bihar and others, (2006) 8 SCC
381; State of Jharkhand Vs. Brahmaputra
Metallics Ltd. and another, 2020 SCC
Online SC 968. Further reliance is placed
upon Rama Narang Vs. Ramesh Narang
and another, (2009) 16 SCC 126 on the
import of term ''undertaking'. Reference is
also placed upon Sabarimala Review case,
(2020) 2 SCC 1 and Spencer & Co. Vs.
Vishwadarshan Distt. Pvt. Ltd., (1995) 1
SCC 259 to contend that this Court is a
judicial authority in terms of Article 144 of
the Constitution of India and therefore must
act in aid of Supreme Court, so as to
compel the State of U.P. to act upon its
undertaking, so given before Supreme
Court itself.

13. On behalf of State respondent and
the Board, it is urged that petitioners do not
have any right to claim age relaxation and
the writ petition merits rejection. It is
sought to be contended that vacancies
occasioned in the years 2017-18, 2018-19
and 2019-20 could not be advertised in the
respective years in which they occurred on
account of pendency of dispute regarding
recruitment for the posts of Sub-Inspector,
Civil Police (Male and Female), Platoon
Commander PAC, and Second Officer in
Fire Brigade undertaken in the year 2016
before this Court, and later before the
Supreme Court of India. It is thus sought to
be contended that the recruitment in the
aforesaid years could not be undertaken for
reasons beyond control of the State/Board
and that the State otherwise has acted
fairly. The case of Constables is attempted
to be differentiated on the ground that only
limited relaxation was allowed, on a timely
challenge, which is not the case here.
Submission is that no right otherwise
accrues to a prospective applicant to claim
age relaxation merely because posts have
not
been
advertised
in
a
particular
recruitment year. The respondents further
contend that more than 12 lac applicants
have
already
applied
against
the
advertisement and the process would be
further delayed if any age relaxation is
allowed to the writ petitioners since similar
plea would then be raised by lacs of
candidates who have become overage
between 2017 to 2021.

14. Affidavits have been exchanged in
the leading writ petition. With the consent
of learned counsel for the parties all the
writ petitions are being disposed of finally
as at the admission stage. Writ Petition
No.4924 of 2021 is taken as the lead case.

15. I have heard Sri Tarun Agrawal
and Sri Prashant Mishra for the petitioners
in the leading writ petition and Sri Manish
Goel, learned Additional Advocate General
assisted by Sri Vikram Bahadur Yadav and
Mrs. Akanksha Sharma for the respondents.
Sri L.M. Singh, Sri R.K. Singh, Sri M.I.
Farooqui and Sri M.H. Qadeer have also
argued for the petitioners in different writ
petitions.

16.
 Undisputed
facts
may
be
summarized in a nutshell. Last recruitment
for the vacant posts of Sub-Inspector was
initiated by the State in the year 2016 with
issuance of advertisement on 17.6.2016.
Written
examination
was
held
from
12.12.2017 to 23.12.2017 and the final
result was declared on 28.2.2019. Large
number of writ petitions were filed before
this Court and also before Lucknow Bench
challenging the select list. Ultimately
leading Writ Petition No.23733 of 2018
(Atul Kumar Dwivedi and 108 others Vs.
392 INDIAN LAW REPORTS ALLAHABAD SERIES
State of U.P. and others) came to be
allowed on 11.9.2019 and the select list
dated
28.2.2019
was
quashed.
The
Lucknow
Bench
has
also
followed
aforesaid judgment in Service Single
No.6540 of 2019 (Manish Kumar Yadav
and 49 others Vs. State of U.P. and others),
which has been decided vide order dated
18.10.2019. The above judgments were
challenged by State of U.P. in S.L.P.
(Civil) Nos.29972 of 2019 as well as 3157
of 2020. The matter was heard finally on
5.2.2021 and the judgment was reserved.

17.

According
to
the
State
respondents unless the recruitment cycle in
a given year is complete, it would not be
possible for the State to initiate the next
recruitment cycle. This primarily is the
reason for not undertaking recruitment
exercise in the subsequent years despite
undertaking having been given before
Supreme Court. Submission on behalf of
State of U.P. is that due to unavoidable
circumstances it has not been possible to
conduct recruitment for the years 2017 to
2020. It is thus vehemently urged that on
account of above no right accrues to the
petitioners to claim relaxation in maximum
age prescribed under the rules. Petitioners
have strongly refuted such stand and
contend that State was bound to act as per
its undertaking given before Supreme Court
that yearly recruitment for the posts of SubInspector, Civil Police (Male and Female),
Platoon Commander PAC, and Second
Officer in Fire Brigade shall be made.

18. On the rival contentions urged by
counsel for the parties the question that
arises for consideration is whether State
had justifiable reasons, for not initiating
yearly recruitment on the post of SubInspector despite its undertaking given to
Supreme Court in the case of Manish
Kumar (supra)? As a corollary to above an
issue would also arise as to whether the
writ petitioners are entitled to claim
relaxation
in
maximum
age
as
a
consequence of non-adherence of the above
undertaking?

19. Merits of the explanation offered
by the State for not holding yearly
recruitment for the posts of Sub-Inspector
in respective years will have to be
examined with reference to the rights of
petitioners, if any, to claim age relaxation
on account of non-holding of yearly
recruitment.

20. Another issue that falls for
determination is as to whether petitioners
are entitled to parity in the matter of
relaxation of maximum age at par with
Constables, in view of the stand taken by
State of U.P. before Supreme Court in
permitting age relaxation, as is noticed in
the order of the Court dated 13.6.2018 in
Special Leave to Appeal (C) No.12569 of
2018?

21. Process of recruitment to the post
of
Sub-Inspector
commences
with
determination
of
vacancies
by
the
appointing authority to be filled during the
course of year of recruitment. Year of
recruitment is defined in Rule 3(o) of the
"Rules of 2015" to mean a period of twelve
months commencing the first day of July of
a calendar year. Appointing authority i.e.
Deputy Inspector General of police is
required to determine the vacancies to be
filled during the period of twelve months
commencing the first day of July of a
calendar year. For illustration we may take
Ist of July, 2017 in order to understand the
scheme of recruitment to the service. All
vacancies that are to be filled between Ist
of July 2017 to 30th June, 2018 will have
10 All. Sushil Kumar Singh & Ors. Vs. State of U.P. & Ors.
393
to be worked out by the appointing
authority and intimated to the head of the
department i.e. the Director General of
Police, Uttar Pradesh by virtue of Rule 3(h)
of the Rules of 2015. The appointing
authority is also under an obligation to
determine the number of vacancies to be
filled by candidates belonging to the
Scheduled Caste, Scheduled Tribes and
other reserved categories in accordance
with the provisions of the Acts specified in
rule 6. Appointing authority is thereafter
required to intimate the same to the
Director General of Police U.P. The
Director General of Police shall in turn then
intimate the number of vacancies for male
and female candidates separately to the
Board and also to the Government. The
Board shall then notify the vacancies for
both
male
and
female
candidates,
separately in the manner specified in Rule14.

22. The recruitment process, as
indicated above, is supposed to be a yearly
exercise in the Rules. Rule 15 contemplates
filling up of application form in the manner
prescribed. Requisite details as required are
to be specified by the Board on its own
website.
The
process
of
recruitment
commences
with
the
issuance
of
advertisement and is followed by uploading
of call letters; scrutiny of documents;
physical efficiency test, which is qualifying
in nature. A candidate who qualifies this
stage
is
to
appear
in
the
written
examination. Based upon the performance
in the written examination the Board shall
prepare, as per the vacancies, a select list of
each category of candidates and send it to
the head of department. The head of
department shall thereafter accord his
approval and send the list to appointing
authority. The candidates recommended for
appointment by appointing authority will
be
required
to
undergo
medical
examination at Police Lines of concerned
district. A candidate declared medically
unfit will not be appointed and the vacancy
shall be carried forward for next selection.
A candidate who is found medically fit
shall then be subjected to character
verification.

23. Rule-19 of the Rules of 2015
provides that the candidate selected finally
to the post of Sub Inspector shall be
required to pass the training prescribed by
the head of the department. The provisions
of Police Training College Manual shall
form the basis of training. If a candidate
fails in examination for training or after
supplementary training shall have to face
termination. It is only after passing the
examination for training that a candidate is
appointed substantively and placed on a
probation period of two years.

24. Process of yearly recruitment as
detailed above is clearly contemplated in
the Rules and is expected to be followed so
that vacancies occurring in a calendar year
starting from Ist of July be filled by 30th
June of the subsequent calendar year. It is
in this context that age of candidates
assumes significance.

25. Rule-10 of the Rules of 2015
prescribes that permissible age of applicant
for recruitment is to be not below 21 years
and not above 28 years on Ist of July of the
calendar year. It is this date on the basis of
which age of applicants is to be determined
as per Rule 10 of the Rules of 2015. In the
event
recruitment
exercise
is
not
undertaken in the year of recruitment and is
held in a subsequent year then an applicant
who may be fulfilling the age criteria as per
rule 10 in the year of recruitment may
become overage in the subsequent year
394 INDIAN LAW REPORTS ALLAHABAD SERIES
when recruitment is held. It is in aforesaid
context that this Court has to examine as to
what relief can be granted to such an
applicant, who looses an opportunity to
apply for recruitment only because no
recruitment was held in the year of
recruitment in which he was otherwise
eligible.

26. Grant of relief is directly linked to
the nature of right possessed by one and not
on the basis of declaration of right.
Ordinarily, it is always open for an
employer to fill up a post or to leave it
vacant. When the employer is State or its
agency
or
instrumentality
the
only
departure is that its action cannot be
arbitrary or discriminatory as it is otherwise
expected to be a model employer. But for
such exception, the State is at liberty
whether or not to fill up the vacancy. As
such no right accrues to a prospective
candidate for consideration of his claim nor
any relief in the form of age relaxation can
be granted only because recruitment was
not undertaken in a recruitment year.

27. Law regarding rights of a
prospective candidate as well as a selected
candidate stands fairly settled by now. It is
apposite to mention here that an eligible
candidate has no right to apply against a
post on accrual of vacancy. When a
candidate has no right to apply on a post on
accrual of vacancy, therefore, no right shall
accrue to a prospective candidate for
consideration of his claim regarding age
relaxation. The conflicting claims of the
parties have to be examined in the context
noted above. The law in this regard stands
fairly settled and only requires to be noted
for the sake of clarity.

28. In Rajasthan Public Service
Commission Vs. Smt. Anand Kanwar and
others in Civil Appeal No. 52 of 1993,
decided on 8.2.1995, the Supreme Court
has crystallized the law on the subject in
following words:-

"3. ....... It is settled proposition
of law that the eligibility of a candidate has
to be determined on the basis of the terms
and conditions of the advertisement in
response to which the candidate applies.
There is nothing on the record to show that
the State Government was in any manner
negligent or at fault in not making the
direct recruitment during the period 198389. Be that as it may, the High Court was
not justified in taking the clock back to the
period when unfilled vacancies were
existing and holding that since the
respondent was eligible on the date when
vacancies fell vacant, she continues to be
so till the time the vacancies are filled. Due
to inaction on the part of the State
Government in not filling the posts yearwise, the respondent cannot get a right to
participate in the selection despite being
over-aged."

29. Constitution Bench of Supreme
Court in Shankarsan Dash Vs. Union of
India, 1991(3) SCC 47 has observed as
under in para 7:-

"7. It is not correct to say that if a
number of vacancies are notified for
appointment and adequate number of
candidates are found fit, the successful
candidates acquire an indefeasible right to
be appointed which cannot be legitimately
denied. Ordinarily the notification merely
amounts to an invitation to qualified
candidates to apply for recruitment and on
their selection they do not acquire any right
to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal
duty to fill up all or any of the vacancies.
10 All. Sushil Kumar Singh & Ors. Vs. State of U.P. & Ors.
395
However, it does not mean that the State
has the licence of acting in an arbitrary
manner. The decision not to fill up the
vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies or
any of them are filled up, the State is bound
to respect the comparative merit of the
candidates, as reflected at the recruitment
test,
and
no
discrimination
can
be
permitted.