# Vindhyavasini Tiwari & Ors v. State of U.P. and Ors

- **Citation:** (2014) 1 ILRA 97
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-12-09
- **Case number:** Civil Misc. Writ Petition No. 57576 of 2013
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vindhyavasini-tiwari-ors-v-state-of-u-p-and-ors-42838
- **Pages:** 16

## Headnote

Constitution of India, Art.-226-Service LawRecruitment on post of S.I. C.P., P.C. and
P.A.C.-advertisement made 19.05.2011-at
that time P.S.T.-after completing 20 Km run
within 60 minutes for male and 5 km.
withing 35 minutes for female candidaterequired subsequently due to death of a
candidates-reduced to 4.8 km within 35
minutes-pursuance to that cancellation of
entire selection -held-illegal-amended rule
2013
having
no
applicability
of
retrospective nature-authorities are bound
to follow the recruitment procedure as
available on occurrence of vacancy.

Held: Para-40
One of the well established principle of law,
in
the
matter
of
recruitment
and
appointment, is, that recruitment procedure
as was available on the date of occurrence
of vacancy must be followed to fill in those
98 INDIAN LAW REPORTS ALLAHABAD SERIES
vacancies
unless
and
until
changed
procedure or alteration or amendment in
the rules have been made retrospectively so
as to govern ongoing recruitment. When a
vacancy occurs, general principle is that it
shall be filled in, according to the procedure
applicable at the time when vacancy
occurred.

Case Law discussed:
AIR 1961 SC 751; AIR 2002 SC 2322; 2005(2)
AWC 1191(FB); AIR 1983 SC 852=1983(1)
SCALE 296; AIR 1983 SC 1143; AIR 1988 SC
2068-1988(Supple.) SCC 740; 1998(9) SCC
223; W.P. No> 13347 of 2001; (2007) 11 SCC
605; 1997(10) SCC 419; 2007(5) SLR 237;
Special Appeal No. 1372 of 1999; 2007(2) ESC
987; AIR 1968 Allahabad 139; AIR 1975
Allahabad 280; 1986(4) LCD 196; AIR 1994
Allahabad 273.

## Text

_Characters 0–39,955 of 53,520. This is a partial read: ask again with offset=39955 for what follows._

1 All] Vindhyavasini Tiwari & Ors. Vs. State of U.P. and Ors.
97
be levied or collected by the Development
Authorities, so long as statutory rules in
exercise of powers under Section 15 (2A)/38-A of Act, 1973 are not framed.

(b) We direct that henceforth the
Development Authorities shall not levy or
collect any development fee both external
and internal as well as city development
charges/impact fee until statutory rules as
required are framed.

(c) We also hold that the demand of
sub-division charges, compounding fee
for sub-division, as wholly illegal and the
Building Bye-Laws framed in that regard
need not be given effect to. The
Development Authorities must insist for
open space being left in accordance with
the
Building
Bye-Laws
instead
of
charging money for violation thereof.

(d)
Demand
of
permit
fee,
supervision fee, inspection fee, park fee,
impact fee, labour cess is held to be
illegal, as not contemplated by any of the
provision of Act, 1973.

(e) Petitioners, who have deposited
the money under the aforesaid heads, (a),
(c) and (d) under protest or under interim
orders passed in these petitions, shall be
entitled for refund of the same on an
application
being
made
before
the
Development Authority concerned within
one month of the making of the
application.

(f) All money collected by the
Development Authorities from other
persons under the aforesaid heads shall be
transferred to the relevant account and
shall be utilized for the purposes,
mentioned under Act, 1973.

(g) The demand of Bank Guarantee in
advance towards the cost of land and
construction of houses for E.W.S. and
persons belonging to lower income group,
as also for installation of rain water
harvesting system is also quashed subject to
conditions mentioned in the body of the
judgement.

121. These writ petitions are,
accordingly, allowed. No order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 57576 of 2013
alongwith No. 63093 of 2013 and No. 60538
of 2013

Vindhyavasini Tiwari & Ors.... Petitioners
Versus
State of U.P. and Ors.... Respondents

Counsel for the Petitioners:
Sri K.M. Asthana, Sri Seemant Singh, Sri
V.K. Singh

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Service LawRecruitment on post of S.I. C.P., P.C. and
P.A.C.-advertisement made 19.05.2011-at
that time P.S.T.-after completing 20 Km run
within 60 minutes for male and 5 km.
withing 35 minutes for female candidaterequired subsequently due to death of a
candidates-reduced to 4.8 km within 35
minutes-pursuance to that cancellation of
entire selection -held-illegal-amended rule
2013
having
no
applicability
of
retrospective nature-authorities are bound
to follow the recruitment procedure as
available on occurrence of vacancy.

Held: Para-40
One of the well established principle of law,
in
the
matter
of
recruitment
and
appointment, is, that recruitment procedure
as was available on the date of occurrence
of vacancy must be followed to fill in those
98 INDIAN LAW REPORTS ALLAHABAD SERIES
vacancies
unless
and
until
changed
procedure or alteration or amendment in
the rules have been made retrospectively so
as to govern ongoing recruitment. When a
vacancy occurs, general principle is that it
shall be filled in, according to the procedure
applicable at the time when vacancy
occurred.

Case Law discussed:
AIR 1961 SC 751; AIR 2002 SC 2322; 2005(2)
AWC 1191(FB); AIR 1983 SC 852=1983(1)
SCALE 296; AIR 1983 SC 1143; AIR 1988 SC
2068-1988(Supple.) SCC 740; 1998(9) SCC
223; W.P. No> 13347 of 2001; (2007) 11 SCC
605; 1997(10) SCC 419; 2007(5) SLR 237;
Special Appeal No. 1372 of 1999; 2007(2) ESC
987; AIR 1968 Allahabad 139; AIR 1975
Allahabad 280; 1986(4) LCD 196; AIR 1994
Allahabad 273.

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

1. All these three writ petitions involve
common facts and questions of law, hence,
as agreed by learned counsel for the parties,
have been heard together and are being
decided by this common judgment.

2. Heard Sri K.M. Asthana, Sri
Seemant Singh and Sri V.K. Singh,
Advocates for the petitioners and Sri R.C.
Yadav, learned Standing Counsel for the
respondents.

3. Writ Petition No. 57576 of 2013
(hereinafter referred to as the "first
petition") has been preferred by five
petitioners, namely, Vindhyavasini Tiwari,
Digvijay Nath Chaurasia, Akhilendra Pratap
Singh, Krishna Deo Tripathi and Radhey
Shyam Maurya. They are aggrieved by
Government
Order
dated
03.09.2013
(Annexure-1 to the writ petition), whereby
it has communicated to Director General of
Police, U.P., Lucknow its approval for
cancellation of recruitment, already held,
though partially, for the post of SubInspector (Civil Police) (hereinafter referred
to as the "SICP") and Platoon Commander
in
Provincial
Armed
Constabulary
(hereinafter referred to as the "PC, PAC")
pursuant to advertisement published in 2011
and directing for taking further action
accordingly; and, consequential order dated
24.09.2013
(Annexure-2
to
the
writ
petition), issued by U.P. Police Recruitment
and Promotion Board (hereinafter referred
to as the "Recruitment Board") cancelling
advertisement No. PRPV-Ek-1/2011 dated
19.05.2011.

4. The Writ Petition No. 63093 of
2013 (hereinafter referred to as the
"second petition") is at the instance of
seventeen petitioners and Writ Petition
No. 60538 of 2013 (hereinafter referred to
as the "third petition") is at the instance of
six petitioners. In these petitions also the
impugned orders are same as are in the
first petition.

5. In all these three writ petitions, a
further prayer of writ of mandamus has
been sought directing respondents not to
make any further advertisement for fresh
selection in respect of vacancies, subject
matter of recruitment of 2011, and not to
fill in those vacancies on the basis of U.P.
Sub-Inspector and Inspector (Civil Police)
Service (5th Amendment) Rules, 2013
(hereinafter referred to as the "5th
Amendment Rules, 2013") and, instead,
proceed to complete recruitment pursuant
to advertisement dated 19.05.2011.

6. The facts, in brief, giving rise to
present dispute have been taken from first
petition and are as under.

7. An advertisement was published
by Recruitment Board on 19.05.2011
(Annexure-3
to
the
first
petition)
1 All] Vindhyavasini Tiwari & Ors. Vs. State of U.P. and Ors.
99
notifying vacancies of SICP and PC, PAC
as under:

dz-la- Js.kh mifujh{kd ukxfjd iqfyl IykVwu dek.Mj
1 lkekU; 1849 156
2 vU; fiNM+k oxZ 998 84
3 vuqlwfpr tkfr 777 66
4 vuqlwfpr tutkfr 74 6
;ksx 3698 312

English Translation by the Court

S.N Category Sub-Inspector Platoon Commander
 (civil police)
1.General 1849 156
2.Other Backward Classes 998 84
3.Scheduled Caste 777 66
4.Scheduled Tribe 74 06
Total 3698 312

8. In the second column, recruitment
procedure was also described, and Clause
2 thereof, reads as under:

^^dz-la- 2 izfdz;k ^ izkjafEHkd fyf[kr ijh{kk %
'kkjhfjd ekud ijh{kk esa lQy ?kksf"kr vH;fFkZ;ksa ls
vgZdkjh izd`fr dh izkjfEHkd fyf[kr ijh{kk esa
lfEefyr gksus dh vis{kk dh tk,xhA ;g ijh{kk
oLrqfu"B izdkj dh 200 vadksa dh gksxh] ftlesa
fuEufyf[kr rhu [kaM gksaxs& 1⁄411⁄2 lkekU; Kku &100
vad] 1⁄421⁄2 la[;kRed ;ksX;rk ijh{kk & 50 vad] 1⁄431⁄2
rkfdZd ijh{kk & 50 vadA

U;wure 50 izfr'kr vad izkIr djus okys
vH;FkhZ gh bl ijh{kk esa lQy ?kksf"kr fd, tk,axsA
fo'ks"k % vgZdkjh] blesa lQy ?kksf"kr vH;FkhZ gh
'kkjhfjd n{krk ijh{kk ds fy, ik= gksaxsA**
(emphasis added)

"Serial
No.
2
Procedure
-
Preliminary
Written
Examination:
Candidates who are declared successful in
Physical Standard Test shall be required
to
appear
in
Preliminary
Written
Examination of qualifying nature. This
examination shall comprise objective type
questions of 200 marks having three parts
- (1) General Knowledge - 100 marks, (2)
Numerical Ability Test - 50 marks, (3)
Reasoning Test - 50 marks.

Only
those
candidates
securing
atleast 50% marks in this examination
shall be declared successful. Special:
Qualifying, only those candidates who are
declared successful in it shall be eligible
for Physical Efficiency Test." (emphasis
added) (English translation by the Court)

9. An instruction book was also
supplied alongwith application form by
Recruitment Board and therein also in
para
2.5 the
procedure
and
other
conditions for Preliminary Written Test
(hereinafter referred to as the "PWT")
were mentioned as under:

^^izkjfEHkd fyf[kr ijh{kk%& izkjfEHkd fyf[kr
ijh{kk vgZdkjh gksxhA U;wure 50 izfr'kr vad izkIr
djus okys vH;FkhZ gh bl ijh{kk esa lQy ?kksf"kr
fd;s tk;sxsA bu lQy vH;fFkZ;ksa esa ls izkIrkadksa dh
Js"Brk ds vk/kkj ij fjfDr;ksa dh la[;k ds vf/kdre
18 xquk vH;FkhZ gh 'kkjhfjd n{krk ijh{kk esa
lfEefyr gksus ds fy;s vgZ gksaxsA izkjfEHkd fyf[kr
ijh{kk dk ikB~;dze 1⁄4funsZ'k iqfLrdk fcUnq&4-11⁄2
funsZ'k iqfLrdk esa vafdr gSA

;g ijh{kk oLrqfu"B izdkj dh 200 vadksa dh
gksxh] ftlesa fuEufyf[kr rhu [k.M gksaxs&

1⁄411⁄2 lkekU; Kku&100 vad

1⁄421⁄2 la[;kRed ;ksX;rk ijh{kk&50 vad

1⁄431⁄2 rkfdZd ijh{kk&50 vad** (emphasis
added)

"Preliminary
Written
examination:-
Preliminary Written Examination shall be of
qualifying nature. Only the candidates
securing
atleast
50%
marks
in
this
examination shall be declared successful.
Depending on merit based on the marks
obtained, from amongst these successful
candidates, only a maximum of 18 times as
many candidates as vacancies shall qualify to
100 INDIAN LAW REPORTS ALLAHABAD SERIES
appear in the Physical Efficiency Test. The
Syllabus
for
Preliminary
Written
Examination (Point 4.1 of Instruction
Booklet) is available in the Instruction
Booklet.

This examination shall comprise
objective type questions of 200 marks
with the following three parts:-

(1) General Knowledge - 100 marks

(2) Numerical Ability Test - 50
marks

(3) Reasoning Test - 50 marks"
(emphasis added) (English translation by
the Court)

10. Here this Court finds one
condition added therein that out of the
successful candidates on the basis of
merit, eighteen times candidates, qua the
vacancies, shall be declared successful so
as to participate in next stage of selection,
i.e., physical efficiency test under para
2.6, i.e., Rule 15(e) of U.P. Sub-Inspector
and Inspector (Civil Police) Service
Rules, 2008 (hereinafter referred to as the
"CPR, 2008") and Rule 18(e) of U.P.
Pradeshik
Armed
Constabulary
Subordinate Officers Service Rules, 2008
(hereinafter referred to as the "PAC
Rules, 2008"). In other respect, the
instructions contained in para 2.5 are the
same as contained in Rules.

11. The recruitment process was to
undergo five stages, i.e., Physical Standard
Test (hereinafter referred to as "PST");
Preliminary
Written
Test
(hereinafter
referred to as "PWT"); Physical Efficiency
Test (hereinafter referred to as "PET"); Main
Written Examination (hereinafter referred to
as "MWE"); Medical Examination and
Group Discussion. All the petitioners
participated and qualified in PST, PWT and
PET. The respondents however, deferred the
selection process and now by means of the
impugned orders they have cancelled the
very Recruitment as also the advertisement
dated 19.05.2011, hence this writ petition.

12. A counter affidavit has been
filed in the first petition sworn by Sri
Mahesh Mishra, Deputy Superintendent
of Police on behalf of Recruitment Board.
He stated that some of the candidates who
appeared in PWT were declared fail on
the basis of notice dated 01.01.2013 of
Recruitment Board stating that only those
candidates who would secure 40% marks
in each section and aggregate 50% marks,
shall be eligible for next level of
selection. The candidates though had
secured 50% marks in aggregate but in
individual sections they had not secured
405 marks, were declared fail. This
change was introduced by Recruitment
Board vide notice dated 01.01.2013. The
fail candidates challenged above change
in selection, process in the midst of
selection in a large number of writ
petitions. 63 such petitions were decided
by this Court vide judgement dated
25.07.2013. All those writ petitions were
allowed and the penultimate paragraphs
no. 72, 73, 74 and 75 of the judgment,
read as under:

"72. In view of above discussion, I
have
no
hesitation
in
holding
that
Recruitment Board did not possess power to
introduce qualifying marks in PWT and this
introduction is wholly without jurisdiction.
It cannot be doubted, where the rules
specifically provide something, nobody on
administrative side, can tinker with efficacy
of rule in any manner. Such a deviation on
the part of selection body would be wholly
unauthorised, illegal and lack jurisdiction.
The qualifying marks when are prescribed
in rules, over and above thereto, the
1 All] Vindhyavasini Tiwari & Ors. Vs. State of U.P. and Ors.
101
selection body had no jurisdiction to make,
on its own, an additional qualifying marks
with respect to individual sections also,
though it was not so desired by rule framing
authority. When something is required to be
done in a particular manner, the things
have to be done strictly in accordance
thereto and not otherwise. Moreover such
alteration is not permissible in the midst of
selection.

73. Before parting I may also add
that the decision of this case in favour of
petitioners will not affect the candidates
already selected, so as to bring one or
some of them outside the list of qualified
candidates, for the reason that all those
candidates admittedly have obtained
aggregate 50% marks and above and,
therefore, have been declared qualified.
This decision only would add to the list of
qualified candidates by bringing in all
those who have secured 50% and more in
PWT irrespective of whether in individual
parts/sections they have secured 40%
more or less and hence none shall be
prejudiced in any manner except of
having a few more competitors but then
that is the consequence of application of
Rule of Law.

74. In the result, the writ petitions
are allowed. The respondents are directed
to finalise PWT in view of discussions and
observations made above, and, those
candidates,
who
have
secured,
in
aggregate, 50% marks and above, shall
be treated to qualify the aforesaid test and
shall be permitted to appear in next level
of recruitment.

75. The petitioners shall also be
entitled to costs, which I quantify to Rs.
1000/- for each set of writ petition."

13. It appears that some other writ
petitions involving similar issues remain
pending, having not been listed alongwith
aforesaid bunch and, therefore, remain
pending. In one of such pending writ
petition no. 36383 of 2013 an ex parte
interim order was passed on 11.07.2013
making observation that in public interest
the respondents may take a decision to
make entire recruitment afresh in the light
of new scheme. It is said that in view
thereof a decision was taken on 13.07.2013
to cancel entire Recruitment of 2011 and
proceed to make it afresh in the light of
amended Rules.

14. After the aforesaid decision,
instead of proceeding further, it appears
that, respondents proceeded to have a
somersault on the very recruitment itself
and that is how the decision to cancel the
same came to be taken vide orders
impugned
in
these
writ
petitions,
rendering everything infructuous.

15. It is this decision of cancellation
of entire recruitment (part whereof had
already completed), has been assailed in
these writ petitions on the ground that out
of five stages of recruitment process, three
were already completed, and just to give
undue advantage to some unsuccessful
candidates and also in the teeth of statutory
provision in this regard, in a most arbitrary
and illegal manner, the respondents took a
decision to cancel the entire recruitment,
which is perverse, illegal and arbitrary,
particularly when there is no element of
gross malpractices and otherwise illegalities
in the selection.

16. It is admitted in the counter
affidavit that pursuant to advertisement dated
19.05.2011,
recruitment
process
commenced. All the petitioners, before this
Court, have qualified in first, second and
third phase of recruitment. The petitioners
having qualified in PWT, participated in PET
102 INDIAN LAW REPORTS ALLAHABAD SERIES
commenced on 05.02.2013, which consisted
of 10 kilometers run in 60 minutes by male
candidates and 5 kilometers run in 35
minutes by female candidates. All the
petitioners successfully completed it.

17. However, on 18.02.2013, one
candidate, Satyendra Kumar son of Sri
Brijmohan Yadav while running, fell
down and died. Consequently, vide
Government Order dated 20.02.2013,
further PET was deferred. Thereafter,
statutory rules for recruitment meant for
SICP and PC, PAC were amended by 5th
Amendment Rules, 2013 wherein length
of run is reduced to 4.8 kilometers within
35 minutes for male candidates and 2.4
kilometers within 20 minutes by female
candidates.

18. The aforesaid amendment was
notified on 01.03.2013 and thereafter an
office memorandum was issued by
Recruitment Board on 27.06.2013 to
continue selection in the light of amended
conditions.

19. It is said that in the light of interim
order dated 11.07.2013 passed in Writ
Petition No. 36383 of 2013, a meeting
presided
by
Principal
Secretary,
on
13.07.2013 was held, in which Director
General of Police and PAC as also the
members
of
Recruitment
Board
participated. It was deliberated that since
this Court has permitted them either to
continue with earlier recruitment as per old
rules or to conduct entire recruitment in the
light of new standards, hence entire
recruitment from its inception as per 5th
Amendment Rules, 2013 be held and
consequently, partial recruitment as also the
advertisement published for 2011 be
cancelled in public interest and fresh
process of recruitment should commence
wherein vacancies likely to occur upto June,
2015 be also included. The minutes of
aforesaid meeting dated 13.07.2013 has
been placed on record as Annexure-CA-8. It
is said that aforesaid minutes were
communicated to Recruitment Board by
State Government's letter dated 07.11.2013.
It is thus contended that decision has been
taken to cancel an earlier Recruitment in
public interest and in conformity with the
order dated 11.07.2013 in Writ Petition No.
36383 of 2013.

20. The petitioners contended that
decision to cancel the entire recruitment is
patently
illegal,
arbitrary
and
discriminatory. There was no reason or
justification
to
cancel
the
entire
recruitment. The respondents for the
reasons best known to them, have acted in
very vagabond and whimsical manner.
More than 39,000 candidates participated
in PET. Only one candidate could not
bear stress of running test and, due to lack
of medical facilities at the site, he
succumbed. Besides other reasons, the
respondents themselves were responsible
for the loss of his life inasmuch as,
appropriate medical facilities must have
been arranged by them on the field, where
the candidates were to undergo running
test. Recruitment was for the post of
Constable, the lowest in the hierarchy of
police echelon. Long duration stress,
physical and otherwise, is inherent with
the requirement of job and nature of
duties. There ought not have been any
compromise with physical standards and
norms which were determined in the light
of duties and conditions of service and
have
been
continuing
for
decades
together. The respondents however acted
in a whimsical manner by not completing
PET and thereafter proceeded to make
amendment in Recruitment Rules and
then applied the same to the ongoing
1 All] Vindhyavasini Tiwari & Ors. Vs. State of U.P. and Ors.
103
selection, though the amendment of Rules
was not retrospective. When on legal
front, they found serious inconvenience
and flaws, taking shelter of an ex parte
interim order, the impugned orders have
been passed though there was no valid
and justified reason for canceling the
entire Recruitment. There is no allegation
of mal practice or otherwise irregularity in
the process of Recruitment, already
undergone. The ongoing Recruitment,
even otherwise, was not found vitiated
being in contravention of any statutory
provision etc., yet two years' exercise has
been set at naught, by passing the
impugned orders without considering the
fact that ongoing Recruitment has already
consumed a good period of candidates,
who have participated in Recruitment and,
for the last two years, they have been
working
hard
to
clear
the
entire
Recruitment and get appointment at the
earliest so as to earn their livelihood and
also serve the country as a member of
State Police Force. In nutshell, it is
contended that the entire exercise is
wholly irrational and arbitrary and shows
a total non-application of mind on the part
of the respondents.

21. Learned Standing Counsel
however, endeavored to defend the
decision of cancellation of Recruitment
on the basis of reasons and stand taken in
the counter affidavit.

22. The short question up for
consideration
before
this
Court
is,
"whether
cancellation
of
entire
recruitment
(i.e.
partially
completed
recruitment as well as advertisement) by
respondents is sustainable in law or not".

23. From the pleadings and
arguments advanced before this Court, it
is not in dispute that the vacancies
advertised on 19.05.2011 were existing
vacancies at the time of advertisement,
meaning thereby they were the vacancies
of earlier period, which have already
occurred in point of time, prior to
advertisement. The respondents, had
proceeded with the recruitment process in
accordance with rules of recruitment as
were applicable and available on the date
of occurrence of vacancies. They were
governed by relevant rules as available on
the date of advertisement.

24. At this stage, it would be
appropriate to have a bird eye view at the
relevant statutory provisions, as also the
statutory rules.

25. The general police force is
governed by Police Act, 1861 (hereinafter
referred to as the "Act, 1861"), enacted
with the assent of the then Governor
General, granted on 22.03.1861, with an
objective to reorganise the police and to
make it more efficient instrument for
prevention
and
detection
of
crime.
Apparently, it is a pre-constitutional law
and has continued to be operating by virtue
of Articles 313 and 372 of the Constitutions
as held in State of U.P. Vs. Babu Ram
Upadhyay, AIR 1961 SC 751; Chandra
Prakash Tiwari Vs. Shakuntala Shukla, AIR
2002 SC 2322; and, Vijay Singh Vs. State
of U.P., 2005(2) AWC 1191 (FB).

26. Section 2 of Act, 1861 talks of
constitution of force and provides that
entire police establishment under State
Government shall, for the purposes of
Act, 1861, be deemed to be one police
force. Section 2 authorises the State
Government to lay down conditions of
service of members of subordinate ranks
of police force by issuing orders, subject
104 INDIAN LAW REPORTS ALLAHABAD SERIES
to condition that the same are not
inconsistent
with
Act,
1861.
The
procedure for framing rules is prescribed
in Section 46 of Act, 1861.

27. In exercise of powers under
Sections 2 read with 46 of Act, 1861, the
U.P. Sub-Inspector and Inspector (Civil
Police)
Service
Rules,
2008
were
promulgated which came into force on
02.12.2008, vide Section 1(2) thereof.
The recruitment to the post of SubInspector in Civil Police is thus, governed
by CPR, 2008. The aforesaid Rules, 2008
have also been amended from time to
time and I shall refer the same as and
when that would be necessary.

28. For the purpose of Provincial
Armed Constabulary (hereinafter referred
to as the "PAC") the U.P. State
Legislature enacted, "U.P. Pradeshik
Armed
Constabulary
Act,
1948"
(hereinafter referred to as the "PAC Act,
1948"), which is a small Act, having 16
Sections and one schedule. It was enacted
to provide for the constitution and
regulation of United Provinces Armed
Constabulary. Section 3 thereof talks of
constitution of PAC and says that there
shall be raised and maintained, by the
State Government, a force, to be called
PAC, and it shall be constituted in one or
more Companies, in such manner and for
such period, as may be prescribed.

29. The provisions of Act, 1861 in
so far as they were not inconsistent with
PAC Act, 1948 were applied to the
members of PAC vide Section 5 of PAC
Act, 1948. Section 15 confers power upon
State Government to frame Rules. In
exercise of powers conferred under
Section 15 of PAC Act, 1948, the State
Government enacted, U.P. Pradeshik
Armed Constabulary Subordinate Officers
Service Rules, 2008, which contain
provisions for recruitment and conditions
of service of member of PAC in the
various
cadres
including
Platoon
Commander.

30. Rule 15 of CPR, 2008 lays down
procedure for direct recruitment to the post
of SICP. The procedure for receiving
applications is provided in Clause (a) of
Rule 15 and thereafter procedure for issuing
call letters is provided in Clause (b). The
candidates applying for recruitment under
CPR, 2008 have to undergo Physical
Standard Test (i.e. "PET") [Rule 15(c)];
Preliminary Written Test (i.e. "PWT")[Rule
15(d)]; Physical Efficiency Test (i.e.
"PET"[Rule
15(e)];
Main
Written
Examination (i.e. "MWE") [Rule 15(f)];
Medical Examination [Rule 15(g)]; and,
Group Discussion [Rule 15(h)].

31. Rule 15 as enacted initially in
CPR, 2008 came to be amended by First
Amendment Rules, 2009, published on
02.04.2009, as corrected by notification
dated 10.06.2009 in Hindi translation; by
4th Amendment Rules, 2011, published in
gazette dated 14.01.2011; and, by 5th
Amendment Rules, 2013, published in
gazette dated 01.03.2013. However, there is
no change or alteration throughout in Rule
15(d). Though in 4th Amendment Rules,
2011 there is a substitution of existing
clause by new one but I do not find that in
substance there is any change at all. Rule
15(d) of CPR 2008, reads as under:

^^?k- izkjfEHkd fyf[kr ijh{kk

[k.M 1⁄4x1⁄2 ds v/khu 'kkjhfjd ekud ijh{kk esa lQy
?kksf"kr vH;fFkZ;ksa ls ,d oLrqfu"B izdkj @ vgZdkjh
izd`fr dh izkjfEHkd fyf[kr ijh{k.k esa lfEefyr gksus dh
vis{kk dh vk;sxhA ;g ijh{k.k 200 vadks dk gksxkA
1 All] Vindhyavasini Tiwari & Ors. Vs. State of U.P. and Ors.
105

blesa rhu [k.M gksaxs] vFkkZr 100 vadksa dk
lkekU; Kku 1⁄4lkef;d fo"k;] bfrgkl] Hkwxksy] Hkkjr
dk lafo/kku] LorU=rk laxzke vkfn1⁄2 50 vadksa dh
la[;kRed ;ksX;rk ijh{kk vkSj 50 vadksa dh rkfdZd
ijh{kkA U;wure ipkl izfr'kr vad izkIr djus okys
vH;fFkZ;ksa dks mDr ijh{kk esa lQy ?kksf"kr fd;k
tk;sxkA** (emphasis added)

'D' Preliminary Written Examination

The candidates declared successful in
Physical Standard Test under Clause 'C',
shall be required to appear in Preliminary
Written Examination of an objective type
/qualifying nature. This test will be of 200
marks.

It shall have three parts, i.e. General
Knowledge (Current Affairs, History,
Geography,
Constitution
of
India,
Freedom Struggle etc.) of 100 marks,
Numerical Ability Test of 50 marks and
Reasoning Test of 50 marks. The
candidates securing atleast 50% marks
shall be declared successful in the aforementioned
examination."
(emphasis
added) (English translation by the Court)

32.

Simultaneously,
for
direct
recruitment under PAC Rule, 2008, it is Rule
15 which prescribes the procedure. The stages
therein are a Physical Standard Test (Rule
18(c) read with Appendix-7); Preliminary
Written Test [Rule 18(d)]; Physical Efficiency
Test (Rule 18(e) read with Appendix-8); Main
Written Test (Rule 18(f) read with Appendix9); Medical Examination (Rule 18(g) read
with Appendix-10); and, Group Discussion
(Rule 18(h) read with Appendix-9).

33. This Court has seen that steps
for
recruitment
published
in
advertisement dated 19.05.2011 are/were
consistent with aforesaid rules.

34. For the purpose of recruitment,
State
Government
constituted
a
centralized body, namely, "Recruitment
Board" in exercise of powers conferred
vide Section 2 of Act, 1861, read with
Section 15 of PAC Act, 1948. The State
Government issued a notification dated
02.12.2008 amended on 02.04.2009 so as
to
constitute
a
Recruitment
Board
assigning
it
the
responsibility
of
recruitment and promotions of police
officers of all subordinate ranks governed
by aforesaid two sets of rules, i.e., CPR
2008 and PAC Rules, 2008.

35. It is also not in dispute that PWT
was held in accordance with aforesaid
rules and PET also commenced as per the
provisions existing on the date of
advertisement dated 19.05.2011. In the
PET, all petitioners before this Court,
completed run of 10 kilometers in 60
minutes as required vide Rule 15(e) of
CPR, 2008, as it stood on the date of
advertisement dated 19.05.2011 as also on
the date, when, as a matter of fact, the
aforesaid test was conducted.

36. In para 16 of first petition it has
been stated that more than 39,000
candidates who were declared successful
in PWT, participated in PET i.e., run of
10 kilometers in 60 minutes for male
candidates and five kilometers within 35
minutes by female candidates. Out of
39,000 and odd, only one candidate met
an
unfortunate
fatal
consequence,
inasmuch as he fell on the ground and
died while undergoing aforesaid running.
This fact has not been disputed by
respondents in reply to paras 16 and 17 of
the writ petition in paras 5 and 6 of their
counter affidavit. However, it is said that
State Government in order to avoid such
serious incidents in future, took a policy
decision, and thereby amended Rule 15(e)
so as to reduce the length and time of
106 INDIAN LAW REPORTS ALLAHABAD SERIES
running as 4.8 kilometers in 35 minutes
for male and 2.4 kilometers in 20 minutes
for female. This amendment was notified
vide notification dated 01.03.2013. Rule
1(2) of 5th Amendment Rules, 2013
categorically
declares
that
aforesaid
amended rule would come into force with
immediate effect. Meaning thereby the
aforesaid amendment in the rules was not
made retrospectively.

37. Besides the amendment made in
Rule 15 there are some more amendments
which admittedly have no concern with
the issue in question.

38. However, the entire set of rules,
copy whereof is Annexure-6 to the first
petition, nowhere shows that amended
rule will govern recruitment, already
undergoing, in accordance with rules as
applicable on the date of advertisement or
that the undergoing recruitments from the
stage they are, henceforth, would now be
governed by amended rules. It is also
interesting
to
notice
that
office
memorandum dated 27.06.2013 which
notified recommencing of remaining PET
on 07.07.2013 provides that besides
remaining candidates who have yet to
participate in aforesaid part of recruitment
process, even failed candidates and
absentees would be permitted to complete
PET, as per the amended rules, i.e.,
reduced length of running as also the
altered period.

39. This Court is not concerned with
vires of amendment made in the standard
of PET by 5th Amendment Rules, 2013.
The decisions to make further recruitment
in the light of amended provision as also
the ultimate decision, which is impugned
in the writ petition cancelling the entire
earlier recruitment so as to conduct the
entire recruitment, afresh in accordance
with amended rules, will have to be
examined by considering the question,
whether
it
was
permissible
for
respondents to do so or not.

40. One of the well established
principle of law, in the matter of
recruitment and appointment, is, that
recruitment procedure as was available on
the date of occurrence of vacancy must be
followed to fill in those vacancies unless
and until changed procedure or alteration
or amendment in the rules have been
made retrospectively so as to govern
ongoing recruitment. When a vacancy
occurs, general principle is that it shall be
filled in, according to the procedure
applicable at the time when vacancy
occurred.

41. The Apex Court in Y.V.
Rangaiah and Ors. vs J. Sreenivasa Rao
And Ors. AIR 1983 SC 852 =1983 (1)
SCALE 296 in para 9 it was observed:

"9. Having heard the counsel for the
parties, we find no force in either of the
two contentions. Under the old rules a
panel had to be prepared every year in
September. Accordingly, a panel should
have been prepared in the year 1976 and
transfer or promotion to the post of SubRegister Grade II should have been made
out of that panel. In that event the
petitioners in the two representation
petitions who ranked higher than the
respondents Nos. 3 to 15 would not have
been deprived of their right of being
considered for promotion. The vacancies
which occurred prior to the amended rules
would be governed by the old rules and
not by the amended rules. It is admitted
by counsel for both the parties that
henceforth promotion to the post of Sub-
1 All] Vindhyavasini Tiwari & Ors. Vs. State of U.P. and Ors.
107
Registrar Grade II will be according to the
new rules on the zonal basis and not on
the State-wide basis and, therefore, there
was no question of challenging the new
rules. But the question is of filling the
vacancies that occurred prior to the
amended rules. We have not the slightest
doubt that the posts which fell vacant
prior to the amended rules would be
governed by the old rules and not by the
new rules." (emphasis added)

42. In A.A. Calton Vs. The Director
of Education and another, AIR 1983 SC
1143 and P. Ganeshwar Rao and others
Vs. State of Andhra Pradesh and others,
AIR 1988 SC 2068=1988 (Supple.) SCC
740 the same view was reiterated. Again
in B.L. Gupta and another Vs. M.C.D.,
1998 (9) SCC 223, the Apex Court in para
9 of the judgment held as under:-

"When the statutory rules had been
framed in 1978, the vacancies had to be
filled only according to the said Rules.
The Rules of 1995 have been held to be
prospective by the High Court and in our
opinion this was the correct conclusion.
This being so, the question which arises is
whether the vacancies which had arises
earlier than 1995 can be filled as per the
1995 Rules. Our attention has been drawn
by Mr Mehta to a decision of this Court in
the case of N.T. Devin Katti Vs.
Karnataka Public Service Commission. In
that case after referring to the earlier
decisions in the cases of Y.V. Rangaiah
Vs. J. Sreenivasa Rao, P. Ganeshwar Rao
Vs. State of A.P. and A.A. Calton Vs.
Director of Education it was held by this
Court that the vacancies which had
occurred prior to the amendment of the
Rules would be governed by the old Rules
and not by the amended Rules. Though
the High Court has referred to these
judgments, but for the reasons which are
not easily decipherable its applicability
was only restricted to 79 and not 171
vacancies, which admittedly existed. This
being the correct legal position, the High
Court
ought
to
have
directed
the
respondent to declare the results for 171
posts of Assistant Accountants and not 79
which it had done." (emphasis added)

43. Following the aforesaid decisions,
a Division Bench of this Court (of which I
was also a Member) took similar view in
Ram Prakash and others Vs. Farrukhabad
Gramin Bank, Farrukhabad and others
(Writ Petition No. 13347 of 2001), decided
on 8th May, 2007).

44. In Arjun Singh Rathore and
others Vs. B.N. Chaturvedi and others,
(2007) 11 SCC 605 following State of
Rajasthan Vs. R. Dayal, 1997(10) SCC
419 and Y.V. Rangaiah (supra) the Court
said:

"We are therefore of the opinion that
the vacancies which had occurred prior to
the enforcement of the Rules of 1998 had
to be filled in under the Rules of 1988 and
as per the procedure laid down therein.
We are therefore of the opinion that the
judgment of the learned Single Judge
needs
to
be
restored.
We
order
accordingly."

45. In State of Punjab and others Vs.
Arun Kumar Aggarwal and others,
2007(5) SLR 237 the Court said:

"We would like to make it clear that
a candidate on making application for a
post pursuant to an advertisement does
not acquire any vested right of selection,
but if he is eligible and is otherwise
qualified in accordance with the relevant
rules and the terms contained in the
advertisement, he does acquire a vested
108 INDIAN LAW REPORTS ALLAHABAD SERIES
right of being considered for selection is
accordance with the rules as they existed
on the date of advertisement. He cannot
be deprived of that limited right on the
amendment of rules during the pendency
of selection unless the amended rules are
retrospective in nature."

46. In the matter of recruitment of
Head Constables in U.P. Police Force to
the post of Sub-Inspector, a similar issue
came to be considered before a Division
Bench (presided by Hon'ble Dr. B.S.
Chauhan, J., as His Lordship then was) in
State of U.P. and others Vs. Ranbir Singh
and others, Special Appeal No. 1372 of
1999, decided on 09.12.2004 and this
Court said:

"It is a settled legal proposition that
the vacancy in the promotional quota has
to be filled up as per the law prevailing on
the date the vacancy occurred. Reference
in this regard may be made to the
decisions of Hon'ble Apex Court in Y.V.
Rangaiah and others Vs. J. Srenivasa Rao
& Ors, AIR 1983 SC 852; A.A. Calton
Vs. The Director of Educatiion & Anr.,
AIR 1983 SC 1143; P. Gyaneshwar Rao
& Ors. Vs. State of Andhra Pradesh, AIR
1988 SC 2068; P. Mahendran & Ors Vs.
State of Karnataka & Ors, AIR 1990 SC
405; and Ramesh Kumar Choudha & Ors.
Vs. State of Madhya Pradesh & Ors.,
(1196) 11 SCC 242.

We, therefore, see no cogent reason to
interfere with the judgment and the order
of the learned Single Judge. However, as
the matter is pending since long and some
of the eligible candidates may have retired
by now, their cases may also be
considered for grant of the national
benefits. This exercise may be completed
as early as possible."

47. In view thereof, the vacancies
existing in 2011 in respect whereof
advertisement
was
published
on
19.05.2011, deserved to be dealt with in
accordance with rules as applicable at that
time and the subsequent prospective
amendment would not govern the same.

48. This is one aspect which would
vitiate the order impugned in these
petitions, as to to proceed for a fresh
selection
in
accordance
with
5th
Amendment Rules, 2013.

49. Now I come to the second aspect
of the matter.

50. It is no doubt true that the
competent authority can always cancel a
recruitment process at any stage but when it
is challenged on the ground that decision is
arbitrary, it is for the cancelling authority to
show that the decision has been taken for
valid reasons. The only reason assigned in
this case is that this Court in an interim order
dated 11.07.2013 passed in Writ Petition No.
36383 of 2013 permitted respondents to take
a decision for making entire recruitment in
accordance with new criteria and, therefore,
the above decision was taken.

51.

The
defence
taken
by
respondents, when analyzed a little in
depth, I find that respondents have
completely misdirected themselves by
misreading the interim order dated
11.07.2013. Here the observations made
by this Court in the interim order are
further added with the words "but
following law on the issue". It is
interesting to note that respondents have
not at all looked into this question
whether it was permissible in law or not.
They have construed the order as if this
Court has given an absolute power, even
1 All] Vindhyavasini Tiwari & Ors. Vs. State of U.P. and Ors.
109
to the extent of arbitrariness, to the
respondents, to decide that ongoing
recruitment process should be cancelled
and fresh recruitment in accordance with
amended rules should be held.

52.