# Vinod Kumar Sirohi v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 1165
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-16
- **Case number:** Special Appeal No. 100 of 2019
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinod-kumar-sirohi-v-state-of-u-p-ors-46523
- **Pages:** 64

## Headnote

A. Service Law - Promotion - Seniority - Police
Act 1861 - Sections 2, 12, 23 & 46(2)(c) - U.P.
Sub-Inspector and Inspector (Civil Police)
Service Rules, 2015 - Rules 3(i), 3(m), 3(n),
4(1), 18(2), 22(3), 22(4), 26, 27 & 28 - The
Uttar Pradesh Sub-Inspector and Inspector
(Civil Police) Service Rules, 2008 - Sections, 20,
21,22, 23, 24, 25 & 26 - Rule 18(2), 19 - Uttar
Pradesh Government Seniority Rules, 1991 -
The
Uttar
Pradesh
High
Schools
and
Intermediate Colleges (Reserve Pool Teachers)
Ordinances, 1978 (U.P. Ordinance 10 of 1978) -
The
Uttar
Pradesh
High
Schools
and
Intermediate Colleges (Reserve Pool Teachers)
(Second) Ordinance 1978 (U.P. Ordinance 22 of
1978) - The Uttar Pradesh Police Constables
and Head Constables Service Rules, 2008 -
Rules 3, 3(i), 4, 4(1), 5, 6, 7, 8, 10, 11, 13, 14,
15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27 &

## Text

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11 All. Vinod Kumar Sirohi Vs. State of U.P. & Ors.
1165

(h) The dependent/applicant cannot seek
the appointment on compassionate ground on
the higher post than what was held by the
deceased employee as a matter of right, on the
ground that he/she is eligible fulfilling the
eligibility criteria of such higher post.

(i)
Provisions
for
the
grant
of
compassionate appointment do not constitute a
reservation of a post in favour of a member of
the family of the deceased employee. Hence,
there is no general right which can be asserted to
the effect that a member of the family who was a
minor at the time of death would be entitled to
claim compassionate appointment upon attaining
majority. Where the rules provide for a period of
time within which an application has to be made,
the operation of the rule is not suspended during
the minority of a member of the family.

(j) The norms prevailing on the date of
the consideration of the application should be
the basis for consideration of claim for
compassionate appointment.

(k) Neither the Governments nor the
public authorities are at liberty to follow any
other procedure or relax the qualifications
laid down by the rules for the post. The whole
object of granting compassionate employment
is to enable the family to tide over the sudden
financial crisis.

(l) Rule 5 mandates that ordinarily, an
application for compassionate appointment must
be made within five years of the date of death of
the deceased employee. The power conferred by
the first proviso is a discretion to relax the period
in a case of undue hardship and for dealing with
the case in a just and equitable manner;

(m) The burden lies on the applicant, where
there is a delay in making an application within
the period of five years to establish a case on the
basis of reasons and a justification supported by
documentary and other evidence. It is for the
State Government after considering all the facts
to take an appropriate decision. The power to
relax is in the nature of an exception and is
conditioned by the existence of objective
considerations
to
the
satisfaction
of
the
government;

(n) The father of the petitioner died on
07.07.1991 when petitioner was aged about eight
years. He applied for compassionate appointment
sometime in the year 2006-07 and the District
Basic Education Officer 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.

36. For all the reasons aforestated, we see
no reason to deffer or take different view, vis-avis the view taken by the learned Single Judge in
the judgment under challenge.

37. The present intra-court appeal is devoid
of merit. Hence, it is dismissed. There shall be no
order as to costs.
----------
(2021)12ILR A1165
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.12.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Special Appeal No. 100 of 2019
Connected with
Spl. Appl. Nos. 98 of 2019, 99 of 2019, 103 of 2019 &
277 of 2019

Vinod Kumar Sirohi ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
1166 INDIAN LAW REPORTS ALLAHABAD SERIES
Sameer Kalia

Counsel for the Respondents:
C.S.C., Srideep Chatterjee, V.S.Ojha

A. Service Law - Promotion - Seniority - Police
Act 1861 - Sections 2, 12, 23 & 46(2)(c) - U.P.
Sub-Inspector and Inspector (Civil Police)
Service Rules, 2015 - Rules 3(i), 3(m), 3(n),
4(1), 18(2), 22(3), 22(4), 26, 27 & 28 - The
Uttar Pradesh Sub-Inspector and Inspector
(Civil Police) Service Rules, 2008 - Sections, 20,
21,22, 23, 24, 25 & 26 - Rule 18(2), 19 - Uttar
Pradesh Government Seniority Rules, 1991 -
The
Uttar
Pradesh
High
Schools
and
Intermediate Colleges (Reserve Pool Teachers)
Ordinances, 1978 (U.P. Ordinance 10 of 1978) -
The
Uttar
Pradesh
High
Schools
and
Intermediate Colleges (Reserve Pool Teachers)
(Second) Ordinance 1978 (U.P. Ordinance 22 of
1978) - The Uttar Pradesh Police Constables
and Head Constables Service Rules, 2008 -
Rules 3, 3(i), 4, 4(1), 5, 6, 7, 8, 10, 11, 13, 14,
15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27 &
28.

Code of Civil Procedure: Order I Rule 8 - Nonjoinder
of
necessary
party
-
When
the
constitutional
validity
of
a
provision
is
challenged and there are beneficiaries of the
said
provision,
some
of
them
in
a
representative capacity have to be made
parties failing which the writ court would not
be justified in hearing a writ petition in the
absence of the selected candidates when they
are already appointed on the basis of the
provision which was under assail before the
Writ Court. (Para 28)

In the case at hand neither any rule nor regulation
was
challenged.
Thirteen
persons,
who
were
impleaded,
were
not
treated
to
be
in
the
representative capacity. No adverse order can be
passed against persons who were not made parties to
the litigation. (Para 29, 30)

If a person who is likely to suffer from the
order of the Court and has not been impleaded
as a party has a right to ignore the said order
as it has been passed in violation of the
principles of natural justice. Proviso to Order I,
Rule IX, CPC provide that non-joinder of
necessary
party
be
fatal.
Undoubtedly,
provisions of CPC are not applicable in writ
jurisdiction by virtue of the provision of S. 141
CPC but the principles enshrined therein are
applicable. (Para 34)

By the final outcome of the writ petitions viz. by the
impugned order under appeal, almost 990 nongazetted police personnel might be affected. When all
the appointees were not impleaded, the writ petition
was defective and hence, no relief could have been
granted to the writ petitioners. In the instant case,
prior to passing of the impugned judgment under
appeal, no advertisement or publication was issued
regarding the institution of the aforesaid writ
petitions. Thus, the judgment under appeal has been
passed without granting opportunity to the necessary
parties to a lis to come and defend themselves. (Para
21, 37, 38)

The provisions of Order I Rule 8 of the Code of
Civil Procedure have not been complied with by
the writ petitioners. Impugned order under
appeal is liable to be dismissed on the ground
of non-joinder of the parties in the writ
petitions. (Para 16, 21, 28 to 40)

B. The Police Act, 1861 is a special statute and
a complete code. If the legislature has already
made a law and the field is occupied, in such a
situation, rules can be made under the law
enacted by the legislature and not under Article
309. (Para 15(VI), 43, 44 to 59)

Once a self-contained Code in the form of the Police
Act has been enacted by the legislature and its
continuance after the adoption of the Constitution is
ensured by Art. 313 and Art. 372 of the Constitution,
the field relating to recruitment and conditions of
service of members of the police force in the
St.stands occupied by the legislation. Any rule or
order relating to the determination of the conditions
of service of the police force can be made only under
the provisions of the Police Act or by the legislation
enacted by the St.legislature governing the service
conditions of the police force. S.2, S.7 and S. 46 of
the Police Act clearly evince an intent of the
legislature to occupy the whole of the field relating to
conditions of service of the police force. (Para 43)

U/s 2 of the Police Act, 1861, the St.Government has
been vested with power to determine the pay and all
other conditions of service of members of the
subordinate
ranks
of
the
police
force.
The
11 All. Vinod Kumar Sirohi Vs. State of U.P. & Ors.
1167
determination within the meaning of S.2 may
be both by means of the exercise of the rulemaking power as well as by an administrative
direction. Thus, the Police Act, 1861 being a
complete code and it occupies the entire field
of the determination of service condition. The
power to determine all the conditions of service of
member of the subordinate ranks of the police force
is
vested
with
the
St.Government
and
the
St.Government has the rule making power u/s
46(2)(c) of the Police Act, 1861 to carry out the
purposes of the Act by framing rules. (Para 63)

The GO dated 03.02.1994 shows that it relates to out
of turn promotion of the Sub-Inspector to the post of
Inspector and the ground for such out of promotion
was the indomitable courage shown by the SubInspectors in discharge of their duties. It does not
contemplate merely courage rather indomitable
courage. This GO is also referable to S.2 of the Police
Act, 1861. Vide circular dated 10.02.1994 issued by
the Director General of Police, Uttar Pradesh in
pursuance of the statutory GO dated 03.02.1994, a
complete mechanism/procedure was provided for out
of turn promotion. For an act of bravery, a police
officer can be rewarded according to Chapter XXXI of
the Police Regulations, but the GO dated 03.02.1994
required something more than good work and
bravery. (Para 61)

GOs 05.11.1965, 29.08.1983 and 24.07.2003 are
referable to the same source i.e. S.2 of the Police Act,
1861 and further statutory order dated 03.02.1994
continuously remain in existence from 03.02.1994 till
07.06.2014 and all these GOs were co-existing as
they were operating in different field providing for
different contingencies. (Para 62)

From
perusal
of
the
impugned
order
dated
20.02.2019, it transpires that the learned Single
Judge has not considered the object of the
Government
Order
dated
03.02.1994,
its
source, its nature etc. It appears that the learned
Single Judge, while passing the judgment and order
dated 20.02.2019, has laid much emphasis upon Uttar
Pradesh Sub-Inspectors and Inspector (Civil Police)
Service Rules, 2008 and not considered the statutory
GOs, as referred to hereinabove, which have been
issued u/s 2 r.w. S.46(2) of the Police Act, 1861.
(Para 64, 83)

C. Seniority is a civil right available to a
Government servant to be determined by the
policy of the employer and further it is always
open
for
the
employer/St.Government
to
amend/modify its policy and, thus, there is no
vested right available to a Government servant
if such policy is changed. (Para 16(g), 68)

Rule 3(i) of the Rules, 2015 - 'member of
service' - a person appointed to a post in service
under these rules or any previous rules before the
commencement of these rules. (Para 16(h))

Rule 3(m) of Rules, 2015 - 'Service' - means the
Uttar Pradesh Sub-Inspector and Inspector (Civil
Police) Service. (Para 16(h))

Rule 3(n) of Rules, 2015 - 'Substantive
Appointment' - an appointment, not being an ad
hoc 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 accordance
with the procedure prescribed for the time being by
executive instructions issued by the Government.
(Para 16(h))

Rule 3(m) of Rules, 2008 - 'substantive
appointment' - an appointment, not being ad hoc
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 accordance with the
procedure prescribed for the time being by executive
instructions issued by the Government. (Para 69)

Rule 4 of the Rules, 2008 - 'Cadre of service' -
the strength of service and of each category of
service therein shall be such as may be determined
by the Government from time to time. (Para 69)

Rule 28 of the Rules, 2008 empowers the
St.Government to grant relaxation from the conditions
of service Rule 30 of the Rules, 2008 grants
overriding effect to the said rules and further subrule 4 of Rule 30 also provides that notwithstanding
such
recission,
the
benefit
of
seniority
and
conformation etc. granted before 02.12.2008 under
the
prevalent
rules,
government
orders
or
administrative instructions shall not be withdrawn.
(Para 65, 75)

Rule 3(i) and Sub-Rule 2 of Rule 19 of Rules,
2008 clearly provide that any person substantively
appointed under the orders enforced prior to the
commencement of these Rules to a post of Cadre of
the Service as well as any person appointed to a post
1168 INDIAN LAW REPORTS ALLAHABAD SERIES
in the service prior to commencement of Rules, 2008
and who was working on the post shall be deemed to
be substantively appointed under the said Rules.
(Para 69, 75)

Rule 18(2) of the Rules, 2015 provides that if
more than one order of appointment are issued in
respect of any one selection u/Rule 17, then a
combined order shall also be issued, mentioning the
names of the persons in order of seniority as
determined in the selection or, as the case may be, as
it stood in the cadre from which they are promoted.
Proviso to Rule 18(2) provides that any person
appointed before the commencement of these rules
to a post under the service and working on that post
shall be deemed to have been substantively
appointed under these rules and such substantive
appointment shall be deemed to have been made
under these rules. (Para 16(q), 76)

On 07.06.2014, the St.Government issued an order
u/s 2 of the Police Act, 1861, by which the
mechanism of out of turn promotion was rescinded
and in its place, other arrangements, namely, cash
reward and grant of medals was brought into force.
Hence,
prior
to
07.06.2014,
the
GOs
dated
03.02.1994 and 01.05.1999 were being applied for
granting out of turn promotion on cadre posts of
personnel who had shown exemplary courage, while
carrying out their duties. It appears that once the
St.Government on 07.06.2014 took a decision of
rescinding its policy of granting out of turn promotion
and replacing the same with the other arrangement,
the St.Government in order to rectify the anomaly
created vide order dated 01.05.1999, which provided
that although promotions would be made on cadre
post, the same would be treated ex cadre and the
same would not confer any benefit for determination
of seniority, issued the order dated 23.07.2015
rectifying the said anomaly by which earlier order
dated 01.05.1999 was rescinded with immediate
effect and it was provided that 990 Non-Gazetted
Police Officers/employees who had been granted out
of turn promotion w.e.f. 1994 till 2014, their
probation shall be counted with effect from their date
of out of turn promotion. This Government Order
dated 23.07.2015 were challenged by the writ
petitioners/private respondents before the learned
Single Judge. (Para 16(h), 66, 67, 70, 71, 74)

At the time of issuance of the statutory orders
i.e. 03.02.1994 and 01.05.1999, there were no
service rules framed by the St.Government u/s
46(2)(c) of the Police Act, 1861. Thus, all the out
of turn promotions were promoted on cadre posts
and the said promotions were made by the
St.Government in accordance with the GOs, which
were issued in exercise of the statutory powers
available to it under the provisions of Police Act,
1861. Therefore, promotion of the appellants
were made in accordance with the procedure
then prevailing in law and were made on cadre
posts. (Para 72)

A bare reading of Rule 3(i), 3(l) and 3(m) of Rules,
2008 and on considering the fact that out of turn
promotees were appointed on cadre posts as per the
then existing procedure issued by the St.Government
under the provisions of Police Act, 1861, it transpires
that such out of turn promotees were member of
the Uttar Pradesh Sub-Inspector and Inspector
(Civil Police) Service having been substantively
appointed on a cadre post prior to the issuance
of the Rules, 2008 and after the advent of the
Rules, 2008, they continued in the said
capacity. (Para 73)

The appellants were 'members of service' from
the initial date of their out of turn promotion
on the post of Inspector, for the reason firstly,
that their promotion was against a vacancy in the
cadre, secondly it was in accordance with the
procedure prescribed by law i.e. under the GO issued
under the provisions of S.2 of the Police Act, 1861
and thirdly it was a substantive appointment. Thus,
seniority could not have been denied to them
by any stretch of imagination or by operation
of any law. (Para 16(i))

The appellants are 'members of the service'
and 'substantively appointed' out of turn on the
strength of the statutory Government Orders.
Therefore, the policy of the St.Government issued
vide order dated 23.07.2015 was legally justified and
the learned Single Judge erred in quashing the GO
dated 23.07.2015 and the seniority list. (Para 76, 82)

The learned Single Judge, while passing the
impugned order, has failed to appreciate the
nature of the appointment of the appellants.
Furthermore, the learned Single Judge has not
considered Rule 3(i) and part of Rule 3(m) of
the Rules, 2008, which was conjuncted after
the word 'and'. Even the GOs dated 05.11.1965,
29.08.1983 and 24.07.2003, which are the statutory
orders have not been appreciated. (Para 83)
11 All. Vinod Kumar Sirohi Vs. State of U.P. & Ors.
1169
D. Merger of Cadres - Merger of cadre and the
matter of creation of post is a prerogative of
the St.policy. It is always open to the
St.Government to create post or merge the
cadres. No employee has the right to object to the
merger/integration
of
the
cadre
of
different
departments on the ground that it will adversely
affect the prospects of promotion or cover other
service benefits. (Para 78)

In the instant case, there are two classes i.e. (1) out
of turn promotee cadre; (2) direct recruitee cadre.
These two classes were subsequently merged into
one class of cadre. However, a dispute arose. Direct
recruitee/private respondents have claimed that they
are senior to the out of turn promotee cadre, whereas
out of turn promotee cadre/appellants claims that as
they are being working since the date of giving out of
turn promotion on the strength of the statutory
orders which have been issued in terms of S.2 of the
Police Act, 1861, therefore, the policy decision taken
by the St.Government vide order dated 23.07.2015
and the consequential orders are perfectly justifiable.
(Para 77)

Further, before and after the merger of two cadres
into one cadre, nature and duties of the post in
question are more or less identical. Furthermore,
the qualifications prescribed for appointment on
the post in question on the date the private
respondents and appellants were appointed, were
the same. The appellant's date of substantive
appointment on the post in question is admittedly
prior in the point of time to that of the private
respondents. (Para 79)

E. Doctrine of per incuriam and sub-silentio - It
is settled law that when a judgment is
rendered by ignoring the provisions of the
governing statute and earlier larger Bench
decision on the point such decisions are
rendered per incuriam. (Para 16(k), 84)

Learned Single Judge has not taken into consideration
the relevant statutory provisions, relevant GOs and
the previous judgments of the Apex Court and this
Court while passing the judgment and order under
appeal. (Para 16(k), 16(r))

As per Rules 3(i), 3(m), 3(n), 4(1), 22(3), 22(4), 27
and 28 of Rules, 2015 and Rule 18(2) of Rules,
2008, and from a conjoint reading of Rules, 2008
and Rules, 2015, it is unambiguously clear that the
appellants were members of service from the initial
date of their out of turn promotion on the post of
Inspector. That the policy decision taken by the
St.Government
vide
order
dated
23.07.2015
impugned in the writ petitions does not suffer from
any illegality and the same is not violative of any of
the provisions of the Rules, 2008 and Rules, 2015
rather the same is protected under both the Rules.
(Para 17(i))

Writ petitioners have not challenged the
aforesaid provisions contained in the said Rules
and
the
same
is
neither
arbitrary
nor
discriminatory in any manner so as to render it
violative of Article 14 of the Constitution of
India. (Para 17(i))

Thus, the learned Single Judge, while passing the
impugned order, has not at all considered the
aforesaid aspect of the matter and the judgment and
order under appeal is hit by the doctrine of per
incuriam as well as the doctrine of sub silentio,
hence the impugned order passed by the learned
Single Judge is liable to be set-aside and also the writ
petitions are also liable to be dismissed. (Para 17(i))

Special appeals allowed. (E-4)

Precedent followed:

1. Prabodh Verma & ors. Vs St.of U.P. & ors., (1984)
4 SCC 251 (Para 18(b))

2. Indu Shekhar Singh & ors. Vs St.of U.P. & ors.,
2006 (8) SCC 129 (Para 31)

3. Tridip Kumar Dingal & ors. Vs St.of W.B. & ors.,
(2008) 1 SCC 768 (Para 33)

4. Public Service Commission Uttaranchal Vs Mamta
Bisht & ors., AIR 2010 SCC 2613 (Para 34)

5. Vijay Kumar Kaul & ors. Vs U.O.I. & ors., 2008 (6)
SCC 797 (Para 35)

6. St.of Raj. Vs Ucchab Lal Chhanwal, (2014) 1 SCC
144 (Para 36)

7. Rashmi Mishra Vs M.P. Public Service Commission
& ors., (2006) 12 SCC 724 (Para 16(a))

8. St.of U.P. & ors. Vs Rajendra Singh & anr., 2015 4
ADJ 575 (Para 16(l), 43)
1170 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Praful Kumar Das Vs St.of Orissa, (2003) 11 SCC
614 (Para 16(g), 68)

10. Shivprasad Pipal Vs U.O.I. & ors., (1998) 4 SCC
598 (Para 78)

11. V. Sivaguru Vs St.of T.N., (2013) 7 SCC 335 (Para
81)

12. Chandra Prakash Tiwari Vs Shakuntala Shukla,
AIR 2002 SC 2322; 2002 (6) SCC 127 (Para 83,
15(VI))

13. Government of A.P. & anr. Vs B. Satyanarayan,
2000 (4) SCC 262 (Para 16(r), 84)

14. Nirmaljeet Kaur Vs St.of M.P. & anr., 2004 (7)
SCC 558 (Para 16(r))

15. Tuples Educational Society & anr. Vs St.of U.P. &
anr., 2008 (3) AWC 2499 (FB) (Para 16(r), 84)

Precedent cited by appellants:

1. St. of U.P. Vs Babu Ram Upadhya, AIR 1961 SC 751
(Para 15(VI))

2. Suresh Vs Yeotmal District Central Co-operative
Bank & anr., (2008) 12 SCC 558 (Para 16(a))

3. St.of Raj. Vs Ucchab Lal Chhanwal, (2014) 1 SCC
144 (Para 16(a))

4. Ranjan Kumar & ors. Vs St.of Bihar & ors., (2014) 16
SCC 187 (Para 16(a))

5. Vijay Singh & ors. Vs St.of U.P. & ors., (2005) 2
AWC 1191 (Para 16(l), 59)

6. Krishna Kumar Pandey Vs St.of U.P. & ors., 2001 (3)
AWC 2163 (Para 16(o))

7. Narendra Chadha & ors. Vs U.O.I. & ors., 1986 (2)
SCC 157 (Para 16(q))

8. U.O.I. & ors. Vs Pratap Narain & ors., 1992 (3) SCC
268 (Para 16(q))

9. St.of U.P. & ors. Vs Rajendra Singh & anr., 2015 (4)
ADJ LB (FB) (Para 16(q))

10. Vijay Kumar Gaur Vs St.of U.P. & anr., 2016 (11)
ADJ 502 (LB) (Para 16(q))
11. Vijay Singh & ors. Vs St.of U.P. & ors., 2005 AWC
1191 (FB) (Para 16(q))

12. Ajay Kumar Bhuyan Vs St.of Orissa, 2003 (1) SCC
707 (Para 16(q))

13. Prem Kumar Upadhyay Vs St.of U.P. & ors., 2014
(1)ADJ 536 (Para 16(q))

14. Kandwa Kumar Mishra Vs State, Special Appeal No.
117 of 2014, decided on 03.02.2014 (Para 16(q))

15. Krishna Kumar Pandey Vs St.of U.P. & anr., 2001
(3) AWC 2163 (Para 16(q))

16. Kishan Rao Vs Nikhil Super Specialty Hospital, 2010
(5) SCC 513 (Para 16(r))

17. Young Vs Bristol Aeroplane Company, 1948 78 LIL
Rep 6 (Para 16(r))

18. Municipal Corp. of Delhi Vs Gurnam Kaur, 1989 (1)
SCC 101 (Para 16(r), 84)

19. St.of U.P. & anr. Vs Synthetics and Chemicals Ltd.
& anr., 1991 (4) SCC 139 (Para 16(r))

20. Public Welfare Hospital, Varanasi Vs St.of U.P. &
ors., 2011 (5) AWC 4757 (Para 16(r))

21. U. Barkath Vs Director General of Police, 2019 SCC
Online Mad. 4347 (Para 16(r))

22. S.P. Shivprasad Pipal Vs U.O.I., 1998 AIR (SC)
1982 (Para 16(u))

23. S.I. Roopal & anr. Vs Lt. Governor through Chief
Secretary, Delhi & ors., AIR 2000 SC 594 (Para 16(u))

24. St.of Maharashtra Vs Chandrakant Anand Kulkarni,
1981 AIR (SC) 1990 (Para 16(u))

25. P.U. Joshi & ors. Vs Accountant General,
Ahemedabad & ors., 2003 (2) SCC 632 (Para 16(u))

26. Tej Narain Tiwari Vs St.of Bihar & ors., 1993 Supp
(2) SCC 623 (Para 16(u))

27. Prakash Ranjan Kumar & ors. & Ajit Kumar Saha Vs
St.of Bihar & ors., 2007 (2) BLJR 2987 (Para 16(u))

28. Om Prakash Sharma & ors. Vs U.O.I. & ors., 1985
(Supp) SCC 218 (Para 16(u))
11 All. Vinod Kumar Sirohi Vs. State of U.P. & Ors.
1171
29. S.A. Siddiqui Vs M. Wajid Khan, 1999 AIR (SC)
604 (Para 16(u))

30. R.B.I. Vs N.C. Paliwal & ors., (1976) 4 SCC 838
(Para 16(u))

31. St.of Raj. & ors. Vs Shantilal Jain and Ors., 1989
Supp (2) SCC 777 (Para 16(u))

32. Tamil Nadu Education Department Ministerial and
General Subordinate Services Association & ors. Vs
St.of Tamil Nadu & ors., (1997) 8 SCC 522 (Para
16(u))

33. U.O.I. & ors. Vs S.L. Dutta & ors., AIR 1991 SC
363 (Para 16(u))

Precedent cited by respondent:

1. G.M. South Central Railways Sikandarabad Vs
A.V.R. Siddhanti, (1974) 4 SCC 335 (Para 18(a))

2. Janardana Vs U.O.I., (1983) 3 SCC 601 (Para
18(a))

3. Syed Khalid Rizbi & ors. Vs U.O.I. & ors., 1993
Supp. (3) SCC 575 (Para 18(n))

4. The Food Commissioner, U.P. & ors. Vs Om Pal
Singh & ors., Special Appeal No. 1960 of 2011,
decided on 05.10.2018 (Para 18(n))

5. M. Venketeswarlu & ors. Vs Government of A.P. &
ors., 1996 (5) SCC 167 (Para 18(n))

6. U.P. Jal Nigam & ors. Vs Narinder Kumar Agarwal,
1996 (8) SCC 43 (Para 18(n))

7. Suraj Prakash Gupta & ors. Vs St.of J & K & ors.,
2000 (7) SCC 516 (Para 18(n))

8. Rajasthan St.Industrial Development Corporation
Vs Subhash Sindhi Cooperative Society Jaipur & ors.,
2013 (5) SCC 427 (Para 18(n))

9. Chairman, Public Service Commission, J & K & anr.
Vs Sudarshan Singh Jamwal & ors., 1998 (9) SCC
327 (Para 18(n))

10.
U.P.
Unaided
Medical
Colleges
Welfare
Association Vs U.O.I. & ors., 2016 (3) UPLBEC 2363
(Para 18(n))

11. Bhupendra Nath Hazarika & ors. Vs St.of Assam &
ors., 2013 (2) SCC 516 (Para 18(n))

12. J.K. Industries Ltd. & ors. Vs Chief Inspector of
Factories and Boilers & ors., 1996 (6) SCC 665 (Para
18(o))

13. K. Kuppusamy & anr. Vs St.of T.N. & ors., 1998
(8) SCC 469 (Para 18(p))

14. Dr. Rajinder Singh Vs St.of Pun., 2001 (5) SCC
482 (Para 18(p))

15. Bindeshwari Ram Vs St.of Bihar & ors., 1989 (4)
SCC 465 (Para 18(p))

16. Anurag Yadav & ors. Vs St.of U.P. & ors., 2010
(3) UPLBEC 2261 (Para 18(p))

17. K.P. Sudhakaran & anr. Vs St.of Kerala & ors.,
2006 (5) SCC 386 (Para 18(p))

18. Mahadev Bhau Khilare (Mane) & ors. Vs St.of
Mah. & ors., (2007) 5 SCC 524 (Para 18(p))

19. Madeva Upendra Sinai & ors. Vs U.O.I. & ors.,
1975 (6) SCC 765 (Para 18(q))

20. Delhi Development Authority & anr. Vs Joint
Action Committee Allottee of SF's Flats & ors., 2008
(2) SCC 672 (Para 18(q))

21. J.K. Cotton Spinning & Weaving Mills Company
Ltd. Vs St.of U.P., AIR 1961 (SC) 1170 (Para 18(r))

22. Dharni Sugars & Chemicals Ltd. Vs U.O.I. & ors.,
2019 (5) SCC 480 (Para 18(r))

23. M.S. Patil (Dr.) Vs Gulbarga University, 2010 (10)
SCC 63 (Para 18(s))

24. St.of Orissa & anr. Vs Mamta Mohanty, 2011 (3)
SCC 436 (Para 18(s))

25. Umarani Vs Registrar Cooperative Societies & ors.,
2004 (7) SCC 112 (Para 18(s))

26. Baddula Lakshmaiah & ors. Vs Sri Anjaneya
Swami Temple & ors., 1996 (3) SCC 52 (Para 18(t))

27. Managing Director, ECIL, Hyderabad & ors. Vs B.
Karunakar & ors., 1993 (4) SCC 727 (Para 18(t))
1172 INDIAN LAW REPORTS ALLAHABAD SERIES
Present appeals challenge judgment and order
dated 20.02.2019, whereby Single Judge while
allowing WPs with further directions, quashed
the GO dated 23.07.2015, consequential order
dated 29.07.2015 and seniority list dated
24.09.2016.

(Delivered by Hon'ble Ramesh Sinha, J.)

(1) The above-captioned Special Appeal
Nos. 100 of 2019, 98 of 2019, 99 of 2019 and
103 of 2019 has been preferred by the appellants
(out of turn promotees/private respondents in the
writ petition) and Special Appeal No. 277 of
2021 has been preferred by the State, assailing
the correctness of the judgment and order dated
20.02.2019 passed in Service Single No. 5677 of
2016 and connected Service Single No. 13625 of
2016 and 10759 of 2016, whereby the learned
Single Judge, while allowing the aforesaid writ
petitions, quashed the Government Order dated
23.07.2015,
consequential
order
dated
29.07.2015 and seniority list dated 24.09.2016
and further directed the State to prepare a fresh
seniority list in accordance with Rule 22 (3) of
the Uttar Pradesh Sub-Inspector and Inspector
(Civil Police) Service Rules, 2015 and assign the
seniority to the promotees of ex cadre posts from
the date when their immediate juniors were
promoted to the post of Inspector in accordance
with the service rules against cadre posts within
a period of two months from the date of the
order and after preparing the seniority list as
directed aforesaid, consequential orders in
respect of promotions etc. be issued.

FACTS

(2) The factual matrix relevant for
adjudication of this set of appeals is as under :-

(a) The State Government had issued a
Government Order dated 05.11.1965, which
provided for the method of selection of SubInspector for promotion to the rank of Inspector.
This Government Order dated 05.11.1965 is
referable to Section 2 of the Police Act, 1861
(hereinafter referred to as "Act, 1861").
Thereafter, the State Government issued another
Government Order dated 29.10.1983 under
Section (2) of the Act, 1861, providing therein a
Selection Committee be constituted for the
purpose selecting Sub-Inspectors for promotion
to the post of Inspectors.

(b) The aforesaid Government Orders dated
05.11.1965 and subsequent Government Orders
were rescinded/modified by the Government
Order dated 24.07.2003 issued under Section 2
of the Act, 1861 providing for the selection
process for promotion of Sub-Inspector (Civil
Police)
to
the
Inspector
(Civil
Police).
Subsequently, the State Government has issued
Government Order dated 3.2.1994, by means of
which it was provided that those Constables and
Sub-Inspectors/Platoon Commanders, who have
shown
exemplary
courage,
be
given
appointment from the post of Constable to Head
Constable and from the post of Sub-Inspector
and Platoon Commander to Inspector/Company
Commander on ex cadre posts. It was further
provided that for each year, such ex cadre posts
would be created by the State Government on
the proposal of the Inspector General of Police,
Lucknow. It was also provided that it has
overriding effect over any other existing orders.

(c) The aforesaid Government Order dated
03.02.1994 contemplated that the promotions
would be made on ex cadre posts, which were to
be sanctioned by the State Government for the
said purpose every year, however, no such post
were ever created and the out of turn promotions
were made on cadre posts of Head Constables
and Inspector, respectively.

(d) The Government Order dated 3.2.1994
is also referable to Section 2 of the Act, 1861.
Thereafter, the Director General of Police, Uttar
Pradesh had issued a Circular dated 10.02.1994
in pursuance of the statutory Government Order
11 All. Vinod Kumar Sirohi Vs. State of U.P. & Ors.
1173
dated
3.2.1994,
in
which
complete
mechanism/procedure was prescribed for out of
turn promotion.

(e) Subsequently, on 01.05.1999, the State
Government issued another statutory order
referable to Section 2 of the Act, 1861, by means
of which it laid down that out of turn promotions
would be against the vacancies existing in the
cadre, however, promotion would be treated ex
cadre and its benefit will not be available for the
purposes of determination of seniority.

(f) It is relevant to add here that at the time
of issuance of the statutory orders i.e.
03.02.1994 and 01.05.1999, there were no
service rules framed by the State Government
under sub-section 2(c) of Section 46 of the Act,
1861. All the out of turn promotees were, thus,
promoted on cadre posts and the said promotions
were granted by the State Government in
accordance with the Government Orders which
were issued in exercise of the statutory powers
available to it under the provisions of the Act,
1861.

(g) Subsequently, for the first time, the
State Government, in exercise of power
available to it under sub-sections (2) of Section
46 read with Section 2 of the Act, 1861 (Act No.
5 of 1861), framed the Uttar Pradesh SubInspector and Inspector (Civil Police) Service
Rules, 2008 (hereinafter referred to as "Rules,
2008") in supersession of all existing rules
issued in this behalf with a view to regulating
the selection, promotion, training, appointment,
determination of seniority and confirmation etc.,
which came into effect from 02.12.2008.

(h) Thereafter, another Government Order
dated 07.06.2014 was issued by the State
Government under Section 2 of the Act, 1861, by
means of which, the Government Order dated
03.02.1994, which was related to ex cadre out of
turn promotees of non-gazetted staff of the Police
department, was cancelled and consequently a
decision was taken by the State Government to
award the non-gazetted staff of the police
department who had shown exemplary courage
with the Police Medal of the Chief Minister's
appreciation letter and was Rs.25,000/- cash
reward instead of out of turn promotion in terms
of the Government Order dated 07.06.2014. The
Director General of Police, U.P. had also issued a
circular dated 14.08.2014 in pursuance to the
aforesaid Government Order dated 07.06.2014.

(i) The Director General of Police,
Lucknow, on 06.02.2015 and 20.05.2015, wrote
to the Principal Secretary, Home, Government of
Uttar Pradesh, Lucknow, refusing for grant of
seniority to the ex cadre out of turn promotees
from the date of their out of turn promotion, who
were engaged in the security of the Chief
Minister, inter alia on the ground that in the
Government Order dated 01.05.1999, it was
provided that out of turn promotions would be
made against the vacant posts in the cadre which
will be treated as ex cadre promotions and no
benefit of the same will be admissible in the
fixation of seniority. In these backgrounds, a
direction was sought through the aforesaid letters
dated 06.02.2015 and 20.05.2015 from the State
Government with regard to fixation of seniority
of such out of turn promotees.

(j) Thereafter, Government Order dated
23.07.2015 was issued, whereby earlier order
dated 01.05.1999 was rescinded with immediate
effect and it was provided that the probation of
990 Non-Gazetted Police Officers/ employees,
who had been granted out of turn promotion
w.e.f. 1994 till 2014, shall be counted with effect
from their date of out of turn promotion. This
Government Order dated 23.07.2015 was issued
by the State Government in exercise of powers
available to it under Section 2 of the Act, 1861.

(k) Thereafter, the State Government, in
exercise of power conferred under sub-section 2
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
of Section 46 read with Section 2 of the Act,
1861, has framed U.P. Sub-Inspector and
Inspector (Civil Police) Service Rules, 2015
(hereinafter referred to as "Rules, 2015") in
superssession of all existing rules or orders
issued in this behalf with a view to regulating
the selection, promotion, training, appointment,
determination of seniority and confirmation etc.
of Sub-Inspectors and Inspectors of (Civil
Police) in Uttar Pradesh Police Force, which
came into force w.e.f. 19.08.2015.

(l) Thereafter, the writ petitioners/private
respondents herein, who are regularly promoted
Inspectors from the cadre of Sub-Inspector against
cadre posts of the Inspector of Civil Police, has
challenged the Government Order dated 23.07.2015,
consequential order dated 29.07.2015 issued by the
Director General of Police, U.P. and the seniority list
dated 24.02.2016 by filing Service Single No. 5677
of 2016, 13625 of 2016 and 10759 of 2016, by
impleading the name of thirteen out of turn
promotees as private respondents in the aforesaid writ
petitions.

(m) When the aforesaid writ petitions were
listed before the learned Single Judge as peremptorily
i.e. on 20.02.2019, none was responded before the
learned Single Judge on behalf of the private
respondents in writ petitions/ appellants herein,
therefore, in the absence of any assistance on behalf
of the private respondents/appellants herein, the
learned Single Judge, looking to the fact that the
matter was expedited by the Apex Court and so
many counsel, namely, Mr. Brijendra Singh, Sri Ravi
Singh, Sri Sameer Kalia have put in appearance on
earlier occasions when the case was listed, proceeded
to hear the matter finally on the basis of the
submissions put forth by learned Counsel for the writ
petitioners and learned Counsel for the State.

(n) Learned Single Judge, on considering the
Government Order dated 23.07.2015 in the light of
the Rules, 2008, observed that the Government Order
dated 23.07.2015 had been issued in violation of
Rules, 2008 and ex cadre posts are not the posts
within the cadre and their appointments were not
substantive appointments and as such, out of turn
promotees cannot claim seniority on the basis of their
appointment on ex cadre post over the writ
petitioners and the seniority of all the Inspectors are
to be governed in accordance with Rules 22 (3) of
Rules, 2015, which provides that the seniority of the
Inspectors is to be determined from the date of
substantive appointment after selection and inter se
seniority of the promotees of same selection is to be
that of the seniority in the ex cadre posts.

(o) In these backdrops, the learned Single
Judge allowed the writ petitions with the
direction as already recorded above, vide
judgment and order dated 20.02.2019, which is
impugned
in
the
above-captioned
special
appeals.

GOVERNMENT ORDERS :

(3) The method of selection of SubInspectors for promotion to the rank of
Inspectors has earlier been made in the
Government Order dated 05.11.1965, which is
reproduced as under :-

"From :

Shri R.K. Dar,

UP Sachiv,

Uttar Pradesh Shasan

To,

The Inspector General of Police,

Uttar Pradesh Allahabad/Lucknow

Dated Lucknow: November 5, 1965
Home (Police-A)

Sub : Method of Selection of SubInspectors for promotion to the rank of
Inspectors.

Sir,
11 All. Vinod Kumar Sirohi Vs. State of U.P. & Ors.
1175

With reference to Deputy Inspector General
of Police, Headquarters letter No. V-500-51,
dated August 18, 1964, on the subject noted
above, I am directed to say that after careful
consideration of the recommendations contained
in para 246 of the U.P. Police Commissions
Report, 1960, the Governor in supersession of
the povisions in the Police Regulations and in
modification of the present orders on the subject,
has been pleased to order that the procedure for
selection of Sub Inspectors for their promotion
to the cadre of Inspector shall henceforth be as
follows :

(A) The existing quota system by which a
certain number of Sub Inspectors are at present
selected from each Range should be abolished.
Sub Inspectors Civil Police who have put in not
less than 10 years service as such (and are below
50 years of age) on the 1st day of January of the
year in which the selection is made will now be
eligible for promotion to the post of Inspector.
The range Deputy Inspector General of Police
will send to the Police Headquarters every year
the following list.

(i) Lists of Sub Inspectors, Civil Police
considered suitable for officiating promotion as
Inspector in order of seniority in a prescribed
form, which may be laid down by the Police
Headquarters.

(ii) Lists of Sub Inspectors, Civil Police,
who are not considered fit for officiating
promotion with brief reasons.