IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 190 of 2010 Const. C.P. No. 1422 Amit Kumar and others ….…… Appellants. Versus State of Uttarakhand and others ………. Respondents Mr. Jagdish S. Bisht, Advocate for the appellants. Mr. B.D. Upadhyay, Addl. Advocate General for the State / respondents. Date of Judgment: 29.11.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. BARIN GHOSH, C.J. (ORAL) Delay Condonation Application No. 8003 of 2010 Considered the averments made in the application for condonation of delay in preferring the appeal and being satisfied with the reasons for the delay in preferring the appeal, we allow the application for condonation of delay. We also record here that learned counsel for the State has not objected to the application for condonation of delay being allowed. Special Appeal No. 190 of 2010 It appears to be the contention of the appellants that they fulfilled the criteria for being appointed under the Dying in Harness Rules. It is their contention that the authority concerned ascertained that the appellants may be appointed in Group III posts. They also ascertained that the appellants may be appointed in Group III posts of Sub Inspector. In order to appoint the appellants in the posts of Sub Inspector, appellants were sent for training. Six of the persons, who were undergoing training in similar circumstances, completed their training and were appointed by an order dated 11th October, 2002 as Sub Inspectors. Thereafter, on 28th October, 2002, it was held out that a decision has been taken not to appoint a person under the Dying in Harness Rules in the posts of Sub Inspector. At the same time, a decision was taken that the appellants, who were undergoing training, can be offered appointment to the posts of Constable. In terms thereof, appellants were offered the posts of Constable, when the appellants were called upon to furnish an undertaking that they will not raise any grievance in future in 2 relation to their appointment on the posts of Constable. Upon coming to know that six persons, who had undergone similar training as the appellants had undergone, have been appointed as Sub Inspectors, appellants filed a representation for being appointed as Sub Inspectors. Since that representation was contrary to the undertaking given by the appellants, there was no question, in law, of considering the said representation. The same was, accordingly, not considered. Appellants then approached this Court by filing a writ petition, when, by an order dated 27th February, 2006, the representation was directed to be considered. Accordingly, the representation was considered and by an order dated 23rd May, 2006, the same was rejected. Appellants then slept over the matter. Surprisingly, however, on 22nd November, 2010, they filed a writ petition, registered as Writ Petition No. 1461 of 2010 (S/S), challenging the said order dated 23rd May, 2006 rejecting their representation. By the judgment and order under appeal, the said writ petition has been dismissed. 2. In the writ petition, it was contended that the decision, not to appoint any person entitled to be appointed under Dying in Harness Rules in the posts of Sub Inspector, was taken on 4th October, 2002 and, admittedly, after the said decision was taken, on 11th October, 2002, six persons, sailing in similar boat as that of the appellants, were appointed on the posts of Sub Inspector. The State, in its counter affidavit, contended that those six persons completed their training before 4th October, 2002 and, accordingly, they cannot be equated with the appellants. The said contention on the part of the State has been accepted by the judgment and order under appeal. 3. In the present appeal, it is the contention of the appellants that, admittedly, training of the appellants started before 4th October, 2002 and, accordingly, decision taken on 4th October, 2002, was not applicable to the appellants. It is the contention of the appellants that the question is not when the training was completed, but the question is when the training commenced. It was submitted that on the strength of a decision taken subsequent to a decision to impart training to the appellants, appellants could not be denied of what was held out to the appellants at the commencement of the training. There is great substance in the said contention. 3 4. However, right to be appointed on the basis of training obtained stood crystallized immediately after the training was over. Admittedly, the same was over on 28th October, 2002. Despite the training having been obtained by 28th October, 2002, entailing appointments in the posts of Sub Inspector, appellants did not call in question the decision taken on 28th October, 2002 not to appoint the appellants in the posts of Sub Inspector and instead, offering them to be appointed as Constables. The offer so given, the appellants not only gladly accepted, but, on top of that, gave unconditional undertaking not to take a different stand in future. That, having been done in 2002, could not be reopened in 2010 under any circumstances. 5. Furthermore, by acting in the manner as above, appellants consciously waived their right, if any, to be appointed in the posts of Sub Inspector. After having had done so, they fixed, by their own volition, their status as Constables in the Police Force of the State. They worked as Constables with other Constables of the State for eight years from the date they were so appointed till the date they approached this Court by filing the writ petition, which has been dismissed by the judgment and order under appeal. Now they seek a promotion, through the blessing of the Court, to uplift their status and thereby, to become boss of their yesterday’s colleagues. That is wholly impermissible in administrative law. The writ petition was not only misconceived, but was filed with a mala fide object. The same having not been dismissed with exemplary costs, we feel that while dismissing the instant frivolous appeal, we must impose exemplary costs upon the appellants, so that, in future, this becomes a precedent for the others not to take steps of the nature that the appellants have taken. We have, however, with great efforts, restrained ourselves from imposing such costs. 6. The appeal fails and the same is dismissed. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) 29.11.2011 29.11.2011 Amit