HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 1615/04 (S/S) Thakur Singh Adhikari and others Vs State and others. Approved for reporting. __________________ Not approved for reporting Date of decision 31.3.2006 Initial of Judge 2 HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 1615 of 2004 (SS) 1. Thakur Singh Adhikari s/o Sri H.S. Adhikari Thana Bazar, City & District Almora 2. Laxman Singh Bisht s/o Sri Surendra Sigh Village Agrora, Patti Vasnvalsu, District 3. Surendra Sigh Bisht s/o Chandra Sigh Bisht Village Pipli, Post Devlikhal, Ranikhet, District Almora 4. Ganesh Prasad Baunthiyal s/o B.N. Baunthiyal Village Rohini Malli, Patti Seela, District Pauri Garhwal 5. Kamla Chaudhari d/o Chaintamani Chaudhari Police Line, Roshnabad, Haridwar .......... Petitioner Versus 1. State of Uttaranchal 2. Director General of Police, Uttaranchal 3. Inspector General of Police, kakrmik, Uttaranchal 4. Sri Jag Jeevan Ram Arya 5. Sri Raghubir Singh Awal 6. Sri Subhwan Sigh Bhandari 7. Sri Mathura Ram Tamta 8. Sri Kuldeep Singh Aswal 9. Sri Bhagat Singh Rawat 10. Sri Rakesh Chandra Kotnala 11. Sri Anshu haudhari 12. Sri Bhagwati Prasad Kukrati 13. Sri Vijay Kumar Kundaliya 14. Sri Mahandra Singh Negi 15. Sri Dinesh Chandra Bhandari 16. Sri Arujun Singh Rawat 17. Sri jagdamaba Prasad Juyal 18 Harish Mehra 19. Sri ishwari Dutt Joshi 20. Sri Abbal Singh Rawat 21. Sri Diwani Ram Arya 22. Sri Ganga Singh 23. Sri Dinesh Chandra bodiyal 3 24 Sri Rajan Lal Arya 25. Sri Umi Ram Arya 26. Sri Kamal Ram Arya 27. Sri Anand Singh Kathiat 28. Sri har Pal Singh 29. Sri Kelash Chandra 30. Sri Pritpal Singh rautela 31. Sri Kevlanand Arya 32. Sri jaimal Singh Negi 33. Sri Pravin Kumar Chaudhari 34. Sri Jagdish Chandra Pathak 35. Sri Permeshwar Singh 36. Sri Arvind Dangalwal 37. Sri Pariskshit Kumar 38. Sir Devendra Singh Dimari 39. Sri Dinesh Chandra Dhondiyal 40. Sri Anil Sah 41. Sri Raj Kishor Singh 42. Sri Ram lal Arya 43. Sri Mahesh Chandra Joshi 44. Sri Chandan Singh Bisht 45. Sri Tara Dutt Joshi 46. Sri Bhagat Prasad Sah 47. Sri Basanti lal Mathwal 48. Sri Satish Chandra Baluni 49. Sri Kulwant Singh Rawat 50. Sri Khushal Singh Bisht 51. Sri Hira Mani Dhyani 52. Sri Sanjiv Kumar Kausik 53. Sri Ratan Singh Panwar 54. Sri prayag Singh 55. Sri Sanjay Bisnoi 56. Sri Munna Lal 57. Sri Bharav Dutt 58. Sri Krishan Pal Singh 59. Sri Pankaj Gairola 60. Sri Mukesh Kumar Pant 61. Sri Shiv Kumar 62. Sri Mahesh Kumar Sonkar All are Inspector in Uttaranchal Police through Director General of Police, Head Quarter, Dehradun. ............... Respondents 4 Sri P.S. Adhikari, Sr. Advocate assisted by Sri B.S. Adhikari, Advocate for the petitioners. Standing Counsel for the respondents. Dated: March 31, 2006 Hon’ble Rajesh Tandon, J. Heard Sri P.S. Adhikari, Senior Advocate assisted by Sri B.S. Adhikari, Advocate counsel for the petitioners and Standing counsel for the respondents. By the present writ petition, the petitioners have prayed for a writ of mandamus directing the respondents to consider and promote the petitioner to the post of Inspectors with effect from the date of promotion of their juniors by following the Rules of 2004. According to the petitioners, they are serving in the Police department as Sub Inspectors from about 20 to 25 years and they have no adverse entry in their character roll. They were also rewarded for their efficient works. Ministry of Home Affairs, Government of Uttaranchal issued a notification on 23rd September 2004 for promotion of Sub Inspectors to the vacant posts of Inspectors in Uttaranchal police. In continuation of the process prescribed in the above notification, dates were fixed for interview of the candidates whose list was prepared by the department on the basis of seniority. The petitioners stood in the seniority list at serial no. 20. 21, 43, 84 and 98 respectively. Thereafter vide order dated 12.12.2004 of Additional Director General of Police, Uttaranchal, a list of promoted candidates was published. The petitioners have submitted that in the list of promoted candidates, the persons who were junior to the petitioners have found place and the seniority of the petitioners have completely been ignored. The petitioners have submitted 5 that petitioners no. 1 made a representation to the respondents on 13.12.2004 but no heed was paid to the representation of the petitioners. Counter affidavit has been filed by the respondents. The respondents have submitted that seniority list was prepared on the basis of merit and in pursuance of the said notification the result of promotion was declared on the basis of merit. According to the respondents in the Police Department Police Regulation 1861 in applicable in the case of direct recruitment and promotion. In exercise of the powers given under Police Regulation, the Government issued notification dated 23.9.2004, and promotions of the sub Inspectors to the post of Inspectors were made in accordance with the said notification. The respondents have asserted that notification No. 743/XXX (2)/2004/55(40)/2004 dated 15.6.2004 is not applicable to the Police Department of Uttaranchal. The main allegation of the petitioners is that during promotion process of Sub Inspectors to the posts of Inspectors, such standards have been adopted by the respondents due to which seniority of the petitioners have been completely ignored and the Departmental Selection Committee made for the promotion was successful in selecting candidates of its own choice for promotion. On behalf of the petitioners much stress has been drawn on the applicability of the Uttaranchal Government Servant (Criterion For recruitment by Promotion) Rules 2004. The respondents have denied in their counter affidavit that such Rules are applicable to the Police Department of Uttaranchal. Sub Clause (3) of Rule 1 of the said Rules reads as under: 6 (3) They shall apply to recruitment by promotion to a post or service for which no consultation with the Public Service Commission is required on the principles to be followed in making promotions under the Uttaranchal Public Service Commission (Limitation of Functions) Regulations, 2003 as amended from time to time. Rule 4 of the said Rules provided as under: 4. Criterion for Recruitment by Promotion- Recruitment by promotion to the post of Head of Department, to a post just one rank below the Head of Department and to a post in any service carrying the pay scale the maximum of which is Rs.18,300 or above shall be made on the basis of merit and to the rest of the posts in all services to be filled by promotion. Including a post where promotion is made from a Non-Gazetted post to a Gazetted post or from one service to another service, shall be made on the basis of seniority to the rejection of the unfit. The post of Inspector in the Uttaranchal Police is neither a Head of the Department nor above the pay scale of 18,300. Thus certainly it comes within the preview of the Uttaranchal Government Servants (Criterion For Recruitment by Promotion) Rules, 2004. These rules has also overriding effect on other rules made by the Governor. Rules 2 reads as under: 2. Overriding effect- These rules shall have effect notwithstanding anything to the contrary contained in any other service rules made by the Governor under the proviso to 7 Article 309 of the Constitution, or Orders, for the time being in force. From the above, it is clear that these rules are applicable to all service rules in the State of Uttaranchal made by the Governor under Article 309 of the Constitution of India. These rules were promulgated in the State of Uttaranchal vide notification dated 15th June 2004, by the Governor of Uttaranchal under Article 309 of the Constitution, while the notification for promotion of Sub Inspectors to the posts of Inspectors was issued on 23rd September 2004, under Police Act 1861. Though it is a duly notified rule under the Police Act but it is in the nature of executive instruction having the force of law in the absence of statutory rules to the contrary. The Governor is the executive head of the State and all executive powers of the State are vested in the Governor by virtue of Article 154 of the Constitution of India. The function of the Governor under the proviso to Article 309 is purely legislative which cannot be tattered by any executive order. The legislative powers of the Governor under the proviso to Article 309 is co- extensive with those of the State Legislation in the field of service under the State. Thus the Uttaranchal Government Servant (Criterion For Recruitment by Promotion) Rules, 2004, was duly applicable to the Uttaranchal Police Department on the date of its promulgation i.e. 15.6.2004. The procedure made for promotion of the Sub Inspectors to the posts of Inspectors under notification dated 23.9.2004 cannot be said entirely in contravention of the Uttaranchal Government Servants (Criterion For Recruitment by Promotion) Rules, 2004 but certainly the criteria provided 8 under section 4 of this Act i.e. ‘promotion shall be made on the basis of seniority to the rejection of unfit’ has not been followed in its true spirit. Although seniority has been regarded in the rules framed for promotion of Sub Inspections to the posts of Inspectors by providing higher marks. Rule 3 (Ka) of the said rules reads as under: lsok vfHkys[kks ds ewY;kadu gsrq mDr enksa esa fu/kkZfjr vadks dks Hkh fuEuizdkj foHkkftr fd;k tkrk gS %& ¼d½ lsok vof/k& „Œ o"kZ ls vf/kd ‹ vad ƒ‡ ls „Œ o"kZ ‰ vad ƒƒ ls ƒ‡ o"kZ ‡ vad Counsel for the petitioners has disputed the criteria prescribed in clause 3 of the notification i.e. for Length of Service 9 marks, for Educational Qualificatio-9 marks, for Annual remarks- 30 marks, for awards-24 marks, for sports and special courses-18 marks and for interview-10 marks. The margin of marks awarded for seniority are too low. Further equal marks will be obtained by the candidates having service in five years difference. Thus there are much chances of promotion of the junior candidates ignoring the seniors. Once the legislation has adopted the criteria that ‘promotion shall be made on the basis of seniority to the rejection of the unfit’ it should be regarded in all its further actions. Counsel for the petitioners has placed reliance in the case State of U.P. and others vs. Shakuntla Shukla, Special Appeal No. 191 of 1998 decided on July 9, 1999 where a Division Bench of Allahabad High Court has held that U.P. Govt. Servant Criteria for Recruitment by Promotion Rules 1994 has overriding effect over the Government Order dated 5th 9 November, 1965 prescribing the method of selection of Sub Inspectors for promotion to the Rank of Inspectors. G.O. was issued on the recommendation contained in Para 246 of the U.P. Police Commission Report 1960. Thus the factual aspect of the present case is similar to that of the case before the Division Bench of Allahabad High Court. in the present case the Governor of Uttaranchal has issued a notification under Section 2 of the Police Act, providing procedure for promotion of Sub Inspectors to the rank of Inspectors. The present case the petitioners have not prayed for a writ certiorari quashing the order of promotion made by the respondents. Their prayer is that the criteria for promotion fixed by the Government under Rule 4 of the Uttaranchal Government Servants (Criterion For Recruitment by Promotion) Rules, 2004, should be regarded in all respects and they should be considered for promotion in view of their seniority, as there is nothing in their service record which rendered them unfit for promotion to the rank of Inspector. In view of above, a writ of mandamus is issued directing the respondents to consider the petitioners for promotion to the rank of Inspector within a month after obtaining the certified copy of this order. If they found eligible for promotion, they shall be promoted on the date when junior to them were promoted. Accordingly, the writ petition is allowed. No order as to costs. Dated: March 31, 2006 Rajesh Tandon,J. *Dhyani