Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1394 of 2007 (S/S) 1. Pradeep Kumar S/o Sri Diwani Ram Presently posted as Constable Civil Police, Pant Nagar, District Udham Singh Nagar. 2. Kulendra Singh Rawat S/o late Sri S.S. Rawat Presently posted as Constable Civil Police, Pant Nagar, District Udham Singh Nagar. 3. Ravindra Singh Aswal S/o Sri S.S. Aswal Presently posted in the office of SPRO Office, Dehradun. . Petitioners ...………… [ Versus 1. State of Uttarakhand Through the Secretary Home, Government of Uttarakhand At Dehradun. 2. Director General of Police, Uttarakhand, Dehradun. 3. Additional Director General of police (Administration), Uttarakhand, Dehradun. ...…………. Respondents Mr. B.D. Upadhyaya, Advocate for the petitioners. Mr. Bindesh Kumar Gupta, Addl. Advocate General and Mr. N.P. Sah, Sanding Counsel for the respondent State. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioners have sought writ in the nature of certiorari quashing the conditions No. (3) and (4) in the order dated 13.09.2007, issued by the Police Directorate (copy Annexure 7 to the writ petition) which permits the Constables appointed after 2001 to appear in the Rankers’ examination for promotion to the post of Sub Inspectors in Civil Police of the State. A further mandamus has been sought directing the respondents not to permit the appointees as Constables in the Uttarakhand Police after the year 2001 in the examination scheduled to be held in pursuance of impugned order dated 13th September 2007. 2. Heard learned counsel for the parties and perused the affidavit, counter affidavit, rejoinder affidavit and additional counter affidavit on record. 3) Brief facts of the case, as narrated in the writ petition, are that the petitioners were appointed as Constables in the year 1988 – 89. An examination for departmental candidates for their promotion to the post of Sub Inspectors in Civil Police in the State of U.P. was earlier held in the year 1999. In Para 5 of the writ petition it is stated that there are no rules framed for recruitment to the post of Sub Inspectors of police from the departmental candidates. The State of Uttarakhand issued office memorandum dated 16.12.2001 (copy Annexure 3 to the writ petition) in which it is provided that 50 per cent of the total vacancies shall be filled by direct recruitment and remaining 50 per cent vacancies shall be filled by way of promotions. Selection process for filling up 253 posts of Sub Inspectors by direct recruitment started on 22.12.2001, but no exercise was taken up for promotion of departmental candidates, as there was no procedure prescribed for the same. By the impugned order dated 13th September 2007 (copy Annexure 7 to the writ petition) issued by the Directorate of Police, Uttarakhand, exercise was taken up for written examination of the Rankers’ for their promotion to the post of Sub Inspectors in Civil Police and Intelligence. The petitioners are assailing Clause (3) of said order wherein a cut off date of 01.01.2007 is provided for completing minimum experience of three years. They are also assailing Clause (4) of the order which provides that even those Constables who are recruited after creation of the new State would also be entitled to appear in the examination. The ground on which the petitioners have challenged said conditions is that the vacancies of Sub Inspectors of the year upto 2000 –01 cannot be filled from the Constables, who were appointed after the year 2001. Challenging the permission to such Constables in the departmental examination, it is alleged by the petitioners that the same is illegal, arbitrary and erroneous in law. 4) In the counter affidavit filed on behalf of the respondents No. 2 and 3, it is stated that in the impugned departmental promotion, age limit has been relaxed for the senior ranker cadets (which includes the petitioners) as there was no examination held after the last examination which took place in the year 1999, in the State of U.P. and that is why cut off date for age was kept 01.01.2001, while for the purposes of experience it was kept 01.01.2007. It is further stated in the counter affidavit that the impugned exercise of promotion is being held in accordance with the Government Order dated 27.02.1999. It is also stated in the counter affidavit that the result of examination held in the year 1999 in the State of U.P. was stayed under orders of the Allahabad High Court and result could be declared only on 11.11.2006. As to the allegation that no procedure is prescribed for exercise of selection process through promotion, it is stated that the respondents are following rules and regulations and Government Orders of State of U.P., as there is yet not any policy made by the State of Uttarakhand. 5) In the rejoinder affidavit filed on behalf of the petitioners it is stated that clubbing of vacancies of different years is not permissible in law and there is no justification to include candidates who entered in the service after the year 2001 in the vacancies which included that year and there is also no justification to ask the senior ranker cadets of the age of over 40 to compete with the young cadets of 20 years. It is also stated in the rejoinder affidavit that while the procedure for direct recruitment is prescribed by the State of Uttarakhand, as contained in letter dated 30.12.2005, but no procedure is prescribed for the promotion for filling up the posts of Sub Inspectors by promotion. An additional counter affidavit has also been filed on behalf of respondents No. 2 and 3 stating that it is not mandatory requirement under the rules that promotion should be made every year, and as such, there is no illegality in clubbing the vacancies. 6) Mr. Bindesh Kumar Gupta, learned Additional Advocate General for the State drew attention of this Court to Section 12 of the Police Act, 1961, which empowers the Director General-cum-Inspector General of Police to frame rules. Said Section reads as under: “12. Power of Inspector General to make rules .– The [Director General-cum-Inspector General] may, from time to time, subject to the approval of the State Government, frame such orders and rules as he shall deem expedient relating to the organization, classification and distribution of the police force, the places at which the members of the force shall reside, and the particular services to be performed by them; their inspection, the description of arms, accoutrements and other necessaries to be furnished to them, the collecting and communicating by them of intelligence and information; and all such other orders and rules relating to the police force, as the Inspector General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties.” 7) On behalf of the respondents reference is further made to Para 445 of the U.P. Police Regulations, which reads as under: “445. (A) Any such Constable or Head Constable, who is more than 40 years old and whose service is not less than three years, shall not be nominated for the selection for promotion in the cadre of Sub- Inspector, Civil Police. This age limit shall be required on the first January of the year of selection. For the constable, who has completed three years of service in the department, educational qualification must be intermediate or equivalent or he must have passed the Head Constable, Civil Police Course. For the constable having passed Head Constable Civil Police Course there shall be no restriction of educational qualification. For the Head Constables also there shall be no restriction of educational qualification. Note.– Order of educational qualification as Intermediate instead of High School shall be applicable only to those candidates who comes in the department after the issuance of the Government Order. (B) In the Police Training College, Moradabad process of selection of constables and Head Constables for the admission in Sub- Inspector Civil police course shall be as below– (1) A police prescribing the rules regarding the eligibility of selection and inviting the eligible candidates that if they wants that their candidature should be considered, they may apply for that, should be issued every year in the month of January. Detail publication of this notice should be made and it should be send to those persons who have gone on deputation or leave. It shall be the duty of the District Police Superintendent / Incharge of Units to ascertain that the notice be send to all those places where their persons are working at that time. Six weeks time should be granted for filing the application. Applications so received should be scrutinized, for the purposes of excluding those applications which are not eligible for selection under the prescribed rules, in the office of Police Superintendent / Unit Incharge. (2) After pre-examination of all those eligible candidates, who are suitable to be considered, should be held according to following procedure- (a) One question paper, containing three parts having 50 marks, shall be prepared-there shall be three legal questions, three procedural questions regarding police and three questions of general knowledge and essay. Questions regarding essay writing should be compulsory and each candidate should give reply of any two questions from two parts and of one question from third part of question paper or each candidate should give reply of total five questions from question paper. Compulsory question should be of 10 marks and other questions should be of 8 marks. (b) Pre-examinations should be conducted under the supervision of Police Head Quarter on a certain date at all districts. Answer books should be send to concerned Deputy Inspector General of Police, who will got examine to those by a board of three Police Superintendents. Qualifying merit should be fixed 50 per cent to the maximum marks. (c) After then one board, constituted with Deputy Inspector Generals, one commandant of P.A.C. nominated by Deputy Inspector Generals of Police, Range and concerned local superintendent of Police, should visit each district and should examine the character roll of all those eligible candidates, who have qualified the written examination. For the purposes of excluding physically disabled persons a general drill and physical examination of all such candidates should be conducted. Board should award marks, according to the standard fixed by Inspector General of Police, to candidates on their character roll and merit shown in the drill ad physical examination. (d) The candidates selected on the basis of such written examination, examination of character roll and physical examination should be deemed nominated persons of the range for the purposes of main examination. (3) All the nominated persons of the range should appear in the written examination, which will consist three question papers (1) Law, (2) Procedure relating to police and (3) Essay and General Knowledge, each of 50-50 marks. These questions shall have been prepared at central level and the answer books shall be send to the Headquarter of Deputy Inspector General of Police, who will got examine to those by a board of Superintendents of Police, number of which will be depend on the number of candidates. The qualifying marks in this examination shall be 30% in each question paper and 40% in total and a list shall be prepared according to merit. (4) About 4 time candidates to the number of vacancies in the ranker cadet should be called for interview according to merit from the aforesaid list A selection Board, consisting two Deputy Inspector Generals of Police one Superintendent of Police nominated by Inspector General of Police, should take interview of the candidates. For the interview including service records 150 marks should be allocated and minimum 40% marks should be fixed for qualifying the same Board should examine the character roll as earlier and should grant the marks, thereafter adding the marks obtained by the candidates in the interview and written examination a final merit list should be prepared.” 8) It is argued on behalf of the respondents that the impugned examination is being held in pursuance to sub-Para (A) of Para 445 of the Police Regulations. On its basis it is contended that the maximum age limit of 40 years and minimum experience of three years is already prescribed under the aforesaid Para, as such, in the impugned order issued by the Directorate of Police, Uttarakhand, nothing is added which is against the law, and only to facilitate the senior ranker cadets who could not appear for promotion as no examination was held after 1999, cut off date for the purposes of calculating the age limit was kept 01.01.2001. 9) Learned counsel for the petitioners drew attention of this Court to the judgment and order dated 22.04.2008, passed in Writ Petition No. 34 of 2008 (S/S); Girish Chandra Pant and others Vs. State of Uttarakhand and others, in which the promotion procedure adopted by the respondent authorities is quashed by this Court. The judgment of the referred case shows that it pertains to the promotion exercise from Head Constables to the posts of Sub Inspectors in Provincial Armed Constabulary, to which Para 445, quoted above, does not apply. It is applicable to promotions in Civil Police. Apart from this, in the case of Girish Chandra Pant and 23 others [Writ Petition No. 34 of 2008 (S/S) decided on 22.04.2008] the petitioners had taken a plea that Rule 4 of the Uttaranchal Government Servants (Criterion For Recruitment By Promotion) Rules, 2004, is applicable to them and the promotion should be made on the basis of the principle of seniority subject to rejection of unfit. But, in the present case, the petitioners have not taken any such plea that the impugned promotions in Civil Police is covered under Rule 4 of aforesaid rules of 2004. Unlike for promotions in Civil Police there is no procedure prescribed in Police Regulations for holding examination in the Provincial Armed Constabulary, as such, the aforesaid judgment of this Court dated 22.04.2008, passed in Writ Petition No. 34 of 2008 (S/S) is of no help to the petitioners. 10) Mr. B.D. Upadhyaya, learned counsel for the petitioners drew attention of this Court to principle of law laid down in Union of India and others Vs. Vipin Chandra Hiralal Shah; 1996 (6) S.C.C. 721, in which the Apex court has held that clubbing of vacancies is not permissible and separate selection list should be prepared by the Selection Committee for each year. On examination of said case law this Court finds that the Apex court has interpreted Regulations 3, 5, 7 and 9 of the Indian Administrative Service (Recruitment) Rules, 1954. Learned counsel for the petitioners failed to show this Court the parallel provision in the Police Regulations which requires selection committee to meet every year twice within a period of 12 months, as required under Rule 5 of the Indian Administrative Service (Recruitment) Rules, 1954. As such, the analogy cannot be applied to this case, particularly, in the circumstances when the promotional exercise after 1999 could not be taken up due to the stay order from the Allahabad High Court and the result on 1999 examination could be declared only in the year 2006. 11) For the reasons as discussed above, this Court does not find any sufficient reason to quash the conditions No. (3) and (4) in the impugned order dated 13.09.2007, issued by respondent No. 3. Accordingly, the writ petition is dismissed. The interim order dated 27.09.2007 is hereby vacated. (Prafulla C. Pant, J.) [ Dt. May 05, 2008. H.Negi