Allahabad High Court
Harendra Singh vs The State Of U.P. Through The ... on 8 December, 2011
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved
Writ Petition No. 1747 (SS) of 2011
Harendra Singh .................. Petitioner
Vs.
State of U.P. Thu. Its Prin. Sec. ............Opposite parties
Hon'ble Anil Kumar,J.
Heard Shri Amit Bose, learned counsel for petitioner, learned Standing Counsel and perused the record.
Facts in brief of the present case as submitted by learned counsel for petitioner are that an advertisement issued in the month of January, 2011, inviting application from ranker Constables serving in the U.P. Police Force for selection for the post of Sub-Inspectors of Civil Police.
In pursuance to the same, the petitioner submitted his candidature thereafter admit card issued by the Additional Secretary (Promotion), U.P. Police Recruitment and Promotion Board, Lucknow, required to appear in the written examination scheduled to take place on 13.3.2011, but on 19/20.2.2011 petitioner suffered injuries as a result of an accident with the official vehicle of Police Station Banthra, District-Lucknow while doing night petrol duty as a result his left hand was fractured and put in plaster for four months. So, on 28.2.2011 petitioner made a representation to the Deputy Inspector General of Police/Senior Superintendent of Police, Lucknow/opposite party no.4 requesting therein that he may be allowed to have an assistant to write the answers in the written examination for selection for the post of Sub-Inspectors of Civil Police which was scheduled to take place on 13.3.2011 as he was unable to write the answer due to fracture in left hand.
As per version of the petitioner, the said representation was forwarded by opposite party no.4 to Additional Secretary (Promotion), U.P. Police Recruitment and Promotion Board, Lucknow but by order dated 12.3.2011 (Annexure no.1) passed by the opposite party no.4 it has been informed that in view of the decision taken by Additional Secretary (Promotion), U.P. Police Recruitment and Promotion Board, Lucknow that under U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 there is no provision for providing an assistant to write in the written examination, thus, request has made by the petitioner to provide assistant, could not be accepted. Hence the preset writ petition has been filed by the petitioner thereby challenging the order dated 12.3.2011 (Annexure No.1) passed by opposite party no.4 as well as the order dated 11.3.2011 passed by Additional Secretary (Promotion), U.P. Police Recruitment and Promotion Board, Lucknow.
Learned counsel for the petitioner submits that a bare perusal of the impugned order would show that only on the ground on which the petitioner's request has been rejected that there is no provision in the U.P. Sub-Inspectors and Inspectors (Civil Police) Service Rules, 2008 for providing an assistant to any candidate appearing in the written examination for selection for the post of Sub-Inspector cannot possibly be accepted as such a situation would not arise in general so no provision could have been made in this connection in the Rules, 2008.
In order to give strength to the above said argument, learned counsel for the petitioner submits that the U.P. Police Recruitment and Promotion Board, Lucknow has got the discretion to deal with rare and occasional situations which require immediate and quick decisions and such decisions have to be taken from time to time by the Board itself and the Board cannot rely only on the provisions of the U.P. Recruitment and Promotion Board to deal with such situations so taking into account the present situation of the petitioner, the Court should deal with the situation and issue a direction to the official respondents to provide an assistant to the petitioner to write in the written examination in his behalf even if there is no provision in Rules, 2008 for the said purpose, because there is no impediment under Rules 16 of the Rules 2008 to which the procedure of recruitment for promotion to the post of Sub-Inspectors, hence the impugned order is under challenge and is arbitrary in nature, liable to be set aside.
In view of the said facts, submission and argument raised by the petitioner has to be considered whether the Court by way of judicial order can direct the respondents to allow the petitioner to have an assistant to write in the written examination in his behalf if there is no provision existing in this regard in the Rules, 2008.
I have heard learned counsel for the parties and gone through the records
Admittedly there is no provision in U.P. Sub-Inspectors and Inspectors (Civil Police) Service Rules, 2008 for providing an assistant to write the answers in the written examination on behalf of the petitioner for selection for the post of Sub-Inspectors of Civil Police as he is unable to write to answers the said examination due to fracture in his hand. As it is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or re-frame the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the Courts. The Court cannot add words to a statute or read words that are not there. Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency.
The Courts decide what the law is and not what it should be. The Courts of course adopt a construction which will carry out the obvious intention of the legislature but cannot legislate. But to invoke judicial activism to set at naught legislative judgment is sub serve of the constitutional harmony and comity of instrumentalities. (See Union of India and another V. Deoki Nandan Agarwal, AIR SC 96, All India Radio V Santosh Kumar and another 71 (1998) 3 SCC 237, Sakshi V. Union of India and others,(2004) 5 SCC 518, Pandian Chemicals Ltd. V. CIT (2003) 5 SCC 590, Bhavnagar University Vs. palitana Sugar Mills (P)
and others, AIR 2003 SC 511 and J.P. Bansal V. State of Rajasthan, 2003) 5 SCC 134)
In Nasiruddin v. Sita Ram Agarwal, (2003) 4 SCC 753, the Supreme Court has held that the Court can iron cut of the creases but cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain, unambiguous. It cannot add or subtract words to statute or read something into in which is not there. It cannot rewrite or recast the legislation.
Accordingly, I do not find any illegality or infirmity in the impugned order passed by the opposite party no.4 thereby not allowing the petitioner, an assistant to write the answers on his behalf in the examination in question. Further, learned counsel for petitioner fairly admits that the examination has already taken place on 13.3.2011 and there is no provision to conduct a supplementary examination in the matter in question. So, argument as advanced by learned counsel for the petitioner in the instant case has got no force, rejected.
For the foregoing reasons, the writ petition lacks merit and is dismissed.
No order as to costs.
Order Dated:-8.12.2011
Mahesh
