Sunil Kumar Pandey And Others vs State Of U.P. And Others
2011 Latest Caselaw 2346 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 40
 

 
Case :- WRIT - A No. - 34797 of 2011
 

 
Petitioner :- Sunil Kumar Pandey And Others
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Gautam Baghel,P.S. Baghel
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri P.S. Baghel, Senior Advocate assisted by Sri Gautam Baghel, for the petitioners and perused the record.

2. The petitioners have sought a writ of certiorari for quashing the advertisement dated 19.5.2011 in so far as it provides upper age limit as 28 years and have also sought a writ of mandamus directing the respondents to provide relaxation in age to the candidates born between 1.1.1980 to 1.7.1983 so as to make them eligible to appear in the selection in question.

3. Admittedly the recruitment in question is governed by the U.P. Police Sub-Inspector and Inspector (Civil Police ) Services Rules 2008 (hereinafter referred to as the "2008 Rules") as amended from time to time. The aforesaid Rules do not contain any provision conferring power to the competent authority to relax the Rule regarding age. Rule 10 of 2008 Rules reads as under :-

" A candidate for direct recruitment must have attained the age of 21 years and must not have attained the age of more than 28 years on the first day of July of calendar year in which vacancies for direct recruitment are advertised:

Provided that the upper age limit in the case of candidate belonging to the Scheduled Castes, Scheduled Tribes and such other categories as may be specified."

4. The learned counsel for the petitioners contended that for the last 10 years no recruitment on the post of Sub-Inspector has been made , therefore, the petitioners who were earlier eligible and entitled to be considered against the vacancies arising in 2007-08, have become overage and are entitled for relaxation of age. He placed reliance upon a decision in Special Appeal No. 325 of 2008 Smt. Abha Pandey Vs. State of U.P. and others decided on 2.4.2008 in which it was observed that selection process shall be initiated by the respondents within 3 months.

5. On the other hand, it is contended by the learned counsel for the respondents that selection process has been initiated in accordance with law. Since under the advertisement the petitioners were not eligible, hence can not appear in the selection process.

6. In my view, the submission advanced on behalf of the petitioners lacks substance.

7. It proceeds on the assumption that petitioners have a right to claim initiation of selection process as soon as the vacancies occurred in 2007 or 2008, and when they were otherwise eligible and qualified for the post on which the vacancies had occurred.

8. The question whether a person is entitled for such right as also the relaxation in age came up for consideration before a Division Bench in the case of Sanjay Agrawal Vs. State of U.P. and others 2007(6) ADJ 272 (DB)=2007(5) ALJ 328(DB). In paragraphs 30, 32, 41 and 42 of the said judgment this Court held as under:

"(30) ................... The right of consideration commences from the advertisement as admitted and thus it would also adhere to various conditions of the advertisement. It cannot be said that the right of consideration flowing from advertisement is distinct from and severable from the various conditions of eligibility prescribed in the advertisement. A candidate would have a right of consideration in accordance with the advertisement if he fulfils various qualifications and eligibility prescribed thereunder and not otherwise. It is not open to a candidate to suggest that he is entitled for benefit of the advertisement partly and the other part which is against him is to be ignored. An advertisement which is a public offer to all persons concerned will have to be taken as a whole and not in part. If a candidate fulfils all the qualifications prescribed in the advertisement only then he can be said to have a right of consideration and not otherwise. Since the basic premise of the argument in our view does not stand, the entire building raised thereon also cannot stand.

(32) .......................The submission is that the Rule makes it obligatory to the Court to make recruitment at least once in every three years and in case it fails to do so, it is bound to compensate those candidates who have become overage or otherwise become ineligible due to non-holding of recruitment during a particular period. Elaborating the submission, it is also contended that the petitioners are entitled for relaxation in the matter of age to the extent the recruitment could not be held for a period of more than three years and to that extent relaxation needs to be given to such candidates.

(41) Further a person if fulfils requisite educational and other qualifications does not possess a fundamental or legal right to be considered for appointment against any post or vacancy as soon as it is available irrespective of whether the employer has decided to fill in the vacancy or not. The right of consideration does not emanate or flow from existence of the vacancy but commences only when the employer decides to fill in the vacancy and the process of recruitment commences when the notification or advertisement of the vacancy is issued. So long as the vacancy is not made available for recruitment, no person can claim that he has a right of consideration since the vacancy exists and therefore, he must be considered................... We are of considered view that the right of consideration would come in picture only when the vacancy is put for recruitment, i.e., when the advertisement is published. That being so, the right of consideration commences when the recruitment process starts. The incumbent would obviously have right of consideration in accordance with the provisions as they are applicable when the advertisement is made and in accordance with conditions provided in the advertisement read with relevant rules. It is also obvious that if there is any inconsistency between the advertisement and Rules, the statutory rules shall prevail. In Malik Mazhar Sultan (supra), the Apex Court has clearly held that recruitment to the service could only be made in accordance with the Rules and not otherwise.

(42) Recently a similar claim for relaxation in respect to the period when no recruitment was held, pertaining to recruitment of U.P. Judicial Services came up for consideration before a Full Bench of this Court in Sanjay Kumar Pathak Vs. State of U.P. and others (writ petition no. 65189 of 2006) decided on 25.5.2007, and it held that unless permitted by the Rules no relaxation can be claimed. The Court also observed as under:

"Nobody can claim as a matter of right that recruitment on any post should be made every year."

9. Furthermore, in absence of any provision empowering the respondents to grant relaxation in age in the selection governed by the statutory Rules, no such mandamus can be issued. The learned counsel for the petitioners also has not been able to place any decision or provision before this Court which provides such relaxation. He however, refers to U.P. Public Service (Relaxation of Age Limit) Rules, 1992 framed under Article 309 (Proviso) of the Constitution of India, authorizing the State Government to relax any provision with regard to maximum age limit. In my view, the aforesaid Rules would not apply to recruitment in U.P. Police Force which is governed by the Police Act, 1861 and the Rules framed thereunder i.e. under Section 46 (2).

10.. A Division Bench of this Court in Subhash Chandra Sharma vs State of U.P. and others 2000(3) AWC 2367 while considering applicability of U.P. Recruitment to Service (Age Limit) Rules, 1972 to U.P. Police Force, in paragraphs no. 16, 17 and 18 held as under:

"16. Thus, there can be no doubt that if the appropriate Legislature has enacted a law regulating the recruitment and conditions of service, the power of the Governor is totally displaced, and he cannot make any Rule under proviso to Article 309 of the Constitution. In State of U. P. v. Babu Ram Upadhyaya. AIR 1961 SC 751. a decision rendered by a Constitution Bench, the Police Act and the U. P. Police Regulations came up for consideration and it was held as follows in paragraph 12 of the Reports :

The result is that the Police Act and the Police Regulations made in exercise of power conferred on the Government under that Act. which were preserved under Section 243 of the Government of India Act. 1935, continue to be in force after the Constitution so far as they are consistent with the provisions of the Constitution."

In paragraph 23. it was observed that the Police Act and the Rules made thereunder constitute a self-contained Code providing for appointment of the police officers and prescribing the procedure for their removal. In Nanak Chand v. State of U. P., 1971 ALJ 724, a Full Bench of our Court held as follows :

"It is not correct to say that no temporary posts can be created in the Police Force, Section 2 of the Police Act is certainly wide enough to permit such posts to be created, and it appears that it is now the general Rule in U. P. for all new recruits to be employed at first in a temporary capacity."

17. In Nurul Hasan v. Senior Superintendent of Police. 1985 UPLBEC 1329. a Division Bench of this Court, speaking through Hon'ble S. Saghir Ahmad, J. (as his lordship then was), held as follows :

"It has already been specified above that in the exercise of the powers conferred by the Police Act the State Government has made Police Regulations by which the service conditions of the subordinate police officers have been regulated. There are, therefore, special statutory provisions which regulate the service conditions of police personnel. They would, therefore, be not governed by the C.C.A. Rules as they clearly fall within Explanation (a) of Rule 3 of the said Rules."

18. Similar view has been taken by two other Division Benches of our Court in State of U. P. v. Mohd. Ibrahim. AIR 1959. All 223. and Mukhtar Singh v. State of U. P., AIR 1959 All 569. Section 2 of the Police Act empowers the State Government to issue orders providing for the manner in which the police force may be constituted. The constitution of a force necessarily implies the act of making appointment to various categories of posts in the police force. Provision in this regard have been made in the U. P. Police Regulations or in the Government orders issued from time to time on the subject relating to recruitment. Therefore, the field relating to recruitment of subordinate ranks of the police force is already covered by the provisions of the Police Act. Consequently, a Rule made by the Governor in exercise of power conferred by proviso to Article 309, like the 1972 Rules, which is very general in terms and does not make any reference to the police force, can have no application to the matter governing the upper age-limit of the candidates seeking recruitment to the posts of constables or sub-Inspectors of police."

11. Similarly the Apex Court in Chandra Prakash Tiwari and others Vs. Shakuntala Shukla and others AIR 2002 SC 2322 held that U.P. Government Service (Criteria for Recruitment by Promotion) Rules 1994 framed under Article 309 (Proviso) of the Constitution is inapplicable to the members of U.P. Police Force and held that Police Act 1861 and the provisions made thereunder shall hold the field. The view expressed by the Division Bench in Subhash Chandra (supra) has been affirmed by a Full Bench of this Court in Vijay Singh And others Versus State Of Uttar Pradesh and others 2005 (2) AWC 1191= (2004) 3 UPLBEC 2778 following the dictum laid down in Chandra Prakash Tiwari Vs. Shakuntala Shukla (Supra).

12. The next submission is that the recruitment ought to have been made every year and if the recruitment is not made in a particular year, the recruiting body is bound to give relaxation to the candidates who have become overage due non-recruitment against the vacancies available in the year when no recruitment was made. In support of this submission, Sri Baghel however, could not show any provision under 2008 Rules whereunder the present recruitment in question is being made which may require holding of recruitment every year. In the absence of any such provision, the recruitment made otherwise in accordance with rules cannot be interfered.

13. In Food Corporation of India Vs. Bhanu Lodh (2005) 3 SCC 618 the Apex Court has held that rigor of statutory provisions cannot be relaxed by giving a total go-bye to the statutes. In Malik Mazhar Sultan Vs. U.P.P.S.C. JT 2006 (4) SC 531 the Apex Court has said that the recruitment to the service can only be made in accordance with rules and not otherwise.

14. This aspect has also been considered by a Full Bench judgment of this Court in Sanjay Kumar Pathak Vs. State of U.P. and others WP No. 65189 of 2006, decided on 25.5.2007, by a Division Bench of this Court (of which I was also a member) in Dr. Rajeev Ranjan Mishra and others Vs. State of U.P. and others 2008(1) ESC 595 (DB) and by a Single Judge (myself) in Vijay Kumar Pandey Vs. State of U.P. and others 2008(1) ADJ 345.

15. A faint attempt was made to contend that power of relaxation is contained in Rule 28 of 2008 Rules. However, the submission is worth rejection outright. A Bare perusal of Rule 28 shows that it confers power upon the State Government to relax the requirement of any rule regulating the "conditions of service" of person appointed to the service if it is satisfied that such provision causes undue hardship in any particular case. Without looking into anything further suffice it to say that Rule 28 refers to rules regulating "conditions of service" and not the rules relating to 'recruitment'. Further it is also made clear that it is applicable to a person who is appointed to service meaning thereby after appointment if such provision causes undue hardship, only then Rule 28 would be attracted. The distinction between Rules pertaining to 'Recruitment' and "conditions of service" is well established.

16. In Syed Khalid Rizvi And Ors.Union Of India and 1992 (3) SCALE 287=(1993) 3 SCC 575, considering the distinction between Rules pertaining to Recruitment and conditions of service the Apex Court in paragraphs 30, 31 and 33 held as under:

"30. The next question is whether the seniority is a condition of service or a part of rules of recruitment? In State of M.P. and Ors. v. Shardul Singh, this Court held that conditions of service means all those conditions which regulate the holding of a post by a person right from the time of his appointment (emphasis Supplied) to his retirement and even beyond, in matters like pensions etc. In I.N. Subba Reddy v. Andhra University and Ors. , the same view was reiterated. In Mohd. Shujat Ali and Ors. etc. v. Union of India and Ors. etc. , Constitution Bench held that the rule which confers a right to actual promotion or a right to be considered for promotion is a rule prescribing a condition of the service. In Mohd. Bhakar v. Krishna Reddy 1970 S.L.R. 768, another Constitution Bench held that any rule which affects the promotion of a person relates to his condition of service. In State of Mysore v. G.B. Purohit C.A. No. 2281 of 1965 dt. 25.1.1967, this Court held that a rule which merely effects chances of promotion cannot be regarded as varying a condition of service. Chances of promotion are not conditions of service. The same view was reiterated in another Constitution Bench judgment in Ramchandra Shankar Deodhar and Ors. v. The State of Maharashtra W.P. No. 299 of 1969 dt. Nov. 12, 1973. No doubt conditions of service may be classified as salary, confirmation, promotion, seniority, tenure or termination of service etc. as held in State of Punjab v. Kailash Nath , by a bench of two Judges. But it must be noted the context in which the law therein was laid. The question therein was whether non-prosecution for a grave offence after expiry of four years is a condition of service? While negativing the contention that non-prosecution after expiry of 4 years is not a condition of service, this Court elaborated the subject and the above view was taken. The ratio therein does not have any bearing on the point in issue. Perhaps the question may bear relevance, if an employee was initially recruited into the service according to the Rules and Promotion was regulated in the same rules to higher echelons of service. In that arena promotion may be considered to be a condition of service. In A.K. Bhatnagar v. Union of India , this Court held that seniority in an incidence of service and where the service rules prescribe the method of its computation it is squarely governed by such rules. In their absence ordinarily the length of service is taken into account. In that case the direct recruits were made senior to the recruits by regularisation although the appellants were appointed earlier in point of time and uninterruptedly remained in service as temporary appointees alongwith the appellant but later on when recruited by direct recruitment they were held senior to the promotees." (emphasis supplied)

"31. ....................The eligibility for recruitment to the Indian Police Service, thus, is a condition of the recruitment and not a condition of service. Accordingly we hold that seniority, though, normally an incidence to service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the Indian Police Service by promotion, which should be strictly complied with before becoming eligible for consideration for promotion and are not relaxable." (emphasis supplied)

"33. Rule 3 of the Residuary Rules provides the power to relax rules and regulations in certain cases - Where the Central Govt. is satisfied that the operation of - (i) any rule made or deemed to have been made under the Act, or (ii) any regulation made under any such rule, regulating the conditions of service of persons appointed to an All India Service "causes undue hardship in any particular case", it may, by order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a "just and equitable manner". Rule 3 empowers the Central Govt. to relieve undue hardship occurred due to unforeseen or unmerited circumstances. The Central Govt. must be satisfied that the operation of the rule or regulation brought about undue hardship to an officer. The condition precedent, therefore, is that there should be an appointment to the service in accordance with rules and by operation of the rule, undue hardship has been caused, that too in an individual case, the Central Govt. on its satisfaction of those conditions, have been empowered to relieve such undue hardship by exercising the power to relax the condition. It is already held that conditions of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed. The latter too must be in writing that too with the consultation of U.P.S.C. In Mahapatra and Khanna cases this Court held that approval by the Central Govt. and U.P.S.C. are mandatory. In A.K. Cnaudhary's case it was held that requirement of Rule 3(3)(b) of Seniority Rules is mandatory. In Amrik Singh's case an express order in writing under Rule 3 of Residuary rule is mandatory. In this case neither any representation to relax the rules was made nor any order in writing in this behalf was expressly passed by the Central Govt. The fiction of deeming relaxation would emasculate the operation of the Rules and Regulations and be fraught with grave imbalances and chain reaction. It is, therefore, difficult to accept the contention that there would be deemed relaxation of the Rules and Regulations."

17. In view of the law laid down by the apex Court as well as this Court in Sanjay Agarwal (supra) and Dr. Rajeev Ranjan Mishra (supra) making clear distinction between the Rules regulating "Recruitment" and those regulating "conditions of service", the Rules regulating age applicable before appointment is, therefore not a rule regulating conditions of service, hence is beyond the purview and ambit of Rule 28 of 2008 Rules and cannot be relaxed at all. Besides, as I already said, it is applicable to a person who has already been appointed and not one who has yet to be recruited.

18. In view of above discussions, the writ petition lacks merit.

19. Dismissed.

Order Date :- 24.6.2011

Sh/akn