Gaurav Singh Gurjar And 21 Others vs State Of U.P. And 2 Others
2022 Latest Caselaw 20819 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 
Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 603 of 2022
 

 
Appellant :- Gaurav Singh Gurjar And 21 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Siddharth Khare,Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 
AND
 
Case :- SPECIAL APPEAL No. - 600 of 2022
 

 
Appellant :- Navneet Yadav And 6 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Prashant Mishra,Tarun Agrawal
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Manoj Misra,J.

Hon'ble Vikas Budhwar,J.

(Delivered by Manoj Misra, J.)

1. As these two intra court appeals arise from a common judgment and order dated 30.08.2022 passed by the learned Single Judge in Writ- A No. 10679 of 2019 connected with Writ-A Nos.10854 of 2019, 11562 of 2019 and 12089 of 2019, these two appeals, with the consent of learned counsel for the parties, have been heard together and are being decided by a common judgment and order.

2. In brief, the facts giving rise to these two intra court appears are as follows:-

In the year 2016, the State Government took a decision for making recruitment against vacant posts of Sub-Inspector (Civil Police). Two separate advertisements dated 17.06.2016 were issued inviting applications for the posts. Advertisement No.P.R.P.B.-2-1(2)/2015, dated June 17, 2016, was for 2400 posts of Sub-Inspector (Civil Police) (Male), whereas Advertisement No.P.R.P.B.-2-1(3)/2015, dated June 17, 2016, was for 600 posts of Sub-Inspector (Civil Police) (Female). As per the advertisement for 2400 posts of the male category, 1200 posts were left unreserved; 648 posts were reserved for Other Backward Classes; 504 posts were reserved for Scheduled Castes; and 48 posts were reserved for Scheduled Tribes. Similarly, out of 600 posts of female category, 300 posts were left unreserved; 162 posts were reserved for Other Backward Classes; 126 posts were reserved for Scheduled Castes; and 12 posts were reserved for Scheduled Tribes.

3. The writ petitioners before the learned Single Judge are all male and had applied for appointment against posts of Sub-Inspector (Civil Police) (Male). In the final select list, names of the writ petitioners did not figure.

4. The case of the writ petitioners before the learned Single Judge was that out of advertised 600 posts of Sub-Inspector (Female), only 305 candidates could find place in the select list therefore, 295 posts reserved for females remain vacant and they should be allowed to be filled by male candidates such as the writ petitioners. The prayer in the writ petition was to command the U.P. Police Recruitment & Promotion Board to forthwith recommend 295 additional male candidates for appointment as Sub-Inspector (Civil Police) against 295 vacant posts left out of the 600 posts reserved for female candidates.

5. It was urged before the learned Single Judge as also before us that under the U.P. Sub-Inspector and Inspector (Civil Police) Services Rules, 2015 (for short the Rules, 2015) the cadre of service, as per Rule 4 of Rules, 2015, is one i.e. of Sub-Inspector and not of Sub-Inspector (Male) and Sub-Inspector (Female). Therefore, as in all there were 3000 vacant posts of Sub-Inspector, by applying horizontal reservation of 20%, 600 posts of Sub-Inspector (Female) and 2400 posts of Sub-Inspector (Male) were advertised. Though, there were two separate advertisements but these two advertisements would have to be treated as one; consequently, in absence of sufficient number of suitable women candidates, those posts that remain unfilled should be filled by those who were otherwise successful in the tests. To buttress the above submission, the learned counsel for the writ petitioners had placed reliance on Government Order dated August 30, 1999 wherein, in paragraph 4 thereof, it is provided that when in a recruitment exercise on posts relating to public services under the Government, if sufficient number of female candidates are not available to fill up the posts reserved for female category, then those posts are not to be carried forward and can be filled from suitable male candidates.

6. It was argued that since as per Government Order dated August 30, 1999 those posts cannot be carried forward, they be filled by suitable male candidates on the basis of their respective merit.

7. The learned Single Judge did not find merit in the above submission on the ground that indisputably there were two independent and separate advertisements. One for Sub-Inspector (Civil Police) (Male) and other for Sub-Inspector (Civil Police) (Female) therefore, as the petitioners had applied against the advertisement for males, they can not claim appointment against the posts advertised for females, even though there had been one consolidated examination. The learned Single Judge further observed that as the recruitment process was initiated on the basis of two independent advertisements, the benefit of the Government Order dated August 30, 1999 was not available.

8. We have heard Sri Ashok Khare, learned Senior Counsel, assisted by Sri Siddharth Khare, for the appellants in Special Appeal No.603 of 2022; Sri Tarun Agrawal for the appellants in Special Appeal No.600 of 2022; learned Standing Counsel for the State-respondents in both the appeals; and have perused the record.

9. The submission of the learned counsel for the appellants is that the learned Single Judge has failed to consider that under the Rules, 2015 there is only one cadre that is of Sub-Inspector and as 20% posts are to be reserved for women category under horizontal reservation, the advertisements, though two, were in effect one for 3000 posts of Sub-Inspector but, for the sake of convenience, were divided into two, one for 2400 posts of Sub-Inspector (Civil Police) (Male) and the other for 600 posts of Sub-Inspector (Civil Police) (Female). This separation was for convenience and cannot be taken as for two category of posts, one for women and the other for men. In these circumstances, as horizontal reservation for female category was 20% only, and 295 posts out of 600 posts remain unfilled, they should be allowed to be filled with male candidates found suitable.

10. Learned Standing Counsel supported the judgment and order of the learned Single Judge and prayed that the appeals be dismissed.

11. Having considered the rival submissions, before we proceed to address the submissions, it would be useful to have a glimpse at the Rules, 2015 as it stood on the date of issuance of the advertisement. Rules, 2015 as it stood then, provide for the cadre of service and Rule 4 thereof provides as follows:-

"4. Cadre of service.- (1) The strength of the service and of each category of posts therein shall be such as may be determined by the Government from time to time.

(2) The strength of the service and of each category of posts therein shall, until orders varying the same are passed under sub-rule (1), be as given below:

Name of Post

Name of Post

Permanent

Temporary

Total

1. Inspector

2. Sub-Inspector

11846

18999

Provided that;

(i) the Head of the Department may re-determine the number of posts of various units within the overall sanctioned allocation.

(ii) the appointing authority may leave unfilled or the Governor may hold in abeyance any vacant post, without thereby entitling any person to claim compensation, or

(iii) the Governor may create such additional permanent or temporary posts as he may consider proper."

12. Rule 5 provides for source of recruitment and Rule 6 provides for the reservation. Rule 6 is extracted below:-

"6. Reservation.- Reservation for the candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories shall be in accordance with the provisions of the Act and the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependants of Freedom Fighters and Ex-Servicemen) Act, 1993 as amended from time to time and the orders of the Government in force at the time of the recruitment. The reservation of the National/State level sportsmen shall be in accordance with the Government Orders in force at the time of recruitment. It is also provided that physically handicapped person will not be eligible for police services."

13. Procedure for recruitment is provided in Part-V. Rule 14 provides for determination of vacancies. The same as it stood on the date of advertisement is extracted below:-

"14. Determination of vacancies.- the appointing authority shall determine and intimate to the Head of the Department the number of vacancies to be filled during the course of the year of recruitment as also the number of vacancies reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6. The Head of the Department shall intimate the number of vacancies for both male and female candidates separately, to the Board and also to the Government. Subsequently the Board shall notify the vacancies for both male and female candidates separately in the following manner-

(i) by issuing advertisement in daily Hindi and English newspapers having wide circulation;

(ii) by pasting the notice on the notice board of the office or by advertising through Radio/Television and other Employment newspapers;

(iii) by notifying vacancies to the Employment Exchange; and

(iv) by other means of mass communication."

14. Procedure for Direct Recruitment to the post of Sub-Inspector is provided in Rule 15. Rule 15 as it stood at the time of recruitment is extracted below:-

"15. Procedure for Direct Recruitment to the post of sub-inspector.- (a) Application Form-

(i) A candidate shall fill only one application Form. The Board will accept only on line applications. The application of candidates, who fill more than one forms, may be rejected by the Board.

(ii) The details of the information regarding educational qualification, age, minimum qualifying standards for each category of examination, including physical, written, medical examination etc., minimum qualifying marks for written examination subjectwise and other important guidelines as determined by the Board from time to time shall be made available by the Board on its own website and or by other means as it deems necessary.

(iii) the applications shall be invited by the Board giving the applicants adequate time for making application, the candidate shall be personally and solely responsible for its accuracy and completeness, if the Form of any candidate is found incomplete, wrong or having inaccurate information, it may be cancelled and the decision of the Board in this regard shall be final.

(iv) An applicant shall certify himself his certificates and documents and be responsible for their genuineness and correctness.

(v) In the application Form the detail of the identity, specific identity card number, thumb and finger impression, photographs or biometric details will be so included as may be determined by the Board from time to time.

(vi) The Head of the Department, in consultation with the Board, may fix an application fee for any recruitment.

(vii) The Board shall have the right to summarily reject the candidature of an applicant for any incompleteness or inaccuracy or variation or conflict with any previous or subsequent information submitted by the candidate.

(viii) The Government may change the number of vacancies for any recruitment at any time before the first examination and may also cancel any recruitment at any time or stage of recruitment without assigning any reason thereof.

(b) Call Letters.- Call letter for candidates shall be uploaded by the Board on its website at least 7 days before the examination. The applicant will download it and carry it for subsequent examinations.

(c) Scrutiny of Documents and Medical Examination.- Candidates whose applications are found correct, shall be required to appear for scrutiny of documents and Physical Standard Test. This test will be conducted as per Annexure 1. In case any document is found to be manipulated, inaccurate or forged during the scrutiny or at any time after the scrutiny, the candidature of the applicant will be cancelled at the discretion of the Board or the appointing authority as the case may be.

(d) Physical Efficiency Test.- Candidates found successful in Scrutiny of Documents and Medical Examination as per clause (c) will be required to appear in Physical Efficiency Test, which will be of qualifying nature. As far as possible, the Board will try to conduct Physical Efficiency Test of candidates on the next day of their Scrutiny of Documents and Medical Examination Test. The procedure for conducting the Physical Efficiency Test shall be as prescribed in Appendix 2.

(e) Written Examination.- The candidates who are declared successful in the Physical Efficiency Test under clause (d) shall be required to appear in the written examination which shall carry 400 marks in the following subjects-

Subject

Maximum Marks

1. General Hindi

100 marks (objective type)

2. Basic Law/ Constitution/ General Knowledge

100 marks (objective type)

3. Numerical and Mental Ability Test

100 marks (objective type)

4. Mental Aptitude Test/I.Q. Test/ Reasoning.

100 marks (objective type)

Note.- The detailed syllabus for the examination will be notified by the Board. The procedure for conducting the written examination shall be such as is prescribed in Appendix 3. Candidates failing to obtain 50% marks in each subject shall not be eligible for recruitment.

(f) Selection and Final Merit List.- From amonst the candidates found successful in written test, Board shall prepare, as per the vacancies, a select list of each category of candidates, on the basis of marks obtained by each candidate in written examination under clause (e), keeping in view the reservation policy and send it with recommendation to the Head of the Department, subject to Medical test-character verification. No waiting list shall be prepared by the Board. List of all candidates with marks obtained by each candidate shall be uploaded on its website by the Board. The Head of the Department shall after his approval forward the list sent by the Board to the Appointing Authority for further action.

Note.- If two or more than two candidates obtain equal marks then their seniority shall be decided by the procedure laid in following order-

(1) If two or more candidates obtain equal marks then such candidate will be given preference who possesses preferential qualification, if any (in the same order as stated in Rule 9). Candidate having more than one preferential qualification shall get the benefit of only one preferential qualification.

(2) Even then if two or more candidates have equal marks then candidate older in age shall be given preference.

(3) If despite the aforementioned, more than one candidates are equal, then preference to such candidate shall be determined according to the order in English Alphabets of their names mentioned in High School Certificate.

(g) Medical Test.- The candidates whose name are in the list sent as per clause (f), will be required to appear for Medical Examination by the appointing authority. Medical Examination will be conducted in the Police Line of the concerned District or at the place mentioned by the Appointing authority. Medical Examination will be conducted as per Appendix 4. The candidates found unsuccessful in Medical Examination shall be declared unfit by the appointing authority and such vacancies shall be carried forward for next selection."

15. A conjoint reading of Rules 14 and 15 (f) of Rules, 2015 would indicate that first the appointing authority has to determine and intimate to the Head of the Department the number of vacancies to be filled as also the number of vacancies reserved for candidates belonging to Scheduled Castes and Scheduled Tribes and other categories as per Rule 6. Whereafter, the Head of the Department has to intimate the number of vacancies for both male and female candidates separately to the Board and also to the Government. Thereafter, the Board has to notify the vacancies for both male and female candidates separately in the manner provided. After the tests etc are undertaken, the Board has to prepare, as per the vacancies, a select list of each category of candidates, on the basis of marks obtained by each candidates in the written examination, keeping in mind the reservation policy, and send it with recommendation to the Head of the Department.

16. From above, it is clear that the Head of the Department is empowered to intimate the number of vacancies for both male and female candidates separately to the Board and also to the Government and, thereafter, the Board notifies the vacancies for both male and female candidates separately. In such circumstances, the separate advertisement issued by the Board for filling up the vacancies for both male and female candidates separately is as per the procedure provided under the Rules, 2015 as it existed then, therefore, it cannot be said that separate advertisements were only for the purposes of convenience. As the Head of the Department was required to separately notify the vacancies for male and female candidates and in pursuance thereof separate advertisements were issued, we are of the view that the benefit of the Government Order dated August 30, 1999 was not available to the writ petitioners. Consequently, the learned Single Judge was justified in dismissing the petition. These two intra court appeals are therefore dismissed.

Order Date :- 13.12.2022

AKShukla/-