Delhi High Court
Subodh Kumar And Others vs Commissioner Of Police And Others on 20 April, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION (CIVIL) NO. 2034/2015
Reserved on : 2nd February, 2017
Date of decision: 20th April, 2017
SUBODH KUMAR AND OTHERS ..... Petitioners
Through Ms. Jyoti Singh, Sr. Advocate with Ms.
Tinu Bajwa, Mr. Amandeep Joshi, Mr. Sameer
Sharma and Mr. Himanshu Gautam, Advocates.
Versus
COMMISSIONER OF POLICE AND OTHERS ..... Respondents
Through Mr. Satyakam, ASC for respondent Nos.
1, 2 and 4.
Mr. Arun Bhardwaj, CGSC for SSC.
WRIT PETITION (CIVIL) NO. 2952/2015
KAPIL DEV AND OTHERS ..... Petitioners
Through Ms. Jyoti Singh, Sr. Advocate with Ms.
Tinu Bajwa, Mr. Amandeep Joshi, Mr. Sameer
Sharma and Mr. Himanshu Gautam, Advocates.
Versus
COMMISSIONER OF POLICE AND OTHERS ..... Respondents
Through Mr. Anuj Aggarwal, ASC for
respondent Nos. 1, 2 and 4.
Mr. Arun Bhardwaj, CGSC for SSC.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J.:
These writ petitions impugn the order dated 18th July, 2014 passed
by the Principal Bench of the Central Administrative Tribunal (Tribunal,
for short) dismissing Original Application No. 1650/2013, Subodh Kumar
and Others versus Commissioner of Police and Others and Original
Application No. 2033/2013, Kapil Dev and Others versus Commissioner
of Police and Others.
2. The petitioners are male police personnel in the Delhi Police in the
rank of Constables and Head Constables. In the present Writ Petitions, we
are not dealing with appointment to the post of Sub-Inspector (Female).
The next posts in the hierarchy are those of Assistant Sub-Inspector and
then Sub-Inspector. Recruitment to the posts of Sub-Inspectors in the
Delhi Police is regulated by Rules 7 and 27A of the Delhi Police
(Appointment & Recruitment) Rules, 1980 (Rules, for short).
3. Rules 7 and 27A, of the Rules as in force prior to 13 th March, 2013
were as under:-
"7. Recruitment of Sub-Inspectors
(Executives).-
Fifty per cent of vacancies in the rank of Sub-Inspector
(Executive) shall be filled by direct recruitment and
50% by promotion out of 50% direct quota, 10% of the
post shall be filled by limited department competitive
tests from amongst constables, Head Constable, and
Asstt. Sub-Inspectors with minimum 5 years of service
who shall not be more than 35 years (40 years of
Scheduled Castes/Scheduled Tribes candidates) of age
on the first day of January of the year if the
examination is held in the first half of the year and on
the first day of July of the year if the examination is
held in the later half of the year. The educational
qualifications and other physical standards for the test
shall be the same as prescribed in the Rules for direct
recruitment to such posts. The unfilled vacancies
reserved for the department candidates will be carried
forward for 3 recruitment years as in the case of
vacancies for the scheduled tribe candidates whether
the unfilled vacancies will be filled by direct
recruitment.
xxx
27-A. Relaxation of upper age limit for
departmental candidate.- Relaxation of upper age
limit of all departmental candidates for direct
recruitment against Group „C‟ and „D‟ posts of Police
Department shall be as follows:-
40 years in the case of general candidate and 45 years
in the case of candidates belonging to Scheduled
Caste/Scheduled Tribes Candidates.
4. Rules 7 and 27-A post the amendments effective 13th March, 2013,
read:-
"7. Recruitment of Sub-Inspectors (Executive)-
Male.-
50% of vacancies in the rank of Sub-Inspector (Exe.)-
Male shall be filled by direct recruitment and 50% by
promotion. Out of 50% direct quota, 10% of the post
shall be filled from amongst serving Constables, Head
Constables, and Asstt. Sub-Inspectors enlisted in Delhi
Police with a minimum of 3 years continuous service,
who shall not be more than 30 years (33 years of OBC
and 35 years for SC/ST candidates) of age on the first
day of January of the year, if the examination is held in
the first half of the year and on the first day of August
of that year, if the examination is held in the later half
of the year. The educational qualifications, physical
standards and other requirements for the post shall be
the same as prescribed in the rules for direct
recruitments to such posts.
xxx
27-A. Relaxation of upper age limit for all
departmental candidates: Relaxation of upper age
limit of all departmental candidates for direct
recruitment against Group „C‟ and Multi Tasking Staff
(Formerly group „D‟ employees) enlisted in Delhi
Police with a minimum of 3 years continuous service
shall be as follows:-
30 years for general category candidates, 33 years for
OBC category candidates and 35 years in case of
candidates belonging to Scheduled Castes/Scheduled
Tribes. "
5. The amended Rules had made four important and significant
changes. First, the words "limited departmental competitive test" for 10%
reserved posts for departmental candidates under the 50% direct
recruitment quota were deleted. Secondly, it was stipulated that in addition
to the educational qualifications and physical standards, "other
requirements" as prescribed for direct recruits shall be fulfilled by the
departmental candidates. Thirdly, qualifying years of service for
departmental candidates under the direct recruitment 10% quota were
reduced from five years to three years. The fourth change was that the
upper age limits were reduced to 30 years for General, 33 years for Other
Backward Class, and 35 years for Scheduled Caste and Scheduled Tribe
candidates. The pre-amended Rules had prescribed maximum age limit for
departmental candidates seeking promotion in the direct recruitment quota
as 40 years for General Category, 43 years for Other Backward Classes and
45 years for Scheduled Caste and Scheduled Tribe candidates, with at least
5 years experience in service.
6. The petitioners in the aforesaid OAs had challenged the reduction in
the maximum permissible age for departmental candidates and the
corrigendum issued on 9th April, 2013 to the employment notification for
selection to the posts of Sub-Inspectors (Executive) under the direct
recruitment quota pursuant to the aforesaid amendments.
7. The impugned order dated 18th July, 2014 passed by the Tribunal
rejects the challenge holding that it was not for the Courts or Tribunal to
interfere with the amendment and modifications made to the Recruitment
Rules by the executive or legislature in their wisdom unless the same were
unconstitutional or shockingly arbitrary. The authorities were entitled to
prescribe and fix age limits and also to what extent relaxation should be
granted. The petitioner‟s contention that the amendments to the
Recruitment Rules were made after the selection process had already been
set in motion was rejected, pointing out that the amendments to the
Recruitment Rules were notified on 13th March, 2013 and notice/
advertisement for recruitment to the said posts was published on 16 th
March, 2013, i.e., post the amendment of the Rules. The challenge to the
corrigendum dated 9th April, 2013, revising the advertisement in
conformity with the terms of the amended Rules, was rejected as no vested
right had accrued to the departmental candidates under the pre-amended
Rules. The Tribunal also rejected the petitioners‟ contention that amended
Rules could not be applied to already existing vacancies, for it was the
conscious decision of the Government of NCT of Delhi not to fill up the
existing vacancies as per the pre-amended Rules. The amended Rules
would apply to the vacancies created on 16.10.2012 and advertised on
16.3.2013. The Government has deliberately and intentionally applied the
amended Rules. The challenge on the ground of alleged violation of
Section 147 of the Delhi Police Act was repulsed.
8. The Tribunal thereafter for the reasons recorded gave the following
directions:-
"31. Though Mrs. Avnish Ahlawat, learned
counsel has given a list of different feeder categories,
which are eligible against departmental quota for the
post of Sub Inspector (Executive) in Delhi Police, but
the categories do not include the Head Constables and
Assistant Sub Inspectors (Executive). There is also no
material available on record to show that while
amending the rules, the concerned Committee could
take into account the G.I., Department of Personnel &
Training, O.M. No.15012/1/88-Estt. (D) dated
20.5.1988 and 30.1.1990 (Annexure A-5) and the
amendment carried in Delhi Police (Appointment and
Recruitment) Rules, 1980 vide notification
No.F.3/58/95-H (P)/5099 dated 1.9.1998, which reads
as under:-
"Govt. of NCT of Delhi‟s Notification No.F/3/58/95-H
(P)/5099 dated 1.9.1998 from Dy. Secretary (Home),
Govt. of NCT of Delhi to the Addl. C.P. (HQ), Delhi
etc. etc.
In exercise of the powers conferred by Sub-Section
(1) & (2) of Section 147 of the Delhi Police Act, 1978,
the Lt. Governor of the National Capital Territory of
Delhi is pleased to make the following rules, further to
amend the Delhi Police (Appointment and Recruitment)
Rules, 1980, namely:-
1. Short title and 1. (1) Those rules may be
commencement called the Delhi Police
(Appointment and
Recruitment)
(Amendment) Rules-
(2) They shall come into
force with effect from
the date of their
publication in the Delhi
Gazette.
2. Amendment of 2. In the Delhi Police
Rule 27-A (Appointment and
Recruitment) Rules,
1980, for rule 27-A, the
following shall be
substituted, namely:-
"27- Relaxation of Upper age
A limit for departmental
candidates. . Relaxation
of upper age limit of all
departmental candidates
for direct recruitment
against Group „C‟ and
„D‟ posts of Police
Department shall be as
follows:-
40 years in the case of
general category
candidates and 45 years
in the case of candidates
belonging to scheduled
Castes/ Scheduled
Tribes.
32.Besides, we are unable to appreciate that how in the
absence of the amendment in Rule 8 of Delhi Police
(Appointment and Recruitment) Rules, 1980, the
relaxed age standard available to sports persons could
be done away, thus we are of the considered view that
these aspects need to be taken into account by the
concerned Committee.
33.In view of the aforementioned, we dispose of the
present Original Applications with the following
directions:
The Committee, which made final decision on
21.2.2013, to follow the same requirement for the
recruitment to the post of Sub Inspector (Executive) in
Delhi Police as followed in Central Armed Police
Forces Examination 2013 would reexamine the
impugned amendment in the Recruitment Rules for the
post of Sub Inspector (Executive) in Delhi Police,
keeping in view the chances of Head Constable
(Executive) in Delhi Police to participate in the
selection are reduced to minimal and the Assistant Sub
Inspector (Executive) in Delhi Police are virtually
debarred from participating in selection against 10%
quota, though kept eligible for the post of Sub Inspector
(Executive) in Delhi Police against said quota; by way
of reduction in age relaxation, the field of choice is
reduced drastically; once for Assistant Sub Inspector
and Sub Inspector in Central Armed Police Forces there
can be common examination, how for the other posts to
be filled up by following different Recruitment Rules,
there cannot be the common examination; when there is
no amendment in Rule 5 of the Delhi Police
(Appointment and Recruitment) Rules, 1980, how the
age relaxation admissible to sports persons in the matter
of promotion to the post of Sub Inspector (Executive) in
Delhi Police under departmental quota / direct
recruitment is done away with; whether the alignment
of the examination for direct recruitment / departmental
examination in Delhi Police and Central Armed Police
Forces can be a sufficient ground to amend the
Recruitment Rules; and when before amendment in the
Rules the Committee kept in view that the post at Sub
Inspector in CAPF is Group „B‟ post, while the same in
Delhi Police is Group „C‟ post. The examination would
be completed within 12 weeks and follow up action, if
any required, would be taken within further four weeks
thereafter.
In the meantime, the appointment, if any made on the
basis of selection set in motion vide notice dated
16.3.2013 corrected vide corrigendum dated 9.4.2013
would remain subject to outcome of the aforesaid
examination."
9. The petitioners are not satisfied with the said observations1. The
contention is that reduction of age for direct recruitment for departmental
candidates as per the amended Rule 7 is unconstitutional as they have been
excluded from the recruitment process inspite of extreme stagnation and
lack of vacancies in the promotional hierarchy. The amendments are
arbitrary and perverse for they adversely affect the petitioners' right for
consideration and eligibility to compete in the direct recruitment process as
Sub-Inspector (Executive). Constables appointed in 1988 were promoted as
Head Constables after about 28 years of service in 2016. Candidates in the
age of 18 to 21 are recruited to the post of Constable. For promotion to the
next post in the hierarchy- that of Head Constables- qualifying service is
five years. Another five years service thereafter is necessary for promotion
as Assistant Sub-Inspector. Reduction of the upper age limit to 30 years
In the counter affidavit filed by the respondents, they have stated that pursuant to the impugned
judgment, a meeting of the Committee was held on 18 th December, 2014 under the Chairmanship of the
Joint Secretary (Union Territories- Ministry of Home Affairs) with Officers of the Delhi Police and the
Staff Selection Commission. After examining all aspects, the Committee was of the view that the age
limit as modified was rational and should be continued. Increasing the age limit would have an adverse
impact on account of shortage of young officers at the level of Sub-Inspectors. Departmental Candidates
were getting adequate opportunities in the promotion quota.
denies and infringes the right of Head Constables and Assistant Sub-
Inspectors to be considered for promotion. Accordingly, the reduction of
age from 40 to 30 years in Rule 7 and 27A is arbitrary and illogical. It was
submitted that pre-amended Rule 7 had conferred a vested right to Head
Constables and Assistant Sub-Inspectors to aspire and qualify under the
10% quota.
10. The petitioners submit that the 10% reservation granted to
departmental personnel in the 50% direct recruitment category for the post
of Sub-Inspectors is akin to and should be treated as a Limited
Departmental Competitive test or Examination (LDCE). The quota is
nothing but promotion and cannot be equated with direct recruitment.
Accordingly, the submission is that the respondents have acted illogically
and arbitrarily by reducing the upper age limit for departmental candidates
for 10% reserved quota in the direct recruitment category from 40 years to
30 years. This age reduction is ex facie unjust and capricious as it virtually
excludes the petitioners from being considered for promotion under the
direct recruitment quota.
11. The petitioners had drawn our attention to judgment dated 22nd May,
2013 in Writ Petition (C) No. 2788/2012, Karamvir versus Government of
NCT of Delhi, wherein the Division Bench of the Delhi High Court has
held that the pre-amended Rule had prescribed three modes of appointment
of departmental candidates to the posts of Sub-Inspector; (i) by promotion;
(ii) by direct recruitment and (iii) by appointment through the LDCE.
Benefit of age relaxation would entitle the departmental candidates to
appear in the LDCE and compete with the direct recruits in the open
category. In other words, Rule 7 read with Rule 27A had postulated the
LDCE in the nature of promotion and not direct recruitment. Deletion or
alteration of few words, would not make any difference for Rule 7 still
postulates promotion through LDCE for departmental candidates to the
extent of 10% in the direct recruitment quota. This 10% quota is in the
nature of fast track promotion of departmental candidates as was held by
the Delhi High Court in the judgment dated 21st December, 2012, Man
Singh versus Union of India and Others, Writ Petition (C) No.
2887/2012. This judgment was followed in the case of Ajay Pandey
versus Union of India, W.P. (C) No. 1938/2011 and Satvir Singh versus
Union of India, W.P. (C) No. 1315/2015.
12. The petitioners had also relied upon DOP&T‟s OM dated 30th
January, 1990 on the question of relaxation of upper age limit from 35
years to 40 years for departmental candidates to Group C and D posts. It is
submitted that this OM is applicable to Delhi Police, who are under the
Ministry of Home Affairs. The Delhi Police vide notification dated 17th
December, 1980 clarifies that in case of a conflict between the Rules
framed under the Delhi Police Act and the Central Government Rules
adopted under the said notification, the Rules framed under the Delhi
Police Act would prevail, is of no consequence as OM dated 30th January,
1990 is not mentioned therein. Specific Central Government Rules
mentioned in the OM dated 17th December, 1980 would no way affect or
curtail the scope of the DOP&T‟s OM dated 30th January, 1990. Lastly, it
is submitted that the amendments to Rules 7 and 27A was with the idea to
align them with the Recruitment Rules of the Central Armed Police Force
(CAPF). However, an error was made, for the upper age limit of
departmental candidates under CAPF service is 32 years and not 30 years.
13. The amendment to the Rules was made is in exercise of statutory
power conferred on the respondents under Section 147 of the Delhi Police
Act read with proviso to Article 309 of the Constitution. The Executive
has been conferred the said power to enact, modify, omit or amend the
Recruitment Rules by way of delegated legislation. The exercise of power
to amend the Rules is a legislative and not an administrative act. Acts,
which are legislative in character, have to be contrasted from an
administrative or quasi judicial functions. Legislative acts do not normally
require compliance with principles of natural justice. There is a
presumption in favour of constitutionality and validity of a subordinate
legislation and the burden is on the person who attacks it. A subordinate
legislation can be challenged on the ground of lack of legislative
competence, violation of fundamental rights or other provisions of the
Constitution, violation of statute under which it is made i.e. it fails to
conform to the statute or exceeds the limits of the subordinate authority to
which it is delegated. Subordinate legislation can be also challenged if it is
repugnant to the higher legislation, i.e. any enactment, by or under which
the subordinate legislation is created. Lastly, the challenge can be made on
the basis of manifest arbitrariness or unreasonableness on the ground that
the Court might well opine that the legislature never intended to give
authority to make such rule. In State of Tamil Nadu & Anr. v. P.
Krishnamurthy & Ors., (2006) 4 SCC 517, several other earlier decisions
were referred to hold that the delegated legislation can be declared invalid if it
is so manifestly unjust, oppressive or outrageous, or is declared to be
unauthorized or violates general principles of law of the land, or so vague
that what is prohibited cannot be predicted with certainty, or so
unreasonable that it cannot be attributed to the power delegated, or
otherwise discloses bad faith. The present contention in the instant case that
amendments were made because the Chairman, Staff Selection Commission
had suggested that Delhi Police should explore possibility of conducting a
common recruitment/test with CAPFs and subsequently, the matter was
discussed with the Union Home Secretary and the Joint Secretary, Union
Territories and it was decided to make necessary amendments in the
Recruitment Rules to match with the standards of CAPF, relates to matters
within the executive domain and should not be commented upon in the
judicial verdict, directly. This, we would observe, is beyond the scope and
ambit of judicial review. As already stated above, this would not bar or
prohibit the Court from examining the validity of the amendments with
reference to the Constitution, statutory guarantees and other grounds.
While examining the said aspects the Respondents can justify and give
explanation why the amendments were made. Delegated legislation being
neither an administrative or quasi judicial order, the validity thereof has to
be examined and considered on parameters stated above.
14. We have considered and examined the file noting dated 22nd
February, 2013. The noting refers to the meeting of the Commissioner of
Police with the Chairman, Staff Selection Commission, to discuss
recruitment against 330 vacant posts of Inspector (Executive) for the years
2012 and 2013. The Staff Selection Commission had expressed their
inability to conduct separate recruitment and had suggested recruitment
along with recruitment for similar posts in the Central Armed Police
Forces. Thereafter, the meetings called by the Chairman, Staff Selection
Commission, were attended by officers from the Delhi Police and the
Ministry of Home Affairs. There was discussion regarding
standards/requirements of Delhi Police and possibility of conducting
common recruitment test with Central Armed Police Forces. Suggestions
were given and exchanged. The issues raised were discussed with the
Union Home Secretary and others and it was decided to carry out necessary
amendments in the Recruitment Rules of Delhi Police. Subsequently, the
matter was discussed with the Lieutenant Governor, who approved the
changes proposed by the Commissioner of Police.
15. The Supreme Court in P.U. Joshi & Ors. Vs. Accountant General,
Ahmadabad & Ors. (2003) 2 SCC 632 on the question of pattern,
nomenclature of posts, cadres, categories, their creation/abolition,
prescription of qualifications and other conditions of service including
avenues of promotion and criteria to be fulfilled had observed as under:-
"10. We have carefully considered the submissions
made on behalf of both parties. Questions relating to
the constitution, pattern, nomenclature of posts, cadres,
categories, their creation/abolition, prescription of
qualifications and other conditions of service including
avenues of promotions and criteria to be fulfilled for
such promotions pertain to the field of policy is within
the exclusive discretion and jurisdiction of the State,
subject, of course, to the limitations or restrictions
envisaged in the Constitution of India and it is not for
the statutory tribunals, at any rate, to direct the
Government to have a particular method of recruitment
or eligibility criteria or avenues of promotion or
impose itself by substituting its views for that of the
State. Similarly, it is well open and within the
competency of the State to change the rules relating to
a service and alter or amend and vary by
addition/substraction (sic.) the qualifications, eligibility
criteria and other conditions of service including
avenues of promotion, from time to time, as the
administrative exigencies may need or necessitate.
Likewise, the State by appropriate rules is entitled to
amalgamate departments or bifurcate departments into
more and constitute different categories of posts or
cadres by undertaking further classification, bifurcation
or amalgamation as well as reconstitute and restructure
the pattern and cadres/categories of service, as may be
required from time to time by abolishing the existing
cadres/posts and creating new cadres/posts. There is no
right in any employee of the State to claim that rules
governing conditions of his service should be forever
the same as the one when he entered service for all
purposes and except for ensuring or safeguarding rights
or benefits already earned, acquired or accrued at a
particular point of time, a government servant has no
right to challenge the authority of the State to amend,
alter and bring into force new rules relating to even an
existing service."
The aforesaid quotation is a complete answer to the contention of the
petitioners that a vested right had accrued to the petitioners, who under the
pre-amended Rules were eligible for promotion through the LDCE as Sub-
Inspectors till they attained the age of 40 years. There is no right in any
employee to claim that rules governing conditions of service should forever
remain the same. The only right he has is for ensuring or safeguarding
rights or benefits already earned, acquired or accrued at a particular point
of time. This right does not extend and include the right to challenge the
authority of the State to amend, alter and bring into force new rules relating
to even an existing service. Argument of vested right, therefore, would
fail.
16. In Nilangshu Bhusan Basu Vs. Deb K. Sinha & Ors. (2001) 8 SCC
119, reference was made to the State of Andhra Pradesh Vs. V.
Sadanandam, AIR 1989 SC 2064, to highlight the mode of recruitment
and the category from which the recruitment to service should be made are
of matters which are exclusively in domain of the executive, and judicial
bodies should not sit in judgment over the wisdom of the executive.
Judiciary should not decide the category from which recruitment should be
made, re-writing or overruling the Rules.
17. In the State of Tripura Vs. Nikhil Ranjan Chakraborty (2017) 1
SCALE 599, the Supreme Court referred to the settled proposition of law
that a candidate has a right to be considered in light of the existing rules,
which implies "rule in force" on the date consideration took place.
Reference was made to the decision in the case of Deepak Aggarwal and
Anr. Vs. State of Uttar Pradesh & Ors. (2011) 6 SCC 725 to hold that
there is no rule of universal or absolute application that vacancies are to be
filled up invariably by the law existing on the date when the vacancies
arose, for the requirement of filling existing vacancies under pre-amended
rules is interlinked with the acquired right of the candidate to be considered
for promotion. Therefore, unless the rule prescribes the particular time
frame within which selection process is to be completed such right may not
accrue.
18. Pertinent, would also be reference to the decision of the Supreme
Court in (2015) 6 SCC 727, Dhole Govind Sahebrao & Ors. v. Union of
India & Ors., which states that chances of promotions do not constitute
conditions of service. The promotional avenues can undergo changes and
alterations from time to time.
19. In Union of India & Ors. Vs. Shivbachan Rai (2001) 9 SCC 356, it
was held that the Rules prescribing age limit and the extent to which
relaxation could be granted were a matter of policy. The Supreme Court
held that such Rules could not be termed as arbitrary or unreasonable. In
the said case there were additional avenues of promotions, which were not
partially or totally closed.
20. The petitioners are correct in their submission that appointment to a
higher post through LDCE as per judicial decisions is a method of
promotion and not appointment as a direct recruit. Under the pre-amended
Rules, the 10% quota reserved for officers of the Delhi Police who qualify
the LDCE, was a method of promotion. It was fast track promotion.
However, this would not help the case set up by the petitioners any further
as the amended Rule does not postulate LDCE. The amendment has done
away with the concept of fast track promotion by LDCE. The amended
Rule gives equal opportunity to the in service candidates, who are eligible
to compete with the open candidates in the 50% direct recruitment quota
for appointment in the cadre of Sub-Inspectors. In addition there is a
stipulation of 10% reservation of posts for the eligible in-service officers.
The appointments under the 10% quota under the 50% direct recruitment
quota cannot be treated as appointment by way of promotion. This is
appointment by way of direct recruitment. The eligible in-service officers
participate in the same examination as open candidates. Selection is made
through the common process and examination. The eligible in-service
officers appointed as direct recruits cannot claim parity and be equated
with those who were/are promoted and vice versa.
21. The amended Rule is not a way and method of fact track promotion,
but it gives an opportunity to the eligible in-service officers, who can
compete with open candidates. They have also got the benefit of 10%
quota or reservation.
22. In the present case the recruitment was by way of direct recruitment.
Earlier there was stipulation of LDCE or test for filling up 10% of the
direct recruitment quota posts. LDCE/tests were earlier held in 2004, 2007
and twice in 2009. While discussing the process whether or not to hold
LDCE/test and whether the same should be held by the Staff Selection
Commission, the question of amendment to the Rules was taken up. A
conscious and deliberate decision was taken to amend the rules and
thereafter, fill up the direct recruitment quota vacancies, 10% quota for in
service police officers in direct recruitment was retained but the provision
relating to LDCE/test was deleted. Amendments were made to reduce the
upper age limit, and bring them at par with the age limit for direct recruits.
The intention was to conduct a common examination for the direct recruits
and the departmental candidates under the 50% direct recruitment quota.
23. The petitioners have placed reliance upon the DoP&T‟s OM dated
30th January, 1990. This OM relates to relaxation of upper age limit for
departmental candidates to Group C and D posts and states that
departmental candidates from the General Category may be allowed to
compete along with candidates from the open market up to the age of 40
years in Group C posts and 45 years in the case of Scheduled Caste and
Scheduled Tribe candidates. The OM dated 30th January, 1990 is by way
of executive instructions. The Recruitment Rules are statutory in nature.
The Rules will override if there is conflict between the said Recruitment
Rules and the DoP&T‟s OM dated 30th January, 1990. The Delhi Police
notification dated 17th December, 1980 stipulates that in case there is a
conflict between the rules framed under the Delhi Police Act and the
Central Government rules adopted by the same notification, the rules
framed under the Delhi Police Act will prevail. The said notification had
made a number of Central Government rules applicable to Delhi Police.
We find grave difficulty in accepting the petitioners' contention that the
said notification does not include DoP&T OMs and therefore by
implication and inference the OMs will prevail over the Rules framed
under the Delhi Police Act. This is certainly not the legally correct position
and the contention has to be rejected. The statutory Rules will prevail over
the OM dated 30th January, 1990.
24. We must deal with other contentions raised by the petitioners
primarily on the ground that reduction in age in case of in-service
candidates is discriminatory, arbitrary and deprives fair and equitable
opportunity to the in-service candidates. The submission is that
recruitment in Delhi Police at the post of Constable in the case of male
candidates is between the ages of 18 to 21 years. Constables are promoted,
after five years, as Head Constables and after five years as Head
Constables, as Assistant Sub-Inspectors. Assistant Sub-Inspectors, it is
submitted, are also eligible to appear under the 10% direct recruitment
quota. They would now be barred because of the age restriction, for most
of them were appointed after attaining the age of 31 years. Further, there is
acute stagnation in the lower hierarchy. Consequently, reduction of the
upper age limit is wholly arbitrary and inequitable. It is pointed out that
the upper age limit was extended/increased to 40-45 years in view of the
aforesaid stagnation.
25. We find these contentions are fallacious and unsound. The
recruitment age of Constables (Male) is between 18 to 21 years. A
Constable would, therefore, normally get several opportunities to appear
and get selected vide direct recruitment for the post of Sub-Inspector by the
time he attains the age of 30. There is no direct recruitment in the cadre of
Head Constable and Assistant Sub-Inspectors, which are entirely
promotional posts. At best, the lowering of the upper age limit for in-
service officers means that the number of chances to qualify stand reduced.
By no stretch can this reduction in maximum permissible age be regarded
as arbitrary or unconstitutional when the recruitment in the cadre of
Constable is between the ages of 18 to 21 years. The argument of acute
stagnation is misconceived for the reason that the 10% quota for in-service
police officers has not been reduced. In addition, the in-service police
officers also compete with direct recruits and can be appointed against 40%
of the balance posts under the direct recruitment quota. Lastly, the eligible
Assistant Sub-Inspectors are entitled to promotion under the 50%
promotional quota.
26. The last contention raised by the petitioners was with reference to
different upper age limits prescribed in the Border Security Force, Central
Industrial Security Force etc. There can be variation in the upper age
limits, as recruitment rules for different forces as per requirements, can
vary. In several forces, there is a separate limited LDCE quota, in addition
to promotion quota and direct recruitment quota. The upper age limit
prescribed as 30 years for general categories for the cadre of Sub-Inspector
(Executive) in the Delhi Police cannot be struck down for this reason.
Induction at the initial stage at the cadre of Constables, is for candidates
between the age group of 18-21 groups. The upper age limit of 30 years
for in-service departmental candidates is reasonable and fair and cannot be
termed as arbitrary. The age gap is 9 years or more. In-service police
candidates would get sufficient opportunities to compete and appear for
selection as Sub-Inspectors (Executive) in the 10% quota out of 50% direct
recruitment quota, before becoming ineligible due to the amended age
criteria. The challenge fails and should be rejected.
27. For the aforesaid reasons, we do not find any merit in the writ
petition. The petition is dismissed without any order as to costs.
(SANJIV KHANNA)
JUDGE
(CHANDER SHEKHAR)
JUDGE
APRIL 20th, 2017
VKR
