Court No. - 6
Case :- WRIT - A No. - 23729 of 2018 Petitioner :- Anil Kumar Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Anil Kumar Singh Counsel for Respondent :- C.S.C.
Hon'ble Yashwant Varma,J.
Heard Sri Himanshu Gautam, holding brief of Sri Anil Kumar Singh for the petitioner and the learned Standing Counsel representing the State respondents.
This petition has been preferred for the respondents being commanded to include the name of the petitioner in the promotion list dated 9 October 2018 which was prepared promoting Constables to the post of Head Constables, Civil Police. The promotional exercise commenced with the issuance of a notice dated 9 October 2018. The notice provided that the Board was considering the candidature of all constables who had been appointed up to the year 2004. It was further stated that promotion would be effected in accordance with the provisions of the U.P. Police Constable and Head Constable Service Rules 2015. Since the petitioner was not promoted he preferred the present writ petition seeking the directions as framed. It was further urged that the claim of the petitioner ostensibly appears to have been rejected on account of a censure entry which came to be made and recorded against him in 2013. Learned counsel for the petitioner pointed out that the entry so made in 2013 itself referred to an incident which took place on 22 May 2012. Attention of the Court was drawn to another Circular of the Police Headquarter dated 19 October 2015 which formulated the principles for promotion in the following terms:
“¼,p½ ;g fd foHkkxh; p;u lfefr;ksa dh izfdz;kvksa ds lEcU/k essaaa ek0 mPpre U;k;ky; o ek0 mPp U;k;ky; }kjk LFkkfir O;oLFkkvksa laxr 'kklukns'kksa rFkk iqfyl foHkkx ds foHkkxh; vksn'kksa dks }f"Vxr j[krs gq;s p;u lfefr }kjk dkfe;ksa dh mi;qDrrk dk oLrqfu"V ewY;kaadu djus ds fy;s fu/kkZfjr fd;s x;s fl)kUrksa esa y?kqn.M ¼m0iz0 v/khuLFk Js.kh ds iqfyl vf/kdkfj;ksa@deZpkfj;ksa dh ¼n.M vkSj vihy½ fu;ekoyh&1991 ds fu;e&4¼1½¼[k½ ds v/khu iznRr n.M½ ds lEcU/k esa ;g ekin.M fu/kkZfjr fd;k x;k gS& 1- p;u o"kZ ds Bhd iwoZorhZ 03 o"kksZ esa dksbZ y?kqn.M ugha gksuk pkfg,A 2 ;fn foxr 10 o"kkasZ esa 03 ls vf/kd y?kqn.M gks rks mls lkekU; :i ls vuqi;qDr le>k tk;sxkA
3- y?kqn.M dh x.kuk y?kqn.M ds fy;s n.M dh ?kVuk ls lEcfU/kr o"kZ ds vuqlkj dh tk;sxhA
4- ifjfuUnk izfof"V dh y?kqn.M ds :i esa Lohdk;Zrk ek0 mPp U;k;ky; bykgkckn dh [k.MihB }kjk oS| ?kksf"kr dh x;h gSA bl lEcU/k esa eq[;ky; iqfyl egkfuns'kd] m0iz0 ds i= la[;k&Mhth&pkj&115 ¼17½ 2006 fnukWd&15-09-2007 ds vuqlkj ifjfuUnk izfof"V dks y?kqn.M ds :i esa le>k tk;sxkA
5- p;u o"kZ ds iwoZorhZ 10 o"kkasZ vuqi;qDr le>k tk;sxkA esa 03 ls vf/kd y?kqn.M@nh?kZn.M gks rks mls ¼vkbZ½ ;g fd foHkkxh; p;u lfefr }kjk fu/kkZfjr mijksDr ekin.M ls ;g Li"V gS fd ;kph lfgr leLr mifujh{kdksa ds inksUufr ds fopkj esa y?kqn.M ds izHkko dh vof/k dks 03 o"kZ gh j[kk x;k gS] tks iqfyl eq[;ky; ds ifji= fnukWd 17-07-1991 ,oa funsZ'k ;kfpdk la[;k&850@2014 esa ikfjr&fu.kZ; fnukad 20-11-2014 ds vuq:i gSA”
According to learned counsel, since no adverse entry stood recorded against the petitioner in the three years preceding the selection in question, the denial of the claim for promotion was wholly illegal.
In the counter affidavit which has been filed by the respondents, it is stated that the case of the petitioner was not considered since his service record was not satisfactory. The respondents assert that promotion of the petitioner on the post of Head Constable "in relation to the vacancies of the selection year-2016" was not considered as the petitioner did not fulfill the criteria of five years of satisfactory service. It is this principal objection which is taken to negate claim of promotion.
The procedure for promotion is prescribed in Rule 17 which reads thus:-
“17 Procedure for promotion to the post of Head Constable-
(1) The appointment to the post of the Head Constable shall be made from amongst the eligible personnel substantively appointed as constable Police according to the following Policy-
(a) 100 percent of the total sanctioned posts of the Head Constable shall be filled by requirement through promotion on the basis of seniority subject to rejection of unfit from amongst such substantively appointed constables police who have completed seven years of service including probation period on the first day of the year of requirement.
(b) Such constable Police promotion to ex-cadre post of Head Constable Police shall also be eligible for promotion to the posts of Head Constable Police under clause (a) who fulfill the qualifications.
(2) Selection Committee for Promotion -
(a) The selection committee for promotion shall be constituted by the Board .
(b) The Chairman of the committee will be nominated by the Board and shall not be junior in rank than the Appointing Authority for the promotional post for which the selection committee is constituted. One member of appropriate rank shall be nominated by the Head of the Department in the committee and remaining members of the committee shall be nominated by the Board according to prevalent Government Orders.
(c) Undisputed seniority list for promotion shall be made available by the Police Head Quarters to the Board.
(d) The Selection Committee shall submit the result of successful candidates along with its recommendation to the Board. The Board shall submit the list of selected candidates along with its recommendation to Head of the Department. The list shall not be more than the notified vacancies .
(e) The Head of the Department shall after his approval send the list to appointing Authority who will issue final orders for promotion .
(f) After approval by the Head of Department, Final list of candidates selected for promotion shall be displayed by the Board on its website and U.P. Police website.”
Suffice it to note that 100% of the total sanctioned posts of Head Constables are liable to be filled through promotion on the basis of seniority subject to rejection of the unfit. All constables, according to this provision, are entitled and eligible to be considered for promotion. Significantly, Rule 17 does not prescribe promotion to be made with reference to vacancies existing in a particular year. As is evident from a reading of that Rule 100% of the total sanctioned posts of Head Constables are liable to be filled by way of promotion. Although these rules define a year of recruitment, no other provision prescribes or stipulates that vacancies are to be separately earmarked with reference to the date when they came into existence. The Circular of 19 October 2015 speaks only of the character roll of the employee as existing in the three years immediately preceding the selection in question. Even this circular does not refer to or correlate the computation of three years to the year in which a particular vacancy may have arisen. Consequently the objection as taken in the counter affidavit cannot be countenanced.
The writ petition is accordingly allowed. The respondent Board is consequently directed to reconsider the claim of promotion of the petitioner with effect from the date of issuance of the original promotion notice in accordance with law and the observation made hereinabove.
Order Date :- 29.5.2019 LA/-