Chief Justice's Court
Case :- WRIT - C No. - 12735 of 2014 Petitioner :- Harishchandra Mishra And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Hari Om Khare,Akash Khare Counsel for Respondent :- C.S.C. With Case :- WRIT - C No. - 20067 of 2014 Petitioner :- Ramesh Kumar Tripathi And 12 Others Respondent :- State Of U.P.And 3 Others Counsel for Petitioner :- Akash Khare,Hari Om Khare Counsel for Respondent :- C.S.C. With Case :- WRIT - C No. - 24651 of 2015 Petitioner :- Ram Pal Mishra Respondent :- State Of U.P. & 3 Others Counsel for Petitioner :- Hari Om Khare,Akash Khare Counsel for Respondent :- C.S.C.
With Case :- WRIT - C No. - 18207 of 2015 Petitioner :- Sameer Kumar Mishra And 5 Ors.
Respondent :- State Of U.P. And 2 Ors. Counsel for Petitioner :- Rastrapati Khare Counsel for Respondent :- C.S.C.
With Case :- WRIT - C No. - 34189 of 2016 Petitioner :- Ram Achal Saroj And 9 Ors.
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Sunil Kumar Srivastava,Vinod Kumar Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Dilip B. Bhosale,Chief Justice Hon'ble Suneet Kumar,J.
Heard Mr. Hari Om Khare, with Mr. Seemant Singh, Advocates for the petitioners. Heard Mr. Neeraj Tripathi, learned Additional Advocate General, with Mr. Sudhanshu Srivastava, learned Additional Chief Standing Counsel for the respondent- State. Insofar as Writ Petition Nos. 18207 of 2015 and 34189 of 2016 are concerned, learned counsel for the petitioner submits that he appears in these petitions at the request made by learned Advocates on record for the petitioners therein.
The questions raised and the prayers made in all five writ petitions are similar. We, therefore, reproduce the prayers made in the first writ petition bearing No. 12735 of 2014:
"I. To issue a writ, order or direction in the nature of mandamus declaring the Rule 16B of the Rules 2008 i.e. "The Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 promulgated by the State Government, ultra-virus;
II. To issue a writ, order or direction in the nature of certiorari quashing the order dated 6.11.2012 passed by the respondent no. 4 (Annexure "31" to the writ petition);
III. To issue a writ, order or direction in the nature of mandamus directing and commanding the respondents to fix the separate standard for Physical Efficiency Test of Petitioners in promotion process having more than 40 years age and subsequently accept the candidature of Petitioners in next step of examination process for promotion."
It appears that some petitions for similar prayers were filed earlier and those petitions were dismissed by this Court. Even special appeals challenging the orders in the writ petitions were also dismissed. Thereafter, those matter was carried to the Supreme Court. In view thereof, the petitioners in the instant petitions had filed Transfer Petition(s) (Civil) No(s). 1414/2016, seeking transfer and hearing of these petitions alongwith SLPs/Appeals pending in the Supreme Court. We are informed, that on dismissal of the appeals challenging the orders passed by this Court in the earlier set of writ petitions, the Supreme Court disposed of Transfer Petition(s) filed by the petitioners as withdrawn vide order dated 31.7.2017. The order passed by the Supreme Court dated 31.7.2017 reads thus:
"Learned counsel for the petitioners seeks leave of this Court to withdraw the transfer petitions.
The transfer petitions are permitted to be withdrawn.
However, in the facts and circumstances of the case, we request the High Court to consider the petitioners' prayer for appointment according to the relaxed criterion of 2015 if otherwise eligible, in existing vacancies preferably within three months from today."
In this backdrop, we have heard learned counsel for the parties. Petitioners were appointed on the post of Constable in Civil Police of U.P. Police Department and claimed promotion to the post of Sub-Inspector under the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (for short '2008 Rules'). Under these Rules the age criterion was prescribed by Rule 5. The relevant portion of the Rule 5 reads thus:
"5. Source of Recruitment ... ... ...
(1) Sub Inspector ... .... ....
(2) Fifty percent by promotion through the Board on the basis of departmental examination from amongst substantively appointed Head Constables and Constables of the Uttar Pradesh Civil Police/Armed Police/Mounted Police/P.A.C. who fulfils the following eligibility conditions:
(a) ... ... ...
(b) must not have attained the age of more than 40 years on the first day of the year of recruitment."
Clause (b) of sub-rule (2) of Rule 5 of 2008 Rules stood deleted by Notification No. 3038/Chh-pu-10-2013-27(65)-2012, dated 11 December, 2013 (Seventh Amendment), published in U.P. Extra., Gazette, Part-4, Section (ka), dated 11 December, 2013. In view thereof, the petitioners though have crossed forty years of age, they are eligible to be considered for promotion to the post of Sub-Inspector. This amendment, counsel appearing for the petitioners, in all fairness submits, was not noticed by him or by Advocates on record when the petitions were filed. He, therefore, submits that petitioners would be satisfied if they are considered for promotion even now on the basis of the relaxed criteria incorporated in 2013. It further appears that Rule 16 was also amended by the very same amendment/notification dated 11 December, 2013, whereby physical efficiency test criterion was also relaxed. The Supreme Court in the order refers to relaxed criterion of 2015. The criterion, as a matter of fact, was relaxed in 2013 itself when the criterion of age and physical efficiency test was relaxed/removed. In this backdrop, Mr. Neeraj Tripathi, learned Additional Advocate General, fairly submits that claim of the petitioners will also be considered as and when vacancies in the cadre of Sub-Inspector arise in future. In the circumstances, counsel for the parties, have agreed for disposal of the these writ petitions, by the following order:
The third respondent, U.P. Police Recruitment and Promotion Board, shall consider the petitioners' claim for promotion as and when they undertake the exercise of promotion to the post of Sub-Inspectors in future, if they are otherwise eligible for the promotion. It is needless to mention that the petitioners will have to clear physical efficiency test as provided in the Rules, as amended in 2013. In other words, the petitioners will have to clear physical efficiency test for promotion on the post of Sub- Inspector (Civil Police) as per the relaxed criterion, 2015, as observed by the Supreme Court. It is made clear that, under any circumstance, the petitioners shall not claim notional promotion or any other benefits from any date, earlier to their actual promotion. With these observations, writ petitions are disposed of.
Order Date :- 28.2.2018 VMA (Dilip B Bhosale, CJ) (Suneet Kumar, J)