VERY Important Point
The Departmental Selection Committee was right in preparing selection list for promotion of Police Sub-Inspector to Inspectors in State of U.P. in 1997 for vacancies during 1992-1996 on the basis of merit under the specific Police related order of 5-11-1965 under Police Act, 1861. The basis of seniority subject to rejection of unfit under the General U.P. Govt. Service (Criterion for recruitment by Promotion) Rules, 1994 framed by Governor under Article 309 of the Constitution were not applicable.

Headnote:(i) Constitution of India—Articles 300 and 311—Item 2 in List II of 7th Schedule—U.P. Govt. Service (Criteria for Recruitment by Promotion) Rules, 1994—Police Act, 1861—Sections 2, 12, 46—Constitution of Police Force in a State—Promotion of Sub-Inspectors to Inspectors in State of U.P. in 1997 for vacancies between 1992 to 1996—Selection was done on "merits" in terms of Govt. order dated 5-11-65 under Police Act—Quashed by High Court on ground that it should have been done on the criteria "Seniority subject to rejection of the unfit" under the General U.P. Govt. Service (Criteria for Recruitment by Promotion) Rules, 1994 framed under Proviso to Article 309 of the Constitution—Appeal to Supreme Court—Whether the selection as effected was to be made under the Specific Police order dated 5.11.65 on ground of merits or on the basis of seniority under the Rules of 1994? (the former) (Interpretation of Statutes —Earlier Act must give place to later, special will prevail over general).
       Held : On a conspectus of the whole issue, it is thus difficult to comprehend that the General Rule framed under Article 309 should or would also govern the existing special rules concerning the police rules. Admittedly, the guidelines as contained in the Government Order dated 5.11.1965 have been under and in terms of the provisions of the Police Act. There is special conferment of power for framing of Rules dealt with more fully hereinbefore, which would prevail over any other Rule. Since no other rule stands formulated and the Government Order of 1965 being taken as the existing rule pertaining to the subject matter presently under consideration with recent guide-lines as noted above, its applicability cannot be doubted. Unless the General Rule specifically repeal the effectiveness of the special rules, question of the latter rule becoming ineffective or inoperative would not arise. In order to be effective, an express mention is required rather an imaginary repeal. It is now a well settled principle of law for which no dilation is further required that law Courts rather loath repeal by implication. The General Rule framed under Article 309 has been for all State Government officials on and since 1994. List II (State List) of the 7th Schedule specially refers to the powers of the State Legislature to frame Rules specially for the Police. In this context Item 2 thereof would be significant which reads as follows :
       "List II – State List"
       "2. Police (including railway and village police) subject to the provisions of entry 2A of List I"
       Police force admittedly has a special significance in the administration of the State and the intent of the framers of our Constitution to empower the State Government to make rules therefor has its due significance rather than being governed under a general omnibus rule framed under the provisions under Article 309. When there is a specific provision unless there is a specific repeal of the existing law, question of an implied repeal would not arise. In any event, the General Rules are only prospective in nature and as such could not have affected the selection process which commenced in the year 1993 and it is on this score the parties advanced quite a lengthy submissions but in our view question of further consideration thereof would not arise by reason of the commencement of the selection process in 1993. Incidentally, the intention of the Legislative intent has to be assessed in its proper perspective and from the word used therein. In this context the inter-ministerial correspondence as noticed above and the understanding apropos the Government Order stands clear enough to indicate that while General Rules framed in the year 1994 are for general government servants, the Police force are to be guided by the provisions of the Police Act and no exception can be taken thereto. (Paras 35 to 37)
       Held finally : In that view of the matter, the order impugned cannot be sustained. The judgment of the learned Single Judge as also that of the Division Bench stand set aside. The appeals thus stand allowed. No costs. (Para 42)
       (ii) Doctrine of estoppel by conduct—Applicability—Exception—Promotion of Sub-Inspector to Inspectors in U.P. Police Force—Done on principles of merit —Principle of seniority introduced by Rules of 1994—No representation and changing of position on that basis—Whether doctrine of estoppel by conduct applicable? (No)—But participation at the interview/selection by candidates-petitioners without any demur or protest—Whether candidates/ petitioners can subsequently contend that process of interview was unfair or there was some lacuna in the selection process? (No).
       Held (In 2001(2) SCC 41) : this Court recorded that the issue of estoppel by conduct can only be said to be available in the event of there being a precise and unambiguous representation and it is on that score a further question arises as to whether there was any unequivocal assurance prompting the assured to alter his position or status - the situation, however, presently does not warrant such a conclusion and we are thus not in a position to lend concurrence to the contention of Dr. Dhawan pertaining the doctrine of Estoppel by conduct. It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla (Om Prakash Shukla v. Akhilesh Kumar Shukla & Ors. 1986 Supp. SCC 285) a Three Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a Petition challenging the said examination would not arise. (Para 31)
       There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seem to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process. In that view of the matter, while we are not in a position to record our concurrence with the applicability of the doctrine of estoppel by conduct but by reason of the decisions as cited from the Bar, we do feel it required to lend our concurrence to the submissions of Dr. Dhawan, on that score as noticed above. (Paras 33 & 34)
       (iii) Service Jurisprudence—Promotion of Sub-Inspectors to Inspectors in U.P. Police Force—1965 order made u/s. 2 of Police Act, 1861—Applied by Selection Committee—Order was not published in Official Gazette—Whether becomes bad in law? (No)—Selection list not prepared for each year—Whether becomes bad in law due to clubbing in a later year? (No) (See Paras 38 to 40)—Result—Appeals allowed.

Judgment

Banerjee, J.—Leave granted.

2. The irksome issue as regards the criterion of selection though placed before the Court on occasions innumerable but the debate is still on. The matters presently before this Court pertain to the promotion of police officers from Sub-Inspector to Inspector in the State of U.P. in 1997 for vacancies for the period between 1992 and 1996 and said to be upon due completion of elaborate selection process - it is however this process which stands scrutiny before this Court. Whereas the learned Single Judge negated the selections and allowed the grievance of the writ petitioners upon recording of a categorical finding that the selection has caused great injustice to the senior Sub-Inspectors who had a totally unblemish service record - the appellate Bench in a very detailed judgment recorded an affirmation to the judgment of the learned Single Judge though for different set of reasons to wit, that the criteria for selection "seniority subject to the rejection of the unfit" as laid down in the Rules was not followed and secondly that Selection Committee failed to prepare the list for each year, keeping in view the number of vacancies in that year after considering the Sub-Inspectors of police who were eligible and fell within the zone of consideration for selection that year.

3. The records depict that the select list of 1996-97 stood challenged both at Allahabad and at Lucknow under various writ petitions and as against the orders of the learned Single Judge there were pending a large number of appeals. The learned Single Judge who was in seisin of the matters at Lucknow, however, thought it fit to refer the matters to a larger Bench and scripted the following questions :

1. Whether the Departmental Selection Committee constituted for the purpose of selection of Sub Inspectors, Civil Police for promotion to the rank of Inspector, Civil Police, having adopted the criterion of merit alone for selection, has not contravened the provisions of "The Uttar Pradesh Govt. Services Criteria for Recruitment by Promotion Rules, 1994" which lays down that posts for all services (excepting the post of Head of Department and Officer immediately below him) to be filled up by promotions, shall be made on the basis of seniority subject to rejection of the unfit?

2. Whether the provisions of the Uttar Pradesh Government Services Criteria for Recruitment by Promotion Rules, 1994 do not apply to the police personnel ?

3. Whether in case the answer to question No. 1 is in the affirmative the selection/select list contained in Annexure No. 1 in some writ petitions and Annexure No. 1 and 2 in others is not bad in law and liable to be quashed ?

4. The core question thus falling for consideration before this Court thus runs as below :

Whether the selection as effected was to be made under the specific police related order of 5th November. 1965 or the basis of seniority under the General UP Government Service (Criteria for Recruitment by Promotion) Rules, 1994 framed under Article 309 of the Constitution ?

5. Admittedly, the impugned selection of Sub-Inspectors of police for promotion to the rank of Inspectors was effected in terms of the Government Order dated 5th November. 1965. In order, however, to appreciate the contentions raised in a manner proper and effective, the Government Order spoken of earlier, ought to be noticed in extenso for its true purport. The Government Order reads as below :-

"From :

Shri R.K Dar,

UP Sachiv,

Uttar Pradesh Shasan

To,

The Inspector General of Police,

Uttar Pradesh

Allahabad/Lucknow

Dated Lucknow: November 5, 1965

Home (Police-A)

Sub: Method of Selection of Sub-Inspectors for promotion to the rank of Inspectors.

Sir,

With reference to Deputy Inspector General of Police, Headquarters letter No. V-500-51, dated August 18, 1964 on the subject noted above, I am directed to say that after careful consideration of the recommendations contained in para 246

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2002 Supreme(SC) 645

Cases Referred (6)