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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Ramesh Sinha, Saroj Yadav, JJ.
Vinod Singh Sirohi – Appellant
Versus
State Of U.P. Throu. Prin. Secy. Home Department Lucknow & Ors. – Respondents
Special Appeal No. 100, 98, 99, 103 of 2019, 277 of 2021
Decided On : 16-12-2021
Constitution of India, 1950 - Article 313 and 372 - Police Act, 1861 - Section 2, 23 and 46 (2) - Government of India Act, 1935 - Section 243 - Rule 3 (i), 3 (m), 19 (1) and (2) - Police Regulations - Regulations 65 to 72 and 396 to 427 – Service matter - Conditions of service – Government Order - Promotion to post of Inspectors - Whether preliminary submissions ought to be addressed by the learned Single Judge and whether the appellants/private respondents have ever raised the aforesaid preliminary submissions before the learned Single Judge or any assertion in this regard on behalf of the private respondents/appellants have been made in the counter version in the writ petitions or not - State Government had issued a Government Order, which provided for the method of selection of Sub-Inspector for promotion to the rank of Inspector. This Government Order is referable to Section 2 of Act, 1861 - State Government issued another Government Order dated 29.10.1983 under Section (2) of the Act, 1861, providing therein a Selection Committee be constituted for the purpose selecting Sub-Inspectors for promotion to the post of Inspectors.
Finding of the court : A bare glance on the relevant statutory provisions of Rules, 2015 established that the policy decision dated 23.07.2015 taken with reference to Section (2) of Police Act, 1861 is clearly saved by Rules, 2015 - It is crystal clear that the Apex Court had opined that when the constitutional validity of a provision is challenged and there are beneficiaries of the said provision, some of them in a representative capacity have to be made parties failing which the writ court would not be justified in hearing a writ petition in the absence of the selected candidates when they are already appointed on the basis of the provision which was under assail before the Writ Court - It is crystal clear that in such a case when all the appointees were not impleaded, the writ petition was defective and hence, no relief could have been granted to the writ petitioners - Provisions of Order I Rule 8 of Code of Civil Procedure have not been complied with by the writ petitioners. Thus, we are of the considered view that impugned order under appeal is liable to be dismissed on ground of non-joinder of the parties in the writ petitions - It is settled law that when a judgment is rendered by ignoring the provisions of the governing statute and earlier larger Bench decision on the point such decisions are rendered per incuriam.
Result : Special appeals allowed
JUDGMENT :
Ramesh Sinha, J.
1. The above-captioned Special Appeal Nos. 100 of 2019, 98 of 2019, 99 of 2019 and 103 of 2019 has been preferred by the appellants (out of turn promotees/private respondents in the writ petition) and Special Appeal No. 277 of 2021 has been preferred by the State, assailing the correctness of the judgment and order dated 20.02.2019 passed in Service Single No. 5677 of 2016 and connected Service Single No. 13625 of 2016 and 10759 of 2016, whereby the learned Single Judge, while allowing the aforesaid writ petitions, quashed the Government Order dated 23.07.2015, consequential order dated 29.07.2015 and seniority list dated 24.09.2016 and further directed the State to prepare a fresh seniority list in accordance with Rule 22 (3) of the Uttar Pradesh Sub-Inspector and Inspector (Civil Police) Service Rules, 2015 and assign the seniority to the promotees of ex-cadre posts from the date when their immediate juniors were promoted to the post of Inspector in accordance with the service rules against cadre posts within a period of two months from the date of the order and after preparing the seniority list as directed aforesaid, consequential orders in respect of promotions etc. be issued.
FACTS
2. The factual matrix relevant for adjudication of this set of appeals is as under :-
(b) The aforesaid Government Orders dated 05.11.1965 and subsequent Government Orders were rescinded/modified by the Government Order dated 24.07.2003 issued under Section 2 of the Act, 1861 providing for the selection process for promotion of Sub-Inspector (Civil Police) to the Inspector (Civil Police). Subsequently, the State Government has issued Government Order dated 3.2.1994, by means of which it was provided that those Constables and Sub-Inspectors/Platoon Commanders, who have shown exemplary courage, be given appointment from the post of Constable to Head Constable and from the post of Sub-Inspector and Platoon Commander to Inspector/Company Commander on ex cadre posts. It was further provided that for each year, such ex cadre posts would be created by the State Government on the proposal of the Inspector General of Police, Lucknow. It was also provided that it has overriding effect over any other existing orders.
(c) The aforesaid Government Order dated 03.02.1994 contemplated that the promotions would be made on ex cadre posts, which were to be sanctioned by the State Government for the said purpose every year, however, no such post were ever created and the out of turn promotions were made on cadre posts of Head Constables and Inspector, respectively.
(d) The Government Order dated 3.2.1994 is also referable to Section 2 of the Act, 1861. Thereafter, the Director General of Police, Uttar Pradesh had issued a Circular dated 10.02.1994 in pursuance of the statutory Government Order dated 3.2.1994, in which complete mechanism/procedure was prescribed for out of turn promotion.
(e) Subsequently, on 01.05.1999, the State Government issued another statutory order referable to Section 2 of the Act, 1861, by means of which it laid down that out of turn promotions would be against the vacancies existing in the cadre, however, promotion would be treated ex cadre and its benefit will not be available for the purposes of determination of seniority.
(f) It is relevant to add here that at t
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