- (1.) BY the Court?Heard Shri P.S. Baghel, Senior Advocate assisted by Shri P.K. Upadhyay and Shri Gautam Baghel for the petitioners. Shri Satish Chaturvedi, Additional Advocate General assisted by Shri M.C. Chaturvedi, Chief Standing Counsel and Shri S.N. Srivastava appear for the State respondents.
(2.) ALL the petitioners are serving as Sub Inspectors in Civil Police in Uttar Pradesh. By this writ petition, they have prayed for directions to declare the Rule 5 (2) of the U.P. Sub Inspector and Inspector (Civil Police) (First Amendment) Service Rules, 2009 as ultra vires, unconstitutional and illegal, to direct the petitioners to submit their forms for promotions on the post of Inspector (civil Police), and to allow them to appear provisionally in the written examination. All the petitioners are graduates. They were directly recruited as Sub Inspectors in Civil Police in the year 2001 after preliminary examination, physical test, mains examination and interviews. They have undergone one year's training at Police Training College, Moradabad and Sitapur and have completed their probation. It is alleged that they became eligible for promotion after completing five years of service on the first day of the year of recruitment in terms of Rule 5 (2) of the U.P. Sub Inspector and Inspector (Civil Police) Service Rules, 2008 (in short, the Rules of 2008). By the first amendment to the Rules notified on 2.4.2009, Rule 5 (2) was amended providing for excluding the period of probation in calculating five years of completed service on the first day of the year of recruitment. It is stated that in the recruitment year beginning from first day of the recruitment year i.e.. -1.7.2008 the petitioners were eligible for consideration for promotion to 1114 vacant posts of Inspectors in the year 2008. These vacancies have occurred from 1.7.2008 to June, 2009. The exclusion of the period of probation by the first amendment to Rule 5 (2) notified on 2.4.2009, is illegal, arbitrary and ultra vires. Shri P.S. Baghel submits that the said amendment is also beyond the power of the State Government. The exclusion of probationary period in counting the number of years of service for eligibility, is unreasonable and unjustified and has been made only to deprive the petitioners from consideration for promotion. It is submitted that the period of probation is to watch the performance of the officer. Once an officer successfully completes the probation period, the experience gains by him during the probation period cannot be excluded from his service. Under Rule 20 (1) of the Rules of 2008, a person on substantive appointment in service can be placed on probation for two years. In none of the cases of the petitioners, the probation period was extended. By the second amendment to the Rules notified on 19.1.2010 the eligibility for promotion was amended and provided to be 7 years instead of 5 years, and by the third amendment to the Rules notified -on 5.4.2010, the orders of the Government issued from time to time with regard to matters connected with or incidental to selection, promotion, training, appointment, determination of seniority and confirmation etc. of Sub Inspector and Inspector of Civil Police in U.P. Police Force, stood rescinded and revoked ab -initio.
(3.) THE petitioners have not challenged the Second and Third amendment to Service Rules of 2008 notified on 19.1.2010 and 5.4.2010 respectively. THE challenge is confined only to the first amendment in the Rules notified on 2.4.2009, by which the period of probation was excluded depriving consideration of petitioner's candidature for 1114 vacancies of Inspector in the year 2008. It is contended that if the second amendment is held to be ultra vires and unconstitutional in view of the settled law of the Supreme Court, in V. V. Rangaiah and others v. J. Sreenivasa Rao and others, (1983) 3 SCC 284; R Ganeshwar Rao and others v. State ofAndhra Pradesh and others, 1988 (Supp) SCC 740; P. Mahendra v. State of Karnataka, 1989 (4) JT 459 followed in N. T. Devin Katti and others v. Karnataka Public Service Commission and others, MR 1990 SC1233, in which it was held that the old vacancies have to be filled up in accordance with the old Rule, namely the rules, which was prevalent at the time when the vacancies were notified, the petitioners were eligible to be considered for 1114 vacancies of the year 2008 to be1 filled up by selection, in which a written examination is to be held under the Rule. Shri P.S. Baghelsubmits that out Of total notified vacancies for which exercise of promotion has started on 31.10.2009,98 vacancies of 2006 would fall in the recruitment year beginning from 1.7.2007; 81 vacancies of the year 2007, in the recruitment year beginning from 1.7.1008, and 1114 vacancies of the year 2008 in the recruitment year beginning from 1.7.2009. Prior to the enforcement of the Rules of 2008, the promotions were regulated by Government Order dated 5.11.1965 and Government Order dated 24.7.2003, by which the names of only those Sub Inspectors were called for consideration, who had completed ten years of service. All the petitioners appointed with similarly situate Sub Inspectors by direct recruitment in the year 2001 had become eligible under the Rules of 2008, to be considered for promotion and to appear in the examinations for selection. They were deprived of their right to be considered for promotion by the First amendment, to the Rules notified on 2.4.2009. The State has acted with malice, 'in law', by excluding the period of probation of two years and thus making all the petitioners ineligible for promotion. They could not compete for these vacancies in the recruitment year 2010, as by the second amendment to the Rule notified on 19.1.2010 the eligibility criteria has been changed by providing experience of seven years instead of five years. The petitioners, therefore, cannot be considered for promotion to the 1114 vacancies of the year 2008 unless the obstacle, created by the First amendment to the Rule notified on 2.4.2009 by which it excludes two years' period from eligibility of five years, is struck down.;