Tarun Agarwala, J. - (1.) -An advertisement appeared in the newspaper inviting applications from the public for appointment to the post of a Sub Inspector (Civil Police) for the session 1987-88. The petitioner applied and qualified for the interview in which he was also declared successful. However, the petitioner was prevented from being sent for training at the Police Training College, Moradabad, whereas other persons of his batch were sent for training and thereafter were posted at various police stations in the State of U. P. Since the petitioner was discriminated, he and other similarly situated persons filed Writ Petition No. 18939 of 1989 before this Hon'ble Court. This petition was allowed by a judgment dated 15.3.1991. This Court held that the remaining 39 vacancies for the session 1987-88 shall be filled up from the remaining candidates of the Select List from Sl. No. 414 onwards. The operative portion of the judgment is quoted herein : "All these writ petitions are therefore disposed of directing the respondents to fill up the aforesaid 39 vacancies from the residuary candidates who are placed next to the selected candidates in the selection list starting from serial No. 414. The respondents will offer to all the candidates 'starting from serial No. 414 upto last petitioner of all the categories in the selection list and offer the appointment to them strictly in accordance with the merit list subject to medical fitness and cut off percentage in respective categories. No order as to costs."
(2.) IT further transpires that a special leave petition was preferred by the State of U. P. before the Supreme Court of India which was dismissed by a judgment dated 16.9.1991. Inspite of the dismissal of the special leave petition, the petitioner was not appointed and has compelled to file a Contempt Petition No. 431 of 1994 in which the Special Secretary (Home) was directed to appear in person. Eventually, a letter dated 27.6.1994 was issued indicating therein that in pursuance of the select list of 1987-88, the petitioner was directed to report for training before the Police Training College, Moradabad, on or before 7.7.1994. The said letter also indicated that the order was being issued in compliance of the orders of the Hon'ble High Court. The petitioner further stated that based on the aforesaid order, he appeared before the Police Training College, Moradabad and after completing his training, was placed as a Sub-Inspector. However, the petitioner was given the placement on the basis of the list prepared in the year 1994 whereas he should have been placed in the select list of the year 1987-88. The petitioner made a detailed representation praying that he should be given the correct placement which remained pending and eventually the petitioner again approached this Court by filing Writ Petition No.53492 of 2000 which was disposed of by a judgment dated 11.12.2000, directing respondent No. 2 to decide the matter by a speaking order within four months. Based on the directions of this Court, the Deputy Inspector General of Police (Establishment) U. P. at Allahabad, respondent No. 2 passed the impugned order dated 12.6.2001 rejecting the claim of the petitioner holding that the petitioner was not entitled to be placed in the list of 1987-88. Consequently, the present writ petition has been filed praying for the quashing of the order dated 12.6.2001, passed by respondent No. 2, and further praying for a writ of mandamus commanding respondent No. 2 to place the petitioner as per his merit in the gradation list of the year 1987-88 and grant all consequential benefits. In the writ petition, the petitioner further contended that one Sunder Singh was not sent for training along with his batchmates. He filed a Civil Misc. Writ Petition No. 9265 of 1985, which was dismissed on 16.3.1990 by the High Court, against which he preferred a special leave petition which was allowed by judgment dated 31.1.1994. The Supreme Court directed the respondents to consider his case for promotion as Sub Inspector and to fix his seniority from the date when his juniors were promoted with all consequential benefits. The petitioner submitted that based on the directions of the Supreme Court, Sri Sunder Singh was placed as a Sub Inspector and was given consequential placement and seniority with retrospective effect, i.e., from the date when his juniors were promoted. On the other hand, the petitioner has been discriminated and has not been placed in the Gradation List of 1987-88. Heard Sri Shashi Nandan, the learned senior advocate assisted by Miss Pooja Agarwal for the petitioner and the learned standing counsel for the respondents.
(3.) LEARNED counsel for the petitioner submitted that as per the judgment of this Court dated 15.3.1991 the petitioner was appointed as a Sub-Inspector for the session 1987-88 from the original merit list prepared by the respondent and therefore, he should be placed in the Gradation List of 1987-88 and should not be placed in the Gradation List of 1994 as is also clear from the letter of the respondents dated 27.6.1994. The petitioner further submitted that in view of Rule 8 (2) of the U. P. Government Servant Seniority Rules, 1991, the petitioner was also entitled to be given the seniority as shown in the merit list. In support of his submission, the learned counsel for the petitioner has relied upon a decision of Surendra Narain Singh and others v. State of Bihar and others, (1998) 5 SCC 246. On the other hand the learned standing counsel appearing for the respondents submitted that since there was no provision of making a waiting list, the petitioner was not selected from the original select list but was appointed subsequently in pursuance of the judgment of the High Court and was placed in the Gradation List of the year 1994 when he was appointed and that he cannot be placed in the Gradation List of the year 1987-88 with retrospective effect. The learned counsel for the petitioner further relied upon paragraph 41 (5) of the U. P. Police Training College Manual which states that the list has to be prepared in the order of seniority determined according to the marks obtained in the final exams. In support of his submission learned counsel further relied upon decision of the Supreme Court in Gujarat State Deputy Executive Engineers Association v. State of Gujarat and others, 1994 SCC (LandS) 1159, in which the Supreme Court held that unless the Government had acted arbitrarily, the High Court could not direct the Government to appoint the candidates from the waiting list in the vacancies of the relevant years.The respondents further submitted that the case of Sunder Singh was different and that the respondents gave him the seniority with retrospective effect on account of the directions issued by the Supreme Court and submitted that the petitioner was not discriminated.;