Aloke Chakraborti, J.
1. This writ petition was heard along with several writ petitions involving similar points.
2. As regards selection for promotion to the post of Sub-Inspectors from constables and head constables, complaint has been made by the present petitioners against not holding selection each year and clubbing of vacancies of several years, violation of provisions of U. P. Government Servant Criterion for Recruitment by Promotion Rules. 1994 (hereinafter referred to as Promotion Rules of 1994). Further challenge is against the test held by the authorities known as I. T./P. T. test as regards constitution of the Boards as also their functioning.
3. Heard Mr. R. B. Singhal, Mr. Vinod Sinha, Mr. K. M. Mishra, Mr. C. B. Rai and other learned counsel appearing in various connected matters and Mr. P. M. N. Singh, learned Additional Advocate General assisted by Mr. A. K. Mehrotra, learned standing counsel for the respondents.
4. With regard to the first point of the petitioners, it has been contended that the last selection for promotion to the post of Sub-Inspectors was held in the year 1991 and after eight years, the present selection process has been initiated in the year 1999 clubbing all the vacancies and making the candidates to contest amongst large number of vacancies. It is contended that such clubbing of vacancies and selection on that basis has been deprecated in various cases and reliance was placed on the judgment in the case of State of Uttar Pradesh v. Smt. ShakuntalaShukla, (1999) 3 UPLBEC 1702 ; Syed Khalid Rizvi v. Union of India, 1993 Supp (3) SCC 575 and Union of India v. Vipin Chand Hira Lal, 1996 (6) SCC721.
5. Relying on the aforesaid law. It has been contended that the vacancies are required to he filled up every year and such vacancies cannot be clubbed together for selection after a gap of long period of eight years particularly when no acceptable reason has been assigned for such delay.
6. It is contended that the Government order dated 29.10.1965 (Annexure-3 to the writ petition) provided for the procedure for filling up such vacancies and the same clearly provided for selection each year and it has been provided therein that notice should be issued for such selection in January each year laying down the rules of eligibility and inviting eligible candidates to apply for selection. It was stated that the Government order dated 27.2.1999 at Annexure-5 to the writ petition was issued for providing the procedure for present selection but the same did not amount to repealing the Government order dated 29.10.1965 either expressly or impliedly and there was no contrary provision as regards the frequency of holding such selection. Law has also been referred to in this connection as decided in the case of Municipal Council, Palai v. T. J. Joseph, AIR 1963 SC 1561.
7. The law as decided in the case of Radhey Shyam v. Union of India, 1997(1) SCC 60, has been also referred to.
8. The second contention of the petitioners is that in respect of the present selection, provisions were made by the Government order dated 29.10.1965 which has since been superseded by the aforesaid Promotion Rules of 1994 issued under Article 309 of the Constitution of India to the extent the same enforced provisions contrary to any provision contained in the said Government order. It is contended by the petitioners that the Government order dated 29.10.1965 and 27.2.1999 aremere administrative instructions and, therefore, the field occupied by them did not amount to 'occupied field' sufficient to create a bar against Rules framed under Article 309. It has further been contended that Section 2 of the Police Act did not authorise the authorities to issue any Government order under the said provision. The 'determination', if made under the said Section 2, it has to be made according to the provision of Section 46 and, therefore, there being admittedly, no publication in the official Gazette in respect of any of the said Government orders, the same remain mere administrative instructions and it did not occupy the field at all. In support of such contention, reliance has been placed on the judgment in the case of Shakuntala Shukla (supra), Municipal Board Pushkar v. State Transport Authority, Rajasthan, AIR 1965 SC 458 and the case of Dr. Archana Rohatagi v. State of U. P., 1985 UPLBEC 809.
9. Relying on the admitted facts that there was no publication in the official Gazette of any of the said Government orders of 1965 and 1999, it is stated that only provision of Rule 4 of the aforesaid Promotion Rules of 1994 will apply. But, as the said Rule 4 provides for procedure and does not deal with frequency of holding selection. It is stated by the petitioners that the provision for yearly selection as made in the Government order of 1965 will continue to be existing.
10. The next contention of the petitioners is that constitution of the Board for holding I.T./P.T. test was bad as it was not in consonance with the requirement of the provisions contained in the Government order dated 27.2.1999. It is stated that the defect is such that the entire selection process upto this stage held by the said Board has been vitiated and there is no provision to cure the said defect.
11. Reference has been made to the statement made in paragraph Nos. 16, 17 and 18 of the writ petition and paragraph Nos. 13 and 14 of the counter-affidavit. It has been stated that these facts read in thebackground of procedure for constitution of the Board as contained in paragraph No. 10 of the Government order dated 27.2.1999 and the details of the procedure provided by the Circular dated 13.3.1999 (Annexure-6 to the writ petition) clearly indicates grossest violation of procedures and arbitrary action on the part of the authorities. It is contended that the constitution of the Board was not according to the prescription. Moreover all the members of the Board were not functioning together as a Board but individual members examined performance of individual candidates which has never got sanction by any prescription. Inclusion of one Mr. Majibullah Khan in one of the Boards has been taken serious exception to as he being not a Gazetted Officer, is not entitled to take part in the Board as procedure provided in Circular dated 13.3.1999 permits only Gazetted Officer to constitute the Board.
12. Law has also been referred to as decided in the case of Pritpal Singh v. State of Haryana, 1995 (1) UPLBEC 256 ; Raj Kumn v. Shaktiraj, AIR 1997 SC 2110 : State of Rajasthan v. Ram Saran, AIR 1965 SC 1361.
13. Learned counsel for the respondents has contended that clubbing of vacancy Itself is not illegal. It is contended that the judgment in the case of Shakuntala Shukla (supra) has followed the case of Syed Khalid Rizvi (supra) and Vipin Chand Hira Lal (supra) without appreciating that those two judgments were passed in different factual context and upon interpretation of Rules applicable in the said case. Specific provision for holding yearly selection in the Rules concerned in those cases had been interpreted in the context of consideration whether earlier select list for promotion would remain alive. It is contended that the same is not the question involved herein. In support of such contention reference was made to the judgment in the case of Civil Appeal No. 16769-16771 16769-16771 . Nepal Singh Tanwar etc. v. Union of India and others, etc. decided on 9.12.1996.
14. The next contention of the respondents is that in the present case selection could not be held yearly only because of interim order passed in various writ petitions and specific reference was made to the interim order dated 29.6.1994 in Writ Petition No. Nil of 1994 and final judgment in Writ Petition No. 37064 of 1996. Head Constable Ram Darsh Rai decided on 12.11.1998, in this connection, law has been further relied on as decided in the case of Jammu and Kashmir Public Service Commission u. Dr. Narendra Mohan, AIR 1994 SC 18O8. It has further been contended that on Issuance of Government order dated 27.2.1999 the earlier Government order of 1965 ceased to exist and, therefore, there is no provision for yearly selection on which the petitioners can raise objection as regards clubbing.
15. With regard to the question as to which rule will apply. It has been contended by the respondents that determination under Section 2 should be by the State Government by issuing orders under the said section or by framing Rules. It is contended that if orders are issued by Government under Section 2 of the Police Act, the same does not require a publication in the official Gazette like Section 46. There is no provision for such publication in Section 2. It is stated that the requirement of publication in the official Gazelle whenever was felt necessary by the Legislature specific provision has been made in the said Act as contained in its Sections 7, 12, 15, 34 and 46. Further it has been contended that when law does not require specifically about publication in the official Gazette, the same can not be presumed. Even Rules framed under Article 309 of the Constitution of India have been held to be valid without publication in official Gazelle and in support of such contention reliance, was placed on the judgment in the case of Prahlad Singh v. State of U. P., 1976 SLR 752.
16. It has been contended that when statutory order issued in the year 1965 was prevailing the Rules framed under Article 309 being the Promotion Rules of 1994 will not beapplicable to the police personnel as field was already occupied.
17. Further reference has been made to the law as decided in the case of Mohan Choudhary v. Chief Commissioner, AIR 1964 SC 173 : Viswanbhar Dayal v. State of U. P., 1982 (1) SCC 39 and Mohan Karan v. State of U.P., JT 1998 (2) SC 521.
18. With regard to inclusion of Sri Majibullah Khan in the Board, it has been contended that such inclusion was required as no Gazetted Officer was available to represent 'S.C., O.B.C. and minority community'. Moreover, constitution of Board only by Gazetted Officer has been provided in the Circular dated 13.3.1999 and this being a mere administrative instruction issued by the Deputy Inspector General of Police and not by the State Government Itself, such infraction will not create a right in favour of the petitioner and will not amount to an irregularity justifying interference by the writ court with the selection.
19. With regard to I.T./P.T. test itself, learned Additional Advocate General states that such tests are undergone by police personnel at every stage periodically and it is nothing competitive in nature and, therefore, clubbing of vacancies do not affect any of the candidates and performances at such stage is required irrespective of age and gender.
20. With regard to the constitution of Board, it has been stated that neither in the Government order dated 29.10.1965 nor in the Promotion Rules of 1994, any provision has been made for constitution of the Board at the preliminary level of the test and only at the final stage, which has not yet taken place, constitution of such Board have been contemplated. Therefore, at the preliminary stage there could not be any irregularity on the ground of any defect in the constitution of the Board. The said Circular dated 13.3.1999 cannot be treated as a statutory order under Section 2 of the Police Act as only State Government could issue any order under the said Section 2 andnot the Deputy Inspector General of Police.
21. With regard to the contention that violation of any such administrative order will not entitle the petitioners any relief, law has been referred to as decided in the case of Union of India v. S. L. Abbas, AIR 1993 SC 2444.
22. On behalf of respondent, it has been contended that the judgment of Division Bench in the case of Shakuntala Shukla (supra) has been stayed by the Apex Court and the proceeding is pending there. Therefore, the said judgment will not govern this proceeding so long the stay order continues.
23. Learned counsel for the petitioner in reply contends that the stay order relied on by the respondents withholding selection do not make out a case showing any acceptable explanation for not holding selection for long eight years as 1994 stay order was valid only for a period of one year and final judgment relied on by the respondents does not indicate existence of any stay order in that matter.
24. Learned counsel for the petitioner contended that the stay order by a superior court only prevents further action on the basis of the judgment and the law decided therein continues to hold good until it is quashed by the superior court and in support of such contention reliance was placed on the judgment in the case of M/s. Shree Chamundi Mopeds Ltd. v. Church of South India Trust, JT 1992 (3) SC 98.
25. After considering the aforesaid contentions of the contesting parties, as I find that the second contention raised by the petitioners is on the applicability of Rules, the same is considered here first.
26. Admittedly, there is a Government order dated 29.10.1965 in respect of promotion to the post of Sub-Inspectors. Again, admittedly, the Promotion Rules of 1994 were framed under Article 309 of the Constitution of India and the samecan be applicable to the police personnel provided the field is not occupied already. The contention of the respondents is that the said Government order was issued under Section 2 of the Police Act and, therefore, the same is not merely an administrative Instruction but a statutory order. Though, question of law have been raised on this aspect, but first it is to be found as to whether on facts any case has been made out that the said Government Order was issued under Section 2 of the Police Act. In the writ petition this Government. Order has been referred to in paragraph Nos. 9 and 10 and a copy has been annexed as Annexure-3. In the aforesaid paragraph 10 the petitioners have contended that the said Government Order 'has not been notified in the Gazette neither It is a statutory rule which has been framed under Section 46(2) read with Section 2 of the Police Act.' On this, question learned Additional Advocate General relied on the statement made in paragraphs 3 (f) and 9 of the counter-affidavit. None of these paragraphs contain a statement that the said Government Order was issued in exercise of the power under Section 2 of the said Act, The said paragraphs have dealt with the general proposition of law. In paragraph 7 of the counter-affidavit the contentions made in paragraph Nos. 8. 9 and 10 of the writ petition have been dealt with. Therein it has been contended by the respondents that 'the Government Order dated 28th October. 1965 has become obsolete and present selection is based on the basis of Government Order dated 27th February, 1999.' Therefore, it appears that the said Government Order has not been claimed to have been issued under Section 2 of the Police Act. The Government Order itself does not mention the source of power which was exercised when the said Government Order was issued. Therefore, the necessary conclusion is that the said Government Order dated 29th October, 1965 is mere an administrative instruction as nothing has been shown to reach a conclusion that the same was issuedunder Section 2 of the Police Act. In absence of any pleading whatsoever, such questions of facts cannot be decided in favour of the respondents, who raised the said plea.
27. With regard to the Government order dated 27.2.1999 also. I find that the reference thereof was made in paragraph No. 12 of the writ petition and a copy thereof has been annexed as Annexure-5 to the writ petition. The said paragraph has been dealt with in paragraph 9 of the counter-affidavit. In this paragraph 9 no claim has been made that the said Government order was issued under Section 2 of the Police Act. On behalf of respondents no pleading has been shown to the Court that such a claim at all was made. Therefore, when admittedly. Promotion Rules of 1994 were framed under Article 309 of the Constitution of India, neither its enforcement was prevented by the Government order dated 29.10.1965 nor the application of the Rules was curtailed by the Government order of 1999 to the extent the subject-matter is governed by the said Rules.
28. Therefore, it appears that such selections were governed by the Government order dated 29.10.1965 as even if it is in the nature of executive instruction, it has the force of law in the absence of any statutory Rules to the contrary. On enforcement of Promotion Rules of 1994 the same become applicable to the extent it contained a provision contrary to the provision contained in the existing Government order of 1965. The enforcement of another executive instruction as contained in the Government order of 1999 could not prevent the application of provision of present rule, The applicability of the aforesaid Promotion Rules of 1994 to police personnel was upheld by the Division Bench in the case of Shakuntala Shukla (supra). Though application of law of said judgment has been disputed by the learned Additional Government Advocate in Mew of stay order granted by the Apex Court, the learned counsel for the petitioners contended that such slay order will not prevent the application of law itself and stay order will not beequivalent to the order quashing the judgment and in support of such contention reliance was placed to the judgment in the case of M/s. Shree Chomundi Mopeds Ltd. (supra) and it appears that such contention has force.
29. On the first question raised by the petitioners as regards holding of selection each year and against clubbing of vacancies of several years, it appears that yearly selection has been provided in the Government order dated 29,10.1965. Admittedly, no selection has been held after 1991. The defence of the respondents is that the selection could not take place because of the various Interim orders passed in various proceedings and reference was made to two of the orders specifically. Though this has been disputed by the petitioners but sufficient material has not been brought to contradict such contention. In such circumstances, I do not hold that there was no reason for not holding selection during the said period.
30. But, in view of the facts that the Government order of 1965 provided for selection each year and even the respondents admitted that the same was prevailing till enforcement of Promotion Rules of 1994, the respondents should have taken the vacancies of each year separately and should have considered the candidates eligible for such consideration in particular year only. All vacancies should not have been clubbed together. Such finding was also arrived at in the judgment in the case of Shakuntala Shukla (supra).
31. Further contention was raised by the petitioners that by clubbing the vacancies the candidates have been made to participate in tougher competition. On behalf of the respondents, it has been stated that I.T./P.T. test did provide for testing performance of the candidates individually and there is no aspect of competition at all. In a writ proceeding with the present pleadings, I do not find that there issufficient material on this aspect to enable the writ court to decide the same.
32. With regard to third point taken by the petitioners as regards the constitution of the Board for holding I.T./P.T. test. I find that the said Promotion Rules of 1994 do not contain any provision with respect to such provision as contained in the Government order dated 27.2.1999 should have been complied with.
33. On behalf of the respondents, it has been contended that this I.T./P.T. test is at the preliminary Stage and constitution of Board, as referred to by the petitioners, is required at the stage of main examination. But, a perusal of the paragraph 1 of the Government order dated 27.2.1999, strongly relied on by the petitioners, indicates that such selection Board is for the entire selection including the preliminary stage. A reference to I.T./P.T. test has been specifically made in the said paragraph No. 1 and, therefore, for such I.T./P.T. test. Board was required to be constituted according to the said provision. Instances shown by the petitioners indicate that there were violation in constitution of such Board. Respondents have not disputed the same on facts and only defence taken there as regards preliminary stage being not acceptable, constitution of such Board is held to be in violation of said prescription.
34. With regard to functioning of the Board also, it is found that the complaint of the petitioners is that at various stages of I.T./P.T. test each member of the Board tested the performance of the candidates in group and, therefore, it is not a function of the Board as such. This contention has not been disputed on facts and in paragraph 15 of the counter-affidavit contention has been made as follows :
'The procedure followed by the Board was that the Member of, theBoard amongst themselves divided several items and one Member was allocated to test all the candidates for one item, and thus total uniformity was followed and there is no question of any arbitrariness.'
35. Therefore, it is admitted even by the respondents that at various stages, all the members of the Board did not function together and performance has been tested by individual members of the Board. This does not satisfy the requirement of law and the right of the petitioners to get their performance tested by the Board, has been affected.
36. In view of the aforesaid, both the constitution of the Board and its functioning being in violation of requirement of law, the selection in respect of I.T./P.T. test was vitiated.
37. It has been contended by the petitioners that the Government order of 1965 prescribed a requirement of the Board to hold 'Simple Drill Physical Training Examination' of all candidates to weed out those who are physically unfit and, therefore, holding of I.T./P.T. test as prescribed in Circular dated 13th March. 1999 at Annexure-6 to the writ petition or in the Government order dated 27.2.1999 was too harsh and the same was not in consonance with requirement of 'Simple Drill Physical Training Examination' under the Government order of 1965 or the basis provided by Promotion Rules of 1994 as 'seniority subject to rejection of the unfit'. On behalf of respondents, it was stated that the tests held in the I.T./P.T. test are all being periodically held in respect of police personnel at different levels and it is nothing new. On this contention, I find that there is no sufficient material disclosed on pleadings on which contention of the petitioners can be accepted by this Court.
38. In view of aforesaid findings, the writ petition is allowed. The result of the I.T./P.T. test in respect of the present selection is quashed. The respondents are directed to hold selection in the light of the observations made above.