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State of Uttar Pradesh Vs. Ambardekar (H.S.) - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1966)IILLJ368All
AppellantState of Uttar Pradesh
RespondentAmbardekar (H.S.)
Excerpt:
- - 5. a good deal of confusion has been created in this case by the failure to distinguish clearly between the uttar pradesh police service and the uttar pradesh police force. sometimes the words 'uttar pradesh police force' are used in the more limited sense of 'regular police 'comprising all the regular grades of inspector-general, deputy inspectors-general, superintendents of police, assistant superintendents of police, deputy superintendents of police, inspectors, sub-inspectors, head constables and constables, but excluding special cadres like the provincial armed constabulary-vide pares. 11. we are, therefore, satisfied that the petitioners cannot claim that their seniority in the uttar pradesh police service (i......so far as it fixed the seniority of the two petitioners, avadesh kumar and h.s. ambardekar, in the uttar pradesh police service by placing them below the officers promoted or directly recruited to that service in the year 1955.2. one of the petitioners, h. s. ambardekar (the respondent in special appeal no. 134 of 1964), was appointed in october 1947 as adjutant; in the wing of the uttar pradesh police force then known as the military police, the designation of which was changed in december 1947 to provincial armed constabulary; while the other petitioner, avadesh kumar (the respondent in special appeal no. 135 of 1964), was similarly appointed as adjutant in the soms force in february 1948. when the provincial armed constabulary, was recognized under the uttar pradesh provincial armed.....
Judgment:

W. Broome, J.

1. These two connected special appeals have been filed by the State of Uttar Pradesh against a decision given by Seth, J., on 3 January 3964, when by a common judgment he allowed two writ petitions and quashed the State Government's order dated 16 February 1958 in so far as it fixed the seniority of the two petitioners, Avadesh Kumar and H.S. Ambardekar, in the Uttar Pradesh Police Service by placing them below the officers promoted or directly recruited to that service in the year 1955.

2. One of the petitioners, H. S. Ambardekar (the respondent in Special Appeal No. 134 of 1964), was appointed in October 1947 as Adjutant; in the wing of the Uttar Pradesh Police Force then known as the Military Police, the designation of which was changed in December 1947 to Provincial Armed Constabulary; while the other petitioner, Avadesh Kumar (the respondent in Special Appeal No. 135 of 1964), was similarly appointed as Adjutant In the soms force in February 1948. When the Provincial Armed Constabulary, was recognized under the Uttar Pradesh Provincial Armed Constabulary Act (10 of 1948), which took effect from December 1948, both the petitioners were made to sign the statement incorporated in the schedule to that Act, and they claim that thereby they were given an assurance that their services in the Provincial Armed Constabulary would count for promotion in the Uttar Pradesh Police. On 4 April 1956 in pursuance of the Government's decision to include the superior gazetted posts in the Provincial Armed Constabulary in the regular Police Force, the petitioners were subatantively appointed as Deputy Superintendents of Police in the cadre of the Uttar Pradesh Police Service with effect from 9 November 1955, ' subject to their seniority inter se and vis-a-vis other persons appointed to this service in accordance with the Uttar Pradesh Police Rule being determined at a later date.' They claimed that by virtue of the assurance given to them in 1948 they were entitled to have their services in the Provincial Armed Constabulary from the year 1948 taken into account when their seniority was fixed; but on 15 February 1958 the impugned order was passed, declaring that although they would be deemed to have been appointed to the Uttar Pradesh Police Service from the date they commenced service In the Provincial Aimed Constabulary, that service in the Provincial Armed Constabulary would be treated as having been in an officiating capacity only and their seniority in the gradation list of the Uttar Pradesh Police Service would be fixed in accordance with the date of their substantive appointment in the service, viz., 9 November 1955. The result, according to the petitioners, was that their chances of promotion from the Uttar Pradesh Police Service to the Indian Police Service were reduced to vanishing point particularly in view of the provision for due regard to seniority in Rule 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955.

3. The learned single Judge has held that the petitioners were substantively appointed to the Uttar Pradesh Police Force when they were recruited as Adjutants and that consequently, under Rule 21 of the Uttar Pradesh Police Service Rules, 1942, their seniority is to be determined according to the dates of those initial appointments and that in any case, in view of the assurance incorporated in the statement given in the schedule of the Uttar Pradesh Provincial Armed Constabulary Act, they are entitled to count their eervice in the Provincial Armed Constabulary for the purpose of fixing their seniority in the Uttar Pradesh Police Force. He accordingly concludes that their seniority should be fixed with reference to their initial appointments in the Provincial Armed Constabulary in 1947 or 1948 and not with reference to their subsequent appointment as Deputy Superintendents of Police with effect from 9 November 1955.

4. On behalf of the appellant-State the learned Advocate-General contends on the contrary that the petitioners were never members of the Uttar Pradesh Police Service prior to 9 November 1955, that the statement in the schedule to the Uttar Pradesh Provincial Armed Constabulary Act confers no rights enforceable in law, that the assurances mentioned in that schedule do not apply to the petitioners at all and that even if they be taken to apply, they have been fully implemented in the impugned order.

5. A good deal of confusion has been created in this case by the failure to distinguish clearly between the Uttar Pradesh Police Service and the Uttar Pradesh Police Force. The ' Uttar Pradesh Police Force ' in its widest sense comprises all branches and grades of police employed in the police establishment of Uttar Pradesh (cf. Section 2 of the Police Act, 1861) and would also include officer of the Centrally recruited Indian Police Service who are serving in this State. Sometimes the words 'Uttar Pradesh Police Force' are used in the more limited sense of ' regular police ' comprising all the regular grades of Inspector-General, Deputy Inspectors-General, Superintendents of Police, Assistant Superintendents of Police, Deputy Superintendents of Police, Inspectors, sub-inspectors, head constables and constables, but excluding special cadres like the Provincial Armed Constabulary-vide Pares. 396, 397 and 398 of the Police Regulations. The Uttar Pradesh Police Service, on the other hand, has an extremely limited meaning, being confined to persons governed by the Uttar Pradesh Police Service Rules, 1912, i.e., Deputy Superintendents of Police.

6. Further confusion has arisen from repeated references made in the course of arguments to the Special Armed Constabulary, with which the present cases have no direct concern. That was a special temporary force created in the year 1942 by Uttar Pradesh Act 5 of 1942 for carrying-out internal security measures, particularly the protection of railways, and intended in the first; place to last for the duration of the war. It was a cadre outside the regular police force and appears to have existed alongside of but distinct from the Military Police, which was a wing of the regular police. By Uttar Pradesh Ordinance 6 of 1948 (published in the gazette of 19 June 1948) the Special Armed Constabulary was absorbed into tile newly created Provincial Armed Constabulary and for the time being the provisions of tha Special Armed Constabulary Act (5 of 1942) were extended to the Provincial Armed Constabulary ; but from December 1948 onwards, when the Uttar Pradesh Provincial Armed Constabulary Act (40 of 1948) came into force, the Provincial Armed Constabulary wag governed by this latter Act and the Special Armed Constabulary Act stood repealed. Neither of the two petitioners clears to have been recruited to the Special Armed Constabulary: their claim (which is not denied In the counter-affidavit filed on behalf of the State) is that they were recruited to the Military Police (known from December 1947, as the Provincial Armed Constabulary); and when the Provincial Armed Constabulary Act came into force they signed the statements incorporated in the schedule of that Act.

7. An attempt has been made to argue on behalf of the petitioner-respondents that Adjutants in the Provincial Armed Constabulary were equivalent to Deputy Superintendents of Police, in the regular police force; but we cannot accept this contention as their scales of pay were quite different (Deputy Superintendents of Police starting from Rs. 250 and rising to Re. 850 while Adjutants Started from Rs. 300 and rose to Rs. 500 only, plus a special pay of Rs. 75 per month). Adjutants were recruited to the Provincial Armed Constabulary and formed part of that cadre, which was quite distinct from the cadre of Deputy Superintendents of Police that was included in the regular police. Learned Counsel for the petitioners have tried to rely on the fact that Adjutants and Deputy Superintendents of Police have been included under one head in certain gradation lists ; but these lists obviously have no statutory force and cannot change the rights and status of the persons enumerated therein. It was only in 1954 that the Government decided to create additional posts in the Uttar Pradesh Police Service and to include therein 17 Assistant Commandants, 9 Adjutants and 2 Staff Officers from the Provincial Armed Constabulary (vide the Government order dated 4 August 1954filed as annexure to the petitions), and until that decision was implemented in 1956, no Adjutant of the Provincial Armed Constabulary could claim to he equivalent to a Deputy Superintendent of Police.

8. Bearing in mind the distinctions drawn above, we now turn to a consideration of the Provincial Aimed Constabulary Act, which is the main foundation of the petitioner's case. Under Section 4 of the Act every person appointed to be an officer of the Provincial Armed Constabulary was obliged on enrolment to sign the statement set forth In this schedule, which runs as follows:

At no time during the period of your Service in the Provincial Armed Constabulary, will you be entitled to obtain your discharge at your own request. On the liquidation of the force or of the company in which you may, for the time being, be prated you will be discharged from the Provincial Armed Constabulary and, unless you were already a confirmed member of the United Provinces Police Force before joining the Provincial Armed Constabulary, from the United Provinces Police also. (You will, however, be eligible for re-enlistment in the United Provinces Police.) In the event of your continuing in the United Provinces Police or your re-enlistment therein, services in the Provincial Armed Constabulary will count for promotion and pension in the United Provinces Police.

The learned Advocate-General has pointed out that, this schedule visualizes three classes of officers to be recruited to the armed constabulary, viz., confirmed members of the Uttar Pradesh Police, unconfirmed members of the Uttar Pradesh Police and outsiders not already in the police; and that the assurance given in the concluding sentence relates only to the first two categories, i.e., confirmed members of the Uttar Pradesh Police (who may be described as ' continuing in the Uttar Pradesh Police ' after the disbandment of the Armed Constabulary) and unconfirmed members of the Uttar Pradesh Police (who alone can be eligible for 're-enlistment' in the Utter Pradesh Police). Persons recruited to the constabulary who were not already in the Uttar Pradesh Police could neither 'continue' in the Uttar Pradesh Police nor could they be 're-enlisted' therein, for both these terms connote previous membership of the Uttar Pradesh Police at some earlier point of time; and consequently the assurance given in the concluding sentence could not apply to such fresh recruits. On this basis it is argued that the present petitioners are not entitled to take advantage of this assurance, since they were new entrants recruited from outside the personnel of the Uttar Pradesh Police. This argument, however, is of doubtful validity, for it is an admitted fact that before the petitioners became subject to the Provincial Armed Constabulary Act and were required to sign the statement incorporated in the schedule thereto, they had already been recruited to the Military Police, which, as pointed out earlier, was a wing of the regular police force.

9. Nevertheless, on other grounds we do find that there is force in the contention that the schedule cannot be invoked by the petitioners in the present cases. It is clear from a straightforward reading of this schedule (excluding the opening sentence) which deals with an entirely different matter that the assurance about counting services in the Provincial Armed Constabulary for promotion and pension in the Uttar Pradesh Police was only intended to take effect in the case of persons discharged from the Provincial Armed Constabulary, ' on the liquidation of the force or of the company in which you may for the time being be serving.' There is nothing to suggest either that there has been any such liquidation of the Provincial Armed Constabulary or that the petitioners have been discharged therefrom ; and such being the case, no occasion for implementing the assurance Incorporated in the schedule can be said to have arisen.

10. Furthermore, It has. been contended with some force by the learned Advocate-General that even though the petitioners are not legally entitled to calm the benefit of the assurance contained in the schedule to the Provincial Armed Constabulary Act, they have actually been granted its benefit, as a matter of grace, in so far as promotion Is concerned, by the impugned order of 15 February 1958, the relevant portion of which runs as follows:

It has been decided that all the 16 officers of the Provincial Armed Constabulary, who have been absorbed permanently in the Uttar Pradesh Police Service (vide Government Notification No. 383/II-A-597/1952, dated 14 April 1956) should be deemed to have been appointed to the Uttar Pradesh Police Service In an officiating capacity from the date they commenced service in the Provincial Armed Constabulary but they should be given the seniority in the gradation list of the Uttar Pradesh Police Service officers from the date of their substantive appointment in the service, viz., they will be placed below the last promoted or directly recruited officer of the 1955 batch. The above arrangement will, under Para. 4 of the Indian Police Service (Appointment by Promotion) Regulations, 1955, make these 16 officers eligible for consideration for promotion to the Indian Police Service provided they have put in more than eight years of service in all including their officiating service in the Uttar Pradesh Police Service.

In actual fact, there could be no question of the petitioners (and other officers of the Provincial Armed Constabulary who were similarly absorbed in the Uttar Pradesh Police Service) officiating In posts in the Uttar Pradesh Police Service from 1948, because no such posts existed for them until the cadre was enlarged in accordance with the decision taken by Government In 1954 (annexure D to the petitions). But by a legal fiction introduced by the above-quoted order these posts were deemed to have been in existence and to have been filled by the petitioners in an officiating capacity. The result thereby achieved is that the petitioners have become eligible for promotion to the Indian Police Service under Clause 4 of the Indian Police Service (Appointment by Promotion) Regulations, 1955, which provides:

Conditions of eligibility for promotion.- Each committee shall meet at intervals ordinarily net exceeding one year and consider the cases of all members of the State Police Service who, on the first day of January of the year, had completed not less than eight years of service (whether officiating or substantive) in a post of Deputy Superintendent of Police.

In this way the petitioners have been enabled to count their services in the Provincial Armed Constabulary for promotion in the Uttar Pradesh Police and the assurance given in the schedule to the Provincial Armed Constabulary Act (even though not legitimately claimable or legally enforceable by them) has been implemented for their benefit.

It is important to note that the assurance given in the schedule is merely to the effect that ' services in the Provincial Armed Constabulary will count for promotion and pension in the Uttar Pradesh Police '; it does not say anything about seniority. Seniority is no doubt one of the factors to be taken into account when considering claims for promotion, but is by no means the sole consideration nor even the most important. The only promotion in which the present petitioners are interested is promotion from the rank of Deputy Superintendent of Police to some post in the Indian Police Service; and Clause 5 (2) of the Indian Police Service (Appointment by Promotion) Regulations, 1955, shows that selection for inclusion in the list of candidates to be forwarded to the Union Public Service Commission for the pursuance for the purpose of such promotion is to be ' based on merit and suitability in all respects with due regard to seniority.' Thus merit and general suitability are the main requirements for promotion to the Indian Police Service and seniority is only a subsidiary consideration.

11. We are, therefore, satisfied that the petitioners cannot claim that their seniority in the Uttar Pradesh Police Service (i.e., in the cadre of Deputy Superintendent of Police) should be fixed on the basis of their service as Adjutants in the Provincial Armed Constabulary ; even if the assurance given in the schedule to the Provincial Armed Constabulary Act be held to confer on them an enforceable right, it was only with regard to promotion; and for the purposes of promotion they have been allowed to count their services in the Provincial Armed Constabulary inasmuch as they have been made eligible for promotion to the Indian Police Service under Clause 4 of the Indian Police Service (Appointment by Promotion) Regulations, 1955, by the legal fiction that they are now deemed to have been officiating in the Uttar Pradesh Police Service from the date of their recruitment to the Provincial Armed Constabulary. We are further of opinion that the schedule to the Provincial Armed Constabulary Act confers no enforceable right on the petitioners, as the contingency on the happening of which that assurance was to become operative has never occurred.

12. These special appeals are accordingly allowed with costs, the orders of the learned single Judge being set aside and the writ petitions dismissed.


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