The Lucknow Bench of the Allahabad High Court has ordered promotion of qualified Class IV employees to the post of workshop head in the UP Radio Police Department.
This promotion has been asked to be done under the rules of UP Police Radio Subordinate Services Rules 2016. The court ordered the completion of process for the vacant posts in the department within three months as much as possible.
A Single Bench of Justice Rajesh Singh Chauhan passed this order on Tuesday, while hearing a petition filed by Mohd Nijamuddin & Others.
“The question to be adjudicated in the writ petitions is that as to whether the promotion on the post of Workshop Hand in Uttar Pradesh Police Radio Branch Headquarters, Lucknow for the vacancies occurring prior to 2016 can be made on the basis of Uttar Pradesh Police Radio Subordinate Service Rules, 2016 or in view of the provisions of Uttar Pradesh Police Radio Subordinate Service Rules, 2015,”
ordered the Court.
In both the writ petitions, the petitioners were initially appointed on the post of Messenger Peon/ Group ‘D’ post from 1989 to 1993.
Later on, all the petitioners were confirmed on such post and have been allowed all service benefits admissible as per law e.g. selection grade, promotional pay scale, benefit of A.C.P. etc.
The U.P. Police Radio Branch of the Police Force, the Governor of U.P. in exercise of powers vested in him under Section 15 of the U.P. Pradeshik Armed Constabulary Act, 1948 promulgated the U.P. Police Radio Subordinate Service Rules, 1982 regulating the appointment and other conditions of service of the posts in the U.P. Police Radio Subordinate Service.
At the time when the Rules were promulgated, according to the then existing provisions of Rule 5 (1) of the aforesaid Rules, the posts of Workshop Hands were to be filled up entirely by direct recruitment.
Further, as per Rule 5 (2) of Rules, the posts of Assistant Operators were to be filled upto the extent of 90% by direct recruitment and 10% by promotion from amongst such permanent Workshop Hands, who had qualified Grade-III Operators Course.
Subsequently, by means of notification dated February 14, 1998, the Governor of U.P. promulgated the U.P. Police Radio Subordinate Service Rules, 1997, whereby Rule 5 (1) of the Rules was substituted by a new rule which provides that the post of Workshop Hand would be filled up to the extent of 75% by direct recruitment and 25% by promotion from amongst such Group ‘D’ employees working in the U.P. Police Radio Branch, who had qualified the High School Examination conducted by the U.P. Board of High School and Intermediate or who had qualified the training course in the trade from a Government recognized Industrial Training Institute which would be useful for the work as a Workshop Hand in the department or any other course recognized as equivalent thereto and had put in five years of service as Group ‘D’ employee.
However, Amit Bose, counsel for the intervener has submitted that by Rule 2 of the Rules, 2016, Rule 5 (a) (ii) of the Rules, 2015 has been substituted by the amending provisions. The effect of substitution of the earlier rule by the subsequent rule is that the old rule is replaced and the new rule is enacted with the result that it has to be treated that the substituted rule was always in existence as against the old rule, which is obliterated from the statute book.
Bose further submitted that in view of the principle of law, once Rule 5 (a) (ii) of the Rules, 2015 was substituted by new Rule, it has to be treated that new law was in force right from the inception.
The argument of the counsel for the Petitioners that the vacancies of the post of Workshop Hand said to have occurred while the original Rule 5 (a) (ii) of the Rules, 2015 was in force have to be filled up as per said rule and not on the basis of substituted rule as inserted under the Rules, 2016 losses all significance and does not deserve any consideration.
A.P. Singh, Senior Advocate submitted that since the vacancies in question were prior to the year 2016, therefore, such vacancies should be filled up through old rules i.e. Rules, 2015 inasmuch as the rule of game cannot be changed during the stage of selection process.
Amit Bose, Senior Advocate, as well as Standing Counsel has reiterated that after the amendment in Rules, 2016 regarding the qualification for the post of Workshop Hand, such qualifications indicated under the Rules, 2015 have lost its efficacy and significance, therefore, the promotion in question should not be made on the basis of Rules, 2015.
Bose also submitted that it is a settled principle of law that a candidate has a right to be considered for promotion on the basis of rules existing on the date of consideration and it is not an absolute proposition of law that old vacancies have to be filled up on the basis of old Rules. The principle of old vacancies to be filled up on the basis of old rules can only apply in case the candidates, who were eligible under the old Rules, were ousted for consideration as a result of the Amended Rules.
In the case, the position is otherwise as under Rule 5 (a)(ii) of Rules, 2015 the candidate possessing only High School Examination without possessing I.T.I. certificates were totally ousted by use of the word ‘and’ between both the qualifications.
“Having heard counsel for the parties and having perused the material available on record, I am of the considered opinion that any selection process initiated pursuant to the advertisement shall be finalized in terms of the existing rules to fill up the vacancies of direct recruitment but the same analogy would not be applied in case of promotion inasmuch as at the time of making promotion, it has to be seen as to what are the mandatory qualifications for the candidates”,
-the Court observed.
“However, one relevant aspect has to be taken into consideration that as to whether such amendment in the qualification by amending the rules is precluding the candidates/employees, who were possessing the requisite qualification as per unamended rules or not. If the amended qualification is precluding those candidates, who were otherwise eligible as per unamended rules, may not be made a sufferer”, the Court said.
“In view of the qualification being prescribed under the Amended Rules, 2016 the candidates, who were qualified as per unamended Rules i.e. Rules, 2015, have not been ousted from the zone of consideration. Therefore, the case of the petitioners may not be said to have been prejudiced on account of Amended Rules, 2016, so their claim that they be considered for promotion strictly in terms of unamended Rules, 2015 is absolutely misconceived,”
-added the Bench.
When the Petitioners are not being ousted on account of Amended Rules, 2016 so far as it prescribes qualification to be promoted on the post of Workshop Hand, then for all other purposes making promotion from Class-IV to Workshop Hand, the provisions of Rules, 2016 shall be taken into account inasmuch as after the amendment in the Rules, 2015 regarding qualification by means of Rules, 2016, such prescription by unamended Rules shall loose all significance and does not deserve any consideration.
Therefore, in view of the facts, circumstances and case laws so cited by the counsel for the parties, I do not find any good ground to direct the opposite parties to fill up the vacancies in the cadre of Workshop Hand occurring prior to the promulgation of Rules, 2016 in accordance with the provisions of Rules, 2015, the Court said.
“Since the qualifications so prescribed under the Amended Rules, 2016 are the same as were prescribed under the very first Rules i.e. Rules, 1982 and the qualification so inserted by means of Rules, 2015 on September 28, 2015 remained in force till October 19, 2016, however, Amended Rules, 2016 the qualifications indicated under such Rules i.e. Rules, 2016 are not ousting the petitioners from the consideration zone of promotion on the post of Workshop Hand and such Rules, 2016 are governing the field for all practical purposes, therefore, the opposite parties are directed to make promotion on the post of Workshop Hand identifying entire existing vacancies in the promotional quota completing such exercise with expedition, preferably within a period of three months thereby promoting all suitable candidates from Class IV post to the post of Workshop Hand strictly in accordance with Rules, 2016. The interim orders, if any, in these writ petitions would be treated to have been merged in the order”
-the Court ordered.
“So far as the prayer in both the writ petitions that vacancies occurring prior to the year 2016 should be filled up on the basis of unamended Rules, 2015 is hereby rejected. However, all the vacancies of Workshop Hand lying vacant in the Department as on today shall be filled up strictly as per the directions made herein above within time so stipulated”
-the Court said while disposing of the petition.