Research › Browse › Judgment

Rajasthan High Court · body

1994 DIGILAW 372 (RAJ)

Jagmal Singh v. State

1994-05-10

N.K.JAIN

body1994
JUDGMENT 1. - By this writ petition, the petitioner seeks to quash his reversion order dated 11.2.94 (Ex. 8) passed by Dy. Inspector General of Police, Jodhpur Range, Jodhpur with all consequential benefits and prays that the respondents be directed to send him for promotion course and make his confirmation. 2. The facts necessary to be noticed for the disposal of this petition briefly stated are that the petitioner was initially appointed as Constable and promoted as head constable in the year 1961 and was promoted as Assistant Sub Inspector in the year 1976 and was regularly selected on 5.11.77. It is alleged that he is the seniormost in the Jodhpur range as per list Anx. 2. It is also alleged that he was promoted on ad hoc basis as Sub Inspector vide order dated 11.2.94 (Ex. 8) he was reverted back from Sub Inspector to Assistant Sub Inspector w.e.f. 19.2.94. Hence, this writ petition.2-A. This Court on 18.2.94 while admitting the case, stayed the operation of the order dated 11.2.94 for four weeks but in the stay petition the date of order was written as 21.2.94 which was later on corrected as 18.2.94. 3. A return was filed on 2.4.94 and in counter the petitioner filed rejoinder on 18.2.94. The non-petitioners also moved an application for vacating the ex parte ad interim order on 1.4.94. 4. As agreed by the learned counsel for the parties, the case has been finally heard. 5. The main contention of the counsel for the petitioner is that he was fully eligible and qualified for promotion to the post of Sub Inspector and was working on ad hoc basis. He has also to his credit a certificate of appreciation dated 29.1.94 (Ex. 3). He has also submitted that the Dy. Secretary, Government of Rajasthan vide Ex. 5 dated 27.6.92 directed to give benefit of Rule 26-A of the Rajasthan Service Rules (R.S.R.) and on the basis of which the petitioner has been granted benefit vide Ex. 6, therefore, once the petitioner has been granted benefit of Rule 26-A of the R.S.R., he is deemed to be regularised, so, no separate order of regularisation is required and the order of reversion is bad. He has relied on Uma Shanker Vyas v. State (W.L.C. (Raj.) 1991(1) 190) and AIR 1991 SC 1607 . 6. Mr. 6, therefore, once the petitioner has been granted benefit of Rule 26-A of the R.S.R., he is deemed to be regularised, so, no separate order of regularisation is required and the order of reversion is bad. He has relied on Uma Shanker Vyas v. State (W.L.C. (Raj.) 1991(1) 190) and AIR 1991 SC 1607 . 6. Mr. Hemant Choudhary learned counsel for the non-petitioners has submitted that the petitioner was promoted purely on ad hoc basis and the term was extended from time to time. He has submitted that the petitioner and like others were granted benefit of regular pay scale by a general order which does not amount to regularisation particularly when the concurrence of the Director General of Police was received only upto 19.2.94 or till the qualifying examination is conducted whichever is earlier vide Anx. R-1 dated 19.10.93 and as the petitioner has failed to pass qualifying the test in the year 1991, 1992 and again in the year 1993, he could not be deemed to have been confirmed and he was rightly sent to his substantive post i.e. Assistant Sub-Inspector. So far as the Exs. 5 and 6 are concerned, Mr. Choudhary submits that Ex. 5 dated 27.6.82 has been issued on the basis of the order of the Tribunal pertaining to head constable who was working on ad hoc basis from the year 1982 by which it has been decided that the benefit of pay fixation under Rule 26-A of the R.S.R. to him and, therefore, the Government directed to give such benefit to the persons who are substantively appointed as also to the persons promoted on urgent temporary basis in terms of Rule 26 of the Rajasthan Police Subordinate Service Rules, 1974 or 1989 and Schedule-I thereto, and Ex. 6 dated 12.2.93 is a general order and in relation to ad hoc employees and that in the event of passing the qualifying test their seniority will be determined from the date of ad hoc promotion. He has submitted that the petitioner has suppressed the fact that he has failed to qualify the test for the last three occasions and the petition deserves to be dismissed on this count alone. He has submitted that the petitioner has suppressed the fact that he has failed to qualify the test for the last three occasions and the petition deserves to be dismissed on this count alone. He has further submitted that the cases cited by the counsel for the petitioner are not applicable to the facts of present case and in Uma Shankar Vyas's (supra), points involved in this petition were not raised. He has relied on AIR 1967 SC 1710, 1994(1) SCC-279 and 1991(1) SCC 455. 7. It is well settled that administrative instructions cannot override the statutory rules, however they can supplement if not inconsistent or if rules are silent. It is also settled that seniority will be determined from the date of initial appointment if it is followed by regularisation in service but where appointment is made on ad hoc basis and not according to rules and made as stop-gap arrangement, officiation in such post cannot be taken into account for considering the seniority. 8. Admittedly, the petitioner was promoted as ad hoc officiating on 14.5.89 under Rule 35 of the Rajasthan Police Subordinate Service Rules, 1989, which says that such temporary promotions come to an end on refusal to concur by the competent authority. Under Rule 35(2) of the Rajasthan Police Subordinate Service Rules, 1989, the petitioner's term was lastly extended vide order dated 19.10.93 (Ex. R-1)) for 4 months or till qualifying examination, whichever is earlier. He has not been confirmed so far. The claim of the petitioner that since he has been given benefit of Rule 26-A of the R.S.R. he should be deemed to be regularised in view of Ex. 5 and 6, to my mind this argument is not tenable for the reason that the petitioner has been given benefit of pay scale only and the benefit of Rule 26-A can be given to a person who is holding promotional post even on temporary or officiating capacity. So, it cannot be construed that by virtue of these orders the condition of passing the qualifying test has been relaxed which even otherwise could not be relaxed without referring it to the R.P.S.C. under Rule 46 of the Rules of 1989, and therefore these documents cannot be of any help to the petitioner. So, it cannot be construed that by virtue of these orders the condition of passing the qualifying test has been relaxed which even otherwise could not be relaxed without referring it to the R.P.S.C. under Rule 46 of the Rules of 1989, and therefore these documents cannot be of any help to the petitioner. That apart these orders are being administrative instructions in nature cannot supersede the rules because as per the Rajasthan Police Subordinate Service Rules, 1989 for substantive and regular promotion, there is a procedure prescribed under the said Rules of 1989. According to Rule 26 of the said Rules of 1989 the posts of Sub-Inspectors are to be filled in 50 per cent by promotion and 50 per cent by direct recruitment and the eligibility conditions are also mentioned and for regular promotion one has to pass the qualifying test. The petitioner who undisputedly promoted on ad hoc basis was required to clear the qualifying test for regular promotion and he attempted three times; in the year 1991, 1992 and again in the year 1993 but remained unsuccessful. In view of this also, the petitioner cannot take any advantage of the documents Ex. 5 and 6. The decision cited by the counsel for the petitioner reported in AIR 1991 SC 1607 is not applicable. The petitioner has been given benefit of regular pay scale and not regularised in the post of Sub-Inspector, so the argument that the petitioner is entitled for seniority from the date of promotion has no substance in the given case, as already stated, the benefit of regular pay scale granted to the petitioner cannot be construed that he has been regularised. Likewise the decision rendered in Uma Shankar Vyas's case (supra) is also not helpful to the petitioner as points involved in this petition have not been raised in that case. 9. Mr. Vyas has next contended that the order of reversion is bad as the same has been passed in violation of principles of natural justice and relied on T.T. Helen v. State (WLR (S) 1993 (Raj.) 134). In the instant case vide Anx. R-1 dated 19.10.93, the petitioner's term on the post of Sub-Inspector was extended for four months or till the qualifying examination is conducted, whichever is earlier. In the instant case vide Anx. R-1 dated 19.10.93, the petitioner's term on the post of Sub-Inspector was extended for four months or till the qualifying examination is conducted, whichever is earlier. Though the petitioner has denied service of any such order upon him but the fact remains is that he appeared in the qualifying test, therefore, it cannot be said that it was not within the knowledge of the petitioner that for regularisation in service he will have to clear the qualifying test otherwise there was no necessity for the petitioner to appear in the test held in the year 1991, 1992 and even in the year 1993 after issuance of Ex. 5 dated 27.6.92 and Ex. 6 dated 12.2.93. In this view of the matter, in my opinion, the question of principle of natural justice does not arise in the given case particularly when the petitioner availed opportunity of appearing in qualifying test but remained unsuccessfully for three times, which has not been denied. Thus, the decision of T. T. Helen's case (supra) is not applicable to the facts of present case. Under these circumstances, the impugned reversion order dated 11.2.94 calls for no interference in the exercise of extraordinary jurisdiction under Article 226 of the Constitution and the writ petition deserves to be dismissed and the interim orders dated 21/18.2.94, 19.4.94 and 21.4.94 are discharged.No other point has been pressed before me. Accordingly, the writ petition has no force, so it is hereby dismissed with no order as to costs.Petition dismissed. *******