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2002 DIGILAW 417 (JK)

Swatanter Kumar Arora v. State Of J. &K.

2002-12-31

T.S.DOABIA

body2002
An order dated 10.1.2001 passed by the Director General of Police, J&K, which purpots to implement the directions given by this Court in Writ petition No: 637/1991, 294/1993 and SWP No:1052/1995 is being questioned, inter alia, on the ground that this order has not given relief to the petitioners in as much as, they were entitled to promotion as Sub Inspectors of Police w.e.f. 7.8.1982 and this factor be taken note of and thereafter the inter se seniority vis-a-vis the direct recruits be fixed in the ratio of 1:3 i.e. one direct and three promotees. Consequential benefits are also being sought. In para "4" of the order which is under challenge, the number of direct appointments and the promotees have been indicated and it has, accordingly, been concluded that in all there were 914 vacancies. It is submitted that there were in all 914 vacancies. However, 321 were given to the direct recruits, and 793 were filled up by promotions. In para "7" of the order it is indicated that the promotees have exceeded the quota of 50:50 and therefore, they are not entitled to any further relief. It is this view expressed by the Director General of Police, which is being questioned in this writ petition. 2. The petitioners submit that their status as Sub Inspectors should first have been seen and for this, they have mentioned the date as 7.8.1982. It is submitted that only after taking note of their status as Sub Inspectors with effect from the above date, further questions were required to be considered. The petitioners have given their service profile in the opening paras of the writ petition, and submit that they came to be appointed as Assistant Sub Inspectors of Police in the month of October, 1975. For this, order Annexure "A" issued in the case of different petitioners has been placed on the record. It is submitted that at the time of their recruitment, the minimum qualification (s) which were prescribed for the said post was Degree Course Part-I. These qualifications were possessed by the petitioners, excepting petitioners No: 10,12, 17,19 and 27. Thereafter, 15.2.1978 is a date referred to by them. It is this date, as per the petitioners, that the posts of Sub Inspectors were supposed to be filled by promotion. At that point of time, SRO No: 104 dated: 15.2.1978 was holding the field. Thereafter, 15.2.1978 is a date referred to by them. It is this date, as per the petitioners, that the posts of Sub Inspectors were supposed to be filled by promotion. At that point of time, SRO No: 104 dated: 15.2.1978 was holding the field. In terms of this SRO, copy whereof has been placed on the record as Annexure "B". 50% of the posts were supposed to be filled by direct recruits and 50% by promotion from the rank of Assistant Sub Inspectors. Annexure "B" i.e. SRO No:104 of 1978 amends Rule 174 of the Jammu and Kashmir Police Rules, and a perusal of the same makes it apparent that the ratio proportion as indicated by the petitioners stands stipulated in the SRO referred to above. Earlier to this, there was no such ratio proportion fixed. This SRO also makes mention of the minimum qualifications, but these are applicable only to direct recruits and not to the promotees. Rule 176 (2) which was substituted, is to the effect that the minimum academic qualification(s) for direct recruitment to the post of Sub Inspector/Inspector shall be Bachelors Degree from any recognized University. This View is being projected with a view to indicate that possession of Bachelors Degree was not a condition precedent for promoting a person from the post of Assistant Sub Inspector to that of Sub Inspector. The petition further contains a recital to the effect that yet another order was issued on 27.7.1979. The ratio proportion of the direct recruits and promotees was changed. This was in the ratio of 40:60. Later on, with effect from March, 1981, the ratio proportion came to be fixed as 25:75. The requisite averments are made in paragraph "7" of the writ petition. So far as this aspect of the matter is concerned, the factual position is not denied by the respondents, but it is submitted that the Government order by virtue of which ratio proportion was re-fixed, is not a statutory rule, and therefore, it cannot change the ratio proportion as fixed in the Statutory Rules. Thus, the fact that Government order was issued, is not being denied, but it is submitted that this Government order though published in the Government Gazette would not have the force of a Statutory Rule. Thus, the fact that Government order was issued, is not being denied, but it is submitted that this Government order though published in the Government Gazette would not have the force of a Statutory Rule. It is, accordingly, submitted that the quota of direct recruits and promotees would be as under the Rules and not in terms of the Government Order, on which reliance is being placed by the petitioners. 3. The petitioners further make a recital of the fact that an Assistant Sub Inspector is eligible for promotion to the post of Sub Inspector and the eligibility criteria, was stipulated in Government Order No:49-F of 1980 issued on 15.7.1980. Para "3" of this order is being relied upon by the petitioner, and this is being quoted, as under : "All the Assistant Sub Inspectors who have completed five years service as Assistant Sub Inspector on the first day of January, of the year, the Departmental Promotion Committee is held shall be eligible to be considered". 4. It is submitted that the aforementioned order was issued in terms of Rules 379 and 399 read with Rule 381 of the J&K Police Rules. According to the petitioners, they had become eligible for the post of Sub Inspector on 1.1.1981. The respondents were supposed to prepare list "E". This was required to be framed in terms of Rules 390 and 391. These rules are relevant and are being quoted below : "390: List-E Promotion of Sub Inspectors : (i) The list of all Assistant Sub Inspector who have been approved by the Inspector General of Police fit for trial in independent charge of a Police station or for specialist posts of the establishment of the Sub Inspectors shall be maintained. Half yearly reports on all men entered in the list maintained under this rule shall be furnished in the form and on the dates prescribed in rule 389 (3); (ii) No Assistant Sub Inspector shall be confirmed in a substantive vacancy in the rank of Sub Inspector unless he has been tested for at least a year as an officiating Sub Inspector in independent charge of a police station." "391;- Publication of list-E in the Government gazette :- List E shall be published annually in the police gazette, if in existence. Names shall be entered in the list in the order of the date of admission, length of police Service, deciding the relative position of Assistant Sub Inspector admitted on the same Rule-399, which pertains to the conditions of the D.P.C. Rule 399 is also relevant and is being quoted below : "399- DPC :- Notwithstanding the previous condition in these rules, the Inspector General of Police may hold oral and/or written test for the eligible officers at the time of making substantive promotion to the rank of Assistant Sub Inspector and above. For this purpose he may set up from time to time a D.P.C. of gazetted Police Officers to be nominated by him. The results obtained by the concerned officer for in these tests will be taken into consideration before substantive promotions are ordered." 5. On the basis of aforesaid Rules, it is submitted :- (i) That all eligible Sub Inspectors were supposed to be brought on list "E"; (ii) That annual reports of all men of the disciplined force entered in the list, should have been furnished; (iii) That list "E" should have been published annually, and the names should have been entered in the list in the order showing dates of appointment; (iv) That the Departmental Promotion Committee was supposed to be constituted and its recommendations should have been given effect to. 6. In Para "13" of the petition it is submitted that the petitioners had become eligible for being included in list "E" on 1.1.1981, but on account of in-action on the part of the respondents, this was not done. As a matter of fact, no Committee was constituted upto 1984. The result thereof was that the petitioners could not be promoted as Sub Inspectors, even though they had become eligible and were entitled to be so promoted in the year, 1981. They submitted various representations. As nothing happened, they preferred writ petitions. Ultimately writ petition No:294/1993 was preferred before this Court. The prayer made therein was that what is stated above i.e. regarding compliance of Rules and Government Order referred to therein be allowed. Reference is being made to judgment of the Division Bench. In the above writ petition, the submissions of the petitioners were noticed. These are noticed in internal page "3" of the judgment. The prayer made therein was that what is stated above i.e. regarding compliance of Rules and Government Order referred to therein be allowed. Reference is being made to judgment of the Division Bench. In the above writ petition, the submissions of the petitioners were noticed. These are noticed in internal page "3" of the judgment. For facility of reference, this is being reproduced below: "(i) that the ratio promotion which was available initially when their claims were to be considered in 1981 should be taken note of and this benefit should be given to them; (ii) that the seniority of the petitioners should be fixed after determining the post which became available to the promotees and if any candidate falling in the category of direct recruit was not entitled to be so adjusted then he should not be allowed to steal a march over them. 7. The further stand of the petitioners that direct recruits and promotees are supposed to be promoted in the ratio of 25:75 was also noticed. Specific mention was made thereof. For facility of reference, what was said in the Division Bench Judgment is being quoted below : "The stand taken by the respondents that the ratio proportion i.e. 25:75 has not been specifically denied in the objections preferred by the State. As indicated above the specific stand of the petitioners is that the ratio proportion maintained for direct recruits and promotees was 25:75. This is so stated in para 13 of the petition. In the objections the reply given to para 13 is as under : "13. In reply to facts stated in para No:13 it is submitted that there is no provision prohibiting direct recruitment to the rank of Sub Inspector. The averments made in the rest of the para are not correct hence denied. There is no substance in the allegations alleged in the para." 8. Thereafter, following directions were given : These writ petitions are accordingly disposed of with a direction to the respondents to; (i) determine the ratio proportion of the direct recruits and promotees; (ii) determine the date from which this quota became available. Thereafter to adjust the direct recruits and promotees in terms of the quota so determined; (iii) their seniority be fixed accordingly." 9. Thereafter to adjust the direct recruits and promotees in terms of the quota so determined; (iii) their seniority be fixed accordingly." 9. Thus, the case of the petitioners is that the ratio proportion between promotees and direct recruits is 75:25 and this ratio has not been adhered to. The stand taken by the respondents is that they have taken note of the directions given by this Court in the Division Bench judgment and have complied with the same in Letter and spirit. It is however, submitted : (i) That the ratio proportion as fixed in the Government orders cannot have the over-riding effect and over-ride the Rules (see para "7" of the reply) (ii) The quota of 50:50 as projected in para "8" of the writ petition is not denied. This is for the posts of Sub Inspector (see Para "8" of the reply); (iii) That merely because the petitioners had completed five years of minimum service, would not mean that they are entitled to promotion. Merely because they are eligible would not mean that they should be promoted with effect from the date(s) they acquired the eligibility (see Para "9" of the reply). (iv) That DPC met when the posts were available (see para "10" of the reply). 10. Ultimately, it is submitted that merely because the petitioners became eligible, is not a ground to contend that they should be promoted. The question which arises for determination in this case is: (1) ..As to whether the plea put across by the petitioners that the quota of direct recruits and promotees from the posts of Assistant Sub Inspector to that of Sub Inspectors has to be governed by the Government Order or by SRO 104 of 1978 ? (II) Whether SRO 104 is to have an over-riding effect as projected by the State? (III) Whether mere acquiring of eligibility is good enough to contend that the petitioners deserve to be promoted? It be seen that in the Division Bench judgment, the precise plea which was put across was that the ratio proportion between direct recruits and promotees is 1:3 i.e. 25:75. This aspect of the matter was not denied. In any case, such was the observation made by the Division Bench. It was in the light of the above, the ultimate directions were supposed to be complied with by the respondents. This aspect of the matter was not denied. In any case, such was the observation made by the Division Bench. It was in the light of the above, the ultimate directions were supposed to be complied with by the respondents. When this direction was complied with, then the factual situation noticed in the writ petition was supposed to be taken note of. If that factual position was wrongly noted or something was not noticed, then the respondents should have challenged that view of the Division Bench in forums available to them. Having not done so, what is said by the Division bench has attained finality, and the respondents were supposed to act accordingly and take further action by taking the ratio proportion in the ratio of 25:75. This apparently has not been done. The other reasoning given by the respondent-State is that the quota has been determined in terms of SRO 104 of 1978 and Government Order No. 361 of 1979 issued on 27.7.1979, is not required to be complied with by the Government. Such is the stand taken in the counter affidavit filed by the respondents. This is also apparent from the order Annexure "G" passed on 10.1.2001. For facility of reference, the relevant part of the order is being reproduced below :- "3. Whereas, in compliance to the directions of the Honble High Court, the entire matter has been examined. SRO 104 of 1978 determines the ratio proportion between the direct recruitment and promotees and fixes the same at 50 : 50. The mention of the Govt. Order No. 361 of 1979 dated : 27.7.79 which provides higher proportion for promotees as claimed by the petitioners never came into force as it was not supported by any SRO neither this SRO was replaced or substituted by any SRO vis-a-vis to Govt. Order thus, Govt. Order issued lacks any force of law. A Govt. Order which in any case is suggestive in nature and cannot replace SRO. Hence, the proportion fixed continues to be 50:50 till date." 11. Even though, I have concluded that the respondents were bound by the Division Bench judgment, nevertheless the implications of SRO 104 of 1978 and as to whether there is any conflict in SRO and the Government order, be examined. SRO 104 amends Rule 174 of the J&K Police Rules of 1960. Even though, I have concluded that the respondents were bound by the Division Bench judgment, nevertheless the implications of SRO 104 of 1978 and as to whether there is any conflict in SRO and the Government order, be examined. SRO 104 amends Rule 174 of the J&K Police Rules of 1960. For facility of reference, this is being reproduced below : "174. Direct appointment of Inspectors and Sub Inspectors : (1) Direct recruitment to the rank of Sub-Inspectors shall be made as under : (i) 50 % directly; and (ii) 50 % by Promotion from the rank of Assistant Sub-Inspectors. (2) Notwithstanding anything contained in sub-rule (1) the Government may by an order, direct the Inspector General of Police to make direct recruitment to any other non-gazetted rank to the extent and in the manner specified therein." So far as the Government order dated: 27.7.79 is concerned, the relevant part thereof is also being reproduced below : ".......... 3. the existing ratio as between direct recruitment and promotion be revised as 40:60 and subsequently revised to 25:75 by March, 1981." The Government gazette deals with this aspect of the matter. 12. Thus, the initial change was to change the quota and bring it at 40:60 and with effect from March, 1981, this was to come to 25: 75. This Government order came to be issued in pursuance of the provisions contained in Article 328-A of the Jammu and Kashmir Civil Service Regulations, and therefore, it should have the force of law in the same manner, as in any other Rules. Nevertheless, as this is the sum and substance of the decision taken by the State, it would be apt to examine this argument also. Rule 174 speaks of direct appointment of Inspectors and Sub Inspectors. However, when the rule itself is perused, it deals with direct recruitment to the rank of Sub Inspectors, and provides that 50 % appointments shall be made directly and 50% by promotions from the posts of Assistant Sub Inspectors. Thus, this ratio proportion of 50 : 50 would be applicable when promotions are to be made to the posts of Sub Inspectors. If this Rule is taken into consideration, then the ratio proportion which has been fixed i.e. 50:50 would be applicable when promotions are made from the rank of Assistant Sub Inspectors. This is the main rule. Thus, this ratio proportion of 50 : 50 would be applicable when promotions are to be made to the posts of Sub Inspectors. If this Rule is taken into consideration, then the ratio proportion which has been fixed i.e. 50:50 would be applicable when promotions are made from the rank of Assistant Sub Inspectors. This is the main rule. However, paragraph "2" of this Rule lays down in categoric terms that notwithstanding contained in sub-rule (1) the Government may by an order direct the Inspector General of Police to make direct recruitment to any other Non gazetted rank to the extent and manner specified therein. If clause "2" is read alongwith the Government Order, which order was issued after due deliberations with the Government and the Association, and if the ratio proportion was being changed, then this ratio proportion was supposed to be adhered to. The fact that the Rule itself enables the Government to issue orders and also the fact that the Police Rules itself contain a provision which enable them to supplement the Rules, then that aspect of the matter cannot be ignored. Again, such an argument was available to the respondents when Division Bench decided the matter. Before the Division Bench, no such argument was put across, and therefore, the directions given by the Division Bench were supposed to be complied with in the light of the facts noticed therein. 13 So far as the factual position is concerned, the submissions made in paragraph "3" of the petition are, as under: (i) No direct recruitment was made in the year, 1978. However, 15 ASIs were promoted on 15.6.1978. This exercise was undertaken after the issuance of SRO 104; (ii) On 6.9.1978, 48 candidates were appointed by direct recruitment and Government Order was issued on 17.1.1979. 14. The details of the promotions made from time to time have been indicated in para "25" of the petition. The entire position has been summed up and it is stated that with effect from 1978 upto 7.8.1982, 367 vacancies were filled up. According to the Government Order, as per the petitioners, 125 vacancies should have gone to the direct recruits and 242 to the promotees. The entire position has been summed up and it is stated that with effect from 1978 upto 7.8.1982, 367 vacancies were filled up. According to the Government Order, as per the petitioners, 125 vacancies should have gone to the direct recruits and 242 to the promotees. However, only 154 vacancies were given to the promotees, It is submitted that even if the facts and figures and ratio proportion of 50: 50 is maintained, even then 182 vacancies were available for promotees and only 154 have been filled. In this manner, 29 vacancies would be available for the promotees. As such the reasoning given by the respondents, if taken note of, and if the view point put across by the State is taken note of, then 88 vacancies would be available. What is stated in paragraph "25" of the petition is reproduced below: "25. That with effect from 1978 upto 7.8.1982, 367 vacancies were filled up by the respondents against the post of Sub Inspectors. Out of the aforesaid vacancies as per the ratio prescribed in terms of SRO 104 and the Government order No : Home-361 dated: 27.7.1979, 125 vacancies should have gone to direct recruitments and 242 vacancies should have been provided to the promotees. As submitted herein above 154 vacancies were given to the promotees. Thus 88 more vacancies should have been given to the promotees upto 7. 8. 1982." 15. The consolidated reply given by the respondents to paragraphs 22 to 26 of the petition is that this is a matter of record. Thus, there is no denial of facts and figures as projected by the petitioners. If above be the position, if the data as given by the petitioners in paragraph "25" is taken note of, then upto 7.8.1982, 29 vacancies were supposed to be given to Assistant Sub Inspectors, who wanted promotion as Sub Inspectors. This has not happened in this case. For this reason as also for the reasons given above, the petitioners are held entitled to the relief. This has not happened in this case. For this reason as also for the reasons given above, the petitioners are held entitled to the relief. To repeat, it is held : (I) That in terms of SRO 104, the ratio proportion was fixed as 50: 50 when promotions were to be made from the posts of Assistant Sub Inspectors to Sub Inspectors; (II) That this was not an absolute condition and this could be waived of in terms of sub rule 2; (III) That in terms of sub rule 2 and other enabling powers, another Government order was issued by the State Government. Ratio proportion was fixed as 40: 60 and this was to go 25:75 by March, 1981. These Government orders were issued in pursuance of the Rules noticed above and would be relatable to Rule 174(2); (IV) That the Division Bench took note of the ratio proportion as 25: 75. This was not disputed by the respondents and therefore, the question of disputing the same again by issuance of Government Order dated :10.1.2001, was not apt; (V) That even if what is stated by the State is taken note of, even then in terms of the facts and figures given in paragraphs 22 to 25 of the petition and the summing up done in para "25" would indicate that even in accordance with the classifications made by the State, 29 vacancies are available to the quota of Assistant Sub Inspectors, and the Petitioners were entitled to the benefit of this quota. As this petition has been preferred by 27 petitioners, they would fit in the numerical figures mentioned above. 16. This petition is, accordingly, allowed. The respondents are, accordingly, directed to reconsider the issue and pass appropriate orders in terms of the facts and figures given above. The petitioners are also held entitled to further promotion to the posts of Inspectors. Needless to mention that so far as the post of Inspector is concerned, the ratio proportion of 50 : 50, is not applicable. Rule 174 is applicable only up to the level of Sub-Inspectors. Further promotions are to be made in the ratio of 75:25 i.e. 75 of the promotees and 25 of the direct recruits. Let further action be taken and this decision be implemented within a period of two months, from the date a copy of this order is made available to the respondents. Further promotions are to be made in the ratio of 75:25 i.e. 75 of the promotees and 25 of the direct recruits. Let further action be taken and this decision be implemented within a period of two months, from the date a copy of this order is made available to the respondents. Disposed of accordingly.