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2005 DIGILAW 2337 (RAJ)

Jaswant Singh Balot v. State of Rajasthan

2005-09-01

R.P.VYAS

body2005
Judgment R.P. Vyas, J.-By this writ petition, petitioners have prayed that respondents may be restrained from filling up the vacancies of the Deputy Superintendent of Police (Promotion Quota) from out of turn promotion. The petitioners have also prayed that the respondents may be directed to consider candidature of the petitioners for promotion to the post of the Deputy Superintendent of Police on the basis of seniority-cum-merit in accordance with the Notification dated 23.07.2003 (Annexure 4) and all the posts, which are in existence, against the promotion quota, may be filled in as per the revised criteria of seniority-cum-merit. 2. Brief facts, giving rise to the instant petition are that the petitioners are working on the post of Inspector. A tentative seniority list (Annexure 1) was issued by the respondents, in which the names of the petitioners have been shown at serial Nos. 263, 264, 265, 282, 200, 261, 277 and 276 respectively. The petitioners are within the zone of consideration for promotion to the post of Deputy Superintendent of Police (Dy. S.P.) as per the provisions of the Rajasthan Police Service Rules, 1954 (hereinafter referred to as the Rules of 1954). As per Part-V of the Rules, 1954, which lays down the procedure for recruitment by promotion, the post of Deputy Superintendent of Police is required to be filled-in by way of promotion and direct recruitment. Rule 28-A deals with the revised criteria, eligibility and procedure for promotion to junior, senior and other post encadred in the service. The vacancies are required to be determined year wise on first April of every year. 3. Earlier, under Rule 28-A (4) of the Rules, 1954, there was a provision with regard to respective quote for promotion, which reads as under:-“(4) Selection for promotion in the regular line of promotion from the post/posts not included in Service to the lower post or category of post in the service shall be made strictly on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50 : 50....” 4. Thus, the promotions were required to be made on the basis of merit and seniority-cum-merit in the proportion of 50 : 50 respectively. 5. Thus, the promotions were required to be made on the basis of merit and seniority-cum-merit in the proportion of 50 : 50 respectively. 5. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, vide Notification dated 18.02.1998 (Annexure 3), a new Rule 28-AAA was inserted, in which it was provided that the promotion will also be made out of turn as promotion for gallantry. It has specifically been provided that this gallantry promotion will be made only against the vacancies, which are to be filled in on the basis of merit in any particular year and for the same under new Rule 28-AAA, a sub-rule (3) was added, in which it was specifically provided that promotion under this rule shall be made against the vacancies to be filled-in on the basis of merit in that particular year. 6. The Department of Personnel (DOP), Government of Rajasthan, Jaipur issued a Notification dated 23.07.2003 (Annexure 4), by which amendment was made in the Service Rules, including the Rules of 1954 and that by way of inserting new procedure for promotion, all the posts were required to be filled in by way of seniority-cum-merit only and the said promotion was inserted as per revised criteria of sub-rule (5), in which it was provided that selection for promotion on the post included in the service shall be made on the basis of seniority-cum-merit. The promotion to the highest post in the State Service was allowed to be made on the basis of merit alone, but the junior posts were to be filled in by way of seniority-cum-merit only. Thus, the earlier provision to fill up the vacancies in the proportion of 50 : 50 on the basis of seniority-cum-merit and merit respectively was deleted. 7. All the petitioners, whose names are in the seniority list, are within the zone of consideration for promotion to the post of Deputy Superintendent of Police and the vacancies, which occurred on the first April of every year, after the Notification dated 23.07.2003 (Annexure 4), are required to be filled in by applying the criteria of seniority-cum-merit, because as per the newly revised criteria, there is no provision for promotion on the basis of merit. 8. 8. Notwithstanding the fact that there is no provision for promotion on the basis of merit and promotion out of turn quota can be made only against the merit. One Shri Vipin Sharma, who was much junior to the petitioners, was granted out of turn promotion against the vacancies of 2004-05. 9. Now, the five persons, namely, Ramsingh, Damodar Gujar, Raghuveer Singh, Rajeev Dutta and Bhanwarlal, who are working as Inspectors and are much junior to the petitioners, are sought to be given promotion out of turn by the respondents in accordance with Rule 28-AAA of the Rules, 1954, as they have got certificates in their favour and are not upto the level of gallantry work. 10. Being aggrieved by the aforesaid action of the respondents, the petitioners have preferred the instant petition under Article 226 of the Constitution of India. 11. It is submitted by the learned Counsel for the petitioners that as per Notification dated 18.02.1998 (Annexure 3), out of turn promotion for gallantry work could be made only against the vacancies to be filled in on the basis of merit in the particular year, but, now, after issuance of the Notification dated 23.07.2003 (Annexure 4), new criteria for protmotion has been laid down, in which there is no promotion on the basis of merit and all the vacancies of the Deputy Superintendent of Police are required to be filled in by way of seniority-cum-merit. 12. It is further submitted by the learned Counsel for the petitioners that the gallantry pre-supposes extra-ordinary discharge of duties with bravery and at least it does not pre-suppose the simple appreciation or commendation letters in ones favour, for routine police duties. 10.13. Apart from that, there is no exchange of fire between the police-party and other side and no life hazard work, i.e., exemplary courageous work has been done by the concerned Police Inspectors, therefore, it is not considerable within the periphery of gallantry work. Thus, the learned Counsel for the petitioners submits that in the absence of heroic courageous work to give promotion to the aforesaid Inspectors out of turn in terms of Rule 28-AAA only on the basis of appreciation certificates , is not justiciable. 114. Thus, the learned Counsel for the petitioners submits that in the absence of heroic courageous work to give promotion to the aforesaid Inspectors out of turn in terms of Rule 28-AAA only on the basis of appreciation certificates , is not justiciable. 114. It is also submitted by the learned Counsel for the petitioners that there is no provision for promotion on the post of Deputy Superintendent of Police on the basis of merit after issuance of Notification dated 23.07.2003 (Annexure 4), because now, it has been decided to fill up the vacancies meant for promotion quota from the criteria of seniority-cum-merit only, whereas, according to the learned Counsel, the out of turn promotion could be made only against the quota of merit alone. For the year, 2004-05, five vacancies of Deputy Superintendent of Police in the general category have become available and strangely, out of these five vacancies, all vacancies are sought to be filled in by out of turn promotion under the garb of gallantry work. 115. It is contended by the learned Counsel for the petitioners that the respondents are depriving the petitioners from legal and constitutional right of being considered for promotion to the post of Deputy Superintendent of Police, though they are in the zone of consideration. 116. It is further contended by the learned Counsel for the petitioners that after the revised criteria promulgated while effecting amendment vide Notification dated 23.07.2003 (Annexure 4), when the promotions are to be made strictly on the basis of seniority-cum-merit, then the earlier Notification dated 18.02.1998 (Annexure 3) becomes redundant and no promotion out of turn can be made, because no vacancies now, can be filled in by way of merit after issuance of the Notification dated 23.07.2003 (Annexure 4). 16. It is also contended by the learned Counsel for the petitioners that according to the Rules of 1954, earlier promotions to the post of Deputy Superintendent of Police (against the vacancies of promotion quota) were to be made on the basis of seniority-cum;merit and merit in the proportion of 50 : 50 respectively, but, thereafter, amendment came to be made while issuing the Notification dated 23.07.2003 (Annexure 4) and it came to be provided that the vacancies earmarked for promotion quota, are solely to be filled in by way of applying the criteria of seniority-cum-merit only. In such a situation, when there is no promotion on the basis of merit, then provisions of Rule 28-AAA of the Rules, 1954 cannot be taken into consideration for the purpose of giving out of turn promotion. 17. Learned Counsel for the petitioners has vehemently argued that the word gallantry as such is not defined, but from the common parlance, it is very much clear that it pre-supposes extra-ordinary discharge of service and it cannot be said that one is having gallantry performance on the basis of appreciation letters. The appreciation letters cannot be held to be sufficient to conclude that one has done gallantry work. 18. Learned Counsel for the petitioners has also argued that even if the gallantry promotion in terms of Rule 28-AAA is required to be given, it ought to have been given on the basis of seniority-cum-merit only and, according to him, it is the true meaning of harmonious construction of Rule 28-AAA. For example, on account of gallantry performance, a junior Inspector is required to be promoted in terms of Rule 28AAA, then he should be accorded promotion to the post of Deputy Superintendent of Police on the basis of seniority-cum-merit, meaning thereby the junior Inspector should wait for his turn till the Inspectors, who are Senior to him, are promoted to the post of Deputy Superintendent of Police. 19. It is significant to note that if the aforesaid example of Shri J.P. Joshi, learned Counsel for the petitioners, is accepted, then it will frustrate the purpose and intent of Rule 28-AAA, for which it has been framed/enacted by the Legislation. 20. In support of his contentions, learned Counsel for the petitioners has placed reliance on the cases of M. Pentiah vs. Veeramallappa, AIR 1971 SC 1107. He has also placed reliance on Dadi Jagannadham vs. Jammulu Ramulu & Ors., 2001 (7) SCC 71 . Though it was a matter pertaining to Article 127 of the Limitation Act, but with regard to interpretation, their Lordships of the Supreme Court held that the settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. The Court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly, if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. Learned Counsel for the petitioners has invited my attention to the case of Ajit Singh (II) vs. State of Punjab, 1999 (7) SCC 209 . In Para 23 of the Judgment , their Lordships of the Supreme Court held as under:-“23. Where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in Article 16 (1). For example, if the promotion is by rule of “Seniority-cum-suitability”, the eligible seniors at the basis level as per seniority fixed at the level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category, they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first.