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2008 DIGILAW 1554 (PNJ)

Constable Dharmbir v. State Of Haryana

2008-09-10

AUGUSTINE GEORGE MASIH, MEHTAB S.GILL

body2008
Judgment Augustine George Masih, J. 1. The petitioner was appointed as constable on 6.09.1988. He has an exemplary record in service and was decorated and awarded the highest honour by His Excellency the Governor of Haryana on 26.01.1996 and for snowing exemplary courage. The petitioner has to his credit 90 cash rewards and an equal number of commendation certificates/appreciation letters including 1 st class and 2nd class commendation certificates for showing exemplary courage, fidelity and devotion to his duties. The petitioner is claiming that he should be deputed to the lower school course as his juniors i.e. respondents No. 6 to 11 have been already deputed for the said course under the 35% quota fixed for the constables on the basis of seniority-cum- merit under Rule 13.7(H) of the Punjab Police Rules (Haryana Amendment Rules, 2001) hereinafter referred to as the Punjab Police Rules. 2. It is submitted by the petitioner that because of his exceptional service career, his name was recommended for consideration of his case under 10% quota earmarked under Rule 13.7(3). He could not make the credit as he was found lower in merit in ccmparison to the other candidates, whose names were considered by the Central Departmental Promotion Committee. 3. It is the case of the petitioner that he had appeared in the B-l test under the 55% quota earmarked for bringing the name of the constable on List B-l for which a competitive test was held. The petitioner although passed the written test of law but the merit of the petitioner in comparison to other selected candidates was lower and thus, he could not be selected under the 55% quota on the basis of merit as per Rule 13.7(2) (i) of the Punjab Police Rules. 4. The requirement of Rule 13.7 (2)(ii) is that the constable should be under the age of 40 years and com pleted 5 years of service on the 1 st day of January of the year in which the selection is made. The petitioners date of birth is 40.4.1970 and thus under 40 years of age. He joined the department on 06.09.1988 therefore, the petitioner had more than 16 years of service as Constable. It is contended that as the petitioner fulfills the conditions as stipulated in Rule 13.7(2) (ii), his name be brought on List B-l under the 35% quota on the basis of seniority-cum-merit. He joined the department on 06.09.1988 therefore, the petitioner had more than 16 years of service as Constable. It is contended that as the petitioner fulfills the conditions as stipulated in Rule 13.7(2) (ii), his name be brought on List B-l under the 35% quota on the basis of seniority-cum-merit. The cut off date is 01.01.2005 in this case. Since his case was not considered, under the said quota, the petitioner preferred this writ petition challenging this action of the respondents. 5. On notice having been issued, the respondents have put in appearance and filed a reply to the writ petition. It has been contended that the case of the petitioner and respondent No. 5 were forwarded to be considered under the 10% quota earmarked under Rule 13,7 (2) (iii) but on consideration of the case of all the recommendations received from the State, the Central Departmental Promotion Committee found Constable Jalwinder Singh, No. 881 respondent No. 5 more meritorious to the petitioner and, therefore, recommended his name instead of the petitioner. 6. There is no dispute with regard to the facts dealing with the service career and the excellent and exceptional record of the petitioner. The only stand taken on behalf of the respondents for not considering the case of the petitioner under the 35% quota earmarked under seniority-cum-merit category is that the petitioner was under the age of 35 years as on 01 01.2005 end hence his case was not covered under the seniority-cum-merit. Since the case of the petitioner was covered under 55% quota earmarked for competitive test category hence his case was not required to be considered under 35% quota. Although the petitioner was senior to private respondents Nos. 6 to 11, the petitioner could not make a grouse nor has it got any relevance with the selection of these respondents as they belong to a separate category as the petitioner had competed for selection, for promotion List B-l under 55% quota and respondents Nos. 6 to 11 were selected under 35% quota. The stand of the respondents is clearly depicted in their reply to Para 13 of the writ petition, which is reproduced herein below for ready reference: "13. 6 to 11 were selected under 35% quota. The stand of the respondents is clearly depicted in their reply to Para 13 of the writ petition, which is reproduced herein below for ready reference: "13. That in reply to Para No. 13 of the writ petition it is submitted that there are three categories for selection for promotion list B-l. Category No. 1 For those candidates who are under the age of 35 years and have completed 5 years of age. Category No. 2 For those candidated who have completed 5 years of service and their age is above 35 years and below 40 years on the first day of the year in which selection is made. Category No. 3 For those candidates who have completed more than two years of service and are under the age of 40 years on the 1st day of year in which selection is made and have won Medal in International Sports/National and duty Meet or are being considered for exceptional bravery. The case of the petitioner falls under category 1st as such he is not entitled to be considered under 35% category being is age 35 years and as such his case was considered under 55% quota. However, his case was also recommended for promotion list B- I under 10% quota at two times but his case was not found suitable as per his merit by the Central Departmental of Promotion Committee. It is further submitted that the case of private respondents Nos. 6 to 11 falls under 35% quota being their age over 35 years as on 01.01.2005 as such their names were considered under 35% quota." 7. The petitioner filed a replication controverting the stand of the respondents and has placed on record Memo No. 12362-99/T-2 dated 17.12.2004 of the Director General of Police, Haryana (Annexure P-11) to contend that the clarification issued by the department dealing with Rule 13.7 supports the case of the petitioner and is contrary to the stand taken by the State in the written statement. It is further contended that in the light of the said clarification, the case of the petitioner deserves to be allowed as it has categorically been held in that letter that the candidates below 35 years of age, who had appeared in B-l test under 55% category but failed, could also be considered for selection under 35% category on the basis of seniority-cum-merit. 8. In the light of the aforesaid replication, the State sought time to file an additional affidavit, which was filed and there it was stated that the above mentioned clarification dated 17.12.2004 stands withdrawn vide Memo No. 13745/82/T-2 dated 11.10.2005 (Annexure R-2). 9. We have heard the counsel for the parties and have gone through the records of the case. 10. The counsel for the petitioner has not pressed the claim of the petitioner in Category-3 i.e. 10% quota and has only claimed the consideration of the petitioner in Category-2 i.e. 35% quota on the basis of seniority-cum-merit as per Rule 13.7 (2) (ii) and the instructions dated 17.12.2004 (Annexure P-11). While the counsel for the respondents has reiterated the stand in the written statement and pressing into service Memo dated 11.10.2005 (Annexure R-2) to supplement his arguments. 11. The first aspect which needs to be highlighted here which would lead to granting of relief to the petitioner is that the relevant date for consideration was 01.01.2005. The instruction prevalent on the said date was Memo No. 12362-99/T-2 dated 17.12.2005 (Annexure P-11) which provides that a constable, who is below 35 years of age and has appeared in B-1 test under 55% category but failed, could also be considered under 35% quota on seniority-cum-merit basis if he fulfills the terms and conditions fixed for the said quota. It further states that the candidate, who had appeared for B-l test under 55% quota, declared pass in the written test but could not be deputed in the said category as he was having low merit is also entitled to be considered against the quota prescribed for 35%. The case of the petitioner was thus to be considered under this instruction. The case of the petitioner was thus to be considered under this instruction. The stand of the respondents that the said instruction stood withdrawn vide Memo No. 13745-82/T-2 dated 11.10.2005 and, therefore, would not confer any right on the petitioner deserves to be noticed and rejected for the simple reason that the withdrawal of the earlier Memo dated 17.12.2004 was only w.e.f. the date of issuance of Memo dated 15.10.2005. The Memo dated 15.10.2005 has a prospective effect which is clear from the language of this memo itself, as the concluding line of the Memo reads as under: "................The clarifications issued vide No. 8999/T-2 dated 24.09.2004 and 12362-99/T-2 dated 17.12.2004 are hereby withdrawn." The instruction, therefore, prevalent on the relevant date i.e. 01.01.2005 was Memo dated 17.12.2004. This memo gives right of consideration to the petitioner as he fulfills the conditions required for consideration under the 35% quota meant for constables on the basis of seniority-cum-merit. The claim of the petitioner on this ground alone deserves to be accepted. 12. Since large number of Writ Petitions are coming up for consideration on the similar question of interpretation of Rule 13.7(2) and the Government instructions, we proceed to formulate the question and decide the same. Thus the question which calls for decision in this case is : "Can a Constable, who has participated in the competitive test (B-l test) for including his name in List B-l of selected Constables for admission to Lower School Course under the 55% quota on the basis of merit as per Rule 13.7 (2) (i) of the Punjab Police Rules, claim consideration and selection under the 35% quota on the basis of seniority-cum-merit as per Rule 13.7 (2) (ii) also, if he is eligible under both the categories?" Rule 13.7 (1) and (2) of the Punjab Police (Hary-ana Amendment) Rules, 2001 reads as under: "13.7- Selection of candidates for admission to courses at the Police Training College : (1) List B (in Form 13.7) shall be maintained by each Superintendent of Police. It shall include the names of all constables selected for admission to the Lower School Course to be held at the Police Training College. Selection to the list B shall be made in the month of January each year and shall be limited to the number of seats allotted to the district for the year. It shall include the names of all constables selected for admission to the Lower School Course to be held at the Police Training College. Selection to the list B shall be made in the month of January each year and shall be limited to the number of seats allotted to the district for the year. The number of seats in Lower School Course in a year shall be allotted on the basis of existing vacancies and the vacancies likely to be created within one year in the respective unit. 55% of the seats allotted to a unit in the lower school course shall be filled in on the basis of a competitive examination, 35% on the basis of seniority-cum-fitness and 10% on the basis of consistent outstanding performance in job/obtaining Gold or Silver Medal in All India Police Games/Duty Meet/National Games or exceptional display of bravery during the course of performance of official duty. Selection of persons against 55% seats in B List/Lower School on the basis of merit shall be done by Departmental Promotion Committee on the basis of : (i) Examination of service record, and (ii) a competitive test (hereinafter called "B-l Test") in........ (a) Parade, (b) Law and Practical Police work; and (iii) an interview. (2)(i) All constables irrespective of their educational qualifications shall be eligible to appear for B-l test, if they are under the age of 35 years and have completed 5 years of service on the 1st day of January of the year in which selection is made. However, if a constable belonging to reserved category who is recruited after attaining the age of 27 years as per Government instructions/orders then he shall be allowed to appear for minimum three consecutive chances after completion of five years of service even if he has crossed the age of 35 years upto a maximum of 40 years of age. (ii) All constables irrespective of their educational qualifications shall be eligible to be brought on list B-l, seniority-cum-merit basis if they are under the age of 40 years and have completed, 5 years of service on the first day of January of the year in which selection is made. (ii) All constables irrespective of their educational qualifications shall be eligible to be brought on list B-l, seniority-cum-merit basis if they are under the age of 40 years and have completed, 5 years of service on the first day of January of the year in which selection is made. (iii) All constables irrespective of their educational qualifications shall be eligible to be brought on List B-l, on the basis of consistent outstanding performance in job/obtaining Gold or Silver Medal in all India Police Games/ Duty Meet/National or International Games or exceptional display of bravery during the course of performance of official duty if they are under the age of 40 years and have completed 2 years of service on the 1st day of January of the year in which selection is made only those constables shall be brought on list B-l after 2 years of service, but before 5 years of service who have won a medal in International Sports event like Olympics, Asian Games, Commonwealth Games or similar international event. Constables who have won medals in National Games/All India Police Games/Duty Meet and who are being considered for exceptional bravery or consistent outstanding performance shall be considered only if, they nave put in a minimum 5 years of service." A perusal of the above Rule would show that the relevant date for consideration for selection to List B-l shall be the first day of January of the year in which selection is made. In this case, relevant cut off date taken by the department was 01.01.2005. Out of the total seats allotted to a unit, 55% are to be filled on the basis of the competitive examination. The eligibility for this category is provided for in Rule 13.7(2) (i), which says that to appear in B-l test, a constable belonging to the general category, is required to be under the age of 35 years and have completed 5 years of service on the 1st day of January of the year in which the selection is made. The eligibility for this category is provided for in Rule 13.7(2) (i), which says that to appear in B-l test, a constable belonging to the general category, is required to be under the age of 35 years and have completed 5 years of service on the 1st day of January of the year in which the selection is made. 35% of the seats allotted are to be filled on the basis of seniority-cum-merit eligibility whereof has been provided under Rule 13.7(2) (ii), which says that the criteria would be seniority-cum- morit and the constable must be under the age of 40 years and have completed 5 years of service on the 1st day of January of the year in which selection is to be made. The remaining 10% of the seats allotted are to be filled from the Constables on the basis of their performance in sports or exceptional dispay of bravery etc. with a minimum of 2 or 5 years of service as provided under the rule and must be under 40 years of age on the 1st day of January of the year in which selection is to be made. 13. So there are three distinct categories with their own qualifications and requirements for eligibility for consideration. There, is no bar to consideration of a Constable in any category if he fulfills the eligibility criteria i.e. if he is eligible in all three categories he has a statutory right to consideration in all three categories. The Rules do not categorize or require some minimum age for eligibility under any of the categories. What it specifies is the upper age limit for consideration under a particular category. 14. After evaluating and defining the scope and ambit of the statutory Rules we now proceed to test the two Memos which have been pressed into service by the parties i.e. Memo No. 12362-99/T-2 dated 17.12.2004 (AnnexureP-ll)by the petitioner and Memo No. 13745-82/T-2 dated 1 1.10.2005 (Annexure R-2) by the respondents. Memo No. 12362-99/T-2 dated 17.12.2004 reads as under: "Subject: Clarification on some frequently asked points with regard to B-l test. Memo Continuation this office Memo No. 311-45/T-2 dated 4.1.2004, on the above subject. Some units have sought clarification on various points with regard to B-l test. Consolidated clarifications on some of the most frequently asked points relating to B-l test are given as under: Points Clarification 1. xxxxxxxxxxxxxxxx 2. Memo Continuation this office Memo No. 311-45/T-2 dated 4.1.2004, on the above subject. Some units have sought clarification on various points with regard to B-l test. Consolidated clarifications on some of the most frequently asked points relating to B-l test are given as under: Points Clarification 1. xxxxxxxxxxxxxxxx 2. Whether the candidate below 35 years of age who have appeared in B-l test under 55% category, but failed could also be considered for selection under 35% category on the basis of Seniority-cum-Fitness or otherwise. It may also be clarified whether the above two categories are mutually exclusive i.e. the constables below 35 years of age who have unsuccessfully appeared in B-l test in 55% competitive examination, could also be considered for selection under 35% category on the basis of seniority-cum-fitness or otherwise (From IG/HPA MBN, vide DO No. 9551/A-I-13 dated 3.6.04) (b) Whether the candidates appearing under 55% quota declared pass in written test and having low merit are to be considerd for B-l against the quota prescribed for 35% or otherwise ?. (c) Whether the candidates eligible for B-l the quota prescribed for 35% i.e. seniority-cum-fitness desire to appear in B-l test Prescribed under 55% quota is to be allowed to appear in written test or otherwise ? xxxxxxxxxxxxxxxxx The candidates who appeared under 55% quota in B-l test and failed can also be considered under 35% quota on Seniority-cum-Merit basis if they fulfill the terms and conditions fixed for 35% quota. - Both the categories (55% and 35%) are mutually inclusive. (Ref. This office TPM No. 8992/T-2 dated 24.09.04). Yes the candidates appearing for B-l test under 55% quota declared pass in written test and having low merit are to be considered for B-l against the quota prescribed for 35%. Yes, provided he is under 35 years and has completed 5 years of service as provided under PPR 13.7. Sd/-(K.K.Sharma) 17.12.05 DIG/Trg. For Director General of Police, Haryana," The text of Memo No. 13745-82/T-2 dated 11.10.05 reads as under: "Please refer to this office Nos. Yes, provided he is under 35 years and has completed 5 years of service as provided under PPR 13.7. Sd/-(K.K.Sharma) 17.12.05 DIG/Trg. For Director General of Police, Haryana," The text of Memo No. 13745-82/T-2 dated 11.10.05 reads as under: "Please refer to this office Nos. 8999/T-2 dated 24.09.2004 and 12363-99/T- 2 dated 17.12.2004 regarding Clarification (.) Rule 13.7 of PPR (Haryana Amendment Rules, 2001) was re-examined and further clarified that there were three channels for sending the Constables for B-I course (.) 55% seats have been allotted to the candidates who will appear in the test provided they are below 35 years of age and having 5 years experience (.) Second category of candidates will fall under 35% of seats and will be considered on the basis of seniority-cum-fitness provided they sre under 40 years of age (.) 10% seats are reserved for the candidates on the basis of performance in national/international games or exceptional display of bravery etc. provided they are also under the age of 40 years (.} All the three categories are different and cannot claim benefit in the category of each other. The candidates who are below 35 years can compete against 55% seats only. The candidates who are below 40 years and above 35 years are exempted for B-I test but they will be considered on the basis of senicrity-cum-merit against only 35% seats (.) It is further clarified that as per the provisions of the role the candidates who have crossed 35 years of age will become disentitled to apply against 55% seats and can apply against 35% seats only on the basis of seniority-cum-merit (.) In view of the above position, it is clear that the candidates of category cannot claim benefit in category-lI0 and of category No. II cannot claim benefit under category No. 1 (.) The clarifications issued vide No. 8999/T-2 Dtd. 24/09/2004 and 12362-99/T-2 dated 17/12/2004 are hereby withdrawn.." 15. The Memo dated 17.12.2004 (Annexure P-11) is in consonance with Rule 13.7(2) of the Punjab Police Rules. It depicts the intention and purpose for which the said rule has been incorporated and in furtherance thereto clarifies the scope and ambit of the rule correctly. Rather the Memo dated 11.10.2005 (Annexure R-2) is in violation of Rule 13.7 (2). The Memo dated 17.12.2004 (Annexure P-11) is in consonance with Rule 13.7(2) of the Punjab Police Rules. It depicts the intention and purpose for which the said rule has been incorporated and in furtherance thereto clarifies the scope and ambit of the rule correctly. Rather the Memo dated 11.10.2005 (Annexure R-2) is in violation of Rule 13.7 (2). By this memo, the respondents had sought to incorporate in the Rules, which is neither in consonance with the intention of the rules nor the purpose for which the Rule was incorporated but is in violation of the plain language and meaning of Rule 13.7(2). 16. The respondents have based their stand in the written statement on the Memo of the Director General of Police dated 11.10.2005 (Annexure R-2). A perusal of the same would show that vide this clarification, after giving the three categories and their quota, it has been stated that all the three categories are different and cannot claim benefit in the category of each other. It has been further states that Category-I (55% quota) cannot claim benefit in Category-Il (35% quota) and candidate of Cate-gory-ll cannot claim benefit under Category-I. This position as regards Category-ll may be correct but as regards Category-! (55% quota) and Category-UK 10% quota) this position is not the correct interpretation of Rule 3.17 (2). 17. This in our considered view is in clear violation of Rule 13.7 (2). It goes against the very spirit and the purpose for which the rules have been formulated. The intention and purpose of the rules is to be read in conjunction with the object which is sought to be achieved. The police officials have to deal with various and varied situations while performing their duties but primary of them being law and order, which requires competent and talented officers. The intention of Rule 13.7 is to identify and catch them young so that the talent may be groomed and allowed to grow with the experience gained in their service. Rule 13.7 (2)(i) aims at constables, who are below the age of 35 years while Rule 13.7 (ii) aims at constables, who are under the age of 40 years. The intention of Rule 13.7 is to identify and catch them young so that the talent may be groomed and allowed to grow with the experience gained in their service. Rule 13.7 (2)(i) aims at constables, who are below the age of 35 years while Rule 13.7 (ii) aims at constables, who are under the age of 40 years. A conjoint reading of both the sub-rules would show that only the upper age limit has been prescribed under the rules and no minimum age has been prescribed either under sub-rule 2(i) or sub-rule 2 (ii), which means that if a constable fulfills the requirement of the upper age and the other qualifications prescribed under the respective category as per sub-rule 2, there is no bar to his consideration under each of them. Meaning thereby, a constable, who is eligible in one category under Rule 13.7 (2) (i) can ajso be considered in the other category under Rule 13.7 (2) (ii) of the Punjab Police Rules, as there is no bifurcation between the rules as far as the eligibility is concerned with regard to the minimum age as none is prescribed. 18. The minimum age if prescribed by way of executive instructions would go against the interest of the Constables, who are otherwise eligible under the statutory Rules. Rule 13.7 (2) (ii) confers a right which a Constable attains on the basis of his seniority in the service. As and when his turn comes based on the seniority a right to consideration devolves on him. This right on the basis of his seniority cannot be deprived on the basis of executive instructions. This would be in contravention to the statutory rules and, therefore, not sustainable. 19. What the respondents have sought to do in the instant case is to amend the rules by executive instructions, which is not permissible in law. In case, a minimum age is required to be prescribed, then the rules need to be amended incorporating such change. The executive instructions can supplement the rules but they cannot go contrary to the rules and cannot violate the spirit and purpose of the statutory rules by scribing the minimum age. The right conferred on the employee under statutory Rules cannot be obliterated or taken away much less wiped by the executive Instructions. The executive instructions can supplement the rules but they cannot go contrary to the rules and cannot violate the spirit and purpose of the statutory rules by scribing the minimum age. The right conferred on the employee under statutory Rules cannot be obliterated or taken away much less wiped by the executive Instructions. It is settled principle of law that by executive instructions there can be no amendment of statutory Rules. It is no more res integra that instructions can neither override the Rules nor can they be contrary to them. In case there is any conflict between the rules and the instructions, the latter has to make way to the former. 20. The employee cannot be deprived of his right to be considered for promotion, so conferred upon him, under the Punjab Police Rules by mere issuance of executive instructions. If the statutory rules provide for and confers on an employee right to consideration for promotion and further provides for a qualification, which the employee possesses as per the rules, that right of consideration cannot be curtailed so as to deprive him of his statutory right merely on issuance of executive instructions, which is contrary to the statutory Rules. 21. In the light of the above discussion, the Memo No. 13745-82/T2 dated 11- 10-2005 of Director General of Police, Haryana (Annexure R-2) cannot be sustained to the extent it states that all three categories cannot claim benefit of each other and that category-! (55% quota) cannot claim benefit in category-ll (35% quota) as the same is contrary to the statutory rules and is thus quashed to this limited extent. 22. (55% quota) cannot claim benefit in category-ll (35% quota) as the same is contrary to the statutory rules and is thus quashed to this limited extent. 22. What emerges from the above discussions is that a constable who has completed 5 years of service on the 1 st day of January of the year in which the selection is made, is under the age of 35 years and is eligible for consideration and selection for including his name in List B-l of selected constables for admission to Lower School Course under the 55% quota on the basis of merit as per Rule 13.7 (2) (i) of the Punjab Police Rules, 1934 and having participated in the competitive test (B-l test) and failed or was unable to get enlistment due to lower merit can also claim consideration and selection under the 35% quota on the basis of seniority-cum-merit as per Rule 13.7 (2) (ii), if he is eligible under both the categories. The question is answered accordingly. 23. The petition is allowed and the petitioner is held entitled to be considered under the quota of 35% fixed for consideration on seniority-cum-merit. Since his juniors i.e. respondents Nos. 6 to 11 stand already deputed to the lower school course, respondents are directed to depute the petitioner to the first lower school course, which will commence after the pronouncement of the instant order. The petitioner shall be treated as having qualified the lower school course as if he had been deputed to the lower school course for which the instant writ petition was filed. Disposed of accordingly.