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Himachal Pradesh High Court · body

2012 DIGILAW 253 (HP)

STATE OF H. P. v. DHRUB KUMAR

2012-05-04

DHARAM CHAND CHAUDHARY, KURIAN JOSEPH

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JUDGMENT : Kurian Joseph, J. 1. What is the basic principle in fixing seniority and whether date of passing the test has any relevance for seniority are the basic questions arising for consideration in this case. 2. The State has come up in writ petition challenging the order dated 9th August, 2007 passed by the erstwhile Himachal Pradesh Administrative Tribunal in OA No. 2951 of 1999. 3. Brief facts. The respondent, hereinafter referred to as the Applicant, was appointed as Constable in the Police Department on 15.11.1984 and was promoted as Head Constable in 1989. While serving as Head Constable, he was awarded Prime Ministers Life Saving Medal and to quote from the writ petition "consequently he was promoted to the rank of Assistant Sub Inspector out of turn along with others under the provisions of Rule 13.21 of Punjab Police Rules as applicable to the State of Himachal Pradesh vide order dated 1.9.1993." The said order is Annexure A-2. The applicant claimed seniority w.e.f. the date of joining duty in the promoted cadre. However, the same was denied on the ground that he had not passed the test at the time of promotion and the seniority could be granted only after the passing of the test, since promotion to ASI is from D List of Head Constables qualified in the promotion test. The Applicant passed the test only on 6.6.1995 though he had actually being working as Assistant Sub Inspector w.e.f. 1.9.1993. The Tribunal set aside the impugned order holding that the applicant was entitled to seniority w.e.f. 1.9.1993 for all purposes since the promotion was granted in relaxation of the Rules. Aggrieved, the State has filed the writ petition. 4. The Learned Deputy Advocate General submits that the promotion to the post of Sub Inspector can be granted only after a Head Constable passes the promotion test and thereafter being put in D List. In the case of the applicant though the promotion was granted on 1.9.1993, he passed the test only on 6.6.1995 and, therefore, he is entitled to count the seniority w.e.f. 6.6.1995 only, it is submitted. In the case of the applicant though the promotion was granted on 1.9.1993, he passed the test only on 6.6.1995 and, therefore, he is entitled to count the seniority w.e.f. 6.6.1995 only, it is submitted. Our attention has also been invited to the Division Bench decision of this Court dated 24.6.2008 in CWP No. 727 of 2003 in Brij Lal vs. H.P. Administrative Tribunal and others, wherein the Court has taken the view that only after the passing the lower School Course, in that case and being included in "C" list, he could claim the seniority and not from the date of promotion to the post of Head Constable. It is the case of promotion from Constable to Head Constable. Our special attention has been drawn to para 9 of the judgment, which is extracted below: "9. The record shows relaxation of Rule in the petitioners case has been only once for the purpose of promotion from one rank to another i.e. Constable to Head Constable. Exercise of the said power would not tantamount to relaxation of the conditions set out in Rule 13.9. The petitioner is also not claiming promotion to the 10% quota of vacancies stipulated under Rule 13.9. The promotion from one rank to another is strictly made by selection tempered with seniority, efficiency and honesty. The accelerated promotion stipulated under Rule 13.1 (2) is only if the officials pass the prescribed courses and have the requisite practical training. The action of the respondents for including the name of the juniors in List C cannot be found to be ultra vires for the reason that such persons had cleared the Lower School Course prior to the petitioner which was a condition for inclusion of the name in List C. Only such of those persons whose names were found in List C could have been considered for being sent to undergo training under the Rules. The relaxation was accorded only for the purposes of promotion to the post of Head Constable but however, for the purpose of further upward promotion, it was incumbent for the petitioner to have fulfilled the eligibility criteria of having cleared the Lower School Course and have his name included in list C thereafter. The relaxation was accorded only for the purposes of promotion to the post of Head Constable but however, for the purpose of further upward promotion, it was incumbent for the petitioner to have fulfilled the eligibility criteria of having cleared the Lower School Course and have his name included in list C thereafter. The Tribunal has held already that the petitioner has not denied that juniors to him who had been sent for training to the Intermediate Course have already passed the Lower School Course prior to the petitioner which was pre-requisite for sending the Constables to Intermediate Course. There is no provision for exemption from passing the prescribed examination nor has any relaxation being granted as such. Seniority based on merit could be claimed only from the date of passing the requisite examination in accordance with the Rules." 5. We are afraid, none of the contentions can be appreciated. Chapter XIII of the Punjab Police Rules, 1934 provides for promotions. Rule 13.21 reads as follows: "13.21. Power of relaxation - Where the Inspector General of Police is of the opinion that it is necessary or expedient so to do, he may, by order for reasons to be recorded in writing relax any of the provisions of this Chapter with respect to any class or category of persons." 6. Annexure A-2, order of promotion to the extent relevant reads as follows: "The following Police officials are promoted with immediate effect after giving relaxation under Rule 13.21 and consequent upon their promotion they are posted in District/Units shown against their names." 7. Thus, the very promotion itself is in relaxation of all the pre-requirements under Chapter XIII, since invocation of power under Rule 13.21 is for exemption from the provisions of the Chapter. Rule 13.9, no doubt provides for promotion to the post of Assistant Sub Inspector only from "D" List. To quote Rule 13.9: "13.9. List D. Selection of candidates for promotion course for Head Constables. Promotion to the rank of Assistant Sub-Inspector: (1) List D shall be maintained in two parts for Head Constables in Card Index Form No. 13.9 in each District. Selection for admission to the promotion course for Head Constable at the Police Training College, will be made from amongst all the confirmed Head Constables. No Head Constable shall be eligible for admission to the promotion course for Head Constable at the Police Training College, unless. Selection for admission to the promotion course for Head Constable at the Police Training College, will be made from amongst all the confirmed Head Constables. No Head Constable shall be eligible for admission to the promotion course for Head Constable at the Police Training College, unless. (1) He has passed Middle Standard Examination. (2) He is below the age of forty years on the day of commencement of the next course. (2) The names of the Head Constables who qualify at Police Training College in the promotion course for Head Constables will be entered in Part-I of List D as soon as they qualify the same. While entering the names in this part they will maintain their seniority inter se. The names of the outstanding Head Constables who have not passed the Promotion Course for Head Constables at Police Training College due to being over-age but otherwise are of exceptional merit and are considered suitable may, with the approval of Inspector-General of Police, be entered in Part-II of List D. No more than 10 per cent of the posts of Assistant Sub-Inspectors both permanent and temporary will be filled from the names of Part II of List D. This part will not at any time contain names more than two per cent of the cadre strength of Assistant Sub-Inspectors in a range, both temporary and permanent. (3) Annual Confidential Reports of all the Head Constables in Parts I and II of List D shall be furnished to the Deputy Inspector General of Police by the 15th day of April, each year in Form No. 13.9 (3). (4) Promotion to the rank of Assistant Sub-Inspector shall be made in accordance with the seniority of the Head Constables on List D, which may be ignored by the Superintendent of Police in exceptional circumstances only for reasons to be recorded in writing with the approval of the Deputy Inspector-General of Police." 8. Once exemption is given from the requirements under Chapter XIII, there is no necessity to pass the promotion test to become ASI. In fact that provision has been correctly understood by the State itself and that is why in the writ petition, it is stated at Para 2 that the Applicant was given out of turn promotion, in recognition of the great service rendered by him, which entitled him to get the Prime Ministers Life Saving Medal. In fact that provision has been correctly understood by the State itself and that is why in the writ petition, it is stated at Para 2 that the Applicant was given out of turn promotion, in recognition of the great service rendered by him, which entitled him to get the Prime Ministers Life Saving Medal. The State has thus houred him. Apparently, he was sent for the training since it was necessary for further promotion. That is what is precisely stated in Brij Lals case, wherein the Division Bench has clearly held that the relaxation was accorded only for the purpose of promotion to the post of a Constable in that case and for the purpose of further promotion, the incumbent should fulfil the eligibility criteria of clearing the required tests. 9. Seniority is to be counted w.e.f. the date of joining duty in the service unless otherwise stipulated by the rules, to be counted based on the date of advice for appointment. Here the dispute is whether the seniority should be counted w.e.f. the date of actual promotion or the date of passing the test for promotion. Once exempted from passing the test for promotion, the date of promotion alone is relevant for the purpose of seniority and that is what is held by the Administrative Tribunal. Date of passing the test has no relevance for seniority. That is what is correctly and clearly stated in the Rules, stipulating that inter se seniority will be maintained among the qualified persons. 10. Relaxation is not from one of the provisions in the Chapter, but from all the provisions in the Chapter including the pre-requirement of passing the test for promotion. It appears this crucial legal position has missed the notice of the Division Bench in Brij Lals case. Therefore, not only the same is distinguishable on facts being a case of promotion of constable to Head Constable, but also it is one rendered per in curium and hence has no binding value of a precedent. Thus, there is no merit in the writ petition and it is accordingly dismissed, so also the pending applications, if any.