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Himachal Pradesh High Court · body

2012 DIGILAW 865 (HP)

Shagun Sharma v. State of Himachal Pradesh

2012-11-22

V.K.SHARMA

body2012
Judgment V.K. Sharma, J. Since common questions of fact and law are involved in both these petitions, the same are being disposed of by a common judgment. 2. The petitioners are working as constables on the establishment of the respondent-Police Department of the Government of Himachal Pradesh. The next promotional post is that of head constable. Those constables, who pass B-I test, are deputed for the Lower School Course. On successful completion of the said Course, the incumbent is promoted as head constable on the basis of merit in the said Course in terms of Rule 13.7 of the Punjab Police Rules, 1934 (as applicable to Punjab, Haryana, Himachal Pradesh and Delhi), which is as under:- “13.7. List ‘B’. Selection for admission to promotion Course for Constables at the Police Training College.—(1) List ‘B’ in Form 13.7 shall be maintained by each Superintendent of Police. It will include the names of all Constables selected for admission to the Promotion Course for Constables at the Police Training College. Selection will be made in the month of January, each year and will be limited to the number of seats allotted to districts for the year with a twenty per cent reserve. Names will be entered in the list in order of merit determined by the Departmental Promotion Committee constituted by the Inspector-General of Police on the basis of tests in parade, general law (Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and Local and Special Laws) interview and examination of records. Names will be entered in the list in order of merit determined by the Departmental Promotion Committee constituted by the Inspector-General of Police on the basis of tests in parade, general law (Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and Local and Special Laws) interview and examination of records. (2) All Constables— (a) who are middle pass and have put in more than four years of service; (b) who are at least matriculates and have put in more than three years of service; or (c) who obtain first class with credit in the Recruits Course specified in rule 19.2; will be eligible to have their names entered in the aforesaid list, if they are not above thirty years of age on the first day of July in the year in which the selection is made; Provided that no Constable who has been awarded a major punishment within a period of three years preceding the first day of January of the year in which selection is made will be eligible for admission to this lists and if any Constable whose name has been brought on this list is not sent to the Police Training College in that year he will be required to compete again with the new candidates, if he is still eligible for admission to the said list under the rules. (3) Temporary Constables brought on List ‘B’ shall be absorbed in the regular establishment in preference to others. (4) No Constable who has failed to qualify in the promotion course for Constables shall be readmitted to List ‘B’, unless the Principal, Police Training College, for the reasons to be recorded in writing considers him deserving of another chance and he is still eligible. The reasons are to be communicated to the Superintendent of Police concerned.” 3. Admittedly, the petitioners have qualified B-I test. The petitions have been filed by them for grant of a direction to the respondents to send them for undergoing Lower School Course forthwith without any further delay. 4. Pleadings on behalf of the parties by way of reply, rejoinder and sur-rejoinder are complete. 5. Admittedly, the petitioners have qualified B-I test. The petitions have been filed by them for grant of a direction to the respondents to send them for undergoing Lower School Course forthwith without any further delay. 4. Pleadings on behalf of the parties by way of reply, rejoinder and sur-rejoinder are complete. 5. In reply, the respondents have taken the stand that in view of standing order No. 03/2012 dated 4.4.2012, Annexure R-1, proceedings of meeting held on 16.8.2012, Annexure R-2 and fax message dated 28.8.2012, Annexure R-3, the petitioners are not eligible for being sent for Lower School Course, being lower in merit and for want of vacancies. 6. By filing rejoinder, the petitioners have refuted the above stand on behalf of the respondents. According to them, they fulfill the requisite merit criteria in terms of Clause 16 of the standing order, circulated vide letter dated 13th September, 1993, Annexure PR-3, which is extracted below and there are sufficient vacancies, against which they can be sent to undergo the aforesaid course:- “16. The constables who duly qualify the B-I test will not have to appear again in the same test. All the successful candidates will be kept in a panel and they will be sent for lower school course on merit basis as per available vacancies.” 7. It is further averred as under on behalf of the respondents, vide relevant portion of para 3 of the sur-rejoinder:- “x x x x x x x x x x In accordance with the said rules, out of 2608 posts 387 posts are meant for promotion under 15% quota. On the basis of said Rules as on 1.9.2012, out of 311 vacant posts of Head Constables 46 posts are meant for promotion under 15% quota and only 273 posts are available for those candidates who qualifies the Lower School Course. A chart showing the vacancies as stated above is appended as Annexure R-A.” 8. On the basis of said Rules as on 1.9.2012, out of 311 vacant posts of Head Constables 46 posts are meant for promotion under 15% quota and only 273 posts are available for those candidates who qualifies the Lower School Course. A chart showing the vacancies as stated above is appended as Annexure R-A.” 8. However, pursuant to the order passed by this court on 27.9.2012, whereby the learned Assistant Advocate General was granted time to obtain instructions in the matter, followed by orders dated 5.10.2012 and 12.10.2012, the learned Deputy Advocate General has brought on record a communication dated 22.11.2012, addressed by the Director General of Police, Himachal Pradesh to the learned Advocate General, Himachal, text whereof is as under:- “x x x x x x x x In this regard, it is submitted as per revised vacancy position 273 posts of Head Constables are available for the candidate who have qualified the B-I test. 218 Constables have already been deputed for the Lower School Course. Lower School Course is of 18 weeks duration. The said course has been commenced w.e.f. 27.8.2012 and is in mid way. Thus it will not be in the administrative interest to depute the remaining 55 Constables for the said course. The remaining 55 Constables in accordance with their merit position will be deputed in the next course.” 9. Thus, it is manifest that as per revised vacancy position, 273 posts of head constables were available for the candidates, who have qualified B-I test, out of which 218 constables have already been deputed for the Lower School Course, meaning thereby that 55 posts of head constables are still available, against which the petitioners can also be accommodated. However, it is stated that Lower School Course is of 18 weeks duration. The Course has commenced w.e.f. 27.8.2012 and is already midway. Thus, it will not be in the “administrative interest” to depute the remaining 55 constables for the said Course. However, they will be deputed in the next Course in accordance with their merit. 10. Indisputably promotion to the post of head constable is made on the basis of the merit acquired by the incumbent in the Lower School Course. Thus, it will not be in the “administrative interest” to depute the remaining 55 constables for the said Course. However, they will be deputed in the next Course in accordance with their merit. 10. Indisputably promotion to the post of head constable is made on the basis of the merit acquired by the incumbent in the Lower School Course. Once the batch already undergoing training is available for consideration for promotion to the post of head constable and such promotions are made, they would rank senior to the petitioners, who are also from the same batch and it shall be to their detriment. 11. The record reveals that the respondents have coming up with different vacancy positions from time to time, as reflected in reply and sur-rejoinder and the documents submitted therewith and the aforesaid communication dated 22.11.2012. Thus, it shall not be unsafe to conclude that had due diligence been exercised by the respondents, the petitioners could also have been considered for being sent for Lower School Course, in accordance with their merit, at the very initial stage, when the Course had commenced on 27.8.2012. However, since it was not done, now it cannot be said that the Course has already started and it shall not be in the interest of administration to depute the remaining 55 constables for the said Course. 12. In view of the above, the petitions succeed and are accordingly allowed with a direction to the respondents to send the petitioners for undergoing Lower School Course in accordance with their merit drawn in B-I test forthwith without any further delay and in any case latest by 30th November, 2012 with further direction to draw joint merit list of the candidates already undergoing Lower School Course w.e.f. 27.8.2012 and those of the eligible petitioners, who successfully complete such Course. 13. The petitions as also pending CMP(s), if any, stand disposed of in the above terms.