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2016 DIGILAW 610 (RAJ)

Rakesh Yadav v. State of Rajasthan

2016-05-02

VEERENDR SINGH SIRADHANA

body2016
ORDER : Veerender Singh Siradhana, J. 1. Final seniority list of the post of Sub-Inspectors was published by the respondent- Department on 8th April, 2015, (Annexure-5), wherein the name of the petitioner found place at Serial No. 124. Vide impugned order dated 18th January, 2016 (annexure-13), the name of the petitioner was deleted from the final seniority list, without any notice and without jurisdiction of which the petitioner is aggrieved of, and therefore, has instituted the present writ application praying for the following reliefs: "(i) the order bearing number 729-45 dated 18.1.2016 issued by the Deputy Inspector General of Police, State Special Branch (Annexure-13) and the order bearing No. 750-59 dated 18.1.2016 issued by the Superintendent of Police, Intelligence (Raj.), Jaipur (Member-Secretary) (Annexure-14) may kindly be ordered to be quashed and set aside. It may kindly be held that the petitioner is entitled to appear in the eligibility test for promotion on the post of Inspector, Intelligence Branch on the basis of his seniority as on 1.4.2014 in I.B. And the respondents may kindly be directed to consider the candidature of the humble petitioner for promotion on the post of Inspector (I.B.); (ii) by an appropriate writ, order or direction the respondents may kindly be directed to give promotion to the petitioner on the post of Inspector against the vacancy of the year 2011-12, 2012-13, 2013-14 and 2014-15 with all consequential benefits; (iii) by an appropriate writ, order or direction it may kindly be declared that as the petitioner already qualified the examination for promotion on the post of Inspector (I.B.) as such the petitioner is entitled for exemption to again appear in the examination and he may be considered for promotion on the post of Inspector (I.B.) without appearing in the examination for the year 2014-15 and the respondents may kindly be directed to consider the petitioner as a qualified candidate and accordingly the promotion benefit may be granted to him with all consequential benefits: (iv) any other order or direction which this Hon'ble Court deems just and proper may also be passed in the facts and circumstances of the case." 2. Shorn off unnecessary details, the essential skeletal material facts necessary for appreciation of the controversy raised are that the petitioner was initially appointed on the post of Assistant Sub-Inspector, C.I.D. (Intelligence) on 7th February, 1996, and was posted at State Special Branch (I.B.). Shorn off unnecessary details, the essential skeletal material facts necessary for appreciation of the controversy raised are that the petitioner was initially appointed on the post of Assistant Sub-Inspector, C.I.D. (Intelligence) on 7th February, 1996, and was posted at State Special Branch (I.B.). He was accorded promotion to the post of Sub Inspector on 11th November, 2004 (Annexure-1). Being eligible, he successfully participated in the eligibility test for promotion to the post of 'Inspector' in the State Special Branch (I.B.) for the year 2011-12, 2012-13 and 2013-2014, as would be evident from the materials available on record. Final seniority list of the post of 'Sub-Inspector' was published by the respondent-Department on the basis of seniority as on 1st April, 2014 (Annex.-5), wherein the name of the petitioner found place at Serial No. 124. 3. Mr. R.N. Mathur, learned Senior Counsel, assisted by Mr. C.L. Saini, reiterating the pleaded facts and grounds of the writ application, contended that Notification dated 11th February, 2015 (Annex.-6), was issued by the Director General of Police, Rajasthan, amending the Rajasthan Police Subordinate Service Rules, 1989 (for short, 'the Rules of 1989'). The Notification contemplated that competitive merit examination for the post of 'Police Inspector (Intelligence Branch)' shall be conducted at the level of Police Headquarter on the basis of the seniority of Sub-Inspectors in Intelligence Branch as on 1st April, 2014. Further, 61 vacancies were determined for the year 2014-2015, further indicating that 26 persons were already selected for promotion. 4. Vide impugned orders dated 18th January, 2016, (Annexure-13 and 14), the State-respondents have declared the petitioner as ineligible to participate in the examination deleting his name from the final seniority list dated 8th April, 2015 (Annexure-5), as on 1st April, 2014, of which the petitioner is aggrieved of. 5. It is asserted that though the petitioner was successful in the qualifying examination for the vacancy of year 2011-12, 2012-13 and 2013-14 against 367 vacancies but could not be accorded promotion. 6. According to the learned counsel, the final seniority list issued by the Inspector General (Intelligence Branch) as on 1st April, 2014, wherein the name of the petitioner appeared at Serial No. 124; was interfered with by the Deputy General of Police, Rajasthan, who is lower in rank and the Superintendent of Police with adverse consequences to the petitioner without affording an opportunity of hearing in utter violation of cardinal principles of natural justice. 7. It is further urged that the orders impugned Annexure-13 and 14 dated 18th January, 2016, also suffered with the vice of jurisdictional error. 8. Referring to the Scheme of Composition and Strength of the Service as contemplated under Part-II (Cadre) of the Rules of 1989, it is pointed out that the service, which earlier consisted of four 'Sections' was later on vide (Third Amendment) Rules, 2012, amending the Rules of 1989 vide Notification dated 30th September, 2013, provided for six 'Sections'. Section-V of Intelligence Branch and Section-VI-'Rajasthan Industrial Security Force', were created. 9. Learned counsel further urged that Circular dated 11th February, 2015 (Annexure-6) was issued in the backdrop of Rajasthan Police Subordinate (Third Amendment) Rules, 2012, which specifically contemplated under Clause-V for the promotion to the vacancies of year 2014-15 from the post of Sub-Inspector (I.B.) to Inspector (Intelligence) at Branch level in accordance with the seniority list as on 1st April, 2014, wherein the name of the petitioner was included at Serial No. 124 and he was within the zone of consideration and was eligible to participate. However, in view of the impugned orders dated 18th January, 2016, (Annexure 13 & 14), the petitioner's name was deleted from the final seniority list, and therefore, the petitioner approached this Court. 10. In response to the notice of the writ application, the State-respondents have filed their counter-affidavit resisting the claim pleading preliminary objections as to the very maintainability of the writ proceedings in view of Section 2(f)(ii) of the Rajasthan Civil Services (Service Matters Appellate Tribunal), Act, 1976, for the matters relating to seniority, promotion, confirmation, fixation of pay etc. etc. are to be instituted before the Tribunal. 11. Mr. Inderjeet Singh, learned Additional Advocate General, while supporting the stand of the State-respondents, in issuing the orders Annexure-13 and 14 of even date (18th January, 2016), would submit that the orders have been issued as a consequence of Circular dated 11th February, 2015, that was issued in the backdrop of Notification dated 30th September, 2013, in view of the amendment in the Rules of 1989. 12. 12. Though, the learned counsel did not dispute the law declared by the Hon'ble Supreme Court in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 1 , but asserted that since the matter relates to promotion, therefore, the writ application is not maintainable for availability of alternative, efficacious and speedy remedy before the Rajasthan Civil Services Appellate Tribunal, Jaipur. 13. It is further contended that the petitioner though qualified the examination with reference to the vacancies of the year 2011-12, 2012-13 and 2013-14, but owing to option exercised vide communication dated 26th May, 2014, his name was placed at serial No. 1137, in the seniority list, whereas the last selected candidate from general category was at serial No. 656. 14. At motion stage, on 3rd February, 2016, while issuing notice to the State-respondents, an interim protection was granted in favour of the petitioner, allowing him to appear in the qualifying test for the post of Inspector (I.B.) on provisional basis and the result was to be kept in sealed cover. On 29th April, 2016, learned Additional Advocate General, appearing for the State-respondents, produced the sealed cover containing the result of the petitioner wherein he was declared successful, therefore, the matter was ordered to be taken up for final adjudication with the consent of the learned counsel for the parties. 15. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 16. Indisputably, the petitioner's name in the final seniority list as on 1st April, 2014, was reflected at Serial No. 124, as would be evident from the final seniority list Annexure-5 dated 8th April, 2015. It is also not disputed that as a consequence of Notification dated 30th September, 2013, amending the Rules of 1989, new Sections under Rule 4, including Section-V-Intelligence Branch, was created. It is also not disputed that as a consequence of Notification dated 30th September, 2013, amending the Rules of 1989, new Sections under Rule 4, including Section-V-Intelligence Branch, was created. At this juncture, it will be relevant to consider the text of Circular dated 11th February, 2015 Clause-V, which reads thus:- ^^o"kZ 2012&2013 ,oa 2013&2014 ds fy, iqfyl mi fujh{kd ¼bUVsyhtsal½ ls iqfyl fujh{kd ¼bUVsyhtsal½ in dh ;ksX;kRed ijh{kk iwoZ dh Hkkafr ¼lh-ih-@,-ih-½ ds lkFk iqfyl eq[;ky; Lrj ij dh tkosxh rFkk fnukad 30-09-2013 dks uksfVfQds'ku gksus ds dkj.k o"kZ 2014&2015 ds fy, iqfyl mi fujh{kd ¼bUVsyhtsal½ ls iqfyl fujh{kd ¼bUVsyhtsal½ in dh ;ksX;kRed ijh{kk bUVsyhtsal 'kk[kk Lrj ij fnukad 01-04-2014 dh fLFkfr vuqlkj tkjh ojh"Brk lwph ds vk/kkj ij dh tkosxhA** 17. A glance of the Clause-V would reveal that the qualifying examination for the promotion to the post of Police Inspector (Intelligence) from the post of Sub-Inspector (Intelligence), for the vacancies of the year 2014-15 was to be conducted on the basis of the final seniority list as on 1st April, 2014, wherein the name of the petitioner appeared at Serial No. 124. 18. As per Rules, the post of Inspector has to be filled up 100% by promotion from the post of Sub-Inspector in possession of eligibility. The eligibility of the petitioner is not in question. 19. The issue of alternative remedy may not detain this Court for long for what has been held by the Hon'ble Apex Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others (supra), holding thus: "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose." 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case law on this point but to cut down this circle of forensic whirlpool we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." 20. From the facts and materials available on record, it is not in dispute that the impugned orders of even date (18th January, 2016) Annexure-13 and 14, have been issued without affording any opportunity of hearing to the petitioner wherein his crytalilsed vested rights as to the seniority and consequent eligibility; have been interfered with in violation of principles of natural justice. 21. It is further reflected from the materials available on record that the petitioner earlier submitted his option for Intelligence Branch (I.B.) while options were called for to retain/remain in I.B. prior to 1st April, 2014. The petitioner, thus, wanted to avail of the chance of his promotion as to vacancies of year 2014-15 in I.B. 22. The issue of jurisdiction has also not been explained in the counter affidavit. Therefore, the impugned orders are bad in the eye of law and in the opinion of this Court as well. 23. For the reasons and discussions aforesaid, the writ application succeeds and is hereby allowed. 24. The State-respondents are directed to proceed with the selection process, declaring the result of the petitioner, in accordance with law, wherein he participated in compliance with the permission of this Court. The petitioner be considered and accorded appointment, if he is otherwise found suitable. All the consequential benefits would be admissible to the petitioner on notional basis. 25. However, in the facts and circumstances of the case, there shall be no order as to costs.