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2023 DIGILAW 392 (RAJ)

Director General of Police v. Mahaveer Singh

2023-02-02

SUDESH BANSAL

body2023
ORDER 1. All these writ petitions have been preferred by petitioners, challenging the order dated 7.4.2021 whereby and whereunder the Rajasthan Civil Services Appellate Tribunal, Jaipur has conjointly decided as many as 25 appeals filed by respective parties (respondents herein) and following order has been passed:- 'In view of the above the appeal succeeds as under:- (i) The 29 persons selected in the qualifying test of 2012-13, cannot be rolled over to 2013-14. (ii) Those who failed in the test in 2012-13, but succeeded in 2013-14 will rank junior to those who succeeded in the test for 2012-13. (iii) The seniority of the appeal cannot be pushed down to 2013-14, if he qualified the test for 2012-13, he will remain there, he cannot be placed below the private respondents who failed in 2012-13. The vacancy year of 2012-13 will not be changed to 2013-14 for the appellant, to that extent order of 24.02.2019 is set aside. (iv) If there is no vacancy for the appellant in 2012-13, he will still be there in view of his qualifying the eligibility test for that year and there will now be a shadow/notional/ex-cadre vacancy for that year to accommodate the appellant. (v) The review of vacancies for 2009-10 to 2015-16 cannot be done in a way as to lump together the vacancies of post years, as to reduce the vacancies after notification, test and PCC. Vacancies are to be determined yearwise as per Rajasthan Police Subordinate Service Rules, 1989 and DOP circular dated 04.06.2008. (vi) No pre-ponement of selection year after review and re-determination of vacancies subsequently is permitted under rule, hence, all such pre-ponement is unlawful. Change in seniority or year of selection always requires prior opportunity of hearing to affected persons which was not done in the present case. Similarly, the post ponement of year of selection, in this case for the appellant, is not permitted. He will stand promoted from 2012-13 and order of 24.02.2019 to that extent is nonest.' 2. Heard counsel for both parties at length and perused the record. 3. Similarly, the post ponement of year of selection, in this case for the appellant, is not permitted. He will stand promoted from 2012-13 and order of 24.02.2019 to that extent is nonest.' 2. Heard counsel for both parties at length and perused the record. 3. It appears that from the record that respondents raised their grievance before the Tribunal by way of filing appeals to the effect that a notification No.2582 dated 18.9.2015 for filling up 57 vacancies of Head Constable in District Nagaur of the year 201213 was issued and respondents appeared in the promotion test and were declared eligible, thereafter respondents appeared in qualifying test held on 11.10.2015 and were declared passed in written test, as such respondents were required to accord promotion on the post of Head Constable for the year 2012-13. It was submitted that since later on 29 vacancies of Head Constable, created due to promotion to the post of ASI for the year 2012-13 were deleted from vacancies of Head Constable of the year 201213 and even out of 28 vacancies further promotion of 4 candidates was withdrawn reducing vacancies to 24, therefore, all respondents prayed to accord the promotion on the post of Head Constable from the year 2012-13 as they have cleared the qualifying test of promotion for such year. That apart, respondents were accorded promotion from the year 2013-14 and even other Constables who failed to qualify the promotion test for the year 2012-13 were placed upper in the list of promotion for the year 2013-14, therefore, respondents also prayed for that Constables who had appeared in the qualifying exam of Head Constable for the year 2012-13 but remained failed, cannot be given higher seniority to respondents in the list of promotion for the year 201314 and in this context, the select list No.810 and 811 dated 24.2.2019 of District Nagaur was challenged. 4. Learned Tribunal, in the order dated 7.4.2021, observed that the recruitment and promotion to the post of subordinate police service is governed by the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred as 'the Rules of 1989') and as per provisions of Rule 36 and sub-Rule 6 of Rule 27 of the Rules of 1989, the seniority list will be determined every year on 1st April. The circular dated 4.6.2008, issued by the Department of Personnel, Government of Rajasthan clearly provides the manner of determination of seniority. The circular dated 4.6.2008, issued by the Department of Personnel, Government of Rajasthan clearly provides the manner of determination of seniority. The Tribunal, categorically observed that persons who got selected in the test for vacancies of 2012-13 cannot be allowed to be promoted against the next year in 201314, without appearing in the qualifying test for the year 2013-14, even if the Department indicate revision/review of vacancies subsequently due to whatever exigency. Therefore, appeals have been allowed with declaration that those persons who were selected in the select list of 2012-13 will get promotion for the same year i.e. 2012-13. The Tribunal also declared that persons who failed in the test in 2012-13, but succeeded in test of year 2013-14, will rank junior to persons who succeeded in test of promotion on the post of Head Constable for the year 2012-13. For clearance, findings and final order of the Tribunal dated 7.4.2021 has been extracted hereinabove. 5. Learned counsel Mr. Rupin Kala appearing on behalf of petitioner-Department states at bar that in writ petitions, it was pleaded that determination of vacancies of promotional examination from the year 2009-10 to 2016-17 was done in compliance of the order dated 30.5.2017 passed by the Division Bench of this Court in Rajendra Kumar Khandelwal Vs. Director General of Police, D.B. Special Appeal No.1004/2015 and other connected matters and due to redetermination of vacancies of promotional posts, number of earlier declared vacant posts of Head Constable for promotion was reduced to 24 vacant posts for the year 2012-13 and placing resort to Rule 36(5) of the Rules of 1989. He prayed that the order dated 7.4.2021 passed by the Tribunal issuing directions to accord promotion to respondents-employees on the post of Head Constable from the year 2012-13 and if there is no vacancy in the year 2012-13, shadow/notional/ex cadre vacancies for that year be created, be quashed and set aside. 6. However, it has been stated that during course of pendency of these writ petitions, in other bunch of writ petitions, the lead case is State of Rajasthan & Anr. Vs. Krishna Kumar, S.B. Civil Writ Petition No.5926/2022 and other connected matters decided on 27.9.2022, issues with regard to the promotion from the post of Constable to Head Constable and from the post of Head Constable to ASI, were considered and decided after extensive discussion of factual and legal aspect. Vs. Krishna Kumar, S.B. Civil Writ Petition No.5926/2022 and other connected matters decided on 27.9.2022, issues with regard to the promotion from the post of Constable to Head Constable and from the post of Head Constable to ASI, were considered and decided after extensive discussion of factual and legal aspect. In such writ petitions, an additional affidavit dated 16.4.2022 was filed on behalf of the State Government wherein it was admitted that some mistake has been committed by the Police Department, in calculating the year wise vacancies. As per Rule 10 of the Rules of 1989, it is incumbent for the Department to determine year wise and further to hold written examination every year and to prepare the select list/approved list every year in congruity to provisions and scheme as provided in the Rules of 1989. Learned counsel for the petitioners states that in case of Krishna Kumar (supra), dispute was in respect of Jaipur District. However, similar is the situation in Nagaur District and therefore, these writ petitions be disposed of in terms of directions issued by the Coordinate bench in case of Krishna Kumar (supra) applying mutatis mutandis to present writ petitions, involving cases belonging to District Nagaur. Learned counsel for petitioners admits that the Department would follow directions issued by the Coordinate Bench in Krishna Kumar (supra). For ready reference, directions issued by the Coordinate Bench in Krishna Kumar (supra) are reproduced hereunder: 'In view of the above discussion, allowing or dismissing the writ petitions will not solve the problem which can affect the rights of the employees in the department and it will be injustice to them by not giving them promotion in the year from which they are entitled and that will affect their work performance also. The respondent-State is duty bound more particularly the police department to determine the year wise vacancies as per the procedure prescribed under the Rules and to hold promotional activities every year as mentioned in the Rules of 1989 and to hold the departmental written examination for promotion from the post of Constable to Head Constable and from Head Constable to ASI. As recorded above, the State Government has admitted its mistake in their additional affidavit filed before this Court on 16.04.2022 that some mistake has been committed in calculating the year wise vacancy then no option left with this Court except to direct the State Government to again determine the year wise vacancy, to hold the written examination every year and prepare the select list/approved list every year as per the Scheme of Rules of 1989. Now it shall determine the year wise vacancy as the officers of the department more particularly the Commissionerate of Jaipur has already failed in its duty to determine the year wise vacancy and complete the promotional exercise, therefore, under the facts and circumstances, I deem it just and proper to dispose of these writ petitions with the following directions:- (i) The Additional Chief Secretary (Home) is directed to constitute a High Level Committee of three members i.e. Secretary (Home), Secretary (DOP) & Additional Director General of Police (Recruitment) (ii) The Committee so constituted shall determine the year wise vacancies for promotion from the post of Constable to Head Constable and from Head Constable to ASI and shall complete the promotion process strictly in accordance with the Rules of 1989. (iii) In case of any difficulty in making the promotions the State Government is free to create superannuate posts in view of Rule 18 of RSR. (iv) The compliance be made within a period of six months. (v) The orders passed y the Tribunal impugned in the respective petitions stand modified accordingly in the above terms.' 7. Per contra, learned counsel appearing for respondents-employees submit that it is not in dispute that respondents have selected in the qualifying and promotional test for the year 201213 and they should be given promotion with seniority on the post of Head Constable from the year 2012-13 itself, therefore, directions issued by the Tribunal in the impugned order dated 7.4.2021 do not call for any interference. Further those constables, who failed in test in 2012-13, but succeeded in test in the year 2013-14, obviously be ranked junior to respondents, who have qualified and succeeded in test in the year 2012-13, therefore, directions of the Tribunal in the impugned order dated 7.4.2021, to put those Constables who failed in the test in the year 2012-13 but succeeded in 2013-14 will rank junior to respondents who have succeeded in test for 2012-13, are well within jurisdiction and do not call for any interference. Further, to this extent, it means in respect of directions in Clause 6(ii) in the order of Tribunal dated 7.4.2022, no challenge has been made by any Constable. Therefore, as far as directions in Clause 6 (i), (ii) and (iii) is concerned, same deserve to be affirmed and the order dated 24.2.2019 has rightly been set aside by the Tribunal to that extent. 8. Learned counsel for respondents-employees states that if the petitioner-Department, in compliance of directions issued by the High Court, in Krishna Kumar (supra) is going to re-determine year wise vacancies for promotion from the post of Constable to Head Constable in District Nagaur as well, they have no objection and if after re-determination of vacancies, sufficient number of vacancies for the promotional post of Head Constable occurs to adjust respondents-employees to accord promotion/Seniority on the post of Head Constable from the year 2012-13, there would be no need to create shadow/superannuated posts but in case, sufficient number of vacancies for promotional posts of Head Constable do not arise, then petitioner-Department is bound to create shadow/superannuated posts in view of Rule 18 of the Rajasthan Service Rules, 1951 (hereinafter referred as 'the Rules of 1951') as directed by the High Court in case of Krishna Kumar (supra). Thus, they submit that in this way, directions issued by the Tribunal in the impugned order dated 7.4.2021 stand complied with and the order of Tribunal is not required to be modified/set aside. 9. Thus, they submit that in this way, directions issued by the Tribunal in the impugned order dated 7.4.2021 stand complied with and the order of Tribunal is not required to be modified/set aside. 9. In rejoinder, learned counsel for petitioners do not dispute contentions made by counsel for respondents and after redetermination of year wise vacancies for promotional posts of Head Constable, in case all respondents do not find accommodation on the promotional post of Head Constable for the year 2012-13, as per directions issued by the High Court in Krishna Kumar (supra), superannuated posts as per Rule 18 of the Rules of 1951 would be created. 10. Having considered the rival contention as recorded hereinabove and made by counsel for both parties, there is no dispute to the fact that respondents-employees have qualified the promotional test for the year 2012-13 for the post of Head Constable and they deserve to give promotion/seniority on the promotional post of Head Constable from the year 2012-13. It is also not in dispute that persons who failed in qualifying test in the year 2012-13 but succeeded in the year 2013-14, will rank junior to respondents who have succeeded the qualifying test of promotion in the year 2012-13. Thus, directions issued by the Tribunal in the order dated 7.4.2021 are hereby affirmed. 11. As far as creation of shadow posts for according promotion/seniority to respondents on the post of Head Constable from the year 2012-13 is concerned, since the Coordinate Bench in Krishna Kumar (supra), has issued directions to petitionerDepartment to constitute a committee for re-determination of year wise vacancies for the promotion process strictly in accordance with the Rules of 1989 as also has observed to create superannuated posts in view of Rule 18 of the Rules of 1951, in case of any difficulty, this Court finds that such directions are applicable mutatis mutandis in case of respondents-employees belonging to District Nagaur as well and counsel for petitioners do not dispute the same. Thus, needless to clarify that all respondents-employees would be placed on the promotional post of Head Constable from the year 2012-13 and even if after redetermination of year wise vacancies for promotional post of Head Constable, all respondents are not accommodated, the State Government shall be free to create shadow/superannuated posts in view of the Rule 18 of the Rules of 1951, in order to adjust all respondents on the promotional post of Head Constable from the year 2012-13. 12. Therefore, following the directions issued by the High Court in Krishna Kumar (supra), without interfering with the impugned order dated 7.4.2021 passed by the Tribunal, all these writ petitions stand disposed with observations/findings made hereinabove. 13. Stay applications and other pending application(s), if any, also stand disposed of. 14. SBCWP No.17919/2022 and 19057/2022 have been detached from this bunch of writ petitions.