Devendra Prasad and Others vs State of Rajasthan and Others

M.N. Bhandari, J.—1. With the consent of learned counsel for the parties, these writ petitions have been heard finally.

The issue involved in these writ petitions is about eligibility for promotion to the post of Assistant Sub-inspector and to the post of Sub-inspector from the post of Head Constable and Assistant Sub-inspector, respectively.

The petitioners have not been held eligible for promotion to the respective posts for want of experience as given in the Schedule appended to Rajasthan Police Subordinate Service Rules, 1989 (for short "Rules of 1989").

Learned counsel submits that petitioners are in possession of required experience as given under Rule 26 of the Rules of 1989 if it is counted as on 01st April of the year of qualifying examination for promotion. The respondents are counting experience as on 01st April of the year of vacancies of promotional post. It is contrary to Rule 26(4) of the Rules of 1989.

The similar controversy was earlier came for consideration before the Rajasthan Civil Services Appellate Tribunal. It was as to whether experience is to be counted from the date of actual promotion or is to be reckoned from the year of vacancies of promotion. The Tribunal referred to the judgment of Division Bench of this Court in the case of Gokul Singh Vs. State of Rajasthan & Ors. reported in , 2002 (3) WLC 97 and held that experience should be counted from 01st April of year of vacancies against which, promotion was given on the lower post. The order of Tribunal has already been implemented by the Department. The order for it was passed on 26th October, 2013. The respondents were expected to follow the decision of the Tribunal in all the cases of similar nature. The Administration has denied to give same treatment by counting experience from 01st April of the year of promotion on the lower post from which promotion to the higher post is to be given. In view of the above, their action becomes discriminatory in nature.

It is further stated that if, at all, the respondents intend to go strictly by the Rules of 1989, they were expected to convene Departmental Promotion Committee (for short "DPC") every year. It has been done throughout State leaving Jaipur city. It is due to creation of Commissionerate.

A committee was constituted by the respondents vide their order dated 08th December, 2010 for promotion and in pursuance to the said order, promotions were made throughout the State leaving Jaipur city. For Jaipur District, promotions were given to the post of Assistant Sub-inspector. It is for the reason that seniority of Head Constable is maintained at the district level and if range is having two different areas, like, Jaipur city and Jaipur Rural, the seniority is maintained separately. For Jaipur city, promotions were not carried for one or the other reason and mainly due to creation of Commissionerate. The promotions in Jaipur city/Commissionerate were given lately in the year 2013 & 2014. The sufferance is of those, who are working in Jaipur city and now in the Commissionerate. The persons junior to them in Jaipur rural were given promotion somewhere in the year 2011 or so on and now with the constitution of Commissionerate, the persons, working in the Jaipur rural, have been transferred to the Commissionerate with re-constitution of the area of Commissionerate. The junior persons are marching over the petitioners occupying higher posts and at the same time, the petitioners have not been given chance of consideration for promotion to the higher post on account of delay in holding DPC on the lower post.

Per contra, learned Additional Advocate General has contested the case and submits that when the Rule postulates required experience then without actual experience, one is not entitled to get promotion. The duration of experience is different for different posts and categories. In view of the above, petitioners may not be held eligible for promotion to the post of ASI or SI respectively unless they gain experience of required length provided under the Schedule. The experience can be counted from the date of actual promotion and not from 01st April of the year of vacancy of promotion on lower post.

Learned Additional Advocate General Mr. Inderjeet Singh along with Dr. A.S. Khangarot, Additional Government Counsel, however, admitted that judgment of Tribunal on the similar issue has not been challenged but it is for earlier year of vacancy for promotion, then the year involved herein. In view of the above, even if the order of Tribunal has been complied, the decision taken by the respondents therein should not apply to this case.

So far as the issue regarding delay in promotion in Jaipur city is concerned, it is for the reason already explained by the petitioners themselves. Due to creation of Commissionerate, exercise of promotion could not be taken in time, though as per Rule 10 of the Rules of 1989, determination of vacancies should be as on 01st April of the year concerned. The delay in holding DPC was bona fide, thus be condoned and otherwise, the benefit should not be passed on the petitioners contrary to the rules.

A reference of judgment of Apex Court in the case of Haryana State Electricity Board & Anr. Vs. Gulshan Lal & Ors. reported in , (2009) 12 SCC 231 has been given.

A prayer is made to dismiss all the writ petitions.

I have considered rival submissions made by learned counsel for the parties and scanned the matter carefully.

The short controversy involved in these writ petitions is about eligibility of the petitioners for their promotion to the post of ASI and SI. It is in respect of their experience on the lower post. If the promotion is on the post of ASI, one needs to possess experience on the post of Head Constable and if promotion is on the post of Sub-inspector, then experience should be on the post of ASI. The required experience has been given under the Schedule appended to the Rules of 1989.

To examine the issue, it would be gainful to quote Rule 26 of the Rules of 1989, which is quoted thus:

"26. Eligibility for promotion:

(1) ....................

(i) .....................

(ii) ....................

(iii) ...................

(iv) The persons eligible for promotion should have completed the requisite number of years of service as laid down in Column - 6 of Schedule - I on first of April of the year in which the qualifying examination is held."

The Rule, quoted above, provides for experience, as given in the schedule, as on 01st April of the year, in which, qualifying examination is held. In view of the aforesaid, the justification of the respondents to consider the required experience as on 01st April of the year of vacancies of the higher post cannot be accepted, rather goes contrary to the Rules. They are under an obligation to give correct interpretation to the Rules and accordingly, required experience should be determined as on 01st April of the year, in which, qualifying examination is held.

In the present case, the qualifying examinations were held prior to 31st March, 2016, thus crucial date to determine the experience should be 01st April, 2015. In view of the above, argument of the learned counsel for the petitioners needs acceptance. The experience of the petitioners is to be counted as on 01st April, 2015, i.e., the year of qualifying examination.

The other argument is about discrimination between similarly placed candidates.

A similar controversy came up for consideration before the Tribunal. The Tribunal allowed the appeal. The direction was given to count experience from 01st April of the year of vacancies, in which, the last promotion was given to the candidates. In pursuance to the order passed by the Tribunal, an order was issued by the respondents on 26th October, 2013 to apply the order of the Tribunal without its challenge. The consequential benefits of experience were given to the candidates by counting it from the year of vacancies against which promotion was given. For illustration, if for the post of Head Constable, promotion order was passed in the year 2013 but it was against the vacancy year of 2009-10 then the experience has to be counted from 01st April, 2009. The respondents could not provide assistance as to why discrimination has been made now in this case. The respondents could have challenged the order of Tribunal but they passed the order on 26th October, 2013, thus the consequences should apply to the petitioners as well.

The respondents, however, referred the judgment of Apex Court in the case of Haryana SEB & Anr. (supra). Para No. 36 of the said judgment is quoted hereunder for ready reference:

"36. Submission of Mr. Salman Khurshid that the right to obtain same remuneration would carry with it the designation also is not correct. Promotion to a higher post cannot be claimed as a matter of right. Before a person claims promotion, subject of course to just exceptions, the prevailing rules must be followed. If the employee concerned while working in a particular grade does not acquire experience of working therein, he cannot be promoted to the next higher grade although experience in the immediately below post forms part of an essential qualification. A person, thus, who is ineligible to hold the post cannot be directed to be promoted thereto only on the ground of so called equality doctrine or otherwise."

The judgment supra makes it clear that unless a candidate possesses the required qualification, he cannot be promoted on the higher post. The judgment aforesaid has been referred by the learned counsel for the respondents now, though it should have been taken into consideration before passing the order on 26th October, 2013 for implementation of the order of the Tribunal. The respondents cannot be allowed to apply the law with discrimination and as per their own sweet will. If the actual period of experience alone is to be counted then question is as to why the respondents deviated from it while passing the order dated 26th October, 2013 and also by Rule 26(4) of the Rules.

In any case, almost all the petitioners are in possession of required experience as per Rule 26(4) of the Rules of 1989. They have already completed experience as on 01st April 2015 as the qualifying examinations have been held on or before 31st March, 2016.

There are few petitioners, who are not possessing requisite experience as on 01st April, 2015. The respondents issued an order on 08th December, 2010 to constitute a committee for promotion to the post of Head Constable as well as ASI. In pursuance to the said order, the Committee made promotions throughout the State leaving Jaipur city. It may be due to the reason explained by the respondents but their default cannot be to the detriment to the petitioners herein. It is moreso when, Jaipur range is divided in two parts, i.e., city and rural and even in Jaipur range, promotions were made on post of ASI in Jaipur rural but similar exercise was not undertaken in Jaipur city due to creation of Commissionerate.

The question would be as to whether delay caused by the respondents in making promotion for any reason can be detriment to the rights of the petitioners and, that too, in discrimination. It is moreso when many of the junior persons to the petitioners in Jaipur Rural are now brought in Commissionerate on its creation. The delay in holding promotion to the post of ASI and Head Constable in Jaipur city has given cause to the present litigation, as the petitioners are none else but mostly working in Jaipur city. Looking to the overall facts of the case, I am of the opinion that delay in holding DPC only in the Jaipur city leaving entire State cannot be to the detriment of the rights of the petitioner.

In view of the above, all the writ petitions are allowed with the following directions:

(i) the respondents are directed to count experience as on 01st April of the year of qualifying examination for promotion and if any of the petitioners have completed the required experience as on 01st April of the year of qualifying examination, then to be held eligible for promotion. It is by taking correct interpretation of Rule 26(4) of the Rules of 1989.

(ii) If any of the petitioners are not falling in the category given above and is working in Jaipur city/Rural then taking into consideration the delay in holding promotion to the post of Head Constable or ASI, the respondents are directed to pass on the benefits to the petitioners because delay in holding DPC cannot be to the detriment of the rights of the petitioners. It is moreso when after constitution of Committee on 08th December, 2010, promotions were made throughout the State leaving Jaipur.

(iii) The delay in making promotion to the lower post should not be to the detriment of the rights of the petitioners, rather their experience would be counted without discrimination as per the decision dated 26th October, 2013.

(iv) The petitioners have already appeared in the qualifying examination held by the respondents and it has been conducted in this year, thus their result would be declared after governing their candidature by the directions given above and if anyone qualifies, then consideration of the candidature would be made for promotion to the higher post in accordance to the Rules and if they are found eligible, then would be given promotion to the higher post of ASI or SI, as the case may be.