Jagdish Sharan etc. vs The State of H.P. etc.

T.U. Mehta, J.—All these writ petitions are filed by the Petitioners who are serving as Head Constables in the Police Department of the State. Since they are not sent for training for the Intermediate Course at the Police Training College, Phillaur, for the course commencing from the month of October, 1976, they have filed these writ petitions. It is an admitted position that the names of all the Petitioners were at the relevant time in list C. Their case, therefore, is that under Rule 13.9, as it stood before the latest amendment in the month of June 1976, they were entitled to be sent to the above referred training, but the State authorities have declined to send them to the training on they ground that the were governed by the amended Rule 13.9 and, that, they could not stand the test of selection contemplated by the said amended rule. The main stand of the Petitioners is that even according to the amended Rule 13.9 the question whether they should be admitted to the training course or not should have been decided solely on the strength of their inter se seniority and nothing more.

In order to understand the merits of the contentions raised on behalf of the Petitioners it would be necessary to note the provisions of original Rule 13.9 and the amendment brought about by the Himachal Pradesh Government in this rule on 16th June, 1976. The original Rule 13.9 contemplates the preparation of list D for promotion to the higher post of Assistant Sub-Inspector.

This rule was as under:

13.9 (1) A list shall be maintained in each districtin Card Index Form 13.9(1) of those head constables who have passed the lower school course and the Intermediate school course at the Police Training School and are approved by the Deputy Inspector-General as eligible for officiating or substantive promotion to the rank of assistant sub-inspector. No head constable shall be admitted to this list who is not throughly efficient in all branches of the duties of a constable and head constable and of established integrity.

(2) Officiating promotion to the assistant sub-inspector shall be made from the list prescribed in Sub-rule (1), as far as possible in rotation, so as to give each man a trial in the duties of the higher rank. Substantive promotion shall be made by the Deputy Inspector-General in accordance with the principles prescribed in Rule 13.1 and officiating promotion shall be made in accordance with Rule 13.3(2).

(3) Half-yearly reports in Form 13.9(3) on all head constables in this list shall be furnished on the 15th April and the 15th October, to the Deputy Inspector-General.

It would be seen from the provisions of this old Rule 13.9 that those head-constables who had passed the lower school course and Intermediate school course and whose names had been approved by the Deputy Inspector-General were entered in the list D and were considered eligible for officiating or substantive promotion to the higher rank of Assistant Sub-Inspector. A Full Bench of the High Court of Punjab and Haryana has held in Sardul Singh v. I.G.P. Punjab 1970 S.L.R. 505 that it is inherent in Rule 13.9, quoted above, that every head constable on list C has the right to be deputed for the Intermediate school course on his turn and no obstruction could be placed in his way by any of the authorities. It was further observed in that case that the omission to make a provision for selection at the stage of sending head constables for training course in Rule 13.9 was deliberate and hence no head constable could be deprived of his right to go to the training school.

The above referred decision of the High Court of Punjab and Haryana would, however, not apply to the present cases in view of the fact that the scheme of Rule 13.9 stands now completely changed so far as the State of Himachal Pradesh is concerned.

The Government of Himachal Pradesh has changed this Rule 13.9 in exercise of powers conferred by Section 7 of the Police Act by virtue of notification, dated 16th June, 1976. This amended Rule 13.9 is in the following terms:

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 admissin to the promotion course for Head Constables at the Police Training College will be made by the Deputy Inspector-General of Police concerned in the following order of their inter se seniority:

(a) Confirmed head constables;

(b) Head Constables on probations; and

(c) officiating Head Constables who have put in at least 5 years of continuous service in that rank.

No Head Constable shall be eligible for admission to promotion course for Head Constables, unless he had passed middle standard examination.

(2) The names of the Head Constables who qualify at the Police Training College in the promotion Course for Head Constables, will be entered in Part-I of the list ''D'' as soon as they qualify the same. While entering their names in this part, their inter se seniority will be maintained. The names of such Head Constables who have not passed the above mentioned promotion course at Police Training College due to the unavoidable circumstances, but who are otherwise of exceptional merit and are considered suitable for promotion, may, with the approval of the Inspector General of Police, Himachal Pradesh, be entered in Part II of list ''D'' provided such Head Constabls are above the age of 45 years and have put in 10 years of service in that rank. However, not more than 10% of the posts of Assistant Sub-Inspectors both permanent and temporary shall be filled from the names in this part of list ''D''. This part of list ''D'' shall not, at any time, contain names more than 5% 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 by the Superintendent of Police and Commandant Police Battalion, Himachal Pradesh to the Deputy Inspector General of Police, in Form No. 13.9(3) by the 15th of April, each year.

(4) Promotion to the rank of Assistant Sub-Inspector shall be made in accordance with the seniority of the Head Constable on list ''D''., which condition may be ignored by the Superintendent of Police concerned in exceptional circumstances only for reasons to be recorded by him in writing and subject to the prior approval of the Deputy Inspector-General of police of the Range concerned.

It is obvious that this amended rule is sub-divided into four sub-rules. According to Sub-rule (1) the Deputy Inspector-General of Police concerned is required to make "selection" for admission to the Promotion Course for Head Constables. Such a provision was not in the previous Rule 13.9. Therefore, now by virtue of Sub-rule (1) of the Rule 13.9, a Head Constable is required to be "selected" by the Deputy Inspector-General concerned in order of his seniority for the purpose of getting admission to the Promotion Course. Under Sub-rule (2) after the Head Constable so selected undergoes the training at the college and qualifies for the same, his name would be entered in the first part of list D. It is thus clear that unlike the old Rule 13.9 the Head Constable has now to get himself "selected" for the purpose of admission to the training course, and his name would be entered into list D only after he qualifies himself for the said post. According to Sub-rule (4) of the amended Rule 13.9, promotion of such Head Constables to the higher rank of Assistant Sub-Inspector should be in a accordance with his seniority in list D. This seniority can be ignored only under exceptional circumstances, and that too for the reasons recorded.

It should be noted here that by the same notification the Government of Himachal Pradesh has introduced Rule 13.20 by virtue of which a Departmental Promotion Committee (hereinafter called the D.P.C.) is created with a view to ensure that the selections and promotions are made in consonance with relevant rules. This additional Rule 13.20 is in the following terms:

13.20 Departmental Promotion Committee.�In order to ensure that selections and promotions are made in consonance with the relevant rules, Departmental Promotion Committee shall be constituted by the Inspector-General of Police at various levels to consider the eligibility and suitability of the persons to be selected for promotion Course and for giving promotions to higher ranks.

It is thus evident that even for the purpose of being selected for promotion Course, eligibility and suitability of the candidate concerned is required to be determined by a D.P.C. It is an admitted position that pursuant to this added Rule 13.20 a P.D.C. has been constituted. We have got in our file a Standing Order embodying certain rules regarding the object of the D.P.C, its composition, its functions and the manner in which it should carry out the suitability test. This Standing Order is issued on 18th September, 1976 under the above referred additional Rule 13.20. Rule 5 of the Standing Order speaks about the suitability test and prescribes that the Board (D.P.C.) will interview each candidate to see his personality and bearing and may ask such questions as deemed fit to assess the depth of his knowledge of practical police work.

It is an admitted position that the D.P.C. has not recommended the names of these Petitioners with the result that-they could not be sent to take the required course and their juniors whose names were recommended were sent to take this course.

Now the first contention which was raised on behalf of the Petitioners was that the above referred D.P.C. was not legally constituted and was not legally authorised to assess the merits of the Petitioners and others. The contention was that introduction of the test by D.P.C. for the purpose of sending a particular candidate to take the promotion Course is ultra vires and illegal.

We find no substance in this contention because the State Government exercising its powers u/s 7 of the Police Act has full powers to frame rules consistent of course with the provisions of the constitution, and the Police Act itself. It is an admitted position that training facilities at Phillaur are not of the type which would accommodate all the persons who desire to take the course. It would, therefore, be necessary to limit the admissions to a certain number, if the claimants are more than the seats available at Phillaur. The question is how this limit should be placed. That question has been solved by the State by prescribing certain objective standards. The best objective standard would be selection on merit and in order to see whether proper selection on merit is made or not the State has provided for a D.P.C. which is expected to look to the merits of the case and to make recommendation in accordance with the rules framed in the Standing Order. Under the circumstances it is difficult to say how the provision for selection by the D.P.C. for the purpose of sending a particular candidate to take the training course at Phillaur can be considered as ultra vires or illegal.

The Petitioners'' contention was that according to Sub-rule (1) of Rule 13.9 it is only seniority which should govern the question of admission to the training course at Phillaur. In support of this contention it was pointed out that Deputy Inspector-General of Police under this Sub-rule (1) is required to follow the order of inter se seniority of the Head Constables mentioned in Clauses (a), (b) and (c) of this sub-rule. Therefore, according to the Petitioners it is only the seniority which should count for the purpose of selecting persons for admission to the course in question. This contention is not acceptable for the simple reason that Sub-rule (1) of Rule 13.9 uses the word "selection". The word "selection" clearly implies that seniority is not the prime factor which should govern the question of sending candidates for the purpose of taking the training. "Selection" necessarily implies selection on merits, as held by the Supreme Court in Shri Janki Prasad Parimoo and ors. v. State of Jamrnu and Kashmir and Ors. 1973 (1) S.L.R. 719. Therefore, the real interpretation of Sub-rule (1) of Rule 13.9 is that for the purpose of admission to the Promotion Course for Head Constables, the candidate concerned should be selected on merits tempered by his seniority.

In C.W.P. 475 of 1976 and C.W.P. 476 of 1976 the Petitioners have alternatively prayed that they were never considered by the D.P.C. and their professional ability, character and eligibility were never evaluated because it never called them for any interview to judge their suitability, etc. The State has not specifically denied these Petitioners allegation that their personal interview was not taken in order to judge their suitability. We have, therefore, asked the learned Advocate-General to show to us the original record and on perusal of the original record it was found that none of the Petitioners before us, in all the four writ petitions, was called for personal interview.

We have already referred to the Standing Order and specifically to Rule 5 thereof which speaks about the suitability test. The relevant portion of Rule 5 is in the following terms:

Suitability test.�A suitability test of 30 marks will also be held as under:

The Board will interview each candidate to see his personality and bearing and may ask such questions as deemed fit to assess the depth of his knowledge of practical police work, the assessment will be given marks out of 20 marks. Besides, marks will be awarded to a candidate on the basis of his physical fitness including his intrest and particepation in sports and other constructive lobbies out of the remaining marks....

This rule makes it clear that the personal interview of each candidate is a must. It is also clear that as many and 30 marks are allotted on the test of suitability and out of these 30 marks, 20 marks are allotted on the count of personality test and knowledge about practical work. Therefore, if none of the Petitioners of these four writ petitions was personally called for any interview, it is difficult to comprehend how the D.P.C. could have made proper marking on the test of personality and depth of practical knowledge. Therefore, in our opinion, the decision of the D.P.C. in not recommending the names of these Petitioners for admission to the training course is vitiated.

The Petitioners, therefore, become successful in all these writ petitions on the ground that the D.P.C. did not call any of them for personal interview.

In view of this the learned Counsel for the Petitioners do not press for any other points raised in the writ petitions.

All these writ petitions are, therefore, allowed and rule is made absolute accordingly. Since the courses in question are already over and since it is found that the Petitioners lost their chances of appearing in their promotion Courses which are already over for no fault of theirs'', we strongly recommend that their cases in future shall be dealt with by the D.P.C. with leniency and sympathy.