1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.2061/2005. (Rahman Khan Vs. State of Rajasthan & Others) DATE OF ORDER : September 02, 2008 P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. M.R. Singhvi for petitioner. Mr. R. Bhati, Counsel for the State. Reportable : BY THE COURT : In this writ petition, the petitioner has prayed for quashing impugned order Annex.-12 dated 09.03.2005 and prayed for direction to the respondents to post him as Head Constable MT with all consequential benefits as given to similarly situated persons Amrit Lal, Surendra Singh and Chandra Bahadur. The petitioner has further sought direction to the respondents to permit him to apply for the post of Sub Inspector MT and consider his candidature and, if he is found suitable, to give him all consequential benefits in the matter of promotion, pay fixation, and seniority as Sub Inspector. The summarized submissions in the writ petition indicate that petitioner was initially appointed as Constable MT, more specifically as Driver in 1975. He was however promoted as Head Constable in accordance with Rule 28A 2 of the Rajasthan Police Subordinate Service Rules 1989 (in short, hereinafter called “the Rules of 1989”). Rule 28A of the Rules of 1989 provides that 10% of the posts which are to be filled in by promotion are reserved and the same are to be filled in by the Director General/Inspector General of Police out of those personnel who have shown outstanding work in the anti-dacoity, anti-smuggling or in any special field of Police work including performance in games and sports, or have put in not less than 20 years of service exclusively as member of the police service and also have exceptionally good and unblemished record of service with integrity. However, at the time of consideration of his case for promotion the vacancy of the post of Head Constable MT was not available and, therefore, the petitioner was provided promotion to the post of Head Constable as per Rule 28A of the Rules of 1989. Later on, in the event of availability of the vacancy of Head Constable MT a representation was filed by the petitioner and other persons. The case of the petitioner was accordingly recommended by the Superintendent of Police, Jodhpur to the D.I.G. Police, Headquarters Jaipur for considering his transfer to the post of Head Constable MT. The said communication was sent on 26.09.1997. Again, on 07.01.1998, an application of the petitioner was sent with the recommendation to the D.I.G. Police, Headquarters Jaipur for shifting the services of the petitioner from the post of Head Constable (General) to the post of Head Constable MT against vacant post. But, no formal order 3 was passed by the police headquarters though the post of Head Constable MT was in existence. On 30.07.2004, again, the case of the petitioner was recommended by the Superintendent of Police, Jodhpur vide communication dated 30.07.2004 because the petitioner was initially appointed on the post of Constable Driver (MT). But the claim of the petitioner was rejected vide communication dated 09.03.2005 in which it is stated that the petitioner has filed application for transferring him on the post of Head Constable MT, therefore, after such delay his application cannot be accepted. It is also observed in the order that the reason for transferring him from the post of Head Constable (General) to the post of Head Constable (MT) is to get the opportunity for promotion to the post of Sub Inspector (MT) which is not proper. Learned counsel for the petitioner while inviting attention of the Court towards letter dated 08.07.2004 Annex.-10, passed by the police headquarters at Jaipur, vehemently contended that similar benefit was already given to others. Vide letter Annex.-10 similarly situated person Amrit Lal was shifted from the post of Head Constable (General) to Head Constable (MT) and he had also been promoted like the petitioner in accordance with Rule 28A of the Rules of 1989. Therefore, as per learned counsel for the petitioner, the denial of transfer of the petitioner from the post of Head Constable (General) to Head Constable (MT) is unreasonable, unjustified and arbitrary because petitioner was already Constable (MT) 4 before his promotion and similarly situated persons were granted the same benefit. In reply to the writ petition filed by the respondents, it is submitted that as per decision of the Government for granting selection scale the petitioner cannot claim his transfer from the post of Head Constable (General) to the post of Head Constable (MT) because, as per order of the Government, in that event, the selection scale cannot be allowed while treating a Head Constable (MT) right from his initial appointment in the service, therefore, the petitioner once accepted the promotion in accordance with Rule 28A on the post of Head Constable (General), now he cannot claim as a matter of right his transfer from Head Constable (General) to Head Constable (MT). I have considered the rival submissions and perused the record. First of all, the reason for denial of the claim of the petitioner is to be seen as mentioned in communication Annex.-12 dated 19.03.2005. Vide Annex.-12, two reasons have been assigned for the denial of transfer of the petitioner from Head Constable (General) to Head Constable (MT). Firstly, the application for such transfer has been filed after 10 years and, secondly, the intention behind this is to get an opportunity to appear in the test for promotion to the post of Sub Inspector (MT). Having carefully gone through the material on record and considered the facts and circumstances of the case, in my opinion, both the reasons are baseless and unjustified because it is not disputed in this case that initially the 5 petitioner was working on the post of Constable (MT) prior to his promotion to the post of Head Constable in accordance with Rule 28A of the Rules of 1989. Secondly, after promotion in the year 1993, when the vacancy arose the petitioner made representation to the Superintendent of Police and the same had been forwarded vide Annex.-5 and Annex.-6 and 7 manifestly show that the representation of the petitioner was duly recommended by the Superintendent of Police, Jodhpur. In all these communications, the Superintendent of Police, right from 1997, recommended the case of the petitioner for transferring him from the post of Head Constable (General) to Head Constable (MT) because the vacancies were available in the department. Therefore, the impugned rejection of the petitioner’s prayer on the ground of delay is totally unfounded. Further, when a person was initially working on the post of Constable (MT) then obviously he was to be given promotion in the same cadre, however, for want of vacancy of the post of Head Constable (MT) at the relevant time when the promotion was made under Rule 28A of the Rules of 1989, the petitioner was adjusted against the post of Head Constable (General). But, as soon as vacancy arose in the MT cadre the petitioner made request for his transfer from the post of Head Constable (General) to Head Constable (MT). For the same, his controlling superior authority recommended his case; but, it was not considered by the Police Headquarters and, now, when the petitioner was losing his chance of promotion on the post 6 of Sub Inspector (MT), then, his claim was rejected by the impugned order arbitrarily and illegally; more so, when it is one of the important facts of this case that vide Annex.-10 similarly situated person Shri Amrit Lal was absorbed from the post of Head Constable (General) on the post of Head Constable (MT). It is well settled law that for regular promotee employee can claim his right as per channel of promotion provided under the same cadre, therefore, petitioner was to be promoted on the post of Head Constable (MT) when he was found eligible for promotion for his outstanding work as per Rule 28A of the Rules of 1989. Admittedly, at the relevant time, post of Head Constable (MT) was not available but as soon as post became available his case was recommended vide letter dated 26.09.1997, 07.01.1998 by the Superintendent of Police, Jodhpur. Lastly, on 30.07.2004, case of the petitioner was recommended but the petitioner's case for absorption on the post of Head Constable (MT) was rejected on illegal ground whereas the same benefit was granted to one Shri Amrit Lal. Therefore, the respondents have discriminated the case of the petitioner which is violative of Article 14 of the Constitution of India. This writ petition was filed by the petitioner while challenging the order Annex.-12 and, at the time of issuing notice, an order was made to allow the petitioner to appear in the Sub Inspector (MT) examination in which the petitioner was found suitable. As a result of the aforesaid, this writ petition is allowed. Order impugned Annex.-12 is quashed and the 7 respondents are directed to treat the petitioner on the post of Head Constable (MT). The petitioner was allowed to appear in the Sub Inspector (MT) test as per orders of this Court, therefore, his candidature for promotion shall be considered and, if found otherwise eligible, grant him all consequential benefits of consideration for further promotion, within a period of one month from the date of production of certified copy of this order. No order as to costs. (Gopal Krishan Vyas) J. Ojha, a.