CWP 2568/07 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** 1- Civil Writ Petition No.2568/2007 Manoj Kumar & (4) Ors Versus State & (3) Ors. 2- Civil Writ Petition No.4902/2007 Satyavir Singh & Anr.Versus State & (3) Ors. Date of Order ::: 18/11/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Ajeet Bhandari & Mr. Kinshuk Jain ) Mr. MM Mehrishi ) for petitioners Mr. JK Agrawal Addl. Govt. Advocate These two petitions raising common question and arising out of self same facts, are being decided by this order. Brief facts relevant for adjudication of dispute herein are noticed from CWP-2568/07 (Manoj Kumar Vs. State). Petitioners while substantively working as Head Constable are members of Rajasthan Police Subordinate Service Rules 19989 (“Rules, 1989”). Their next higher post in hierarchy is Assistant Sub-Inspector (“ASI”) to be filled 100% by promotion from the post of Head Constable under scheme of Rules 1989. As per R.10 of Rules, 1989 appointing authority determined 59 vacancies of ASI for the year 2006-07 as on 01/04/06 and since 10% whereof is kept reserved for special nomination for promotion cadre course U/r 28 of Rules, 1989, finally 53 vacancies were determined for CWP 2568/07 //2// promotion to the post of ASI from Head Constable, for which applications were invited from among senior most eligible members of service in the cadre of Head Constable; and petitioners being eligible & others falling within zone of consideration submitted their applications for appearing in qualifying examination for the year 2006-07. Result sheet dt.22/06/06 (Ann.2) was published of applicants who qualified in written examination Part I as per which petitioners were also declared successful. After applicants having qualified in Part 2 examination in terms of R.27 (2) of Rules, 1989, list of them as per equal number of vacancies determined, was circulated vide result sheet dt.04/07/06 (Ann.4). Since petitioners being lower in seniority could not finally get their selections against number of vacancies determined for years 2006-07. However, respondents also initiated process for promotion to the post of Sub Inspector from the post of ASI against 56 vacancies of year 2006-07, for which applications were invited vide order dt.01/07/06 (Ann.5) and a list of persons finally declared successful in part I & II of qualifying examinations held for the post of Sub-Inspector was circulated vide order dated 09/10/06 (Ann.6) - against which CWP 2568/07 //3// petitioners made representation to the authority with the grievance that vacancies in the cadre of ASI had not been properly determined in terms of R.10 of Rules, 1989 and particularly vacancies having arisen as a consequence of promotion from the post of ASI to the post of Sub-Inspector determined for the year 2006-07, were not included and taken note of while vacancies having been determined of ASI for the year 2006-07, which if could have been rightly determined in consonance with R.10 of Rules, 1989, petitioners certainly would have been considered for promotion to the post of ASI as a result of their having qualified in Part I & 2 qualifying examination held for the post of ASI - in absence whereof, they were deprived of right of fair consideration for higher post despite such number of vacancies being available of ASI as a consequent upon promotion to the post of Sub- inspector and for which factual report was sent to the authority apprising determination of vacancies in relation to posts of ASI and so also of Sub-Inspector for the year 2006-07 as is evident from letter dt.04/01/07 (Ann.8). Respondents have filed reply, inter-alia averring therein that vacancies for promotion to the post of ASI are determined on district basis CWP 2568/07 //4// while for promotion to the post of Sub-Inspectors vacancies are determined on Range basis; therefore, whatever actual number of vacancies likley to occur as on 1st April of the year 2006 and made available in the cadre of ASI were duly determined and process was initiated in terms of Chapter V of Scheme of Rules 1989. Respondents further averred that qualifying examinations in terms of R.27(2) of Rules, 1989 against 53 vacancies determined of year 2006-07 were held on 04/06/06 and final select list was published on 04/07/06 and at the same time, after vacancies were determined of post of Sub-inspector at range level, for which application were invited upto 07/07/06 as is evident from letter dt.01/07/06 (Ann.5) and list of those being declared qualified against 53 vacancies determined of Sub- inspector was published vide order dt.09/10/06; as such those 53 vacancies had fallen vacant consequent upon their promotion to the post of Sub-Inspector in October, 06, which could not be said to be actual vacancies being occurred as on 1st April of year 2006 when vacancies of ASI were determined by appointing authority and promotions were rightly made after due determination of vacancies in consonance with R.10 of Rules, 1989. First & foremost contention made by CWP 2568/07 //5// Counsel for petitioners is that R.10 of Rules, 1989 casts a legal obligation upon the appointing authority to determine actual number of vacancies likely to occur every year as on 1st April; but the appointing authority committed an apparent error in not taking note of vacancies having become available as a consequent upon promotion to the post of Sub-Inspector while determining vacancies for year 2006-07 of the post of ASI and such error has caused prejudice to the petitioner and despite being successful in qualifying written examination U/r 27(2) of Rules, 1989, they have been deprived of their final selection & promotion; as such action of respondents is certainly in violation of Scheme of R.10 of Rules, 1989. In support, Counsel placed reliance upon judgment of this Court in MP Agrawal Vs. State (1980(1) SLR 291 -CWP-119/75 decided on 06/12/78) and taking assistance whereof, Counsel submits that the authority is under obligation to determine vacancies every year as it being mandatory and fill up the same in accordance with scheme of Rules, 1989. I have considered contentions of both the parties and with their assistance perused material on record. Before examining submissions made at the bar, it would be appropriate to first CWP 2568/07 //6// examine Scheme of Rules, 1989 relevant for adjudication of instant issue. Post of Head Constable, ASI & Sub-Inspectors are included in Schedule appended to Rules, 1989. Chapter V of Rules, 1989 prescribes procedure for appointment by promotion. R.26 relates to eligibility for promotion. Eligibility for promotion in case of Constables on district/unit wise while for Head Constables/ASI on range basis and for Sub- Inspectors on State basis. After actual numbers of vacancies occurring during the year are determined as on 1st April of the year U/r 10, promotion exercise is initiated in terms of Chapter V of Rules, 1989 and those having qualified in written qualifying examinations (Part I & II) in equal number of vacancies determined U/r 10 are declared successful for promotion cadre in terms of R.27(3) of Rules, 1989. Relevant R.10 was substituted by amendment notification dt.21/12/81 making effective from 01/04/81, ad infra: “10. Determination of vacancies: (1) (a) Subject to provisions of these Rules, the appointing authority shall determine on 1st April every year, the actual number of vacancies likely to occur during financial year. (b) Where a post is to be filled in by CWP 2568/07 //7// single method as prescribed in the rule or Schedule 1, the vacancies so determined shall be filled in by that method. (c) Where a post is to be filled in by more than one method as prescribed in the rules or Schedule I, the appointment of vacancies, determined under clause (a) above, to each such method shall be done maintaining prescribed proportion for the over-all number of posts already filled in. If any fraction of vacancies is left over after apportionment of vacancies in the manner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota. (2) The Appointing authority shall also determine the vacancies of earlier years, year-wise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in.” Under pre-amended R.10, appointing authority was under obligation to determine existing vacancies and those anticipated vacancies during the following twelve months as available on 1st April every year. After amendment effective from 01/04/1981 appointing authority is under obligation to determine actual number of vacancies likely to occur in financial year as on CWP 2568/07 //8// 1st April of the year. Thus, any vacancy which could be anticipated during following 12 months either on account of promotion of otherwise could not have been determined as actual vacancy likely to occur as on 1st April of the year. In the decision on which Counsel placed reliance, this Court has examined relevant Rule regarding determination of vacancies existing prior to amendment notification of October, 1973 which was thrice substituted and finally now being in vogue was substituted vide notification dt.21/12/81 effective from 01/04/81 and in MP Agrawal Vs. State (supra) the controversy was as to whether it is mandatory for appointing authority to determine vacancies at the commencement of each year; or it was at its discretion to determine as & when it was so needed, on which this Court finally observed that it is mandatory and casts obligation upon appointing authority to determine at the commencement of each year and no discretion was left over to determined as & when it so needed to the appointing authority. While controversy in instant case is not related akin to the decision (supra). Herein, controversy is as to whether vacancies filled by promotion to Sub-Inspector at a later point of time after selection for CWP 2568/07 //9// promotion to the post of ASI from Head Constable stood final, could still be considered as actual vacancies occurred during financial year 2006-07 as on 1st April of the year and any error has been committed by the authority in not taking note whereof. Dictionary meaning of word, “occur” - relevant for the purpose of instant controversy, as defined in Black's Law Dictionary (6th Edn Centennial -1891-1991( ad infra: “Occur. - To happen, to meet one's eye; to be found or met with; to present itself; to appear; hence, to befall in due course; to take place; to arise.” Oxford English Hindi Dictionary defines word “Occur” ad infra: “1. घिटत होना : When did the accident occur ? 2.होना, पाया जाना : Child abuse occurs in all classes of society. 3. Occur to Sb -सूझना, मन में आना : An idea has occurred to me.” It is clear that it depends upon nature of contingency, if happened, could be considered as on 1st April of the year; and could have been noticed by appointing authority as likely to occurr and not otherwise. At the same time, Rule making authority also issued instructions/clarifications as to what type of vacancies which can be determined as CWP 2568/07 //10// actual vacancies likely to occur as on 1st April each year of selection by appointing authority as is evident from book published by Sachivalya Sandesh Co-operative Society Ltd Secretariat, Jaipur titled as Departmental Promotion Committee Rules & Procedure – contents whereof are of Government Circulars, orders, notification regarding holding of meetings of DPC. “The points raised by various appointing authorities have been considered by Government and these are clarified as under : (1) Whether the Appointing Authorities can determine the vacancies even after 1st April of the year. The appointing authority may determine vacancies on 1st of April or at the earliest thereafter any time during the financial year. (2) Vacancies & vacancies occurring during the year to be included - (a) clear vacancies of the department as these exist on 1st April of the year of selection irrespective of adhoc or urgent temporary appointments made against such vacancies. (b) newly created posts, if any, included in the budget or as may have been agreed to by the finance department upto date the vacancies are determined. (c) vacancies occurring on account of retirements during the year in question; (d) vacancies which shall occur CWP 2568/07 //11// consequent promotion to higher posts against clear vacancies as exist on 1st of April of the year; (e) deputation posts exceeding one year (only those deputation posts would be taken in which persons have already proceeded on deputation on the date of determination of vacancies; (f) long leave vacancies exceed a period of one year.” As per above clarifications, this also includes vacancy having occurred consequent upon promotion to higher posts against clear vacancies as existing on 1st of April of the year. In instant case, promotions to the post of ASI are made at district level while promotion for the post of Sub Inspector is based on range basis. Superintendent of Police, Jaipur City determined vacancies of ASI for the year 2006-07 on 04/04/06 as is evident from letter dt.04/01/07 (Ann.8); initiated process of promotion from Head Constable to ASI vide letter dt.21/04/06 inviting applications from Head Constable falling within zone of consideration; and those having finally qualified in written examinations were declared successful vide list dt.04/07/06. At the same time since posts of Sub-Inspector are filled in on Range basis and three units constitute one Range - in instant case, it consists of Jaipur City, Jaipur district & Rajasthan Police Academy CWP 2568/07 //12// and for which 56 vacancies for the year 2006-07 were determined and process for promotion to the post of Sub Inspector from ASI was initiated vide letter dt.01/07/06 and list of candidates who finally qualified for promotion cadre courses in terms of R.27(3) was issued on 09/10/06 (Ann.6) and certainly prior thereto, it would have been difficult to assume about actual number of vacancies at district level which could be considered to be occurred in the cadre of ASI for being determined for the year 2006-07 as on 1st April, 2006. It is true that process of promotion to the post of sub Inspector from ASI if could have been initiated earlier to process of promotion initiated from Head Constable to ASI, such vacancies certainly could have been considered to have occurred being available in the cadre of ASI for being determined as actual vacancies likely to occur as on 1st April, 2006 and this fact has been noticed by respondents also as is evident from their communication dt.18/09/08. As observed (supra), this could depend upon contingency if happened but these are all administrative exigencies; and once promotions are made on district & Range levels separately, such a contingency certainly could not be ruled out. To examine it further; in instant case, CWP 2568/07 //13// vacancies of year 2006-07 in the cadre of Sub Inspector were determined later on; as such vacancies in the cadre of ASI could not be said to be actual vacancy likely to occur as on 1st April, 2006 but there could be a situation that for promotion to the post of ASI, vacancies of 2006-07 are determined – process whereof was completed in the year 2006, itself, or at a later point of time in the year 2007 but at the same time, vacancies of year 2006-07 as regards promotion to the post of Sub-Inspector from ASI were determined because of some administrative exigency in the year 2008 and promotions were finalised in the year 2008; question arises,if promotions from Head Constable to ASI were finalised in the year 2006 or 2007 and vacancies consequent upon promotion to the post of Sub Inspector from ASI became available in 2008, can vacancies of year 2006-07 having actually become available in the year 2008, could still be considered to be actual vacancies likely to occur as on 1st April, 2006. Only inevitable conclusion would be that if vacancies are once determined under Scheme of Rules for the year 2006-07 - process whereof stood finalised, there cannot be any further determination of vacancies of year 2006-07 in subsequent year; and vacancies having CWP 2568/07 //14// become actually occurred later on consequent upon promotion in next cadre or otherwise, will be considered to be vacancies of the year in which it has actually occurred and become available. In the opinion of this Court, respondents have not committed any error in determining vacancies of ASI in the year 2006-07 as on 1st April, 2006. It has to be further noticed that pendente instant petition, vacancies having become available in the cadre of ASI as a consequent upon promotion to the post of Sub- inspector from ASI were determined for the year 2007-08 and selection process whereof was also initiated as is evident from letter dt.19/01/08 whereby all eligible persons falling within zone of consideration were called for written examination as list of eligible Head Constables was circulated vide order dt.25/01/08 (Annexure to stay application). Consequently, both the writ petitions fail and are hereby dismissed. No costs. (Ajay Rastogi), J. K.Khatri/p14/2568CW07-Vcncy.doc