IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: CWP No.727 of 2003. Reserved on : 2.6.2008 Date of Decision : June 24, 2008. Brij Lal …Petitioner. Versus: H.P. Administrative Tribunal & Others …Respondents. Coram: The Hon’ble Mr. Justice R. B. Misra, Judge. The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the petitioner: Mr. R. Maniktala, Advocate. . For the respondents. Mr. Rajesh Mandhotra, Deputy Advocate General. Sanjay Karol, Judge. Petitioner joined as Constable in the Police Department, Himachal Pradesh on 21.4.1980. Having distinguished himself as sports person vide order dated 22.10.1984 (Annexure ‘PA’), he was promoted to the post of Head Constable on officiating basis. The said order was issued by relaxing the general provisions by the Inspector General of Police, H.P. Shimla-1 in exercise of his powers under Rule 13.21 of the Punjab Police Rules, 1934 as applicable to the State of Himachal Pradesh (hereinafter referred to as ‘the Rules). 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2. The petitioner was reverted back to the post of Constable on 17.5.1989 w.e.f. 6.4.1989 but, however, the said decision was reversed in terms of order dated 22.12.1989 treating the petitioner to hold the post of Head Constable w.e.f. 1.11.1984 for all intents and purposes including the period spent by him under Lower Class Course. The petitioner was held to be holding the post of Head Constable on regular basis. 3. The petitioner was aggrieved of the fact that inspite of the aforesaid stand taken by the respondents, his name was not included in the list of Head Constables who were sent for training to the Intermediate Course in January, 1994. The list however included the officials junior to him. Representations made by the petitioner were rejected and consequently the petitioner had to file O.A. No. 689/95 before the Himachal Pradesh Administrative Tribunal, Shimla. The Tribunal, after considering the replies and contentions made by the parties held that no doubt in exercise of the discretionary powers exercised by the Inspector General of Police the petitioner had been promoted on regular basis as Head Constable but, however, that fact by itself would not mean that the petitioner was not to qualify the training at various levels as the merit and not seniority was the factor for inclusion in the list maintained by the respondents. The O.A. was dismissed vide judgment dated 26.6.2003, which is the subject- matter of challenge here. 3 4. Learned counsel for the petitioner has argued that once having been promoted on regular basis for all intents and purposes, the petitioner was not required to clear the Lower Class Course prior to inclusion of his name in list ‘C’. According to him, even though the petitioner had cleared the said Lower Class Course in the year 1989, he was entitled to have his name included in list ‘C’ w.e.f. 1984 i.e. the year of promotion instead of 1989. He has further argued that in any event the petitioner having completed his course during his tenure as Head Constable, he ought to have been given the benefit of the laws laid down by the Apex Court in A. K. Raghumani Singh and others v. Gopal Chandra Nath and others (2000(4) SCC 30), Anil Kumar Gupta and others v. Municipal Corporation of Delhi and others (2000(1) SCC 128), M. B. Joshi & Others v. Satish Kumar Pandey and others (1993 Supp (2) SCC 419) & Subhash v. State of Maharashtra and another (1995 Supp (3) SCC 332). 5. Per contra, the learned counsel for the respondents has supported the judgments for the reasons set out therein. 6. I have perused the record and heard the learned counsel for the parties. 7. For the purposes of adjudication of the controversy in issue, the relevant provisions of the Rules are reproduced as under:- 13.1 Promotion from one rank to another :- (1) Promotion from one rank to another, and from one grade to another in the same rank shall be made by 4 selection tempered by seniority. Efficiency and honesty shall be the main factors governing selection. Specific qualifications, whether in the nature of training courses passed or practical experience, shall be carefully considered in each case. When the qualifications of two officers are otherwise equal, the senior shall be promoted. This rule does not affect increments within a time-scale. (2) Under the present constitution of the police force no lower subordinate will ordinarily be entrusted with the independent charge of a police station or similar unit. It is necessary, therefore, that well-educated constables, having the attributes necessary for bearing the responsibilities of upper subordinate rank, should receive accelerated promotion so as to reach that rank as soon as they have passed the courses prescribed for, and been tested and given practical training in, the ranks of constable and head constable. 13.8 List C. Promotion to Head Constables:- (1) In each district a list shall be maintained in card index form (form 13.8(1) of all constables who have passed the Lower School Course at Phillaur and are considered eligible for promotion to Head Constable. A card shall be prepared for each constable admitted to the list and shall contain his marking under sub- rule 13.5(2) and notes by the Superintendent himself, or furnished by Gazetted Officers under whom the Constable has worked, on his qualifications and character. The list shall be kept confident ally by the Superintendent and shall be scrutinized and approved by the Deputy Inspector- General of Police at his annual inspection. 5 (2) Promotions to Head Constables shall be made in accordance with the principle described in sub-rules 13.1(1) and (2). The date of admission to List C shall not be material but the order of merit in which examinations have been passed shall be taken into consideration in comprising qualifications. In cases where other qualifications are equal, seniority in the police force shall be the deciding factor. Selection grade constables who have not passed the Lower School Course at the Police Training School but are otherwise considered suitable may, with the approval of the Deputy Inspector-General, be promoted to Head Constable up to a maximum of ten per cent of vacancies. 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 admission to the promotion course for Head Constable at the Police Training College, will be made from amongst all the confirmed Head Constables. No Head Constable shall be eligible for admission to the promotion course for Head Constable at the Police Training College, unless; (1) He has passed Middle Standard Examination. (2) He is below the age of forty years on the day of commencement of the next course. (2) The names of the Head Constables who qualify at Police Training College in the promotion course for Head Constables will be entered in Part-I 6 of List ‘D’ as soon as they qualify the same. While entering the names in this part they will maintain their seniority inter se. The names of the outstanding Head Constables who have not passed the Promotion Course for Head Constables at Police Training College die to being over-age but otherwise are of exceptional merit and are considered suitable may, with the approval of Inspector-General of Police, be entered in Part-II of List ‘D’. No more than 10 per cent of the posts of Assistant Sub-Inspectors both permanent and temporary will be filled from the names of Part II of List ‘D’. This part will not at any time contain names more than two per cent 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 to the Deputy Inspector General of Police by the 15th day of April, each year in Form No. 13.9(3). (4) Promotion to the rank of Assistant Sub- Inspector shall be made in accordance with the seniority of the Head Constables on List ‘D’, which may be ignored by the Superintendent of Police in exceptional circumstances only for reasons to be recorded in writing with the approval of the Deputy Inspector-General of Police. 13.21 Power of relaxation:- Where the Inspector- General of Police, is of the opinion that it is necessary or expedient so to do, he may, by order for reasons to be recorded in writing relax any of the provisions of this Chapter with respect of any class or category of persons. 7 8. Perusal of the aforesaid Rule would show that ordinarily the petitioner would have been promoted to the post of Head Constable only if he had cleared his Lower School Course and his name was included in List ‘C’. In exercise of the powers under Rule 13.21, the rules were relaxed and he was promoted for the reason that he had excelled in the field of sports and had got a distinction. His promotion by itself would not mean that he is not required to undergo training at all. The training for the required Course can be undertaken even at the level of the Head Constable and only those persons who complete training in all respects are entitled for consideration for promotion to the next level of Assistant Sub-Inspector. From Rule 13.9(2), it is evident that the length of service or seniority is not the criteria either for inclusion of name in List ‘D’ or for consideration of promotion to the next higher post i.e. Assistant Sub-Inspector. For the purpose of inclusion in List ‘C’, it is clear that the date of admission to List ‘C’ is immaterial but what would matter is the order of merit in which the examination has been passed. For considering the eligibility, only where other factors are equal, seniority in the police force is the deciding factor. According to Rule 13.8, passing of Lower School Course at Phillaur is considered necessary for promotion to the rank of Head Constable. Accordingly, List ‘C’ is to be prepared in each district, which is to contain the names of all the constables who have passed Lower School Course and are considered eligible for 8 promotion to the rank of Head Constable. Then only promotions are to be effected taking into consideration Rule 13.1(1) (2). The date of admissible to List ‘C’ would not be material, but it is the order of merit in examination, which is to be taken into consideration. In accordance with the above mentioned Rules, a list is to be maintained in respect of all the confirmed Head Constables, who qualify at Police Training College, and thereafter promotion to the rank of Assistant Sub-Inspector is to be made in accordance with the seniority of Head Constable. 9. The record shows relaxation of Rule in the petitioner’s case has been only once for the purpose of promotion from one rank to another i.e. Constable to Head Constable. Exercise of the said power would not tantamount to relaxation of the conditions set out in Rule 13.9. The petitioner is also not claiming promotion to the 10% quota of vacancies stipulated under Rule 13.9. The promotion from one rank to another is strictly made by selection tempered with seniority, efficiency and honesty. The accelerated promotion stipulated under Rule 13.1(2) is only if the officials pass the prescribed courses and have the requisite practical training. The action of the respondents for including the name of the juniors in List ‘C’ cannot be found to be ultravires for the reason that such persons had cleared the Lower School Course prior to the petitioner which was a condition for inclusion of the name in List ‘C’. Only such of those persons whose names were found in List ‘C’ could have been considered for being sent 9 to undergo training under the Rules. The relaxation was accorded only for the purposes of promotion to the post of Head Constable but however, for the purpose of further upward promotion, it was incumbent for the petitioner to have fulfilled the eligibility criteria of having cleared the Lower School Course and have his name included in list ‘C’ thereafter. The Tribunal has held already that the petitioner has not denied that juniors to him who had been sent for training to the Intermediate Course have already passed the Lower School Course prior to the petitioner which was pre-requisite for sending the Constables to Intermediate Course. There is no provision for exemption from passing the prescribed examination nor has any relaxation being granted as such. Seniority based on merit could be claimed only from the date of passing the requisite examination in accordance with the Rules. 10. The petitioner having cleared the Lower School Course in the year 1989 thus, could not claim any right by way of seniority w.e.f. 1984. 11. The judgments cited by the learned counsel for the petitioner, in the facts and circumstances, are clearly distinguishable and are thus not relevant. The Rules in the said cases did not require prior qualification before consideration of the candidates for the purpose of promotion. 10 12. We see no infirmity, illegality or perversity in the order passed by the learned Tribunal. For the aforesaid reasons, the writ petition is dismissed. ( R. B. Misra ), Judge ( Sanjay Karol ), Judge. June 24th, 2008 (rana)