SBCWP4252/1997 SBCWP2232/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN 1. S.B. Civil Writ Petition No.4252/1997 Ramesh Rajoria Vs. State of Rajasthan and Others AND 2. S.B. Civil Writ Petition No.2232/1997 Sayed Suleman Ali Vs. State of Rajasthan and Others Date of Order ::: 22.02.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Tej Prakash Sharma, Counsel for petitioners in both writ petitions Shri M.F. Baig, Deputy Government Counsel for respondents in both writ petitions #### //Reportable// By the Court:- These two Writ Petitions have been filed by petitioners, who are working with State Crime Record Bureau, Jaipur, (for short, 'SCRB') on the post of Assistant Sub Inspector of Police (ASI). Petitioner Ramesh Rajoria, in Writ Petition No. 4252/1997, was initially appointed on the post of Constable on 15.01.1975 and was promoted to the post of Head Constable in the year 1977 and confirmed in that post with effect from 01.06.1984 under the SBCWP4252/1997 SBCWP2232/1997 // 2 // order issued by Superintendent of Police, Computer Cell, on 06.10.1988. Petitioner Sayed Suleman Ali, in Writ Petition No.2232/1997, was also initially appointed as Constable on 15.01.1975. He was however promoted to the post of Head Constable in the year 1983 and was confirmed in that post with effect from 26.11.1983 by order of the Superintendent of Police, Computer Cell, issued on 11.01.1995. According to petitioners, number of posts of Assistant Sub Inspector of Police were lying vacant in the SCRB, Jaipur. The petitioners being fully eligible to hold the said post, were promoted on adhoc basis to the post of ASI by order dated 26.10.1988 of the Director, SCRB. Since then, they have been discharging duties on the said post to the entire satisfaction of respondents. Number of representations were made by petitioners for extending them the benefit of Rule 26-A of the Rajasthan Service Rules (for short, 'RSR'). The petitioners have, in this connection, referred to Circular dated 20.08.1991 issued by Director General of Police, Rajasthan, Jaipur that if a Head Constable is promoted on the post of ASI on urgent temporary basis, such promotion be SBCWP4252/1997 SBCWP2232/1997 // 3 // regularized and if it is found that promotion was given to eligible person, benefit of Rule 26-A of RSR may also be given to them in fixation of pay. The Deputy Inspector General of Police also issued a Circular on 25.07.1992 for extending benefit of Rule 26-A of the RSR. Shri Tej Prakash Sharma, learned counsel appearing on behalf of petitioners in both writ petitions, submitted that during pendency of writ petitions, benefit of Rule 26-A of the RSR has already been extended to petitioners by order dated 14.06.1993, as asserted by respondents in their reply to writ petitions. However, learned counsel submitted that their promotion on the post of ASI of Police should be treated as regular one because petitioners were never required nor they ever informed to appear in any promotion cadre course. Learned counsel invited attention of the Court towards pleadings of Para 17 of reply to first of these writ petitions, wherein respondents themselves stated that letter dated 01.10.1988 was issued calling upon those who were working on the post of Constables/Head Constables/ASI of SCRB to appear in qualifying examination held on 17.01.1994 and 28.03.1998, but Inspector General of Police, CID (CB), Rajasthan, did not SBCWP4252/1997 SBCWP2232/1997 // 4 // inform the Director, SCRB, about the same and, therefore, due to ignorance of fact of conduction of qualifying examination, the Director, SCRB, could not circulate the same amongst the employees of SCRB including the petitioners. Learned counsel further submitted that not only the post of ASI but also the post of SI is duly sanctioned with the SCRB and respondents were duty bound to make determination of year-wise vacancies and timely hold qualifying examination for promotion to said posts. As the petitioners were entitled to be promoted to the post of ASI immediately on their becoming eligible, they should have also been considered for further promotion to the post of Sub Inspector of Police. Had the respondents timely made year-wise determination of vacancies and undertaken the exercise of making promotion, the petitioners would have secured regular promotion on the date when they were actually promoted on adhoc basis because on that date they fulfilled eligibility criteria. In that case they would have become further eligible to appear in promotion cadre course to the post of Sub Inspector of police. Learned counsel cited a judgment of a Coordinate Bench of this Court dated 25.01.1997 SBCWP4252/1997 SBCWP2232/1997 // 5 // deciding a bunch of four writ petitions, leading case of which was S.B. Civil Writ Petition No.1523/1995. In that bunch of writ petitions, on account of long continuation of petitioners on adhoc basis on the post of Head Constable in SCRB itself, this Court directed to regularize them in the post of Head Constable. Shri Tej Prakash Sharma, learned counsel further submitted that sole reason for which their promotion was considered of adhoc nature was the fact that they did not clear the promotion cadre course, whereas respondents themselves admit that petitioners were never asked to appear in promotion cadre course though it was held twice and, therefore, they cannot be blamed for non-appearance in promotion cadre course. In this connection, learned counsel relied on three judgments passed by different Benches of this Court in the petitions filed by different petitioners wherein it was held that employees of police department, if they have crossed age of 45 years, would be exempted from appearing in promotion cadre course in terms of Rule 18 of the Rajasthan Civil Services (Departmental Examination) Rules, 1959 (for short, 'the Rules SBCWP4252/1997 SBCWP2232/1997 // 6 // of 1959'). The cited cases are – (1) S.B. Civil Writ petition No.6486/2003 – Sualal Yadav Vs. State of Rajasthan & Others, decided on 08.02.2006 (2) S.B. Civil Writ Petition No.2569/1997 – Ajay Kumar Sharma Vs. The Additional Chief Secretary and Others, decided on 22.01.2001 and (3) S.B. Civil Writ Petition No.4356/1997 – Prem Narain Sharma Vs. The State of Rajasthan and Others, decided on 19.02.2010. It is therefore prayed that petitioners be declared entitled to exemption from appearing in promotion cadre course both for the posts of ASI and SI of Police and immediately on their attaining age of 45 years they should be deemed to have been substantively promoted on the post of ASI and that their case for further promotion to the post of SI be considered after they fulfilled the eligibility. Now that the petitioners are on the verge of retirement, the respondents be directed to grant them all consequential benefits. Shri M.F. Baig, learned Deputy Government Counsel appearing for respondents, has opposed writ petition and submitted that petitioners cannot be straightway granted promotion without requiring them to appear in SBCWP4252/1997 SBCWP2232/1997 // 7 // promotion cadre course. Even if the Circular of the Director General of Police was not notified to the Director, SCRB, it was for them to have themselves verified the same and to receive such information from police headquarters. Learned counsel submitted that judgments of this Court on which reliance is placed are distinguishable in the facts and circumstances. No injustice has been caused to petitioners. Mere availability of vacant posts by itself may not be a justification for granting promotion to petitioners. Upon hearing learned counsel for parties and perusing material on record, I find that petitioners have been made to suffer on account of adhocism rampant in working of the Government Departments which is evident from the fact that they were promoted on adhoc basis on the post of ASI of police as far back as on 26.10.1988 and despite lapse of 22 years and holding of promotion cadre course twice still now they are being made to discharge the duties of that post on adhoc basis. Curiously enough, in the reply to writ petition filed by respondents, they have maintained that unless the petitioners qualify the promotion cadre course, they cannot be given regular promotion SBCWP4252/1997 SBCWP2232/1997 // 8 // and when it comes to notifying that date of promotion cadre course to petitioners, the plea that they set up in Para 17 of reply to writ petition No.4252/1997 is quite interesting too, which is as under:- “17. That the reply to the contents of Para 17 is given in terms that the representation dated 01.10.1988 (Annexure 4) was sent to the respondent No.3. It is submitted that the qualifying examinations were held on 17.01.1994 and 28.03.1998. But the I.G.P. CID (CB) Rajasthan did not inform the respondent No.3 and therefore due to ignorance of the fact of qualifying examination the respondent No.3 could not circulate about the same to the petitioner and the similarly situated persons. The petitioner himself could get the said information on 12.08.1994.” In the pleadings in Para 16 of reply to writ petition No.2232/1997, which is similar to Para 17 of reply in Writ Petition No.4252/1997, the respondents have admitted that it was I.G.P. CID (CB) Rajasthan, who did not inform the Director, SCRB, about holding of qualifying examination and, therefore, due to ignorance of this fact, he could not circulate the same to the petitioners and other similarly situated persons. But they maintain that petitioners themselves could have got the said information on 12.08.1994 from the Police Department itself. What is significance of the date SBCWP4252/1997 SBCWP2232/1997 // 9 // 12.08.1994 is not understandable. However, the fact that petitioners have been continuously working on adhoc basis and there are as many as five sanctioned posts of ASI in SCRB on which petitioners and other similarly situated persons have been give adhoc promotion is again admitted by respondents in Para 21 of their reply which is as under:- “21. That the contents of Para 21 of the writ petition are replied in terms that there are 5 sanctioned posts of ASI in the SCRB on which the petitioner and other similarly situated persons have been given adhoc appointments. There has been no change in the position of posts since 1988 till today, therefor,e the question of yearly determination does not arise.” The respondents have also not denied the fact as to availability of post of SI of Police with them. It is thus evident from the admission made by respondents themselves that petitioners have been continuously working on the post of ASI of Police ever since their adhoc promotion on 26.10.1988 and they have not only received the benefit of Rule 26-A of the RSR, but also receiving benefit of increments and that of revision of pay scales from time to time, and all other benefits have been extended to them SBCWP4252/1997 SBCWP2232/1997 // 10 // and the order of their substantive promotion would be a mere formality. This Court in a recent judgment in Prem Narain Sharma's case (Supra), after considering two earlier judgments, held the petitioner therein entitled to exemption from appearing in the promotion cadre course by virtue of Rule 18 of the Rules of 1959, on the following analogy:- “In view of the aforesaid Rules, the petitioner, who was 56 years of age at the time when departmental examination/proficiency test was held, he could not be required to appear in such examination because he was entitled to exemption therefrom. It is not in dispute that he was superseded by his juniors only because he could not qualify the departmental examination which was attributable to the fact that he did not appear in the examination and was claiming exemption therefrom. Action of the respondent requiring the petitioner to appear in the departmental examination cannot therefore be justified. I am therefore inclined to uphold the contention of learned counsel for petitioner that since Rules of 1959 {Rajasthan Civil Services (Departmental Examination) Rules, 1959} have also been promulgated by virtue of the powers conferred upon the Governor under Proviso to Article 309 of the Constitution of India, the same would be applicable to the members of the Police Subordinate Service because in sub-rule (14) of Rule 43 of the Rules of 1989 {Rajasthan Police Subordinate Service Rules, 1989} clearly provides that general conditions of service of the members of police service under the SBCWP4252/1997 SBCWP2232/1997 // 11 // Rules of 1989 shall be regulated by any other Rules prescribing general conditions of service, made by the appropriate authority, under proviso to Article 309 of the Constitution of India, and for the time being in force.” The same analogy should apply to the case of petitioners as well, but in order to do complete justice for all purposes, it is directed that the petitioners and other 3 ASIs would be entitled to substantive appointment from the date they completed 45 years of age because it is only on that date that they become entitled to exemption from appearing in the promotion cadre course, and accordingly they would be treated to have been promoted on substantive basis from the date they attained the age of 45 years and their seniority as ASI shall be arranged in the order in which such exemption by virtue of operation of law is extended to them i.e. from the date they completed the age of 45 years. As per Schedule appended to the Rajasthan Police Subordinate Service Rules of 1989, the source of recruitment for appointment on the post of SI is 50% by direct recruitment and 50% by promotion and minimum qualification and experience is of two years continuous service as ASI and one year continuous service SBCWP4252/1997 SBCWP2232/1997 // 12 // as ASI, if graduate. The respondents on that basis should compute the experience of petitioners and three other ASIs from the date they came to hold the said post on substantive basis in terms of the above direction and accordingly further consider their case for promotion without insisting upon the requirement of passing promotion cadre course because in that post also, they would be entitled to exemption from appearing in such departmental examination. Depending upon number of posts and subject to seniority consistent with claim of other eligible persons the case of petitioners for promotion to the post of ASI shall be considered and they shall be entitled to consequential benefits accordingly. In the result, these writ petition are allowed in terms indicated above. The petitioners shall be entitled to all consequential benefits. Compliance of this judgment be made within a period of three months from the date its copy is produced before the respondents. (Mohammad Rafiq) J. //Jaiman//