In the High Court for the States of Punjab and Haryana, at Chandigarh. L.P.A. No.136 of 2005 and Cross Objection No.1 of 2006 (O&M) Decided on Feb 19,2008 The Director General of Police,Haryana,Panchkula and others --Appellants. vs. Paramjit Singh and others -- Respondents. Present: Mr.S.K.Bishnoi, D.A.G,Haryana,for the appellants. Mr.V.K.Jindal,Advocate,for respondent No.1. Mr.S.N.Yadav, Advocate,for private respondents. Rakesh Kumar Jain, J: This order shall dispose of L.P.A. No.136 of 2005 filed by Director General of Police and others and Cross objection No.1 of 2006, filed by Paramjit Singh-respondent No.1, against the order of learned Single Judge dated December 09,2004,whereby the writ petition filed by Paramjit Singh was allowed to the extent that he shall be entitled to seniority as Head Constable from March 07,1990. Paramjit Singh aforesaid, filed a writ petition under Articles 226/227 of the Constitution of India and sought a mandamus to treat him as a regularly promoted Head Constable in view of order Annexure P-2 and further depute him to join Intermediate School Course for becoming eligible for promotion as A.S.I. According to him, he was enrolled as a L.P.A. No.136 of 2005 and -2- Cross Objection No.1 of 2006 (O&M) Constable in Commando Police Force on March 20,1988 and was promoted as Head Constable by D.I.G,Commando, Haryana on March 07,1990, on adhoc basis against existing vacancy in the Haryana Police Commando Force, though promotion was fortuitous. In the writ petition, Paramjit Singh had claimed that his adhoc promotion was under Sports Quota under Rule 13.8.(2) of the Punjab Police Rules, 1934 (for short, the Rules') , which is 10% of the total strength,commonly known as exemptee Head Constables, who are brought on List C-2 and other 90% Head Constables, are brought on List C-1, after passing Lower School Course . In the writ petition, Paramjit Singh had arrayed Mukesh Kumar,Ramesh Kumar, Pawan Kumar and Sushil Kumar as respondent Nos. 4 to 7 to contend that they had passed Lower School Course and were promoted under category C-1 in 1994,but they were definitely juniors to him as he was promoted on adhoc basis in 1990, though, it was admitted by him in para 9 of the writ petition that he was reverted to the rank of a Constable and had undergone Lower School Course and was again given the rank of Head Constable, but still by virtue of his promotion under Rule 13.8 (2) of the Rules in the month of March,1990, he was senior to the private respondents. In reply to the writ petition, filed by Superintendent of Police, Commando Newal (Karnal), Haryana,on behalf of respondent No.1 to 3, it was alleged that the petitioner was promoted on adhoc basis as Head Constable on March 07,1990,but it was purely temporary and fortuitous as it was clearly mentioned in the order, as a result of which he will have no right to claim seniority etc. over his seniors and can be reverted at L.P.A. No.136 of 2005 and -3- Cross Objection No.1 of 2006 (O&M) any time without any show cause notice. The petitioner was considered for List B-1 in the year 1993 and was entered on list B-1 on February 22,1993. The petitioner was reverted to his substantive rank of Constable vide order No. 13869-82/A-2 dated August 03, 1993 and on the basis of his seniority, he was deputed to undergo Lower School Course at PTC, w.e.f. August 01,1993 to January 31,1994. After passing of Lower School Course, he was given List C-1 on March 15,1994 and was promoted to the rank of Head Constable on April 28,1994. Thus, the petitioner (Paramjit Singh) had no right of seniority over his seniors. Vide order dated December 09,2004, learned Single Judge allowed the writ petition filed by Paramjit Singh holding him entitled to seniority with effect from the date he was promoted on adhoc basis. Aggrieved against the order of learned Single Judge, the present appellants filed this L.P.A No.136 of 2005 and the writ petitioner (now respondent No.1) filed Cross Objection No.1 of 2006. The appellants has prayed that the order of learned Single Judge is unsustainable both on facts and law and deserves to be set aside, whereas the writ petitioner-Paramjit Singh (respondent No.1) prayed in the cross objection that the order of learned Single Judge be modified to the extent that he (respondent No.1) be held entitled to all his consequential benefits/ arrears of pay along-with interest. In the L.P.A, private respondents of writ petition were arrayed as pro-forma respondents, who also filed additional affidavit of Pawan Kumar, ASI dated July 20,2007 along-with some documents by way of C.M. No. 623 of 2007. Both the cross objection No.1 and L.P.A. No.136 of 2005 and -4- Cross Objection No.1 of 2006 (O&M) CM Nos. 623-24 of 2007 were ordered to be heard with the main appeal. Hence, they are being disposed off together with this appeal. Mr.S.K.Bishnoi, learned D.A.G,Haryana,appearing on behalf of the appellants has argued that learned Single Judge has erred in appreciating the facts , as a result of which the writ petition has been allowed. It was submitted that the learned Single Judge has wrongly recorded a fact that after respondent No.1 was promoted on adhoc basis on March 07,1990, under Sports Quota, he was continuously performing the duty of Head Constable and was never reverted. It was further submitted that they had never admitted that respondent No.1 was promoted against the existing vacancy of 10% quota, rather it was brought to the notice of the Court that in para No.9 of the writ petition itself, the respondent No.1 had admitted that “during the period, the petitioner remained at PTC, Madhuban for Lower School Course, the authorities had reverted the petitioner to the rank of Constable, however, after completion of the said course, petitioner was again given the rank of Head Constable”. Besides this, he had referred to para 2 of the preliminary objection of the written statement, wherein it was categorically mentioned that “the petitioner was reverted to his substantive rank of Constable vide order No.13869-82/A-2 dated August 03,1993. Secondly, it has been contended that even order of promotion Annexure P-2 does not suggest that the writ petitioner was promoted under Sports Quota. It was further submitted that the writ petitioner who was on list C-2 under exemptee quota was reverted as Constable on August 03,1993 vide order Annexure R-2/1, which was never challenged by him L.P.A. No.136 of 2005 and -5- Cross Objection No.1 of 2006 (O&M) and had adopted 90% quota provided to Class C-1, who had passed Lower School Course and as per final result of Lower School Class, batch No.34 held from August 01,1993 to January 31,1994, he was at serial No.65 with merit 135/742,whereas the private respondent, namely Mukesh Kumar was at No.4 with merit No. 8/742, Ramesh Kumar at No.8 with merit No. 21/742, Sushil Kumar at No.9 with merit No. 22/742, and Pawan Kumar at No.15 with merit No.34/742. Learned State Counsel further argued that the writ petitioner as well as the private respondents were brought on list C on March 15,1994. The private respondents were promoted as Head Constable on March 28,1994, whereas the writ petitioner was promoted on April 28,1994, therefore, he was declared junior to them and to overcome that difficulty, he had put his claim of his adhoc promotion dated March 07,1990, which has been illegally accepted by learned Single Judge without appreciating these facts in its right perspective. Mr.S.N.Yadav, Advocate, appearing for the private respondents also made similar submission that the factual position recorded in the order of learned Single Judge, is incorrect because the writ petitioner was reverted from the rank of Head Constable to Constable on August 03,1993, which was never challenged by him and,thereafter, he had undergone Lower School Course and opted for list C-1 instead of List C-2. Mr.V.K.Jindal, learned counsel appearing for respondent No.1 (writ petitioner) in order to support the order of learned Single Judge, admitted that his client was reverted to the rank of Constable on August L.P.A. No.136 of 2005 and -6- Cross Objection No.1 of 2006 (O&M) 03 1993 and had undergone Lower School Course w.e.f. August 01,1993 to January 31,1994, but after completion of the course, he was again allowed to join as Head Constable. He had further argued that the basis of reversion was only to make the writ petitioner qualify with an additional qualification of having passed Lower School Course, which, in fact, was necessary to be eligible to sit in the Intermediate School Course, which is in turn necessary for promotion as A.S.I in view of the Rule. According to him, moot question was whether promotion order dated March 07,1990 can be treated as a regular promotion or not and on that basis, he relies upon a decision of the Hon'ble Apex Court reported as Rishal Singh v. State of Haryana, JT 1994 (2) SC, 157 and asserted that promotion of the petitioner (Paramjit Singh) under Rule 13.8 (2) of the Rules was on regular basis, though said to be on temporary or adhoc basis . He further prayed that the appeal may be dismissed and cross objection be allowed to the extent that the writ petitioner be given consequential benefits. We have heard learned counsel for the parties and have perused the record. From the facts and circumstances narrated above, in our opinion, the moot question is not as to whether promotion dated March 07,1990 can be treated as a regular promotion or not but the moot question is as to whether a Constable promoted on adhoc and fortuitous basis under Rule 13.8(2) of the rules availing the benefit of exemptee Head Constable under category C-2 having been reverted as a Constable,without challenging the reversion, passes Lower School Course under Rule 13.8 L.P.A. No.136 of 2005 and -7- Cross Objection No.1 of 2006 (O&M) (1) of the Rules comes up in category C-1, can claim his seniority for promotion under Rule 13.8 (2), especially when he is far below in merit in the Lower School Course from the private respondents. For the purpose of regulating promotion amongst enrolled police officers, six promotion lists i.e. A,B,C,D,E,and F are maintained. Rule 13.1(3) of the Rules, envisages that lists A,B,C,and D are required to be maintained in each District as prescribed in rules 13.6,13.7,13.8 and 13.9 which regulate promotion from the service of Constable to the rank of Head Constable and A.S.I. List E is maintained in the office of D.I.G as prescribed in sub rule 13.10 (1), which regulates promotion to the rank of Sub-Inspector. List F is maintained in the office of Inspector General as prescribed in sub rule. 13.15 (1) to the rank of Inspector. Rule 13.7 refers to list B which is required to be maintained by the Superintendent of Police. This list contains the names of Constables, selected for admission to the promotion course of Constables at the Police Training College. Rule 13.8 (1) requires that list shall be maintained in the card index form of such constables, who have passed Lower School Course and are considered eligible for promotion to the post of Head Constables. Rule 13.8 (2) provides for promotion to the post of Head Constable in accordance with rules 13.1 (1) and (2). Rule 13.8 provides for promotion of Selection Grade Constables as Head Constables up to a maximum of 10% of vacancy from amongst those, who have not passed Lower School Course. Rule 13.8 as applicable to Haryana, is reproduced below:- “Selection Grade Constables who have not passed the Lower School Course, at the Police Training School, but are otherwise considered L.P.A. No.136 of 2005 and -8- Cross Objection No.1 of 2006 (O&M) suitable, may,with the approval of the Deputy Inspector General,be promoted to Head Constable up to a maximum of 10% of vacancy”. However, it has been brought to our notice that vide notification dated March 18,1980,by virtue of Punjab Police (Haryana),Ist Amendment) Rules, Rules 13.5 and 13.6 have been omitted from the Punjab Police Rules, 1934,aforesaid. Reverting to the facts of this case, we have examined the promotion order Annexure P-2, which reads thus:- “Paramjit Singh 359/CPF is hereby promoted as Head Constable on adhoc basis with immediate effect against existing vacancy in Haryana Commando Police Force. This promotion is purely temporary and fortuitous as a result of which he will have no right to claim seniority etc. over his seniors (.) . He can be reverted at any time of any formality of show cause notice etc.” Aforesaid promotion order is dehors of rules and does not talk of Sports Quota. Moreover, once the writ petitioner was reverted to his substantive rank of Constable on August 03,1993, which remained unchallenged, rather accepted by him and the writ petitioner had undergone Lower School Course along-with private respondents and was found less in merits, cannot take the help of the decision rendered by the Hon'ble Apex Court in Rishal Singh's Case (Supra), because in that case, Rishal Singh was admittedly a Sports Man and was promoted by the D.I.G against an existing vacancy, but subsequently, he was sought to be reverted as a Constable, he filed a Civil Writ Petition No. 7601 of 1992, which was L.P.A. No.136 of 2005 and -9- Cross Objection No.1 of 2006 (O&M) dismissed by the High Court on November 11,1992 in limine,which led to the filing of S.L.P. The Hon'ble Apex Court set aside the order of reversion in the case of Rishal Singh. He remained as an exemptee Head Constable as he did not undergo Lower School Course and was not brought from List C-2 to list C-1. Therefore, the facts of that case are not applicable to the facts and circumstances of the case in hand, in which the writ petitioner though on promotion on adhoc basis, was an exemptee Head Constable of list C-2, was reverted and had undergone Lower School Course without challenging the order of reversion, as a result of which, his claim of list C-2 where he was promoted on adhoc and fortuitous basis became redundant. We do not find that the afore-stated decision of the Hon'ble Apex Court is applicable to the facts and circumstances of the present case. Moreover, the tenor of the order of learned Single Judge, which is impugned herein is on the basis that the writ petitioner was never reverted and had continuously performed the duty of a Head Constable since March 07,1990. Had it been a true state of affair as recorded by learned Single Judge, perhaps the writ petitioner-Paramjit Singh had a case to claim 10% quota in list C-2 and the question which has been raised by Mr. V.K.Jindal, could have any basis, but the facts are totally otherwise because the writ petitioner did not perform the duty of Head Constable continuously and was ,in fact, reverted. Therefore, he cannot claim benefit of list C-2 once he had come on list C-1 on March 15,1994. In view of the above, the present appeal is allowed and the L.P.A. No.136 of 2005 and -10- Cross Objection No.1 of 2006 (O&M) order of learned Single Judge,dated December 09,2004, is hereby set aside. Since the appeal is allowed, the cross objection filed by respondent No.1 is also dismissed. However, there shall be be no order as to costs. (Rakesh Kumar Jain) Judge Feb 19,2008 ( Mehtab S.Gill ) RR Judge