1 S.B.CIVIL WRIT PETITION NO. 10464/2009 Shiv Lal Vs. State of Rajasthan & Ors. Date of Order :: 18.11.2010 HON'BLE MR. JUSTICE GOVIND MATHUR Mr. Mahaveer Bishnoi with Mr. Vipul Singhvi, for the petitioner/s. ... While making promotion to Junior Scale of the Rajasthan Police Service (RPS), from among the Police Inspectors/ Company Commanders under an order dated 22.10.2009, the petitioner was superseded by his juniors. Being aggrieved by the same this petition for writ is preferred. It is submitted by learned counsel for the petitioner that candidature of the petitioner was required to be considered as per procedure given under Rule 28(2) of the Rajasthan Service Rules, 1954 but, no such consideration at all was made as he suffered with minor penalty of censure twice. The respondents in their reply admitted that candidature of the petitioner was not considered because he was inflicted with two penalties of censure in two different departmental inquiries. The non-consideration for the reason above was made in view of a circular of the Department of Personnel dated 26.7.2006. Precisely, the issue requires consideration is that whether the 2 respondents were right in not considering candidature of the petitioner whilst making promotion to the Rajasthan Police Service (RPS) on the count of minor penalties suffered by him ? This Court in the case of Satyamani Tiwari Vs. State of Rajasthan & Ors. in SBCivil Writ Petition No.2878/2003 decided on 11.8.2006, in detail examined the scheme and intention of the Rules of 1954 while making consideration for promotion to the Rajasthan Police Service from among the members of the Rajasthan Police Subordinate Service. The relevant portion of the discussion made by this Court in the case of Satyamani Tiwari (supra) reads thus: In view of the provisions of Rule 28 of the Rules of 1954 and also in view of the law laid down by this Court in Het Ram Dudi's case (supra) while examining suitability of an incumbent various factors are required to be taken into consideration and imposition of a minor penalty cannot be a sole criteria for denying promotion to a person. The procedure for selection under Rule 28 in quite unambiguous terms states that while preparing a list under the criteria of seniority-cum-merit remarks are required to be given for not recommending a person for promotion being unsuitable. No such remarks are available in the record of entire selection proceedings including the minutes of Departmental Promotion Committee. The Departmental Promotion Committee was required to see the entire service record including the annual confidential reports/annual performance 3 appraisal reports, awards/commendation certificates, entries relating to punishments or pending departmental enquiries etc. and then by analysis of the same an objective remark in relation to suitability was required to be made. The Departmental Promotion Committee should have recorded that how the misconduct for that the petitioner was penalised by a minor penalty effected his efficiency to the extent that he is not suitable to be promoted to Rajasthan Police Service. While doing so the committee must keep in mind that under the criteria of seniority-cum-merit it is the seniority that will prevail as the term “merit” under the criteria concerned means the minimum merit necessary for efficiency of administration. From perusal of the record it appears that no such exercise was done while rejecting candidature of the petitioner for promotion to Rajasthan Police Service. In the instant matter, as per the averments made in para 10 of the reply submitted on behalf of the respondents, it is apparent that the respondents have not at all considered candidature of the petitioner for promotion in view of the circular dated 26.7.2006 issued by the Department of Personnel, though they were statutorily required to do so as per provisions of Rule 28 of the Rules of 1954. The instructions given by the Department of Personnel are administrative in nature, these may provide care and cautions required to be taken by the competent authorities, including Departmental Promotion Committee, but in no 4 manner such instructions can curtail statutory rights. The primacy of statute is certainly required to be maintained. The non-consideration of the petitioner for promotion in such circumstances is bad. Accordingly, this petition for writ deserves acceptance, and therefore, the same is allowed. The respondents are directed to consider candidature of the petitioner afresh in terms of the Rules of 1954 as discussed in Satyamani Tiwari's case (supra) for promotion to Rajasthan Police Service from the date persons junior to him were promoted in the services aforesaid. No order as to costs. (GOVIND MATHUR), J. Jgoyal '