LPA No. 1447 of 2009 1 In the High Court of Punjab and Haryana, Chandigarh. LPA No. 1447 of 2009 (O&M) Date of Decision:05.02.2010 Suresh Kumar ....Appellant. Versus State of Haryana and others ....Respondents. Coram:- Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice Alok Singh Present: Mr. S.K. Redhu, Advocate for the appellant. Ms. Ritu Bahri, Sr. D.A.G., Haryana for the State. ... Alok Singh, J. 1. This appeal has been preferred against the order of the learned Single Judge dismissing the writ petition on the ground that the petitioners were not eligible to be placed in B-1 list. 2. Brief facts of the case are that the petitioners, who were recruited in Haryana Police as Constable, sought detailment on the B-1 Course on the basis of seniority-cum-fitness with effect from the date their juniors were detailed for the aforesaid course. In view of amendment in Punjab Police Rules, 55% seats for the aforesaid course were to be filled up on the basis of test, 35% seats on the basis of seniority-cum-merit and 10% seats were to be filled up from sports quota. LPA No. 1447 of 2009 2 3. It was the case of the petitioners that in 2005, test for the said course was conducted but they were not detailed for the course on the ground that they had not attained the requisite merit. It was also pleaded that one Naresh Kumar, who was working as a Constable and was declined detailment on the same ground, had filed CWP No.7952 of 2004 before this Court. According to the petitioners, in the aforesaid petition, it was held that seniority-cum-fitness cannot be equated with seniority-cum-merit and that if a senior is fit to be detailed, he is to be placed on B-1 list irrespective of his merit. Special leave petition filed against the aforesaid order was dismissed. 4. Relying upon the decision rendered by this Court in CWP No.7952 of 2004, the petitioners filed CWP No.21227 of 2008 claiming the same relief. The aforesaid writ petition was disposed of by directing the respondents to decide the legal notice submitted by the petitioners on the aforesaid point. The legal notice submitted by the petitioners was rejected on the ground that they were below the age of 35 years as on 1.1.2005. The aforesaid order was challenged by the petitioners again by filing the writ petition. 5. Learned Single Judge dismissed the aforesaid writ petition by observing that person who wants to compete on the basis of seniority-cum- fitness, would have to be 35 of years age and below 40 years. As the petitioners were below the age of 35 years, they were not eligible for detailment on the basis of seniority-cum-fitness and that the respondents rightly declined the claim of the petitioners. 6. Aggrieved by the aforesaid order passed by the learned Single Judge, the present appeal has been filed. LPA No. 1447 of 2009 3 7. We have heard learned counsel for the parties and perused the record. 8. Learned Single Judge while dismissing the writ petition observed as under:- “This part of the rule provides that for selection of 35% candidates on the basis of seniority-cum-fitness, separate Departmental Promotion Committee shall be constituted and they shall select the names as per seniority-cum-fitness keeping in view the provisions of Rule 13.1. The requirement of the age being 35 years and above and less than 40 years appears to have been taken from Rule 13.7 (2) (i) and (ii). In terms of Rule 13.7 (2)(i) all Constables have been made eligible to appear in the test if they are under the age of 35 years. This part of the rule obviously is meant for 55% of the seats. Similarly, as per Rule 13.7(2)(ii), Constables are eligible to be brought on list B-1 on the basis of seniority-cum-merit if they are under the age of 40 years. Detailment on merit is to be corelated to 55% of the seats. Rule 13.7(2)(i) talks of eligibility to appear in test and Rule 13.7 (2)(ii) regulates the eligibility to be brought on list B- 1. Constable, thus, is eligible to appear in test and compete if he is less than 35 years and he can be brought on B-1 list till the age of 40 years. 35% seats are to be filled on the basis of merit- cum-fitness. This, thus, has to be after the Constable completed 35 years of age. Since he can be brought on B-1 list upto the age of 40 years, his claim for detailment on the basis of seniority-cum-fitness has to remain till he attains 40 years of LPA No. 1447 of 2009 4 age. After 40 years of age, the Constable would not be eligible to be brought on B-1 list as can be seen from Rule 13.7(2)(ii). The scheme appears to be to make all constables eligible for appearing in the competitive examination under 55% seats, if they are under the age of 35 years and have five years of service. Those, who qualify, can be brought on B-1 list till the age of 40 years. The person, who wants to compete on the basis of seniority- cum-fitness, obviously would have to be above 35 years of age and below 40 years. That seems to be the only reasonable reading of Rule 13.7 as now amended. Accordingly, I do not find any infirmity in the impugned order, whereby the claim of the petitioners has been rejected on the ground that they are not eligible being less than 35 years for detailment on the basis of seniority-cum-fitness. 9. We find from Annexure P-2 that Kamal Kumar, who was at Sr. No.5 and was junior to the petitioner, was also selected under 35% quota. 10. In Constable Dharambir Vs. State of Haryana and others, 2009 (1) RSJ 310, the question which was replied by the Division Bench of this Court, is as under:- “Can a Constable who has participated in the competitive test (B-1 test) for including his name in List B-1 of selected Constables for admission to Lower School Course under the 55% on the basis of merit as per Rule 13.7 (2) (i) of the Punjab Police Rules, claim consideration and selection under the 35% on the basis of seniority-cum-merit as per Rule 13.7 (2) (ii) also, if he is eligible under both the categories?” LPA No. 1447 of 2009 5 11. The Division Bench in Constable Dharambir's case (supra) has observed in para 13 as under:- “So there are three distinct categories with their own qualifications and requirements for eligibility for consideration. There is no bar to consideration of a Constable in any category if he fulfils the eligibility criteria i.e. if he is eligible in all three categories he has a statutory right to consideration in all three categories. The rules do not categorise or require some minimum age for eligibility under any of the categories. What it specifies is the upper age limit for consideration under a particular category.” (underlining supplied) 12. In view of the above, we find that the appellant is entitled to be considered in all the categories provided he is eligible for the same. The appellant cannot be deprived of the benefit of 35% even if he could not qualify under 55% seats for B-1 course. Junior to the petitioner, as already pointed out, has already been considered under 35% quota. 13. In view of the above, we allow this appeal and set aside the order passed by the learned Single Judge and direct that the case of the appellant be considered, in accordance with law. ( Alok Singh ) Judge ( Adarsh Kumar Goel ) Judge 05.02.2010 sk.