1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R. JASWANT SINGH V. THE STATE OF RAJASTHAN BALOT & OTHERS. AND ANOTHER. S.B.CIVIL WRIT PETITION NO.2011/2005, under Article 226 of the Constitution of India. DATE OF ORDER: 1.9.2005 PRESENT. HON'BLE MR. JUSTICE R.P.VYAS. Mr.J.P.Joshi, for Petitioners. Mr.Jagdeep Dhankar for Respondent No.2. Mr.Rajesh Joshi, for Respondent. Mr.N.M.Lodha, Additional Advocate General, for Respondent No.1. BY THE COURT: REPORTABLE. By this writ petition, petitioners have prayed that respondents may be restrained from filling up the vacancies of the Deputy Superintendent of Police (Promotion Quota) from out of turn promotion. The petitioners have also prayed that the respondents may be directed to consider candidature of the petitioners for promotion to the post of the Deputy Superintendent of Police on the basis of seniority-cum-merit in 2 accordance with the Notification dated 23.7.2003 (Annexure 4) and all the posts, which are in existence, against the promotion quota, may be filled in as per the revised criteria of seniority- cum-merit. Brief facts, giving rise to the instant petition are that the petitioners are working on the post of Inspector. A tentative seniority list (Annexure 1) was issued by the respondents, in which the names of the petitioners have been shown at serial Nos. 263, 264, 265, 282, 200, 261, 277 and 276 respectively. The petitioners are within the zone of consideration for promotion to the post of Deputy Superintendent of Police (Dy.S.P.) as per the provisions of the Rajasthan Police Service Rules, 1954 (hereinafter referred to as 'the Rules of 1954'). As per part Part V of the Rules, 1954, which lays down the procedure for recruitment by promotion, the post of Deputy Superintendent of Police is required to be filled-in by way of promotion and direct recruitment. Rule 28A deals with the revised criteria, eligibility and procedure for promotion to junior, senior and other post encadred in the service. The vacancies are required to be determined yearwise on first April of every year. Earlier, under Rule 28A (4) of the Rules, 1954, there was 3 a provision with regard to respective quote for promotion, which reads as under :- “(4) Selection for promotion in the regular line of promotion from the post/posts not included in Service to the lower post or category of post in the service shall be made strictly on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50 : 50....” Thus, the promotions were required to be made on the basis of merit and seniority-cum-merit in the proportion of 50 : 50 respectively. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, vide Notification dated 18.2.1998 (Annexure 3), a new Rule 28AAA was inserted, in which it was provided that the promotion will also be made out of turn as promotion for gallantry. It has specifically been provided that this gallantry promotion will be made only against the vacancies, which are to be filled in on the basis of merit in any particular year and for the same under new Rule 28AAA, a sub-rule (3) was added, in which it was specifically provided that promotion under this rule shall be made against the vacancies to be filled-in on the basis of merit in that particular year. 4 The Department of Personnel (DOP), Government of Rajasthan, Jaipur issued a Notification dated 23.7.2003 (Annexure 4), by which amendment was made in the Service Rules, including the Rules of 1954 and that by way of inserting new procedure for promotion, all the posts were required to be filled in by way of seniority-cum-merit only and the said promotion was inserted as per revised criteria of sub-rule (5), in which it was provided that selection for promotion on the post included in the service shall be made on the basis of seniority-cum-merit. The promotion to the highest post in the State Service was allowed to be made on the basis of merit alone, but the junior posts were to be filled in by way of seniority-cum-merit only. Thus, the earlier provision to fill up the vacancies in the proportion of 50 : 50 on the basis of seniority-cum-merit and merit respectively was deleted. All the petitioners, whose names are in the seniority list, are within the zone of consideration for promotion to the post of Deputy Superintendent of Police and the vacancies, which occurred on the first April of every year, after the Notification dated 23.7.2003 (Annexure 4), are required to be filled in by applying the criteria of seniority-cum-merit, because as per the newly revised criteria, there is no provision for promotion on 5 the basis of merit. Notwithstanding the fact that there is no provision for promotion on the basis of merit and promotion out of turn quota can be made only against the merit. One Shri Vipin Sharma, who was much junior than the petitioners, was granted out of turn promotion against the vacancies of 2004- 05. Now, the five persons, namely, Ramsingh, Damodar Gujar, Raghuveer Singh, Rajeev Dutta and Bhanwarlal, who are working as Inspectors and are much junior to the petitioners, are sought to be given promotion out of turn by the respondents in accordance with Rule 28AAA of the Rules, 1954, as they have got certificates in their favour and are not upto the level of gallantry work. Being aggrieved by the aforesaid action of the respondents, the petitioners have preferred the instant petition under Article 226 of the Constitution of India. It is submitted by the learned counsel for the petitioners that as per Notification dated 18.2.1998 (Annexure 3), out of turn promotion for gallantry work could be made only against 6 the vacancies to be filled in on the basis of merit in the particular year, but, now, after issuance of the Notification dated 23.7.2003 (Annexure 4), new criteria for protmotion has been laid down, in which there is no promotion on the basis of merit and all the vacancies of the Deputy Superintendent of Police are required to be filled in by way of seniority-cum-merit. It is further submitted by the learned counsel for the petitioners that the gallantry pre-supposes extra-ordinary discharge of duties with bravery and at least it does not pre- suppose the simple appreciation or commendation letters in one's favour, for routine police duties. Apart from that, there is no exchange of fire between the police-party and other side and no life hazard work, i.e., exemplary courageous work has been done by the concerned Police Inspectors, therefore, it is not considerable within the periphery of gallantry work. Thus, the learned counsel for the petitioners submits that in the absence of heroic courageous work to give promotion to the aforesaid Inspectors out of turn in terms of Rule 28AAA only on the basis of appreciation certificates , is not justiciable. It is also submitted by the learned counsel for the 7 petitioners that there is no provision for promotion on the post of Deputy Superintendent of Police on the basis of merit after issuance of Notification dated 23.7.2003 (Annexure 4), because now, it has been decided to fill up the vacancies meant for promotion quota from the criteria of seniority-cum-merit only, whereas, according to the learned counsel, the out of turn promotion could be made only against the quota of merit alone. For the year, 2004-05, five vacancies of Deputy Superintendent of Police in the general category have become available and strangely, out of these five vacancies, all vacancies are sought to be filled in by out of turn promotion under the garb of gallantry work. It is contended by the learned counsel for the petitioners that the respondents are depriving the petitioners from legal and constitutional right of being considered for promotion to the post of Deputy Superintendent of Police, though they are in the zone of consideration. It is further contended by the learned counsel for the petitioners that after the revised criteria promulgated while effecting amendment vide Notification dated 23.7.2003 (Annexure 4), when the promotions are to be made strictly on the basis of seniority-cum-merit, then the earlier Notification 8 dated 18.2.1998 (Annexure 3) becomes redundant and no promotion out of turn can be made, because no vacancies now, can be filled in by way of merit after issuance of the Notification dated 23.7.2003 (Annexure 4). It is also contended by the learned counsel for the petitioners that according to the Rules of 1954, earlier promotions to the post of Deputy Superintendent of Police (against the vacancies of promotion quota) were to be made on the basis of seniority-cum;merit and merit in the proportion of 50 : 50 respectively, but, thereafter, amendment came to be made while issuing the Notification dated 23.7.2003 (Annexure 4) and it came to be provided that the vacancies earmarked for promotion quota, are solely to be filled in by way of applying the criteria of seniority-cum-merit only. In such a situation, when there is no promotion on the basis of merit, then provisions of Rule 28-AAA of the Rules, 1954 cannot be taken into consideration for the purpose of giving out of turn promotion. Learned counsel for the petitioners has vehemently argued that the word 'gallantry' as such is not defined, but from the common parlance, it is very much clear that it pre-supposes extra-ordinary discharge of service and it cannot be said that 9 one is having gallantry performance on the basis of appreciation letters. The appreciation letters cannot be held to be sufficient to conclude that one has done gallantry work. Learned counsel for the petitioners has also argued that even if the gallantry promotion in terms of Rule 28-AAA is required to be given, it ought to have been given on the basis of seniority-cum-merit only and, according to him, it is the true meaning of harmonious construction of Rule 28-AAA. For example, on account of gallantry performance, a junior Inspector is required to be promoted in terms of Rule 28AAA, then he should be accorded promotion to the post of Deputy Superintendent of Police on the basis of seniority-cum-merit, meaning thereby the junior Inspector should wait for his turn till the Inspectors, who are Senior to him, are promoted to the post of Deputy Superintendent of Police. It is significante to note that if the aforesaid example of Shri J.P.Joshi, learned counsel for the petitioners, is accepted, then it will frustrate the purpose and intent of Rule 28AAA, for which it has been framed/enacted by the Legislation. In support of his contentions, learned counsel for the petitioners has placed reliance on the cases of M.Pentiah v. Veeramallappa (AIR 1971 SC 1107). He has also placed reliance on Dadi Jagannadham v. Jammulu Ramulu and Others 10 (2001) 7 SCC 71. Though it was a matter pertaining to Article 127 of the Limitation Act, but with regard to interpretation, their Lordships of the Supreme Court held that the settled principles of interpretation are that the court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The court must, as far as possible, adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly, if there is a defect or an omission in the words used by the legislature, the court would not go to its aid to correct or make up the deficiency. The court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. Learned counsel for the petitioners has invited my attention to the case of Ajit Singh (II) v. State of Punjab (1999 (7) SCC 209). In para 23 of the Judgment, their Lordships of the Supreme Court held as under :- “23. Where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in Article 16 (1). For example, if the promotion is by rule of “Seniority- cum-suitability”, the eligible seniors at the basis level as per seniority fixed at the level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category, they 11 would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. (There are minor modifications in various services in the matter of counting of seniority of such promotees but in all cases the seniormost person at the basis level is to be considered first and then the others in the line of seniority.). That is how right to be considered for promotion and the “seniority” attached to such promotion become important facts of the fundamental right guaranteed in Article 16 (1)”. Learned counsel for the petitioners placed reliance on the case of Government of India v. C.A.Balakrishnan & Others (1975 (3) SCC 256), in which question for consideration was whether the High Court was right in directing the Government of India to consider the claim of Respondent No.1, who was senior to Respondent No.2, in the cadre of Godown – Dock Superintendent. While dismissing the appeal of the Government 12 of India, their Lordships of the Supreme Court, in para 13, held as under :- “13. The case of Respondent No.1 before the High Court was that he was senior to Respondent No.2 and that his case was not considered when Respondent No.2 was appointed to the post of Superintendent. The High Court was of the view that on November 1, 1057, when Respondent No.2 was promoted to the post of Superintendent, the post was not a selection post but a post to which promotions were made on the basis of seniority-cum-fitness and that the case of Respondent No.1 should have been considered on that basis and not on the basis that it was a selection post. The Court, therefore, issued a writ directing the Government to consider the case of Respondent No.1 for promotion to the post of Superintendent as on November 1, 1957, when Respondent No.2 was promoted and according to the rules then in force and that, if he is found fit for promotion as on that date, “the promotion already given to him to that position be dated back to November 1, 1957, and he be granted all consequential benefits and if he is not found fit for promotion as on that date, he will not be entitled to any relief.” While submitting the written submissions, the learned counsel for the petitioners has raised two questions of law, which read as under :- 13 (a) Whether after the amendment made in the Rajasthan Police Service Rules, 1954 vide Notification dated 23rd July, 2003, the effect can be given to the provisions of Rule 28AAA of the said Rules. (b) Whether out of turn promotion can be given in terms of Rule 28AAA when said promotions are required to be given against vacancy to be filled in on the basis of merit in that particular year.” By way of written submissions, learned counsel for the petitioners has invited my attention to Sub-rules (4), (6) and (11) of Rule 28A of the Rules, 1954, as well as sub-rule (3) of Rule 28-AAA, which are reproduced as under :- “(4) Selection for promotion in regular line of promotion from the post/posts not included in service to the lower post or category of post in the service shall be made strictly on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50 : 50 Provided that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority-cum-merit may be made in the same manner as specified in these Rules.” “(6) Selection for promotion to all 14 other higher posts or higher categories of posts in the State service shall be made on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50 : 50 Provided that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority-cum-merit may be made in the same manner as specified in these Rules. Explanation - If in a service, in any category of post, numbe of posts, available for promotion is an odd number then for purpose of determining the vacancies for selection by promotion on the basis of seniority-cum-merit in the proportion of 50: 50, the following cyclic order shall be passed - The first vacancy by seniority-cum- merit; The subsequent vacancy by merit; The cycle to be repeated.” “(11) For the purpose of selection on the basis of merit, no person shall be selected, if he does not have “outstanding” or “very good” record in at least five out of seven years preceding the year for which the D.P.C. Is held.” “28-AAA (3) The promotion under this Rule shall be against the vacancy to be filled on the basis of merit in that particular year.” 15 A bare perusal of sub-rule (4) of Rule 28A of the Rules reveals that promotions are required to be made strictly on the basis of merit and on the basis of seniority-cum-merit in the proportion of 50 : 50. Similarly, it is clear from sub-rule (6) of Rule 28A of the Rules that the vacancy is required to be filled up by seniority-cum-merit and the subsequent vacancy by merit in the ratio of 50 : 50. It may be mentioned that sub-rule (11) of Rule 28A lays down the eligibility criteria for making promotion under the quota on the basis of merit. Thus, according to the scheme of the Rules, promotions are required to be made on the basis of seniority-cum-merit and merit and while considering the merit of a candidate, the Departmental Promotion Committee (D.P.C.) is required to see that the person is having at least five out of seven “outstanding” or “very good” Annual Confidential Reports (ACRs) in the preceding year, for which the D.P.C. is held and, therefore, prior to amendment, rule envisages two channels of promotion, i.e., on the basis of seniority-cum-merit and on the basis of merit. So far as newly inserted Rule 28-AAA of the Rules, 1954 is concerned, it has also been reproduced in this order. However, a bare reading of sub-rule (3) of Rule 28-AAA of the Rules reveals that such promotions are required to be made 16 against the vacancy which are required to be filled on the basis of merit in that particular year. Thus, learned counsel for the petitioners submits that the out of turn promotions in terms of Rule 28-AAA can be made only when promotions are required to be made against the vacancies to be filled on the basis of merit in that particular year. He also submits that as a logical corollary, no out of turn promotions can be made, if the vacancies are not required to be filled on the basis of merit in that particular year. Learned counsel for the petitioner has also drawn my attention to sub-rule (5) of Rule 3 of the Notification dated 23rd July, 2003 (Annexure 4), which is reproduced below :- “(5) Selection for promotion on the post included in the service shall be made on the basis of seniority-cum- merit.” Thus, according to the learned counsel for the petitioners, by amendment in the Notification dated July 23, 2003, the promotions are required to be made only on the basis of seniority-cum-merit as envisaged in the un-amended Rules, 1954. Further, learned counsel for the petitioners submits that as a consequence of the amendment, now, all the promotions under the Rajasthan Police Service Rules, 1954 are required to 17 be made on the basis of seniority-cum-merit and not on the basis of merit. He also submits that effect can be given to sub- rule (3) of Rule 28AAA only, when the vacancies are required to be filled on the basis of merit and not otherwise. Learned counsel for the petitioners has also invited my attention to paras 3, 5 and 6 of the reply, filed by the State Government and submitted that the State Government has admitted the position that the promotions are required to be made strictly on the basis of seniority-cum-merit and not on the basis of merit. It may be mentioned that the State Government has specifically stated in para 13 of its reply that no legal or constitutional right of the petitioners is going to be infringed. More so, until and unless there is a challenge to Rule 28AAA, it is not just and proper on the part of the petitioners to say that no promotion is required to be given, though there is a provision for such promotion under Rule 28AAA of the Rules, 1954. Similarly, in ground No.(iv) of the reply, it has been stated that if harmonious construction is made, then it is clear that whenever promotion is given under Rule 28AAA, then that would amount to gallantry promotion and the persons who will be so chosen, will the kept at the bottom as envisaged under 18 Rule 33 of the Rules. Thus, the intention of the reply of the State Government was with reference to Rule 28AAA vis-a-vis Rule 28A. Out of turn promotion for gallantry in accordance with Rule 28AAA is different than the promotions in terms of Rule 28A of the Rules, 1954. Rule 28A does not at all deal with the issue of out of turn promotion for gallantry, and it only prescribes the mode of general promotion and is standing on different footing. Learned counsel for the petitioners has placed reliance on para 18 of the judgment rendered by their Lordships of the Hon'ble Supreme Court in Dadi Jagannadham v. Jammulu Ramulu and Others (2001) 7 SCC 71), which is reproduced hereinbelow :- “Viewed in this context the intention of the Legislature is extending the period under Article 127 of the Limitation Act may be seen. It is very clear from the statement of Objects and Reasons, which have been set out hereinabove, that the period under Article 127 of the Limitation Act was extended from 30 days to 60 days in order to give more time to persons to make deposits. The legislature has noted that the period of 30 days from the date of sale was too short and often caused hardships because judgment- debtors usually failed to arrange for money within that period. The question then would be whether by merely amending Article 127 of the Limitation Act, the legislature has achieved the 19 object for which in increased the period of limitation to file an application to set aside sale. 18.Having given our careful consideration to the question, we are of the opinion that there is no anomaly and that there are no different period of limitation for making deposits and/or filing an application for setting aside the sale. It is by virtue of Order 21 Rule 89 CPC that an application for setting aside a sale and a deposit can be made. Order 21 Rule 89 CPC does