HANUMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 6041/05) 1 HANUMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 6041/05) Dated:- 29th April,2009. HON'BLE MR.JUSTICE SANGEET LODHA Mr. R.S.Choudhary, for the petitioner. Mr. Sudhir Tak, Dy.Government Counsel. Mr. J.K.Kaushik, for the respondent no.5. 1. In this writ petition, the petitioner has assailed validity of final seniority list of the persons appointed in Rajasthan Police Service in Junior Pay Scale published vide circular dated 31.5.05. Further directions are sought by the petitioner against the respondent to consider and count his seniority on the post of Deputy Superintendent of Police in Junior Pay Scale of Rajasthan Police Service w.e.f. 3.12.97 and accordingly, to place him at serial No. 162 i.e. after Shri Prahlad Singh , who was the last person promoted on the post of Deputy Superintendent of Police vide order dated 27.11.97. Besides, the petitioner has also assailed the validity of order dated 9.1.01, whereby the petitioner was promoted to Rajasthan Police Service in Junior Pay Scale against the vacancies of the year 1999-2000 and order dated 7.4.05 confirming him on the said post after completion of the probation period. 2. Initially, the petitioner was appointed on 1.7.1978 as Sub HANUMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 6041/05) 2 Inspector, a post in the Rajasthan Police Subordinate Service and was later promoted to the post of Inspector on 31.8.84. The candidature of eligible candidates for promotion to Rajasthan Police Service in Junior Pay Scale was considered by the Departmental Promotion Committee ( in short “DPC”) under Rule 28 of Rajasthan Police Service Rules, 1954 (in short “the Rules of 1954” hereinafter). On the recommendation of the DPC, the persons found suitable and selected were accorded appointment vide order dated 12.11.97 (Annexure 1) to the post of Rajasthan Police Service Junior Scale on probation for a period of one year against the vacancies of the year 1997-98. The petitioner was accorded appointment on the said post in terms of Rule 28 A (11) (b) of the Rules of 1954 for a period of one year or till the review by the DPC, whichever is earlier. Thereafter, on recommendation of DPC, vide order dated 9.1.01, the petitioner was accorded regular promotion to Rajasthan Police Service Junior Pay Scale on probation for a period of one year against the vacancies of the year 1999-2000. The petitioner was confirmed on the said post in terms of Rule 34-36 of the Rules of 1954 on completion of probation period vide order dated 7.4.05. 3. The tentative seniority list of the members of Rajasthan Police Service Junior Pay Scale was notified by the Department of Home(Group 1), Government of Rajasthan, vide notice dated HANUMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 6041/05) 3 4.4.05 wherein the petitioner's name appeared at serial No. 246. The petitioner represented against his placement in seniority list at Sr. No. 246 . According to the petitioner, he was entitled to be placed in the seniority list after Shri Prahlad Singh whose name appeared at serial No. 164 and before Shri Shantanu Kumar Singh , respondent no. 5 herein, who was placed at serial No. 165. The seniority as aforesaid was claimed by the petitioner on the strength of the order dated 26.11.97 whereby he was promoted to the post of Deputy Superintendent of Police under Rule 28 A (11)(b) of the Rules of 1954 subject to review by the DPC. The representation made by the petitioner was not acceded to and the respondent Department published the finally seniority list vide circular dated 31.5.05 wherein the petitioner's name appear at serial No. 244. In these circumstances, the petitioner has assailed the validity of the aforesaid seniority list by way of this writ petition. 4. It is contended by the learned counsel for the petitioner that the impugned seniority list has been issued by the respondent Department ignoring the provisions of Rule 28 and 28 A of the Rules of 1954. It is submitted by the learned counsel that the petitioner was promoted to the post of Deputy Superintendent of Police by order dated 26.11.97 and joined his duties on the post on 3.12.97. It is submitted that the HANUMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 6041/05) 4 respondent no. 5 has been assigned seniority above the petitioner merely because he was appointed in Rajasthan Police Service by way of direct recruitment. It is submitted by the learned counsel that the petitioner was promoted to the post of Deputy Superintendent of Police prior to the appointment of respondent Shri Shantanu Kumar and others who have been directly recruited in the year 1997 and 1998 cannot be assigned seniority above the petitioner. The learned counsel submitted that the petitioner was accorded promotion vide order dated 26.11.97 in accordance with Rules of 1954 therefore, the period for which he has continued on the said post till his regular selection cannot be ignored in computing the length of service for determining seniority between the promotees and direct recruits. It is submitted by the learned counsel that the petitioner having been promoted to the Rajasthan Police Service Junior Pay Scale vide order dated 26.11.97 there was no occasion for the respondents to promote the petitioner for a period of one year on probation vide order dated 9.1.2001 against the vacancies of the year 1999-2000. It is submitted by the learned counsel that the petitioner has to be treated as promoted to the Rajasthan Police Service in Junior Scale on regular basis w.e.f. 26.11.97 and entitled to be assigned seniority accordingly. HANUMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 6041/05) 5 5. Per contra, the learned Dy. Government Counsel submitted that while assailing the validity of seniority list ,the petitioner has not impleaded all the persons above whom he is claiming seniority therefore, the writ petition deserves to be dismissed for non joinder of necessary parties. It is submitted by the learned counsel that obviously if the relief prayed for in the petition is granted then, all the persons above whom the petitioner is claiming seniority shall be adversely affected therefore, no order can be passed by this court in favour of the petitioner without giving an opportunity of hearing to the persons affected. The learned counsel submitted that the appointment accorded to the petitioner vide order dated 26.11.97 was in terms of Rule 28 A (11)(b) of the Rules of 1954 and the same was subject to review by the DPC therefore, on the strength of the said order, the petitioner cannot claim that the services rendered by him pursuant to the said order till his regular selection has to be counted for the purpose of seniority. The learned counsel submitted that after the regular selection, the petitioner has been promoted to the post of Deputy Superintendent of Police against the vacancies of the year 1999-2000 therefore, he has rightly been assigned seniority vide final seniority list dated 31.5.05 in terms of Rule 33 of the Rules of 1954. 6. The learned counsel appearing on behalf of the respondent HANUMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 6041/05) 6 no. 5 submitted that it is not the case of the petitioner that any person junior to him has been promoted against the vacancies of the year prior to 1999-2000 therefore, the challenge of the petitioner to the order promoting him on the post of Deputy Superintendent of Police after regular selection cannot be faulted with. That apart, it is submitted by the learned counsel that the challenge to the said order after more than four years before this court suffers from delay and laches and therefore, the writ petition to the extent of challenge to the promotion order dated 9.1.01 cannot be entertained at such belated stage. The learned counsel submitted that admittedly, the petitioner has been promoted to the post of Deputy Superintendent of Police Junior Pay Scale against the vacancies of the year 1999-2000 whereas, the respondent no. 5 has been appointed by way of direct recruitment against the vacancies of the year 1997, in this view of the matter, the seniority assigned to the respondent no. 5 above the petitioner is absolutely in conformity with Rule 33 of the Rules of 1954 and cannot be faulted with. 7. I have considered the rival submissions and perused the record. 8. Admittedly, the posts of Deputy Superintendent of Police under the Rules of 1954 are required to be filled in 50% by promotion and 50% by direct recruitment according to the cyclic HANUMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 6041/05) 7 order provided under Rule 7 of the Rules of 1954. The vacancies to be filled in by way of promotion and direct recruitment are determined in terms of Rule 9 of the Rules of 1954 yearwise on 1st of April every year. Suffice it to say that while making appointment to the posts , the recruitment by way of both the methods is required to be made strictly in accordance with the quota prescribed. Of course, the candidature of the petitioner for promotion to the post of Rajasthan Police Service Junior Pay Scale was considered by the DPC constituted for consideration of candidature of eligible candidates against the vacancies of the year 1997-98. But, the fact remains that the petitioner was not accorded regular promotion vide order dated 26.11.97 but was only promoted for a period of year or till the review by the DPC in terms of Rule 28 A (11)(b) of the Rules of 1954. 9. Rule 28 A (11)(b) of the Rules of 1954 reads as under:- “(b) The Committee shall also prepare a separate list on the basis of seniority-cum-merit and/or on the basis of merit, as the case may be, as per the criteria for promotion laid down in the rules, containing names of persons equal to the number of persons selected in the list prepared under (a) above to fill temporary or permanent vacancies, which may occur subsequently . The list so prepared on the basis of seniority-cum-merit and/or on the basis of merit shall be arranged in the order of the seniority in the category of posts from which selection shall be made. Such a list shall be reviewed and revised by the Departmental Promotion Committee that meets in the subsequent year and that such list shall remain in force till the end of the last day of the next year or till the Departmental Promotion Committee meets, which is earlier.” HANUMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 6041/05) 8 10. A bare perusal of the Rule 28 A (11)(b) quoted herein above goes to show that it envisages preparation of a separate list on the basis of seniority cum merit and/or on the basis of merit, as the case may be, as per the criteria laid down in the Rules to fill up temporary or permanent vacancies which may occur subsequently, which is subject to review and revision by the DPC that meets in the subsequent year . Moreover, it has been specifically mentioned in the order dated 26.11.97 itself that the appointment accorded to the petitioner is in terms of Rule 28 A(11)(b) for a period of one year or till the review is made by the DPC, whichever is earlier. If ultimately, the petitioner is found suitable and selected for promotion to the post against the vacancies of the year 1999-2000 belonging to the promotion quota then, the petitioner simply cannot claim seniority on the strength of the said order , whereby he was accorded promotion subject to review by the DPC. It is not the case of the petitioner that any person junior to him has been promoted to the Rajasthan Police Service Junior Pay Scale against the vacancies of the year prior to 1999-2000 therefore, the challenge of the petitioner to the order dated 9.1.2001 whereby he has been accorded regular promotion against the vacancies of the year 1999-2000 and the order dated 7.4.05 confirming the petitioner on the said post is absolutely baseless HANUMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 6041/05) 9 and misconceived. Further,there is no explanation whatsoever set out in the petition that if the petitioner was aggrieved by the said order then what prevented him from assailing the order for all these years. It is settled law that a person aggrieved by any action of the public authorities must approach this court with utmost expedition and in absence of any explanation regarding the delay caused in filing the petition , this court can always deny adjudication of the stale claim. Therefore, the writ petition to the extent of challenge to the dated 9.1.2001 and consequential order dated 7.4.05 deserves to be dismissed on this count alone. 11. As per Rule 33 of the Rules of 1954, the seniority of the persons appointed to the lowest post of the service or lowest categories of the posts in each of the group/section of the service, as the case may be, shall be determined from the date of confirmation of such person to the post. Further, as per proviso (iv) to Rule 33 of the Rules of 1954 among the persons appointed after the commencement of these rules to the service within the same period of 12 months by direct recruitment or promotion person appointed by promotion shall rank senior to persons appointed by direct recruitment. It is not in dispute that the petitioner has been promoted against the vacancies of the year 1999-2000 whereas, the respondent no. 5 and his likes who have been placed above the petitioner in the seniority list were HANUMAN RAM VS. STATE OF RAJASTHAN & ORS. (S.B.CIVIL WRIT PETITION NO. 6041/05) 10 appointed by direct recruitment against the vacancies of the year 1997-98 and 1998-99 therefore, the seniority assigned to them above the petitioner is absolutely in conformity with the Rules of 1954 and does not warrant any interference by this court in exercise of the extra ordinary jurisdiction under Article 226 of the Constitution of India. 12. In the result, the writ petition fails, it is hereby dismissed. No order as to costs. ( SANGEET LODHA),J. Aditya/-