Punjab-Haryana High Court
Gurmukh Singh vs State Of Punjab And Others on 22 May, 2013
Author: Augustine George Masih
Bench: Augustine George Masih
Civil Writ Petition No. 11246 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Writ Petition No. 11246 of 2012 (O&M)
Date of decision : 22.05.2013
Gurmukh Singh .....Petitioner
VERSUS
State of Punjab and others ....Respondents
CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH
Present: Mr. A.S. Cheema, Advocate
for the petitioner.
Mr. Inder Pal Goyat, Addl. AG
for the State of Punjab.
****
AUGUSTINE GEORGE MASIH, J.
The petitioner who belongs to Ex-serviceman category applied for appointment to the post of Constable in the Ex- serviceman category (General) and scored 29 marks but was shown in the waiting list at serial No. 1. He has approached this Court challenging the selection and appointment of Kawalpreet Singh (respondent No. 4) who belongs to general category and has scored 28.5 marks on the ground that the petitioner who belongs to the reserved category cannot be put to disadvantage viz-a-viz a general category candidate merely because he has applied under reserve category although he has scored higher marks than the general category candidate and, therefore, he deserves to be given appointment by setting aside the appointment of respondent No. 4. Civil Writ Petition No. 11246 of 2012 (O&M) 2
In support of this contention, counsel for the petitioner has referred to the merit list, Annexure P-2, of District Batala Constables to contend that the petitioner having scored higher marks than the general category candidate should have been issued appointment letter over and above respondent No. 4 and exclusion of the petitioner from the select list by placing him at serial No. 1 in the waiting list of ex-serviceman category (General) cannot sustain especially when he has scored higher marks than the general category candidate.
Counsel for the respondent on the other hand contends that the Ex-serviceman category candidate cannot claim appointment against the general category post as the criteria for selection is different for both the categories especially the physical efficiency test. In support of this contention, reference has been made to advertisement dated 11.09.2010 (Annexure P-1). In pursuance whereof the petitioner has applied for the post of constable wherein it has been stated that for physical efficiency test, candidates who fulfil the physical measurement as provided in clause (A) of para 6 dealing with the selection process would have to participate in the physical efficiency test. Under this test the requirement is of passing of running a race of 1600 mtr. in six minutes and 30 seconds (only one chance), Long jump-3.80m (three chances), High jump-1.10 m (three chances), but for the Ex-serviceman a candidate is required to run/walk 1400 mtr. in 12 minutes (only one chance) and has to perform 10 sit-ups. On this basis, it has been contended that the mode of selection being totally different and as also the criteria, Civil Writ Petition No. 11246 of 2012 (O&M) 3 petitioner cannot claim appointment on a general category post. He, accordingly, contends that the writ petition deserves to be dismissed on this ground.
This contention of counsel for the respondent is fully justified that the petitioner has not attained the same standard and passed the same physical efficiency test which a candidate other than Ex-serviceman category candidate has to participate in and clear. The contention was raised by the counsel for the petitioner on 30.04.2013 when the case was taken up for hearing that the petitioner had participated in the physical efficiency test as has been laid down for the general category candidate and therefore the records of the selection were called for. The said records have been produced in Court and on perusal of the same, it has been found that the petitioner had only participated in the run/walk of 1400m and has done 10 sit-ups which clearly demonstrates that the petitioner had not cleared the physical efficiency test as has been prescribed for other categories and candidates. Thus, the petitioner cannot be considered for appointment against the general category and has rightly been denied the said claim.
At this stage, counsel for the petitioner has referred to merit list of the ex-serviceman category candidates to contend that the petitioner as also the other two Ex-serviceman category candidates namely Gurwinder Singh and Harmeet Singh have also scored equal marks i.e. 29. Gurwinder Singh and Harmeet Singh have been selected and appointed on the post reserved for Ex- serviceman category whereas the petitioner has been placed in the Civil Writ Petition No. 11246 of 2012 (O&M) 4 waiting list and the reason for the same is that the petitioner is older in age than these two candidates, which the counsel contends is not sustainable and in support thereof he has placed reliance upon Rule 12.2 (3) of The Punjab Police Rules, 1934 (hereinafter referred to as 'the Rules') according to which the seniority has to be determined on the basis of the older being given seniority over and above the younger in age. He, accordingly, contends that the petitioner should have been appointed as Constable in Ex-serviceman category candidate as well.
In response thereto, counsel for the respondent has referred to the instructions dated 19.03.2010 issued by the Director General of Police to contend that the candidate younger in age has to be placed higher in merit than the older in age. He has also referred to the order passed by this Court today in Civil Writ Petition No. 1889 of 2012 titled as Savitoj Singh versus State of Punjab and others where this question has been dealt with by this Court and the plea of the petitioner has been rejected. Prayer has, thus, been made for dismissal of the writ petition.
I have considered this submission of counsel for the petitioner but I am afraid that same cannot be accepted in the light of the order passed by this Court in case of Savitoj (supra), where it has been held as follows:-
" I have considered the submissions made by counsel for the parties and with their assistance have gone through the records of the case.
To determine the issue as has been raised by the Civil Writ Petition No. 11246 of 2012 (O&M) 5 petitioner in the present writ petition, reference at this stage to Rule 12.2 (3) of the rules would be essential, which reads as follows:-
12.02 Seniority and probation:
(1) The seniority of Assistant Superintendents of Police is regulated by the orders passed from time to time by the Secretary of State and the Central Government.
No Probationary Assistant Superintendent of Police shall be permanently appointed as an Assistant Superintendents of Police until he has passed the prescribed departmental examinations.
Appointment and Enrolments A Probationary Assistant Superintendent of Police who does not qualify by passing these examinations within two years, or at the first examination after two years, from the date of his joining the service, will be removed from Government service, provided that the Provincial Government shall have power to relax this rule in special cases, when the Probationary Assistant Superintendents of Police is likely to make a good police officer. (2) The rules governing the probation and seniority of Deputy Superintendent of Police are contained in Appendix 12.1.
(3) All appointments of enrolled police officers are on probation according to the rules in this chapter applicable to each rank.
Civil Writ Petition No. 11246 of 2012 (O&M) 6Seniority in case of upper subordinates, will be reckoned in the first instance from date of first appointment, officers promoted from a lower rank being considered senior to persons appointed direct on the same date, and the seniority of officers appointed direct on the same date being reckoned according to age.
Seniority shall however, be finally settled by dates of confirmation, the seniority inter se of several officers confirmed on the same date being that allotted to them on first appointment. Provided that any officer whose promotion or confirmation is delayed by reason of his being on deputation outside his range or district shall, on being promoted or confirmed, regain the seniority which he originally held vis-a-vis any officers promoted or confirmed before him during his deputation. The seniority of lower subordinates shall be reckoned from dates of appointment, subject to the conditions of rule 12.24 and provided that a promoted officer shall rank senior to an officer appointed direct to the same rank on the same date.
[Provided that in the case of officers recruited direct after 23rd December, 1958 as a result of the same examination or selection, their inter se seniority shall be reckoned-
(a) by the order of merit fixed by the selection body, and
(b) when there is no such order by merit indicated, by Civil Writ Petition No. 11246 of 2012 (O&M) 7 the age of the candidate, i.e., the oldest being placed the senior-most and the youngest the junior-most.] [Note: highlighting is mine.] Perusal of the above rule would show that the seniority of the lower subordinates is to be reckoned from the date of their appointments, subject to the conditions as contained in Rule 12.24. Proviso to these deals with situation where officers are recruited through the process of direct recruitment as in the present case when they are as a result of same examination and selection, for reckoning their seniority, the first mode is the order of merit fixed by the selection body as provided in Clause
(a). When there is no order of merit indicated by the selection body, then by the age of the candidate i.e. oldest being placed the senior-most and the youngest the junior-most, which has been provided in clause (b).
This situation as envisaged in clause (b) would arise in case the merit is not determined by the selection body. Under the statutory rules, no mode for determination of the merit of the selected candidates has been provided and the rules are silent on this aspect. To fill up this gap, the Director General of Police issued instructions dated 19.03.2010 (Annexure R-2) and in para 8 whereof it has been stated as follows:-
" If at the time of preparing the merit list, 2 or more candidates having the equal marks, then the candidates Civil Writ Petition No. 11246 of 2012 (O&M) 8 of younger age will be preferred."
According to this clause while preparing the merit list if two or more candidates score equal marks, then candidate younger in age will be preferred over the older. These instructions operate at a stage of selection and infact at the last stage of selection when the merit has to be determined and that too in a situation where two or more candidates have scored equal marks in the selection process. The justification and the logic for giving preference to a younger candidate over the older is quite reasonable and just as younger in age is much energetic, has better reflexes and can respond to the call of the service in a better manner than older in age. A police constable has to perform various duties and responsibilities and for which these traits if made the basis for preparing the merit list, cannot be overlooked or can be said to be unreasonable or unjust. There being nothing arbitrary with regard to the determination of the merit on the basis of age, the said instructions are in accordance with law nor are they in conflict with Rule 12.2 (3) of the rules.
Rule 12.2 (3) of the rules clearly envisages that where the order of merit has been fixed by the selection body that would determine the inter se seniority of the candidates who have been recruited by way of direct selection as a result of same examination. Clause (b) Civil Writ Petition No. 11246 of 2012 (O&M) 9 would only be applicable where there is no determination of merit by the selection body and under those circumstances person older in all have been given preference over the junior candidate. The rationale and the logic for determination of seniority and selection has been culled out from the instructions dated 19.03.2010 (Annexure P-5) and Rule 12.2 (3) of the rules are quite just and reasonable and occupy/operate in different fields and apply in different situations. There being no conflict between the two and the reasoning adopted by the Director General of Police for giving preference to the younger in age over the older being based upon the logic and reasoning depending upon the requirement of the job which the constable is required to perform cannot be said to be arbitrary or unjust which would call for interference by this Court.
Reliance by the counsel for the petitioner on the judgement of Hon'ble the Supreme Court in the case of Joint Action Committee of Air Lines Pilots' Association of India (supra) would not be of any use in the present case as the principle laid down therein would not be applicable to the present case wherein as demonstrated and held above the instructions dated 19.03.2010 supplements statutory rules and operates in field which is not governed by the rules. The principle as laid down in such judgement as has been tried to be Civil Writ Petition No. 11246 of 2012 (O&M) 10 applied by the counsel for the petitioner would not be applicable to the case in hand.
Dalbara Singh's case (supra) would not be covering the field of the present case as the same was based on the statutory rules, which did provide for determination of the seniority on the basis of date of birth with candidate older in age to be placed senior to the one younger in age. Similar was the situation in the cases of Neelima Shangla (supra), Bimesh Tanwar (supra), Kiran Gupta (supra) , Vijay Shankar Sharma(supra) and A. Saravanan (supra).
In all these cases, the Courts were dealing with the statutory rules which provided for determination of seniority on the basis of age with older being senior to younger in age. None of the cases deal with the situation with regard to the preparation of the merit list on the basis of age nor were there any instructions which governed the field of determining the merit list on the basis of age as in the present case.
In D.P. Das's case (supra), the Hon'ble Supreme Court was dealing with the situation where the rules were silent with regard to the determination of the seniority and it is under those circumstances and relying upon the executive instructions issued by the Central Government that the Hon'ble Supreme Court proceeded to hold that the seniority should be determined by the age with older Civil Writ Petition No. 11246 of 2012 (O&M) 11 in age to be given seniority over the younger in age.
In none of these cases, the Courts were dealing with the situation that the merit was to be determined on the basis of age of the candidate where they had scored equal marks in the selection process. In the present case, the criteria laid down by the Director General of Police for determining the merit of the candidates, who had scored equal marks having been found to be justified in accordance with law, therefore, deserves to be upheld.
In view of above, challenge to the instructions dated 19.03.2010 (Annexure P-5) issued by the Director General of Police (respondent no. 2) is hereby rejected. Selection and appointment of respondents no. 6 to 9 on the basis of instructions dated 19.03.2010 (Annexure P-5) is upheld."
In view of above, the writ petition stands dismissed.
May 22, 2013 ( Augustine George Masih) rts Judge