Rajasthan High Court - Jaipur
Sb Civil Writ Petition No.3162/14 vs Sanjiv Chauhan & Anr on 26 May, 2015
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR 1. SB CIVIL WRIT PETITION NO.3162/14. D.G.P. Of Police & Anr. Petitioners. Vs. Sanjiv Chauhan & Anr. - Respondents. With 2. SB CIVIL WRIT PETITION NO.4372/14. D.G.P. Of Police & Anr. Petitioners. Vs. Sanjeev Kumar Respondent. With 3. SB CIVIL WRIT PETITION NO.4528/14. D.G.P. Of Police & Anr. Petitioners. Vs. Ramesh Kumar Respondent. With 4. SB CIVIL WRIT PETITION NO.4726/14. D.G.P. Of Police & Anr. Petitioners. Vs. Saroj Dhayal Respondent. With 5. SB CIVIL WRIT PETITION NO.4735/14. D.G.P. Of Police & Anr. Petitioners. Vs. Sedu Ram Respondent. With 6. SB CIVIL WRIT PETITION NO.4736/14. D.G.P. Of Police & Anr. Petitioners. Vs. Kaptan Singh Respondent. With 7. SB CIVIL WRIT PETITION NO.4737/14. D.G.P. Of Police & Anr. Petitioners. Vs. Lata Sharma Respondent. With 8. SB CIVIL WRIT PETITION NO.4738/14. D.G.P. Of Police & Anr. Petitioners. Vs. Kamal Nayan Respondent. With 9. SB CIVIL WRIT PETITION NO.4739/14. D.G.P. Of Police & Anr. Petitioners. Vs. Mukesh Sharma Respondent. With 10. SB CIVIL WRIT PETITION NO.4740/14. D.G.P. Of Police & Anr. Petitioners. Vs. Naresh Kumar Respondent. With 11. SB CIVIL WRIT PETITION NO.4741/14. D.G.P. Of Police & Anr. Petitioners. Vs. Narendra Panwar Respondent. With 12. SB CIVIL WRIT PETITION NO.4742/14. D.G.P. Of Police & Anr. Petitioners. Vs. Ras Lal Jat Respondent. With 13. SB CIVIL WRIT PETITION NO.4743/14. D.G.P. Of Police & Anr. Petitioners. Vs. Priyanka Meena Respondent. With `14. SB CIVIL WRIT PETITION NO.4744/14. D.G.P. Of Police & Anr. Petitioners. Vs. Ram Singh Respondent. With 15. SB CIVIL WRIT PETITION NO.4745/14. D.G.P. Of Police & Anr. Petitioners. Vs. Shilpa Bhadivya Respondent. With 16. SB CIVIL WRIT PETITION NO.4746/14. D.G.P. Of Police & Anr. Petitioners. Vs. Om Prakash Respondent. With 17. SB CIVIL WRIT PETITION NO.4747/14. D.G.P. Of Police & Anr. Petitioners. Vs. Mamta Kumari Respondent. With 18. SB CIVIL WRIT PETITION NO.4749/14. D.G.P. Of Police & Anr. Petitioners. Vs. Teja Ram Respondent. With 19. SB CIVIL WRIT PETITION NO.4750/14. D.G.P. Of Police & Anr. Petitioners. Vs. Kamla Punia Respondent. With 20. SB CIVIL WRIT PETITION NO.4840/14. D.G.P. Of Police & Anr. Petitioners. Vs. Prabat Singh Respondent. With 21. SB CIVIL WRIT PETITION NO.4841/14. D.G.P. Of Police & Anr. Petitioners. Vs. Rajendra Kumar Respondent. With 22. SB CIVIL WRIT PETITION NO.4842/14. D.G.P. Of Police & Anr. Petitioners. Vs. Smt. Meena Verma Respondent. With 23. SB CIVIL WRIT PETITION NO.4843/14. D.G.P. Of Police & Anr. Petitioners. Vs. Shivraj Singh Respondent. With 24. SB CIVIL WRIT PETITION NO.4844/14. D.G.P. Of Police & Anr. Petitioners. Vs. Rajesh Kumar Verma Respondent. With 25. SB CIVIL WRIT PETITION NO.4845/14. D.G.P. Of Police & Anr. Petitioners. Vs. Ajay Kant Respondent. With 26. SB CIVIL WRIT PETITION NO.4846/14. D.G.P. Of Police & Anr. Petitioners. Vs. Hawa Singh Respondent. With 27. SB CIVIL WRIT PETITION NO.4847/14. D.G.P. Of Police & Anr. Petitioners. Vs. Satya Narayan Respondent. With 28. SB CIVIL WRIT PETITION NO.4848/14. D.G.P. Of Police & Anr. Petitioners. Vs. Madan Lal Respondent. With 29. SB CIVIL WRIT PETITION NO.4950/14. D.G.P. Of Police & Anr. Petitioners. Vs. Rohit Shrivastawa Respondent. With 30. SB CIVIL WRIT PETITION NO.4951/14. D.G.P. Of Police & Anr. Petitioners. Vs. Madan Lal Respondent. With 31. SB CIVIL WRIT PETITION NO.4952/14. D.G.P. Of Police & Anr. Petitioners. Vs. Bhanwar Singh & Ors. - Respondents. With 32. SB CIVIL WRIT PETITION NO.4965/14. D.G.P. Of Police & Anr. Petitioners. Vs. Bharat Lal Meena Respondent. With 33. SB CIVIL WRIT PETITION NO.4966/14. D.G.P. Of Police & Anr. Petitioners. Vs. Vinod Singh Respondent. With 34. SB CIVIL WRIT PETITION NO.4967/14. D.G.P. Of Police & Anr. Petitioners. Vs. Manoj Kumar Respondent. With 35. SB CIVIL WRIT PETITION NO.4968/14. D.G.P. Of Police & Anr. Petitioners. Vs. Suryaveer Singh Respondent. With 36. SB CIVIL WRIT PETITION NO.4969/14. D.G.P. Of Police & Anr. Petitioners. Vs. Kuldeep Singh & Ors. - Respondents. With 37. SB CIVIL WRIT PETITION NO.4970/14. D.G.P. Of Police & Anr. Petitioners Vs. Rajesh Kumar Respondent With 38. SB CIVIL WRIT PETITION NO.4971/14. D.G.P. Of Police & Anr. Petitioners Vs. Sunita Gurjar Respondent With 39. SB CIVIL WRIT PETITION NO.4702/14. Yashwant Singh & Ors. Petitioners Vs. The D.G.P. & Ors. Respondents With 40. SB CIVIL WRIT PETITION NO.5591/14. Abhishek Pareek & Ors. Petitioners Vs. Joint Director (Insu.) & Ors. Respondents With 41. SB CIVIL WRIT PETITION NO.7278/14. Mahesh Singh & Ors. Petitioners Vs. The Director General of Police & Ors.Respondents DATE OF JUDGMENT: 26th May, 2015. PRESENT HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr. Rajendra Prasad, AAG and Mr. Ashok Gaur, Sr. Advocate with Mr. Ashwini Jaiman for the petitioners.
Mr. Shobhit Tiwari with Mr. M.B. Sharma, Mr. Dinesh Yadav, and Mr. M.M. Mehrishi for the respondent/s.
J U D G M E N T REPORTABLE
1. This batch of petitions arises out of the common order dated 29.11.13 passed by the Rajasthan Civil Services Appellate Tribunal, Jaipur (hereinafter referred to as 'the Tribunal') in Appeal No. 1314/13 and other 37 appeals. The first 38 petitions have been filed by the DGP and Others against the respondents who were the appellants before the Tribunal. The other three petitions have been filed by the interveners who though were not the party-respondents in the said appeals before the Tribunal, were permitted to intervene in the said appeals.
2. The Tribunal vide the impugned order has directed the Director General of Police, Rajasthan to do the needful exercise by redetermining the year-wise vacancies of Inspectors of Police by convening the Review Selection Board for the year 2009-10, 2010-11, 2011-12 and 2012-13, after including the vacancies of Inspectors generated due to the promotions to RPS (Jr. Scale) in their respective years. The DGP, Rajasthan has also been directed to issue promotion orders of the respondents (appellants) on the post of Inspectors in the respective years of their eligibility to which the respondents pertain, if otherwise found eligible after convening the Review Selection Board.
3. The short facts essential to decide the present batch of petitions are that the petitioner-DGP, Rajasthan had constituted a Selection Board vide order dated 17th May, 2013 for holding the qualifying test for promotion to the posts of Inspectors, Rajasthan Police, against 88 vacancies determined for the year 2011-12. The notification by radiogram was issued on 23rd May, 2013 and the list of eligible sub-inspectors was published on 14.6.13. The written test was held by the Selection Board on 2nd and 3rd July, 2013, in which out of 743 eligible sub-inspectors, 231 sub-inspectors were declared successful. The respondents in the present petitions were also declared successful in the said examination as per the result declared on 19.7.13. The respondents in the present petitions also qualified the outdoor test and part-II of the qualifying test.
4. The petitioner-DGP thereafter issued the order dated 1.8.13 selecting 88 sub-inspectors for the promotion to the post of Inspectors against the vacancies of the year 2011-12. The respondents-appellants having not been included in the said promotion orders, despite they having qualified themselves in the qualifying test, had approached the concerned authorities and made their representations. They were informed by the concerned authorities that their names could not be included in the promotion order dated 1.8.13 as they were down in the seniority list. In the meantime the Home Department, Government of Rajasthan issued the promotion order on 12.6.13 promoting the Inspectors on the post of RPS (Jr. Scale) against the vacancies of the year 2010-11, 2011-12 and 2012-13, which according to the respondents-appellants were determined prior to the constitution of the Selection Board on 17.5.13 for making promotion of Sub-Inspectors to the post of Inspectors against the vacancies of 2011-12, and therefore the said vacancies which occured on account of promotions of the Inspectors should have been included in the vacancies determined for the year 2011-12. As per the case of the respondents-appellants before the Tribunal, though they had made representations in that regard, the petitioner-DGP without deciding the representations of the respondents, again issued the notification dated 16.8.13 for holding the qualifying test for filling up 165 vacancies of Inspectors against the vacancies of the year 2012-13. Being aggrieved by the said action of the petitioners, each of the respondents had filed separate appeals, 38 in total, before the Tribunal. Out of the said 38 appeals, following prayers were made in the 36 appeals:-
"i. Quash the notification issued vide Radiogram No. 208-218 dated 16.8.2013 and No. 4667 dated 4.9.2013.
ii. Direct respondents to include the 36 vacancies of Inspectors occurred for the year 2010-11 after promotion to RPS vide order dated 12.6.2013 in 88 vacancies.
iii. Direct respondents to also include 31 vacancies of Inspectors of the year 2011-12 in the 88 vacancies of 2011-12, which occurred after promotion to RPS vide order dated 12.6.2013.
iv. Direct respondents to re-hold the Selection Board to prepare select list of 155 Sub-Inspectors for promotion as Inspector against 155 vacancies of the year 2011-12.
v. Direct respondents to re-determine year wise vacancies of Inspectors for the year 2010-11 and 2011-12 after counting vacancies created due to promotion of Inspectors to RPS on 12.6.2013 and prepare year wise list afresh of successful SIS for promotion by the Selection Board on the basis of qualifying tests already held in 2013 and final result.
vi. Direct respondents that in the event of Appellant already passing the conducted test held in July 2013 he be given promotion to the post of Inspector against the vacancies of the year 2011-12 with all consequential benefits.
Vii. Direct respondents to re-determine the vacancies of the year 2012-13 as wrongly determined vide order dated 14.8.2013 after filling up of earlier vacancies as per the directions."
5. In Appeal No. 1526/13 filed by the respondent Suryaveer and in Appeal NO. 1525/13 filed by the respondent Vinod Singh, an additional prayer to the aforesaid prayers was made seeking direction to include 40 vacancies of the year 2009-10 in the number of vacancies determined for the year 2011-12.
6. It appears that the Tribunal by way of interim order dated 13.9.13 had stayed the operation of the Notification dated 16.8.13 issued for filling up by promotion, the posts of Inspectors for the year 2012-13. The petitioners (who were the respondents in the said 38 appeals) had submitted their reply raising objections against the maintainability of the appeals and also against non-joinder of necessary parties. It was also contended by the petitioners that the determination of vacancies for the year 2011-12, and promotions on 88 vacancies as well as the Notification dated 16.8.13 was issued in strict adherence to the Rule 10 of the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred to as 'the said Rules'). According to the petitioners, Rule 10 of the said Rules did not postulate any notional promotion and accordingly only actual vacancies of the relevant financial year were determined.
7. The Tribunal after raising six issues in the said appeals, held interalia that Rule 10(1)(a) of the said Rules, referred two types of vacancies; one which is actual existing and second which are likely to occur during the financial year. According to the Tribunal the expression "vacancies likely to occur during the financial year" would include the determined and ascertained vacancies which are arising because of promotion on the higher post, and if such determination is done earlier to the promotion, then vacancies likely to be generated on account of promotion to the higher post should be included in the vacancies in the respective years for which promotional exercise is to be conducted. The Tribunal thereafter vide the impugned order dated 29.11.13 directed the petitioner-DGP to redetermine the year-wise vacancies of the Inspectors by convening the Review Selection Board for the year 2009-10, 2010-11, 2011-12 and 2012-13 and further directed to issue promotion order to the respondents-appellants if they were otherwise found eligible. Being aggrieved by the said order, the petitioners have preferred the present petitions seeking writ of certiorari under Article 226 of the Constitution for quashing and setting aside the said order of the Tribunal. Three unsuccessful candidates who were the interveners in the said appeals have also filed three separate petitions being SBCWP Nos. 4702/14, 5591/14 and 7278/14, which are being disposed of by this common judgment.
8. The learned AAG, Mr. Rajendra Prasad for the petitioners relying upon Rule 10 of the said Rules submitted that the Tribunal had committed an error in misinterpreting the said rule and in holding that the said rule contemplated two type of vacancies, one actual and the other notional. According to him though the vacancies for the post of RPS (Jr. Scale) for the year 2010-11, 2011-12 and 2012-13 were determined on 17.4.13, the actual promotions on the said posts of RPS were made on 12.6.13 and therefore the DGP had not included the said posts while determining the vacancies for the post of Inspectors in April 2013 for the year 2011-12. Mr. Rajendra Prasad taking the court to the additional affidavit, filed by the Addl. Superintendent of Police submitted that the year-wise vacancies for the year 2009-10, 2010-11, 2011-12 and 2012-13 were determined for the post of Police Inspectors (AP/CP/IB), considering the posts which fell vacant due to the promotions made on the posts of RPS (Jr. Scale) in the respective years in strict compliance of Rule 10 of the said Rules. He further submitted that the respondents had raised unnecessary issues by creating a self styled chart of vacancies, relying upon the information provided under the RTI Act, which was consolidated information based on the strength of the Inspectors of all ranges and offices with regard to the respective years, whereas the selections in question were pertaining only for the posts of Inspectors (AP/CP/IB) and did not include the other posts of Inspectors in technical branches. Mr. Rajendra Prasad also submitted that the Tribunal could not have issued such directions as contained in the impugned order which have created anomalies, in asmuch as if the interpretation made by the Tribunal of Rule 10 of the said Rules is accepted, no promotions on any posts would be finalised and every year the petitioners would have to constitute Review Selection Board after every order of promotions to the higher posts. Mr. Rajendra Prasad also submited that sub-rule 2 of Rule 10 contemplates a situation where the vacancies of earlier years were not determined and filled, and hence the DGP had determined the vacancies keeping in mind sub-rule 2 of Rule 10 for the respective years by adopting a standard process without any discrimination or malafides. The learned senior counsel Mr. Ashok Gaur appearing for the petitioners (interveners before the Tribunal), in the other three petitions, relying upon the various decisions of Apex Court and other High Courts, had supported the submissions made by Mr. Rajendra Prasad and submitted that the respondents-appellants having participated in the selection process could not have challenged the determination of vacancies after the selections and promotions of qualified candidates were made for the year 2011-12, and when the notification dated 16.8.13 for holding qualifying test for the vacancies of next year i.e. 2012-13 was issued by the petitioners.
9. Per contra, the learned counsels Mr. Shobhit Tiwari, Mr. M.M. Mehrishi, Mr. M.B. Sharma and Mr. Dinesh Yadav for the respondents submitted that Rule 10(1)(a) of the said Rules mandated the DGP to make year-wise determination of actual number of vacancies likely to occur as on 1st April, which would include the vacancies arising on account of promotion on the higher posts in the relevant financial year. Relying upon the decisions of the Apex Court, they submitted that clubbing of vacancies is not permissible. Mr. Tiwari also submitted that the vacancies should roll down from top to bottom and accordingly the promotions on the higher posts should be done first and thereafter the cascading effect of vacancies should be given for making promotions in the lower post. He further submitted that the DGP in the reply filed before the Tribunal had admitted that the vacancies in the post of Inspectors arising due to their promotions on the post of RPS for the years 2009-10, 2010-11, 2011-12 and 2012-13 were not included in the respective years by the Selection Board constituted for the promotion to the post of Inspectors, and therefore the Tribunal has rightly directed the DGP to redetermine the vacancies for the said years. According to him, when the petitioners had knowledge about the vacancies which were likely to occur on account of promotion to the post of RPS, the DGP should have included such vacancies while determining the vacancies in the post of Inspectors for the year 2011-12. Taking the court to the information received by the respondents under the RTI Act and the reply filed by the petitioners (respondents in the appeals) before the Tribunal, he submitted that the petitioners had taken absolultely an inconsistent stand, which had created anomalies and compliacations in the matter of promotion. He further submitted that if the vacancies likely to arise on account of promotions in the RPS (Jr. Scale) are not considered in the relevant financial year and are taken to the next subsequent year, it would give unjust benefit to the juniors who at the relevant point of time were not eligible for the promotion on the post of Inspectors as per the said Rules, and as against that on account of non-determination of the proper vacancies by the DGP, the respondents have not been given promotions though they have successfully cleared the qualifying tests. Mr. Tiwari has also relied upon the various decisions of the Apex Court in support of his submissions and prayed to dismiss the petitions.
10. Though the learned counsels for the parties have argued at length on many peripharal issues, the main controversy centres around the interpretation of the Rule 10 of the said Rules, which pertain to the determination of vacancies. It reads as under :-
"10. Determination of Vacancies.-(1)(a) Subject to the provisions of these Rules, the Appointing Authority shall determine on 1st April every year, the actual number of vacancies likely to occur during the financial year.
(b) Where a post is to be filled in by single method as prescribed in the rule or Schedule-I, the vacancies so determined shall be filled in by that method.
(c) Where a post is to be filled in by more than one method as prescribed in the rules or Schedule-I, the apportionment of vacancies, determined under clause (a) above, to each such method shall be done maintaining the prescribed proportion for the over-all number of posts already filled in. If any fraction of vacancies is left over after apportionment vacancies is the monner prescribed above, the same shall be apportioned to the quota of various methods prescribed in a continuous cyclic order giving precedence to the promotion quota.
(2) The Appointing Authority shall also determine the vacancies of earlier years, year-wise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in."
11. Further, Part-IV of the said Rules deals with the procedure for appointment by promotion. Rule 26 thereof provides for the eligibility for promotion, according to which the Sub-Inspectors shall be eligible for promotion on State basis, subject to their possessing minimum qualification and experience as are specified. It further provides that the post of Inspectors could be filled up 100% by promotion from the posts of Sub-Inspectors, who are eligible as per the qualification laid down in column 6 of Section-V of Schedule-I. Rule 27 of the said Rules lays down the procedure for filling up the vacancies by promotion. The relevant part of the said Rule-27 reads as under :-
"27. Procedure of selection.- (1) After the vacancies to be filled by promotion have been determined under rule 10, the Board as referredto in sub-rule (3) below shall be constituted. The Board shall prepare correct and complete list containing names not exceeding three times the number of vacancies out of the senior most eligible members of service, who have passed Part-I of the qualifying examination, specified in rule 29, by obtaining 40% marks in Parade, Practical and other Out-door test and 40% marks in written test with 45% marks in aggregate for promotion to the class of post concerned.
(2) The Boards constituted under t his rule shall consider the cases of all the persons included in the list, interviewing all of them and shall prepare a list containing names of suitable candidates in order of seniority, who secure 45% marks in qualifying examination, Part II and 50% aggregate of the total marks of the qualifying examination, Parts I & II upto equal number of such posts as are specified by Director General-cum-Inspector General of Police from time to time and as are dterrmined to be filled under rule 10."
12. From the bare reading of the said Rules, it emerges that as per Rule 10 of the said Rules, the appointing authority is required to determine on 1st April every year, the actual number of vacancies likely to occur during the financial year. The appointing authority is also required to determine the vacancies of earlier years, year-wise which were required to be filled in by promotion, if such vacancies were not determined and filled earlier in the year in which they were required to be filled in. After the determination of vacancies to be filled by promotion, the Selection Board has to be constituted as per Rule 27(3). For the purpose of appearance in Part-I of the qualifying examination as specified in Rule-29, the applications of candidates not exceeding ten times the number of vacancies, out of the senior most eligible members of service are required to be considered. As per the procedure laid down in Rule-27, the Selection Board is required to prepare correct and complete list containing names not exceeding three time the number of vacancies out of the senior most eligible members of service, who have passed Part-I of the qualifying examination, by obtaining the requisite marks. The Board thereafter has to consider the cases of all persons included in the said list, interview all of them and prepare a list containing suitable candidates in order of seniority, upto equal number of such posts as are determined to be filled under Rule-10.
13. It cannot be gainsaid that the State Government should act as a model employer, consistent with its role in a welfare State. It is also axiomatic that the right of eligible candidates to be considered for promotion is virtually a part of their fundamental right guaranted under Article 16 of the Constitution, and that the guarantee of a fair consideration in the matter of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution. As held by the Apex Court in case of Jagdish Prasad Vs. State of Rajasthan (2011) 7 SCC 789, the promotions should be made strictly as per the criteria and procedure laid down in the applicable Rules. Rule of fairness is an essential feature of the Government action, and where the statutory Rules are prescribed by the Government, then the compliance thereof is the yardstick of fairness. In case of Syed Khalid Rizvi & Ors. Vs. Union Of India & Ors. (1993) (Supp.) 3 SCC 575, the Apex Court while dealing with the matter of promotions in the IPS cadre held interalia that no employee has a right to promotion but he has a right to be considered for promotion according to the Rules. It further held that the preparation of the select-list every year is mandatory, and the leeway and liberty given to the State Government in that regard is only to cope up with administrative exigencies, but it should not become a breeding ground to distort the operation of the Rules, which should scrupulously be eschewed and avoided.
14. The Apex Court, drawing the distinction between the expressions "posts" and "vacancies" in case of R.K. Sabarwal Vs. State of Punjab, (1995) 2 SCC 745, held that :
"The expressions "posts" and "vacancies" often used in the executive instructions providing for reservations, are rather problematical. The word "post" means an appointment, job, office or employment; a position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions makes it clear that there must be a "post" in existence to enable the "vacancy" to occur."
15. So far as preparation of select list is concerned, it has been held by the Apex Court in Union of India Vs. Vipinchandra Hiralal (1996) 6 SCC, 721, that selection committee should prepare separate list for each year keeping in view the number of vacancies in that year after considering the eligible candidates who fell within the zone of consideration for selection in that year. Following the said decision, the Apex Court in case of Vijay Singh Charak Vs. Union of India (2007) 9 SCC 743, held as under:-
"A select list can only be prepared for a particular year, and only those who are eligible in that particular year alone can be considered for selection in the select list. Even if the select list is not prepared in that very year, it will relate back to that particular year. In the present case, a select list had to be prepared for the year 1991. Hence only those officers who were eligible for induction into the IFS in the year 1991, could have been considered in the select list for the year 1991 (even if it is prepared subsequent to 1991). It is obvious, therefore, that clubbing is illegal. Since clubbing has been done for vacancies arising between 1991-95 in the IFS, this was clearly illegal in view of the decision in Union of India Vs. Vipinchandra Hiralal Shah (supra).
16. In the light of aforestated legal position, let us examine the facts of the present case. It is not disputed that the Selection Board for the promotion on the 88 posts of Inspectors from the posts of Sub-Inspectors for the year 2011-12 was constituted by the DGP on 17.5.13 and the notification in that regard was issued on 23.5.13. The written test was held by the Selection Board on 2.7.13 and 3.7.13, and the result of the said examination was declared on 19.7.13, in which 231 candidates were declared successful and were called for Part-II examination. Thereafter the promotion order of 88 Sub-Inspectors was issued on 1.8.13 for the vacancies of the year 2011-12. The bone of contention raised by the learned counsels for the respondents before the Tribunal was that the Home Department and the State Government had already informed the DGP vide the letter dated 17.4.13 (Annex.8) approving the vacancies existing in the posts of RPS (Jr. Scale) for the years 2010-11, 2011-12 and 2012-13, and further directed to proceed further with the promotions on the said posts from the posts of Inspectors, and therefore while constituting the Selection Board on 17.5.13, the DGP was aware about the vacancies likely to occur on the post of Inspectors on account of promotions of Inspectors to the post of RPS (Jr. Scale). According to them thereafter promotion order was also issued on 12.6.13, promoting 36 Inspectors against the vacancies of RPS (Jr. Scale) for the year 2010-11 and 31 Inspectors against the vacancies for the year 2011-12, and hence the said 67 posts should have been included in the 88 vacancies of the Inspectors determined by the DGP for the year 2011-12. They also had contended that since the 40 vacancies which had occurred in the year 2009-10, were not included in the vacancies determined by the DGP, all the said vacancies i.e. 67 plus 40 should have been included in the said 88 vacancies determined for the year 2011-12.
17. In the backdrop of the aforestated position, the question that falls for consideration before the court is whether the expression "actual number of vacancies likely to occur in the financial year" as contained in Rule 10(1)(a) of the said Rules would include the number vacancies likely to occur on account of promotions to the higher posts? In other words, in the instant case, was the DGP while determining the vacancies in the post of Inspectors in April 2013, for the year 2011-12, obliged to include the vacancies which were likely to occur in the financial year 2013-14 in the post of Inspectors, on account of the possible promotions of Inspectors to the post of RPS (Jr. Scale), pursuant to the letter dated 17.4.13 (Annex.8) written by the State Government in Home Department to the DGP?
18. Now, Rule-10(1)(a) of the said Rules envisages an ideal situation in which the Appointing Authority would determine on 1st April every year, the actual number of vacancies likely to occur during the financial year. However unfortunately as transpiring from the additional affidavit filed before this court on behalf of the petitioners, the said Rule has not been scrupulously followed since 2010. It is stated therein that for the post of Inspectors, 45 vacancies were determined for the year 2009-10, which vacancies included the posts which became vacant due to the promotions made to the RPS (Jr. Scale) for the vacancies for the year 2008-09. The promotion Board for the vacancies of the year 2009-10 was constituted on 24.8.09 and the select-list was prepared by the Board on 23.10.09 and after the completion of promotion cadre course, the promotion orders were issued on 28.1.10. Again for the year 2010-11, 90 vacancies were determined which included 40 posts which became vacant due to promotion made to the RPS (Jr. Scale) for the vacancies of the year 2009-10. The Promotion Board for vacancies of the year 2010-11 was constituted on 13.9.10 and select-list was prepared on 11.11.10 and promotion orders were issued on 19.9.12. For the year 2011-12, 88 vacancies were determined, the Promotion Board was constituted on 17.5.13, select list was prepared on 1.8.13 and on completion of the promotion cadre course, the promotion orders were issued on 30.9.13. It is further stated in the said additional affidavit that since the promotion to the RPS (Jr. Scale) for the vacancies of the year 2010-11, 2011-12 and 2012-13 were made in the year 2013 and promotions were given as per order dated 12.6.13, the said vacancies were not counted in the vacancies determined year-wise up to the financial year 2012-13. Thereafter 165 vacancies were determined in the post of Inspectors for the year 2012-13, including the vacancies which had already occurred on account of the promotions of Inspectors to the post of RPS (Jr. Scale) on 12.6.13 and accordingly the notification was issued on 16.8.13 inviting applications for filling up those 165 vacancies for the year 2012-13.
19. From the aforestated position narrated in the additional affidavit filed on behalf of the petitioners, it clearly transpires that though it was mandatory on the part of the petitioners to determine the vacancies on 1st April every year in view of Rule-10(1)(a), they had completely distorted the operation of the said Rule. Instead of determining the vacancies every year, they had dragged the process of determination of vacancies to the subsequent year or years. Such a practice adopted by the petitioners deserves to be strongly depricated in view of the observations made by the Apex Court in case of Syed Khalid Rizvi & Ors. Vs. Union of India (supra), in which it has been observed interalia that leeway and liberty given to State Government in preparation of select list every year is only to cope up with the administrative exigencies, but it should not become a breeding ground to distort the operation of the Rules, which should be scrupulously eschewed and avoided. In the instant case, the petitioners by not following the mandate of Rule-10(1)(a), and by not determining the vacancies on 1st April every year, have virtually rendered the said Rule meaningless and redundant. At this juncture, it is also required to be noted that contemplating the administrative exigencies, the sub-rule (2) of the said Rule-10 has permitted the appointing authority to determine the vacancies of earlier years in the subsequent year. However, such relaxation could not be permitted to be made a regular feature so as to make the mandatory requirement of determination of vacancies every year as per sub-rule (1) redundant. On the conjoint reading of sub-rule(1) and (2) of Rule-10, it emerges that it is incumbant on the part of the Appointing Authority i.e. the petitioners to determine on 1st April every year, the actual number of vacancies likely to occur during the financial year. In case such determination is not done in a particular earlier year or years, the Appointing Authority while determining the vacancies of the relevant financial year, has also to determine the vacancies of the earlier years, yearwise, which were required to be determined and filled in by promotion but not filled in that/those year/years as the case may be.
20. In the instant case, it appears from the additional affidavit filed on behalf of the petitioners that the vacancies in the post of Inspectors for the year 2010-11 were determined and filled up as per the promotion order dated 19.9.12, and that the vacancies for the year 2011-12 and 2012-13 were neither determined nor filled up till April 2013. Hence, when the petitioners had undertaken the exercise of determining the vacancies in April 2013, they were required to determine the vacancies not only for the relevant financial year 2013-14, but also for the earlier years 2011-12 and 2012-13 which had remained to be determined and filled in the respective earlier years in view of Rule 10(2). In the opinion of the court, therefore the petitioners had committed gross error in not adhering to the requirements of Rule-10, and in not determining the yearwise vacancies for the years 2011-12, 2012-13 and 2013-14, when the exercise of determining vacancies was undertaken in April 2013. While accepting the submission of the learned AAG for the petitioners that the working out of vacancies is an administrative action, the court cannot accept his submission that such action cannot be subjected to judicial scrutiny, unless averments of arbitrariness or malafides are pleaded by the respondents. In the opinion of the court, not adhering to the statutory Rules and determining the vacancies dehorse the Rules would tentamount to an arbitrary action on the part of the petitioners, which needs to be set right. It is therefore required to be held that the petitioners had committed an error in determining the vacancies for the year 2011-12 only, when the exercise was undertaken by the petitioners in April 2013. Resultantly, it is also required to be held that the notification dated 16.8.13 for filling up 165 vacancies for the year 2012-13 being not in accordance with the Rules deserves to be set aside.
21. So far as the expression, "actual number of vacancies likely to occur during the financial year" is concerned, it is required to be noted that as per the settled legal position, vacancy means unoccupied post. The vacancy would arise only when the post actually falls vacant. Further, the word 'actual' denotes element of certainty. Hence, the Appointing Authority while determining vacancies for a particular financial year, could take into consideration only those vacancies which are definitely likely to occur, such as vacancies likely to occur on account of superannuation of the Inspectors or the creation of new posts of Inspectors already sanctioned for the relevant financial year. However, the vacancies which may or may not occur cannot be considered, such as vacancies likely to occur on account of promotions to the higher posts of RPS (Jr. Scale) could not be taken into consideration as sought to be submitted by the learned counsels for the respondents. In the opinion of the court, unless the actual promotions on the post of RPS (Jr. Scale) take place, the posts could not be said to have fallen vacant and therefore could not be treated as actual vacancies. As per the settled legal position, the promotion would take effect from the date of being granted, and till such promotions are granted, the posts could not be said to have fallen vacant. Hence, while determining the vacancies in the posts of Inspectors for a particular financial year, the vacancies likely to occur during that particular financial year on account of the possibility of promotions of Inspectors to the post of RPS (Jr. Scale) could not be taken into account, though the vacancies in the post of RPS (Jr. Scale) have been determined. Till actual promotions of Inspectors to the post of RPS (Jr. Scale) take place, such posts could not be treated as vacancies, much less actual vacancies. An anomalous situation may arise if such posts of Inspectors are treated as vacant posts assuming that promotions would take place on the higher posts of RPS (JR. Scale) and for some reasons the promotion of Inspectors do not take place. Thus in the opinion of the court "actual number of vacancies likely to occur" would mean and include only those vacancies which are definite and ascertainable, and not the vacancies which are unascertainable, like the vacancies arising on account of death, resignation, termination, promotion etc. of employees. The words "actual number of vacancies" used in the said Rule implies the element of certainty. Hence, only such actual number of vacancies which are definitely likely to occur during the relevant financial year could be taken into consideration in addition to the existing vacancies of a particular financial year. In that view of the matter, it is held that even though the DGP was aware about the vacancies likely to occur on account of the possibility of the Inspectors being promoted to the posts of RPS (Jr. Scale) during the financial year 2013-14, he could not have taken into consideration such future vacancies, when he undertook the exercise of determining vacancies in April-May 2013. In the opinion of the court, the Tribunal has committed an error in misinterpreting the Rule 10 of the said Rules and in holding that "vacancies likely to ocur" during the financial year would include vacancies likely to arise because of promotion on the higher post. Such interpretation of the Tribunal cannot be countenanced.
22. Though the court finds some substance in the submission of the learned counsel for the petitioners that the respondents had challenged the action of the petitioners before the Tribunal after having participated in the selection process, and because they were not included in the promotion order, and that such challenge should not have been entertained, the court thinks it appropriate to entertain the same, considering the gross injustice being caused to the respondents and other similarly situated persons, who though had cleared the Part-I and Part-II of qualifying examinations, have been deprived of their promotions on account of the wrong determination of the vacancies by the petitioners. As rightly submitted by the learned counsels for the respondents, if proper determination of vacancies was made by the petitioners, in accordance with the Rules, the respondents might have got the promotions.
23. As stated hereinabove, if the vacancies of earlier years were not determined and filled up by the petitioners, they were required to determine vacancies of such earlier years, yearwise, while determining the vacancies of the current financial year, and then fill up all the vacancies so determined, by preparing separate select lists for each year keeping in view the number of vacancies in that year after considering the eligible candidates who fell within the zone of consideration for selection in that year. Such select list would relate back to that particular year though prepared in the year subsequent to such year. In the instant case, the petitioners having not determined and filled up the vacancies in the posts of Inspectors for the years 2011-12 and 2012-13 when they were determining the vacancies in April 2013, they were required to determine the vacancies for the said earlier years i.e. 2011-12 and 2012-13 and also for the relevant financial year 2013-14, and to fill up all such vacancies yearwise as per the Rules. While determining the vacancies in April 2013, the petitioners were required to consider the vacancies existing as on 1st April 2013, including the vacancies of earlier years 2011-12 and 2012-13 which were not determined and filled up in the relevant years, and the vacancies likely to occur in the financial year 2013-14 on account of superannuation of the Inspectors in that year. While determining the vacancies of earlier years as per Rule-10(2), the expression 'likely to ococur' contained in Rule-10(1)(a) cannot be pressed into service, in asmuch as Rule 10(1)(a) would apply only when the determination of vacancies is being done of the relevant financial year.
24. In that view of the matter, the petitioners are required to be directed to re-determine the correct number of vacancies for the years 2011-12, 2012-13 and 2013-14 and prepare the select list yearwise in accordance with the said Rules for the said years. However, since the petitioners have already promoted 88 Sub-Inspectors against the vacancies of the year 2011-12 and since they are working as Inspectors for more than one and half years, their promotions may not be disturbed, which even otherwise are as per their seniority. At the same time, the respondents and other persons similarly situated as the respondents who have cleared the qualifying exams and who have been deprived of their promotions because of the wrong determination of vacancies by the petitioners shall not be required to appear in the qualifying exams again, and they shall be accommodated in the fresh select lists as per their eligibility and seniority, subject to the vacancies determined for the said years.
25. In the aforesaid premises, following directions are given:-
(i) The petitioners are directed to redetermine yearwise vacancies for the years 2011-12, 2012-13 and 2013-14, considering the position as on 1st April 2013, in accordance with Rule-10 of the said Rules, and as per the observations made hereinabove, within one month from today.
(ii) The petitioners after redetermination of the vacancies for the said years shall immediately start the process of filling up the said vacancies by conducting the qualifying examination of the eligible candidates as per the said Rules, and shall prepare fresh select lists for each year separately keeping in view the number of vacancies in that year and considering only those Sub-Inspectors who were eligible for promotion in that particular year.
(iii) It is further directed that while undertaking the aforesaid exercise, the promotions already made on 88 posts of Inspectors against the vacancies of 2011-12 shall not be disturbed.
(iv) Since the respondents have already cleared the qualifying examinations conducted by the petitioners, they shall be accommodated in the fresh select lists of promotions that may be prepared for the respective years, as per their eligibility and seniority, and as per the vacancies available in the said years.
(v) The notification dated 16.8.13 is set aside.
(vi) It is expected that the petitioners shall determine and fill up the vacancies for the years 2014-15 onwards strictly in accordance with the said Rules, and as per the observations made in this judgment.
26. The impugned order passed by the Tribunal is set aside accordingly. All the petitions stand partly allowed and disposed of in terms of the aforestated directions. Copy of the judgment be placed in each of the petitions.
(BELA M. TRIVEDI) J.
MRG All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
MRG/PS