Shrawan Kumar Jha vs The State Of Jharkhand on 4 December, 2020

[Cites 48, Cited by 0]

Jharkhand High Court

Shrawan Kumar Jha vs The State Of Jharkhand on 4 December, 2020

Bench: Sanjay Kumar Dwivedi

IN THE HIGH COURT OF JHARKHAND AT RANCHI

W.P.(S) No. 8 of 2020
.....
1. Shrawan Kumar Jha, aged about 47 years, son of late Uttim Jha, resident of
Block Colony, Kolebira, P.O. and P.S. Kolebira, District Simdega.
2. Fuleshwar Saw, aged about 47 years, son of Tiko Saw, resident of village
Kabilasi, P.O. and P.S. Ichak, District Hazaribag.
3. Santosh Kumar, aged about 43 years, son of Baliram Choudhary, resident of
village Saraiyapur, P.O. Paithana, P.S. Islampur, District-Nalanda, Bihar.
4. Ranjit Kumar Ranjan, aged about 40 years, son of Ashok Kapri, resident of
village Kaswa, P.O. Bamankheta, P.S. Hansdiha, District-Dumka.
5. Anant Shaynam Vishwakarma, aged about 42 years, son of Ram Lakhan
Vishwakarma, resident of village Oriya Kala, P.O. and P.S. Daltonganj,
District-Palamau.
6. Pradeep Kumar, aged about 43 years, son of Ashok Prasad Sahu, resident of
Kolebira, P.O. and P.S. Kolebira, District-Simdega.
7. Sunil Kumar Singh, aged about 53 years, son of Late Ram Bahadur Singh,
resident of village Sonar Toli, Simdega, P.O. and P.S. Simdega, District-
Simdega.
8. Madan Kumar Suman, aged about 43 years, son of Mahendra Sahani,
resident of village Paktola, near Hanuman Mandir, P.O. Rarhi, P.S. Nanpur,
District-Darbhanga, Bihar.
9. Ramesh Ravidas, aged about 41 years, son of Ramcharan Ram, resident of
near Electric Office, Patra Toli, Lohardaga, P.O. and P.S. Lohardaga, District-
Lohardaga, Jharkhand
10 .Ausaf Ahmad Khan, aged about 40 years, son of Mushtaque Ahmad Khan,
resident of village Arsali, P.O. Arsali, P.S. Bhawnathpur, District-Garhwa
11 Shailesh Kumar, aged about 36 years, son of Hari Narayan Mahto, resident
of village Goilkera, P.O. and P.S. Goilkera, District-West Singhbhum
12 Kamal Kant Verma, aged about 45 years, son of late Basudeo Prasad Sinha,
resident of Flat No. 1e, Global Royal Retreet, near Lala Lajpat Rai School,
Pundag, P.O. and P.S. Pundag, District-Ranchi, Jharkhand.
13 Manish Kumar Sinha, aged about 49 years, son of Raghubansh Narain Sinha,
resident of 133 Suryapuri, Devi Mandap Road, P.O. Hehal, P.S. Sukhdeo
Nagar, District-Ranchi
14 Sudhanshu Pathak, aged about 48 years, son of late Sri Ramdas Pathak,
resident of B-971/2, near Panchmukhi Hanuman Mandir, H.E.C. Colony,
Sector-2, P.O. Dhurwa, P.S. Jagannathpur, District-Ranchi
15 Jitendra Prasad, aged about 41 years, son of Hari Prasad, resident of
Swang, Birsa Swang Colliery, P.O. and P.S. Gomia, District-Bokaro, Jharkhand
16 Devkant Singh, aged about 43 years, son of late Meva Kant Singh, resident
of 15 G, village Azad Nagar, near Church, P.O. and P.S. Sahibganj, District-
Sahibganj.
17 Ajay Kumar, aged about 43 years, son of Jagannath Mahto, resident of
village Patratu, Var Chowk, P.O. and P.S. Patratu, District-Ranchi, Jharkhand
18 Prakash Besra, aged about 41 years, son of Shikar Besar, resident of Bohra,
Ward No. 6, P.O. and P.S. Amrapara, District-Pakur.
19 Narendra Kumar Singh, aged about 43 years, son of Sukhdeo Singh, resident
of Giridih Road, Koderma, P.O. and P.S. Koderma, District-Koderma
20 Rajesh Kumar Saha, aged about 43 years, son of Amulya Ratan Saha,
resident of village Belatikur, P.O. Kelabari, P.S. Sahibganj, District- Sahibganj,
Jharkhand.
21 Vikas Pandey, aged about 41 years, son of Bijendra Nath Pandey, resident of
2

Bye Pass Road, Baba Ram Nagar Path, Opp. Singra House, Baralota, P.O. GLA
College, P.S. Daltonganj, District-Palamau.
22 Sitaram Mahto, aged about 45 years, son of Pritam Mahto, resident of Upar
Tola, Panchayat Chopandih, P.O. and P.S. Markacho, District-Koderma.
23 Jitendra Kumar, aged about 44 years, son of Umesh Singh, resident of Anchal
Office, Gumla, P.O. and P.S. Gumla, District-Gumla.
24 Udal Ram, aged about 43 years, son of Sri Ram, resident of village Kukahi,
P.O. Kukahi, P.S. Haidarnagar, District-Palamau.
25 Suresh Prasad Barnwal, aged about 42 years, son of Narayan Modi, resident
of village Shiladih, P.O. and P.S. Gorhar, District-Hazaribag, Jharkhand.
26 Bhikham Kumar, aged about 41 years, son of Nandkeshwar Das, resident of
village Bishunpur, P.O. and P.S. Chhatarpur, District-Palamau.
27 Anoj Kumar, aged about 41 years, son of Pashupati Paswan, resident of
village Arajpur, P.O. and P.S. Madhepura, District-Madhepura, Bihar.

...... Petitioners
Versus
1. The State of Jharkhand
2. The Secretary, Revenue Registration and Land Reforms Department,
Government of Jharkhand, Ranchi
3. The Secretary, Personnel, Administrative and Rajbhasha Department,
Government of Jharkhand, Ranchi
4. The Joint Secretary, Revenue Registration and Land Reforms Department,
Government of Jharkhand, Ranchi
5. Dhananjay Gupta, son of not known to the petitioners, presently residing at
Govindpur, P.O. and P.S. Govindpur, District-Dhanbad.
6. Manoj Kumar, son of not known to the petitioners, presently residing at
Jarmundi, P.O. and P.S. Jarmundi, District-Dumka.
7. Ramesh Chandra Tiwari, son of not known to the petitioners, presently
residing at Madhupur, P.O. and P.S. Madhupur, District-Deoghar.
8. Ranjan Yadav, son of not known to the petitioners, presently residing at
Hiranpur, P.O. and P.S. Hiranpur, District-Pakur.
9. Jay Shankar Pathak, son of not known to the petitioners, presently residing
at Herharganj, P.O. and P.S. Herharganj, District-Latehar.
10. Diwakar Dubey, son of not known to the petitioners, presently residing at
Nagar Untari, P.O. and P.S. Nagar Untari, District-Garhwa.
11. Sanjay Kumar Sinha, son of not known to the petitioners, presently residing
at Barharwa, P.O. and P.S. Barharwa, District-Sahibganj.
12. Basudeo Ray, son of not known to the petitioners, presently residing at
Kharoundhi, P.O. and P.S. Kharoundhi, District-Garhwa.
13. Rajkumar Prasad, son of not known to the petitioners, presently residing at
Ranka, P.O. and P.S. Ranka, District-Garhwa.
14 Santosh Kumar Shukla, son of not known to the petitioners, presently
residing at Sadar, P.O. Garhwa, P.S. Garhwa (Sadar), District Garhwa
15. Baliram Manjhi, son of not known to the petitioners, presently residing at
Bero, P.O. and P.S. Bero, District Ranchi.
16. Munsee Ram, son of not known to the petitioners, presently residing at
Bhawnathpur, P.O. and P.S. Bhawnathpur, District-Garhwa.
17. Kiran Dang, son of not known to the petitioners, presently residing at
Khunti, P.O. Khunti, P.S. Khunti Sadar, District-Khunti.
18. Anil Kumar, son of not known to the petitioners, presently residing at
Patmada, P.O. and P.S. Patmda, Town Jamshedpur, District-East Singhbhum
19. Bikram Mahli, son of not known to the petitioners, presently residing at
Karra, P.O. and P.S. Karra, District-Khunti.
3

20. Chona Ran Hembram, son of not known to the petitioners, presently
residing at Litipara, P.O. and P.S. Litipara, District-Pakur.
21. Madan Mahli, son of not known to the petitioners, presently residing at
Gola, P.O. and P.S. Gola, District-Ramgah.
22. Sanjeev Kumar Bharti, son of not known to the petitioners, presently
residing at Mandu, P.O. and P.S. Mandu, District-Ramgarh.
23. Shambhu Ram, son of not known to the petitioners, presently residing at
Barwadih, P.O. and P.S. Barwadih, District-Latehar.
...... Respondents
-----
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
-----
For the Petitioner : Mr. Anupam Lal Das, Senior Advocate
Mr. Saurabh Shekhar, Advocate

For Respondent-State : Mr. Rajiv Ranjan, A.G.
For the Intervener-Respondents : Mr. Ajit Kumar, Senior Advocate
Mr. Vikash Kumar, Advocate
For Resp. Nos. 5, 9, 10, 12, 14, 16 & 23: Mrs. Ritu Kumar, Advocate
For Intervener-Respondents : Mr. Rahul Kumar, Advocate
For Resp. Nos. 6 to 8, 11, 15, 17 to 22 :Mr. Anil Kr. Sinha, Senior, Advocate
Mr. Ravi Kumar Singh, Advocate
.......
C.A.V. On:19/10/2020:- Pronounced on 04 /12/2020

Heard, Mr. Anupam Lal Das, learned senior counsel assisted by Mr.

Saurabh Shekhar, learned counsel for the petitioners, Mr. Rajiv Ranjan,

learned Advocate General, appearing for the respondent-State, Mr. Ajit

Kumar, Senior Advocate assisted by Mr. Vikash Kumar, learned counsel for

the intervener-respondents (I.A. Nos. 4826/20, 5016/20), Mrs. Ritu Kumar,

learned counsel for the respondent nos. 5, 9, 10, 12, 14, 16 and 23, Mr.

Rahul Kumar, learned counsel for the intervener-respondents (IA. No.

5017/2020 & 5163 of 2020) and Mr. Anil Kumar Sinha, learned senior counsel

assisted by Mr. Ravi Kumar Singh, learned counsel for the intervener-

respondent nos. 6 to 8, 11, 15, 17 to 22.

2. This writ petition has been heard through Video Conferencing in

view of the guidelines of the High Court taking into account the situation

arising due to COVID-19 pandemic. None of the parties have complained

about any technical snag of audio-video and with their consent this matter
4

has been heard.

3. Petitioners have preferred this writ petition for the following reliefs:-

(i). For issuance of appropriate writ (s), order (s),

direction (s), specifically a writ in the nature of certiorari for

quashing of part of Govt. Resolution dated 24.10.2014, (Annexure-5

of this writ application) whereby decision has been taken to grant

relaxation of Kalawadhi period, but to those who have completed 20

years in service and one year in feeder cadre, and instead directed

the respondent authorities to take appropriate decision in relation

to relaxation of eligibility of Kalawadhi period, to those who are

more proximate to the standards and qualification of promotion,

herein to the post of Circle Officer/Assistant Settlement Officer,

according to the present Revenue Service Cadre Recruitment &

Promotion of Officer Conditions Rules of 2018, which will cover the

case of the petitioners for promotion from the post of Circle

Inspector/Kanungo to the post of Circle Officer/Assistant Settlement

Officer.

ii. For issuance of appropriate writ(s), order (s), direction (s)

commanding upon the respondents to introduce an additional

explanatory note/proviso to the Government Resolution dated

24.10.2014 by way of corrigendum, to extent and in the manner

that those who are more close to the standards of promotion

according to the promotional rules be allowed the benefit of

relaxation in Kalawadhi period, so as to restore the principle of

seniority-cum-merit in the feeder cadre of Circle Inspector, in

consonance with Rule 9.3 of Recruitment Rule, 2018 and final

seniority list prepared (Circle Inspector) in consonance with rule
5

14 (ii) and with a purpose to avoid conflict in the principle of

deciding substantial eligibilities of promotion in the Recruitment and

Promotion Rules, 2018 which upholds seniority to be decided on

the merit position of the select list of feeder grade (circle inspector)

Rule 14(ii), 18, 20 compared with Resolution dated 24.10.2014,

which upholds basic seniority/length of service from the date of

initial appointment;

(iii) For issuance of appropriate writ (s), order (s), direction (s),

specifically a writ in the nature of mandamus commanding upon the

respondent authorities to consider and promote the petitioners

from the post of Circle Inspector/Kunungo (Class-III, Grade Pay Rs.

4200/-) to the post of Assistant Settlement Officer/Circle Officer

(Class-II, Grade Pay of Rs, 5400/-) in the Department of Revenue,

Registration and Land Reforms, Government of Jharkhand, w.e.f.

date of promotion of juniors , i.e. w.e.f. 13.12.2019 and further to

restore seniority of the petitioners over and above juniors in the

post of circle officer.

(iv) For issuance of appropriate writ (s), order (s), direction (s)

specifically a writ in the nature of certiorari for quashing of

promotional order dated 13.12.2019 (Annexure-6 of this writ

application) issued by the respondent no. 4, whereby the private

respondents, who are juniors to the petitioners, have been granted

promotion to the post of Circle Officer, superseding petitioners'

position in the seniority list dated 26.09.2019 to the extent of non-

availability of vacancy.

(v) For issuance of appropriate order/direction staying any further

operation and implementation of the Resolution dated 24.10.2014
6

vis-a vis in relation Revenue Service Cadre (Recruitment and

Promotion) Rules, 2018 during the pendency of this writ application.

4. The relevant facts of the writ petition in narrow compass is as

follows:-

The petitioners were appointed on the post of Revenue

Deputy Inspector/Revenue Karamchari and thereafter they were

promoted to the post of Circle Inspector/Kanungo. The petitioners

details of appointment is given below:-

SI. Petitioners' Name Date of Date of Promotion of

Nos. Appointment (Circle Inspector)

(Revenue

Karamchari)

1. Shrawan Kumar 31.01.2004 06.10.2016

Jha

2. Fuleshwar Saw 31.01.2004 06.10.2016

3. Santosh Kumar 03.02.2004 06.10.2016

4. Ranjit Kumar 30.01.2004 06.10.2016

Ranjan

5. Anant Shaynam 31.01.2004 06.10.2016

Vishwakarama

6. Pradeep Kumar 03.02.2004 06.10.2016

7. Sunil Kumar Singh 31.01.2004 06.10.2016

8. Madan Kumar 31.01.2004 06.10.2016

Suman

9. Ramesh Ravidas 30.01.2004 06.10.2016
7

10. Ausaf Ahmad 30.01.2004 06.10.2016

Khan

11. Shailesh Kumar 03.02.2004 06.10.2016

12. Kamal Kant Verma 31.01.2004 06.10.2016

13. Manish Kumar 30.01.2004 06.10.2016

Sinha

14. Sudhanshu Pathak 30.01.2004 06.10.2016

15. Jitendra Prasad 31.01.2004 06.10.2016

16. Devkant Singh 30.01.2004 06.10.2016

17. Ajay Kumar 31.01.2004 06.10.2016

18. Prakash Besra 03.02.2004 06.10.2016

19. Narendra Kumar 30.01.2004 06.10.2016

Singh

20. Rajesh Kumar 03.02.2004 06.10.2016

Saha

21. Vikas Pandey 31.01.2004 06.10.2016

22. Sitaram Mahto 04.02.2004 06.10.2016

23. Jitendra Kumar 03.02.2004 06.10.2016

24. Udal Ram 30.01.2004 06.10.2016

25. Suresh Prasad 04.02.2004 06.10.2016

Barnwal

26. Bhikham Kumar 30.01.2004 06.10.2016

27. Anoj Kumar 07.02.2004 06.10.2016

For the purpose of promotion to the post of Circle

Inspector/Kanungo from the lower post of Revenue Sub-

Inspector/Revenue Karamchari, according to the previous Revenue
8

Service Recruitment and Promotion Rules of 2011, 25% of

vacancies were to be filled on the basis of limited departmental

competitive examination, to be conducted by Jharkhand Staff

Selection Commission. The said examination was conducted in the

year 2015, and on the basis of this examination the petitioners

were selected to the post of Circle Inspector. The service conditions

and promotion criteria of the petitioners is governed by the

Recruitment Rules, of 2018 and Rule 14 deals with the provisions of

preparation of seniority list on the basis of feeder cadre seniority.

According to Rule 14(ii), 18, 20 , seniority lists has to be prepared

on the basis of the merit position of the candidates in the select list.

The petitioners and their juniors had appeared in the limited

departmental competitive examination of 2015, for the purposes of

promotion from the post of Revenue Karamchari /Revenue Sub-

Inspector to the post of Circle Inspector/Kanungo for 25 %

vacancies. The petitioners along with the juniors to the petitioners

qualified the departmental competitive examination and the

petitioners were placed as higher in the merit position in the select

list. The seniority list was prepared on the basis of merit position in

the select list of limited departmental competitive examination,

2015, meaning thereby that the feeder cadre seniority list was

prepared and in view of Rule 9.3 it was required that promotion

shall be conducted on the principle of seniority-cum-merit. The

final seniority list was prepared for the post of Circle

Inspector/Kanungo after calling objections whereby the petitioners

were placed at Serial Nos. 44, 45, 46, 47, 48, 50, 51, 52, 53, 55,

56, 57, 59, 60, 62, 63, 65, 70, 73, 74, 75, 76, 77, 78, 82, 86 and 90
9

respectively whereas the respondents were placed at Serial Nos.

49, 54, 61, 67, 71, 72, 80, 83, 84, 85, 87, 91, 93, 96, 97, 100, 102,

107 and 108 respectively of the seniority list and merit list. The said

seniority list has been brought on record by way of Annexure-2 to

the writ petition. Rule 9 of the Recruitment Rules provides the

eligibility criteria for promotion to the post of Circle Officer from the

post of Circle Inspector. It has been contended that the petitioners

fulfill all the criteria. Their C.R. is not adverse. Further, the

petitioners have suffered no departmental proceeding or criminal

case or suspension. They have proficiency in computer, their

services have been confirmed. They have passed Hindi Noting and

Drafting examination. They have passed departmental examination

and they have training in preparation of Revenue and Judicial

Records. It has been further contended that the petitioners fulfill

all the conditions except one condition as prescribed under Rule 9.3

(1) (i) i.e. fulfilment of Kalawadhi. The earlier recruitment rules that

governed promotion of Revenue Karamchari to Kanungo/Circle

Inspector, and was applicable in case of petitioners' promotion to

the post of Circle Inspector was the Recruitment Rules of 2011

which was notified on 22.02.2012. The Recruitment Rules of 2018

in its provision 9.3 deals with the condition of promotion from the

post of Circle Inspector to Circle Officer. The principle of seniority-

cum-merit has to be followed. The rule 9.3 (i) provides that the

minimum Kalawadhi has to be completed in congruous with decision

taken by the respondent no. 3 by different letters and notifications

passed earlier. The Department of Personnel, vide its Resolutions

dated 16.01.2012 and 04.04.2014 has prescribed Kalawadhi for the
10

grade pay and occupied post. The grade pay of the post of Circle

Officer (Rs. 5400/-) as per the Resolution attracts Kalawadhi of 8

years. The Department of Personnel thereafter introduced some

relaxation vide Resolution dated 24.10.2014 and conditions

applicable for these relaxation was that when requisite candidates

for filling up of the vacant post are not available the relaxation in

Kalawadhi will be made applicable, for those who have completed

20 years in service in lower cadre, and one year in the feeder cadre

for consideration of promotion to the next higher post. The State

Government applying the principles in Resolution dated 24.10.2014

relaxed the Kalawadhi of the juniors of the petitioners, private

respondents, on the post of Circle Inspector for consideration of

promotion to the post of Circle Officer but whose names appear

below in the seniority list than to the petitioners, as per the

seniority list prepared contained as Annexure-2. The juniors to the

petitioners were granted promotion vide order dated 13.12.2019

from the post of Circle Inspector/Kanungo (Class-III grade pay of

Rs. 4200/-) to the post of Assistant Settlement Officer (Class-II,

grade pay of Rs. 5400/-). In view of Office Memorandum of the

year, 1989 it is clear that the persons who suffer promotion of their

juniors, their cases shall be considered for promotion, despite of

completion of eligibility period, which is in terms of Clause 18.4.3 of

the Memorandum of 1989 contained as Annexure-7 to the writ

petition. The petitioners preferred representation which has not

been considered.

5. Before coming to submission of the learned senior counsel for the

petitioners, the Court finds it proper to incorporate two orders of
11

this Court i.e. 15.09.2020 and 16.09.2020.

6. Order dated 15.09.2020 reads as under:-

"Heard Mr. Saurabh Shekhar, the learned counsel
appearing on behalf of the petitioners, Mrs. Vandana Singh,
learned Sr. S.C.-III appearing for the respondent-State, Mr. Ajit
Kumar, the learned senior counsel and Mr. Ravi Kumar Singh, the
learned counsel appearing for the respondents-Intervenors.
This writ petition has been heard through Video
Conferencing in view of the guidelines of the High Court taking
into account the situation arising due to COVID-19 pandemic.
Mr. Ajit Kumar, the learned Senior counsel appearing
for the respondent intervenors submits that in view of the
submission of the learned counsel appearing for the petitioners
that he is restraining his prayer to prayer no. 3 and 4, the matter
may come tomorrow to enable him to take instruction on the point
that as to whether the intervenors in spite of that are willing to
contest this writ petition or not.
Mr. Ravi Kumar Singh, the learned counsel appearing
on behalf of the private respondent nos. 5 and 14 submits that in
view of the submission of Mr. Saurabh Shekhar, the learned
counsel, in view of the vacancy position, he is not challenging the
promotion of the private respondents. He submits that he has
nothing to add in the writ petition.
Let this matter be posted tomorrow [16.09.2020]."
7. Order dated 16.09.2020 reads as under:-

"Heard Mr. Saurabh Shekhar, learned counsel for the petitioners,
Mrs. Vandana Singh, learned counsel for the respondent-State, Mr.
Ajit Kumar, learned senior counsel for the Intervener and Mr. Ravi
Kumar Singh, learned counsel for the respondent nos. 5 & 14.
This writ petition has been heard through Video
Conferencing in view of the guidelines of the High Court taking into
account the situation arising due to COVID-19 pandemic.
I.A. No. 4431 of 2020 has been filed for impleading the
interveners as party respondent.
On 15.09.2020 learned counsel for the petitioners
restricted his prayer to prayer nos. 3 & 4. Mr. Ajit Kumar, learned
senior counsel for the interveners submitted that the matter may
come tomorrow to enable him to take instruction on the point that as
12

to whether the interveners in spite of that are willing to contest this
writ petition or not, that is why the matter has been taken up today
again.
Mr. Ajit Kumar, learned senior counsel for the interveners
at the outset submits that he has instruction that interveners needs
to contest this writ petition.
Mr. Ajit Kumar, learned senior counsel for the interveners
took the Court to three notifications which have been annexed with
the writ petition and submits that promotion avenues are created
therein by way of 50% direct recruitment in the post of Circle
Inspector from lower post, 25 % to be filled up from the persons
who have completed 10 years of service by way of limited
examination and 25% are to be filled up from preference
accessibility of service. He submits that either the petitioners or the
interveners are not fulfilling the minimum qualification criteria for
promotion i.e. period of 8 years. He submits that in that view of the
matter interveners are necessary party in the writ petition. He further
submits that interveners are covered with resolution dated
24.10.2014. He submits that in view of the prayer no. 1 which has
been left out by the learned counsel for the petitioners, petitioners
are not entitled to be considered for promotion.
Mr. Saurabh Shekhar, learned counsel for the petitioners
submits that the interveners are junior to the petitioners. He draws
the attention of the Court to seniority list which is at page 50 of the
writ petition which is final seniority list prepared after inviting
objection by the affected parties. In the seniority list, last petitioner
is at serial no. 90 whereas the interveners in the seniority list are at
serial no. 125, 129, 130, 137, 161 and 167. He submits that
admittedly in the seniority list interveners are junior to the
petitioners. He submits that State is arbitrarily invoking notification
on which the interveners are relying and that notification which is
apparent from the earlier promotion order which has been challenged
in this writ petition whereby the persons junior to the petitioners
have been promoted w.e.f. 13.12.2019.
There is no doubt that State can exercise power to relax
the rules but this power cannot be exercised capriciously or
arbitrarily to give undue advantage to individual employee. Prima
facie, it appears that junior to the petitioners have been promoted by
promotion order dated 13.12.2019. Petitioners admittedly are senior
13

to the persons who have already been promoted and the interveners
who have come forward for intervening in the writ petition whereas
petitioners fulfil the prescribed standard of promotion or not that will
be considered at the final hearing of the writ petition.
In view of the point raised in the writ petition the entire
notifications/rules which are subject matter of the writ petition are
needs to be considered and in that view of the matter the Court
comes to the conclusion that the private respondents and
interveners need to be heard before taking any decision in the writ
petition.
Accordingly, I.A. No. 4431 of 2020 stands allowed.
The learned counsel for the petitioners is directed to array
the interveners as party respondents in the writ petition.
Learned counsel for the petitioners is directed to serve a
copy of the writ petition to the learned counsel for the interveners.
The interveners are at liberty to file response within a
period of two weeks.
Mr. Ravi Kumar Singh, learned counsel appears on behalf of
respondent nos. 5 & 14.
Let notice be issued upon the respondent nos. 6 to 26
except respondent no. 14 under registered cover with A/D as well as
by ordinary process for which requisites etc must be filed within two
weeks.
Seeing the nature of the issue involved in this writ petition,
the Court found it proper to hear the interveners as well as private
respondents who have been promoted on 13.12.2019, which is one
of the subject matter of the writ petition.
The contesting interveners have right of selection or promotion to
any post, is one of the subject matter of this writ petition, as now
they have been impleaded party respondents in the writ petition.
To avoid multiplicity of the writ petition, it is need of the hour
that further D.P.C be held after final decision of the writ petition. The
Court is inclined to decide this matter at the earliest after completion
of pleadings in the writ petition. The matter of relaxation are one of
the subject matter to decide and if any D.P.C. during the pendency
of the writ petition may take place, the writ petition may become
infructuous.
In that view of the matter the State is directed not to convey any
D.P.C. for promotion on the post of Circle Officer till the next date of
14

listing.
Post the matter on 19.10.2020."
8. On the basis of aforesaid two orders, the learned counsel for the

respondents submitted that the petitioners are not entitled for consideration

of their case for promotion.

9. Mr. Anupam Lal Das, learned senior counsel assisted by Mr. Saurabh

Shekhar, appearing for the petitioners submitted that promotion of the

juniors private respondents have been granted on the post of Circle Officer

vide order dated 13.12.2019 whereas the petitioners have been left out as

contained in annexure-6 to the writ petition. He submitted that in view of

Rule 9.3 of Cadre Promotion Rules which relates to Seniority-cum-merit as

standard for promotion. The petitioners are seniors. He submitted that Rule

9.3 of the Promotional Rules, 2018 enumerates that promotion will be done

on the basis of seniority-cum-merit. He submitted that it is an admitted fact

that as per the merit list of the Limited Examination held for the post of Circle

Inspector, the petitioners were meritorious and therefore, petitioners were

placed senior to all other private respondents. He further submitted that the

Seniority list prepared on the basis of Limited Examination held in the year,

2015 has not been challenged by anyone and in that view of the matter, it is

an undisputed fact that the petitioners are senior and more meritorious than

the private respondents. He submitted that final seniority list was prepared

as per Rule 14(ii) of Cadre Promotion Rules, 2018 which was not challenged

by any of the party. He further submitted that for promotion from Revenue

Karamchari to Circle Inspector, as per Rule 7.7 (ka) of Cadre Promotional

Rules, 2011, 25% promotional quota through Departmental Examination was

applied by almost all, including the petitioners and the respondents. He

submitted that the petitioners are meritorious as they are up in the merit list

compared to most of the respondents and the result was prepared on
15

conducting of Departmental Competitive Examination for promotion to Circle

Inspector concluded in the year, 2016. He submitted that the petitioners and

respondents were promoted as Circle Inspector. Mr. Das, learned senior

counsel for the petitioners submitted that most of the respondents are either

lesser in merit of the departmental competitive examination or were failure

and therefore, the failed ones had to be promoted through next channel i.e.

remaining 25% promotional quota as per Rule 7.7 (kha) of Cadre Promotional

Rules, 2011 or repealed 2018 Rules in the year, 2019. Mr. Das, learned senior

counsel for the petitioners further submitted that State Government has

power to relax eligibility criteria but it must be in accordance with law. He

submitted that there is limitation to Government power that it must be used

reasonably, so that it may not turn inequitable or arbitrary for others. To

buttress his argument, learned senior counsel for the petitioners relied on

judgment in the case of "Ashok Kumar Uppal & Others Vs. State of J &

K & Others" reported in (1998) 4 SCC 179 in which it has been held as

under:-

"30. In view of the above, the Government can exercise the power
to relax the Rules in all those cases in which hardship is caused in
the implementation of those Rules to meet a particular situation or
where injustice has been caused to either individual employee or
class of employees. Of course, this power cannot be exercised
capriciously or arbitrarily to give undue advantage or favour to an
individual employee."

10. Learned senior counsel for the petitioners further submitted that the

petitioners are senior and hence, more proximate to promotion as per Rule

9.3 of Cadre Promotion Rules, 2018 which prescribes seniority-cum-merit as

promotional criteria for promotion from Circle Inspector to Circle Officer. He

submitted that relaxation was provided to the juniors to the petitioners but
16

the petitioners have been left out which is in violation of Article 14 of the

Constitution of India. He submitted that by way of further notification dated

24.10.2014, private respondents have already been granted promotion over

and above to the petitioners who are senior. The interveners who have got

promotion to the post of Circle Inspector on February, 2019 are claiming

seniority over the petitioners, who got promotion to the post of Circle

Inspector in the year, 2016 whereas, petitioners are three years senior to the

interveners. He submitted that to grant them promotion over and above

petitioners is arbitrary and unfair exercise of power to relax eligibility which

violates Article 14 of the Constitution of India, reasonableness and arbitrary

exercise of power to relax eligibility and Article 16 fairness in the selection

process will be compromised. He submitted that as per relaxation provided

in the notification dated 24.10.2014, the promotion are required to be given

not on the basis of seniority or merit but on the basis of length of service,

which is not the intention of legislature while framing the Promotional Rules

of 2011 and 2018 and thus, the notification dated 24.10.2014 is contrary to

Promotional Rules, 2011 and 2018 which prescribed that the standard for

promotion is seniority-cum-merit which is incorporated in notification dated

24.10.2014. He further submitted that interpretation of Govt. Resolution

dated 24.10.2014 in relation to the Promotion Rules of 2018, specifically

Rule 14(ii) & Rule 9, the situation where due to application of relaxation of

Kalawadhi as per resolution dated 24.10.2014, on completion of 20+1 year of

service, less meritorious candidates as per the Rule is considered for

promotion to Circle Officer and more meritorious candidates as per the Rule

is left behind, it will result in most incongruous result of juniors being

allowed to be promoted and seniors sitting idle. He submitted that mediocre

will prevail over meritorious. He submitted that such interpretation cannot be
17

allowed which is against the Article 14 & 16 of the Constitution of India and

therefore, Rule of interpretation is that the provisions will have to be read

down to match the spirit of the constitutional provisions. To buttress his

argument, learned senior counsel for the petitioners relied on judgment in

the case of "Arun Kumar & Others Vs. Union of India & Ors." Reported

in 2007(1) SCC 732 in which it has been held as under:-

"57. In several cases, the courts have invoked and applied the
doctrine of "reading down" and upheld the constitutional validity of
the Act.
...........................................................................................................
80. The Court relied upon a decision in White & Collins v. Minister
of Health wherein a question debated was whether the court had
jurisdiction to review the finding of administrative authority on a
question of fact. The relevant Act enabled the local authority to
acquire land compulsorily for housing of working classes. But it
was expressly provided that no land could be acquired which at
the date of compulsory purchase formed part of park, garden or
pleasure ground. An order of compulsory purchase was made
which was challenged by the owner contending that the land was
a part of park. The Minister directed public inquiry and on the basis
of the report submitted, confirmed the order."
11. Leaned senior counsel for the petitioners further submitted that an

unconstitutional law is no law, it confers no rights, it imposes no duties, it

provides no protection, it creates no office, in legal contemplation, it is

inoperative. To buttress his argument, learned senior counsel for the

petitioners relied on judgment in the case of " Brij Bhukhan Kalwar &

Ors. Vs. SDO, Siwan & Ors" reported in AIR 1955 (Pat) 1 (FB) in which

it has been held as under:-

"5. But, before I proceed to determine what orders should
be passed in each of these cases, I have to pronounce upon the
validity or otherwise of the Act or that part of the Act which is
impugned.
"An unconstitutional Act is not law, it confers no rights, it
18

imposes no duties, it affords no-protection, it creates no office; it
is, in legal contemplation, as inoperative as though it had never
been passed."
Field J. in Norton V/s. Shelby County, (1885) 118 US 425 (A).
Willoughby has quoted the following passage from the judgment of
the Court of West Virginia in Shephard V/s. Wheeling, 30 W Va 479
(B) and has observed that the doctrine that the judicial declaration
of the unconstitutionality of a statute has not the effect of a veto
or nullification or abrogation of the statute so as, in effect, to
strike it from the statute books, is excellently stated in this
judgment:
"(The Court) does not annul or repeal the statute, if it finds it in
conflict with the Constitution. It simply refuses to recognize it, and
determines the rights of the parties just as if such statute had no
application. The Court may give its reasons for ignoring or
disregarding the statute, but the decision affects the parties only,
and there is no judgment against the statute. The opinion or
reasons of the Court may operate as a precedent for the
determination of other similar cases, but it does not strike the
statute from the statute book; it does not repeal......the statute.
The parties to that suit are concluded by the judgment, but no one
else is bound. A new litigant may bring a new suit, based on the
very same statute, and the former decision cannot be pleaded as
an estoppel, but can be relied on only as a precedent. This
constitutes the reason and basis of the fundamental rule that a
Court will never pass upon the constitutionality of a statute unless
it is absolutely necessary to do so in order to decide the case
before it."
No particular points have been formulated for determination by
this Special Bench, and what we have to determine is whether any
of these applications is fit to succeed, and, certainly, if the
applications are to succeed, at least certain portions of the statute
will have to be declared unconstitutional and void. Some of these
applications have been contested not only on behalf of the State
but also on behalf of certain private parties, and, in fact, Mr. Amin
Ahmad who has appeared for the opposite party in Miscellaneous
Judicial Case No. 173 of 1953 has defended this Act much more
strongly than the learned Government Advocate. He was
supported to some extent by the learned Advocate-General who
19

gave the final reply on behalf of the State. We shall, therefore,
have to give our judicial pronouncement 2020-11-06 Page 5
against the statute only in so far as it is necessary for the
determination of the rights claimed by the petitioners, and in cases
in which there is contest on behalf of private parties, we will have
to give the same amount of consideration and weight to the
submissions made on their behalf which we are bound to give to
the submissions made on behalf of the State."

12. Learned senior counsel for the petitioners further submitted that the

case of the persons who are nearest to the promotion and are at the top of

merit list are best/first to avail the benefit of relaxation. He further submitted

that in view of Resolution dated 24.10.2014, petitioners will suffer

permanently in view of the fact that more juniors will be promoted over and

above petitioners and the entire vacancies on the post of Circle Officer will

get occupied by the juniors whereas the petitioners having merit will not be

promoted which is not the essence of Rule 14 (ii) & Rule 9 of the 2018 Rules

moreover, this will result in violation of Article 14 and 16 of the Constitution

of India. He further submitted that the interveners who are juniors, whose

case have not been considered in DPC for promotion to the post of Circle

Officer and they have no right which as on today gets affected. To buttress

his argument, he relied on judgment in the case of ""State of Orissa Vs.

Dhirendra Sundar Das" reported in (2019) 6 SCC 270 in which it has

been held as under:-

"9.1. The contesting respondents cannot claim an accrued or
vested right for selection or promotion to OAS Class II posts in the
year 2008, merely on the basis of their names being forwarded by
the respective Departmental Authorities.
...........................................................................................................
9.11. In Deepak Agarwal v. State of U.P this Court had held that
the right to be considered for promotion accrues on the date of
consideration of eligible candidates. The relevant extract of the
20

decision is extracted hereinbelow for ready reference: (SCC p 735,
para 26)
"26. It is by now a settled proposition of law that a candidate has
the right to be considered in the light of the existing rules, which
implies the "rule in force" on the date the consideration took place.
There is no rule of universal or absolute application that vacancies
are to be filled invariably by the law existing on the date when the
vacancy arises. The requirement of filling up old vacancies under
the old rules is interlinked with the candidate having acquired a
right to be considered for promotion. The right to be considered
for promotion accrues on the date of consideration of the eligible
candidates. Unless, of course, the applicable rule, as in Y.V.
Rangaiah case lays down any particular time-frame, within which
the selection process is to be completed. In the present case,
consideration for promotion took place after the amendment came
into operation. Thus, it cannot be accepted that any accrued or
vested right of the appellants has been taken away by the
amendment."
13. Learned senior counsel for the petitioners submitted that

Resolution dated 24.10.2014 relaxed the eligibility for promotion and clause

2 (iii) was added, according to which a candidate who has completed 20

years of service and 1 year of service in the present post is entitled for

promotion. He submitted that the power to issue notification flows from

Promotional Rules, 2011. The petitioners in the present writ petition neither

challenged the Promotional Rules of 2011 and 2018 nor the petitioners have

challenged the power of the Government to issue notifications but the

petitioners have challenged the resolution and the manner in which such

power has been exercised by the State Government. He relied on judgment

in the case of "State of Punjab & Another Vs. Brijeshwar Singh Chahal

& Another" reported in (2016) 6 SCC 1 in which it has been held as

under:-

"8. A realistic assessment of the requirement is the first and
foremost step that one would expect the State to take for any
21

prudent exercise of the power of appointment of Law Officers. No
such assessment has been made nor any material disclosed by the
State Governments to demonstrate that they were sensitive to the
need for any such assessment. Power to appoint Law Officers was
all the same exercised on what appears to us to be a totally ad hoc
basis without any co-relation between the workload in the courts
and the number of Law Officers appointed to handle the same.
There is no gainsaying that if the power to appoint is exercised not
because such exercise is called for but because of some
extraneous or other reason the legitimacy of the exercise will itself
become questionable. That is precisely what has been brought out
by the Comptroller and Auditor General in his report of Social,
General and Economic sectors (non-PSUs) for the year ending on
31-3-2012 for the State of Haryana. The report is a telling
indictment of the system of appointment followed in the State of
Haryana which does not provide for assessment of the manpower
requirement leave alone any worthwhile process of selection of
those appointed. The result is that more than half of those
appointed were without any work during the test check period
resulting in payment of idle salary in crores. CAG has while finding
fault with the entire process recommended a realistic assessment
of the number of Law Officers required on the basis of the
workload and selection of the appointees in a transparent manner.
The report also found the explanation offered by the State
Government to be unacceptable keeping in view the daily duty
roster regarding the Law Officer's work and performance.
......................................................................................................
10. We are not sure whether a similar study has been conducted
qua the State of Punjab, but given the fact that the number of Law
Officers appointed by that State is also fairly large, we will not be
surprised if any such study would lead to similar or even more
startling results. The upshot of the above discussion is that for a
fair and objective system of appointment, there ought to be a fair
and realistic assessment of the requirement, for otherwise the
appointments may be made not because they are required but
because they come handy for political aggrandisement,
appeasement or personal benevolence of those in power towards
those appointed. The dangers of such an uncanalised and
unregulated system of appointment, it is evident, are multi-
22

dimensional resulting in erosion of the rule of law, public faith in
the fairness of the system and injury to public interest and
administration of justice. It is high time to call a halt to this
process lest even the right thinking become cynical about our
capacity to correct what needs to be corrected."

14. Learned senior counsel for the petitioners further relied on

judgment in the case of " Delhi Transport Corporation Vs. D.T.C.

Mazdoor Congress & Others" reported in 1991 Supp (1) SCC 600 in

which it has been held as under:-

"202. Thus on a conspectus of the catena of cases decided
by this Court the only conclusion that follows is that Regulation
9(b) which confers powers on the authority to terminate the
services of a permanent and confirmed employee by issuing a
notice terminating the services or by making payment in lieu of
notice without assigning any reasons in the order and without
giving any opportunity of hearing to the employee before passing
the impugned order is wholly arbitrary, uncanalised and
unrestricted violating principles of natural justice as well as Article
14 of the Constitution. It has also been held consistently by this
Court that the government carries on various trades and business
activity through the instrumentality of the State such as
Government Company or Public Corporations. Such Government
Company or Public Corporation being State instrumentalities are
State within the meaning of Article 12 of the Constitution and as
such they are subject to the observance of fundamental rights
embodied in Part III as well as to conform to the directive
principles in Part IV of the Constitution. In other words the Service
Regulations or Rules framed by them are to be tested by the
touchstone of Article 14 of Constitution. Furthermore, the
procedure prescribed by their Rules or Regulations must be
reasonable, fair and just and not arbitrary, fanciful and unjust.
Regulation 9(b), therefore, confers unbridled, uncanalised and
arbitrary power on the authority to terminate the services of a
permanent employee without recording any reasons and without
conforming to the principles of natural justice. There is no
guideline in the Regulations or in the Act, as to when or in which
23

cases and circumstances this power of termination by giving notice
or pay in lieu of notice can be exercised. It is now well settled that
the 'audi alteram partem' rule which in essence, enforces the
equality clause in Article 14 of the Constitution is applicable not
only to quasi-judicial orders but to administrative orders affecting
prejudicially the party-in-question unless the application of the rule
has been expressly excluded by the Act or Regulation or Rule
which is not the case here. Rules of natural justice do not supplant
but supplement the Rules and Regulations. Moreover, the Rule of
Law which permeates our Constitution demands that it has to be
observed both substantially and procedurally. Considering from all
aspects Regulation 9(b) is illegal and void as it is arbitrary,
discriminatory and without any guidelines for exercise of the
power. Rule of law posits that the power is to be exercised in a
manner which is just, fair and reasonable and not in an
unreasonable, capricious or arbitrary manner leaving room for
discrimination. Regulation 9(b) does not expressly exclude the
application of the 'audi alteram partem' rule and as such the order
of termination of service of a permanent employee cannot be
passed by simply issuing a month's notice under Regulation 9(b) or
pay in lieu thereof without recording any reason in the order and
without giving any hearing to the employee to controvert the
allegation on the basis of which the purported order is made.
230. There is need to minimise the scope of the arbitrary use of
power in all walks of life. It is inadvisable to depend on the good
sense of the individuals, however high-placed they may be. It is all
the more improper and undesirable to expose the precious rights
like the rights of life, liberty and property to the vagaries of the
individual whims and fancies. It is trite to say that individuals are
not and do not become wise because they occupy high seats of
power, and good sense, circumspection and fairness does not go
with the posts, however high they may be. There is only a
complacent presumption that those who occupy high posts have a
high sense of responsibility. The presumption is neither legal nor
rational. History does not support it and reality does not warrant it.
In particular, in a society pledged to uphold the rule of law, it
would be both unwise and impolitic to leave any aspect of its life to
be governed by discretion when it can conveniently and easily be
covered by the rule of law.
24

231. The employment under the public undertakings is a public
employment and a public property. It is not only the undertakings
but also the society which has a stake in their proper and efficient
working. Both discipline and devotion are necessary for efficiency.
To ensure both, the service conditions of those who work for them
must be encouraging, certain and secured, and not vague and
whimsical. With capricious service conditions, both discipline and
devotion are endangered, and efficiency is impaired.
232. The right to life includes right to livelihood. The right to
livelihood therefore cannot hang on to the fancies of individuals in
authority. The employment is not a bounty from them nor can its
survival be at their mercy. Income is the foundation of many
fundamental rights and when work is the sole source of income,
the right to work becomes as much fundamental. Fundamental
rights can ill-afford to be consigned to the limbo of undefined
premises and uncertain applications. That will be a mockery of
them.
233. Both the society and the individual employees, therefore,
have an anxious interest in service conditions being well defined
and explicit to the extent possible. The arbitrary rules, such as the
one under discussion, which are also sometimes described as
Henry VIII Rules, can have no place in any service conditions.
234. These are the conclusions which flow from Sukhdev Singh v.
Bhagatram Sardar Singh Raghuvanshi, Maneka Gandhi v. Union of
India, Manager, Government Branch Press v. D.B. Belliapa,
Managing Director, Uttar Pradesh Warehousing Corporation v.
Vinay Narayan Vajpayee, A.L. Kalra v. Project & Equipment
Corporation of India Ltd., Workmen v. Hindustan Steel Ltd., West
Bengal State Electricity Board v. Desh Bandhu Ghosh, Olga Tellis v.
Bombay Municipal Corporation, Union of India v. Tulsiram Patel,
Central Inland Water Transport Corporation Ltd. v. Brojo Nath
Ganguly, O.P. Bhandari v. Indian Tourism Development Corporation
Ltd., N.C. Dalwadi v. State of Gujarat, M.K. Agarwal v. Gurgaon
Gramin Bank and Daily Rated Casual Labour (employed under P &
T Department through Bhartiya Dak Tar Mazdoor Manch) v. Union
of India.
235. Since, before us the rule in question which admittedly did not
lay down explicit guidelines for its use was sought to be defended
only on two grounds, viz., that the power conferred by it is to be
25

exercised only by high authorities and that it is capable of being
read down to imply circumstances under which alone it can be
used, I need deal only with the said grounds.
236. The "high authority" theory so-called has already been
adverted to earlier. Beyond the self-deluding and self-asserting
righteous presumption, there is nothing to support it. This theory
undoubtedly weighed with some authorities for some time in the
past. But its unrealistic pretensions were soon noticed and it was
buried without even so much as an ode to it. Even while Shah, J.

in his dissenting opinion in Moti Ram Deka v. General Manager, N.E.F. Railways had given vent to it Das Gupta, J. in his concurring judgment but dealing with the same point of unguided provisions of Rule 148(3) of the Railway Establishment Code, had not supported that view and had struck down the rule as being violative of Article 14 of the Constitution. The majority did not deal with this point at all and struck down the rule as being void on account of the discrimination it introduced between railway servants and other government servants.

237. The reliance placed on the decision in Ram Krishna Dalmia v. Justice S.R. Tendolkar to support the above theory is also according to me not correct. As has been pointed out there, the Commissions of Inquiry Act, 1952, the validity of which was challenged on the ground of unguided powers to institute inquiries, was not violative of Article 14 because the long title and Section 3 of the Act had contained sufficient guidelines for exercise of the power. Section 3 has stated that the appropriate government can appoint a commission of inquiry only for the purpose of making inquiry into any definite matter of public importance. It is in the context of this guideline in the Act, that it is further stated there that even that power is to be exercised by the government and not any petty official. Hence a bare possibility that the power may be abused cannot per se invalidate the Act itself. The proposition of law stated there is to be read as a whole and not in its truncated form. The authority does not lay down the proposition that even in the absence of guidelines, the conferment of power is valid merely because the power is to be exercised by a high official. It must further be remembered that in this case, the contention was that although the appropriate government was given power to appoint commission of inquiry into any definite matter of public 26 importance, the delegation of power was excessive since it was left to the government to decide for itself in each case what constituted such matter. The court repelled the argument by pointing out that "definite matter of public importance" constituted sufficient guideline to the government. It was not, therefore, a case of no guideline but of the absence of details of the guideline.

238. Of similar nature is the reliance placed on the decision in Collector of Customs, Madras v. Nathella Sampathu Chetty for the proposition that the possibility of the abuse of the powers is no ground for declaring the provision to be unreasonable or void. The relevant observations are made while repelling the contention there that the burden thrown under provisions of Section 178-A of the Sea Customs Act, 1878 on the possessor of the goods to show that they were not smuggled was violative of Article 19(1)(f) and

(g) of the Constitution. The observations are as follows: (SCR pp. 825-26) "The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The converse must also follow that a statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner. The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If so judged it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid and similarly if the law properly interpreted and tested in the light of the requirements set out in Part III of the Constitution does not pass the test it cannot be pronounced valid merely because it is administered in a manner which might not conflict with the constitutional requirements. In saying this we are not to be understood as laying down that a law which might operate harshly but still be constitutionally valid should be operated always with harshness or that reasonableness and justness ought not to guide the actual administration of such laws.

"The statute there was saved by the provisions of Article 19(6) of the Constitution and was otherwise valid. It was not a case of a provision which was constitutionally invalid being saved by recourse to the specious assumption of its reasonable exercise in individual cases.

239. In Tata Oil Mills Co. Ltd. v. Workmen it was a case of an employee of a private company who was given a discharge simpliciter. This Court following its earlier decisions on the point observed that in several cases, contract of employment or Standing Orders authorise an industrial employer to terminate the employee's service by giving one month's notice or salary of one month in lieu of notice and normally an employer may, in a proper case be entitled to exercise the power. But where such order gives rise to an industrial dispute, the form of the order would not be decisive and the industrial adjudicator would be entitled to probe it to find out whether it is mala fide or is made in colourable exercise of the power. Being a private employment, the power so conferred was not assailed on the ground that it violated Article 14 of the Constitution. I fail to understand the reliance placed on this authority to support the appellants' case before us.

240. The other authorities relied on behalf of the appellants have similarly no relevance to the point. In Jyoti Pershad v. Administrator for the Union Territory of Delhi, the Slum Clearance Act which was challenged there contained enough guidelines for the exercise of the power. In Municipal Corporation of Greater Bombay v. P.S. Malvenkar, Order 26 of the Standing Orders and Service Regulations which was in question there required reasons to be given for effecting termination simpliciter of an employee. In Organo Chemical Industries v. Union of India, Section 14-B of the Provident Fund Act which was challenged was held to be valid since the Act contained enough guidelines for imposing penal damages. In Champaklal Chimanlal Shah v. Union of India, Rule 5 of the Central Civil Services (Temporary Service) Rules, 1949 was challenged on the ground that it discriminated between temporary and permanent employees. There was no challenge to the absolute power given by the said rule to terminate the services of temporary employees. In Ram Gopal Chaturvedi v. State of M.P., it was a case of termination of a temporary government servant's services. In Air India Corporation, Bombay v. V.A. Rebellow, the challenge was to the termination of services on the ground that it was done in colourable exercise of power under Regulation 48 of the Air India Employees' Service Regulations. The said regulation was not challenged on the ground that it gave unchannelised and unguided power of terminating the services of employees. In Hira 28 Nath Mishra v. Principal, Rajendra Medical College, Ranchi it was the case of the expulsion of students from college for two academic sessions pursuant to the order passed by the Principal of that college. The expulsion was effected following a confidential complaint received from 36 girl students residing in the girls' hostels alleging that the students in question had entered the compound of the girls' hostels at belated night and walked without clothes on them. The students were heard but the evidence of the girls was not recorded in their presence. The court held that under the circumstances the requirements of natural justice were fulfilled since the principles of natural justice were not inflexible and differed in different circumstances. I have not been able to appreciate the relevance of this decision to the point in issue.

269. The right to public employment and its concomitant right to livelihood, thus, receive their succour and nourishment under the canopy of the protective umbrella of Articles 14 , 16(1), 19(1)(g) and 21. Could statutory law arbitrarily take way or abridge or abrogate it? In Board of Trustees, Port of Bombay v. Dilipkumar Raghavendranath Nadkarni this Court held that the expression "life" does not merely connote animal existence or a continued drudgery through life, the expression life has a much wider meaning. Where, therefore, the outcome of a departmental enquiry is likely to affect reputation or livelihood of a person, some of the finer graces of human civilisation which makes life worth living would be jeopardised and the same can be put in jeopardy only by law which inheres fair procedure.

296. In Olga Tellis case it was held that the Constitution is not only paramount law of the land but also it is a source of sustenance of all laws. Its provisions are conceived in public interest and are intended to serve public purpose. Therefore, when the provisions of an Act or Regulations or Rules are assailed as arbitrary, unjust, unreasonable, unconstitutional, public law element makes it incumbent to consider the validity thereof on the anvil of interplay of Articles 14 , 16(1), 19(1)(g) and 21 and of the inevitable effect of the impugned provision on the rights of a citizen and to find whether they are constitutionally valid. Interplay of Articles 14 , 16(1), 19(1)(g) and 21 as guarantors of public employment as a source of right to livelihood. ..................................................................................................

298. By the Full Court in R.C. Cooper v. Union of India it was held that the law must not impair the guarantee of any of the fundamental rights in Part III. The law authorising to impose reasonable restrictions under Article 19(1) must be intended to advance the larger public interest. Under the Constitution, protection against impairment of the guarantee of the fundamental rights is determined by the nature of the right, interest of the aggrieved party and the degree of harm resulting from the State action. Impairment of the right of the individual and not the object of the State in taking the impugned action is the measure of protection. To concentrate merely on the power of the State and the object of the State action in exercising that power is, therefore, to ignore the true intent of the Constitution. The nature and content of the protection of the fundamental rights is measured not by the operation of the State action upon the rights of the individual but by its objects. The validity of the State action must be adjudged in the light of its operation upon the rights of the individuals or groups of the individual in all their dimensions. It is not the object of the authority making the law impairing the right of the citizen nor the form of action taken that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the court to grant relief. In Minerva Mills Ltd. v. Union of India the fundamental rights and directive principles are held to be the conscience of the Constitution and disregard of either would upset the equibalance built up therein. In Maneka Gandhi case it was held that different articles in the chapter of fundamental rights of the Constitution must be read as an integral whole, with possible overlapping of the subject matter of what is sought to be protected by its various provisions particularly by articles relating to fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial justice; social, economic and political, and of equality of status and opportunity which imply absence of unreasonable or unfair discrimination between individuals or groups or classes. The fundamental rights protected by Part III of the Constitution, out of which Articles 14 , 19 and 21 are the most frequently invoked to 30 test the validity of executive as well as legislative actions when these actions are subjected to judicial scrutiny. Fundamental rights are necessary means to develop one's own personality and to carve out one's own life in the manner one likes best, subject to reasonable restrictions imposed in the paramount interest of the society and to a just, fair and reasonable procedure. The effect of restriction or deprivation and not of the form adopted to deprive the right is the conclusive test. It is already seen that the right to a public employment is a constitutional right under Article 16(1). All matters relating to employment include the right to continue in service till the employee reaches superannuation or his service is duly terminated in accordance with just, fair and reasonable procedure prescribed under the provisions of the Constitution or the rules made under proviso to Article 309 of the Constitution or the statutory provision or the rules, regulations or instructions having statutory flavour made thereunder. But the relevant provisions must be conformable to the rights guaranteed in Parts III and IV of the Constitution. Article 21 guarantees the right to live which includes right to livelihood, to a many the assured tenure of service is the source, the deprivation thereof must be in accordance with the procedure prescribed by law conformable to the mandates of Articles 14 and 21 as be fair, just and reasonable but not fanciful, oppressive or at vagary. The need for the fairness, justness or reasonableness of the procedure was elaborately considered in Maneka Gandhi case and it hardly needs reiteration. Principles of natural justice if part of Article 14.

299. The Maneka Gandhi case is also an authority or the proposition that the principles of natural justice is an integral part of the guarantee of equality assured by Article 14 of the Constitution. In Union of India v. Tulsiram Patel this Court held that the principles of natural justice have thus come to be recognised as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject matter of that article. Shortly put, the syllogism runs thus: (SCC p. 476, para 95) "Violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of the State action, it is a violation of Article 14, therefore, a violation of a principle of natural justice by a State action is a violation of 31 Article 14. Article 14, however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to the legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'State' in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such a matter fairly and impartially."

303. Article 19(1)(g) empowers every citizen the right to avocation or profession etc. which includes right to be continued in employment under the State unless the tenure is validly terminated consistent with the scheme enshrined in the fundamental rights of the Constitution. Therefore, if any procedure is provided for deprivation of the right to employment or right to the continued employment till the age of superannuation as is a source to right to livelihood, such a procedure must be just, fair and reasonable. This Court in Fertilizer Corporation Kamgar Union (Regd.), Sindri v. Union of India held that Article 19(1)(g) confers a broad and general right which is available to all persons to do works of any particular kind and of their choice. Therefore, whenever there is arbitrariness in State action -- whether it be of the legislature or of the executive or of an authority under Article 12, Articles 14 and 21 spring into action and strikes down such an action. The concept of reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. Therefore, the provision of the statute, the regulation or the rule which empowers an employer to terminate the services of an employee whose service is of an indefinite period till he attains the age of superannuation, by serving a notice or pay in lieu thereof must be conformable to the mandates of Articles 14 , 19(1)(g) and 21 of the Constitution. Otherwise per se it would be void. In Moti Ram Deka case, Gajendragadkar, J. (as he then was) after invalidating the Rules 149(3) and 148(3) under Article 311(2) which are in pari materia with Regulation 9(b) of the Regulations also considered their validity in the light of Article 14 and held thus: (SCR p. 731) "Therefore, we are satisfied that the challenge to the validity of the impugned Rules on the ground that they contravene Article 14 32 must also succeed."

This was on the test of reasonable classification as the principle then was applied. Subba Rao, J. (as he then was) in a separate but concurring judgment, apart from invalidating the rule under Article 311(2) also held that the rule infringed Article 14 as well, though there is no elaborate discussion in that regard. But, Das Gupta, J. considered elaborately on this aspect and held: (SCR p. 770) "Applying the principle laid down in the above case to the present Rule, I find on the scrutiny of the Rule that it does not lay down any principle or policy for guiding the exercise of discretion by the authority who will terminate the service in the matter of selection or classification. Arbitrary and uncontrolled power is left in the authority to select at its will any person against whom action will be taken. The rule, thus enables the authority concerned to discriminate between two railway servants to both of whom Rule 148(3) equally applied by taking action in one case and not taking it in the other. In the absence of any guiding principle in the exercise of the discretion by the authority the Rule has therefore to be struck down as contravening the requirements of Article 14 of the Constitution."

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316. Thus it could be held that Article 14 read with Article 16(1) accords right to an equality or an equal treatment consistent with the principles of natural justice. Any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly, justly and reasonably. Right to fair treatment is an essential inbuilt of natural justice. Exercise of unbridled and uncanalised discretionary power impinges upon the right of the citizen; vesting of discretion is no wrong provided it is exercised purposively judiciously and without prejudice. Wider the discretion, the greater the chances of abuse. Absolute discretion is destructive of freedom than of man's other inventions. Absolute discretion marks the beginning of the end of the liberty. The conferment of absolute power to dismiss a permanent employee is antithesis to justness or fair treatment. The exercise of discretionary power wide off the mark would breed arbitrary, unreasonable or unfair actions and would not be consistent with reason and justice. The provisions of a statute, regulations or rules that empower an employer or the management to dismiss, remove or reduce in rank 33 of an employee, must be consistent with just, reasonable and fair procedure. It would, further, be held that right to public employment which includes right to continued public employment till the employee is superannuated as per rules or compulsorily retired or duly terminated in accordance with the procedure established by law is an integral part of right to livelihood which in turn is an integral facet of right to life assured by Article 21 of the Constitution. Any procedure prescribed to deprive such a right to livelihood or continued employment must be just, fair and reasonable procedure. In other words an employee in a public employment also must not be arbitrarily, unjustly and unreasonably be deprived of his/her livelihood which is ensured in continued employment till it is terminated in accordance with just, fair and reasonable procedure. Otherwise any law or rule in violation thereof is void.

Need for harmony between social interest and individual right. ............................................................................................................ ...............

332. In an appropriate case where there is no sufficient evidence available to inflict by way of disciplinary measure, penalty of dismissal or removal from service and to meet such a situation, it is not as if that the authority is lacking any power to make rules or regulations to give a notice of opportunity with the grounds or the material on records on which it proposed to take action, consider the objections and record reasons on the basis of which it had taken action and communicate the same. However scanty the material may be, it must form foundation. This minimal procedure should be made part of the procedure lest the exercise of the power is capable of abuse for good as well as for whimsical or capricious purposes for reasons best known to the authority and not germane for the purpose for which the power was conferred. The action based on recording reasoning without communication would always be viewed with suspicion. Therefore, I hold that conferment of power with wide discretion without any guidelines, without any just, fair or reasonable procedure is constitutionally anathema to Articles 14 , 16(1), 19(1)(g) and 21 of the Constitution. Doctrine of reading down cannot be extended to such a situation.

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336. In view of the march of law made by Article 14, in particular after Maneka Gandhi case, it is too late in the day to contend that the competent authority would be vested with wide discretionary power without any proper guidelines or the procedure. The further contention that the preamble, the other rules and the circumstances could be taken aid of in reading down the provisions of the impugned rules or the regulations is also of no assistance when it is found that the legislative intention is unmistakably clear, unambiguous and specific. Thus considered, I have no hesitation to conclude that the impugned Regulation 9(b) of the Regulations is arbitrary, unjust, unfair and unreasonable offending Articles 14 , 16(1), 19(1)(g) and 21 of the Constitution. It is also opposed to the public policy and thereby is void under Section 23 of the Indian Contract Act."

15. Mr. Rajiv Ranjan, learned Advocate General appearing for the respondent-State submitted that the petitioners do not fulfil Kalawadhi of 8 years which is necessary for consideration of promotion to the post of Circle Officer. He further submitted that the condition of Kalawadhi was further simplified by the Personnel, Administrative Reforms and Rajbhasa Department vide Resolution no. 580 dated 24.10.2014 and it was provided therein that in case requisite candidates are not found then the relaxation in Kalawadhi will be made available for those who have completed 20 years in service at lower posts and one year in the feeder cadre for promotion to the next higher post. He further submitted that minimum Kalawadhi of 8 years have been fixed for promotion from Grade Pay of Rs. 4200 to the Grade Pay of Rs. 5400/-. He further submitted that the petitioners who are in the grade of Rs. 4200/- have completed approximately 3 years of service but have not completed fixed Kalawadhi at lower post hence, they have failed to avail the benefit of 50% relaxation of Kalawadhi (8 years) in the light of Circular dated 04.04.2014 which comes to 4 years. Moreover, the petitioners have also 35 failed to avail the benefit of relaxation pursuant to provision contained in resolution dated 24.10.2014 as they have not completed altogether 20 years of service in Government service. He submitted that in view of these facts and resolution dated 24.10.2014, the case of the petitioners have rightly been not considered.

16. Mr. Anil Kumar Sinha, learned senior counsel assisted by Mr. Ravi Kumar Singh, learned counsel appearing for the intervener-respondent nos.

6 to 8, 11, 15, 17 to 22 submitted that under the proviso to Article 309 of Constitution of India, the Governor of the State of Bihar vide notification no.

11505 dated 28.11.1956 made the rule that where the State Government is satisfied that operation of any rule regulating conditions of service of State Government servants or any class of such Government servants, causes undue hardship in any particular case, they may by order dispense with or relax the requirements of the rule of such extent and subject to such conditions as they may consider necessary for dealing with the case in just and equitable manner. He referred Annexure-A to the counter-affidavit which is notification dated 28.11.1956. He submitted that in view of the above powers the Personnel Administrative Reforms and Rajbhasha Department vide its resolutions dated 16.01.2012 and 04.04.2014 and 24.10.2014 contained in Annexure-4 and 5 respectively have provided for relaxation in the conditions of promotions to be given to the State Government employees and thus is a law governing the conditions of service of the State Government made under powers of proviso to Article 309 of Constitution of India. He submitted that this relaxation is applicable in cases of all the employees of all the departments of State of Jharkhand and not only in the cases of the petitioners and the answering respondents of this case. He submitted that all those persons who have been benefitted, have not been 36 made party-respondents and on this count itself the writ petition is fit to be dismissed. He submitted that the writ petitioners are claiming their right over and above the rights of the answering respondents only on the basis of seniority as circle inspector-cum-Kanungo whereas the criteria for promotion to the post of Circle Officer/Assistant Settlement Officer is seniority-cum-

merit. He submitted that the Hon'ble Supreme Court in several judgment held experience of service to be equivalent to merit. He submitted that seniority-

cum-merit has been followed in this writ petition and resolution dated 24.10.2014 is applicable to all the employees and cannot be said to be violation of Article 14 & 16 of the Constitution of India. He submitted that the writ petitioners have got promotions to the posts of Circle Inspector-cum-

Kanungo in the year, 2016 when the same rules and regulations were applicable and just when they are not fitting in the criteria they have challenged the same. He submitted that resolution dated 24.10.2014 is part of the 2018 Rules made under Article 309 of the Constitution of India as such ought to have been listed only before the Division Bench of the Hon'ble Jharkhand High Court as per Rule 34 of the Jharkhand High Court Rules. He referred Article 366 of the Constitution of India and submitted that Resolution dated 24.10.2014 is also a law governing the service conditions of the employees of State of Jharkhand. He submitted that the respondents were appointed in the year 1989-90 as Revenue Karamchari. Annexure-A is not under challenge whereby the case of the petitioners has been rejected. He also referred Section 24 of the General Clauses Act.

17. Mr. Ajit Kumar, learned senior counsel appearing for the intervener-

respondent (I.A. Nos. 4826/2020 & I.A. No. 5016/2020 which were allowed) submitted that the intervener-respondents had been appointed as Revenue Staff (Rajasv Karamchari) in late 1980's or in early 1990's under the Revenue 37 and Land Reforms Department in the erstwhile State of Bihar after bifurcation of the State, they are presently posted under the Revenue, Registration and Land Reforms Department, Government of Jharkhand. He submitted that the petitioners were appointed in the said department in the year, 2004 and the said post is presently known as Revenue Deputy Inspector. He submitted that the intervener respondents and the private respondents were much more senior to the writ petitioners in the said feeder post. He submitted that service rule governing their services was earlier known as the Jharkhand Revenue Service Cadre (Appointment, Promotion and Service Condition) Rule, 2011 and after repealing the same the Jharkhand Revenue Service Cadre (Recruitment, Promotion & other Services Conditions) Rules, 2018 enacted under proviso to Article 309 of the Constitution of India. Referring Rule 2 of the Rules, 2018, he submitted that seniority list and Kalawadhi are defined. He submitted that in view of Rule 7 of the Rules, 2018, there are three channels for promotion/appointment on the post of Circle Inspector i.e. 50% from the direct recruitment, 25% by way of limited examination after completing 10 years of service and 25% regular promotion. He submitted that the State Government initiated action, somewhere in the year, 2014-15 for promotion on the post of Circle Inspector through both the channel i.e. first 25% promotion by limited examination and second 25% by regular promotion. He submitted that the writ petitioners got promotion on the post of Circle Inspector on 06.10.2016 in quota of 25% of promotion through limited examination. He submitted that the intervener respondents and private respondents got regular promotion by dint of long experience of unblemished services of more than 25 years on 28.02.2019 in the quota of 25 % of regular promotion. He submitted that in that view of the matter, the gradation list prepared in the month of September, 2019 for the post of Circle 38 Inspectors, the writ petitioners have been placed senior to the intervener respondents and the private respondents. By way of Rule 7.7 of the Rules, 2018, Mr. Ajit Kumar, learned senior counsel for the intervener-respondents submitted that minimum qualifying services (Kalawadhi) for promotion as determined by the Personnel, Administrative Reforms & Rajbhasha Department will be applicable in toto. He referred to Rule 9.3(i) of the Rules, 2018 covering the case of promotion from the post of Circle Inspector to the post of Circle Officer/Assistant Settlement Officer. He submitted that Personnel, Administrative Reforms & Rajbhasha Department, Government of Jharkhand vide Circular contained in memo no. 398 dated 16.01.2012 provided the time period (Kalawadhi) for promotion and the issue in hand is concerned to the Grade Pay of Rs. 4200/- to Rs. 5400/- with the time period of 8 years as per the 6th CPC recommendations. He submitted that the Clause 4 of the said Circular dated 16.01.2012 provides that the relaxation of 50% of the time period for promotion will be given in such a situation where the promotion avenues are vacant and promotion cannot be given for want of required time period and sum of the time period provided for the current post just below the current post. By way of referring Clause 2 (ii) of the Circular dated 04.04.2014 issued by the Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand, Mr. Ajit Kumar, learned senior counsel for the intervener-respondents submitted that the some of the time period (Kalawadhi) for the current post and two posts lower than the current post is achieved then the relaxation of 50% of time period as provided under the said Circulars for promotion will be given. He submitted that terms and conditions stipulated in the said Circulars dated 16.01.2012 and 04.04.2014 have been clarified further in the Circular dated 24.10.2014 wherein one additional sub clause as Sub-clause 2(ii) has been added which 39 provides that in cases where the promotional posts are vacant inspite of the provisions contained in the said Circulars dated 16.01.2012 and 04.04.2014, the time period (Kalawadhi) shall not be a bar when the Government Servant has completed 20 years of services and 1 year of services on the current post and in that view of the matter one can be considered for promotion. He submitted that Rule 9.3 of the Rules, 2018 provides that promotion from the post of Circle Inspector to the post of Assistant Settlement Officer/Circle Officer will be given on the basis of seniority-cum-

eligibility subject to conditions stipulated therein including one condition that minimum qualifying service (Kalawadhi) is applicable as determined by the Personnel, Administrative Reforms and Rajbhasha Department, Government of Jharkhand. He submitted that Departmental Promotion Committee under the Chairmanship of the Chairman, JPSC after following the due procedure vide its minutes of meeting dated 06.11.2019 considered the case of promotion from the post of Circle Inspector to the post of Assistant Settlement Officer/Circle Officer of all the parties who are before the Hon'ble Court wherein the DPC found the intervener respondents and the writ petitioners ineligible on the date of consideration and recommended for promotion of the private respondents. He submitted that thereafter, petitioners filed writ petition in which five prayers have been made. He submitted that the writ petition was heard on 10.02.2020 and the writ petitioners took stand that they were not challenging the promotion of the respondent nos. 5 & 14 although they had been granted promotion by relaxing rules. He submitted that during pendency of the writ petition, in the month of February, 2020 the intervener respondents and similarly situated persons achieved the minimum qualifying services of 20 years and 1 year of service on the current post for promotion to the post of Assistant Settlement 40 Officer/Circle Officer as provided in the aforementioned Circular dated 24.10.2014. By way of order dated 15.09.2020, learned senior counsel for the intervener-respondents submitted that the writ petitioners restrained to the prayer nos. 3 & 4 only submitted that they did not challenge the vires of the impugned Circular dated 24.10.2014 as well as promotion of such persons who had been granted promotion on 13.12.2019 which is quoted in order dated 16.09.2020 and in that view of the matter prayer nos. 1, 2 & 5 do not survive and the writ petitioners are supposed to establish that as per the applicable rules and relaxation circulars, they have claim of promotion as on 06.11.2019 when the previous DPC was held and on 13.12.2019 when impugned promotion were granted. He submitted that once case of the petitioners has been considered by the DPC in its meeting dated 06.11.2019 and found them ineligible in terms of the Rules, 2018 and the Government Resolution, they are not allowed to challenge the same at this stage on the ground of estoppel. He relied on judgment in the case of "D. Saroja Kumari vs. R. Helen Thilakom & Others" reported in (2017) 9 SCC 478 in which it has been held as under:

"4. The main ground urged on behalf of the appellant is that Respondent 1 having taken part in the selection process could not be permitted to challenge the same after she was unsuccessful in getting selected. The law is well settled that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection.

5. In G. Sarana v. University of Lucknow, the petitioner after appearing in the interview for the post of Professor and having not been selected pleaded that the experts were biased. This Court did not permit the petitioner to raise this issue and held as follows:

(SCC p. 591, para 15) "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact 41 that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee."

6. In Madan Lal v. State of J&K, the petitioner laid challenge to the manner and method of conducting viva voce test after they had appeared in the same and were unsuccessful. This Court held as follows: (SCC p. 493, para 9) "9. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted."

7. In Manish Kumar Shahi v. State of Bihar, this Court held as follows: (SCC p. 584, para 16).

16. Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."

8. In Ramesh Chandra Shah v. Anil Joshi the petitioners took part in the process of selection made under the general rules. Having appeared in the interview and not being successful they challenged the method of recruitment itself. They were not permitted to raise such an objection. This Court held as follows: (SCC p. 320, para

24).

"24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the 42 process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents."

9. The same view has been taken in Madras Institute of Development Studies v. K. Sivasubramaniyan.

10. The Kerala High Court did not note the abovementioned judgments and ignored the well-settled position of law in rejecting the specific plea raised by the appellant herein that the appellant could not raise the issue that no direct recruitment should have been conducted once she had applied for and taken part in the selection process by direct recruitment.

11. As far as the present case is concerned, an advertisement was issued by Respondent 6 inviting applications for the post of Music Teacher in Samuel LMS High School. Respondent 1 did not raise any objection at that stage that the post could not be filled in by direct recruitment and she should be considered for promotion. Not only that, she in fact, applied for the post and took part in the selection process. After having taken part in the selection process and being found lower in merit to the appellant, she cannot at this stage be permitted to turn around and claim that the post could not be filled in by direct recruitment. The reasoning of the learned Single Judge in rejecting the objection is not in consonance with the law laid down by this Court. In view of this, we need not go into the other issues raised.

12. We, therefore, allow these appeals and set aside the order dated 25-7-2003 of the learned Single Judge and dismiss the writ petition OP No. 36563 of 2002 as being not maintainable."

18. Mr. Ajit Kumar, learned senior counsel for the intervener-

respondents further relied on judgment in the case of "Madras Institute of Development Studies & Another Vs. K. Sivasubramaniyan & Others"

reported in (2016) 1 SCC 454 in which it has been held as under:-

"14. The question as to whether a person who consciously takes part in the process of selection can turn around and question the 43 method of selection is no longer res integra.

15. In G. Sarana v. University of Lucknow, a similar question came up for consideration before a three-Judge Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Anthropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held: (SCC p. 591, para 15) "15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee. This view gains strength from a decision of this Court in Manak Lal case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: (AIR p. 432, para 9) '9. ... It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.'"

16. In Madan Lal v. State of J&K, similar view has been reiterated by the Bench which held that: (SCC p. 493, para 9) "9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the 44 oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus, the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner."

17. In Manish Kumar Shahi v. State of Bihar, this Court reiterated the principle laid down in the earlier judgments and observed:

(SCC p. 584, para 16) "16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection.

Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."

18. In Ramesh Chandra Shah v. Anil Joshi, recently a Bench of this Court following the earlier decisions held as under: (SCC p. 320, para 24) "24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was 45 being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Benchof the High Court committed grave error by entertaining the grievance made by the respondents."

19. Mr. Ajit Kumar, learned senior counsel for the intervener-

respondents further relied on judgment in the case of "Ashok Kumar Uppal & Others Vs. State of J & K & Others" reported in (1998) 4 SCC 179 in which it has been held as under:-

"26. Power to relax the Recruitment Rules or any other Rule made by the State Government, under Article 309 of the Constitution of which the corresponding provision is contained in Section 124 of the Constitution of Jammu and Kashmir, is conferred upon the Government to meet any emergent situation where injustice might have been caused or is likely to be caused to any individual employee or class of employees or where the working of the Rule might have become impossible. Under service jurisprudence as also the Administrative Law, such a power has necessarily to be conceded to the employer particularly the State Government or the Central Government who have to deal with hundreds of employees working under them in different departments including the Central or the State Secretariat.

27. In State of Maharashtra v. Jagannath Achyut Karandikar it was held as under: (SCC p. 398, para 12) "The power to relax the conditions of the rules to avoid undue hardship in any case or class of cases cannot now be gainsaid. It would be, therefore, futile for the respondents to make any grievance."

28. In J.C. Yadav v. State of Haryana, it was held as under: (SCC pp. 194-95, para 6) "The relaxation of the Rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner. The scope of Rule is wide enough to confer power on the State Government to relax the requirement of Rules in respect of an individual or class of individuals to the extent it may consider necessary for dealing with the case in a just and equitable manner. The power of relaxation is 46 generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation. Many a time strict application of service rules create a situation where a particular individual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service. In such a situation the Government has power to relax Requirement of Rules. The State Government may in exercise of its powers issue a general order relaxing any particular rule with a view to avail the services of requisite officers. The relaxation even if granted in a general manner would ensure to the benefit of individual officers."

29. This decision was followed in Sandeep Kumar Sharma v. State of Punjab in which Hon'ble Punchhi, J. (as His Lordship then was), observed as under: (SCC p. 304, para 14) "The power of relaxation even if generally included in the service rules could either be for the purpose of mitigating hardships or to meet special and deserving situations. Such rule must be construed liberally, according to the learned Judges. Of course arbitrary exercise of such power must be guarded against. But a narrow construction is likely to deny benefit to the really deserving cases. We too are of the view that the rule of relaxation must get a pragmatic construction so as to achieve effective implementation of a good policy of the Government."

30. In view of the above, the Government can exercise the power to relax the Rules in all those cases in which hardship is caused in the implementation of those Rules to meet a particular situation or where injustice has been caused to either individual employee or class of employees. Of course, this power cannot be exercised capriciously or arbitrarily to give undue advantage or favour to an individual employee."

20. Mr. Ajit Kumar, learned senior counsel for the intervener-

respondents submitted that DPC minutes dated 06.11.2019 is not under challenge and the consequential promotion order dated 13.12.2019 of the private respondents were challenged but the same was withdrawn as quoted in order dated 10.02.2020, 15.09.2020 and 16.09.2020. He submitted that the writ petitioners are not eligible for promotion on or before 06.10.2022 47 even after applying the relaxation clauses contained in Govt. Resolutions and the Rules, 2018. He submitted that under the service jurisprudence, power of relaxation of service rule has necessarily to be conceded to the Government, where in the present case, the Government Resolution provided relaxation for the very purpose of filling the promotional posts when the seats are vacant and suitable candidates are wanting. Relying on aforesaid judgments, learned counsel for the intervener-respondents submitted that the writ petition is fit to be dismissed.

21. Mr. Rahul Kumar, learned counsel for the intervener-respondents (I.A. No. 5017/2020, which was allowed) and Mrs. Ritu Kumar, learned counsel for the respondent nos. 5, 9, 10, 12, 14, 16 and 23 have adopted the arguments of learned senior counsel for the respondents and interveners.

22. Mrs. Ritu Kumar, learned counsel for the respondent nos. 5, 9, 10, 12, 14, 16 and 23 only added in her argument that respondents were also appointed in the year 1988-89.

23. By way of reply of learned senior counsel for the respondents and interveners, Mr. Anupam Lal Das, learned senior counsel for the petitioners submitted that submission in order dated 15.09.2020 were made in the wake of stand of the private respondents that they will not contest if the petitioners do not press challenge to resolution dated 24.10.2014 and there was undertaking on the part of private respondents. He submitted that intervention application was not allowed on that date, though interveners were asked to reply if they will still want to contest if challenge to resolution dated 24.10.2014 is not pressed. He submitted that on this they replied "yes"

on 16.10.2020 i.e on the next date of hearing. Pursuant to that this Court took conscious decision that all points/rules/ notifications will be considered and all the parties were noticed. He submitted that this order of the Court 48 got confirmed in S.L.P. (C) No. 11572/2020. He submitted that private respondents are speak of res judicata/estoppel on the submissions made by the petitioners in order dated 15.09.2020. He submitted that if the private respondents' undertaking to not contest was superseded by the court's order to hear all on 16.09.2020, the status of the submission of petitioners will not survive, specifically in view of the fact that intervention application was not allowed on 15.09.2020. He submitted that it was allowed only on 16.09.2020, when decision was taken to keep the entire matter open to contest. On 16.09.2020 it was an attempt of the parties and the court to end the dispute in non-adversarial manner, which failed and hence, it was superseded vide order dated 16.09.2020. He submitted that this order has been confirmed up to the Hon'ble Supreme Court. He referred to excerpts of the order dated 16.09.2020 which is quoted here-in-below:-

"There is no doubt that State can exercise power to relax the rules but this power cannot be exercised capriciously or arbitrarily to give undue advantage to individual employee. Prima facie, it appears that junior to the petitioners have been promoted by promotion order dated 13.12.2019.

In view of the point raised in the writ petition the entire notifications/rules which are subject matter of the writ petition are needs to be considered and in that view of the matter the Court comes to the conclusion that the private respondents and interveners need to be heard before taking any decision in the writ petition."

24. Learned senior counsel for the petitioners further submitted that non-challenge of DPC is not fatal to the case of petitioners because petitioners' grievance is in relation to relaxation, relaxation can be granted only by State and therefore incongruous application of State notification in relation to grant of relaxation to some and ignoring of the case of some others, who are more deserving and this act of State has been challenged.

Only when relaxation is granted by the State, petitioners' case will be placed before DPC, because only then they will fall in the zone of consideration. DPC will have no role to play before petitioners fall in the zone of consideration.

Therefore, DPC rejecting the case of the petitioners of no avail and carries no incidence in the eyes of law. He submitted that this Court has got power to mould the relief, if the rejection of the case of the petitioners in DPC is considered, is necessary to be challenged. To buttress his argument, he relied on judgment in the case of "Employees State Insurance Corporation and Ors. Vs. Jardine Henderson Staff Association and Ors.", reported in (2006) 6 SCC 581 in which it has been held as under:

"63. The High Court under Article 226 and this Court under Article 136 read with Article 142 of the Constitution of India have the power to mould the relief in the facts of the case."

25. Learned senior counsel for the petitioners submitted that Resolution dated 24.10.2014 is a 'Sankalp' which is only passed on the Executive side as administrative power and not as delegated legislation. He submitted that the petitioners have already challenged the consequential promotion order of junior candidates. He submitted that this matter will not lie before the Division Bench.

26. Bearing in mind the aforesaid arguments of the learned counsel for the parties and the facts projected above, only question requires to be answered by this Court as to whether in view of the rules and circulars referred who are required to be considered for promotion if one is not fulfilling the criteria of 'Kalawadhi' and who are close to be considered for promotion. As both the points are interlinked and in that view of the matter both the points have been taken up together.

27. Rules of the year, 2011 has been brought on record by way of Annexure-3 to the writ petition. Rule 7.2 of the said Rules provides that 50% 50 post would be filled up by way of direct recruitment, 25% posts would be filled up by limited examination and 25% posts would be filled up on the basis of seniority-cum- merit. Rules, 2018 has been brought on 25.04.2018 which is under proviso of Article 309 of the Constitution of India. This rule has been prescribed as Jharkhand Revenue Service Cadre (Recruitment, Promotion & other Services Conditions) Rules, 2018. Definition of 'Kalawadhi' has been prescribed therein in terms of Personnel, Administrative Reforms and Rajbhasha Department. This Rule further prescribes the mode of appointment to the post of Circle Inspector/Kanungo Grade pay of Rs. 4200/-

and the post of Circle Officer Grade Pay of Rs. 5400/- by way of promotion.

Rule 7.2 of the said rules provides that 50% post of Circle Inspector/Kanungo would be filled up by way of direct recruitment, 25% posts would be filled up by limited examination and 25% posts would be filled up on the basis of seniority-cum- merit. The procedure of promotion has been prescribed in Rule 7.7 of the said Rules. Rule 9.3 prescribes the process of consideration for promotion. Rule 14 (ii) prescribes that seniority will be fixed on the basis of merit list and the Rule of 2012 has been repealed by way of this Rule. Sankalp, 2014 prescribes the period of 'Kalawadhi' 8 years. Clause 2(i) prescribes about the relaxation. In view of Resolution, 2014 it has been notified that the persons having completed 20 years+1 year service in feeder cadre shall be considered for promotion to the next higher post.

28. In the absence of statutory rules, promotion rests entirely within the executive power of Government thus when there are no Rules providing the basis on which promotion would be made. There is nothing wrong if the competent authority adheres to the principle of selection by merit alone.

29. It is an admitted fact that the petitioners are senior to the private respondents and the interveners in the feeder cadre and for promotion for higher post the feeder cadre seniority are required to be followed. Seniority list in the feeder cadre are not on the basis of entire continuous length of service. Annexure-2 i.e. seniority list has been prepared pursuant to limited examination on the basis of merit and feeder cadre of the petitioners as well as respondents on the post of Circle Inspector/Kanungo. In this regard reference may be made to the case of "Union of India & Others Vs. C. Jayaprakasan" reported in (2010) 15 SCC 752 in which it has been held as under:-

"5. It is nobody's case that the seniority in the cadre of Boiler Supervisors is to be determined on the basis of the entire continuous length of service under the Railway Administration. It is also undisputed that the post of Chargeman B is a promotional post under the Railway Administration and Chargeman A is still further from Chargeman B, and the post of Boiler Supervisor is a promotional post to Chargeman A. In that view of the matter, until and unless it is established that Respondent 1 was either promoted to Chargeman A earlier than Respondent 2 or that Respondent 2 was erroneously promoted to the post of Chargeman A, the question of Respondent 1 gaining seniority over Respondent 2 does not arise. In the absence of any specific rule holding that the continuous length of service would be the basis for seniority in a particular grade, entry into the grade is the normal rule for promotion. Applying that rule, Respondent 2 having come to the grade of Chargeman A on 20-3-1980 and Respondent 1 having come to that grade only on 27-12-1983, the said Respondent 1 cannot be held to be senior to Respondent 2. Similarly Respondent 2 having come to the cadre of Boiler Supervisor on 1-1-1984 and Respondent 1 having reached that grade only during the pendency of the matter before the Tribunal, he also cannot claim seniority in the cadre of Boiler Supervisor over Respondent 2.

6. In this view of the matter the Tribunal was wholly unjustified in setting aside the gradation list of Boiler Supervisors which had 52 been prepared by the Railway Administration and which was the subject-matter of challenge before the Tribunal. In our considered opinion the Tribunal committed error in interfering with the determination of seniority made by the Administration in the cadre of Boiler Supervisors."

30. It is well-settled proposition of law that in interpreting documents purposive construction is basic method. Legislative purpose must be noted, statute must be read as whole.

31. Resolution dated 24.10.2014 speaks about relaxation, eight years of 'kalawadhi' for promotion who have completed 20 years in service and one year in feeder cadre. Rule 9.3 of Cadre Promotion Rules, 2018 provides that promotion will be done on the basis of seniority-cum-merit whenever seniority list has been prepared.

32. The golden rule of statutory construction is that the words and phrases or sentences should be construed according to the intent of legislature that passed the Act. All the provisions should be read together. If the words of the statutes are in themselves precise and unambiguous, the words or phrases or sentences themselves alone do, then no more can be necessary than to expound those words or phrases or sentences in their natural and ordinary sense. But if any doubt arises to call in aid the ground and cause of making the statute and to have the recourse to the preamble, which is a key to open the minds of the makers of the statute and the mischiefs which the Act intend to redress.

33. Preamble of 2018 Resolution clearly prescribes about the promotion with the intent of the Rule was provided promotion to the higher post has been prescribed therein. Rule, 2018 is under proviso of Article 309 of the Constitution of India whereas relaxation 2014 is only a resolution of the executive/administrative instruction. In exercise of Resolution, 2014, the Government can dispense or relax the operation of any rule if it causes 53 undue hardships in any particular case.

34. Resolution, 2014 provides the power to relaxation condition prescribed for promotion however, the scope of this power has been construed by the Rule, 2018. Rules, 2018 are statutory under the proviso of Article 309 of the Constitution of India. Government could not have restricted the operation of the statutory rules by issuing the executive instruction. The executive instruction may supplement but not supplant the statutory rules.

35. On the basis of general relaxation clause vide Resolution dated 24.10.2014 ignoring the Rules 14 of the Jharkhand Revenue Service Cadre (Recruitment, Promotion & other Services Conditions) Rules, 2018 and under Rule 9.2 framed under the proviso to Article 309 of the Constitution of India, cannot be allowed to be interfered by the executive decisions. Persons once in the feeder cadre of the post of Circle Officer, cannot have precedence over another for total length of their services in the Government job. The principle of relaxation is that the Government has power to relax the eligibility criteria in the Rules, it must be conformity with the provisions of the Rules under Article 309 of the Constitution of India and for providing relaxation efforts must be there for those near to fulfilling criteria of promotion will be considered as has been held in the case of "Ashok Kumar Uppal" (supra). The Government can exercise the power to relax the Rules, in those case in which hardship is caused in the implementation of those rules to meet a particular situation or where has been caused to either any individual employee or class of employees. This power cannot be exercised capriciously or arbitrarily to give undue advantage or favour to an individual employee and the persons recommended for consideration of promotion by way of relaxation must be nearest to the prescribed standard should be provided promotion on which persons who are far below in 54 merit. This ratio has been applied in the case of "Ashok Kumar Uppal"

(supra) wherein relevant system provides promotion on the basis of seniority-cum-merit which required to be followed. Rule 14(ii) of Rules, 2018 prescribes mode of promotion on seniority-cum-merit. The persons possessing minimum necessary merit in the feeder post are first ascertained and thereafter promotion shall be given directly in accordance with seniority from amongst who possess minimum necessary merit and expected to complete seniority-cum-merit where promotion is based on principle of seniority-cum-merit. Promotion is not automatic with reference to the seniority alone. Merit will play a significant role. The case in hand the Rule prescribes for promotion on the basis of seniority-cum-merit made under proviso of Article 309 of the Constitution of India. A right to consider for promotion is one matters relating to employment or appointment under Article 16(1) of the Constitution of India. Reference may be made to the case of "Delhi Jal Board Vs. Mahinder Singh" reported in (2000) 7 SCC 210 in which it has been held as under:-

"5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental 55 enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench."

36. The Court after having gone through the record perused the notification dated 13.12.2019 wherefrom it is evident that some of the Circle Inspector who have been promoted as Circle Inspector through limited examination, have been granted promotion as Circle Officer by giving add to the notification of 2014 by granting relaxation. The question is that when Rule 8 of 2018 stipulates about seniority of the feeder cadre and admittedly the petitioners are senior in the feeder cadre and the juniors to the petitioners have been considered and granted promotion will it be said that the provision of Rule 2018 has been followed. The answer of the Court is in negative in view of fact that the case of the petitioners have not been considered merely because of the reason that the seniority of the basic cadre that is the entire length of service of the concerned promotees have been taken into account which is not the mandate of Rule 8 of 2018 Rules.

However the Court is not going into the legality and propriety of the said promotion already made since the issue has been left by the petitioners but the facts remain, can the right of the petitioners will be ignored since the juniors to them in the feeder cadre have already been granted promotion.

The Court is of the view, although promotion is not a right, but if the juniors have been granted promotion the right of promotion accrued in favour of the seniors. To deal with such situation the Court is of the view that the principle laid down in the case of "Ashok Kumar Uppal" (supra) required to be followed, mere particularly in the facts of the case in hand as mandates also stipulates about the seniority of feeder cadre.

37. Article 14 & 16 of the Constitution of India prohibits application of 56 unreasonable or unfair standards in the matter of considering an employee for promotion. The discrimination, unfairness or un reasonableness in the norms or policy relating to promotion may be with regard to merely consideration for determination of seniority and determination of merit.

Resolutions and norms challenge for employee was not considered for promotion. Reference may be made to the case of "Vishwas Anna Sawant and Others Vs. Municipal Corporation of Greater Bombay and others" reported in (1994) 4 SCC 434. Article 14 has been violated by arbitrarily promoting by the process of pick and chose amongst employees belonging to the same cadre and others on the point of seniority list because without performing the same progress. Reference may be made to the case of "Punjab State Electricity Board, Patiala And Another Vs. Ravinder Kumar Sharma & Others" reported in (1986) 4 SCC

617.

38. Order dated 16.09.2020 has been confirmed by the Hon'ble Supreme Court in SLP (C) No.11572 of 2020. The said order speaks that all the rules are required to be considered. Argument of the learned counsel for the respondents that in view of order dated 15.09.2020 and 16.09.2020 prayer of the petitioners cannot be allowed, is not accepted in view of the reasons stipulated in order dated 16.09.2020. Moreover, the High Court has got power to mould relief as held by the Hon'ble Supreme Court in the case of "Employees State Insurance Corporation" (supra). Judgment relied by Mr. Ajit Kumar, learned senior counsel for the respondent intervener-

respondents in the case of ""D. Saroja Kumari" (supra) is not applicable in the facts and circumstances of the present case as in that case persons who were unsuccessful have challenged the action and in that view of the matter the Hon'ble Supreme Court came to the conclusion about the estoppel. This 57 judgment is not helping the intervener-respondents. Judgment relied in the case of "Ashok Kumar Uppal" (supra) is on the point where in that case persons who were nearer to the prescribed standard were considered thus in the present case to some extent this judgment is helping the petitioners.

Judgment relied in the case of "Madras Institute of Development Studies"

(supra) is on the same footing as in that case the Hon'ble Supreme Court considered about the participation in recruitment process and candidates after taking part in selection process tried to challenge, in that view of the matter the Hon'ble Supreme Court came to the conclusion about the estoppel. This judgment is not helping the intervener-respondents.

39. This matter was before the Hon'ble Division Bench and the Hon'ble Division Bench considered the resolution dated 24.10.2014 and found that the resolution dated 24.10.2014 was only executive instruction and not any subordinate legislation but on the contention of the petitioners fresh report was sought by the Division Bench pursuant thereto the matter was placed before the Single Bench. The same position is still there and submission of Mr. Anil Kumar Sinha, learned senior counsel for the respondent nos. 5 to 8, 11, 14, 15 and 17 to 22, the matter required to be heard by the Division Bench, is not acceptable as there is no challenge of vires of any Rule in the present writ petition.

40. In view of the cumulative effects of the discussions made above, the Court is of the considered view that the Circular of 2014 is an executive instruction whereas Rules, 2018 are statutory under the proviso to Article 309 of the Constitution of India and in view of well-settled proposition of law in the case of "Ashok Kumar Uppal" (supra) persons who are close to such consideration are required to be considered first. The promotion to the next higher post required to be moved from the feeder post and not taking length of service 58 otherwise the next feeder post promotion will have got no meaning. Accordingly, it is held that the persons who are close to prescribes standard as prescribed in Rule, in view of Rule 9.3 Recruitment Rules, 2018 which prescribes ascertainment of length of service for promotion in the feeder cadre of Circle Inspector and seniority on the basis of merit position of the select list of limited departmental competitive examination. The Rule 9.3 of Recruitment Rules, 2018 prescribes seniority-cum-merit for promotion and importantly Rule 14(ii) provides that seniority list will be prepared on the basis of merit position in the select list of limited departmental competitive examination. Thus in the light of this Rule, the persons who are nearer to the prescribed standard are required to be considered first as 2014 Resolution is executive in nature whereas Rules, 2018 is under proviso of Article 309 of the Constitution of India. Accordingly, it is held that promotion must take place in view of the well-settled proposition of law in the case of "Ashok Kumar Uppal" (supra) and this also mandates in the Rule, 2018 made under the proviso of Article 309 of the Constitution of India. Resolution, 2014 is executive instruction. The executive instruction may supplement but not supplant the statutory rules. State Government is directed to consider the case for promotion of the petitioners in the light of above discussion after ascertaining who are nearer to the prescribed standard under Article 14 and 16 of the Constitution of India pertaining to equity be maintained. The exercise shall be completed within twelve weeks from the date of receipt/production of this order.

41. In view of above discussions, the stay order dated 16.09.2020 is vacated.

The writ petition is allowed and disposed of. Pending I.A., if any, stands disposed of.

(Sanjay Kumar Dwivedi, J.) Jharkhand High Court Ranchi Dated 4th of December, 2020 Satyarthi/N.A.F.R.

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