Punjab-Haryana High Court
Sub-Major, J. S. Randhawa vs Union Of India And Others on 12 July, 2000
Author: K.S. Garewal
Bench: K.S. Garewal
ORDER Jawahar Lal Gupta, J.
1. The petitioner complaints that his claim for promotion was illegally rejected when the persons junior to him, viz. respondents Nos. 3 to 9, were promoted from the Post of Subedar Major to that of Assistant Commandant (General Duty).
2. A few facts, as relevant for the decision of this case, may be briefly noticed.
3. The petitioner joined the Indo Tibetan Border Police Force in the ranks. On July 15, 1985 he was promoted as an Inspector. On January 8, 1996 he still further promoted to the rank of Subedar Major. While working as such he was deputed to undergo Senior Subedars Refresher Course. He attended this course from January 8, 1996 to March 25, 1996.
4. On August 25, 1997 the petitioner was deputed as a member of the United Nations Peace Mission in Angola. He remained there till October 3, 1998. While the petitioner was away, the respondent-authorities considered the claims of various persons for promotion to the rank of Assistant Commandant (General Duty). Respondents Nos. 3 and 4 were promoted vide orders dated February 6, 1998 and March 11, 1998. The petitioner's grievance is that despite his being fully qualified and his record of service being good, he was wrongly overlooked. On these premises the petitioner prays that the respondent-authorities be directed to consider his name for promotion to the rank of Assistant Commandant with effect from the date the person immediately junior to him was promoted.
5. The respondents contest the petitioner's claim on the ground that he had failed to successfully pass the Subedars' Refreseher Course, which he had attended from January 8, 1996 to March 25, 1996. This assertion on behalf of the respondents is based on the fact that in the interview, which carried 50 marks, the petitioner had secured only 18 marks. It was less than the qualifying score of 45 per cent. On this basis it is contended that the petitioner was not eligible to be promoted.
6. Learned counsel for the parties have been heard.
7. Mr. Ram Kumar Malik, learned counsel for the petitioner, has produced before us the final result sheet of the training course attended by the petitioner. Since the factual position, as depicted in this sheet, is not disputed by the respondents, it is taken on record as Mark 'A'. A perusal of this sheet indicates that the petitioner's name appears at Sr. No. 10. His score in the written examination was 140.5 out of 240. Thus, he had secured 58.33 per cent marks. In the practical examination his score was 133 out of 260, viz. 51.15 per cent. The practical examination consisted of Combat Proficiency, Project/Assignment, Group Discussion and Interview. The total marks secured by the petitioner were 273.5 out of 500, viz. 54.7 per cent. Despite this score, the respondents contend that the petitioner has not qualified the course successfully, as contemplated under Rule 105 of the Central Reserve Police Force Rules, 1995. Is it so ?
8. The relevant provision reads as under :-
"105(4). The posts of Company Commander or Quarter Master in Battalions other than Signals Battalion or Assistant Principal, Central Training College shall be filled :
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(a) by promotion of Subedars with minimum service of 3 years in that rank in the Force, who have successfully completed the Senior Subedars' Refresher Course, Central Reserve Police Force, and ........"
9. A perusal of the above provision shows that a person is eligible for promotion when he has successfully completed the Senior Subedars' Refresher Course. The rule does not in terms lay down the requisite percentage of mark which a candidate has to secure. Learned counsel for the respondents has also not been able to refer to any other statutory rule, which may lay down the requisite percentage. There is, thus, a hiatus in the rules. This gap has been filled up by an executive order. A copy of this order issued by the Director General of the Force, has been produced as Annexure P2 with the writ petition. The relevant portion of this order reads as under :-
"It is hereby clarified that vide DTE GENL order dt. 14-3-96 a total 45% marks are required for written practical test as well as the aggregate. This 45% includes also the marks obtained in Interview. Getting less marks and failing in Interview has no meaning at all because passing any interview has been done away in the All India Services exams. The marks obtained in interview is added to the total marks for IAS and IPS and other service examinations of the UPSC. So there is no minimum qualifying marks for the interview. I had already passed orders on the file on 15-2-1996 that the passmarks will be 45%. So if a person has obtained 45% he is declared as passed."
10. On a perusal of the above it is clear that a candidate has to secure 45 per cent marks in the written examination, in the practical test and also in the aggregate. It has been further stated that "getting less marks and failing in Interview has been done away .... The marks obtained in interview is added to the total marks .......... So there is no minimum qualifying marks for the interview." In this situation, it is clear that a candidate has to secure 45 per cent marks in the written, practical and aggregate. These is no requirement of securing 45 per cent marks in the interview. Still further, a perusal of the result sheet clearly indicates that interview is a part of the practical examination.
11. Despite being asked, Mr. Surinder Singh, learned counsel for the respondents, has not been able to refer to any provision in the rules or instructions, which may show that a candidate attending Senior Subedars' Refresher Course is required to secure 45 per cent marks in the interview as a condition precedent for qualifying the examination. He has, however, contended that the order at Annexure P2 is not statutory and, thus, the petitioner cannot take advantage thereof.
12. We have considered the provisions of the Central Reserve Police Force Rules, 1955. It is the admitted position that the members of the Indo Tibetan Border Police Force are governed by the provisions of these rules, Rules 4, inter alia, empowers the Central Government and the Director General to issue directions. In fact, the Director General has the power to even authorise the Additional Director General or the Inspector General to issue directions. It is, thus, clear that the Central Government and the Director General can issue instructions to fill up the gaps in the rules. It is not even contended before us that the Central Government has issued any instructions regarding the conditions for passing the Course. In this situation, it is clear that the Director General was competent to issue the instructions and that he has actually done so by letter dated March 26, 1996, from which the extract has been quoted above. In the absence of any instructions to the contrary by the Central Government, the respondents were bound to declare the petitioner's result in conformity with the decision taken by the Director General. In view of the facts and circumstances of this case, we are satisfied that the respondents had failed to do so.
13. There is another aspect of the matter. On a perusal of the result sheet we find that a candidate, who had secured 278 marks out of 500 has been declared to have failed, while another, whose score was 276, has been shown to have passed. This has happended because the candidate whose score was 278 had been given 20 out of 50 marks in the interview. As against this, the other candidate, whose score was lesser, had been given 25 marks in the interview. It appears that as a result of imposition of the condition of securing 45 per cent marks in the interview iniquitous results have followed. In any event, such a course of action is strictly not in conformity with the rules and the instructions issued by the Director General. If on consideration of the matter the competent authority had issued instructions regarding the requirement of securing a certain percentage of marks in the interview also, the matter may have been different. As at present, learned counsel for the respondents has not been able to refer to any order by the competent authority, from which it may be inferred that it was necessary for the candidates to secure 45 per cent marks in the interview. Thus, the action of the respondents in declaring the petitioner as having failed to qualify the Course, cannot be sustained. Resultantly, the solitary ground on which the petitioner was rejected at the time of consideration of his claim for promotion cannot be upheld. It follows that there was no proper consideration of the petitioner's claim.
14. No other point has been raised.
15. In view of the above, the writ petition is allowed. The respondents are directed to consider the petitioner's claim for promotion to the post of Assistant Commandant (General Duty) with effect from February 6, 1998. The needful shall be done within two months from the receipt of the certified copy of this order. On the petitioner's promotion, he would be entitled to all the consequential benefits regarding fixation of pay and arrears of salary etc. In the circumstances of the case, we make no order as to costs.
16. Petition allowed.