Rajasthan High Court - Jaipur
Satya Narain And Ors vs State Of Raj And Ors on 1 March, 2011
Author: Ajay Rastogi
Bench: Ajay Rastogi
In the High Court of Judicature for Rajasthan
Jaipur Bench
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1- Civil Writ Petition No.9759/2009
Ram singh & Ors Versus State & Ors
2-Civil Writ Petition No.9785/2009
Satya Narain & Ors Versus State & Ors.
Date of Order : 01/03/2011
Hon'ble Mr. Justice Ajay Rastogi
Mr. RA Katta, & Mr. RK Paliwal, for petitioners
Mr. Ganesh Meena, Govt. Counsel, for respondent-State Mr. BS Rajawat, for respondents-department Mr. SN Meena, for private respondents-5 to 9 Matter has come up on application filed by respondents U/Art. 226(3) of the Constitution of India seeking vacation of interim orders passed on 12/08/2009, whereby operation of order dt.27/07/2009 was stayed. However, looking to the controversy raised, at joint request, matter has been finally heard at admission stage.
Joint petitions have been filed by petitioners who are substantively holding post of Constable and after vacancies being determined under Rajasthan Police Subordinate Service Rules, 1989 ("Rules, 1989") for the year 2008-09, they had participated in process of selection initiated by respondents for promotion to the post of Head Constable. Eligible candidates equal to five times of number of vacancies determined were called in order of seniority from the feeder cadre post of Constable in the process of selection as provided under Part-V of Rules, 1989.
Under Scheme of Rules, 1989, candidate has to first qualify in written examination & thereafter, in outdoor test & interview and those having finally qualified at all three stages provided in Part-V of Rules, 1989, in the order of seniority against number of vacancies determined are being sent for promotional cadre course ("PCC") and after qualifying PCC, in the order of seniority are being considered for promotion to the post of Head Constable in terms of R.31 of Rules, 1989.
In instant case, it is not in dispute that all the petitioners have participated in complete process held by respondents for promotion to the post of Head Constable and qualified at all three stages, written examination, outdoor test & interview besides promotional cadre course, which makes an incumbent eligible for consideration of promotion to the post of Head Constable obviously in order of seniority against number of vacancies determined, in terms of R.31 of Rules, 1989.
Dispute arose at the stage when respondents in final select list against number of vacancies determined, have replaced names of petitioners qua private respondents herein on the premise that they were members of reserved category of SC/ST but are higher in seniority in the feeder cadre/post of Constable vide order dt.27/07/2009 impugned herein taking note of R.31, which contemplates that order of seniority among candidates who on having finally qualified at all stages are to be considered for promotion. At this stage, these petitions were filed.
Vide order dt.12/08/2009, this Court stayed operation of order dt.27/07/2009 impugned herein, as a result whereof, pursuant to process of selection under which order of promotion was required to be issued by respondents, was held up.
Main thrust of contentions raised by Counsel for petitioners is that there was no mis-representation ever made by them and the vacancies were not reserved for SC/ST category determined for the year 2008-09 are to be filled up from general category; as such private respondents who might be senior to the petitioners in the cadre of constable but they being members of reserved category of SC/ ST, still could not be considered over rights of petitioners against unreserved vacancies of Head Constable.
Counsel further submits that once petitioners have completed the process of selection as laid down under Scheme of Rules, 1989, certain rights have been conferred, which could not be divested without affording opportunity of hearing, denial whereof is in violation of principles of natural justice.
Counsel further submits that the impugned action was taken by respondents on the basis of circular dt.20/10/2000 (Ann.R/1) - according to which, if vacancies reserved for SC/ST category are not filled up, it should not be de-reserved and for unreserved posts all candidates whether they belong to general or reserved category, have equal right of participation in the process of selection, which itself, has been withdrawn by the State, in absence whereof, the very foundation on the basis of which, the Government took decision while passing the order impugned is legally not sustainable.
Counsel lastly submits that atleast in terms of U.O. note quoted in rejoinder dt. 24/01/2011 to the reply filed by respondents-5 to 9, petitioners atleast can be considered pursuant to select list finalized in process of selection impugned herein for the post of Head Constable, against future & unfilled vacancies of the year 2008-09 - reference whereof has been made therein to consider whenever promotions are made in future.
Reply has been filed by respondents-State & private respondents, as well in both the petitions. It has been inter-alia averred that candidates are initially called ten times to the number of vacancies determined for the post of Head Constable in terms of proviso occurring below explanation to R.26 under Part-V of Rules, 1989 and those having finally qualified in written examination, outdoor test & interview, besides promotion cadre course are to be promoted in terms of R.31 of Rules, 1989 strictly in order of seniority; and in instant case, candidates having been left out at one stage are members of reserved category of SC/ST and are indisputably higher in seniority in the feeder post of Constable qua the petitioners; as such they could not have been deprived of their consideration for promotion upon qualifying in requisite test & the process of selection under Scheme of Rules, 1989 only on the premise that they are members of reserved category.
It has also been alleged that before order of promotion could be issued on the basis of final select list among those having qualified in PCC, it was brought to the notice of the authority and it revealed that those who are senior to the petitioners in feeder cadre of Constable were left out on the premise that they are members of reserved category of SC/ST; while they despite being eligible & participated in selection process against number of vacancies determined and their names were included in the list of qualified candidates; when were not sent for PCC, such affected persons made representation and it was examined by the authority with whom powers are vested U/r 33 of Rules, 1989 and after examining their representations , the authority came to the conclusion that an apparent error has been committed in determination of candidature of those being senior in the feeder cadre are left out and their names were included in final select list, by replacing such persons who were junior in the feeder cadre in terms of Scheme of Rules, 1989 vide order impugned.
Government Counsel submits that circular dt.20/10/2000, reference whereof has been made by Counsel for petitioners only contemplates that reserved post can be filled in by way of promotion from among members of the SC/ST only and not from general category candidates, meaning thereby, members of SC/ST can be considered against general category vacancies according to their seniority; but reserved vacancies could not be filled in by members of general category, which is settled principle of law in regard to reservation policy; inasmuch as if members of SC/ST being higher in seniority, certainly be considered against un-reserved vacancies; while in instant case, if members of SC/ST despite being senior in the feeder cadre have been left out, and deprived from consideration for promotion to the post of Head Constable, only on the premise that they being members of SC/ST could not have a march over general category candidates despite being higher in seniority qua petitioners in feeder cadre post of constable.
Statement of final result of examination for promotion to the rank of Head Constable in respect of 2nd & 5th Battalion, Kota/Jaipur has been placed for perusal which discloses that those having been left out are higher in seniority in feeder cadre and secured higher marks qua petitioners have qualified the process of selection provided under part V of Rules, 1989.
Government Counsel submits that in absence of order of promotion being passed in favour of petitioners, no right could be conferred merely on the premise of having undergone process of selection impugned; and that apart, when the facts having come on record make factual position implicitly clear as regards inter se seniority of petitioners qua private respondents who have replaced them vide order impugned, opportunity of hearing would be nothing but an empty formality.
This Court has considered rival contentions advanced at the bar and with their assistance, examined material on record. Facts having come on record (supra) are not in dispute that those having been replaced in select list finalized by respondents vide order impugned, whose names are specified therein, are indisputably higher in seniority in feeder cadre/post of Constable respectively in 2nd/5th RAC battalions at Kota/Jaipur; and that apart, they have undergone process of selection impugned as provided under Part V of the Scheme of Rules, 1989. But, those who have replaced the petitioners could not have been sent for promotion cadre course, are left out at that stage on the premise that they are members of reserved category of SC/ST and the vacancies unreserved could be filled by candidates of general category irrespective of their seniority qua those who have replaced petitioners who are senior in the feeder cadre vide order impugned.
But, ultimate fact remains that when those being higher in seniority and having qualified all stages in the process of selection could still be deprived from consideration on the premise that they could not be considered for promotion against unreserved vacancies. In the opinion of this Court, once under Scheme of Rules, 1989, after candidates having participated in process of selection as provided under Part-V, finally promotions are to be made as per approved list prepared in order of seniority in terms of R.31 and those being higher in seniority in feeder cadre & qualified in the process of selection, certainly they have first right of consideration for promotion to higher post against unreserved vacancies and members of SC /ST, if senior in the feeder cadre, are equally eligible to be considered for promotion against unreserved vacancies determined for the year 2008-09 and the petitioners could not have marched over them only on the premises that the vacancies are unreserved and to be filled by general category irrespective of their seniority in the feeder cadre; and this Court finds no error in the decision making process being adopted by respondents under Scheme of Rules, 1989.
Submission made on behalf of petitioners that no misrepresentation being made and once they having undergone complete process of selection and qualified therein, a right is conferred which could not have been divested without affording an opportunity of hearing, is wholly without substance for the reason that merely because they have participated in process of selection impugned, will not confer any indefeasible right and however once the root cause remains undisputed that they do not stand higher in seniority qua private respondents, and could not be considered for promotion prior thereto even if having qualified in process of selection impugned, in terms of R.31 of Rules, 1989 in view of indisputable facts having come on record, affording of opportunity of hearing would be an empty formality and is not going to serve any purpose.
As regards submission made by Counsel for petitioners with respect to circular dt. 20/10/2000, suffice it to say that circular has to be in conformity with Scheme of Rules, 1989 and what has been clarified in Circular by the authority is only a guiding factor for the competent authorities that if members of SC/ST are higher in seniority, they have a right of consideration for promotion against unreserved vacancies, as well and however, in case of vacancies being reserved, the same would not be de-reserved for being filled in from among general category. That apart, this is otherwise a law settled by this Court, as having been taken note of under Scheme of Rules, 1989.
What has been lastly urged by Counsel for petitioners as an alternate relief that they may be considered against future & unfilled vacancies in the light of U.O. note, quoted in rejoinder to the reply of private respondents (supra), suffice it to say that if the petitioners do not fall within zone of consideration for promotion against the number of vacancies determined for the year 2008-09, certainly they have no right to be considered for promotion; but in regard to future vacancies if arise or having remained unfilled for the year 2008-09, it is always open for the respondents to consider candidature of petitioners for promotion, but that would obviously be in terms of the Scheme of Rules, 1989. This Court finds no justification to interfere in the orders impugned herein.
Consequently, writ petitions fail and are hereby dismissed. No costs.
(Ajay Rastogi), J.
K.Khatri/p11/ 9759CW2009Mar1(2)Ds.do