Punjab-Haryana High Court
Aman Kumar Dawesher And Others vs State Of Punjab And Another on 6 May, 2013
Bench: Surya Kant, Naresh Kumar Sanghi
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.14652 of 2011
Date of Decision : May 06, 2013
Aman Kumar Dawesher and others .....Petitioners
versus
State of Punjab and another .....Respondents
Civil Writ Petition No.16989 of 2011
Balwinder Kaur and others .....Petitioners
versus
State of Punjab and others .....Respondents
Civil Writ Petition No.17539 of 2011
Pritpal Singh and others .....Petitioners
versus
State of Punjab and others .....Respondents
CORAM : HON'BLE MR.JUSTICE SURYA KANT.
HON'BLE MR.JUSTICE NARESH KUMAR SANGHI.
Present : Mr.Anil Kshetarpal, Advocate and
Mr.Rajan Bansal, Advocate, for the petitioners.
Ms.Munisha Gandhi, Additional AG, Punjab.
Mr.Sapan Dhir, Advocate, for the intervenors.
-.-
1. Whether Reporters of Local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
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Surya Kant, J. (oral) This order shall dispose of Civil Writ Petition Nos.14652, 16989 and 17539 of 2011 as common questions of law and facts are involved in these petitions.
For brevity, the facts are being extracted from Civil Writ Petition No.14652 of 2011.
CWP Nos.14652 of 2011 & connected cases [2] The petitioners in this writ petition are directly recruited Assistant Sub Inspectors in Punjab Police. They seek quashing of the Notification dated 27.7.2011 (Annexure P-3) whereby the Punjab Police Rules, 1934 (hereinafter referred to as 'the 1934 Rules') have been amended to the extent that the post of Sub Inspectors can now be filled in by direct recruitment to the extent of 50% of the cadre strength.
The grievance of the petitioners is that (i) the posts of Sub Inspector were promotional posts to which they are entitled to be promoted, hence hence no direct recruitment can be made; (ii) the advertisement issued for the posts of Sub Inspector is contrary to the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 (for short, 'the 1994 Rules') as no minimum or maximum age has been prescribed under these Rules; (iii) the recruitment, if any, is required to be made through Subordinate Service Selection Board and not through Departmental Selection Committee.
As regard to the applicability of 1994 Rules, the Division Bench of this Court on 16.8.2011 passed a self speaking interlocutory order, the relevant part whereof reads as follows:-
"....Mr.Anil Kshetarpal, learned counsel for the petitioners has requested for permitting the petitioners to participate in the selection process meant for direct recruits by giving relaxation in age in accordance with the Punjab Civil Services (General and Common Conditions of Service) Rules, 1994 (for brevity, 'the 1994 Rules'). Mr.Kshetarpal has submitted that according to Rule 5 of the 1994 Rules CWP Nos.14652 of 2011 & connected cases [3] dealing with the maximum age of entry in service, the maximum age prescribed is 37 years whereas in the advertisement issued for recruitment on the post of Sub-Inspector, the age prescribed is 18 to 25 years.
Having heard learned counsel for the parties, we are of the view that once in the advertisement age of 18 to 25 years for direct recruitment to the post of Sub-Inspector has been provided then the provisions of the 1994 Rules would not be applicable because those rules apply only in cases where no age is prescribed either in the advertisement or in the rules governing the service. Therefore, no case for granting provisional permission to participate in the selection process is made out. Moreover, the petitioners have their separate quota of 50% for promotion and they can participate under that quota. Therefore, the prayer made for issuance of interim direction is declined........."
Respectfully concurring with the view expressed by the Division Bench on 16.8.2011, we hold that the 1994 Rules are inapplicable as the recruitment in the present case is governed and regulated by another set of statutory rules known as the Punjab Police Rules, as amended from time to time. It is well settled that once the field is occupied by special rules, the provisions of General Rules cannot be attracted.
CWP Nos.14652 of 2011 & connected cases [4] We find that during the pendency of this writ petition, State of Punjab in exercise of its powers under the Punjab Police Act, 2007 has amended and substituted Rule 12.6 of the Punjab Police Rules, 1934 and the amended Rule reads as follows:-
"12.6 Eligibility conditions for direct appointment to the post of Sub-Inspector:-
No person shall be accepted as an eligible candidate for direct appointment to the post of Sub-Inspector, unless he fulfills the following conditions, namely:-
(a) bears good moral character;
(b) has good physique and active habits;
(c) is between 18 to 25 years of age:
Provided that the Director General of Police may, for the reasons to be recorded in writing, relax the upper age limit under special circumstances; and
(d) must be a graduate from a recognized university or its equivalent and should have passed Punjabi upto matriculation standard..."
Learned counsel for the petitioners submits that since the minimum qualification is graduation and no candidate can obtain graduate degree at the age of 18, therefore, clause 'c' of Rule 12.6 of the 1934 Rules is totally unrealistic. In other words, it is submitted that the minimum age prescribed for the post of Sub Inspector needs to be suitably changed by the Rules Making Authority. On consideration of the submission, we are inclined to agree with the writ petitioners to an extent. We say so for the reason that CWP Nos.14652 of 2011 & connected cases [5] if its is not possible for a candidate to attain graduation at the age of 18 years, the prescription of minimum age limit is indeed unrealistic and so would be the maximum age of 25 years. What should be the minimum or maximum age limits for direct recruitment particularly for a disciplined force like police, is essentially an issue which falls within the domain of executive and it is not expedient for us to suggest the minimum or maximum age in this regard. Suffice it would be for us to observe that the Rules Making Authority may re- consider Clause 'c' of Rule 12.6 of 1934 Rules and carry out necessary changes, if so required.
Similarly, the contention of the petitioners that the recruitment ought to be made by the Punjab Subordinate Service Selection Board, in our considered view, is misconceived. The Selection Board is not the creation under the Constitution. The Board has been set-up in exercise of power of the Rules Making Authority under proviso to Article 309 of the Constitution. That very Authority has notified the Departmental Selection Committee. No fault thus can be found with the conscious decision taken by the Competent Authority in this regard. At best, this issue too has to be considered by the State Government for which we direct it to examine this aspect and take an appropriate decision.
For the reasons afore-stated, we dispose of this writ petition with a direction to the State government to re- consider two aspects mentioned above and take an appropriate decision. If as a result of change in the age limits, petitioners become eligible, needless to say that they shall be considered for recruitment on merits. An appropriate decision in this regard shall be taken within a period of two months CWP Nos.14652 of 2011 & connected cases [6] from the date of receiving a certified copy of this order. Till then, the selection process shall not be finalized.
Dasti.
(SURYA KANT)
JUDGE
May 06, 2013 (NARESH KUMAR SANGHI)
Mohinder JUDGE