Rajasthan High Court - Jaipur
Jai Kumar Bhadu vs State And Ors. on 14 February, 2003
Equivalent citations: RLW2003(4)RAJ2266, 2003(3)WLC311
Author: Prakash Tatia
Bench: Prakash Tatia
JUDGMENT Tatia, J.
1. Heard learned counsel for the parties.
2. All these petitions heard together as they involved common question of law and facts. The petitioners of these writ petitions are in service of the Police Department of the Government of Rajasthan appointed under the provisions of Rajasthan Police Subordinate Service Rules, 1989 (for short "the Rules of 1989'). The dispute is whether they are holding the post of Constable (Civil Police) as provided in the Section 1 of Sub-rule (1) of the Rule 4 of the Rules of 1989 or whether they were holding the post of Constable (Driver). Since, the facts of all the cases are same, therefore, reference of the documents placed in Jai Kumar Bhadu v. State and Ors. (1), will be sufficient for the purpose of deciding these writ petitions.
3. According to the petitioners, advertisement was issued for recruitment for the post of Constable and in pursuance of the advertisement, the petitioners submitted application. Copy of the advertisement is placed on record by the respondents as Annex. R/1 and copy of the application submitted by one of the petitioners Jai Kumar is Annex. R/2. Copy of the appointment order of the petitioner Jai Kumar is at Page No. 69 of the paper book. According to learned counsel for the petitioners, the advertisement for filling the post was for the post of Constable Civil Police, petitioners applied for it and were appointed on the post of Constable Civil Police and they were neither appointed on the post of Constable (Driver) nor such post is provided in the Rules but the respondents are wrongly described as Constable (Driver) and denied the promotion to the post of Head Constable.
4. It will be relevant to go through the relevant Rules of Rajasthan Police Subordinate Service Rules, 1989. The composition and strength of the service in the Rules of 1989 is provided in Rule 4 having four categories or services. It will be relevant to quote the Rule 4 of the Rules of 1989, which is as under :-
"4. Composition and strength of the Service-(l) The service shall consists of four sections, viz- Section - I Armed Police, Civil Police and Intelligence Branch and General Duties Branch of the Tele-communication Directorate. Section-II Mewar Bhil Corps.
Section-III -Directorate Tele-communications, Rajasthan Police.
Section-IV-Rajasthan Armed Constabulary.
The right of promotion shall be confined to each section subject to the provisions contained in the Schedule-I, in Columns 5, 6 & 7. No Member of the service shall ordinarily be transferred from one section to another, even on an equivalent post except in extraordinary circumstances on such conditions as may be decided by the Director General-cum-Inspector General of Police, with the prior approval of the Government. The nature of posts included in each section of the Service shall be as specified in column 2 of the Schedule-I. (2) The strength of posts in each section shall be such as may be determined by government from time to time.
Provided that-
(a) The Government may create any post, permanent or temporary from time to lime, as may be found necessary and may abolish any such posts in the like manner, without thereby entitling any person to any compensation.
(b) The Appointing Authority may leave unfilled or hold in abeyance or allow to lapse any post, permanent or temporary, from time to time, without thereby entitling any person to any compensation."
5. As per Rule 4 there are four sections of the services; Section 1 of the service contains posts of Armed Police, Civil Police and Intelligence Branch and General Duties Branch of the Tele-Communication Directorate. The eligibility is required to be fixed as per the Rule 9 of the Rules of 1989 whereas the age limit is prescribed in the Rule 11 of the Rules of 1989. The Rule 11 of the Rules of 1989 is also relevant, which is required to be quoted, which is as under :-
"11. Age- A candidate for direct recruitment to the services must have attained
(a) for the post of Sub-Inspector/Platoon Commander, the age of 20 years and must not have attained the age of 23 years, on 1st January next following the last date fixed for receipt of applications.
(b) for the post of Constables, the age of 18 years and must not have attained the age of 21 years on 1st day of January next following the last date fixed for receipt of applications. However, the upper age-limit for Constable (Driver) shall be 24 years."
6. It is submitted by learned counsel for the petitioners that as per Rule 4 read with Rule 26 of the Rules of 1989, it is clear that the persons enumerated in Column 5 of Section I, II and IV of the Schedule-I holding substantive rank, shall be eligible in the case of Constable on District/Unit basis. According to learned counsel for the petitioners, a Constable can be promoted to the post of Head Constable as provided under the Rules of 1989 as clear from the Schedule-I appended to the Rules of 1989. It is submitted that no cadre or post of Constable (Driver) is available in the Rules of 1989. There is no post available in the Rules of Constable (MT) or Head Constable (MT). According to learned counsel for the petitioners, the post or cadre cannot be created by administrative order for which learned counsel for the petitioners relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Jawahar Lal Sazawal and Ors. v. State of J & K and Ors. (2). It is also submitted that even no such order creating any post or cadre of Constable (Driver) was issued by either the Inspector General of Police or by the State Government.
7. The age limit prescribed for the recruitment on the post of Constable is given in Sub-clause (b) of the Rule 11 of the Rules of 1989 and the minimum age prescribed is 18 years and the upper age limit is of 21 years on the first day of January next following the last date fixed for receipt of applications. However, the upper age-limit for Constable (Driver) is 24 years. According to learned counsel for the petitioners, a candidate possessing additional qualification of driving vehicle can be given appointment till he attains the age of 24 years. The relaxation of age limit given in Sub-clause (b) of the Rule 11 of the Rules is wrongly interpreted by the respondents by treating Constable (Driver) as a separate post. According to the learned counsel for the petitioners, though petitioners were initially appointed Constables in the Armed Police by the appointment order (placed by the respondents at page No. 69 of the paper book), but their services were transferred from the Armed Police to Civil Police by order dated 12th Dec., 1992 (Annex. 1). It is also submitted that seniority lists were issued for the Constable Civil Police and the petitioners' names were very much there in the seniority list of Constable (CP). In support of this, the petitioners placed on record the copy of the seniority list, which was existing on 1st April, 1999. Even the petitioners were given permission to appear in the qualifying examinations for promotional post of Head Constable vide orders dated 1.1.1998 (Annex. 4), 22.6.1998 (Annex. 5) and 20.11.1999 (Annex. 6). Before qualifying exams could take place, a list was published containing the names of eligible candidates in which petitioners' name were not included, therefore, one of the petitioners protested vide his letter dated 27.12.1999 (Annex. 7) and requested that his name be included in the said list of eligible candidate, who can appear for qualifying examination for the post of Head Constable. The petitioner in the writ petition submitted that though he was, in the year 1999, attached to the MT section of Police Lines, Ganganagar (Driver) (Annex. 8) but it cannot change petitioner's designation of Constable (CP) to Constable (Driver). According to learned counsel for the petitioners, petitioners are holding the post of Constable (CP) and they were wrongly denied the opportunity to take qualifying examination for promotion to the post of Head Constable (CP). Therefore, the respondents be directed to invite the petitioners to take qualifying examination for the post of Head Constable Civil Police and be given appointment as per their merits qua who have been promoted by the examination held on 26th Dec., 1999.
8. Learned counsel for the respondents vehemently submits that the writ petitions of the petitioners deserve to be dismissed only on the ground of non-joinder of necessary parties. The petitioners filed the writ petitions after the qualifying examination took place and, thereafter, the selected candidates have been appointed. The petitioners did not choose to obtain stay order against this order nor they impleaded the selected candidates as party-respondents in the present writ petitions and, in view of the judgment of the Hon'ble Apex Court delivered in the case of Prabodh Verma and Ors. v. State of U.P. and Ors. (3), the writ petitions of the petitioners deserve to be dismissed. It is also submitted that the present writ petitions deserve to be dismissed as several disputed questions of fact are involved in these writ petitions. According to learned counsel for the respondents, the petitioners are claiming that they were appointed on the post of Constable Civil Police whereas this fact has been denied by the respondents and, according to learned counsel for the respondents, the petitioners were appointed on the post of Constable (Driver).
9. Learned counsel for the respondents also opposed the writ petitions of the petitioners on merits by saying that it is clear from the application forms of the petitioners themselves that they were over-aged so far as the post of Constable Civil Police is concerned in view of the Sub-Clause (b) of the Rule 11 of the Rules of 1989 as they were of the age of more than 21 years. The petitioners got their appointment, only as it was permissible for the post of Constable (Driver) in the Rules of 1989. The age limit for the post of Constable (Driver) is 24 years, therefore, the petitioners cannot say that they were appointed on the post of Constable Civil Police or any other post except the post of Constable (Driver).
10. So far as composition and strength of the service as provided in Rule 4 of the Rules of 1989 is concerned, it has not been disputed by learned counsel for the respondents and could have been disputed in view of the clear provisions in the Rules of 1989. Learned counsel for the respondents also fairly conceded that except in Sub-clause (b) of the Rule 11, there is no mention of the post of Constable (Driver) in the entire Rules of 1989. It is also conceded that in Schedule-1 appended to the Rules of 1989 also, there is no mention of the post of Constable (Driver). It is also not disputed that there is no other rule which governs the services of the petitioners and provides any contingency in which it is provided that there can be an appointment to the post of Constable (Driver) having any channel of promotion to the post of Head Constable (MT). The thrust of the argument of learned counsel for the respondents is that if they were not appointed on the post of Constable (Driver), their appointment itself is illegal as, admittedly, they were over-aged on the date when they applied for the post and they could have been given appointment on the post of Constable (Driver) looking to their age. It is also submitted that in the appointment order of any of the petitioners, it is nowhere mentioned that they have been appointed on the post of Constable Civil Police and it is the duty of the petitioners to prove their case by their own evidence but they failed to prove that they were appointed on the post of Constable Civil Police.
11. First of all it is to be seen whether the writ petitions of the petitioners in absence of the necessary party can be entertained or not. The petitioners preferred the present writ petitions on 8th Jan., 2000 and the qualifying examinations took place on 21st Dec., 1999. The writ petitions were filed by the petitioners within 15 days of holding of the qualifying examination, naturally before the appointments were given to any of the selected candidates. The petitioners also prayed for the interim relief by filing applications along with the writ petitions. This Court issued notices on 17th Jan., 2000 itself by passing order which is as under :-
"Heard the learned counsel and perused the petition.
Issue notice to the respondents to show cause why the petition should not be admitted and interim relief as prayed for be not granted, returnable in two weeks. Notices be given 'dasti' if so desired by learned counsel for the petitioner."
12. It appears from the above order that this Court, instead of admitting the writ petitions, issued notices why the writ petitions should not be admitted and interim relief as prayed for be not granted. The reply to the writ petition was filed by the respondents on 22nd Dec., 2000 almost after nearabout one year. The petitioners submitted rejoinder on 2nd Jan., 2001 and submitted supplementary rejoinder on 6th April, 2001 and, with the consent of both the parties, the matter is being heard for final disposal and is being decided today itself. In the judgment of Prabodh Verma and Ors. v. State of U.P. and Ors. (cited supra), the Hon'ble Apex Court in a matter where, the writ petition was filed against the State, questioning validity of recruitment of a large number of persons in service, held that the High Court cannot proceed to hear the parties and take a decision adverse to those affected persons without getting them or their representatives impleaded as parties. The Hon'ble Apex Court also observed that if their number is too large to join them as respondents individually and if the petitioners refuse to join them, the High Court ought to have dismissed the petition for non-joinder of necessary parties. Against this, learned counsel for the petitioners relied upon a recent judgment of the Hon'ble Supreme Court delivered in the case of Satish Rawat v. Union of India (4), wherein Hon'ble Apex Court, while considering the case of relief of replacement of properly selected candidate by another candidate pursuant to a judicial order, granted relief without disturbing appointment of already appointed candidates and directed the Department to create a supernumerary post and absorb, when a regular vacancy arises. According to learned counsel for the petitioners, since the matter was pending before this Court before any appointment was given, therefore, when the State was fully aware that the list is pending even for grant of interim relief, as ordered by this Court in its order dated 17th Jan., 2000, the State should not have given appointment to the other candidates, the State, after taking almost about one year for filing reply, cannot say that benefit of this delay be given to the State by denying legitimate claim of the petitioners. Even if appointments already given cannot be disturbed even then relief can be granted to the petitioners by creating supernumerary posts without monetory benefit for the petitioners in view of the decision of the Supreme Court given in the case of Satis Rawat's case (supra).
13. It is true that if the petitioners seek relief for quashing the other persons' appointments, then persons likely to be affected by the order are necessary parties in the writ petitions. But whether it will be just and proper and equitable to deny the relief to the petitioners, who approached the Court immediately for getting the relief and proved that injustice is done to them and the delay in the Court was caused by the respondent-State. Here in this case, the equity favours the petitioners in view of the judgment of the Hon'ble Apex Court delivered in the case of Satish Rawat v. Union of India (supra). Justice, if can be done to all the parties by moulding the relief instead of doing injustice by refusing the relief, then the Court should lean in favour of moulding the relief and do justice instead of denying the relief on technical grounds. Therefore, these writ petitions required to be examined on merits also and if the petitioners are able to make out a case for grant of relief in full or in part or justice can be done by moulding relief, then it has to be seen what relief can be granted to the petitioners in the light of the judgment of the Hon'ble Supreme Court delivered in the case of Satish Rawat's case.
14. So far as the contention of learned counsel for the respondents that the writ petitions involve several disputed questions of fact, it is devoid of any force in view of the fact that the entire claim of the petitioners is based on the documentary evidence, which is available on the record rather the documents were placed on record by the respondents themselves. It is settled law that when documents are clear in term and unambiguous them no oral evidence can be looked into contrary to what has been written in the documents, therefore, what was the post for the petitioners is to be seen from the order of appointment, which was issued in pursuance of the advertisement, which was also issued by the respondents. Therefore, there is no force in the preliminary objection raised by learned counsel for the respondents on this count also.
15. There appears to be no dispute with respect to the strength of service as provided in Rule 4 of the Rules of 1989 and there is no dispute with respect to having four sections of the service. From bare perusal of the notification dated 6th April, 1990, it is clear that vacancies were determined for the post of Rajasthan Armed Constabulary, which is cadre in the Section 4 of the Rules of 1989. The petitioners applied for the post of Constable is clearly proved from Annex. R/2 placed on record by the respondents themselves. Copy of the minutes of the Selection Board from 4th May, 1999 to 5th May, 1999 reveals that the committee considered the case of appointment of the Constable by clearly mentioning it as such on the top of the minutes for selection of constable (page No. 67 of the paper book) wherein name of the petitioner Jai Kumar is there. The copy of the appointment order, which is placed on record (Page No. 69 of the paper book), also says that the Board was constituted under the Rules of 1989 and the persons named in the above order were appointed on the post of Constable Armed Police in the pay scale of Rs. 825-15-900-20-1200-150 with initial pay of Rs. 855/-per month along with other allowances. These admitted documents unambiguously proved that the petitioners were initially appointed on the post of Constable Armed Police.
16. The services of the petitioners were transferred to the Civil Police by order dated 24th Dec., 1992. The issuance of the seniority list, showing the names of the petitioners in the seniority list of the Constable Civil Police, is not in dispute except, respondents submitted that this was a mistake committed by the respondents. The plea taken by the respondents in the reply is not supported by any evidence' or reason in view of the documentary evidence placed on record by the respondents themselves showing that the petitioners were appointed on the post of Constable only. Therefore, it is clearly proved that the petitioners were appointed on the post of Constable Armed Force, their services were transferred to Constable Civil Police and they were not appointed on the post of Constable (Driver).
17. The contention of learned counsel for the respondents that the petitioners were appointed on the post of Constable (Driver) on the basis of the plea that as per Sub-clause (b) of the Rule 11 of the Rules of 1989 a candidate having more than 21 years can be given appointment on the post of Constable (Driver) only and the petitioners were of the age of more than 21 years and annexed their driving licence with the application submitted by them, is devoid of any force. The appointment to the post can be given, which is available in the Rules only. It is clear from the entire Rules of 1989 that there is no post available having the designation "Constable (Driver)" in the Rules of 1989. It is also clear that the post of Constable (Driver) was never advertised nor the petitioners applied for that post. The Sub-rule (b) of the Rule 11 is not a rule creating a post but it prescribes lower and upper age limit with certain relaxation, which includes age relaxation for the candidates for the post of Constable, who are possessing the experience of driving and their upper age limit was fixed as 24 years. The harmonious construction of this Rule can only be to the effect that a candidate for the post of Constable having special qualification of driver, is eligible for the appointment to the post of Constable till he attains the age of 24 years.
18. It is worthwhile to mention here that in the application form, which is required to be submitted for getting recruitment on the post of Constable, there is a column at S.No. 10, which provides that the candidate, who is possessing any special qualification, he may mention in this column. The special qualification were given as:-
(i) Driver
(ii) Electrician
(iii) Fitter
(iv) Mechanic
(v) Band
19. Learned counsel for the respondents fairly conceded that there is no post like Constable Electrician, Constable Fitter, Constable Mechanic or Constable Bend, but submitted that because the petitioners in their application form, mentioned that they are possessing the special qualification of driver and enclosing the driving licence, therefore, they will be deemed to have applied for the post of Constable (Driver) and got the benefit of age limit. The argument of learned counsel for the respondents is devoid of any force. It simply because of discloser of special qualification in the application form, a candidate having driving experience, he can be appointed on the post of Constable (Driver), without there being any such post in Rule 4, 26 and in the Schedule appended to the Rules of 1989, then there was no reason for not having a different post or cadre like Constable Driver, Constable Electrician, Constable Fitter, Constable Mechanic and Constable Bend with only distinction that post, Constable (Driver), will have upper age limit of 24 years and rest Constable (Fitter), Constable (Mechanic), Constable (Bend) and Constable (Electrician) will not have such age relaxation, which is given to the post of Constable (Driver). No reason has been shown why, out of five, one was picked up excluding all others. The plea taken by the respondents to treat the petitioners as Constable (Driver) and not eligible for consideration for promotion to the post of Head Constable is liable to be rejected.
20. Learned counsel for the respondents submits that the petitioners were paid special allowances and special allowance for driving the vehicle by various orders, which are placed on record. These documents cannot have any effect on the nature of the appointment of the petitioners particularly in view of the fact that neither the post of Constable (Driver) is available in the Rules nor it was advertised, nor the petitioners applied for it and nor the appointment was given on the post rather the petitioners were given appointment on the post of Constable. Their services were transferred to the Civil Police and they were treated as Constable Civil Police. Their names were shown in the seniority list. It is nobody's case that the petitioners' designation was changed to Constable (Driver), therefore, if the special allowance was given to the petitioners, then that special allowance may be due to their nature of works, which were performed by the petitioners as assigned by the employer, therefore, these documents do not help the respondents.
21. In the light of the above discussion, it is clear that if the petitioners will be treated as Constable (Driver), then they will not have any opportunity to get the promotion, as per provisions contained in the Schedule appended to the Rules, only post available to the Constable for promotion is the Head Constable. There is no post of Head Constable (MT) in the Rules or in the Schedule appended to the Rules of 1989. The standing order, copy of which is placed on record as Annex. R/3 also provides no provision for creating a post or cadre having the designation of Constable (Driver). In the said standing order also the reference of the Constable (Driver) is only at Clause (b) of Item No. 11, which is the age eligibility criteria for the recruitment" and not creation of post or cadre or strength in the name of Constable (Driver). In view of the decision of the Hon'ble Supreme Court delivered in the case of Jawahar Lal Sazawal and Ors. v. State of J & K and Ors. (supra), a post or cadre cannot be created by the administrative order and here in this case, even no administrative order has been placed by the respondents to show that any post of Constable (Driver) has been created. Mere giving a different names of designation in certain office orders or in certain office documents and such changed designations are not available in the Rules, it cannot make the person holding that post, which is not provided in the Rules, but he is deemed to hold the post on which he was appointed.
22. Therefore, it is clear from the above discussion that the petitioners can only have promotion in accordance with the Rules applicable to the petitioners, namely, the Rules of 1989. If the writ petition of the petitioners are dismissed because of non-joinder of the parties then the petitioners will suffer irreparable injury and will be deprived of their chance of promotion.
23. Since, the petitioners have not challenged the appointment of any of the selected candidates and have not impleaded any of the selected candidates in the writ petition, therefore, their appointments cannot be quashed and cancelled. In the facts of this case, the decision of the Hon'ble Supreme Court delivered in the case of Satis Rawat's case (supra) has full application and without disturbing the appointment given to the candidates in the process of selection by conducting qualifying examination on 28th Dec., 1999.
24. The writ petitions of the petitioners are partly allowed. The respondents are directed to hold the qualifying examination for the post of Head Constable for the petitioners and if the petitioners are found fit and suitable for the said post in accordance with the Rules, then they may be offered appointment on the said post from the date when any vacancy occurred after 28th Dec., 1999. The respondents are also directed to conduct the qualifying examination within a period of three months from today and complete the process of consideration of the petitioners for the post of Head Constable (CP) within a period of three months thereafter and, if the petitioners are found suitable for the post of Head Constable (CP), the same be offered to them. No order as to costs.