High Court of Punjab and Haryana, Chandigarh
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CONST.HARSH PAL v. STATE OF PUNJAB & Ors. - CWP-11734-2004  RD-P&H 179 (7 October 2005)
Const.Harsh Pal v. State of Punjab and others.
Present: Mr. G.S.Bal, Advocate, for the petitioner.
Mr. Ashok Aggarwal, Addl. A.G.Punjab, for the State.
This judgment would dispose of CWP Nos.11734,12062, 13297 and 13668 of 2004, as the common questions of law have been raised for the relief claimed individually. There may be somewhat variation in the facts relating to the dates of appointment and confirmation etc. but the relief claimed is common. The facts are being taken from CWP No.11734 of 2004.
The petitioner joined as constable on February 1, 1992 in Police Force. Upon completion of his training/course, joined the service in March 1993. After four months, he had been sent to undergo Commando course. Upon completion of the course he remained posted as Commando Reserved for over 1-1/2 years. He had rendered unblemished service and resultantly had earned commendation certificates from time to time. He CWP No.11734 of 2004 2
had also taken active part in the encounters, raids and dealing with terrorist activities during the year 1994-95. He had been recommended for out of turn promotion as Head Constable but the same did not mature for the unknown reasons. However, for act of bravery committed by the petitioner on January 25, 2000, i.e. 11 passengers had been saved from the canal on account of the bus having fallen in the canal. For the aforestated act , the Deputy Inspector General of Police, Ludhiana Range, Ludhiana, approved the name of the petitioner for admission/promotion to List-CII (exemptees).
As per Punjab Police Rules, specifically rule 13.8, a Constable earns birth in List-CI only after he qualifies Lower School Course from Punjab Police Academy, Phillaur. However, earlier 10% quota had been prescribed for granting out of turn promotion to list C-II by terming them as "exemptees". Subsequently, this quota has been raised to 15%.
The act of removal from List-CII is governed under rule 13.8- A, wherein it is categorically provided that if such person has suffered major punishment, it shall be a bar to admission to or retention in List A,B, and C. Such disqualification can be waived for the special reasons to be recorded by the Superintendent of Police in each case and subject to confirmation thereof by the Deputy Inspector General of Police. In case of CWP No.11734 of 2004 3
censure or confinement to quarters or on expiry of the period of reduction in the case of reduction for a specified period, a constable may be re- admitted in the list at the discretion of the Superintendent of Police if the person concerned maintains good conduct for a period of six months after such removal.
The petitioner to his surprise received a communication dated 28.6.2004, vide which he had been ordered to be removed from List-CII (exemptees). This order had been communicated to the petitioner vide communication dated July 17, 2004, copy Annexure P3. This has been made the subject matter of challenge in the present petition on the specific ground that the petitioner has not been given an opportunity of being heard before the passing of the aforestated order. Further, the petitioner has never been indicted or has ever been involved in any criminal case. He has also not suffered any major punishment as no such facts have been mentioned in the impugned orders.
Notice of motion was issued by a Division Bench of this Court vide order dated August 6, 2004. The respondents have filed written statement. The stand taken is that no instructions/communications had been issued by the State for increasing the quota from 10% to 15%. It is further CWP No.11734 of 2004 4
the stand that the petitioner has accepted the factual position that the exemptees could not exceed 10% of the sanctioned strength of District Police Ropar and, therefore, his name has been removed from List C-II (exemptees).
It is also the stand of the government that as per the Standing Order regarding selection of Constables in List-B1, constables of List C-II can also compete in the test meant for List B1 which is held in each district occasionally. It has been averred that there is no provision for awarding five extra marks to the constables on List C-II, while competing in the test for List B1. It is also the stand of the government that against the impugned order the petitioner could have filed appeal/revision to the higher departmental authorities, the remedy having not been exhausted, the petition deserves to be dismissed on this ground alone.
The petitioner has submitted replication to the written statement. The plea taken is that pursuant to the judgment rendered by this court in re: S.I.Swaran Singh v. State of Punjab, CWP No.13788 of 1997, decided on April 21, 1998, by a Division Bench of this Court, copy Annexure P4, there is no restriction on the persons for entry in List-CII (exdemptees).The names can be entered in List C-II of exemptees but CWP No.11734 of 2004 5
restrictionis only regarding promotion against 10% of the posts in the cadre.
We have heard learned counsel for the parties and have also perused the paper book as also the documents appended therewith. The core question before us is as to whether name of the petitioner could be removed from promotion list C-II (exemptees) vide order dated July 17, 2004 without any opportunity of being heard having been granted. Further, the plea of the respondents is that out of turn promotion to the rank of Head constable by bringing the petitioner on List C-II is not sustainable in view of the judgment rendered by a Division Bench of this Court in Swaran Singh's case (supra) as also the judgment rendered by this court in re: S.I.Kanwarjit Singh and others v. State of Haryana and another, CWP No.2232 of 2004, decided on July 1, 2005. The relevant paras 34 to 37 of the said judgment read as under:-
"34. The second contention advanced by Shri Puneet Bali, learned counsel representing the petitioner in Civil Writ Petition No. 18589 of 2003 is also based on Rule 13.21 of the Police Rules. The second contention of the learned counsel for the petitioner is, that on account of the fact the promotions from the rank of Constable to the rank of Head Constable have regularly and uninterruptedly been made from CWP No.11734 of 2004 6
out of those who had not qualified the Lower School Course, in excess of 10% of the cadre posts, despite the aforesaid limit having been expressed in Rule 13.8 of the Police Rules; the quota envisaged for promotion from the instant category under Rule 13.8 of the Police Rules should be deemed to have relaxed in exercise of powers vested in Rule 13.21 of the Police Rules. In order to substantiate the aforesaid contention, learned counsel for the petitioners placed reliance on the decision rendered by the Supreme Court in G.S.
Lamba Vs Union of India, 1985(2) Supreme Court Cases, 604, wherein the seniority list framed by the authorities was challenged by the petitioners (in the aforesaid case) by asserting that promotions had been made in excess of the prescribed quota regularly, against substantive vacancies because the vacancies reserved to be filled up by way of direct recruitment had remained unfilled, claiming that the statutory rule of recruitment earmarking slots of posts to be filled up by way of direct recruitment, as well as, promotion had broken down irretrievably as the petitioners had been allowed to continue against the posts reserved for direct recruits for over a decade. Since the power to relax the mandatory rules was in existence, it was asserted CWP No.11734 of 2004 7
that it was permissible to infer, that the action of the authorities in effecting promotions excess of the quota, had been made in relaxation the relevant statutory rules. Accepting the aforesaid contention of the petitioners in G.S. Lamba's case (supra), the Supreme Court held as under:-
".........Undoubtedly, when the power to relax any of the provision of the rules is exercised, the controlling authority must be of the opinion that it is necessary or expedient so to do for reasons to be recorded in writing before exercising the power. It is well settled that failure to record reasons will not invalidate the exercise of power. Once the power to relax is given, mandatory rule exists and an action in derogation of the rule has been repeatedly taken year after the year, it would be a permissible inference that the action was taken in relaxation of the rule for which the power exists and in this case is located in Rule 29(a). To hold otherwise would be to come to a rather disconcerting conclusion that a body like the Government of India acted deliberately in contravention of the mandatory rule from year to year. It would as far as possible be proper to avoid such and inference unless it is escapable. In this case as pointed out earlier for CWP No.11734 of 2004 8
years 1965 to 1972 there was no direct recruitment and even for the later years only an indent was placed and not recruitment done, and during all these years a large number of persons from grade IV were promoted as departmental promotees to the integrated grade II and III. A body like the Government of India presumably knew that there is a statutory quota for recruitment but it also presumably knew that it had power to relax and for exigency of service repeatedly acted in derogation of the quota rule, and therefore, it would be permissible to infer that the action was taken in relaxation of the mandatory quota rule. This view which we are taking is in accordance with the decision of the Constitution Bench in Bachan Singh Vs. Union of India wherein this Court held that though the direct recruitment was made in consultation with the Union Public Service Commission though not in accordance with the prescribed procedure namely on the result of a competitive examination, as the country was in a state of emergency, the appointment and selection was made interview only and that such appointment by direction recruitment was made by relaxation of the relevant rules and power was located in the Government of India to relax the rules, No specific order was shown CWP No.11734 of 2004 9
in that case vouchsafing that the appointments were made in relaxation of the rule but the Court inferred from various relevant circumstances then prevailing that the appointments not in consonance with the prescribed procedure for direct recruitment must have been made in relaxation of the rules. When the question again came up in A. Janardhana case the Court held that if direct recruitment was made in relaxation of the relevant rules, same reasons will mutatis mutandis apply to hold that promotions in excess of quota were given by relaxing the rules. It is therefore reasonable to believe in this case that though the quota was mandatory it was not adhered to by exercising the power of relaxation both qua persons and posts.
".........Therefore it can be safely stated that the enormous departure from the quota rule year to year permits and inference that the departure was in exercise of the power of relaxing the quota rule conferred on the controlling authority. Once there is power to relax the mandatory quota rule, the appointments made in excess of the quota from any given source would not be illegal or invalid but would be valid and legal as held by this Court in N.K. Chauhan v.
CWP No.11734 of 2004 10
State of Gujarat. Therefore the promotion of the promotees was regular and legal both on account of the fact that it was made to meet the exigencies of service in relaxation of the mandatory quota rule and to substantive vacancies in service.
Once the promotees were promoted regularly to substantive vacancies even if temporary unless there was a chance of their demotion to the lower cadre, their continuous officiation on them an advantage of being senior to the later recruits...........".
"35. In the present controversy, the issue in hand was settled for the first time by this Court in S.I. Swaran Singh's case (supra), wherein a Division Bench of this Court had delivered its judgment on 21.4.1998. Whereupon, it became clear to one and all, after the declaration of the legal position in connection with the quota of 10% in the cadre of Head Constables, that the quota of those who had not qualified the Lower School Course was to be determined with reference to the total "posts" of Head Constables. It was, therefore, no longer open to the authorities to have continued to effect promotions from promotion list C-II in excess of 10% of the cadre posts of Head Constables. The instant action at the hands of the CWP No.11734 of 2004 11
respondents in effecting promotions from out of promotion list C-II in excess of 10% of the cadre "posts" of Head Constables must be deemed to have been made in clear violation of the decision rendered by this Court in S. I. Swaran Singh's case (supra). From the tabulation depicted in the written statement filed by the respondents, it is clear that in 1998, the respondents promoted 87 Constables to the rank of Head Constables from promotion List C-II (i.e. from amongst Constable who had not qualified the Lower School Course). The number decreased to 2 and 13 for the subsequent two years i.e. 1999 and 2000. Promotions from the instant category, however, picked up in 2001, during which 25 Constables, who had not qualified the Lower School Course, were promoted to the rank of Head Constables. The said number swelled up to 98 in 2002 and 54 in
2003. The figures, after the year 2003, have not been disclosed by the respondents. It is, however, interesting to notice, that 86 Constables, who had qualified the Lower School Course and whose names were borne on promotion List C-I, were promoted during the year 2002, whereas, 98 Constables, who had not qualified the Lower School Course, were promoted during the same period. Likewise, 38 CWP No.11734 of 2004 12
Constables, who had qualified the Lower School Course, were promoted in the year 2003, as against, the promotion of 54, who had not qualified the Lower School Course, during the same period.
Promotions to the rank of Head Constables from promotion List C-II, have been described as "out of turn promotions" by the Supreme Court while referring to Rule 13.8 of the Police Rules in S.I. Paras Kumar's case (supra). It is, therefore, apparent that of late the number of "out of turn promotees" under Rule 13.8 of the Police Rules have been exceeded the regular promotees i.e. from amongst those who have qualified the Lower School Course and are fully eligible for promotion to the rank of Head Constable.
36. Violation of the statutory rules at the hands of the authorities, despite a clear enunciation of the legal position, as in the instant case on account of the judgement rendered in S.I. Swaran Singh's case (supra), cannot be over-looked, nor can it be legitimized on the basis of presumptions or inferences. Moreover, from the spate of cases filed in this Court on behalf of Constable desiring to be deputed to the Lower School Course, it is apparent that a rigorous process of selection is conducted before Constables are deputed to the Lower CWP No.11734 of 2004 13
School Course. After being sieved through the aforesaid selection, Constables who qualify the Lower School Course are placed in promotion List C-I in order of their merit. From promotion List C-I, Constables who are eligible and have proved their suitability are promoted to the rank of Head Constable. While a large number of Constables whose names exist on promotion List C-I are awaiting their promotion to the rank of Head Constable, the Police Department has been making excessive "out of turn promotions" from promotion List C-II. Those promotion in excess of the quota, require us to legitimize their promotion to the extent it exceeds the prescribed quota, under the fiction, that their promotion orders had been effected in exercise of powers vested in the competent authority under Rule 13.21 of the Police Rules. And to substantiate their instant claim, reliance has been placed on the decision of the Supreme Court in G.S.
Lamba's case (supra)
"37. A perusal of the factual position depicted in the preceding paragraphs, reveals that the candidates having a legitimate expectation of promotion to the rank of Head Constable whose names are depicted in promotion List C-I, were available to fill up the CWP No.11734 of 2004 14
vacancies in the rank of Head Constables, yet the petitioners were promoted as Head Constables "out of turn" even though they had not qualified the Lower School Course. In the aforesaid circumstances, the deeming fiction of law cannot be invoked in favour of the petitioners so as to legitimize their promotion to the rank of Head Constable. Our aforesaid conclusion stands substantiated by the decision of the Supreme Court in Suraj Prakash Gupta Vs State of Jammu and Kashmir, (2000)7 Supreme Court Cases, 561, wherein the Court observed as under:-
"In the present case, the Government was merely carried away by sympathy for the promotees. By not making direct recruitment after 1984, by restricting direct recruits to 10% rather than permitting 20% and by deliberately promoting the Junior Engineers to the other 10% quota of the direct recruits, the State Government had definitely acted in a biased manner.
There is an amount of justification for the grievance of the direct recruits that the State had passed and omnibus order on 2.1.1998 regularising all ad hoc promotes (Electrical Wing ) without consulting the Commission, by way of deemed CWP No.11734 of 2004 15
relaxation, in a wholly arbitrary manner, counting the entire ad- hoc service of promotion. Their illegal occupation of direct recruitment quota was not even noticed. Their eligibility or suitability was not considered. It is probable that even those who had bad ACRs were regularly promoted. The requirement of following the quota for each year was not respected.Theregularizationorder dated 2.1.1998,was therefore bad and was therefore rightly quashed by the High Court" "On the question of breakdown of quota rule, except the lethargy or the State Government and its inaction and its not asking the Service Commission to make direct recruitment, no other cause is visible. The Cabinet not only stated that because the reference to PSC would take a long time, the ad hoc services of the promotees were to be regularized. The delay on the part of the Government appears to us to be motivate for the purpose of blocking the quota of the direct recruits and giving a part of it to the promotees. We have noticed that when a very belated decision was taken to make direct recruitment, the same was restricted to 10% rather than CWP No.11734 of 2004 16
to the statutory quota of 20%. This attitude on the part of the State was not reasonable."
For the reasons recorded above, it is not possible for us to accept the second contention advanced by Shri Puneet Bali, Advocate. In our view, the instant contention advanced by the learned counsel for the petitioners, seeking an implied relaxation of the statutory rules (which provides for a maximum quota for promotion form amongst Constables who do not fulfil the prescribed conditions for promotion), cannot be accepted."
Learned counsel for the petitioner has argued that the petitioner had been granted out of turn promotion to List C-II (exemptees) on account of the recommendations made by the competent authority pursuant to the act of bravery committed by the petitioner. It is the settled law that the authority is competent to grant the promotion as aforestated being empowered under the Police Rules. Once the promotion having been granted, the relaxation of the rules would be read into the order of promotion and shall be deemed to have been granted accordingly. It has been further argued that putting the names of the constables on list C-II may not mean promotion but simple entitlement to be put on the rank of Head CWP No.11734 of 2004 17
Constable. Thus, the impugned order suffers from the rigour accordingly and, therefore, deserves to be quashed.
On the other hand, learned Additional Advocate General has argued that in view of the law laid down by this Court and also the Hon'ble Supreme Court of India that any promotion made in excess of the prescribed quota would not be sustainable under law and that the removal of the name of the petitioner from List C-II (exemptees) is perfectly justified. The persons were available from list C-I for being promoted to the rank of Head Constable and, therefore, promoting persons from List C-II (exemptees) to the rank of Head Constable beyond 10% quota permissible under the rules, would be violative of the rules as well as the law laid down by this Court as also the Hon'ble Supreme Court of India. It is also the case that the petitioner has not undergone the Lower School Course, therefore, would not be well within his rights to earn place in list C-II (exemptees) and thereafter promotion to the rank of Head Constable.
We have heard learned counsel for the parties and have also perused the paper book as also the documents appended therewith. We have also gone through the judgments referred to at the Bar.
It is the admitted case that 10% quota is prescribed under the CWP No.11734 of 2004 18
Police Rules and no promotion in excess of the cadre post can be granted by the authorities. It is evident that with the approval of the Deputy Inspector General of Police 10% of the post of Head Constable, can be filled from amongst constables who might have excelled in various fields. Such constables, who are promoted under rule 13.8(2) are first brought on List C-II and they are exempted from passing the Lower School Course. Thus, the constables who pass Lower School Course are brought on List C-I for the purpose of promotion as Head Constables. Examining the matter mathematically, it would construe that if the cadre strength of Head Constables is 100, 90 constables are to be promoted as Head Constables from List C-I and 10 from list-CII. It is the admitted case that the petitioner had been brought on list C-II on account of act of bravery but had been reverted/removed from list C-II being beyond 10% of the quota meant for constables on List-CII. Obviously, for making room for constables who have been brought on list C-I. It shall be apposite to notice rule 13.8. of the Police Rules, which reads as under:
"13.8 List C. Promotion to Head Constables:- (1) In each district a list shall be maintained in card index form (from 13.8 (1) of all constables who have passed the Lower CWP No.11734 of 2004 19
School Course at Phillaur and are considered eligible for promotion to Head Constable. A card shall be prepared for each constable admitted to the list and shall contain his marking under sub-rule 13.5(2) and notes by the Superintendent himself, or furnished by Gazetted Officers under whom the Constable has worked, on his qualifications and character. The list shall be kept confidentially by the Superintendent and shall be scrutinized and approved by the Deputy Inspector General of Police at his annual inspection.
(2) Promotions to Head Constable shall be made in accordance with the principle described in sub-rules 13.1(1) and (2).
The date of admission to List C shall not be material, but the order of merit in which examinations have been passed shall be taken into consideration in comprising qualifications. In cases where other qualifications are equal, seniority in the police force shall be the deciding factor. Selection grade constables who have not passed the Lower School Course at the Police Training School CWP No.11734 of 2004 20
but are otherwise considered suitable may, with the approval of the Deputy Inspector-General, be promoted to Head Constable up to a maximum of ten percent of vacancies."
The perusal of the aforestated would show that selection of constables who have not passed the Lower School Course at the Police Training School who are otherwise considered suitable, may with the approval of the Deputy Inspector General, be promoted to the rank of Head Constable upto a maximum 10% of vacancies. Would this mean that any number of persons be brought on list C-II and that out of this list, the promotion to the rank of Head Constable upto 10% of the vacancies is to be granted ? In this regard, our attention has been drawn to S.I. Kanwarjit Singh's case (supra) where the matter relating to 10% quota as prescribed under Rule 13.8 of the Rules has been considered. The perusal of the aforestated judgment shows that the matter under consideration was entirely different i.e. the promotion made to the rank of Head Constable in excess of 10% of the cadre posts from list C-II is not sustainable. Their lordships have placed reliance upon the judgment rendered in S.I.Swaran Singh's case (supra) by a Division Bench of this Court and has CWP No.11734 of 2004 21
categorically held that an implied relaxation of the statutory rules, which provides a maximum quota for promotion from amongst constables, who do not fulfill the prescribed conditions for promotion, cannot be accepted. In the instant case, the point at issue is whether the name of the petitioner could be retained on promotion to List-CII beyond the 10% quota meant for promotion to the rank of Head Constables from amongst the constables who had not undergone the Lower School Course by virtue of having promoted to list C-II. In our opinion, this judgment would not be of any help to either side. So far as the judgment rendered in S.I. Swaran Singh's case (supra) and S.I.Kanwarjit Singh's case (supra) are concerned, the question raised was that the petitioners in those cases were beyond the 10% of the quota meant for constables of List-CII and, therefore, they must make room for constables who are on List C-I. The aforestated rule under reference also talks of promotion to the rank of Head Constables from List C-II to a maximum of 10% of the cadre, would that mean that only 10% of the exemptees should be brought on List C-II for promotion but if such rule is not adhered to List-CII might swell and this ultimately may lead to stagnation because a person who is brought on list C-II by virtue of the recommendation by the Deputy Inspector General of Police finally, he CWP No.11734 of 2004 22
would be considered for promotion to the rank of Head Constable only against 10% of the cadre of Head Constables, meaning thereby that he would be in the seniority list as retained in list C-II. Whereas, if he goes for Lower School Course, he would be entitled to go to List CI, where the scope of promotion to the rank of Head Constable is 90%. This predicament needs to be examined. Since the petitioner had been brought on list C-II, meaning thereby he is not required to undergo Lower School Course, he would be entitled for being promoted to the rank of Head Constable but only to the extent of 10% of the quota. If that be so, it was incumbent upon the respondents to have given the opportunity of being heard to the petitioner before removing his name from promotion list C-II.
It is obvious that the respondents shall not be entitled to give out of turn promotions to the rank of Head Constable from List C-II beyond 10% of the cadre in view of the aforestated judgments in S.I.Swaran Singh's case and S.I. Kanwarjit Singh's case (supra). Thus, a constable, who is brought on List-CII, does not get a right to be promoted to the rank of Head Constable beyond 10% of the quota of the cadre. It shall be imperative that the respondents would be required to maintain the merit list in list C-II as well so that the person may get a birth in the rank of Head CWP No.11734 of 2004 23
Constable while maintaining 10% quota of the cadre.
In view of the fact that the petitioner having not been given the opportunity of being heard before being removed from List C-II, the impugned order is in utter violation of the principle of audi altrem partem.
On this short ground alone, the petition deserves to be allowed.
Consequently the impugned order dated 28.6.2004, copy Annexure P3 is quashed with liberty to the respondents to pass a fresh order after giving opportunity of being heard to the petitioner and keeping in view the rules applicable thereto and also the observation made above.
( J.S. NARANG )
( BALDEV SINGH )
January 6, 2006
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