CALLA, J. - (1.) THIS Letters Patent Appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment and order dated 6. 4. 1998 passed by the learned Single Judge, whereby the petition was dismissed.
(2.) THE appellant, who was original petitioner before the learned Single Judge (shall be referred to as petitioner hereinafter) claiming to be a graduate, was holding the post of Asstt. Sub Inspector since June, 1988 and had also been confirmed on the said post later on. THE said post is a post under the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred to as the Rules of 1989) -a post created under the Rules of 1989. Prior to his promotion as Asstt. Sub Inspector, he was a confirmed Head Constable under the Rules in force. Head Constable is a post in the channel of promotion for further promotion to the post of Sub-Inspector and still next higher post is that of Inspector for which the Sub-Inspector is the next lower post in the channel of promotion. So far as the post of Sub-Inspector under Section-II, Mewar Bhil Corps (M. B. C.) of the Schedule-I of the Rules of 1989, is concerned, the appointments are required to be made 50% by promotion and 50% by direct recruitment and the eligibility for promotion is either seven years of continuous service as Head Constable or 5 years of continuous service on the said post, if passed higher secondary examination or any other examination declared equivalent thereto by the Government, or 4 years continuous service with graduation. The procedure for appointment by promotion has been prescribed under Part-V of the scheme of the Rules of 1989. Rule 26 provides the eligibility for promotion, Rule 27 is the procedure of selection, Rule 28 provides for the special nomination for promotion cadre course and Rule 30 deals with the promotion cadre course. Promotions are made under Rule 31 and Rule 36 provides for seniority. Rule 28 of the Rules of 1989 is reproduced as under:- "28. Special nomination for promotion cadre course- Notwithstanding any thing contained in sub-rule (1) to (3) of rule 27 above: (a) Nomination for promotion cadre course for next higher rank up to Sub-Inspector in Section I and Section III and upto Platoon Commander in Section II and Section IV of Rule-4 upto 10% of the vacancies to be filled in by promotion in a particular year, may be made by the Director General-cum-Inspector General of Police in case of those who have shown outstanding work in the anti-dacoity, anti-smuggling or in any special field of Police work including performance in Games and Sports, or have put in not less than 20 years service exclusively as member of the service and also have exceptionally good and unblemished record of service with integrity: Provided that no member of the service shall be nominated more than once on account of 20 years service as mentioned above. (b) The Government may nominate for Promotion Cadre Course upto 10 percent of the vacancies by promotion in a particular year from amongst the member of service holding substantive rank from the rank of Sub-Inspector/platoon Commander to Supervisor/inspector/company Commander's rank and from Sub- Inspector/supervisor to Inspector on the recommendation of the Director General-cum-Inspector General of Police who have shown outstanding work in the anti-dacoity, anti-smuggling or in any special field of Police work including performance in games and sports or have put in not less than 20 years service exclusively as members of the service and also have exceptionally good and unblemished record of service with integrity: Provided that no member of the service shall be nominated more than once on account of 20 years service as mentioned above. " It was on 10. 12. 1990 that in the matter of special promotion, popularly known as gallantry promotion for distinguished services under Rule 28 (a) of the Rules of 1989, the petitioner was nominated for special promotion for the outstanding services rendered by him. Although, this letter dated 10. 12. 1990 sent by the Deputy Inspector General of Police, Range Jaipur Jaipur to the Deputy Inspector General of Police (Headquarters), Jaipur in December, 1990 itself, an order was passed on 20. 7. 1992, appointing the petitioner as a Sub-Inspector by special nomination for the promotion cadre course, on adhoc basis. This order dated 20. 7. 1992 is a composite order of appointment by special nomination for promotion, for sending the petitioner to the promotion cadre course and also giving him the posting at Jaipur City with the further mention in the body of the order itself that he will be deemed to be regularly promoted only after passing the promotion cadre course. Thus, while functioning as Sub-Inspector under order dated 20. 7. 1992 as above, the petitioner passed the promotion cadre course in February, 1993. No further order was passed for him after passing of the promotion cadre course and the petitioner continued as a Sub-Inspector. In the year 1997, an order was passed on 7. 12. 1997, including the names mentioned therein in the approved list for promotion to the post of Inspector and according promotion to them. However, the petitioner's names was not included in this list, despite the petitioner's representation dated 3. 12. 1997, on the ground that he did not possess the eligibility for the purpose of promotion to the post of Inspector. At this juncture, the petitioner filed the writ petition on 19. 1. 1998 with the prayers as under:- (A) By an appropriate writ, order of direction it may be declared that the petitioner who is graduate and having five years service to his credit on 1. 7. 1997, hence he is entitled to appear in the qualifying examination, held for promotion to the post of Inspector of Police; (B) By an appropriate writ, order or direction in the nature thereof and thereby to declare that since the petitioner obtained 50% marks in aggregate in Part-I and Part-II of qualifying examination, therefore, his name should be included in the select list for nomination for promotion cadre course; (C) By an appropriate writ, order or direction in the nature thereof and thereby to declare that since his name appears under the zone of selected candidates, therefore, he should be nominated for undergoing P. C. C. ; (D) By issuing an appropriate writ, order or direction in the nature thereof and thereby to direct the respondents to prepare a seniority list as per provisions of Rule 31, 34 and 36 of the Rules of 1989 and after circulating the seniority list, persons to the p. C. C. should be nominated as per proper seniority; (E) By issuing an appropriate writ, order of direction in the nature thereof and thereby to declare that the petitioner being under the zone of consideration and he obtained required 50% marks in qualifying examination Part-I and Part-II, therefore, he be promoted to the rank of Inspector since his juniors were promoted with all retrospective benefits; (F) The cost of the writ petition be awarded to the petitioner; (G) Any other appropriate order or direction which this Hon'ble Court may deem fit and just may also be passed in favour of the humble petitioner. The notices in the writ petition were issued on 10. 3. 1998 and the reply was required to be filed. However, no reply whatsoever was filed and the petition was decided and dismissed by the learned Single Judge on 6. 4. 1998. It is this order dated 6. 4. 1998 which is the subject matter of challenge in this appeal. The appeal was admitted by the court after hearing the learned counsel Mr. Virendra Lodha, who appeared for the respondents on 11. 11. 1998. In this appeal, the appellant filed a circular dated 6. 2. 1996 as Annexure-8 and a memo dated 20. 8. 1998 was filed titled as `cross objections' on behalf of the respondents. It was stated in the so called `cross objections' that on account of large number of applications due to oversight/inadvertence, the appellant had been called to appear in the written examination for the purpose of promotion to the post of Inspector but while the process was going on, a communication was received from the Office of Dy. Inspector General, Jaipur, Range to AIG-I that the petitioner did not possess five years experience on the post of Sub-Inspector as he had passed the promotion cadre course for the post of Sub- Inspector on 5. 2. 1993 only and therefore, he was not eligible to appear in the written test for the post of Inspector and it was due to oversight that he was permitted to appear in the written test. It was further stated in the so called `cross objections' that the result was kept in sealed cover and he was never declared selected by the Selection Board for the post of Inspector in want of requisite experience.
(3.) ALONGWITH so called `cross-objections', a document dated 25. 11. 1997 was filed as Annexure-R/3 and in this document, it has been held out that the name of the petitioner was not included in the list of eligible candidates for the post of Inspector because as on 1. 4. 1997, three persons including the petitioner at S. No. 2 had not completed the period of five years service from the date of their regular promotion as Sub- Inspector. In Column No. 5 of this very letter, the date of the petitioner's regular promotion as Sub-Inspector is mentioned as 5. 2. 1993 and his year of selection in the same order in Column No. 6 is mentioned as 1991-92. It is already stated in the writ petition itself that on 23rd and 24. 11. 1997, the petitioner had appeared in the written test for promotion to the post of Inspector and on 24. 11. 1997, the result was announced wherein he was declared successful. On 25th and 26. 11. 1997, the out-door examination including P. T. , parade etc. was held whereat also the petitioner was declared successful. On 28. 11. 1997, the petitioner was called for interview and the result of the interview was declared by the Chairman of the interview was declared by the Chairman of the Board wherein 250 candidates were declared as selected including the petitioner and it was on 29. 11. 1997 to the utter surprise of the petitioner, a list of only 248 persons was affixed on the Notice Board in Police Lines, Jaipur wherein the name of the petitioner was missing. The petitioner, therefore, approached the Member Secretary of the Board and submitted his representation dated 3. 12. 1997 and also appeared before the Chairman of the Selection Board. These factual allegations have not been controverted even while filing the objections to which the reference has been made hereinabove and all that has been said in these objections is that it was on account of the oversight that the petitioner was called to appear in the written test but his result was kept in the sealed cover and as such for all practical purposes, he was never declared selected by the Selection Board in want of requisite experience. The order dated 27. 5. 1998 passed by the Division Bench in the stay application shows that the appellant was provisionally allowed to undergo promotion cadre course for the post of Inspector with the condition that result thereof shall abide by the result of this special appeal. It further appears that an application was moved on 22. 7. 1998 on behalf of the respondents for vacating the ad interim stay order dated 27. 5. 1998 and in Para-3 of this application, it was stated that the promotion cadre course which commenced on 12. 5. 1998 had already been completed on 8. 7. 1998 and now in pursuance of the stay order passed by the Court on 27. 5. 1998, if the petitioner/appellant is allowed to undergo provisionally in the promotion cadre course, it would not be possible because he can be sent only in the next batch. This application for vacating the ad interim stay order dated 27. 5. 1998 came up for consideration before the Division Bench on 13. 8. 1998 and after hearing the parties, the court modified the order of stay and directed that the petitioner shall be allowed to undergo promotion cadre course and also appear in the examination, if any, but his result shall not be declared until the final disposal of the appeal. The learned counsel for the appellant has produced the order dated 2. 4. 1999 before us during the course of arguments and it is not in dispute that the present appellant had undergone the promotion cadre course in Batch No. 42 during the period 16. 12. 1998 to 9. 2. 1999 and the result of the final examination was declared on 2. 4. 1999 after Asstt. Director General of Police (Training)'s letter No. 1401 dated 11. 3. 1999. In this letter dated 2. 4. 1999, the appellant's name appears at S. No. 1 and in Column No. 4, it is mentioned that the appellant's result was withheld. ;