SANGEET LODHA - (1.) THIS intra court appeal is directed against order dated 18.3.11 of the learned Single Judge of this court, whereby a writ petition preferred by the appellant herein, questioning the legality of denial of promotion to him to the post of Assistant Sub Inspector , stands dismissed.
(2.) THE appeal filed is barred by limitation for 91 days, which is accompanied by an application u/s 5 of the Limitation Act for the condonation of delay. For the reasons stated in the application, this court is satisfied that the appellant had sufficient cause for not filing the appeal within the prescribed period. THE application is therefore, allowed. THE delay in filing the appeal is condoned. The appellant is employed as Head Constable with the Rajasthan Police. The Director General of Police vide order dated 8.12.10 while constituting a Selection Board initiated the process for selection to the post of Assistant Sub Inspector by way of promotion from the post of Head Constable against the vacancies of the year 2010-11 in different Range District/ Units. In Jalore District of Jodhpur Range, out of total 10 vacancies of Assistant Sub Inspector, 4 posts were to be filled from amongst the General category, 1 post was reserved for Scheduled Caste and the remaining 5 for Scheduled Tribes candidates. The criteria for promotion from the post of Head Constable to the post of Assistant Sub Inspector is seniority-cum-merit. However, in terms of Rule 27(2) of the Rajasthan Police Subordinate Service Rules, 1989("the Rules" hereinafter), only those persons holding the post of Head Constable are entitled to be considered for promotion who have passed the qualifying examination. The appellant appeared in the qualifying examination and having acquired the requisite marks was declared successful therein. After completion of selection process, the respondent no.4-Superintendent of Police, Jalore issued the select list containing 5 names wherein the appellant's name was not included. Among General category candidates selected, 2 candidates selected namely, Jabhar Singh and Deva Ram, according to the appellant were less meritorious than him. That apart, on enquiry being made , the appellant came to know that the post meant for General category are filled up from amongst the candidates belonging to SC/ST. The appellant served the respondent with the notice for demand of justice, which was not responded to. In these circumstances, the appellant preferred the writ petition before this court questioning the legality of entire selection process. It was contended on behalf of the appellant before the learned Single Judge that while preparing the select list, the members of service belonging to Scheduled Caste and Scheduled Tribes have been placed in the select list relating to General category which is not permissible under the law inasmuch as, they are entitled to be promoted against the vacancies belonging to their own category. That apart, it was contended that the appellant had secured more marks than the person selected in the qualifying examination and therefore, he was better entitled to be promoted to the post of Assistant Sub Inspector . The learned Single Judge after due consideration of the rival submissions and the provisions of the Rules governing the promotion to the post of Assistant Sub Inspector arrived at the finding that the merit in qualifying examination has no role to play once a person eligible to be considered for promotion has qualified the eligibility test and therefore, a person senior is required to be placed higher in the select list. The learned Single Judge observed that it is settled deposition of law that the person belonging to Reserved category is required to be first considered against the vacancies relating to the General category and if a person belonging to the Reserved category is selected against the post of General category, he has to be accorded appointment in the General category only. Consequently, the writ petition preferred by the appellant has been dismissed by the order impugned. Hence, this appeal.
(3.) LEARNED counsel for the appellant reiterating the contentions raised before the learned Single Judge urged that the learned Single Judge has seriously erred in non suing the appellant on the ground that the examination conducted for the purpose of selection is a qualifying examination and therefore, it is the seniority of an individual on the feeder post deserves credence over and above the fact that how an individual has faired in the selection process at all stages. LEARNED counsel submitted that the learned Single Judge has not examined the procedure of selection in its entirety which has resulted in an erroneous finding being arrived at. LEARNED counsel submitted that if the provisions of Rule 27 of the Rules is harmoniously construed , it makes the intention of legislature abundantly clear that due credence has to be given to the merit of an individual. LEARNED counsel submitted that as a matter of fact, the examination conducted for the purpose of promotion to the post of Assistant Sub Inspector is a competitive examination and not merely a qualifying examination. LEARNED counsel submitted that the procedure of selection as envisaged under Part V of the Rules for availing promotion is an ordeal process of selection which an incumbent has to undergo and no incumbent can claim promotion solely on the strength of his seniority upon the feeder post. LEARNED counsel submitted that since promotion is based on selection, it pre supposes that it is founded on merit and not only on the basis of seniority. LEARNED counsel submitted that all these relevant aspects of the matter have not been considered by the learned Single Judge and therefore, the order impugned dismissing the writ petition in limine, deserves to be set aside. We have considered the submissions of the learned counsel for the appellant, gone through the order impugned and perused the relevant provisions of the Rules. It is to be noticed that as per Rule 27(i) of the Rules, after the vacancies to be filled by promotion in the cadre have been determined under Rule 10 of the Rules, the Selection Board shall be constituted in terms of provisions of Rule 27(3) of the Rules which shall prepare and complete list containing the names not exceeding three times the number of vacancies out of senior most eligible members of service, who have passed Part I of the qualifying examination specified in Rule 29 by obtaining 40% marks in parade, practical and other outdoor tests and 40% in written test with 45% marks in aggregate for promotion to the class of post concerned. As per Rule 27(2), the Board constituted shall consider the cases of all persons included in the list and after interviewing all of them shall prepare a list containing names of suitable candidates in order of seniority who secure 45% marks in qualifying examination Part II and 50% aggregate of total marks of qualifying examination Part I & Part II, upto one and half times the number of such posts as are specified by the Director General cum Inspector General of Police from time to time and as are determined to be filled under Rule 10. Thus, once the eligible candidates have passed the qualifying examination by securing the minimum marks prescribed for passing the qualifying examination Part I & Part II and have secured 50% aggregate of the total marks of qualifying examination Part I & Part II, in the list prepared they are to be placed strictly in order of seniority. It is to be noticed that as per Rule 29 of the Rules , qualifying examination for promotion , Part I includes written, practical, parade and other outdoor tests and Part II includes interview, examination of service record including Annual Confidential Report. In this view of the matter, conjoint reading of Rule 27 & 29 of the Rules makes it abundantly clear that the suitable candidates who have secured the minimum pass marks prescribed for qualifying examination Part I & Part II and are placed in the select list in order of seniority are entitled to be accorded promotion accordingly. Suffice it to say that qualifying examination is meant only for assessment of minimum necessary merit required for efficiency of service. Thus, the contention of the learned counsel for the appellant that qualifying examination is as a matter of fact competitive examination and the promotions have to be accorded giving credence to the merit in the qualifying examination is devoid of any merit. ;