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 vs. State & Ors. (1), will be sufficient for the purpose of deciding these writ petitions. 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. 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 of 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- (1) 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 time, 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. " 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. " 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 & Ors. vs. State of J & K & Ors. 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.
(3.) 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 1. 04. 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. 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 & Ors. vs. State of U. P. & 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 ). 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 ). ;