BERI, (Actg.) C. J. - (1.) THIS is an appeal under sec. 18 of the Rajasthan High Court Ordinance against the judgment of a learned Single Judge of this Court dated August 31, 1971, whereby he dismissed in limine the appellant's petition challenging his reversion in a Civil post under Art. 226 of the Constution.
(2.) GULAM Mohammed, the appellant before us, was appointed as a constable in the Police Department an November 6, 1950. He was promoted to the post of a Head Constable on February 24, 1956. GULAM Mohammed passed the qualifying examination as provided under Rule 23 (1) of the Rajasthan Police Subordinate Service Rules, 1966 (hereinafter called the Rules) and he was placed at number 10 in the list published on September 11, 1967. Despite two attempts in 1969 and 1970 GULAM Mohammed was unable to pass the promotion cadre course examination. At that point of time he was officiating as a Sub-Inspector but he came to be reverted on April 4, 1970. His representation against his reversion succeeded and he was promoted again on January 22, 1971, to officiate as Sub-Inspector of Police. But on May 2, 1971, he was again reverted. He submitted a petition under Art. 226 of the Constitution before this Court praying for a writ, order or direction in the nature of mandamus or any other direction against the State of Rajasthan, the Inspector General of Police and the Deputy Inspector General of Police, C. I. D. (Criminal Branch) not to revert him from the post of Sub-Inspector and to permit him to appear at the promotion cadre course examination again. The learned Single Judge dismissed the petition in limine on the grounds that because GULAM Mohammed had failed at the promotion cadre courses examination, his reversion was proper and and further because nobody could, as of right, claim that he must be given a temporary or officiating appointment under Rule 31 of the Rules despite his failure to pass the promotion cadre courses examination twice. In regard to the respondents Khumandas and Indermal (respondents Nos. 4 and 5 respectively), the learned single Judge observed that the temporary appointments of these respondents was characterised by the learned counsel for the appellant GULAM Mohammed, to be contrary to the Rules and if it was so, the appellant could not expect the Court to make an illegal order in his favour in contravention of the rules. Dissatisfied GULAM Mohammed has come up in appeal. In this Court, respondent No. 2, Inspector General of Police, has filed an answer to the special appeal inter alia urging that because Gulam Mohammed failed twice in the promotion cadre-course examination it was necesary for him to appear for the qualifying examination as well before he could be considered to be eligible for appearing in the promotion cadre-courses examination. Mr. M. B. L. Bhargava, learned counsel for the appellant, urges that the language of Rule 28 does not require the appellant to appear in the qualifying examination again as insisted upon in Annaxure 5 of the writ petition or as emphasised in the answer to the writ petition before this Court. The rule further does not prohibit a candidate who has failed twice in the promotion cadre courses examination to appear therein later because there is no limitation in regard to the number of opportunities on which a candidate could appear for the purposes of seeking his promotion. His further contention is that respondent Khumandas appeared with the appellant Gulam Mohammed in the qualifying examination and failed yet has been officiating as Sub-Inspector while respondent Indermal who has not even attempted to pass the qualifying examination has also been working as Officiating Sub-Inspector and this was plainly an unequal treatment meted out to the appellant in contravention of Art. 14 and 16 of the Constitution. Mr. M. L. Shrimal learned Additional Government Advocate did not find it easy to support the interpretation given by the Inspector General of Police to the language of rule 28. He, however, urged firstly, that reversion of an officiating incumbent is not reduction in rank unless it was accompanied by a stigma to the officer's name; and secondly nobody has a right to seek an officiating promotion and as it did not affect the seniority, the claim of the appellant was untenable. He relied on the Supreme Court's unreported judgment Union of India vs. Gajendra Singh (l) In regard to respondents Khumandas and Indermal, he argued that they were promoted under rule 31 because the list had been exhausted. Both of them are law graduates and are teahcing in the Training School at Kishangarh and giving them a chance to officiate was a matter of administrative convenience. Lastly, he urged that even assuming that it was erroneous to have promoted them to officiate without their having passed the requisite examination, Art. 14 of the Constitution cannot be invoked because of an erroneous promotion of two presons. He placed reliance on Naraindass vs. The Improvement Trust, Amritsar (2 ).
(3.) RULE 28 of the RULEs reads under : - "28. Failure at the qualifying and promotion cadre courses examination.- (1) A candidate who appear fails at a qualifying examination will be allowed to re-appear at the next examination provided that if he fails at the next examination also, he shall be debarred from appearing at the qualifying examination for the following two years. (2) A candidate who fails to complete a promotion cadre course shall be eligible to reat the promotion Cadre Course examination immediately following the examination at which he has failed, provided that if no examination is held within one year of his failure a special Examination may be conducted for the purposes. " The aforesaid rule is clearly divided into two parts. The first part relates to the qualifying examination. A candidate failing at this examination in allowed to reappear at the next examination. But if he fails at the next examination also, the rule requires him to rest, presumably for self improvement and preparation, for a period of two years before he is permitted to make a fresh attempt. Sub-rule (2) speaks of the promotion cadre course examination. A candidate who fails to complete a promotion cadre course shall be eligible to reappeer at the promotion Cadre Course examination immediately following the examination at which he has failed. If no examination is held within one year of his failure a special examination may be conducted for the purpose. Evidently, there is no provision for any increased interval after two failures as is the case in qualifying examination and there is no restriction against re-appearance. The interpretation as contained in Annexure 5 to the writ petition and in the answer of the Inspector General of placing a restriction on the third reappearance of Gulam Mohammed in the promotion cadre course examination unless the appellant appears again at the qualifying examination is not justified by language of the RULEs. The interpretation put by the Inspector General of Police is clearly erroneous. Nobody is authorised to interpolate words born of imagination in a statutory rule and invent restrictions when none are authorised by the language of the RULE. We could, therefore, appreciate the discomfiture of the learned Additional Government Advocate when he was unable to support this interpretation of the Inspector General of Police. In regard to the continuance of Khumandas and Indermal as officiating Sub-Inspectors of Police notwithstanding their not having passed the qualifying examination as envisaged by rule 23 (1) of the Rules, the answer is two-fold. The first is that according to the reply filed by the Inspector General of Police the list appears to have been exhausted and they could have been appointed as temporary or officiating Sub-Inspectors of Police for administrative reasons, having regard to their qualifications under the proviso to rule 31 of the Rules. Even assuming for the sake of argument that their appointment as officiating Sub-Inspector was not according to law, we are unable to accept the argument that we should issue a direction for the repetition of the error in favour of Gulam Mohammed. Equality before law, in our opinion, means equality before a correct point of reference. In Venkatasubbian Setty, T. vs. Commissioner, Corporation of the City of Bangalore (3) a licence was granted to persons against provisions of the City of Bangalore Municipal Corporation Act. The application of the petitioner for licence was rejected. The petitioner could not ask the Court to direct the Corporation to wrongly issue licence in his favour. In State of Orissa vs. Durga Charandas (4) their Lordships of the Supreme Court have observed that discriminatory treatment to Government Servant in matter of promotion because in one case the State mis-construed the scope and effect of a rule would not justify a claim by the Government Servant that the rule should be similarly misconstrued in all cases thereafter. To the same effect is Naraindass's case (2) referred to above. No other point has been pressed before us. ;