S. S. BYAS, J. - (1.) BY these nineteen writ petitions under Art. 226 of the Constitution, the petitioners challenge the validity and correctness of orders Ex. /p4 dated July 6, 1976 and Ex. P/ 5 dated November 21, 1981 passed by the Commandant, 6th Batallion, Jodhpur, whereby they were asked to re-appear in the qualifying examination for promotion to the posts of Head-Constable under the Rajasthan Police Subordinate Service Rules, 1974 (for short 'the Rules' ). Since, the grounds taken in all these petitions are identical, they were heard together and are disposed off by a common order.
(2.) THE case set up by the petitioners is that at the relevant times, they were holding the post of Constable in the 6th Batallion and were qualified for promotion to the post of Head Constable. THE Board constituted under the Rules conducted the qualifying examination for promotion to the post of Head Constable in 1976. THE petitioners appeared in that examination and being successful, their names appeared in the list of suitable candidates prepared under sub rule (2) of rule 24 of the Rules. THE total number of vacancies available for promotion was 51. Out of the aforesaid list, as many as 27 (being at S No. 1 to 27 in the list) were promoted and appointed on the post of Head Constable without any condition by the appointing authority viz. the Commandant by his order dated July 6, 1976. THE petitioners were also promoted as Head Constables on July 6, 1976 by the Commandant, but on temporary basis and with condition that they would again appear in the qualifying examination to come in the approved list for absorption in regular Rajasthan Armed Constabulary Batallion. Subsequently, on November 21, 1981, the Commandant by his letter Ex. P/5 invited applications from the eligible candidates including those holding the post of Head Constable on Ad hoc basis (i. e. the petitioners) to appear in the qualifying examination. THE grievance of the petitioners is that the condition imposed on their promotion to the post of Head Constable and requiring them to appear again in the qualifying examination, is illegal and unjust. Various reasons have been advanced to show that the impugned orders Ex P/4 and Ex. P/5 passed by the Commandant in this respect, are contrary to the provisions of the Rules. The petitions were contested by the respondents. The stand taken by them is that only 27 permanent vacancies of Head Constables were available for promotion in the relevant year 1976. Consequently, the first 27 candidates in order of their merit in the Approved List Ex. R/3 were promoted and appointed to the post of Head Constables on regular basis. The petitioners according to their merit were not in the first 27 candidates. However, some temporary vacancies of Head Constables existed at the relevant time in temporary Platoons. The Board prepared another list Ex. R/4 for these temporary posts and the petitioners' names being in this list, they were appointed against those temporary posts of Head Constables. Since, the petitioners could not be absorbed permanently for want of substantive vacancies, they are required to appear again in the qualifying examination if they wish their promotion and absorption in the permanent vacancies. The orders of the Commandant passed in this regard are thus perfectly legal and suffer with no infirmity. The condition that the petitioners would be required to re appear in the qualifying examination was made known to them in their very promotion order. It is now too late for them to challenge that condition. By accepting promotion against the temporary vacancies, the petitioners have accepted the condition attached to their temporary promotion They therefore cannot challenge the condition, now after a lapse of more than four years. Before taking up the contentions raised by the learned counsel for the petitioners, it would be proper to examine the source of recruitment to the post of Head Constable. At S. No. 3 of Section IV relating to the Rajasthan Armed Constabulary of the Schedule appended the Rules, source of recruitment is l00% by promotion from the cadre of Constable. The minimum qualification and experience required for promotion is five years continuous service or three years in case of those, who passed Higher Secondary Examination. Rule 9 (1) speaks about the determination of the vacancies. It reads:- "9. Determination of vacancies : (1) Subject to the provisions of these Rules the Inspector General of Police or such authority as may be nominated by him shall determine each year the number of vacancies anticipated during the following (sics) twelve months and the number of persons likely to be recruited by each method. Such vacancies shall be determined again before the expiry of 12 months of the last determination of such vacancies. (2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " Rule 24 lays down the procedure for selection. It runs as under:- "24. Procedure for Selection : (1) After the vacancies to be filled by promotion have been determined under Rule 9, the Board as referred to in sub-rule (3) below shall be constituted. The Board shall prepare correct and complete list containing names not exceeding five times the number of vacancies out of the senior most eligible numbers of service, who have passed Part-I of the qualifying examination specified in rule 26 by obtaining: (i) For Armed Police /rajasthan Armed Constabulary 40 per cent in parade, practical and other out-door tests and 36 per-cent in written tests with 45 per-cent in aggregate; (ii) Not relevant for our purpose; (iii) Not relevant for out purpose; for promotion to the class of post-concerned".
(3.) SUB-rule (2) of rule 24 of the Rules relating to the making a list of suitable candidates, after conducting interviews, reads as under:- " (2) The Boards constituted under this Rule shall consider the cases of all the persons included in the list, interviewing all of them and shall prepare a list containing names of suitable candidates in order of Seniority, who secure 45 per-cent marks in qualifying examination Part-II and 50 percent aggregate of the total marks of the qualifying examination Part I & II upto one and half times and number of such posts as determined to be filled under rule 9. " Sub-rules (4) and (5) of rule 24 of the Rules dealing with the Approved List for promotion run as under; " (4) The candidates included in the lists prepared by the various Boards under sub-rule (3), above including the candidates nominated under rule 25 shall be required to undergo Promotion Cadre Course. The candidates shall be sent for Promotion Cadre Course in accordance with seniority. (5) Names of the candidates, who have successfully completed the Promotion Cadre Course in the first attempt shall be placed on an approved list for promotion in order of seniority and the names of failures shall be added below the aforesaid list as and when they pass the Promotion Cadre Course". Then, comes rule 29 (1), which finally speaks about the promotion. It reads :- "29. Promotion- (1) Substantive promotions in the service shall be given in accordance with the order in which names appear in the "approved List". ;