- (1.) Heard learned counsel for the parties.
(2.) The petitioners laid a challenge to the vires of Rule-7(ka) and (kha) of the Jharkhand State Police Sub-Inspector Limited Departmental Competitive Examination Appointment Rules (Recruitment Procedure) 2016 inter alia on two grounds which have been usefully referred to in our order dated 14th November 2017. For better appreciation the order dated 14th November 2017 is quoted hereunder :- "Learned counsel for the petitioner urged two main grounds to question the vires of Rule 7(ka) and 7(kha) of Jharkhand State Police Sub Inspector Limited Departmental Competitive Examination Appointment Rules (Recruitment Procedure) 2016; (i) that the rule is in teeth of the existing provisions of Police Manual contained in Rule 726 (III) which lays down Disqualification for admission to a promotion list or retention thereon in case any incumbent has faced any major punishment in any rank within last three years. (ii) the impugned Rule 7(k) renders a candidate ineligible in case he has faced any major punishment from the date of entry in service till appointment letter is issued or in case a Departmental Proceeding / Judicial Proceeding is pending or charge sheet have been filed. 7(kha) on the other hand, prescribes bar of consideration in case there are adverse entries in the confidential roll of the police personnel in the last five years. 2. We usefully refer to Rule 726(III) which falls under Chapter-23 of Police Manual relating to Promotions and Allowances. Rule 721 provides that all promotions of Gazetted Officers including promotion from Non-Gazetted rank to Gazetted rank rests with Government, but the Public Service Commission will also be consulted under Article 320 of the Indian Constitution. However, for promotion to the rank of Inspector (including Reserve Inspector) which is Gazetted, as per appendix-2 of Bihar Service Code, the consultation with Bihar Public Service Commission is not required. Rule 726 of Police Manual is quoted hereunder: "726.I. Next below rule.- While making selection for any promotion course or for promotion list for officers on deputation to any department in any rank, their record in that department should also be considered (see Bihar Service Code, rule 282). Deputationists who are on promotion lists, are entitled in case their juniors are promoted in the parent cadre to get the benefit of the "Next Below Rule". II. Conduct under enquiry.- The case of an officer, whose conduct is under enquiry and who is otherwise considered in every respect fit for promotion shall be dealt with as follows:- (a) If no case has been established till the date of promotion of the officer, this shall not be stopped. If, however, enquiries are in progress regarding misconduct of the officer, one post of appropriate seniority should be kept vacant till the final disposal of the enquiry. (See Memo no. CS/M3-1062/61-623, dated 9th February, 1961 sent from Chief Secretary to all department(s). (b) Where a prima facie case has been established on a preliminary investigation of the complaint and actionable material under the relevant punishment rules applicable to the officer concerned has been brought out and it is intended to take action against him under rules, he should not be promoted during the pendency of such enquiry whether the allegation relates to a period before the due date of promotion or afterwards. (c) The above principle also applies for confirmation and crossing Efficiency Bar. III. Disqualification for admission to a promotion list or retention thereon.- The infliction of any major punishment in any rank within the last 3 years may ordinarily be a bar to admission in any of the promotion list. A gap of three years is necessary after the infliction of major punishment before an officer is retained or considered or reconsidered for any promotion list. For special reasons to be recorded, this disqualification may be relaxed by the competent officer who gives the promotion." 3. A conjoint reading of Rule 726 with Rule 721 shows that disqualification prescribed under sub-clause-III thereof is in relation to major punishment inflicted in respect of an officer who is to be retained or considered or reconsidered in any promotion list. The impugned rules does not relate to promotion to the post of an officer. It relates to the appointment through limited departmental competitive examination to the post of Sub-Inspector which is not a Gazetted post. Prima facie, we are of the view that this contention is not tenable in law. 4. Learned counsel for the petitioner then pressed his challenge on the second ground. He submits that imposition of even one black mark is considered to be a major punishment, as per provisions of Rule 834 and 835 of Police Manual under Chapter-25 dealing with the Departmental Punishment. He submitted that effect of one black mark ceases after the period of three years. However, the impugned rule renders the intending candidate ineligible for appointments for all times to come. This does not stand the test of rationality. 5. Learned counsel for the State seeks short time to obtain instruction in the matter and offer his response. 6. Accordingly, two weeks time is allowed. List the case thereafter."
(3.) Prima-Facie we did not find much substance in the first ground of challenge as the provisions of Rules 721 and 726 fall under Chapter-23 of the Police Manual relating to promotions and allowances and deal with the cases of officers. The impugned Rule does not relate to promotion to the post of an officer. It relates to the appointment through Limited Departmental Competitive Exam to the post of Sub-Inspector which is not a gazetted post. In fact the instant Rule is altogether new Rule framed under the provisions of Article 309 of the Constitution of India by the State Government read with Section 46(3) of the Police Act, 1861. It has been notified on 28th January 2016 vide notification no.252 of the Home, Prison and Disaster Management Department, Government of Jharkhand. This Rule creates a channel of appointment to the post of Sub-Inspector through limited departmental competitive exam for 25% of the post of the promotional quota out of 50% post meant for the cadre of Sub-Inspector, to be filled up from the rank of Constable and Havildar. The respondent-State in its affidavit have clarified that the instant rule was further amended through notification no. 3796 dated 12th July 2017 by deleting the effect of minor punishment from Rule 7(ka) and 8 of the original Rules of 2016. However, as per the appointment rule, a candidate visited with major punishment during his/her service career shall not be eligible to appear in the Limited Departmental Competitive Examination. The advertisement no.09/2017 published by Jharkhand Staff Selection Commission is under the instant Rules for appointment to the post of Sub-Inspector of Police through limited departmental exam.;