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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Mr. Inderjeet Singh, J.
State Of Rajasthan & Ors. – Appellant
Versus
Krishna Kumar & Ors. – Respondent
S.B. Civil Writ Petition No. 5926/2022
Decided On : 27-09-2022
The Court directed the State Government to constitute a High Level Committee to determine the year wise vacancies for promotion from the post of Constable to Head Constable and from Head Constable to ASI and to complete the promotion process strictly in accordance with the Rules of 1989. The Court also directed that in case of any difficulty in making the promotions the State Government is free to create superannuate posts in view of Rule 18 of RSR. The compliance was to be made within a period of six months.
Fact of the Case:
The petitioners, who were police officers, challenged the orders passed by the Rajasthan Civil Services Appellate Tribunal (Tribunal) and the State Government related to their promotion from the post of Constable to Head Constable and from Head Constable to ASI. The petitioners contended that the Tribunal and the State Government had committed errors in calculating the year-wise vacancies and in making promotions, which resulted in their wrongful promotion or non-promotion.
Finding of the Court:
The Court found that the Tribunal and the State Government had indeed made errors in calculating the year-wise vacancies and in making promotions. The Court held that the State Government was duty-bound to determine the year-wise vacancies and to hold promotional activities every year as per the Rules of 1989. The Court also held that the State Government had admitted its mistake in calculating the year-wise vacancy, and therefore, it was just and proper to direct the State Government to again determine the year-wise vacancy, to hold the written examination every year, and to prepare the select list/approved list every year as per the Scheme of Rules of 1989.
Issues: 1. Whether the Tribunal and the State Government had committed errors in calculating the year-wise vacancies and in making promotions? 2. Whether the State Government was duty-bound to determine the year-wise vacancies and to hold promotional activities every year as per the Rules of 1989? 3. Whether the State Government had admitted its mistake in calculating the year-wise vacancy?
Ratio Decidendi: 1. The Court held that the Tribunal and the State Government had indeed made errors in calculating the year-wise vacancies and in making promotions. The Court relied on various judgments of the Supreme Court and the Rajasthan High Court to hold that the State Government was duty-bound to determine the year-wise vacancies and to hold promotional activities every year as per the Rules of 1989. The Court also held that the State Government had admitted its mistake in calculating the year-wise vacancy, and therefore, it was just and proper to direct the State Government to again determine the year-wise vacancy, to hold the written examination every year, and to prepare the select list/approved list every year as per the Scheme of Rules of 1989. 2. The Court directed the State Government to constitute a High Level Committee to determine the year wise vacancies for promotion from the post of Constable to Head Constable and from Head Constable to ASI and to complete the promotion process strictly in accordance with the Rules of 1989. The Court also directed that in case of any difficulty in making the promotions the State Government is free to create superannuate posts in view of Rule 18 of RSR. The compliance was to be made within a period of six months.
Final Decision: The Court directed the State Government to constitute a High Level Committee to determine the year wise vacancies for promotion from the post of Constable to Head Constable and from Head Constable to ASI and to complete the promotion process strictly in accordance with the Rules of 1989. The Court also directed that in case of any difficulty in making the promotions the State Government is free to create superannuate posts in view of Rule 18 of RSR. The compliance was to be made within a period of six months. The orders passed by the Tribunal impugned in the respective petitions stood modified accordingly in the above terms.
ORDER
1. Heard on the applications filed by the applicants for their impleadment. Considering the issue involved in all these writ petitions, the applicants are allowed to assist the Court as intervenors. The applications are accordingly disposed of.
2. In category A, the matters are with regard to promotion from the post of Constable to Head Constable and in Category B, the matters are with regard to promotion from the post of Head Constable to ASI.
Category A :- Constable to Head Constable
(CWP------13746/2018, 18671/2018, 24498/2018, 11515/2022, 12360/2022)
3. The petitioner-State of Rajasthan (CWP-5926/2022) has also filed writ petition challenging the order dated 05.04.2021 passed by the Rajasthan Civil Services Appellate Tribunal (hereinafter to be referred as the Tribunal) whereby the learned Tribunal has directed for re-determination of the year-wise vacancy for promotion and further directed the State Government for creating the shadow posts.
Category B:- Head Constable to ASI (writ petitions except the aforesaid mentioned in Category A as well as CWP-5926/2022).
4. In Category-B the petitioners have challenged the order passed by the Tribunal dated 01.04.2019 whereby the appeals filed by the petitioners for re-determination of the vacancies was dismissed by the learned Tribunal.
5. Learned Advocate General appearing for the State of Rajasthan submitted that the learned Tribunal has committed serious illegality in passing of the order dated 05.04.2021 whereby the learned Tribunal wrongly directed for redetermination of the year wise vacancies and for creation of shadow posts. He further submits that the promotions were made by the State Government in compliance of the order passed by the Division Bench of this Court in the matter of Rajendra Kumar Khandelwal as well as the judgment passed by the Tribunal in the matter of Vijay Singh and exercise for promotion was done by the department. He further submits that the calculation of vacancies is administrative act and it was done from time to time by the respondents and jurisdictional error can be corrected at any time by the State Government and res-judicata will not come in their way. He further submits that if this Court finds that excess promotions have been made then they have to push down the persons who were wrongfully promoted by the State Government. He further submitted that the employee has only right of consideration of promotion and even if wrongful promotion has been given the State has every authority to refix the year of promotion. He further submits that there is no allegation made by the petitioners with regard to malafide on the part of the officers of the State Government. He further submits that in view of Section 4 of the Rajasthan Civil Services Appellate Tribunal Act 1976 (hereinafter to be referred as the Act of 1976) the Tribunal has no jurisdiction for creating the shadow posts. He further submits that all the promotional activities has been done by the respondents in view of the relevant rules of Department for promotion, more particularly while making the promotion they have duly followed Rule 10, 27, 29 & 31 of the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter to be referred as the Rules of 1989). He further submits that event the High Court under Article 226 of the Constitution of India cannot direct the State Government for creation of shadow posts. In support of his contentions, he relied upon the following judgments.
6. The Hon’ble Supreme Court in the matter of Indian Council of Agricultural Research and another v. T.K. Suryanarayan and others, reported in (1997) 6 SCC 766 has held as under :-
"8. We are, however, unable to accept the submission made by the learned counsel appearing in both these SLPs. Even if in some cases, erroneous promotions had been given contrary to the said Service Rules and consequently such employees have been allowed to enjoy the fruits of improper promotion, an employee cannot base his claim for promotio
Promotions in the police service must follow year-wise vacancy determinations, and changes in seniority require due process and adherence to established rules.
The court asserted that under the UPHJS Rules, there is no provision for carrying forward unfilled reserved vacancies into subsequent recruitment years, thus upholding existing appointment processes ....
when a new post is created, the concept of Rules obtaining when the vacancies arose is inappiicable as what is created is a new post on account of re-structuring of the cadre.
It is now a well-settled principle of law that an executive order must be passed in conformity with rules. Power of State Government to issue executive instructions is confined to filling up of the g....
The court reaffirmed that temporary or ad-hoc promotions do not confer seniority rights, emphasizing strict adherence to statutory rules for public service appointments.
Merit-based promotions take effect from the date of the promotion order, not the date of vacancy, as retrospective promotions are not justified.
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