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2015 Supreme(J&K) 569
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
N. PAUL VASANTHA KUMAR, TASHI RABSTAN, JJ.
Rohit Gupta and Ors. – Appellants
Vs.
Ajay Kumar and Ors. – Respondents
LPASW Nos. 138, 139, 172, 154, 189 of 2011, D-69, D-70, 73, D-74 and 75 of 2014
Decided On : 31-12-2015
For the Appellant :M.K. Bhardwaj, Sr. Advocate and Vasu Dubey, Advocate
For the Respondents:P.N. Raina, Sr. Advocate, J.A. Hamal, Ashok Parihar, Abhinav Sharma, Pranav Kohli and Vipal Gandotra, Advocates
Headnote:
Seniority - Prosecuting Officers - Rule 111(2) of the Police Rules, 1960, Rule 24 of the J&K Civil Services(Classification, Control & Appeal) Rules, 1956 - The court held that Prosecuting Officers are part of the Police Force and are governed by the Police Act and Police Rules. There is no inconsistency between Rule 24 of the CCA Rules and Rule 111(2) of the Police Rules as Rule 111(2) operates only in certain contingencies. The court also found that non-issuance of notice to the writ petitioners while altering their final seniority list has vitiated the action of the official respondents. The decision of the learned Single Judge in declaring Rule 111 of the Police Rules as ultra vires was set aside.
Fact of the Case:
The writ petitioners, who were Prosecuting Officers, challenged the re-drawing of the seniority list based on Rule 111(2) of the Police Rules. They contended that their seniority should be fixed based on the merit secured by them in the selection process, not on the merit secured during the training course. The Government constituted a Committee and re-fixed the seniority without issuing notice to the writ petitioners, who were already shown as seniors and some of whom were even promoted temporarily before re-fixing the seniority.
Finding of the Court:
The court found that Prosecuting Officers are part of the Police Force and are governed by the Police Act and Police Rules. It held that there is no inconsistency between Rule 24 of the CCA Rules and Rule 111(2) of the Police Rules as Rule 111(2) operates only in certain contingencies. The court also found that non-issuance of notice to the writ petitioners while altering their final seniority list has vitiated the action of the official respondents. The decision of the learned Single Judge in declaring Rule 111 of the Police Rules as ultra vires was set aside.
Issues: The issues which arose for determination in these appeals were: (1) Whether the Prosecuting Officers are Police Officers, i.e. whether they are the separate wing in the police force. (2) Is there any conflict between Rule 24 of CCA Rules and Rule 111 of the Police Rules in fixing seniority and whether writ petitioners are justified in contending that their seniority shall not be determined by applying Rule 111(2) of the Police Rules and their seniority already determined as per Rule 24 of the CCA Rules be maintained. (3) Whether non-issuance of the notice before altering the seniority of the Prosecuting Officer of 1998, 2002 and 2004 batches of the Prosecuting Officers have vitiated seniority list impugned in the writ petitions. (4) Whether the official respondents are entitled to alter the seniority of the writ petitioners which was finalized by the official respondents and acted upon by giving temporary promotions.
Ratio Decidendi: The court held that Prosecuting Officers are part of the Police Force and are governed by the Police Act and Police Rules. It found that there is no inconsistency between Rule 24 of the CCA Rules and Rule 111(2) of the Police Rules as Rule 111(2) operates only in certain contingencies. The court also found that non-issuance of notice to the writ petitioners while altering their final seniority list has vitiated the action of the official respondents. The decision of the learned Single Judge in declaring Rule 111 of the Police Rules as ultra vires was set aside.
Final Decision: The writ appeals were disposed of and the order of the learned Single Judge was affirmed insofar as allowing the writ petitions and quashing the re-fixation of seniority. The finding given by the learned Single Judge in declaring Rule 111 of the Police Rules as ultra vires stands set aside.
N. Paul Vasantha Kumar, J.
1. These appeals are filed by the appellant namely the Government and some of the respondents in the writ petitions in SWP Nos. 1630/2008, 1668/2008, 1744/2008, 1493/2008, 1493-S/2008 and 1384/2008, which were disposed of by a common order dated 28.04.2011.
2. The case of the writ petitioner in SWP No. 1630/2008 before the learned Single Judge was that the petitioner was selected as Prosecuting Officer on 24.06.2002 and his name figured at Serial No. 1 of the select list. After a tentative seniority list was prepared, he along with 24 other Prosecuting Officers was promoted as Senior Prosecuting Officer in his own pay and grade. Thereafter final seniority list was issued on 09.09.2008 in terms of Rule 111(2) of the Police Rules and not in terms of Rule 24 of the J&K Civil Services(Classification, Control & Appeal) Rules, 1956. Similarly in SWAP No. 1384/2008 the case of the writ petitioner before the Writ Court was that he having been selected as Prosecuting Officer on 26.07.1999, in the final seniority list issued on 06.12.2003 his name figured at serial No. 6 and he along with 28 other candidates was promoted as Senior Prosecuting Officer in his own pay and grade. It was contended that though in the confirmed list of Prosecuting Officers his name figured at serial No. 94, the writ petitioner has been affected by the act of respondents in redrawing the seniority list of Prosecuting Officers of 1998, 2002 and 2004 batches.
The writ petitioners in SWP No. 1744/2008 were also aggrieved of the re-drawing of the seniority list in terms of Rule 111(2) of the Police Rules as having been appointed as Prosecuting Officers on 31.12.2003.
In SWP No. 1668/2008 the writ petitioners had made challenge to the re-drawn seniority list by contending that they are selectees of 2002 batch and after issuance of final seniority list on 10.01.2007, they were even promoted as Senior Prosecuting Officers also and respondent No. 2 has wrongly redrawn the seniority list of 1998, 2002 and 2004 batches of the Prosecuting Officers in terms of Rule 111(2) of the Police Rules.
Similarly in writ petition No. SWP No. 1493-S/2008 the case of the writ petitioners is that respondent No. 2 has wrongly redrawn the seniority list in terms of Rule 111(2) of the Police Rules.
3. The case of the writ petitioners before the learned Single Judge was that the Prosecuting Officers, who were selected through Police Recruitment Board were given seniority not on the basis of their merit secured in the selection process/select list but on the merit secured by them during the training. The merit position and the rank given as per Select List having been changed after the completion of probation based on Rule 111(2) of the Police Rules, 1960 the said action was challenged by the writ petitioners by contending that Police Rule 111(2) cannot be applied and seniority having been fixed already in terms of Rule 24 of the J&K Civil Services(Classification, Control and Appeal) Rules, 1956, merely because some persons filed objections regarding the seniority already fixed, the Government constituted a Committee and based on the suggestions of the Committee the seniority already fixed was re-fixed that too without issuing notice to the writ petitioners, who were already shown as seniors and some of whom were even promoted temporarily before re-fixing the seniority.
4. The thrust of the argument by learned counsel for the writ petitioners before the Writ Court was that seniority fixed by applying Rule 24 of CCA Rules based on the merit secured by them in the selection, namely written test as well as oral test and they having completed the probation within a period of three years, it is not open to the official respondents to change their seniority already fixed by applying Rule 111(2) of the Police Rules and in one of the writ petitions, namely SWP No. 1630/2008 an alternate prayer was made to declare Rule 111 of the Police Rules as ultra vires.
5. The learned S
