Ashok Kumar vs State Of Rajasthan
2021 Latest Caselaw 12467 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9627/2021

Ashok Kumar S/o Late Shri Jai Narayan, Aged About 36 Years, R/o Ward No. 11, Mahajan, Police Station, Mahajan District Bikaner.

----Petitioner Versus

1. State Of Rajasthan, Through Secretary, Department Of Home, Government Of Rajasthan, Jaipur.

2. Inspector General Of Police, Jodhpur Range, Jodhpur.

3. The Superintendent Of Police, Barmer.

----Respondents

For Petitioner(s) : Mr. O. P. Sangwa with Mr. Ramdeen Choudhary For Respondent(s) : Mr. Manish Vyas, AAG

JUSTICE DINESH MEHTA

Order

10/08/2021

1. Mr. Sangwa, learned counsel for the petitioner submits that,

the controversy involved in the present writ petition is squarely

covered by Division Bench judgment dated 30.05.2017 rendered

in bunch of cases led by D.B. Special Appeal Writ No.1004/2015

(Rajendra Kumar Khandelwal & Ors. Vs. Director General of Police

& Anr.).

2. He pointed out that the only distinction between the facts in

the case of Rajendra Kumar Khandelwal (supra) and the present

case is that, in that case the anticipated vacancy for the

promotion of Sub-Inspector and RPS was under consideration,

whereas the present case concerns with promotion to the post of

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Head Constable. He submits that principles, nevertheless govern

both type of promotions.

3. The Division Bench in its judgment of Rajendra Kumar

Khandelwal (supra) has observed thus:-

"17. The view which we have taken conforms to the law declared by the Supreme Court in the decision reported as (2001)10 SCC 237 : Sri Kant Tripathi and others Vs. State of U.P. and others. The expression "vacancies likely to occur" in the applicable service rule was considered by the Supreme Court. Overruling the view taken by the High Court that vacancies on account of death, compulsory retirement, voluntary retirement, removal, dismissal and appointment of higher judicial officers as Judges of the High Court would also come within the expression "vacancies likely to occur", the Supreme Court held that this concept is wholly unsustainable inasmuch as, nobody can anticipate the number of such posts. But Supreme Court clarified that the expression 'likely to occur' obviously mean "vacancies" which in all probability would occur. Death, compulsory retirement, voluntary retirement, removal, dismissal and appointment of a member of Higher Judicial Service as a Judge of the High Court are not ascertained events. But anticipated vacancies on account of promotion is a certain event because the department has the data with it to know how many persons would be promoted in the financial year. The very purpose of the rule to determine the anticipated vacancies on the 1st day of April of the financial year is to ensure that the posts do not lie vacant. As to why the exercise has to be carried out prior to the 1st day of April each year and by the 1st day of April each year the vacant posts with reference to anticipated vacancies has to be ascertained.

18. In the instant case, admittedly on 12/06/2013,promotions from the post of Inspector to the post of RPS (Junior Scale) for the vacancy years 2010-11, 2011-12 and 2012-13 were effected. This was pursuant to the information made available pursuant to the letters dated 26/10/2012, 07/12/2012 and 09/04/2013. 43, 30 and 50 vacancies, respectively in the post of RPS (Junior Scale) had been identified. On 12/06/2013, promotion from the post of Inspector to that of RPS (Junior Scale) were effected in which, 43, 30 and 50 Inspectors for the respective years were promoted. The promotion

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order for the post of Inspector from the post of Sub-Inspector was issued on 01/08/2013.

19.Overruling the view taken by the learned Single Judge that anticipated vacancies would mean the actual vacancies, we affirm the view taken by the Tribunal that anticipated vacancies would include such vacancies which have been determined on account of further promotions to be made. We emphasis once again that in the instant case, further promotional posts which would become vacant upon promotion of officers in RPS (Junior Scale) was already known to the department before the 1st day of April and thus, said resultant vacancies upon promotion to the post of RPS (Junior Scale) were known. Therefore, it was already ascertained that said number of posts of Inspectors had become vacant. These posts had to be treated as "likely to be filled up "from the post of Sub-Inspectors to the post of Inspectors.

20. The appeals are allowed. Impugned decision dated 26/05/2015 is set-aside. Decision dated 29/11/2013 pronounced by the Tribunal is restored.

21. No costs."

4. Following the judgment aforesaid, the present writ petition is

allowed; the respondents are directed to include anticipated

vacancies and convene review DPC for the year 2016-17.

5. Needful be done within three months from today.

6. Stay application also stands disposed of.

(DINESH MEHTA),J 280-A.Arora/-

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