Amra Ram And Ors vs State Of Rajasthan And Ors. ...
2023 Latest Caselaw 7115 Raj

[2023:RJ-JD:29270]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 8131/2017

1. Amra Ram S/o Shri Roopa Ram, R/o Vpo Dasania, Tehsil Shergarh, District Jodhpur, Rajasthan.

2. Purkha Ram S/o Shri Bhinya Ram, R/o Vpo Khabda Khurd, Tehsil Osian, District Jodhpur, Rajasthan.

3. Shankra Ram S/o Shri Hema Ram, R/o Vpo Dhaliya, Tehsil Pokran, District Jaisalmer, Rajasthan.

----Petitioners Versus

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

2. The Director General Of Police, Police Headquarter Jaipur, Rajasthan.

3. The Inspector General Of Police, Jodhpur Range, Jodhpur, District Jodhpur, Rajasthan.

4. The Police Commissioner, Jodhpur Commissionerate, District Jodhpur, Rajasthan.

5. The Superintendent Of Police, Jaisalmer, District Jaisalmer, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Kailash Jangid with Mr. Mohan Singh Shekhawat For Respondent(s) : Mr. Anil Kumar Bissa, Mr. Manoj Purohit } Mr. O.P. Sangwa } for Intervenors

JUSTICE DINESH MEHTA Judgment 13/09/2023

1. By way of present writ petition, the petitioners have

challenged the order dated 08.07.2017 (Annex.8), whereby

constables have been sent for Promotion Cadre Course for the

post of Head Constable (Motor Transport).

[2023:RJ-JD:29270] (2 of 15) [CW-8131/2017]

2. Mr. Jangid, learned counsel for the petitioners while apprising

the Court about the requisite facts submitted that all the three

petitioners were appointed on the post of Constable (Driver) in

Jaisalmer by way of common order dated 31.03.1998. Names of

petitioner No.1, 2 and 3 were shown at Serial No.3, 20 and 45

with their merit position shown as 2, 11 and 30 respectively in

General Category.

3. The petitioners and the candidates who were appointed with

the petitioners and many other became eligible for promotion as

per the norms fixed for promotion under the Rajasthan Police

Subordinate Service Rules, 1989 (hereinafter referred to as 'the

Rules of 1989).

4. The respondents No.3 issued a list of eligible candidates

entitled to appear for qualifying examination for promotion to the

post of Head Constable (Motor Transport) for the year 2013-14 for

Jodhpur Range. The said list was issued in order of their age -

candidate with earlier date of birth was shown higher in the list

while the younger one was shown in the lower position.

5. However, as the petitioners' date of appointment order was

shown as 01.04.1998, they moved representation before the

respondents in pursuance whereof their date of appointment was

changed to 31.03.1998 and revised seniority numbers were

allotted to them.

6. The result of written examination was declared by the

respondents on 06.07.2017, showing the names of candidates

who have qualified the written examinations. The petitioners

names found mention at Sl.No.22, 43 and 23 respectively.

Thereafter, vide communication dated 06.07.2017, all the

[2023:RJ-JD:29270] (3 of 15) [CW-8131/2017]

candidates who have cleared the written examination were sent

for out-door test and interview; the petitioners' names were

reflected at Sl.No.6, 7 and 13 in the said list.

7. By way of office order dated 08.07.2017, as many as 29

Constables have been sent for promotion cadre course for the post

of Head Constable (Motor Transport), but the petitioners were not

sent. Feeling aggrieved of such action, the present petition has

been preferred.

8. By way of interim order dated 14.07.2017, three posts were

ordered to be kept vacant. During the pendency of the present

petition, leaving three posts vacant in petitioners' category

(General) by way of order dated 14.12.2017, promotions to the

post of Head Constable (Motor Transport) have been made.

9. Learned counsel for the petitioners argued that the

respondents have illegally granted promotion ignoring the

seniority of the petitioners and violating the mandate of Rules 23,

29 and 31 of the Rules of 1989. He highlighted that 21 candidates

exactly in order of the Roll Numbers have been picked for

promotion out of the list that was prepared before the written

examinations were held. He argued that all the General Category

candidates have been given promotion on the basis of Roll

Numbers only which was prepared on the basis of date of birth

and not seniority. He argued that such list, if treated as seniority

list, is contrary to circular dated 10.01.2008 passed by the

Director General of Police, Jaipur.

10. Learned counsel for the petitioners navigated the Court

through the above referred list and the list of the candidates given

promotion and highlighted that even Constables from Jaisalmer

[2023:RJ-JD:29270] (4 of 15) [CW-8131/2017]

District (in the same Range) appointed with the petitioners have

been given promotion, ignoring petitioners' rights who were higher

in merit list, when the initial appointment order was issued (being

at merit no. General-02, General-11 and General-30). He

submitted that names of constables from Jaisalmer District who

have been promoted were mentioned at Sl.No.14, 16, 17, 20 and

22 respectively whereas in the original order of appointment dated

31.03.1998 they were holding merit position No.18, 42, 5, 6 and 3

respectively.

11. It was argued by learned counsel for the petitioners that the

candidates appointed by one common order should be given

seniority in order of the merit position they held, whereas the

respondents have promoted the intervenors such as Shiv Prakash,

Rajendra Singh etc. ignoring such basic principle.

12. Mr. Anil Bissa, learned Additional Government Counsel

appearing on behalf of the respondents on the basis of the reply

submitted that the seniority lists of technical posts which includes

Constable (Motor Transport) are maintained at the Range Level

and therefore, promotions have been correctly made.

13. During the course of proceedings finding apparent

incongruity in the promotional exercise, this Court passed

following order on 04.09.2023:-

"1. On perusal of the record, particularly (Annex.6) the result of the written examination held during the course of promotion exercise for the year 2013-14 and the list of candidates given promotion vide impugned order dated 08.07.2017 (Annex.8), this Court finds that the persons mentioned at serial Nos.1 to 21 (General Candidates) in the impugned order dated 08.07.2017 are exactly identical (and in the same order) to the list of candidates who have been declared successful in the written examination.

2. Mr. Jangid, learned counsel for the petitioner invited Court's attention towards the appointment order dated 31.03.1998 and highlighted that many candidates who were below to the petitioner

[2023:RJ-JD:29270] (5 of 15) [CW-8131/2017]

in merit at the time of recruitment have been given promotion ignoring the petitioner's seniority.

3. Mr. Bissa, learned counsel appearing for the State prays for and is granted a week's time to complete his instructions.

4. List this Case on 11.09.2023."

14. In response to the Court query, Mr. Bissa, learned counsel for

the respondents submitted that as per the Circular dated

14.03.2000 issued by the Inspector General of Police, seniority of

personnel working on technical posts is reckoned range wise and

on the basis of recruitment year/date and not on the basis of date

of appointment (sic joining) and therefore, the seniority of all the

candidates was reckoned from the date of appointment order and

seniority of petitioners was reckoned from 31.03.1998. He added

that all the constables appointed on 31.03.1998 were accorded

seniority on the basis of their date of birth - 'the person who was

older in age was treated senior'.

15. He also submitted that such exercise has been done by the

respondents in light of proviso (1) to Rule 36 of the Rules of 1989.

16. Heard learned counsel for the parties and perused the

record.

17. Before adverting to the rival contentions, this Court deems it

appropriate to surf through the relevant provisions, viz. Rules 23,

29, 30 and 36 of the Rules of 1989. For the sake of convenience,

the same are being reproduced herein:-

"Rule 23. Recommendations of the Board/Commission:- The Board/Commission shall prepare a list of the candidates, whom they consider suitable for appointment to the post concerned, arranged in order of merit, and forward the same to the Director General-cum- Inspector General of Police, who shall in his turn intimate to the Appointing Authority concerned, the name of the candidates in order of merit as mentioned in the list, up to the number of vacancies available. The Board/Commission shall not recommend candidates, who have secured less

[2023:RJ-JD:29270] (6 of 15) [CW-8131/2017]

than 36% marks in interview and 45% marks in the aggregate:

Provided that the Recruitment Board/Commission may recommend "Women candidates", candidates belonging to, "Backward Classes, More Backward Classes, Economically Backward Classes and Economically Weaker Sections" the Scheduled Casts and Scheduled Tribes, who though failing to obtain to minimum marks, are declared by the Board to be suitable for the appointment to the service with due regard to the maintain of efficiency of administration if the candidates secure 30% marks in interview and 40% marks in the aggregate.

Rule 29. Qualifying Examination for "Promotion":-

(1) Qualifying examination for promotion means and includes:-

Part-I : Written, Practical, Parade and other out-door tests.

Part-II: Interview and Examination of service record, including Annual Confidential Reports.

(2) The syllabus for Part-I examination and general instructions in respect of Part-II shall be determined and issued by the Director General-cum-Inspector General of Police from time to time.

(3) The various Boards referred to in Sub -rule (3) of Rule 27 shall fix the dates and places of examinations. The names of candidates who have been found fit to undergo promotion cadre course, shall be announced by the Chairman of the Board after finalization of the results and a list containing the name of such candidates shall be forwarded to the Appointing Authority as well.

Rule 30. Promotion Cadre Course:- (1) The Promotion Cadre Course for various ranks shall be conducted at the training institutions as may be decided by the Director General-cum-Inspector General of Police from time to time.

(2) The promotion Cadre Course shall be of such duration and shall have such syllabus as may be approved by the Director General-cum-Inspector General of Police from time to time. In the Promotion Cadre Course due emphasis shall be laid down for indoor and outdoor work.

(3) The Promotion Cadre Course examination shall be conducted by such Board as may be constituted by the Director General-cum-Inspector General of Police for the purpose.

Rule 36. Seniority:- "Seniority of persons appointed to the post encadred in the service shall be determined from the date of appointment on the post after regular selection in accordance with the provision of these rules. Appointment on ad-hoc or urgent temporary basis shall not be deemed to be appointment after regular selection."

Provided that:-

(1) The seniority inter-se of the persons appointed to the service before the commencement of these rules and/or

[2023:RJ-JD:29270] (7 of 15) [CW-8131/2017]

in the process of integration of the service of the Pre- reorganization of the State of Rajasthan or the services of the new State of Rajasthan established by the State Re Organisation Act,1956, shall be determined, modified or altered by the Appointing Authority on an ad-hoc basis but where date of appointment of two or more persons in a particular section is same, the persons senior in age shall be placed higher where two or more persons in a particular section have same date of appointment and birth, the person having higher educational qualifications will be placed higher.

(2) If two or more persons are appointed to a post in a particular section in the same year, a person appointed by promotion shall be senior to a person appointed by direct recruitment.

(3) The seniority inter se of persons appointed to a post in a particular section by direct recruitment on the basis of one and the same selection, except those who do not join service, when a post is offered to them, shall follow the order in which their names have been placed in the list prepared under rule 23.

(4) that the persons appointed to the posts of Sub- Inspector/Platoon Commander included in 91"Sections-I, II, IV, V and VI" of Schedule-I in accordance with the provisions contained in proviso (a) to sub rule (2) of Rule 17 shall rank junior to the persons appointed by direct recruitment in the same year under rule 25.

(5) the seniority inter se of persons appointed to a post in particular section by promotion shall follow the order in which their names have been placed in the list prepared under sub-rule (6) of Rule 27 subject to the provisions of rule and the seniority inter se of persons appointed by promotion in particular class of posts will be same as in the next below grade.

(6) No person shall be entitled for higher seniority on basis of officiation on a higher post.

(7) In case a person is allowed to move from one section to another under rule-4, on his request he shall rank junior most in the particular rank in the section to which he is transferred.

(8) Deleted.

(9) Withdrawn.

(9) the inter-se seniority of the persons screened under proviso added by these amendment rules in rule relating to method of recruitment, shall be determined according to the length of continuous service after their irregular appointment. These persons shall rank junior to the persons appointed regularly before the commencement of these amendment rules.

(10) Provided that reservation for Scheduled Castes and Scheduled Tribes employees, with consequential

[2023:RJ-JD:29270] (8 of 15) [CW-8131/2017]

seniority, shall continue till the roster points are exhausted; and adequacy of promotion is achieved.

Once the roster points are complete the theory of replacement shall thereafter be exercised in promotion whenever vacancies earmarked for Scheduled Castes/ Scheduled Tribes employees occur.

If on the application of these provisions the Scheduled Castes/Scheduled Tribes employees who had been promoted earlier and are found in excess of the adequacy level, shall not be reverted and shall continue on ad-hoc basis, and also any employee who had been promoted in pursuance to Notification No. F.7(1)DOP/A-II/96 dated 01-04-1997 shall not be reverted.

Notification No. F. 7(1)DOP/A-II/96 dated 01-04-1997 shall be deemed to have been repealed w.e.f. 01-04-1997.

Explanation:- Adequate representation means 16%representation of the Scheduled Castes and 12% representation of the Scheduled Tribes in accordance with the roster point.

(11) After the merger of the post of various wings of Police Tele-Communications, the inter-se-seniority of the persons shall be determined from the date of their regular selection on the post in respective wing, if the date of regular selection of such persons is same then the inter-se- seniority shall be determined on the basis of length of service after regular selection in their respective wing. In case where the date of selection of two or more persons is same in direct recruitment, the person elder in age shall be senior."

18. A perusal of Rule 23 reveals that the Board or the

Commission while recommending the names of the persons

suitable for appointment shall recommend the names in order of

merit as mentioned in the list.

19. Rule 36(3) of the Rules of 1989 in unequivocal terms

provides that the seniority of the candidates inter-se appointed on

the post by direct recruitment from the same selection shall be on

the basis of the order in which their names have been placed in

the list prepared under Rule 23.

20. A close and conjoint reading of Rules 23 and 36 of the Rules

of 1989 leaves no room for ambiguity that seniority on a post shall

be determined or seniority list is required to be prepared on the

[2023:RJ-JD:29270] (9 of 15) [CW-8131/2017]

basis of date of appointment and in case the date of appointment

is same or common, then, as per the respective merit position.

Whereas, the respondents have promoted the candidates in order

of the seniority in age. The entire exercise has been done as per

the list of candidates eligible for appearing in the qualifying

examination for promotional post of Head Constable (Motor

Transport), which was issued in order of date of birth.

21. There is no dispute on the issue that all the three petitioners

so also the intervenors have cleared the qualifying examination

including the written examination, out-door test and interview.

22. A perusal of Rule 29, more particularly sub-rule (3) shows

that the names of candidates who have been found fit to undergo

promotion cadre course shall be announced by the Chairman of

the Board and the list containing the names of such candidates

shall be forwarded to the appointing authority.

23. It is therefore, clear that the qualifying examination is only

for the purpose of ascertaining the competence and suitability of

the candidates and merit position in such examination is of hardly

any relevance. And all the candidates who have cleared the

qualifying examinations, regardless of their merit in the qualifying

examinations are required to be sent to the promotion cadre

course subject of course to the availability of the posts and their

seniority.

24. The dispute in the present case is not in relation to merit

position in the qualifying examination but in relation to the

seniority. Not only as a normal or routine procedure, even as per

Rule 36(3) of the Rules of 1989, the respondents ought to have

prepared a list of candidates to be sent for promotion cadre course

[2023:RJ-JD:29270] (10 of 15) [CW-8131/2017]

who have cleared the qualifying examination in order of their

seniority. The seniority they thought of is, the seniority list they

prepared while issuing roll numbers. Said seniority list is based on

complete misreading of the circulars dated 10.01.2008 and

14.03.2000 so also provisions contained in Rule 36 of the Rules of

1989.

25. During the course of hearing, photocopy of a communication

dated 25.05.2017 was placed for perusal of the Court, the same is

taken on record. A perusal thereof reveals that the seniority list

was prepared on the basis of date of appointment and in the event

of the date of appointment of two or more persons being the

same, the person older in age has been shown to be senior or has

been given higher seniority. It will not be out of place to reproduce

relevant part thereof:

"dk;kZy; egkfujh{kd iqfyl] tks/kiqj jast tks/kiqj Øekad% i&3¼ ½tks/k@jsUt@QkslZ@2013@1702&07 fnukad% 25 ebZ] 2017 leLr iqfyl v/kh{kd jsat tks/kiqj fo'k;%& dkfu- ,eVh- ls gSM dkfu- ,eVh- ds in ij inksUufr gsrq ;ksX;kRed ijh{kk o'kZ 2013&14-

izlax %& bl dk;kZy; dk i=kad 1678&83 fnukad 23-05-2017 egksn;] fo'k;kUrxZr bl dk;kZy; ds i= Øekad 1390&95 fnukad 03-05-2017 ds }kjk dkfu- ,eVh- ls gSM dkfu- ,eVh- dh ijh{kk o'kZ 2013&2014 gsrq ofj'Brk Øe esa ik=rk lwph tkjh dj fnukad 05-05-2017 rd ofj'Brk ds laca/k esa vkifÙk pkgs tkus ij fu/kkZfjr frfFk rd izkIr vkifÙk izkFkZuk i= ij fu;ekuqlkj dk;Zokgh dj fu;ekuqlkj la"kksf/kr ik=rk lwph izklafxd i= ds }kjk tkjh dh xbZA ftlesa Øe la[;k 21] 24] 26 ,oa 27 esa fu;qfDr frfFk esa fyfidh; Hkwy ds dkj.k Vad.k esa =qfV jg tkus ds dkj.k fuEukuqlkj la"kksf/kr ik=rk lwph ,oa jksy uEcj dh lwph tkjh dh tkrh gSA Ø- uke dkfu- ,eVh- in oxZ tUe fu;qfDr orZeku jsUt dh vkaofVr la- frfFk frfFk inLFkkiu ofj'Brk jksy ftyk lwph uEcj Øekad 1- Jh eksguflag 618 lkekU; 1-7-57 31-8-79 ftyk 9A 1 ckM+esj 2- Jh f"koizdk"k 338 lkekU; 9-8-72 09-5-93 ftyk 30 2

[2023:RJ-JD:29270] (11 of 15) [CW-8131/2017]

ckM+esj 3- Jh HkkxhjFk 117 lkekU; 1-1-71 22-5-93 ftyk 31 3 tSlyesj 4- Jh jktsUnzflag 512 lkekU; 6-1-71 25-5-93 ftyk 32 4 tkyksj 5- Jh eqds"kdqekj 202 ,l-lh- 7-6-71 5-6-93 tks/kiqj 33A 5 @ xzkeh.k 130 gky 1 vk;qDrkY;

tks/kiqj 6- Jh txkjke 182 lkekU; 10-1-70 28-6-93 tks/kiqj 36 6 5 xzkeh.k 7- Jh useflag 817 lkekU; 5-3-72 4-12-94 ftyk 37 7 ckM+esj 8- Jh Hkaojyky 819 lkekU; 6-6-72 4-12-94 ftyk 38 8 ckM+esj 9- Jh dkywflag 244 lkekU; 18-11-71 5-12-94 ftyk 39 9 fljksgh 10- Jh lqesjflag 86 lkekU; 11-2-73 31-12-94 ftyk 41 10 tkyksj 11- Jh tksxkjke 267 lkekU; 1-11-71 1-1-95 ftyk 42 11 tSlyesj 12- Jh jkeiky 539 lkekU; 25-12-73 14-03-95 ftyk 45A 12 7@ tSlyesj 194 gky @ vk;qDrky;@ vkjih, t;iqj

13- Jh Hkaojyky 818 lkekU; 1-1-74 26-12-96 ftyk 47 13 ckM+esj 14- Jh fdj.kflag 618 lkekU; 27-7-74 27-12-96 ftyk ikyh 49 14 15- Jh tho.kjke 180 lkekU; 12-8-74 30-1-97 tks/kiqj 51 15 3 xzkeh.k 16- Jh "kaHkwflag 678 lkekU; 15-7-74 28-3-98 ftyk 56 16 fljksgh 17- Jh chjcyjke 186 lkekU; 1-1-74 31-3-98 ftyk 57A 17 4@ tSlyesj 102 ftyk tks/kiqj 3 xzkeh.k

18- Jh xeukjke 748 lkekU; 4-7-74 31-3-98 ftyk ikyh 57A(1) 18 19- Jh ckcqjke 53 lkekU; 4-8-74 31-3-98 ftyk 57A(2) 19 @ tSlyesj 106 gky ihVh,l 1 tks/kiqj

20- Jh fot;flag 144 lkekU; 17-5-75 31-3-98 ftyk 57C 20 @ tSlyesj 100 gky vkjih, 8 t;iqj

21- Jh eaxukjke 105 lkekU; 1-7-75 31-3-98 ftyk 57C(1) 21 8 tSlyesj 22- Jh iksdjjke 185 lkekU; 15-7-75 31-3-98 tks/kiqj 57C(2) 22 0 xzkeh.k 23- Jh gtkjhjke 65 lkekU; 24-7-76 31-3-98 tks/kiqj 57E 23 @ xzkeh.k

[2023:RJ-JD:29270] (12 of 15) [CW-8131/2017]

486 gky ihVh,l] tks/kiqj 24- Jh ewypUn 102 lkekU; 4-8-76 31-3-98 ftyk 57E(1) 24 2 tSlyesj 25- Jh yhykorflag 874 lkekU; 19-9-76 31-3-98 ftyk ikyh 57F 25 26- Jh vejkjke 450 LkekU; 13-10-76 31-3-98 ftyk 57G 26 @ tSlyesj 100 gky 3 vk;qDrky;

tks/kiqj 27- Jh "kadjkjke 104 lkekU; 10-11-76 31-3-98 ftyk 57H 27 5 tSlyesj 28- Jh eBkj [kkW 104 lkekU; 9-9-77 31-3-98 ftyk 62A 28 6 tSlyesj 29- Jh Qjlkjke 106 lkekU; 1-2-78 31-3-98 ftyk 62B 29 2 tSlyesj gky tks/kiqj xzkeh.k 30- Jh isekjke 104 ,llh 25-6-72 1-4-98 ftyk 62C 30 6@ tSlyesj 101 gky 3 vk;qDrky;

tks/kiqj 31- Jh /kekZjke 347 vkschlh 13-10-73 1-4-98 ftyk 65A 31 @ fljksgh 181 gky tks/kiqj 9 xzkeh.k

32- Jh Jo.kflag 241 lkekU; 1-2-74 1-4-98 ftyk 66 32 ckM+esj gky dfe"ujsV tks/kiqj 33- Jh ckcwyky 352 lkekU; 1-7-75 1-4-98 ftyk 69 33 fljksgh gky jsat dk;kZy;

                                                           tks/kiqj
      34- Jh fd"kuxksiky 162 lkekU; 30-8-75        1-4-98 ftyk ikyh           87A        34
      35- Jh guqekukjke 103 lkekU; 1-5-76          1-4-98 ftyk                87B        35
                          2                               tSlyesj
      36- Jh dj.kflag    671 LkkekU; 21-9-73       2-4-98 ftyk                93         36
                                                          ckMesj
      37- Jh iq[kjkt      979 LkkekU;    5-9-75    2-4-98 ftyk                98         37
                                                          ckMesj

26. What has been done by the respondents, as is evident from

the record and what has transpired from Mr. Bissa's submission is,

that they have resorted to proviso (1) to Rule 36 and have taken

the date of birth into consideration while completely ignoring the

seniority or the merit position on the date of appointment.

[2023:RJ-JD:29270] (13 of 15) [CW-8131/2017]

27. The State's stand that as per proviso (1) to Rule 36,

seniority list is required to be prepared on the basis of date of

appointment and person senior in age is required to be placed

higher, is absolutely untenable.

28. Firstly, proviso (1) to Rule 36, which has been resorted to by

the respondents is an exception to the main provision contained in

Rule 36, which in unequivocal terms postulates that seniority on

the post en-cadred in the service shall be determined from the

date of appointment on the post coupled with the provisions of

these Rules.

29. That apart, a careful reading of proviso (1) to Rule 36 of the

Rules of 1989 suggests that the same was meant to undertake

one time exercise, before the commencement of these rules

and/or in the process of integration of the service of the Pre-re-

organization of the State of Rajasthan and the same is not meant

for the present purpose, when the petitioners and the private

respondents were appointed in the year 1998.

30. The respondents have thus wrongly resorted to proviso (1)

to Rule 36 while giving a complete go-bye to the mandate of the

Rules of 1989 and general principles governing the seniority and

promotion.

31. As per proviso (3) to Rule 36, if the seniority is to be

maintained, the respondents were required to take into account

Rule 23, which expressly provides that the recommendation of the

names shall be in order of merit.

32. The exercise undertaken by the respondents apart from

being contrary to the rules, if allowed to continue, would be

violative of Article 14 of the Constitution of India being irrational

[2023:RJ-JD:29270] (14 of 15) [CW-8131/2017]

and discriminatory. Two persons appointed on the same date

cannot be discriminated on the fortuitous event namely, their date

of birth, in complete derogation of their merit position. Date of

birth becomes relevant and can be resorted to, only if two persons

secure same merit position.

33. It may be noted that two constables namely Hajari Ram and

Moolchand had filed impleadment applications dated 05.01.2018

averting that their names were mentioned in the list dated

25.05.2017 at serial numbers 23 & 24 and they were sent for

Promotion Cadre Course and are thus, entitled for promotion. A

Coordinate Bench of this Court by way of order dated 08.01.2018

disposed of their application while permitting them to intervene.

Similarly another application came to be filed by 20 persons on

05.04.2018, who have been promoted by order dated 14.12.2017,

apprehending that any order passed herein may prejudice their

rights. Said application too was disposed of by this Court during

the proceedings of 20.04.2018 and they too were allowed to

intervene and make submissions during the course of arguments.

34. Admittedly, all the three petitioners were higher in merit on

the date of appointment than the intervenors (Hazari Ram &

Moolchand) and some of the other intervenors who have been

promoted by the respondents. All of them have been heard

through their counsel. Hence, there is no procedural impediment

in quashing the order of promotion dated 14.12.2017, which is

apparently illegal and contrary to law.

35. The petitioners had approached this Court immediately on

issuance of order dated 08.07.2017 whereby, the candidates were

sent for Promotion Cadre Course. By way of order dated

[2023:RJ-JD:29270] (15 of 15) [CW-8131/2017]

14.07.2017, three posts were ordered to be kept reserved, during

the pendency of the writ petition leaving three posts, the

respondents have issued order of promotion on 14.12.2017.

36. The writ petition is, therefore allowed; order of promotion

dated 14.12.2017, (which is based upon the list of candidates sent

for promotion cadre course dated 08.07.2017) is hereby quashed.

37. The respondents are directed to prepare a fresh seniority list

in accordance with law on the basis of initial date of appointment

vis-a-vis their merit position. If the candidates, who have cleared

the qualifying examination, were appointed on the same date,

their merit position in the order of appointment shall be taken into

account and the person having secured higher merit position shall

be given precedence over the persons lower in merit. While doing

this exercise, the respondents shall take into account the mandate

of Rules 23 and 36(3) of the Rules of 1989 and also whatever has

been held hereinabove.

38. Requisite exercise be completed within a period of two

months from today.

39. After preparation of fresh seniority list pursuant to the

adjudication made hereinabove, in case any candidate(s) is/are

reverted, no recovery shall be effected from him/them.

40. Stay application stands disposed of.

(DINESH MEHTA), J m-41-Arvind/Arun V/-

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