JUDGMENT
Hemant Gupta, J.
1. The challenge in the present writ petition is to the orders passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter to be referred as “the Tribunal”) on 8.1.1990 (Annexure P-4) and 23.09.1998 (Annexure P-12) and to direct respondentsNo. 1 to 4 to implement the order dated 28.09.1988 (Annexure P-1) passed by the Tribunal.
2. The petitioners were recruited as Constables in Chandigarh Police. The Constables in Chandigarh Police are governed by the provisions of the Punjab Police Rules, 1934 (hereinafter to be referred as “the Rules”), as applicable to the Union Territory, Chandigarh. Rule 13.7 of the Rules, Volume II, govern promotion to the post of Head Constable. An amendment was carried out on 4.3.1982 in Rule 13.7 of the Rules. The amended Rule provides that there shall be no test for Constables for their admission to the promotional course i.e. Lower School Course and they shall be admitted to the said course strictly on the basis of seniority-cum-merit i.e., record. Earlier to 4.3.1982, the names of Police Constables for admission to Lower School Course are required to be entered in List B (in form 13.7) in the order of merit, determined by the Departmental Promotion Committee on the basis of tests in (i) Parade (ii) written test in general law, and (iii) examination of service record. It has also come on record that the amendment carried out on 4.3.1982 was undone when Rule 13.7 of the Rules was again amended on 17.06.1988. By virtue of the amendment carried out on 17.06.1988, List B was to be maintained on the basis of test. For the purpose of brevity, the amendment carried out on 4.3.1982 in Rule 13.7 will be hereinafter called as “Seniority Rule” and the amendment carried out vide notification dated 17.6.1988 will be hereinafter called as “Test Rule”.
3. The validity of Rule 13.7 of the Rules as amended on 17.06.1988 was challenged by some of the Constables ( Constable Acchhar Chand and others )before the Tribunal. It was, inter alia, argued that the vacancies which arose after the amendment in Rule 13.7 of the Rules on 4.3.1982 are required to be filled in on the basis of the Rule in existence and not as per amended Rule 13.7 of the Rules.
4. The learned Tribunal found that 71 posts of Head Constables were created after the amended Rule came in force. 15 Constables were sent for the course in April, 1988 and the remaining 56 posts have yet to be filled up. It was also found that for the course beginning October, 1988, the Chandigarh Administration has been allotted 50 seats for the Lower School Course. The learned Tribunal relying upon Y.V. Rangaiah v. State of Andhra Pradesh and Ors. held that the applicants have vested right to be considered for Lower School Course. It was held to the followed effect:
…This observation to our mind fully applies to the facts of the present application in as much as the applicants have a vested right to be considered sent for Lower School Course which as observed earlier is a sine qua non for preparation of List ‘B’ i.e., promotion to the post of Head Constable has to be made on the basis of pre- amended rules. The dictum laid down in Y.V. Rangaiah v. State of Andhra Pradesh and Ors. has been recently followed in another case P. Ganeshwar Rao and Ors v. State of Andhra Pradesh and Ors. Judgements Today 1988(3) 570. The same view was taken by the Principal Bench of the Central Administrative Tribunal in Om Parkash v. Delhi Administration and Ors. 1988(2) All India Service Law Journal -133 to which one of us (J.D. Jain) was a party.
5. Under the circumstances, this application succeeds and order dated 27.6.88 Annexure P-6 is hereby quashed. The respondents are directed to drop the proposed examination and prepare a fresh list for sending Constables to the Lower School Course at Police Training College, Phillaur, in accordance with the pre- amended Rule 13.7 i.e., the rule as it existed prior to 17.6.88 so far as the vacancies of Head Constables which had come into existence prior to the date of aforesaid Notification are concerned. The criterion to be adopted by them would be seniority-cum-merit as laid down therein. However, it is made clear that it shall be open to the respondents to act in accordance with the amended Rule in respect of the vacancies / posts of Head Constables which may have occurred subsequent to the coming into force of the amended Rules or which may fall vacant hereinafter. There will be no orders as to costs”.
6. However, some of the Constables (Constable Mewa Singh and others) again invoked the jurisdiction of the Tribunal challenging Rule 13.7 of the Rules amended vide notification dated 17.06.1988 after the appeal was dismissed by the Hon’ble Supreme Court. It was argued that a right has been vested in them for having selected for promotional course in accordance with the pre-amended Rule which do not prescribe any test and interview and, therefore, the amended Rule has deprived them of their vested right. The learned Tribunal upheld the amendment but held that the selection of the Constables for the promotional course who were in already in service before the amendment of 1988 will be made in accordance with the criterion laid down in the pre-amended Rule as contained in the notification dated 4.3.1982. The relevant extract from the order, relying upon earlier judgment of the Tribunal in Mewa Singh and Ors. v. Chandigarh Administration OANo. 137/CH/89 decided on 8.1.1990, reads as under:
Both sides have placed reliance on the judgment of this Bench in Constable Acchhar Chand and 24 others v. Union of India and Ors. OANo. 510/CH/88 decided on 28.9.88. In that case also the applicants were all confirmed Constables serving in the Union Territory, Chandigarh and the dispute related to the amendment of Rule 13.7 of the Rules of 1934 as amended on 4.3.82 and later on, on 17.6.88. They had challenged the order imposing the condition of passing of a test under the amended Rule 13.7 before being sent for the promotional course. The applicants in that case had claimed that on being confirmed as Constables they had acquired a valuable right to be considered for admission to List ‘B’ and the Lower School Course in accordance with the pre-amended Rule…. We, therefore, hold that the selection of the Constables for the promotional course who were already in service before the amendment of 1988 will be made in accordance with the criterion laid down in the pre-amended Rule as contained in the notification dated 4.3.82 and that the amendment made through notification dated 17.6.88 will not be applicable to their case. For the reasons stated above, we accept these three applications and direct the respondents to consider the cases of the applicants, alongwith other eligible Constables, who were in service before the impugned amendment dated 17.6.88 for selection for admission to promotion course for Constables at the Police Training College, Phillaur in accordance with the criterion laid down under Rule 13.7 of the Rules of 1934 as amended through notification dated 4.3.82 for the next course and not in accordance with the Rule as amended through impugned notification dated 17.6.88. It may, however, be clarified that those Constables who have already successfully undergone the Lower School Course Training, even on the basis of the amended Rule 13.7, will not be required to undergo the same training again. No order is made as to costs.
7. It is admitted case of the parties that during the pendency of the aforesaid application before the Tribunal, the petitioners were deputed for Lower School Course vide order dated 19.4.1989 (Annexure R/6/1) subject to final decision of the Tribunal. It is also not disputed that Special Leave Petition against the aforesaid order of the Tribunal was dismissed having become infructuous but left the question of law open for decision in an appropriate case vide order dated 29.1.1996.
8. Thereafter, another application was filed before the Tribunal wherein challenge was to the order 18.12.1989 (Annexure A/1) whereby Constables were sent for training on the basis of the written test, irrespective of seniority; and order dated 28.12.1989 (Annexure A/2) promoting them as Head Constables. Both these orders were set aside in view of the orders passed in Mewa Singh and Ors. v. Chandigarh Administration OANo. 137/CH/89 i.e., order dated 8.1.1990. The relevant extract from the order dated 23.09.1998 in HC Kulwant Singh and Ors. v. Union of India and Ors. OANo. 1401/CH/90 (Annexure P-12) is as under:
Now the brief question before us is the seniority of the persons promoted to Head Constable who were sent for training on the basis of written examination, irrespective of seniority, under the interim order of this Tribunal dated 31.3.89 (Annexure P/5) which has been reproduced above. The above sequence of the events shows that the Tribunal by its order had laid down that Constables in service prior to 17.6.1988 had a vested right to be sent for training for promotion to Head Constables on the basis of the un-amended Rules i.e., seniority-cum-fitness. The only concession given to the persons sent on the basis of written test, irrespective of the seniority was that they will not have to pass the examination again. In these circumstances, the claim of the applicants is justified that the respondents who are their juniors cannot steal a march over them on promotion to Head Constables. Such a decision was never given by the Tribunal. In these circumstances, the application is allowed and the impugned orders Annexure A/1 and A/2, dated 28.12.1989 are quashed with a direction to the respondents to re-arrange the seniority list of the applicants and the respondents according to their basic seniority in the rank of Constables. The respondents will comply with this judgment within three months from the date of the receipt of copy of this judgment.
9. The conclusion of the Tribunal that pre-amended Rule will be applicable to all the Constables before the amendment of 1988 has led to the present writ petition. It is contended that the date of appointment of the Constables for applicability of the rule of promotion is wholly irrelevant. It is contended that it is only the vacancies which came into existence from 4.3.1982 to 17.6.1988 are required to be filled up on the basis of Seniority Rule irrespective of the date of appointment of the Constable. Therefore, it is contended that the learned Tribunal has erred in law while examining the earlier order of the Tribunal in Acchhar Chand’s case (supra). The learned Counsel for the petitioner has vehemently argued that orders Annexures P-4 and P-12 travel beyond the order passed by the Tribunal on 23.9.1988 whereby a finding was returned that the vacancies which arose after the amendment of the Rule on 4.3.1982 are required to be filled up on the basis of the amendment carried out in the year 1982. But in view of the later orders, the Tribunal has held that all the Constables appointed prior to 17.6.1988 are required to be sent for Lower School Course in terms of the unamended Rule i.e., Seniority Rule introduced vide amendment dated 4.3.1982. It is contended that prior to 4.3.1982, the Constables were required to be sent for Lower School Course on the basis of test and such Rule has been re-incorporated on 17.6.1988. It was pointed out that for the vacancies arising between the period from 4.3.1982 to 17.06.1988 alone, the Constables are required to be sent for Lower School Course on the basis of Seniority Rule, else for all other posts the Rule is Test Rule only. It was also argued that neither the petitioners nor any Constable from their class was impleaded as respondent in the later applications before the Tribunal and, therefore, the petitioners have been condemned unheard.
10. Learned Counsel for the respondents, on the other hand, argued with vehemence that, in fact, present writ petition suffers from gross delay and latches. It is argued that the petitioners were aware of the application pending before the Tribunal as they were sent to Lower School Course subject to the final decision of the Tribunal in the aforesaid case. The said application was allowed by the Tribunal on 8.1.1990, whereas the challenge to the said order of the Tribunal has been made in the present writ petition after eight years. Therefore, the present writ petition suffers from gross delay and latches.
11. Having heard learned Counsel for the parties, we are of the opinion that the orders passed by the Tribunal on 8.1.1990 (Annexure P-4) and 23.9.1998 (Annexure P-12), in fact, run counter to the dictum laid down by the Tribunal in the earlier order dated 28.09.1988.
12. Before considering the arguments raised by learned Counsel for the parties, issue of delay raised by the respondents needs to be dealt with. No doubt, the petitioners were sent for Lower School Course for training subject to the final decision of the application filed by the respondents herein but the fact remains that the order dated 8.1.1990 passed by the Tribunal was challenged by the Administration itself before the Hon’ble Supreme Court of India and the said Special Leave Petition came to be dismissed as infructuous only in the year 1996. It was dismissed as infructuous as both set of parties had undergone Lower School Course. Hon’ble Supreme Court, however, left the question of law open for consideration in an appropriate case. Thereafter, another application was filed claiming the relief flowing from order Annexure P-4. As a matter of fact, once the Tribunal has passed order on 28.09.1988 (Annexure P-1), the subsequent application for claiming substantially the same relief itself may not be maintainable. However, the fact remains that the order sending of the petitioners to the Lower School Course was set aside by the Tribunal in order dated 23.09.1998 (Annexure P-12). Thus, it cannot be said that there is any delay by the petitioners in approaching this Court.
13. None of the parties have disputed the order passed by the Tribunal on 28.09.1988 (Annexure P-1). The said order contemplates that the vacancies which arose after amendment in the Rule i.e. 71 vacancies have to be filled up by virtue of the Seniority Rule. In fact, an additional affidavit has been filed by the Senior Superintendent of Police before this Court pointing out that there were 22 vacancies in the rank of Head Constable on 4.3.1982 when the Rule for bringing the Constables on List ‘B’ as per Seniority Rule was introduced. It is also pointed out that on the date of amendment on 17.06.1988, there were 56 vacancies. Thus, it is apparent that the finding recorded by the Tribunal in the order dated 28.9.1988 that 71 posts were created is, in fact, correct statement of fact. Out of 71, 15 Constables were sent in April, 1988 and another 50 were sent in December, 1988. Thereafter, only six Constables could be sent for the Lower School Course on the basis of Seniority Rule. All other vacancies are required to be filled up on the basis of Test Rule incorporated again vide amendment in Rule 13.7 of the Rules on 17.06.1988.
14. The finding recorded by the Tribunal in its order dated 8.1.1990 that on being confirmed as a Constable, they have acquired a valuable right to be considered for admission in List ‘B’ and Lower School Course, cannot be sustained in law. No employee can claim right to promotion as per Rule existed on the date of appointment or confirmation. As per principle laid down in Y.V. Rangaiah’s case (supra), right has been recognised for consideration for promotion as per Rule applicable on the date of availability of vacancies/ posts. Therefore, the finding recorded that all the Constables before the amendment on 17.06.1988 would be sent for course in accordance with the seniority criterion is wholly illegal, unjustified and untenable. The said finding, in fact, runs counter to the judgment in Y.V. Rangaiah’s case (supra) as well as to the order passed by the Tribunal on 28.09.1988. The order of the Tribunal passed on 23.09.1998 take same view as in Mewa Singh’s case (supra). The same suffers from same infirmity. It is only the vacancies which arose between 4.3.1982 to 16.06.1988 i.e. 71 vacancies which will govern the Seniority Rule. For all other posts / vacancies, it is the Test Rule alone on the basis of which the candidates can be sent for the course.
15. Thus, we find that the orders passed by the Tribunal on 23.09.1998 (Annexure P-12) and 8.1.1990(Annexure P-4) cannot be sustained in law and consequently the same are set aside.
16. Another fact to be noticed is that the Administration has been sending the Constables for Lower School Course as per Seniority Rule in terms of the directions of issued by the Tribunal on 23.09.1998 (Annexure P-12) and 8.1.1990 (Annexure P-4). Though sending of Constables for such course is in violation of Rule 13.7 of the Rules, as amended on 17.06.1988, but making the Constables to undergo test now and then sending them to the course would, in fact, complicate the issue and lead to uncertainty in police force as well as demoralisation of disciplined force. Not only the Constables have been promoted as Head Constables but some of them have been further promoted as Assistant Sub Inspectors. Therefore, to undo the entire process at this stage would not be equitable and in public interest. Therefore, to settle equities, it is directed that the Administration shall finalise the seniority of Head Constables on the basis of Seniority Rule in respect of 71 Constables, but as a result of finalisation of the seniority in accordance with the Rules, the respondents shall not revert any Head Constable or Assistant Sub Inspector. Such Head Constable or Assistant Sub Inspector shall continue to discharge his / her duties but shall avail further promotion only on the basis of his / her turn as per revised seniority.
17. The present writ petition stands disposed of accordingly.