{"id":69954,"date":"2007-12-18T00:00:00","date_gmt":"2007-12-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/h-c-daya-ram-and-ors-vs-union-of-india-uoi-and-ors-on-18-december-2007"},"modified":"2018-10-30T11:25:31","modified_gmt":"2018-10-30T05:55:31","slug":"h-c-daya-ram-and-ors-vs-union-of-india-uoi-and-ors-on-18-december-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/h-c-daya-ram-and-ors-vs-union-of-india-uoi-and-ors-on-18-december-2007","title":{"rendered":"H.C. Daya Ram And Ors. vs Union Of India (Uoi) And Ors. on 18 December, 2007"},"content":{"rendered":"<div class=\"docsource_main\">Punjab-Haryana High Court<\/div>\n<div class=\"doc_title\">H.C. Daya Ram And Ors. vs Union Of India (Uoi) And Ors. on 18 December, 2007<\/div>\n<div class=\"doc_author\">Author: H Gupta<\/div>\n<div class=\"doc_bench\">Bench: H Gupta, M Pal<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>Hemant Gupta, J.<\/p>\n<p>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 &#8220;the Tribunal&#8221;) 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.\n<\/p>\n<p>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 &#8220;the Rules&#8221;),  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 &#8220;Seniority Rule&#8221; and the amendment  carried out vide notification dated 17.6.1988 will be hereinafter called as  &#8220;Test Rule&#8221;.\n<\/p>\n<p>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.\n<\/p>\n<p>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:\n<\/p>\n<p> &#8230;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 &#8216;B&#8217; 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 <a href=\"\/doc\/1733367\/\">P. Ganeshwar Rao and Ors v. State of Andhra Pradesh and Ors. Judgements Today<\/a> 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.\n<\/p>\n<p>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&#8221;.\n<\/p>\n<p>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&#8217;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:\n<\/p>\n<p>  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 &#8216;B&#8217; and the Lower School Course in accordance  with the pre-amended Rule&#8230;. 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.\n<\/p>\n<p>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.\n<\/p>\n<p>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:\n<\/p>\n<p>  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.\n<\/p>\n<p>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&#8217;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.\n<\/p>\n<p>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.\n<\/p>\n<p>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.\n<\/p>\n<p>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&#8217;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&#8217;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.\n<\/p>\n<p>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 &#8216;B&#8217;  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.\n<\/p>\n<p>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 &#8216;B&#8217; 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&#8217;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&#8217;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&#8217;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.\n<\/p>\n<p>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.\n<\/p>\n<p>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.\n<\/p>\n<p>17. The present writ petition stands disposed of accordingly.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Punjab-Haryana High Court H.C. Daya Ram And Ors. vs Union Of India (Uoi) And Ors. on 18 December, 2007 Author: H Gupta Bench: H Gupta, M Pal 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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-69954","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.6 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>H.C. 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