Dismissed

Ratna Ram v. State of Raj and Ors.

Rajasthan HC4 Apr 2014CW/9163/2002

Case brief

AI extract

What is this about?

Petitioner challenged a promotion order superseding his appointment in favor of a senior colleague, alleging violation of natural justice. The court dismissed the writ, holding that the statutory rules mandated promotion based on seniority, rendering the lack of hearing a useless formality causing no prejudice.

What did the court decide?

The writ petition was dismissed; the impugned order was upheld; interim order was vacated.

Ratna Ram Vs State of Raj and Ors. — Pension and Retirement Benefits | Rajasthan HC (2014)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR

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ORDER

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S.B. Civil Writ Petition No.9163 of 2002

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Ratna Ram Versus

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State of Rajasthan & Ors.

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Date of Order :: 4^th April, 2014

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HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA

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Mr.Tarun Choudhary on behalf of Mr. Hanuman Choudhary for the petitioner.

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Mr.B.S. Rajawat, Dy.G.C. for the respondents.

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BY THE COURT :

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The petitioner, in the present writ application, has assailed the legality, validity and correctness of the order dated 4^th December, 2002 and has approached this Court claiming the following relief(s):-

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“(i) the impugned order dated 4.12.02 (Anx-4) may be quashed and set aside and petitioner may be allowed t work as Head Constable (M.T.) as if the impugned order Anx-4 has never been issued.

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(ii) Any other order which may be deemed fit, just and proper in the interest of justice may also kindly be passed in favour of the petitioner.”

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Briefly, the indispensable material facts essential for adjudication of the controversy raised, are: that the petitioner was initially appointed as Constable on 11^th January, 1992 in Rajasthan Police. It is pleaded case of the petitioner that he successfully participated in the selection process for promotion to one post of

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Head Constable (M.T.) with other eligible candidates including respondent number 4 (Shri Shyam Lal). The petitioner, as a result of selection process, was accorded promotion vide order dated 20^th December, 2001, in the pay scale of Rs.3200-4900. However, on a representation made by another participant in the selection process, namely, Shri Shyam Lal (respondent number 4), who too qualified the selection along with the petitioner; the competent authority, in exercise of the powers conferred by Rule 33(2) read with Rule 27 (1) of the Rajasthan Police Subordinate Service Rules, 1989 (hereinafter referred to as the 'Rules of 1989', for short), passed the impugned order dated 4^th December, 2002, superseding the order dated 20^th December, 2001 and according promotion to Shri Shyam Lal, to the post of Head Constable (M.T.), in the pay scale of Rs.3200-4900. It is further pleaded that the impugned order dated 4^th December, 2002 (Annexure-4), has been passed without affording any opportunity of hearing to the petitioner and therefore, the same is absolutely illegal. 3. The learned counsel for the petitioner vehemently argued that since the impugned order dated 4^th December, 2002, has been issued without affording even an opportunity of hearing, superseding the order of promotion in favour of the petitioner vide order dated 20^th December, 2001, on the recommendations of the Selection Board, and therefore, deserves to be quashed on that count alone. Moreover, it is not in dispute that the petitioner secured 166.5 marks out 250 whereas Shri Shyam Lal, who has been accorded promotion to the post of Head Constable (M.T.) vide

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impugned order dated 4^th December, 2002, secured 152.5 marks out of 250.

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In the response to the notice of the writ application, the staterespondents have submitted their counter affidavit, supporting the impugned order dated 4^th December, 2002. Preliminary objection, in view of availability of alternative and efficacious remedy of appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur, has been specifically pleaded. The learned counsel for the staterespondents reiterating the contents of the reply to the writ application strenuously argued that the Selection Board constituted for promotion, ought to have prepared the list of successful candidates in the order of seniority, as ordained by Rule 27 of the Rules of 1989. Rule 27 of the Rules of 1989 lays down the procedure for selection/promotion. The learned counsel would further submit that Shri Shyam Lal as well as the petitioner, qualified the written examination, practical, parade, outdoor test. The service record of both the candidates was also considered by the competent authority. Both the candidates qualified in the interview and in the final result-sheet, prepared by the Selection Board, the petitioner secured 166.5 marks out of 250 while Shri Shyam Lal, who was senior to the petitioner, secured 152.5 marks out of 250. Since the procedure of selection is seniority subject to qualifying the examination, as specified under Rule 29 of the Rules of 1989, the name of Shri Shyam Lal ought to have been at serial number 1 and he ought to have been accorded promotion. Thus, the respondents rectified the error and passed the impugned order

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dated 4^th December, 2002, which is perfectly legal and valid.

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I have heard the learned counsel for the parties and with their assistance, perused the materials available on record.

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Rule 27 of the Rules of 1989, which provides for prosecution for selection, reads thus:-

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“27. Procedure of selection- (1) After the vacancies to be filled by promotion have been determined under rule 10, the Board as referred to in sub-rule (3) below shall be constituted. The Board shall prepare correct and complete list containing names not exceeding three times the number of vacancies out of the senior most eligible members of service, who have passed Part-I of the qualifying examination, specified in rule 29, by obtaining 40% marks in Parade, Practical and other Outdoor test and 40% marks in written test with 45% marks in aggregate for promotion to the class of post concerned.

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(2) The Boards constituted under this rule shall consider the cases of all the persons included in the list, interviewing all of them and shall prepare a list containing names of suitable candidates in order of seniority, who secure 45% marks in qualifying examination, Part II and 50% aggregate of the total marks of the qualifying examination, Part II and 50% aggregate of the total marks of the qualifying examination, Parts I & II upto one and half times the number of such posts as are specified by Director General-cum-Inspector General of Police from time to time and as are determined to be filled under rule 10.”

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Thus, a bare perusal of Rule 27(2) would reveal that the Selection Board was obliged to prepare the list of successful candidates, who qualified examination specified under Rule 29, in

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the order of seniority. Having regard to the Scheme of Rule 27; there remains no element of any doubt that promotion ought to have been accorded to Shri Shyam Lal since he qualified the examination though secured less marks than the petitioner, but the criteria of promotion being seniority under Rule 27(2) of the Rules of 1989.

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The representation made by Shri Shyam Lal (respondent number 4), who too qualified the examination, was dealt with by the competent authority as per mandate of Rule 33(2) of the Rules of 1989, which reads thus:-

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“33. Disposal of representations and references :- (1) .....

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(2) If on receipt of information or on the basis of an enquiry, the Director General-cum-Inspector General of Police is satisfied that the proceedings of a Board have not been conducted in accordance with the provisions of these Rules or orders and instructions issued in accordance with these rules or in just and fair manner, he may set aside the proceedings of such Board and may constitute a fresh Board for that purpose.”

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The petitioner has not disputed the fact that there was only one post, for which three candidates participated in the selection process including respondent number 4 and the petitioner. One of them (Mukti Lal), the third candidate, was declared 'fail'. Shri Shyam Lal and the petitioner qualified the selection examination securing 152.5 and 166.5 marks out of 250, respectively.

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A bare reading of the text of Rule 27 of the Rules of 1989, leaves no room for any doubt that the criteria of promotion is, seniority subject to qualifying the examination as per the mandate

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of Rule 29.

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The action taken by the respondents while entertaining the representation made by Shri Shyam Lal, pointing out the illegality committed in drawing the list of successful candidates, being contrary to the mandate of Rule 27(2) of the Rules of 1989, and decision arrived at thereupon, by the competent authority exercising powers under Rule 33(2) of the Rules of 1989, vide impugned order dated 4^th December, 2002, cannot be faulted.

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During the course of hearing, the learned counsel for the petitioner could not point out, in view of the admitted facts and materials available on record as well as in the face of Rule 27(2) of the Rules of 1989, as to how the situation would improve in favour of the petitioner, even if an opportunity of hearing was accorded to the petitioner, before making the impugned order dated 4^th December, 2002. The petitioner has not disputed the facts, which have been brought on record along with documentary evidence in the counter affidavit. The mandate of Rule 27(2) of the Rules of 1989, wherein the criteria of promotion is seniority subject to passing of the qualifying examination for 'promotion', is not under challenge. The fact that Shri Shyam Lal (respondent number 4) did qualify the examination along with the petitioner, and is admittedly senior, are not disputed.

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Keeping in view the mandate of Rule 27(2) of the Rules of 1989, which specifically and in unequivocal terms stipulates to the effect that a Board constituted under this rule was considered the cases of all the persons included in the list, interviewing all of them

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and shall prepare a list containing names of suitable candidates in order of seniority. Thus, it is apparent that the promotion policy for promotion to the post of Head Constable (M.T.) from the post of Constable is based on the criteria and principle of 'seniority-cummerit'. The vacancies to be filled by promotion are determined under Rule 10 and the Board is constituted under sub-rule (3) of Rule 10 to prepare a list containing names not exceeding three times in number of the vacancies out of the senior-most eligible members of service, who have passed Part I of the qualifying examination, specified in Rule 29 for obtaining 40% marks in written test with 45% marks in aggregate for promotion. It is not the case of the petitioner that the respondent number 4 (Shyam Lal) failed to secure the minimum and did not pass the qualifying criteria under the rules and both have been declared 'pass'. It is settled law that while applying the principle of 'seniority-cum-merit' for the purpose of promotion, the inter-se seniority is the criteria for consideration. Seniority confers certain rights and the principle of 'seniority-cum-merit' comes effect to those rights which flow from seniority. Hence, in the instant case at hand, the respondents have committed no error in rectifying the illegality, which is apparent on the face of record.

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Having considered the facts, circumstances and materials available on record in totality, the moot question is, whether the failure to observe the principles of natural justice, ipso-facto, would render the action illegal? The closely related with this question is the question whether failure to observe the principles of natural

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justice, does at all matter, if the observance would have made no difference, in view of the admitted and indisputable facts, speaking loud and clear. If in view of the admitted and indisputable facts, the conclusion that can be arrived at is only one, in my opinion, the theory of “useless formality”, can be pressed into service. In a catena of judgments, the Hon'ble Supreme Court has declared that one could not complain of a failure of non-compliance of principles of natural justice unless he could show the prejudice caused.

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The learned counsel has not questioned the mandate of Rule 27(2) of the Rules of 1989. The facts that Shri Shyam Lal (respondent number 4) also qualified the qualifying examination for promotion as contemplated under Rule 29 of the Rules of 1989 as well as his seniority to the petitioner, are not disputed. 16. Principles of natural justice cannot be stressed and applied irrespective of the facts of the case where even if the opportunity of hearing is granted. The result that could be arrived at will be the only one, which has been assailed for its non-compliance and in such circumstances, the theory of 'useless formality', would be attracted and applied with full force. Moreover, by a catena of judgments, it is now well settled that the courts are not meant to perpetuate an illegality, rather it is the duty of the courts to rectify the errors/mistakes. The Hon'ble Supreme Court while dealing with the somewhat similar situation in the case of Hotel Balaji & Ors. v. State of Andhra Pradesh & Ors.: 1993 Supp (4) SCC 536 observed thus:-

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“To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial conscience. In this, we derive

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comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Decameter (A.M.Y. at page 18) : "a judge ought to be wise enough to know that he is fallible and. therefore, ever ready to learn : great and honest enough to discard all mere pride of opinion and follows truth wherever it may lead : and courageous enough to acknowledge his errors.”

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In the peculiar facts and circumstances as well as materials available on record, in the instant case at hand, no prejudice has been caused to the petitioner and the conclusion that could be arrived at even after providing an opportunity of hearing would only be the one arrived at by the competent authority vide impugned order dated 4^th December, 2002.

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For the reasons and discussions herein above, the writ petition is devoid of any substance and deserves to be dismissed. 19. Ordered accordingly.

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The interim order dated 10^th of December, 2002 is hereby vacated.

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However, in the facts and circumstances of the case, there shall be no order as to costs.

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(VEERENDR SINGH SIRADHANA), J.

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Sunil/P.A.

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All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

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(Sunil Solanki) P.A.

Ratna Ram v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

Ratna Ram v. State of Raj and Ors.

Case brief

What is this about?

What did the court decide?

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