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Gulam Mohammad Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Special Appeal No. 400 of 1971
Judge
Reported in1973(6)WLN171
AppellantGulam Mohammad
RespondentState of Rajasthan
Cases ReferredIn State of Orissa v. Durga Charan Das
Excerpt:
rajasthan police subordinate service rules, 1966 - rule 28--two failures in promotion cadre course examination--i.g. requiring g to appear again in the qualifying examination before becoming eligible for appearance in the cadre course examination--held, restriction is not justified.;evidently, there is no provision for any increased interval after two failures as is the case in qualifying examination and there is no restriction against reappearance.;the interpretation put by the inspector general of police is clearly erroneous. nobody is authorised to interpolate words born of imagination in a statutory rule and invent restrictions when none are authorised by the language of the rule.;(b) equality - equality before law means equality before a correct point of reference.;we are unable to..........september 11, 1967. despite two attempts in 1969 and 1970 gulam mohannmed was unable to pass the promotion cadre course examination. at that point of time he was officiating as a sub-inspector but he came to be reverted on april 4, 1970 his representation against his reversion succeeded and he was promoted again on january 22, 1971, to officiate as sub inspector of police. but on may 2, 1971, he was again reverted he submitted a petition under article 226 of the constitution before this court praying for a writ, order or direction against the state of rajasthan, the inspector general of police and the deputy inspector general of police and the deputy inspector general of police, c i.d. (criminal branch) not to revert him from the post of sub-inspector and to permit him to appear at the.....
Judgment:

B.P. Beri, Ag. C.J.

1. This is an appeal under Section 18 of the Rajasthan High Court Ordinance against the judgment of a learned Single Judge of this Court dated August 31, 1971, whereby he dismissed in limine the appellant's petition challenging his reversion in a civil post under Article 220 of the Constitution.

2. Gulam Mohammed, the appellant before us, was appointed as a constable in the Police Department on November 6, 1950. He was promoted to the post of a Head Constable on February 24, 1956. Gulam Mohammed passed the qualifying examination as provided under Rule 28 (1)of the Rajasthan Police Subordinate Service Rules, 1906 (hereinafter called the Rules.) and he was placed at number 10 in the list published on September 11, 1967. Despite two attempts in 1969 and 1970 Gulam Mohannmed was unable to pass the promotion cadre course examination. At that point of time he was officiating as a sub-Inspector but he came to be reverted on April 4, 1970 His representation against his reversion succeeded and he was promoted again on January 22, 1971, to officiate as Sub Inspector of Police. But on May 2, 1971, he was again reverted He submitted a petition under Article 226 of the Constitution before this Court praying for a writ, order or direction against the State of Rajasthan, the Inspector General of Police and the Deputy Inspector General of Police and the Deputy Inspector General of Police, C I.D. (Criminal Branch) not to revert him from the post of Sub-Inspector and to permit him to appear at the promotion cadre course examination again. The learned Single Judge dismissed the petition in limine on the grounds that because Gulam Mohammed had failed twice at the promotion cadre course examination, his reversion was proper and further because nobody could, as of right claim that he must be given a temporary or officiating appointment under Rule 31 of the Rules despite his failure to pass the promotion cadre course examination twice. In regard to the respondents Khumandas and Indermal (respondents Nos. 4 & 5 respectively), the learned Single Judge observed that the temporary appointments of these respondents was characterised by the learned Counsel for the appellant Gulam Mohammed, to be contrary to the Rules and if it was so, the appellant could not expect the Court to make an illegal order in his favour in contravention of the rules. Dissatisfied Gulam Mohammed has come up in appeal.

3. In this Court, respondent No. 2, Inspector General of Police, has filed an answer to the special appeal inter alia urging that because Gulam Mohammed failed twice in the promotion cadre course examination it was necessary for him to appear for the qualifying examination as well before he could be considered to be eligible for appearing in the promotion cadre course examination.

4. Mr. M.B.L Bhargava, learned Counsel for the appellant, urges that the language of Rule 28 does not require the appellant to appear in the qualifying examination again as insisted upon in Annx 5 of the writ petition or as emphasised in the answer to the writ petition before this Court. The rule further does not prohibit a candidate who has failed twice in the promotion cadre courses examination to appear therein later because there is no limitation in regard to the number of opportunities on which a candidate could appear for the purposes of seeking his promotion. His further contention is that respondent Khumandas appeared with the appellant Gulam Mohamned in the qualifying examination & failed yet has been officiating as Sub-Inspector while respondent Indermal who has not even attempted to pass the qualifying examination has also been working as Officiating Sub-Inspector and this was plainly an unequal treatment meted out to the appellant in contravention of Articles 14 and 16 of the Constitution.

5. Mr. M.L. Shrimal learned Additional Government Advocate did not find it easy to support the interpretation given by the Inspector General of Police to the language of Rule 28 He, however, urged firstly, that reversion of an officiating incumbent is not reduction in rank unlass it was accompanied by a stigma to the officer's name; and secondly no body has a right to seek an officiating promotion and it did not affect the seniority, the claim of the appellant was untenable. He relied on the Suprema Court's unreported judgment Union of India and Anr. v. Gajendra Singh etc. 1972 UJ (SC) 764

6. In regard to respondents Khumandas and Indermal, he argued that they were promoted under Rule 31 because the list had been exhausted. Both of them are law graduates and are teaching in the Training School at Kishangarh and giving them a chance to officiate was a matter of administrative convenience. Lastly, he urged that even assuming that it was erroneous to have promoted them to officiate without their having passed the requisite examination, Article 14 of the Constitution cannot be invoked because of an erroneous promotion of two parsons. He placed reliance on Narain Dass and Ors. v. The Improvement Trust, Amritsar and Anr. : AIR1972SC865 .

7. Rule 28 of the Rules reads as under:

28. Failure at the qualifying and promotion cadre courses examination:

(1) A candidate who fails at a qualifying examination will be allowed to re-appear at the next examination provided that if he fails at the next examination also, he shall be debarred from appearing at the qualifying examination for the following two years.

(2) A candidate who fails to complete a promotion cadre course shall be eligible to re-appear at the promotion Cadre Course examination immediately following the examination at which he has failed, provided that if no examination is held within one year of his failure a special Examination may be conducted for the purposes.

The aforesaid rule is clearly divided into two parts. The first relates to the qualifying examination: A candidate failing at this examination is allowed to reappear at the next examination. But if he fails at the next examination also, the rule requires him to rest, presumbably for self improvement and preparation, for a period of two years before he is permitted to make a fresh attempt. Sub-rule (2) speaks of the promotion cadre course examination. A candidate who fails to complete a promotion cadre course shall be eligible to reapper at the promotion Cadre Course examination at which he has failed. If no examination is held within one year of his failure, a special examination may be conducted for the purpose. Evidently, there is no provision for any increased interval after two failures as is the case in qualifying examination and there is no restriction against re- appearance. The interpretation as contained in Annexure 5 to the writ petition and in the answer of the Inspector General of Police placing a restriction on the third reappearance of Gulam Mohammed in the promotion cadre course examination unless the appellant appears again at the qualifying examination is not justified by the language of the Rules. The interpretation put by the Inspector General of Police is clearly erroneous. Nobody is authorised to interpolate words born of imagination in a statutory rule and invent restrictions when none are authorised by the language of the Rule. We could, therefore, apreciate the discomfiture of the learned Additional Government Advocate when he was unable to support this interpretation of the Inspector General of Police.

8. In regard to the continuance of Khumandas and Indermal as officiating Sub-Inspectors of Police notwithstanding their not having passed the qualifying examination as envisaged by Rule 28(1) of the Rules, the answer is two-fold. The first is that according to the reply filed by the Inspector General of Police the list appears to have been exhausted and they could have been appointed as temporary or officiating Sub Inspectors of Police for administrative reasons, having regard to their qualifications under the proviso to Rule 31 of the Rules. Even assuming for the sake of argument that that their appointment as officiating Sub-Inspector was not according to law we are unable to accept the argument that we should issue a direction for the repetition of the error in favour of Gulam Mohammed. Equality before law, in our opinion, means equality before a correct point of reference. In Venkatasubbian Setty, T. v. Commissioner, Corporation of the City of Banglore AIR 1968 Mys 251 a licence was granted to persons against provisions of the City of Banglore Municipal Corporation Act. The application of the petitioner for licence was rejected. The petitioner could not ask the Court to direct the Corporation to wrongly issue licence in his favour. In State of Orissa v. Durga Charan Das : (1967)ILLJ394SC their Lordships of the Supreme Court have observed that discriminatory treatment to Government servant in matter of promotion because in one case the State misconstrued the scope and effect of a rule would not justify a claim by the Government servant that the rule should be similarly misconstrued in all cases thereafter. To the same effect is Naraindass's case : AIR1972SC865 referred to above.

9. No other point has been pressed before us.

10. The result of the aforesaid discussion is that the respondents Nos. 1, 2 and 3 are directed not to insist that the appellant shall pass the qualifying examination as envisaged by Rule 28(1) of the Rules They are further directed to permit the appellant to appear in the promotion cadre course examination if he makes a timely application for the purpose. There will be no orders as to costs.


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