M.C. Jain, J.
1. These two writ petitions raise common questions and arise out of the same facts so they are being disposed of by this common order.
2. The petitioner Pratap Singh joined the Police Department as Constable on 23-11-1965 and the other petitioner Man Singh joined the Police Department as Constable on 29-8-1969. On 4-12-1974 the Superintendent of Police, Udaipur issued a notice mentioning that under the provisions of the Rajasthan Police Subordinate Service Rules and Standing Order No. 7-66, a list of the Constables is to be prepared for promotion cadre course of Head Constables and individual applications were invited for the examinations to beheld in January, 1975. Another notice Exhibit 2 was issued on 4-1-1975 under the Rajasthan Police Subordinate Service Rules, 1974 (hereinafter referred to be rules) for the same purpose. The petitioners sent their applications. A Board was formed consisting of the Superintendent of Police, Udaipur, Assistant Superintendent of Police, Udaipur (West) and the Deputy Superintendent of Police, Dungarpur as contemplated by Rule 24(3) and qualifying examinations were held under Rule 26 of the Rules.
3. According to the petitioners, they passed the qualifying examination for promotion in both Parts I and II and their names were entered in the list prepared by the Board under Rule 24(1). The petitioner Pratap Singh's name appears at serial No. 10 whereas Man Singh's name appears at serial No. 20 of the said list marked as Ex. 3. The result of the Board was conveyed by the Superintendent of Police by notification dated 3-3-1975, in which names of 25 Constables appeared as candidates having qualified for the Promotion Cadre Course. The petitioner's further case is that the Superintendent of Police however, issued another selection list dated 25-3-75 vide D.D.B. No. 351 mentioning only nine names and it was stated that only nine persons have qualified for the promotion cadre course. The revised list is Ex. 3A. The petitioners have challenged the revised list and have stated that some Constables have been promoted on the post of Head Constables on ad hoc basis, though they were junior to the petitioners and their names were below the petitioners' name in the approved list (Ex. 3) and some of the Constables who have not even been selected vide approved list Ex. 3 were also given ad hoc promotion, while ignoring the petitioners vide office order dated 25-7-1975 (Ex. 6). The petitioners challenged the revised list on the ground slated in para 11 of the writ petition. The petitioners prayed that the respondents be directed to abide by the list dated 3-3-1975 (Ex. 3) and to quash the list dated 25-3-75 (Ex. 3A). The respondents be further directed to give promotions to the petitioners to the post of Head Constables as and when a vacancy arises and the respondent be further restrained from holding any examinations, interviews and from inviting any further applications under Rules 24 and 26 for the purposes of preparing a list of persons for promotion to the post of the Head Constables till the list dated 3-3-1975 is exhausted. It was also prayed that subsequent notifications dated 13-8-75 and 1-11-75 be also quashed.
4. Reply to the writ petition was filed by the respondents. The respondents' case as pleaded in the reply is that originally 6 vacancies for the post of Head Constables were determined under Rule 9. The Assistant Sub-Inspectors of Police were attached to the Circle Officer and it was estimated that consequent upon re-organisation of Police, the Assistant Sub-Inspectors of Police were to be replaced by Head Constables. Consequently it was estimated that the vacancies may be about 17 in number, according to which the Board prepared a list of 25 candidates under Rule 24(2). Subsequently it was discovered (hat the effective vacancies as determined under Rule 9 will be 6 only and not 17 so a revised list was prepared and according to the revised list nine candidates' names were entered in the list in order of seniority. Under the rules, the Board could prepare a list upto one and half times of the number of vacancies. The earlier list prepared and published on 3-3-1975 was superseded according to law. The Board in its meeting dated 17-3-75 had cancelled the list prepared on 3-3-75 which was duly notified by the Superintendent of Police on 7-4-75.
5. At the hearing some more documents and additional affidavit of Shri Madan Lal Daiya were placed on record which show that the Superintendent of Police by his letter dated 22-11-1974 communicated to the Deputy Inspector General of Police, range Udaipur, that ten vacancies will occur. It was stated in this communication that from October 1974 to December 1974, four Head Constables (Civil Police) will retire and in the year 19^5, three Head-Constables (Civil Police) will retire. Four Head-Constables have been promoted, two posts of Head-constables in the Traffic Police and three posts of Head-Constables in the Flying Squad have been increased. In this manner, vacancies of 16 Head-Constables (Civil Police) will occur, out of which six Constables have been promoted out of the approved list and thus there will be vacancies of ten Head-Constables and there is no Constable (Civil Police) in (he approved list. On the basis of this letter of the Superintendent of Police, ten vacancies were determined under Rule 9 and thereafter the Board was accordingly constituted. Thus the respondent's case stands amended at the hearing that originally only six vacancies were there. The fact is (as per the case stated at the hearing) that originally the vacancies determined were 10. It is in the light of the changed case, the merits of the petitions need to be examined
6. I have heard Mr. N.M. Lodha, learned Counsel for the petitioners and Shri Rajesh Balia, learned Deputy Govt. Advocate for the respondents.
7. The main emphasis of Mr. N.M. Lodha learned Counsel for the petitioners is that when the select list was published under Sub-rule (2) of Rule 24 on 3.3.75, it was not within the jurisdiction of the Board to revise the said list in its meeting dated 17-3-75 and publish another list superseding the earlier one. According to Mr. Lodha when list is once published that should have been exhausted and the candidates in the approved list should have been sent for the promotion cadre course as contemplated in Rule 27. He pointed out that in the previous year as well the list published continued till exhausted. He referred to the avernments made in para 11-F which states that a list dated 28-11-73 of 28 candidates was exhausted during the year 1973 and 1974 and the list of 1971 was exhausted in the year 1971 and 1972 and so the list prepared on 3-3-1975 should be treated as valid list till it is exhausted.
8. The writ petitions in my opinion need examination with reference to the relevant rules. It is essential to lake notice of the scheme of the Rules providing for determination of vacancies and also in respect of the procedure for appointment by promotion. The relevant rules which need mention and reference are Rules 9, 24 and 26.
9. Rule 9 deals with determination of vacancies. It inter alia provides that subject to the provisions of these rules, the Inspector General of Police or such authority as may be nominated by him shall determine each year the number of vacancies anticipated during the following twelve months and the number of persons likely to be recruited by each method. Such vacancies shall be determined again before the expiry of 12 months of the last determination of such vacancies.
10. Rule 24 makes a provision for procedure for selection. It also inter alia provides that after the vacancies to be filled by promotion have been determined under Rule 9, the Board as referred to in Sub-rule (2) shall be constituted. The Board is required to prepare the correct and complete list containing names not exceeding five 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 26 by obtaining:
(i) For Armed Police Rajasthan Armed Constabulary 40 per cent in parade, practical and other out door tests and 36 percent in written tests with 45 percent in aggregate;
(ii) For Civil Police including Prosecution and Intelligence Branch 40 percent in written test and 36 per cent in parade, practical and other out door tests with 45 pereent in aggregate;
(iii) For Police wireless organisation 36 percent in written tests, 40 percent in practical, parade and other out door tests and 45 percent in aggregate;
for promotion to the class of post concerned.
11. Sub-rule (2) of Rule 24 further provides that the Boards constituted under this Rule shall consider the case of all the persons included in the list, interviewing all of them, and shall propare a list containing names of suitable candidates in Order of seniority, who secure 45 percent marks in qualifying examination part II and 50 percent aggregate of the total marks of the qualifying examination part I and II upto one and a half times the number of such posts as determined to be filled under Rule 9.
12. Sub-Rule (2) further mentioned the factors which are to be taken into consideration while interviewing candidates for promotion.
13. Sub-Rule (3) thereof provides for the Constitution of Selection Boards.
14. It would appear from Rule 24 that the Board is required to be constituted after determination of the vacancies under Rule 9 and the Board is further required to prepare a list of candidates not exceeding five times the number of vacancies and thereafter the candidates are to be interviewed and in Sub-Rule (2) the Board after interviewing the candidates is required to prepare a list of suitable candidates in Order of Seniority and such list shall only be upto one and a half times the number of vacancies determined under rule 9.
15. Rule 26 deals with the Qualifying Examination for 'promotion'. It laysdown that '-Qualifying Examination for promotion' includes;
Part I - Written, practical, parade and other outdoor tests, and
Part II - Interview and examination of service record including Annual Confidential Reports.
16. Rule 27 deals with the Promotion Cadre Course and Rule 28 deals with Failure at the Promotion Cadre Course Examination. Rule 29 makes provisions for Promotion. It provides that substantive promotions in the Service shall be given in accordance with the order in which names appear in the 'Approved List'. From the scheme of the rules, it appears that the rules do not provide for any revision of list. Still it is to be seen as to whether the list when once published can be revised or not, if subsequently it is found that the list has been prepared on the basis of vacancies which were not originally determined. As stated above the principal contention of Shri Lodha is that irrespective of the determination of number of vacancies, the list when once published and notified cannot be revised by the Board and so according to Shri Lodha the list dated 3-3-1975 is a final list not open to revision by the Board. I am unable to agree with this contention of Shri Lodha. If a list has been published and notified and subsequently it is dicovered that the number of vacancies were less as determined under Rule 9 then in my opinion the Board is obliged to revise the list and restrict the number to one and half times of the number of vacancies determined under Rule 9. Admittedly i.e. even according to the respondents' case, the number of vacancies determined under Rule 9 was 10 and not 6 as stated in the return. The revision which could have been made by the Board, should have been in accordance with the number of vacancies determined under 9, whereby the Board could have acted as was required by Sub-rule (2) of Rule 24. It is not the petitioner's case that any vacancies determined under Rule 9 were notified i.e. 17 vacancies were never notified or for that matter the number of vacancies were not notified but from the record produced by the respondents it is manifest that the number of vacancies determined under Rule 9 was ten and in accordance with these number of vacancies the approved list must have contained names of 15 candidates in order of seniority. It was not in conformity with Rule (2) of Rule 24 to have revised the list on 17-3-1975 so as to include the names of only nine candidates. The Board could within its competence revise the list so as to include the names of 15 candidates. In the present case the action of the Board does not appear to be in consonance and conformity with Sub-rule (2) of Rule 24 and it should have notified and published in the list names of 15 candidates. I have already stated earlier that when any mistake is discovered in the preparation of the list in Sub-rule (2), then that mistake can be rectified by the Board and it cannot be said that the Board while rectifying such a mistake is acting beyond its authority and jurisdiction.
17. If the argument of Shri Lodha if taken to this logical conclusion, it would mean that if some how or the other the list is prepared in disregard of number of vacancies then that list cannot be corrected so as to bring it in conformity with Sub-rule (2) of Rule 24 and that list will continue to be valid till the same is exhausted and that they may continue for years there by negativing the entire scheme of the Rules.
18. I do not feel persuaded by the above submission of Shri Lodha and in my opinion when mistake is discovered, the same can be rectified so as to bring the list in conformity with Sub-rule (2) of Rule 24.
19. No other ground has been made out by the learned Counsel for the petitioner nor pressed before me challenging the revised list or for claiming any other relief.
20. In view of what I have discussed above, the list dated 25-3-1975 needs to be modified so as to include in it names of six candidates in order of seniority as prepared in the original list dated 3-3-1975. The revision of the list by inclusion of six further names will benefit the petitioner Pratap Singh but will not benefit the petitioner Mansingh in view of the facts that the name of Man Singh appears at serial number 20 in the list dated 3-3-1975.
21. Accordingly the petition of Pratap Singh is partly allowed and the respondents are directed to prepare the list under Sub-rule (2) of Rule 24 showing the names of first 15 candidates out of the list dated 3-3-75 so as to bring it in conformity with Sub-rule (2).
22. In view of the fact that number of vacancies determined under Rule 9 was 10, and the petitioner Pratap Singh's name appeared at No. 10, accordingly he will be sent for the promotion cadre course. The petition of Man Singh is dismissed although the list dated 25-3-1975 has been ordered to be modified, still it will be futile to grant any relief to the petitioner Man Singh.
23. In the circumstances of the case, the parties are left to bear their own costs of the writ petitions.