S.S. Vyas, J.
1. By these nineteen writ petitions under Article 226 of the Constitution, the petitioners challenge the validity and correctness of orders Ex. P/4 dated July 6, 1976 and Ex. P/5 dated November 21, 1981 passed by the Commandant, 6th Batallion, Jodhpur, whereby they were asked to re appear in the qualifying examination for promotion to the posts of Head-Constable under the Rajasthan Police Sub-ordinance Service Rules, 1974 (for short 'the Rules'). Since, the grounds taken in all these petitions are identical, they were heard together and are disposed of by a common order.
2. The case set up by the petitioners is that at the relevant times, they were holding the post of Constable in the 6th Batallion and were qualified for promotion to the post of Head Constable. The Board constituted under the Rules conducted the qualifying examination for promotion to the post of Head Constable in 1976. The petitioners appeared in that examination & being successful, their names appeared in the list of suitable candidates prepared under Sub-rule (2) of Rule 24 of the Rules. The total number of vacancies available for promotion was 51. Out of the aforesaid list, as many as 27 (being at S. No. 1 to 27 in the list) were promoted and appointed on the post of Head Constable without any condition by the Appointing Authority viz. the Commandant by his order dated July 6, 1976. The petitioners were also promoted as Head Constables on July 6, 1976 by the Commandant, but on temporary basis and with condition that they would again appear in the qualifying examination to come in the approved list for absorption in regular Rajasthan Armed Constabulary Batallion. Subsequently, on November 21, 1981, the Commandant by his letter Ex. P/5 invited applications from the eligible candidates including those holding the post of Head Constable on Ad hoc basis (i.e. the petitioners) to appear in the qualifying examination. The grievance of the petitioners is that the condition imposed on their promotion to the post of Head Constable and requiring them to appear again in the qualifying examination, is illegal and unjust. Various reasons have been advanced to show that the impugned orders Ex. P/4 and Ex. P/5 passed by the Commandant in this respect, are contrary to the provisions of the Rules.
3. The petitions were contested by the respondents. The stand taken by them is that only 27 permanent vacancies of Head Constables were available for promotion in the relevant year 1976. Consequently, the first 27 candidates in order of their merit in the Approved List Ex. R/3 were promoted and appointed to the post of Head Constables on regular basis. The petitioners according to their merit were not in the first 27 candidates. However, some temporary vacancies of Head Constables existed at the relevant time in temporary Platoons. The Board prepared another list Ex. R/4 for these temporary posts and the petitioners' names being in this list, they were appointed against those temporary posts of Head Constable Since, the petitioners could not be absorbed permanently for want of substantive vacancies, they are required to appear again in the qualifying examination if they wish their promotion and absorption in the permanent vacancies The orders of the Commandant passed in this regard are thus perfectly legal and suffer with no infirmity. The condition that the petitioners would be required to re-appear in the qualifying examination was made known to them in their very promotion order. It is now too late for them to challenge that condition. By accepting promotion against the temporary vacancies, the petitioners have accepted the condition attached to their temporary promotion. They therefore can not challenge to the condition, now after (sic) of more than four years.
4. Before taking up contentions raised by the learned Counsel for the petitioners, it would be proper to examine the source of recruitment to the post of He id Constables. At S. No. 3 of Section IV relating to the Rajasthan Armed Constabulary of the Schedule appended the rules, source of recruitment is 110% by promotion from the cadre of Constables. The minimum qualification and experience required for promotion is five years continuous service or three years incase of those, who passed Higher Secondary Examination.
5. Rule 9(1) speaks about the determination of the vacancies. It reads;
9. Determination of vacancies : (1) 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 (sic) twelve months and the number of persons likely to the recruited by each method. Such vacancies shall be determined again before the expiry of 12 months of the last determination of such vacancies.(2)... ... ... ...
6. Rule 24 lays down the procedure for selection. It runs as under:
24. Procedure for Selection : (1) After the vacancies to be filled by promotion have been determined under Rule 9, the Board as referred to in Sub-rule (3) below shall be constituted. The Board shall prepare correct and complete list containing name not exceeding five times the number of vacancies out of the senior most eligible numbers 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 percent in parade, practical and other out-door tests and 36 percent in written tests with 45 percent in aggregate:
(ii) Mot relevant for our purpose.
(iii) Not relevant for our purpose.
For promotion to the class of post-concerned.
7. Sub-rule (2) of Rule 24 of the Rules relating to the making a list of suitable candidates, after conducting interviews, reads as under:
(2) The Boards constitute under the 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 percent marks in qualifying examination Part-II and 50 percent aggregate of the total marks of the qualifying examination Part I & II upto one and half times and number of such posts as determined to be filled under Rule 9.
8. Sub-rules (4) and (5) of Rules 24 of the dealing with the Approved List for promotion run as under; 3/4
(4) The candidates included in the lists prepared by the various Boards under Sub-rule (3), above including the candidates nominated under Rule 25 shall be required to undergo promotion cadre course. The candidates shall be sent for promotion cadre course in accordance with seniority.
(5) Names of the candidates, who have successfully completed the Promotion Cadre Course in the first attempt shall be placed on an approved list for promotion in order of seniority and the names of failures shall be added below the aforesaid list as and when they pass the Promotion Cadre Course.
9. Then, comes Rule 29(1), which finally speaks about the promotion. It reads:
29. Promotion - (1) Substantive promotions in the Service shall be given in accordance with the order in which names appear in the 'Approved List'.
10. The position, which emerges out from a reading of these rules is that for promotion, an eligible candidate must first appear in Part-I of the qualifying examination. After he has passed this qualifying examination by obtaining the prescribed percentage of marks, he is called for interview if his name appears in the list prepared under this Sub-rule (1) of Rule 24 of the Rules. It may be mentioned that mere obtaining of a requisite percentage of marks under Clause (i) is not enough for inclusion of the candidate's name in the list prepared under Sub-rule (i). He must come within five times, the number of vacancies out of the senior most eligible members of service. After the interview is held under Sub-rule (2), the Board prepares a list of suitable candidates. The list prepared under this Sub-rule is to include the candidates upto one and half times the number of posts as determined to be filed under Rule 9. When the list under Sub-rule (2) has been prepared, ill, candidate whose name has been included in it is required to undergo promotion cadre course. After a candidate has successfully completed the promotion cadre course, his name is placed on an Approved List for promotion in order of seniority. It is pertinent to notice here that an Approved List for purpose of promotion is prepared only after a candidate is sent for Promotion Cadre Course and he successfully completes it. It is only thereafter that substantive promotion in the service is given in accordance in the order in which, names appear in the approved list. An 'Approved List' has been defined in Clause (b) of Rule 2:
(b) 'Approved List' means list containing names of persons approved for promotions in accordance with the provisions of these Rules.
11. It may be mentioned here that the qualifying examination held under the rules is not a competitive examination. It is only a qualifying-examination and the various lists prepared under the scheme of promotion consist only of the senior most eligible members of service, who pass the qualifying examination and the interview by securing the minimum % of marks prescribed for the purpose. To illustrate the point, even if one gets the highest marks in qualifying examination and the interview, his name may not be included in the lists prepared under Sub-rules (1) and (2) of Rule 24, if he is not among the senior most eligible members of service.
12. Now, coming to the petitioners' case, the first contention raised on behalf of the petitioners is that 51 yacancies of Head Constables were available for promotions. This fact has been refuted by the respondents. Their stand is that in view of the determination of vacancies under Rule 9, the Board prepared a list of 27 candidates under Sub-rule (2) of Rule 24 of of the Rules. The petitioners could not furnish any material to show that 51 permanent vacancies were determined under Rule 9 of Rules. Ex. R/3 submitted by the respondents is the Approved List of first 27 candidates prepared under Sub-rule (2) of Rule 24 of the Rules. It is a public document and can not be discarded. I therefore hold that only 27 permanent posts of Head Constables were determined for substantive promotion. The permanent vacancies available for substantive promotions were not 51 as alleged by the petitioners. Such vacancies were only 27. The names, of the petitioners do not appear in the list Ex. R/3 prepared under Sub-rule (2) of Rule 24. They, therefore, can not claim that they should be sent for promotion cadre course under Sub-rule (4) of Rule 24 of the Rules. They had a right to be sent for promotion cadre course in accordance with the seniority, only when then names were included in the list prepared under Sub-rule (2) of Rule 24 of the Rules. Since, their names were not included in the aforesaid list Ex. R/3 prepared under Sub-rule (2), they could not be sent for promotion cadre course. Because they could not be sent of promotion cadre course, their names could not be placed on an Approved List for promotions under Sub-rule (5) of Rule 24. Substantive promotions under Rule 29 can be claimed by the candidates only when their names appear in the Approved list.
13. The next contention raised by the learned Counsel for the petitioners is that the condition in their promotion order Ex. P/4 that for substantive promotion, they would again appear in the qualifying examination is illegal and contrary to the letter and spirit of the Rules. The Commandant could not impose such a condition. The stand taken by the respondents is that besides 27 permanent vacancies, some temporary vacancies of Head Constables in the new temporary Platoons were also available. The petitioners were promoted to these temporary posts of Head Constables. Substantive promotion can not be made against a temporary vacancy. As such, the petitioners were directed to appear again in the qualifying examination, if they wish promotions against the substantive vacancies. There is no force in in the petitioners' contention. There is nothing to show that the vacancies against which the petitioners were promoted were permanent. Ex. R/4- clearly shows that it relates to the posts of temporary Head Constables in new temporary platoons. The petitioners were promoted to these temporary posts in new temporary platoons. They there for can not claim that they should be appointed against the substantive posts.
14. As regards, the condition in Ex. R/4 that the petitioners would appear again in the qualifying examination to come in the approved list for regular absorption on the posts of Head Constable, it was argued that the said condition is not valid. The contention is barren and without substance. Since, the petitioners' names did not appear in the approved list prep-red under Rule 24(2), they could not be sent for promotion cadre course and as such, their names could not be placed on the approved list under Sub-rule (5). The aforesaid condition is, therefore, perfectly valid and justified. It is not a case of discrimination, where one was given preference and the other ignored. All those candidates, whose names were not on the approved list under Sub-rule (5) were given temporary promotion in the new temporary platoons. After all, what is guaranteed to a citizen under Articles 14 and 16 of the Constitution is equal protection before the law and equality of opportunity in the matters of public employment. Equal protection means the right to equal treatment in similar circumstances and no discrimination between one person and another if as regards the subject matter of the legislation their position is the same. The petitioners have not shown that candidates not in the 'Approved List' were promoted against substantive vacancies and they were ignored or passed over. Thus, the candidates including the petitioners placed in equal situation were treated equally without any discrimination. The candidates whose names appeared in Ex. P/2 are on the approved list. As such, the petitioners' case can not be equated with those whose names appeared in the approved list Ex. P/2 The c intention thus fails.
15. There are then too unsurmountable hurdles in the petitioners' way of success.
16. The first is the inordinate and unexplained delay in challenging the impugned order Ex. P/4. Ex. P/4 was passed on July 6, 1976 whereas, the writ petitions were filed on November 24, 1981 i.e. nearly after a lapse of more than five years. Order Ex. P/5 dated November 21, 1981 has no independent and separate existence but a mere repetition of the original order Ex. P/4. The real subject matter of grievance giving rise to a cause of action to the petitioners is Ex. P/4. It was by Ex. P/4 that the condition of appearing again in the examination was imposed. The petitioners have submitted no explanation-good, bad or indifferent for this delay of more than 5 years in challenging the validity of Ex. P/4.
17. It is true that there is no period of limitation governing the petitions under Article 226 of the Constitution, but the parties are expected to come within a reasonable time to redress their grievances. After all, remedy by writ is an equitable and discretionary relief. Inaction for a long time and inordinate delay with no explanation are sufficient to refuse this discretionary relief. Equity aids the vigilant and not the indolent 'Vigilantibus-non-Dormientibus'.
18. The second is that of estoppel arising from the petitioners' acceptance of the benefit of promotion under the impugned order Ex. P/4. The petitioners accepted the promotion and worked on the promoted post for more than 5 years without raising any protest against the condition imposed in Ex. P/4. By accepting the promotion and working on the promoted post for more than 5 years without any protest, the petitioners stand estopped from challenging the impugned condition attached to their promotion in Ex. P/4. Diwanchand v. State of Madhya Bharat A.I.R. 1957 M.B. 100 furnishes a very near analogy, it was held therein that where an order of absorbtion of a person in the Civil Service was subject to certain terms and the person accepting the order continued in service, he can not subsequently repudiate the terms. So also in the instant case, the petitioners' accepting the promotion against the temporary posts and working there for more than 5 years estop them from repudiating the condition in Ex. P/4.
19. For the reasons discussed above, I find no force in these writ petitions. They are therefore dismissed but with no order as to costs.