TMI Blog2014 (6) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... e open to the respondents to act in accordance with the amended Rule in respect of vacancies/posts of Head Constables which might have occurred subsequent to coming into force of the amended Rule or which may fall vacant thereafter. The decision of the tribunal, on the first round, related to the vacancies of Head Constables that had come into existence prior to the date of notification, i.e., 17.6.1988. Learned counsel for the Union Territory of Chandigarh in his written note of submissions has stated that 50 vacancies were found to have occurred before amendment and, accordingly, a list was prepared in order of seniority as per the provisions of unamended rules. At this point of time, it is necessary to clear the maze that as far as this exercise is concerned there was no cavil. The dispute arose when the authorities on 28.10.1988 prepared a list of eligible Constables/ad hoc Head Constables who fulfilled the prescribed conditions to sit in the competitive examination to be held in January, 1989. The said action of the authorities compelled the present applicants to file three Original Applications challenging the validity of the Rule and quashment of the order dated 28.10.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e promotions to the posts of Head Constables from the Constables prior to amendment of the Rule on 4.3.1982, provided that the names of Police Constables for admission to Lower School Course were required to be entered in List B in order of merit determined by the Departmental Promotion Committee on the basis of test scheme in (i) Parade (ii) written test in general law and (iii) examination of service record. After the amendment of the said Rule a batch of confirmed Constables were sent for Lower School Course at Police Training College, Phillaur. The said course was for six months and it was held twice a year one commencing in April and the other in October. A batch of fifteen Constables duly selected on the basis of the amended Rules was sent for Lower School Course in April, 1988. Thereafter vide notification dated 17.6.1988 the Rule 13.7 was amended by Punjab Police (Chandigarh Amendment) Rules, 1988 which came into force on the date of publication in the Chandigarh Administration Gazette. After the Rule was amended, the Senior Superintendent of Police, Chandigarh Administration issued a letter dated 27.6.1988 to the effect that a test would be held some time in September, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terion to be adopted by them would be senioritycum-merit as laid down therein, however, it would be open to the administration 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 Rule or which may fall vacant thereafter. 6. The competent authorities of Union Territory identified those vacancies of Head Constables which had occurred prior to the amendment dated 17.6.1988 and by that process 56 vacancies were found to have occurred before the amendment and accordingly 56 Constables were brought on List B in order of seniority as per provisions of unamended Rule 13.7 and other formalities were carried out. 7. Thereafter, as the facts would undrape, on 28.10.1988 a list of eligible Constables/ad hoc Head Constables who fulfilled the prescribed conditions to sit in the competitive examination to be held in January, 1989 was circulated. On 25.1.1989 a circular was issued to all the units regarding the competitive test to be held on 11.2.1989. In the meantime, three Original Applications, i.e., O.A. Nos. 697/CH/88, 872/CH/88 and 137/CH/89 were filed before the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndigarh and, accordingly, opined that the Rule did not suffer from any kind of infirmity. After so holding the tribunal proceeded to deal with the Rule position as engrafted in Rule 13 in entirety and came to hold that the process of election for promotion of a Constable to the rank of Head Constable started at the time of selection for the Course under Rule 13.7 of the Rules of 1934 and that every Constable had the right to be sent for the promotional course at the Police Training College, Phillaur in order of his seniority determined in accordance with that Rule. 10. Thereafter, the tribunal addressed itself to the question whether by the impugned amendment of Rule 13.7 of Rules of 1934, on 17.6.1988 the applicants therein would have been deprived of the right to be sent for the Lower School Course. It was contended by the applicants therein that the impugned amendment had altogether deprived them of their right to be sent for promotion course to enable them to be considered for promotion to the post of Head Constable in accordance with the criterion prescribed by the unamended Rule. The said submission was resisted by the Union of India contending, inter alia, the right of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of adjudication, the tribunal referred to the initial rule position, the amended rules, the decision rendered in OA No. 510/CH/ 88-89 on 28.9.1988, the interim order passed on 31.3.1989 in O.A. No. 137/CH/89 and other connected OAs, the order dated 19.4.1989 sending the candidates therein for training which was subject to the final judgment, the final decision rendered by the tribunal on 9.1.1990 wherein the tribunal had opined that the Constables who were in service prior to 17.6.1988 would be governed by the unamended rules which prescribed seniority-cum-fitness, unlike the amended Rules which prescribed the selection by a test with the further concession that the Constables who had been sent for training under the interim order on the basis of the written test, irrespective of seniority, would not be required to undergo the same training again. After so narrating, the tribunal adverted to the orders of the Department whereby how the Constables were sent for training on the basis of written test, brought on list C and, eventually, stood promoted as Head Constables. The tribunal took note of the fact that by virtue of the same the Constables were promoted as Head Constable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as vide order passed on 23.9.1988 a categorical finding had been recorded that the vacancies which arose after the amendment of the Rule on 4.3.1982 were required to be filled up on the basis of amendment carried out in the year 1982 and, therefore, the vacancies arising between the interregnum period, i.e. 4.3.1982 to 17.6.1988 alone, the Constables were required to be sent for Lower School Course on the basis of seniority Rule and for all other posts the test, i.e., sitting in the written test, would apply. It also took note of the stand that neither the petitioners nor any Constable from their category was impleaded as a respondent in the subsequent original application. On behalf of the respondents the application was resisted on the ground that the writ petition was hit by doctrine of delay and laches; that the petitioners were aware of the pendency of the case before the tribunal as they were sent to Lower School Course subject to the final decision of the tribunal; that such application was allowed by the tribunal on 8.1.1990 which was being sought to be challenged after lapse of eight years. 16. The High Court repelled the contention relating to delay and laches on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 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. 17. On the aforesaid basis the High Court quashed the orders dated 23.9.1998 and 8.1.1990 and after so stating the High Court, noticing the existing scenario, passed a protective order to the effect 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 finalization 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. 18. We have heard Mr. P.S. Patwalia, learned senior counsel for the appellants, Mr. Nidhesh Gupta, learned senior counsel for respondents 1 to 34 and Mr. Gaurav M. Librehan, along with Ms. Mukti Chowdhary, learned counsel for respondents 36 to 38. 19. Criticising the judgment and order passed by the High Court Mr. Patw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered on 17.6.1988 is in accord with the principles laid down by this Court, for it has been held therein that insofar as vacancies of Head Constables which had come into existences prior to the notification dated 17.6.1988 were concerned, the same would be governed by the Rule as it existed prior to 17.6.1988 and it was open to the respondentemployer to act in accordance with the amended Rule in respect of the vacancies which occurred subsequent to the amendment of the Rule. Despite the said clear decision in the field, the tribunal vide order dated 8.1.1990 opined that the confirmed Constables prior to the amendment dated 17.6.1988 had a vested right for being selected for a promotional course in accordance with the preamended Rule which did not prescribe for a test and that makes the order expressly illegal, null and void and cannot be utilized against the present respondents who were not impleaded as parties to the lis before the tribunal. Once there is violation of principles of natural justice, the order was not binding on the respondents and is, in fact, a void order. The said submission is supported by the authorities in A.M.S. Sushanth Ors. v. M. Sujatha and Ors. (2000) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the special leave petition, had left the question of law open; and as the same has arisen at present, this Court should exercise the power under Articles 136 and 142 of the Constitution to deal with the same. For the aforesaid purpose, inspiration is drawn from the authorities in State of Bihar and Ors. v. Kameshwar Prasad Singh Ors. (2000) 9 SCC 94 and Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai Anr. (2004) 3 SCC 214 (f) As far as promotion to the Head Constables is concerned, it is governed by Rule 13.8 and perusal of Rule 13.8(2) makes it clear that promotions to the post of Head Constables are made subject to the principle described in sub-rules (1) and (2) of Rule 13.1 which provide that promotions from one rank to another shall be made by selection. The respondents were more meritorious than the appellants as they were selected in the competitive test and were deputed to the Lower School Course and they had obtained the higher marks than the appellants. Quite apart from that they have been promoted to Assistant Sub-Inspectors, Sub-Inspectors and further as Inspectors and, therefore, serious prejudice would be caused to the respondents by unsettling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of seats allotted to districts for the year with a twenty per cent reserve. Names will be entered in the list in order of merit determined by the Departmental Promotion Committee constituted by the Inspector-General of Police on the basis of tests in parade, general law (Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and Local and Special Laws) interview and examination of records. (2) All Constables -- (a) who are middle pass and have put in more than four years of service; (b) who are at least matriculates and have put in more than three years of service; or (c) who obtain first class with credit in the Recruits Course specified in rule 19.2; will be eligible to have their names entered in the aforesaid list, if they are not above thirty years of age on the first day of July in the year in which the selection is made; Provided that no Constable who has been awarded a major punishment within a period of three years preceding the first day of January of the year in which selection is made will be eligible for admission to this lists and if any Constable whose name has been brought on this list is not sent to the Police Training College in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, i.e., Lower School Course would be done on the basis of seniority-cum-merit. The notification amending the Rule reads as follows:- No. 16628-HII(I)-82/5105 dated 4th March, 1982; In exercise of the powers conferred by sub-section (2) of Section 46 of the Police Act, 1861, the Chief Commissioner, Chandigarh, is pleased to made the following amendments in the Punjab Police Rules, 1934, as applicable to the Union Territory of Chandigarh: - In the Punjab Police Rules, 1934, Volume II, for Rule 13.7, the following shall be substituted, namely: - List B. Selection for Admission to promotion course for constables at the Police Training College (1) List B (in Form 13.7) shall be maintained by Superintendent of Police. It will include the names of constables considered suitable as candidates for admission to the promotion course at the Police Training College Selection shall be made as far as possible in the month of January each year. The number of constables to be deputed for the promotion course for constables will depend upon the availability of vac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication in the Chandigarh Administration Gazette. 3. In the Punjab Police Rules 1934 (hereinafter referred to as the said Rules) for rule 13.7 the following shall be substituted, namely: - 13.7 (1) List B. Selection for Admission to promotion course for constables at the Police Training College. (1) List- B (in Form 13.7) shall be maintained by Superintendent of Police. It will include the names of all constables selected for admission to the promotion course for candidates at the Police Training College. Selection shall be made in the month of January each year and will be limited to the number of seats available for the year with a 20 per cent reserve. Names will be entered in the list in order of merit determined by the Departmental Promotion Committee constituted by the Inspector General of Police on the basis of test in parade, general law, (Indian Penal Code, Criminal Procedure Code and Police Rules), interview and examination of records: - (2) All candidates who are directly recruited in the U.T. Police and (a) Who are middle pass and have put in more than four years of service; or (b) Who are at least mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations. It further prescribes that in cases where other qualifications are equal, seniority in the police force would be the deciding factor. 27. After the amendment on 4.3.1982, the test was done away with and it was provided that List B would be maintained by Superintendent of Police which would include the names of constables considered suitable as candidates for admission to the promotion course at the Police Training College. It categorically postulated that there shall be no test for the Constables for admission to the promotion course and the Constables having sent for Lower School Course strictly on the basis of seniority-cummerit (record). Certain eligibility criteria was provided for certain Constables for the course and they included that a Constable must be confirmed in service and in case of non-availability of confirmed constables consideration of certain senior most temporary Constables fulfilling all other conditions; that he should have put in more than three years service if he is a matriculate, four years service if he a middle pass and certain other conditions. This rule may, for the sake of convenience, be called seniority rule . After the amendment on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alidity of the Rule and quashment of the order dated 28.10.1988 whereby the list was drawn up of the eligible candidates. As has been stated hereinbefore, the tribunal on 31.3.1989 modified its original interim order and directed that selection of the Head Constables may be made and given effect to subject to final decision of those Original Applications. The tribunal had also observed that the validity of the selection would be subject to final decision of the case. After the tribunal passed the aforesaid interim order, the authorities conducted the test as per the amended rule which had come into force with effect from 17.6.1988 and made selections and appointed successful candidates as Head Constables on the basis of merit. The tribunal noted the rival submissions which we have adverted to earlier, and opined that the applicants in the Original Applications had a vested right under the preamended Rule as confirmed Constables and they had been deprived of the said vested right. Elaborating further the tribunal opined that: - In case the selection of the applicants is allowed to be made for the promotional course on the basis of the criterion now provided in the Rule 13.7 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat decision could not have been the subject-matter of challenge before the High Court as per L. Chandra Kumar (supra). In L. Chandra Kumar (supra) the larger Bench, while opining that the question on which the tribunals have jurisdiction to decide its decision would be subject to scrutiny before the Division Bench of the respective High Courts, observed that the directions issued in the said case would come into effect prospectively, i.e., it would apply to decisions rendered after March 18, 1997, i.e., the date the decision in L. Chandra Kumar was rendered. The doctrine of prospective overruling was invoked to maintain the sanctity of judicial precedents and not to disturb a procedure in relation to decisions already rendered. 33. Keeping the aforesaid proposition of law in mind we shall proceed to deal with various other facets which have been canvassed before us, for we feel it is not a case which can be shut down by holding that the order dated 8.1.1990 having gone unassailed, the doors of justice from all quarters get closed. The tribunal in Achhar Chand s case, which was decided on 27.6.1988, had strictly gone by the principles stated in Y.V. Rangaiah (supra) by directing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above-cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose. 36. In B.L. Gupta (supra) the Court reiterated the principle stated in Y.V. Rangaiah (supra), P. Ganeshwar Rao (supra) and A.A. Calton v. Director of Education (1983) 3 SC 33 wherein it had been held that vacancies which had occurred prior to the amendment of rules were governed by the old rules and not by the amended rules. In Arjun Singh Rathore (supra) the views stated in Y.V. Rangaiah (supra) and R. Dayal (supra) were reiterated. 37. The reference to the aforesaid proposition of law makes it vivid that the decision rendered by the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mended to us for adjudging the effect of such non-impleadment. In Khetrabasi Biswal s case Orissa Public Service Commission had issued an advertisement inviting applications in the prescribed form for twenty five posts of Temporary Munsif (Emergency Recruitment) in Class II of the Orissa Judicial Service. The appellants and the respondents had applied before the Commission. A written examination was held by the Commission, a list of successful candidates was prepared and selectees were later on interviewed by the Commission and in the said proceeding a sitting Judge of the High Court acted as an expert. Thereafter the select list was prepared on the basis of merit which contained 39 names. The names of the appellants before this Court found place therein. The said list was sent to the State Government for approval. The State Government on receiving the said list, prepared another list in which the name of the appellant was found place therein but the names of Bijaya Kumar Patra and Govinda Chandra Parida and others were omitted. Number of writ petitions were filed before the High Court purporting to interpret the service rules prepared the list of candidates who should have been se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al justice. Reliance was placed on Prabodh Verma Ors. v. State of U.P. Ors. (1984) 4 SCC 251 and Tridip Kumar Dingal Ors. v. State of W.B. Ors. (2009) 1 SCC 768 to express the view that if a person challenges the selection process, successful candidates or ate least some of them are necessary parties. 44. It is submitted by Mr. Patwalia that the respondents were sent for Lower School Course subject to final result of the Original Application and the Original Application was allowed in favour of the appellants, the respondents were bound by the said verdict. It is urged by him that once the respondents were aware of the litigation and their training was subject to the result of the Original Application, they cannot be permitted to advance a contention that their non-impleadment makes it a nullity. In certain cases where mass copying in an examination or an examination is conducted in a mala fide manner by the authorities in the absence of vacancies or such ancillary situations, the position may be different. In the case at hand, the authorities did not accept the order but challenged the same before this Court in Special Leave Petition (C) No. 12535 of 1992 and this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observed that every confirmed employee had a vested right. It did not properly appreciate that the right was restricted to the accrued vacancies and assumedly remained oblivious to the categorical findings of the earlier decision that it was open to the respondents therein to take steps in accordance with the amended Rule in respect of vacancies to the post of Head Constables which might have accrued subsequent to the coming into force of the amended Rules which may fall vacant thereafter. 46. In this view of the matter, the order is absolutely unsustainable. The cornerstone of the impugned order dated 28.9.1998 is the order dated 8.1.1990. If this is allowed to stand, it would tantamount to palpable injustice. In this context, we may profitably refer to a passage from Jamshed Hormusji Wadia (supra), wherein the Court referring to the power under Article 136 has opined thus: - ... in spite of the repeated pronouncements made by this Court declaring the law on Article 136 and repeatedly stating that this Court was a court meant for dealing only with substantial questions of law, and in spite of the clear constitutional overtones that the jurisdiction is intended to settle t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and to do complete justice between the parties. It cannot allow any injustice to be carried on if the injustice is founded on certain technical principles. The Court is not to build a new structure to do the complete justice by ignoring the substantive provisions, for that would amount to supplanting. But, certainly it can supplement. It has to be borne in mind that principle pertaining to do complete justice as engrafted in Article 142(1) is of immense potentiality. When the occasion arises, it is the obligation of this Court to prevent injustice arising from the exigencies of the case that is unfurled before it. In the case at hand, the earlier order of the tribunal was legally sound. In the second case the tribunal, though seems to have relied upon Achhar Chand s case, has totally misunderstood the ratio laid down therein. That apart, the tribunal had not kept itself alive to the essential facts, namely, publication of results, selection of candidates and the impact it would have on their rights if they are not made parties. Considering all the aspects in a cumulative manner it can be stated with certitude that if that order is allowed to reign it would have disastrous impact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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