BAKSHU KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THESE appeals are directed against the orders of the learned Single Judge, dated, November 2, 1983, whereby the appellants writ petitions were dismissed. Brief facts leading to the present appeals are that the appellants were serving as Constables. On 24th January, 1976 under sub-rule (3) of Rule 24 of the Rajasthan Police Subordinate Service Rules, 1974 (hereinafter referred to as "the Rules"), a Board was constituted for holding the examination and selection for promotion to the posts of Head Constables. According to the appellants, they undertook the qualifying examination and their names were included in the list of selected and suitable candidates. Under Sub-rule (2) of Rule 24 of the Rules they were given promotion on the posts of Head Constables on a temporary basis. The posts were also temporary. It was stated in their promotion order dt. 6. 7. 76 (Exbt. P-4) that they will be required to undergo qualifying examination again for inclusion of their names in the approved list for regular promotion to the posts of Head Constables. By letter dated 21st November, 1981 they were required to submit their application forms by 7th December, 1981 to undertake the qualifying examination. The petitioner's case is that they having undertaken the qualifying examination and cleared the same, they cannot be called upon to undertake the qualifying examination over again. The condition embodied in the order dated 6th July, 1976 (Exbt. P-4) is invalid being contrary to Rules and the petitioners cannot be called upon to submit any application to undertake the qualifying examination second time as is required vide Exbt. P-5, dated 21st November, 1981. Exbt. P-4 and Exbt. P-5 have been challenged on the ground that they are contrary to the scheme of the Rules, particularly the scheme of Rule 24.

(2.) A reply to the writ petition has been filed. The stand taken by the Government is that there were only 14 permanent vacancies in the 6th Bn. R. A. C. and there were 28 temporary vacancies of Head Constables in R. C. F. , Barmer, Airfield Jaisalmer and Uttarlai. These vacancies were determined by the D. I. G. R. A. C. and later on the D. I G. R. A. C. constituted a Board. The Board held the written test for filling up the regular and temporary vacancies. The petitioners and the like persons, who qualified the test were interviewed by the Board and two lists of selected candidates were prepared, which are Exbt. R-4 and Exbt. R-5. The first list was of approved candidates selected for 14 regular and permanent vacancies, but the list contained the names of 27 candidates (1$ times in accordance with the Rules) and these 27 candidates obtained the highest marks in the written examination as also in the interview. The second list was prepared of those candidates who got less marks, which was prepared for temporary vacancies which were 28 in number. Both the lists were approved. It has also been stated in the reply that the petitioners were given appointment by promotion on the posts of Head Constables with a clear condition that for regular promotion to the posts of Head Constables they will have to undergo qualifying examination. They are bound by that condition and it is not open to them to challenge the same after expiry of more than 5 years. It should be taken that they accepted the condition at the time of their promotion on temporary posts.

(3.) IT is true that the promotion order did contain a condition requiring the petitioners to appear in the qualifying examination again. They were appoin -ted and they got their promotion knowing it fully well that the order of promotion contained a condition. IT is also true that they did not challenge the condition for a period of more than 5 years. IT may be stated in this connection that they were not called upon to appear in the qualifying examination in the next year and they continued to hold the temporary posts of Head Constable for more than 5 years. IT was only in the year 1981 that they were called upon to submit their application to appear at the qualifying examination. Faced with the situation, in the year 1981 they approached this Court when no examination was conducted immediately in the next following year and it is only, when they were going to be affected by the order of the year 1981, real cause of action arose to them at that time. Besides that having regard to the scheme of Rule 24 they might have thought it that as and when they would require to undertake qualifying examination, it would be open to them to challenge that action in view of the scheme of Rule 24. We also cannot lose sight of the fact that the appellants have been serving in the capacity as Head Constables though on temporary basis for a period of about 9 years, it would be a great hardship for the appellants that they are refused relief in these writ petitions on the ground of delay and may be asked to appear in the qualifying examination after such a long lapse of time. Despite delay if considered as such we are of the opinion that on the said ground the appellants should not be denied the relief which they can ultimately claim under the Rules In the above view of the matter, in our opinion these appeals must succeed. No other point has been pressed before us.