In
its order dated March 4, 2024, Patna High Court's bench of Chief
Justice K. Vinod Chandran and Justice Harish Kumar set aside Rule 11(4)
of the Bihar Subordinate Prohibition Service Rules, 2017, which
extinguished completely, the avenue of promotion to the post of
Sub-Inspector; to non-graduate Assistant Sub-Inspectors. Before the
introduction of these Rules of 2017, the Assistant Sub-Inspectors were
considered for promotion on the basis of their suitability and seniority
without any specification of minimum educational qualification. The
Rules of 2017 abruptly changed the criteria and introduced graduation
for promotions. The Bihar Subordinate Prohibition Service (Recruitment
and Service Conditions) (Amendment) Rules, 2018 rechristened the Rules
of 2017 as The Bihar Subordinate Prohibition Service Rules. It further
amended sub-rule (4) of Rule 4 making provision for 50% of total
sanctioned strength of Sub-Inspectors to be filled by direct recruitment
and remaining 50% to be filled up by promotions from amongst Assistant
Sub-Inspectors on seniority cum eligibility.
Dhananjay
Kumar, the petitioners' counsel contended that even now the
Sub-Inspectors who are not graduates are promoted to the post of
Inspectors. The Assistant Sub-Inspectors and the Sub-Inspectors more or
less are engaged in the same duties. When the prescription of a minimum
eligibility of graduation is not there for promotion from Sub-Inspectors
to Inspectors, it is arbitrary to totally obliterate avenues of
promotion for the Assistant Sub-Inspectors who have spent a long period
in the police service.
P.
K Shahi, Advocate General submitted that there were substantial
amendments brought to the service rules in the Excise Department,
especially in the context of the prohibition introduced in the State.
The eligibility for recruitment of Sub-Inspectors was made at par with
the eligibility in the police manual. The non-graduate Sub- Inspectors
is a dying cadre and hence, they are being considered for promotion to
the post of Inspector. The State contended that prohibition was
introduced and the eligibility of graduation prescribed for direct
recruitment. The necessity to have a commonality of persons in the very
same cadre was the ground urged to sustain the amendment. The State
admitted that the said commonality is not maintained in the cadre in
which the petitioners seek promotion to, and its higher cadre. The cadre
of Sub-Inspectors still have non-graduates, who were promoted from the
post of Assistant Sub-Inspectors. The Non-graduate Sub-Inspectors also
have an avenue of promotion to the post of Inspector; despite the cadre
of
Inspector, even in the year 2009, as is revealed from Annexure-1, the
Bihar Excise Service Recruitment and Service Conditions) Rules, 2009
had basic eligibility of a graduate degree, for direct recruitment.
Insofar as promotion from the post of Sub-Inspector, Excise and direct
recruitment, the eligibility was: (i) satisfactory service in the
post of Sub-Inspector, Excise; (ii) passing of required departmental
examination in accordance with the rules of Excise Superintendents and
Inspectors; (iii) satisfactory character assessment, and (iv) seniority.
The said post of Inspector, Prohibition has been removed from a
gazetted post and now included as a non-gazetted post under the Rules of
2017.
The
Court's judgement reads, "we are of the opinion that the prescription
under Rule 11(4) insofar as prescribing an educational qualification for
promotion to the post of Excise Sub-Inspector from Assistant
Sub-Inspector Excise, to be the same as it is prescribed for direct
recruitment to the said post is arbitrary. We hence, set aside Rule
11(4) of the Rules, also noticing the fact that as per Rule 11(1),
promotions to the post of Inspector, Prohibition from the
Sub-Inspectors, Prohibition is on the basis of seniority-cum- eligibility.
We have not been shown any extenuating circumstance requiring a
different yardstick to be applied for the purpose of promotion from
Assistant Sub-Inspectors to Sub-Inspectors when even the further
promotion post is not dependent on a graduate degree."
The
judgement was authored by Chief Justice Vinod Chnadran. It concludes,
"We set aside Rule 11(4) of the Rules of 2017 and mandate that the
promotions from Assistant Sub-Inspectors to Sub-Inspectors in the quota
available for such promotions, as per the rules, shall be made on the
basis of seniority-cum- eligibility, which is the criteria for promotion to the next higher post."
