Ganesh Ram v. State of Bihar — 1989 DIGILAW 438 (PAT)

JUDGMENT U.P. Singh, J. An order dated 10.8.1988 (Annexure-1) reverting the petitioner from the post of Dy. S.P. to the Post of Subedar has been challenged in this writ application by the sole petitioner. In the year 1975 the petitioner was promoted to the rank of Jamadar and, thereafter, to the rank of Subedar in the year 1979. The rank of Jamadar and Subedar is equivalent to Sub-Inspector and Inspector of Police respectively. 2. It appears that in the year 1979 one Tirath Nath Mallik and others (Reserve Sub-Inspector) had preferred a writ application before this Court (C.W.J.C. no. 3678 of 1979) claiming their promotion. This court dismissed the writ application in April, 1980. A Special Leave Petition was then preferred in the Supreme Court, which was later dismissed as withdrawn on 10.2.1982 with certain directions. Since those directions were not carried out by the State an application for contempt (C.M.P. No. 9171 of 1986) was moved in the Supreme Court and, finally, the Special Leave Petition was taken up as Civil Appeal and heard analogous with the writ application filed by one Ram Kumar Singh under Article 32 of the Constitution of India. Both, Civil Appeal No. 371 of 1987 and the writ application No. 2084 of 1980 were heard together and disposed of by a common judgment dated 10.2.1987 which is now reported in A.I.R. 1987 Supreme Court 1195 : 1987 PLJR (SC) 21. The Supreme Court held ;- "We are satisfied, after hearing learned counsel that though under the Police Manual Jamadars are not shown as a category of Police Officers, they have continued to be in service and at present their number exceeds a thousand. Since under the Police Manual, Havildars belong to the class of 'Other Officers' and there is a promotional avenue available to Havildars as Jamadars. That, however, would not meet the requirements of the present situation. Since there are about a thousand Jamadars still in service and there was no promotional avenue for officers in that rank, the Government has created these 118 posts of Subedars in the rank of Inspectors to provide a promotional avenue for that category. Mr. Jai Narain, learned counsel for the State, has contended that it is not seriously opposed that Jamadars being promotees from out of Havildars ordinarily do not have higher qualification as possessed by Sergeants (now Reserve Sub-Inspectors). Mr. Jai Narain, learned counsel for the State, has contended that it is not seriously opposed that Jamadars being promotees from out of Havildars ordinarily do not have higher qualification as possessed by Sergeants (now Reserve Sub-Inspectors). It is true, as contended by Mr. Gopal Subramaniam for the appellants, that once there is a merger and Jamadars and Sergeants have become fixed into the common category of Reserve Sub-Inspectors, the promotional avenue cannot be closed to Reserve Sub-Inspectors, who form one section of category out of which promotion is to be granted. The State of Bihar has created these 118 posts of Sergeants not known to the ranks indicated in R. 639 of the Police Manual; to meet a special situation. We do not think in the facts of the case the cause of Justice should at all be advanced if we interfere with the arrangements made by the State in the matter of creation of the 118 posts of Subedars and confining the promotional opportunity thereto to Jamadars alone. At one stage, the State of Bihar had taken the stand before the High Court that from Subedars further promotion to the rank of Deputy Superintendent of Police would not be admissible, but Mr. Jai Narain pointed out in the course of the hearing before us that to provide such a restriction may not be appropriate. As we have already pointed out, there would be no necessity of further promotion of Havildars to Jamadars; therefore, the present problem is a passing phase and would not reoccur. Keeping that aspect in view, we think it reasonable and in the interest of the service that the promotional prospect to the post of Deputy Superintendent of Police may not be totally banned for Subedars. On the other hand, the same educational qualification which is prescribed for Reserve Sub-Inspectors should be provided as the requisite qualification to the rank of Deputy Superintendents out of Subedar.” 3. In view of the aforesaid judgment of the Supreme Court the petitioner filed a representation on 25.2.1987 addressed to the Director General of Police claiming his promotion to the post of Dy. S.P. from the post of Subedar. In their meeting dated 7.8.1987 the Director General Board decided to promote the petitioner to the rank of Dy. S.P. clarifying that his promotion will be in accordance with the roster as he belongs to the Schedule Caste. S.P. from the post of Subedar. In their meeting dated 7.8.1987 the Director General Board decided to promote the petitioner to the rank of Dy. S.P. clarifying that his promotion will be in accordance with the roster as he belongs to the Schedule Caste. It also suggested that legal decision about the educational qualification be ascertained from the department of Law. Accordingly, it was sent to the Home Department by the Inspector General (Personnel). The Law Secretary made it clear that the educational qualification of being a Graduate was for direct recruits and not for the promotees. It was approved by the Home Commissioner and, subsequently, by the then Chief Minister of Bihar in accordance with the rules of Executive Business. After getting necessary reports from the Department of Vigilance and after observing all other official formalities, the Cabinet, in its meeting dated 20.10.1987 decided to promote the petitioner to the rank of Dy. S.P. and, accordingly, a notification to this effect was published on 3.11.1987. The petitioner then submitted his joining report to the office of the Inspector General (Head Quarter) on 3.11.1987 and since then he has been working on the post of Dy. S.P. His services were, later, placed with the Transport Department and in October, 1988 he was posted as Dy. S. P. (Mobile) in Darbhanga range. While he was serving as such, he-received the impugned order dated 8.10.1988 reverting him from the post of Dy. S.P. to the rank of Subedar. The impugned order did not state any reason whatsoever. 4. On such promotion granted to the petitioner as Dy. S. P., the said T.N. Mallik and others filed a contempt application (C.M.P. No. 11600 of 1988), in the Supreme Court, and a show cause notice was issued to the State. After considering the show cause reply of the State and hearing the parties, the contempt application was finally disposed of on 22nd February, 1989. In their show cause the State submitted that it had taken a decision to cancel the promotion of the petitioner which had earlier been done in view of the judgment of the Supreme Court. It was in this context that the petitioner filed an application in the Supreme Court for being impleaded as an intervenor in the contempt application. In their show cause the State submitted that it had taken a decision to cancel the promotion of the petitioner which had earlier been done in view of the judgment of the Supreme Court. It was in this context that the petitioner filed an application in the Supreme Court for being impleaded as an intervenor in the contempt application. On the statement made by the learned counsel appearing for the petitioner, intervenor that a writ application has been filed in the Patna High Court challenging the impugned order of cancellation, the Supreme Court observed: "We make it clear that what we have stated above may not stand in the way of adjudication of the petitioner's writ application before the High Court." The contempt proceeding was ultimately dropped with these directions. In these circumstances the present writ application is before this Court in which the parties have filed their affidavits, counter-affidavits and reply. The intervenors were also heard. 5. It is unfortunate that different and divergent stand were taken by the State in their counter-affidavit filed in the Supreme Court and before this Court and the Judgment of the Supreme Court was not correctly appreciated in the context of the relevant Rules of the Police Manual dealing with the educational qualification of directly appointed Dy. S.P. and those of promo tees who claim promotion to the rank of Dy. S.P. out of Subedars. In this context Rule 651 of the Bihar Police Manual, 1978 is relevant to be noticed and it reads :- "651. Reserve Sub-Inspectors.-(a) In July every year, the Inspector General shall decide how many vacant posts shall be filled by promotion and how many by direct recruitment. For vacancies by promotion, see Rule 660B. Rule 658 prescribes the qualification to be possessed by a candidate for direct recruitment to the post of Reserve Sub-Inspectors and clause (iii) prescribes that he must have passed the Degree examination of an Indian University or an equivalent examination recognised by the State Government. He must be able to speak Hindi fluently." Rule 660 B deals with the qualification of promotion i.e. for those who ought to be promoted from the rank of Havildar to the post of Reserve Sub-Inspectors and it reads ;- "660B. He must be able to speak Hindi fluently." Rule 660 B deals with the qualification of promotion i.e. for those who ought to be promoted from the rank of Havildar to the post of Reserve Sub-Inspectors and it reads ;- "660B. (a) Promotion of Havildars including Havildar Driver-(i) 50 per cent of the posts of Reserve Sub-Inspectors excluding Reserve Sub-Inspector (Transport) shall be filled up by promotion from the rank of Havildars who have done at least four years of service." Rule 663 prescribes the educational qualification for the selection of recruits (Constables) and apart from other qualification, regarding educational qualification it prescribes that they must pass Secondary (i.e. Matriculation) examination for such selection as recruits (Constables). Therefore, the basic educational qualification for promotees is obviously Matriculation. In so far as appointment of Deputy Superintendent is concerned, Rule 645 prescribes that Deputy Superintendent of Police will be appointed in accordance with the rules contained in Appendix 71. Rule 646 deals with the promotion of Inspectors and Reserve Inspectors to the post of Deputy Superintendents and it prescribes that ;- "The promotion of Inspectors including Reserve Inspectors of district armed police and equivalent ranks of Bihar Armed Police to the rank of Deputy Superintendents will be made by Government on the recommendation of a Selection Board consisting of Chairman, Bihar Public Service Commission as Chairman and Inspector General and others as members as given in Appendix-2 (See Rule 724A). 6. Rule 724A deals with the promotion of Inspectors (including Reserve Inspectors) and states that :- "(i) The promotion of Inspectors (including Reserve Inspectors) to the rank of Deputy Superintendent will be made in accordance with the rules for recruitment to the Bihar Police Service (Part 2, Appendix 71)." Appendix 71 Part I prescribes the educational qualification for the direct recruitment of the Deputy Superintendent of Police having educational qualification of a degree (arts, science or commerce) from an University recognized by Government or any other educational qualification, which the Government may decide to consider equivalent to the said prescribed qualification. Likewise, Part 2 of Appendix 71 deals with the promotion of Inspectors for the post of Deputy Superintendents and even here the educational qualification of a degree from an University is not prescribed in such cases of promotion of the Inspectors to the post of Dy. Likewise, Part 2 of Appendix 71 deals with the promotion of Inspectors for the post of Deputy Superintendents and even here the educational qualification of a degree from an University is not prescribed in such cases of promotion of the Inspectors to the post of Dy. S.P. This was referred to by the learned counsel appearing for the petitioner only with a view to show that even in the case of Inspectors (including Reserve Inspectors) and Sub-Inspectors (including Reserve Sub-Inspectors) who were promoted to the post of Dy. S.P. no educational Qualification has been prescribed. Whereas, in the case of direct appointment the educational qualification must be that of a degree in arts, science or commerce from an University recognized by Government. 7. Once it is accepted that in the case of promotees the educational Qualification is not prescribed, whereas in the case of direct recruits a candidate must possess a degree from an Indian University, the judgment of the Supreme Court has to be read and appreciated in the context of these various provisions. It is not denied and the admitted position is that the petitioner while he was appointed as a constable possessed a matriculation qualification as prescribed for such recruits in accordance with Rule 663 and got promotion on account of his efficient service as Havildar and later as Subedar. It is difficult to accept that the State Government would be ignorant of its own rules governing such promotions and take undue advantage of their ignorance. It appears that till the stage of filing of their show cause in reply to the notice in the contempt proceeding they were aware of these rules and were conscious of the position that the qualification has been differently prescribed for the direct recruits and for the promotees. It is now relevant to notice their averment in the show cause filed before the Supreme Court in the contempt proceeding. In paragraph 6 thereof it was stated :- "That the State of Bihar will, however, seek the indulgence of this Hon'ble Court for a reconsideration of the matter relating to the minimum educational qualification for promotion of Subedars whose number in the new assignment is likely to decline to the rank of Deputy Superintendent of Police. It may be pointed out that in the existing practice while for directly recruited Sergeants (Reserve Sub-Inspector) and Sub-Inspectors, the basic Qualification is a degree (graduate). It may be pointed out that in the existing practice while for directly recruited Sergeants (Reserve Sub-Inspector) and Sub-Inspectors, the basic Qualification is a degree (graduate). Promotion to the rank of Asst. Sub-Inspectors and Havildars is made without reference to this basic degree. So for these promotee Sub-Inspectors arc concerned, they are eligible, for promotion as Inspectors and in appropriate cases even as Dy. S.P. rank even if they are only matriculate. There is no bar against their promotion on account of their not being graduate. Similarly, Subedars of Bihar "Military Police who are not graduates (in fact not even matriculates) were being promoted to the rank of Dy. S.P. Now in their cases also matriculation is the minimum educational qualification. Thus, according to the prevalent practice, there is no bar in granting promotion to non-graduate Subedars to the post of Dy. S.P. This position has been clearly indicated in the minutes of the D.G. Board dated 7.8.1987 which has already been brought on record. In deference to the view taken by this Hon'ble court, on this aspect of the controversy, the D.A.P. Subedars, as against the promotee Inspectors and the B.M.P. Subedars who have so far been viewed as constituting the same class, will be denied the opportunity to be considered for promotion to the rank of Dy. S.P. unless they are graduates. For the pre sent the State Government have taken the position that the order dated 10.2.87 of this Hon'ble Court is an absolute bar and have accordingly cancelled the promotion of Subedar Ganesh Ram (Petitioner herein). It is entirely for this Hon'ble Court to decide if in this light of what has been said in the foregoing paragraphs the matter should be re-examined." 8. Considering these averments, finally; the Supreme Court dropped the contempt proceeding and/further, in view of the statement made on behalf of the counsel appearing for the petitioner-intervenor, their Lordships said :- “We make it clear that what we have stated above may not stand in the way of adjudication of the petitioner's writ application before the High Court." In the counter-affidavit filed here in the present writ application the stand of the State Government was :- "That the petitioner was promoted by mistake of face to the post of Dy. S.P. because he is not a graduate. So mistake could be corrected when is came to its light". S.P. because he is not a graduate. So mistake could be corrected when is came to its light". A second counter-affidavit was also filed and in paragraph 4 therein it was stated that : "So far the minimum qualification of Civil Subedar for promotion to the rank of Dy. S.P. is concerned it has been held by the Supreme Court in the Judgment passed in Civil Appeal No. 381/87 that the qualification which is required for Reserve Sub-Inspectors must be possessed by the Civil Subedars for promotion to the rank of the Dy. S.P. According to the Police Manual the minimum qualification for recruitment as Reserve Sub-Inspectors is graduation. It was further stated that no provision has been made in the Police Manual for promotion of Civil Subedars to the rank of Dy. S.P., hence the impugned order was rightly passed by the contempt (sic competent) authority." 9. Mr. Mookherji, the learned counsel appearing for the petitioner pointed out that a mis-statement was made in paragraph 5 of the second counter-affidavit filed on behalf of the State that according to the Police Manual the minimum qualification for recruitment as Reserve Sub-Inspector is graduation. This was done with a view to mislead the court. It appears that the relevant rules in the Manual do prescribe the qualification differently for direct recruits and for the promotees and the same stand had earlier been taken by the State while the show cause was filed in the Supreme Court in its reply to the notice issued in the contempt proceeding. Thus, the Slate Government was aware of its own rules but the stand was shifted only with a view to defeat the claim of the petitioner. If the State Government realised that there was no such educational qualification prescribed for promotion of the Reserve Sub-Inspectors for their promotion to the post of Dy. S. P. they could and ought to have prescribed a qualification. But as the rule stands now, the reference of which have been made in the earlier part of the judgment there cannot be two opinions that the qualification of a degree is not the educational qualification for the promotees. Having regard to all these Rules it is obvious that those who are promoted as Reserve Sub-Inspectors are not required to possess a degree of an Indian University, which is applicable only in the case of direct appointment as Reserve Sub-Inspectors. Having regard to all these Rules it is obvious that those who are promoted as Reserve Sub-Inspectors are not required to possess a degree of an Indian University, which is applicable only in the case of direct appointment as Reserve Sub-Inspectors. 10. In this view, I have no option but to hold that there was absolutely no justification to cancel the promotion of the petitioner as Dy. S.P. from the rank of Subedar. The order contained in Annexure-1 is, therefore, set aside and the application is allowed but without costs.