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1999 DIGILAW 1164 (PAT)

Surendra Prasad Singh v. State Of Bihar

1999-11-03

NARAYAN ROY

body1999
Judgment Narayan Roy, J. 1. Heard learned counsel for the petitioner and learned Additional Advocate General No.1 for the respondents. 2. Initially, the petitioner by this writ application had prayed for issuance of a writ of mandamus commanding upon the respondents to fix his seniority in the rank of Assistant Sub- Inspector of Police with effect from 1.10.1980, from the date the petitioner was promoted to the said post on officiating basis and further to direct the respondents to promote him to the post of Sub-Inspector of Police with effect from the date juniors to him, namely, Radhe Shyam Singh, Shailendra Kumar Singh, Ram Sagar Rai and Bashishtha Narayan Singh were promoted to the post of Sub- Inspector of Police and to give all consequential benefits. 3. During the pendency of this application, the petitioner since was reverted back to substantive post of Literate Constable vide notification no:2520 dated 7.8.98, the amendment application was filed challenging the order of reversion as contained in Annexure-6. The amendment application filed by the petitioner was allowed vide order dated 18.5.1999. 4. Learned counsel for the petitioner submitted that the petitioner was appointed as a Literate Constable on 1.3.1977 in the district of Nalanda and was transferred from Nalanda to the Police Training College Hazaribagh and while he was serving in the Police Training College, two posts of Assistant Sub-Inspector of Police were created by virtue of the order of the Inspector General of Police vide notification dated 1st October, 1980 till 28th February, 1981 and by virtue of the aforesaid notification, the petitioner along with one Sabir Ahmad Khan was allowed to function as Sub-Inspector of Police on temporary basis and the petitioner, thus, continued on the post as such without any break in service till January, 1997. It is further submitted by the learned counsel for the petitioner that seniority of Sabir Ahmad Khan was fixed on the post of Assistant Sub-Inspector of Police with effect from of his officiation i.e. 1.10.1980 and he was recommended for next promotion to the post of Sub-Inspector of Police whereas the petitioner was transferred as Assistant Sub- Inspector of Police to Bokaro without fixing his seniority with effect from the date of his officiation like Sabir Ahmad Khan. Learned counsel further submitted that since the petitioner has continued even on officiation basis as Assistant Sub-Inspector of Police for about 17 years, he could have been confirmed as the Assistant Sub-Inspector of Police and his case could have been considered for promotion to the post of Sub-Inspector of Police in the like manner it was done in the case of Sabir Ahmad Khan.Learned counsel further submitted that instead of doing so, the authorities concerned after fifing this writ application in the court reverted the petitioner to the substantive post of Lierate Constable vide order as contained in Annexure-6 even without giving an opportunity of being heard to him. It is also contended that even though the petitioner was promoted on ad hoc basis as Assistant Sub-Inspector of Police and since he continued as Assistant Sub-Inspector of Police for about 17 years, in no case he could have been reverted to his substantive post and that also without affording him an opportunity of being heard. 5. A counter affidavit has been filed on behalf of the respondent no.2 wherein it is stated that the petitioner was given promotion without following provisions of the Police Manual and Rule 659(A) of the Police Manual contemplates that a constable will be promoted to the rank of Assistant Sub-Inspector of Police after completion of five years of service whereas Rule 660 (C) of the Police Manual contemplates that no constable shall be promoted unless he passes P.T.C. examination of Assistant Sub-Inspector of Police. It is further stated in the counter affidavit that the petitioner was appointed as a constable on 1.3.1977 and he passed P.T.C. examination in the year 1969 but he was allowed to function as A.S.I, of Police with effect from 1.10.1980 by the D.I.G., Police Training College, Hazaribagh violating the provisions of the Police Manual. 6. It has also been stated in the counter affidavit that Sarvshree Radhe Shyam Singh, Shailendra Kumar Singh and Ram Sagar Rai were appointed as constable in 1971 and according to Rule 659 (A) of the Bihar Police Manual, they were promoted to the post of Assistant Sub-Inspector of Police as they had already completed five years of service. 6. It has also been stated in the counter affidavit that Sarvshree Radhe Shyam Singh, Shailendra Kumar Singh and Ram Sagar Rai were appointed as constable in 1971 and according to Rule 659 (A) of the Bihar Police Manual, they were promoted to the post of Assistant Sub-Inspector of Police as they had already completed five years of service. It is further stated in the counter affidavit that those persons were found eligible for promotion to the post of Sub-Inspector of Police by the Central Selection Board held in 1994 and accordingly, they were promoted on the post of Sub-Inspector of Police on the basis of seniority whereas the petitioner was appointed on 1.3.1977 and he thus, ranked junior to those persons, as referred to above. 7. From the pleadings of the parties and the submissions made at.the Bar, the question for consideration arises as to whether the service rendered by the petitioner on ad hoc basis prior to his regularisation can at all be taken into consideration for determining his seniority in the rank of Assistant Sub-Inspector of Police and as to whether the petitioner is entitled for consideration of his promotion to the next higher post of Sub-Inspector of Police. The law on the point has already been settled by the Apex court in the case of Direct Recruit Class II Engineering Officers Association V/s. State of Maharashtra and others, (1990) 2 Supreme Court Cases 715 : 1990(2) PLJR (SC)23; in the case of Food Corporation of India V/s. Thaneswar Kalita and ors. (1995)3 Supreme Court Cases 342 and in the case of P.K. Singh V/s. Bool Chand Chablani and ors. (AIR 1999 Supreme Court 1478). The Apex Court in these cases has held that if the appointments were made on ad-hoc basis de hors rules and though the appointees might have continued for a long time, the entire period of service would be fortuitous and so it would not be counted towards seniority. 8. From the facts of this case, it appears that the petitioner was not promoted even on ad hoc basis according to the rules but somehow or the other he continued on the post as such for about 19 years. 8. From the facts of this case, it appears that the petitioner was not promoted even on ad hoc basis according to the rules but somehow or the other he continued on the post as such for about 19 years. It is settled law that if the appointments are made according to rules, though initially on ad-hoc basis, and are continued for a long time, on regularising the service, the entire period of temporary service would be counted for seniority and if such appointments are in excess of the quota, the officiating period would not be treated for seniority, the appointments then become fortuitous and the persons appointed in excess of the quota are not entitled to count the entire period of service for seniority. In that view of the matter, the service rendered on ad-hoc basis by the petitioner prior to his regularisation cannot be taken into account for determining seniority. 9. Besides these the contention of the learned counsel for the petitioner that juniors to the petitioner, namely, Radhe Shyam Singh, Shailendra Kumar Singh and Ram Sagar Rai have been promoted to the posts of Sub-Inspector of Police does not appear to be correct in view of the statements made in the counter affidavit that they were appointed as constables in the year 1971 and after following the provisions of Rule 659 (A) of the Bihar Police Manual, they were promoted to the post of Assistant Sub-Inspector of Police after completion of five years and further they were found eligible for promotion to the next higher post of Sub-Inspector of Police by the Central Selection Board held in 1994. Admittedly, the petitioner is an appointee of the year 1977 and even if he was allowed to function as Assistant Sub-Inspector of Police on ad-hoc basis and even though he continued for a pretty long time, in view of the legal proposition noticed above, the petitioner is not entitled under law for counting his seniority with effect from the date of his promotion on ad-hoc basis de hors the rules. 10. 10. However, learned counsel for the petitioner submitted that one Sabir Ahmad Khan, who was also promoted on ad-hoc basis as Assistant Sub-Inspector of Police with effect from 1.10.1980 in the Police Training College, Hazaribagh and who was also similarly situated to the petitioner, has been confirmed on the post of Assistant Sub-Inspector of Police and his case has been recommended for the next promotion to the post of Sub-Inspector of Police. Nowhere it has been stated in the writ application that Sabir Ahmad Khan was also appointed as Constable with effect from the date, the petitioner was appointed. No categorical statement has been made in the writ application stating therein that the case of the petitioner is similarly situated to the case of Sabir Ahmad Khan from all angles. I do not find any averment in the counter affidavit about the fixation of seniority of Sabir Ahmad Khan. In such circumstances, it would be difficult for this Court to hold that the case of the petitioner has been discriminated. 11. However, it is made clear that in case Sabir Ahmad Khan similarly situated to the petitioner has been confirmed on the post of Assistant Sub-Inspector of Police, the authorities will have no reason to deny the same to the petitioner in case he is found similarly situated to Sabir Ahmad Khan. 12. Now coming to the last grievance of the petitioner that during the pendency of the writ application, the petitioner has been reverted to the post of a constable from the post of Assistant Sub-Inspector of Police after 19 years of officiation as Assistant Sub-Inspector of Police, as contained in Annexure-6, it appears to me that admittedly, the petitioner continued to function on ad hoc basis as Asst. Sub-Inspector of Police with effect from 1980 and from Annexure-6 to the writ application, it would appear that he has been reverted to his substantive post even without complying with the principles of natural justice inasmuch as that no opportunity whatsoever was given to the petitioner of being heard before passing the order of reversion. 13. In view of the long continuation of the petitioner even on ad-hoc basis of the post of Assistant Sub-Inspector of Police, the authorities could have at least given an opportunity of being heard to the petitioner before passing the order of reversion as contained in Annexure-6. 13. In view of the long continuation of the petitioner even on ad-hoc basis of the post of Assistant Sub-Inspector of Police, the authorities could have at least given an opportunity of being heard to the petitioner before passing the order of reversion as contained in Annexure-6. Nowhere, it has been stated in the counter affidavit that the petitioner was heard before passing the order of reversion as contained in Annexure-6. The order of reversion as contained in Annexure-6, therefore, must be held to be arbitrary, discriminatory and in violation of principles of natural justice and the same thus, is not sustainable in law. 14. For the reasons and discussions aforesaid, this application is allowed in part and the order of reversion as contained in Annexure-6 is quashed. However, there will be no order as to cost.