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2000 DIGILAW 1120 (PAT)

Surendra Prasad Singh v. State Of Bihar

2000-09-14

D.P.S.CHOUDHARY, NAGENDRA RAI

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Judgment 1. Both the appeals arise out of the same order dated 3rd November, 1999 passed by a learned Single Judge of this Court in CWJC No. 4235 of 1998 by which he has quashed the notification dated 7.8.1998 passed by the Superintendent of Police, Bokaro reverting the appellant of LPA No. 1602 of 1999 from the post of Assistant Sub-Inspector of Police (For short, ASI) to the post of Constable, which has been annexed as Annexure-6 to the writ application and has further directed that if his case is similar to the case of Sabir Ahmad Khan who is alleged to have been confirmed on the post of ASI then the same benefit is to be extended to him. However, the learned Single Judge has rejected the claim of the appellant for confirmation and seniority on the post of ASI with effect from the date of his officiation on that post i.e. 1.10.1980. 2. For the sake of convenience, Surendra Prasad Singh will be hereinafter referred to as the appellant and the State of Bihar as the respondent. The Respondent is aggrieved by that part of the order of the learned Single Judge quashing the order of reversion by which the appellant has been reverted from the post of ASI to the post of Constable and directing the respondents to consider his case like Sabir Ahmad Khan. The appellant is aggrieved by that part of the order by which his claim for counting seniority from the date of his officiation on the post of Assistant Sub- Inspector of Police has been rejected. 3. The appellant was appointed as a literate Constable on 1.3.1977 at Patna and was posted in the district of Nalanda. On 1.10.1980, the Director General of Police created two temporary posts of ASI in the Police Training College, Hazaribagh for a period from 1.10.1980 to 28.2.1981. The appellant and one Sabir Ahmad Khan were posted on the said posts purely on temporary basis by the D.I.G., P.T.C., Hazaribagh by order dated 1.10.1980. Even though the posts were created for a temporary period which were never extended after 28.2.1981, the appellant and the aforesaid Sabir Ahmad Khan continued on the said posts of ASI. The appellant and one Sabir Ahmad Khan were posted on the said posts purely on temporary basis by the D.I.G., P.T.C., Hazaribagh by order dated 1.10.1980. Even though the posts were created for a temporary period which were never extended after 28.2.1981, the appellant and the aforesaid Sabir Ahmad Khan continued on the said posts of ASI. Thereafter the appellant completed Police Training Course which is known as PTC in the year 1989 and claimed by filing representation that his seniority on the post of ASI should be counted with effect from 1.1.1980 and he should be promoted to the post of Sub-Inspector of Police from the date juniors to him were promoted. When no decision was taken by the State Government he filed a writ application out of which the appeal arises, claiming fixation of seniority in the rank of ASI with effect from 1.10.1980, that is, the date from which he has been promoted to the said post on officiating basis and promotion to the post of Sub- Inspector of Police from the date juniors to him were promoted. It was asserted on behalf of the appellant in the said writ application that Radhe Shyam Singh, Shailendra Kumar Singh, Ram Sagar Rai and Bashishtha Narain Singh were promoted as ASI in the year 1982 and thereafter they were promoted to the rank of Sub-Inspector of Police in the year 1994, whereas the appellant who was working on the post of ASI before them has been discriminated. 4. During the pendency of the writ application, the Superintendent of Police, Bokaro issued an order dated 7.8.1999 reverting him from the post of ASI to the post of Constable which has been an- nexed as Annexure-6 to the amendment petition which was allowed by the Court. In the said amendment application, the appellant stated that he and one Sabir Ahmad Khan were promoted as ASI at the same time but the said Sabir Ahmad Khan has been confirmed on the post of ASI and promoted to the post of Sub- Inspector of Police, but he has been discriminated in the matter by not providing the same benefit. 5. 5. The stand of the State is that according to Rule 659(a) of the Bihar Police Manual, a constable will be promoted to the rank of ASI after completing five years of service and according to rule 660(c) of the Police Manual, no constable shall be promoted unless he passes PTC examination of ASI. Seniority list of ASI is based on a police order No. 204/88 and the seniority is detemmined from the date of appointment to the post of constable or from the date of passing the Matriculation examination. In case a constable passed the Matriculation examination after his appointment, the seniority is determined from the date of passing the said examination. The appellant was appointed as a Constable on 1.3.1977 and passed the PTC examination for ASI in the year 1989 and in view of the aforesaid rule, he should not have been promoted to the post of ASI. His promotion to the post of ASI with effect from 1.10.1980 was purely on ad hoc basis for a period the post was created but he wrongly continued on the said post in breach of the aforesaid rules of Police Manual. Later on when the said mistake was detected, by order dated 7.8.1998 he was reverted to the post of Constable. It was further stated in the counter affidavit that Radheshyam Singh, Shailendra Kumar Singh and Ram Sagar Rai were appointed as Constables in 1971 prior to the appointment of the appellant and they were promoted to the post of ASI after completing five years of service as provided under rule 659(a) of the Police Manual by the competent authority. It is further stated that the cases of the aforesaid persons were considered to the post of Sub-Inspector of Police by the Central Selection Board and the Board finding them fit gave them promotion. The Constables appointed up to May, 1976 of general category have been given promotion to the rank of ASI according to their seniority and after their passing the PTC examination. The appellants case does not fall within the zone for promotion to the post of ASI. 6. The learned Single Judge after having considered the material has passed the impugned judgment. 7. The appellants case does not fall within the zone for promotion to the post of ASI. 6. The learned Single Judge after having considered the material has passed the impugned judgment. 7. The learned counsel for the appellant contended that admittedly the appellant has been continuously officiating on the post of ASI since 1.10.1980 and as such he is entitled to be confirmed on the said post from the date of his officiation. In support of the said submission he has relied upon a judgment of the Supreme Court in the case of Baleshwar Dass and others V/s. State of U.P. and others (AIR 1981 Supreme Court 41) and unreported judgment of a Division Bench in CWJC No. 2686 of 1991 and batch cases disposed of on 8th May, 1996. He also submitted that the learned Single Judge has rightly quashed the order of reversion of the appellant and has given direction to consider his case like Sabir Ahmad Khan. 8. The learned counsel for the respondent- State on the other hand submitted that the appellant was promoted on the temporary post of ASI purely on temporaryl ad hoc basis de hors the rule for a limited period. The post itself was not created for subsequent period. The officiation on the post of ASI of the appellant does not confer any right and he cannot claim seniority over the same specially when his ad hoc promotion was in breach of the provisions of the Police Manual. He aiso submitted that the appellant was promoted on ad hoc basis on the post which ceased to exist after 28.2.1981 and as such his reversion does not attract the principles of natural justice. He also submitted that no direction can be issued by this Court to the State Government to commit the mistake as Article 14 of the Constitution of India contains positive concept and not a negative concept. If a wrong promotion has been given to Sabir Ahmad Khan on that ground the appellant is not entitled to take the same benefit. 9. In view of the rival contentions raised on behalf of the parties, three questions arise for consideration. Firstly, as to whether the appellant is entitled to count the period of ad hoc promotion for determination of his seniority as ASI. 9. In view of the rival contentions raised on behalf of the parties, three questions arise for consideration. Firstly, as to whether the appellant is entitled to count the period of ad hoc promotion for determination of his seniority as ASI. Secondly, whether a direction has to be issued to the respondent to consider the case of the appellant in the same manner as of Sabir Ahmad Khan. Thirdly, whether the order of reversion contained in Annexure-6 to the writ application is vitiated because of non-observance of principles of natural justice. 10. According to the provisions of the Police Manual, promotion from the post of literate Constable to the post of ASI is to be made after completing five years of service as a Constable and passing the PTC examination for ASI. It is also admitted position that the two posts of ASls were created in the Police Training College, Hazaribagh for a limited period on lst October, 1980. The appellant did not possess the requisite criteria for promotion to the post of ASI on that date. He was promoted purely on ad hoc basis on the said post for a limited period. There is procedure for promotion to the post of ASI. No such procedure was followed in the case of the appellant. Though the posts which were created for a limited period were not extended, the appellant managed to continue on the non-existent post. He passed the PTC examination for ASI in the year 1989, so he was not eligible for promotion to the said post prior to 1989, but the fact remains that he has been officiating on the said post from 1980 till January, 1997. 11. The question is as to whether on that basis his seniority is to be counted on the post of ASI from the date of his officiation. Baleshwar Dass case (supra) relied upon by the learned counsel for the appellant has no application in the instant case. 11. The question is as to whether on that basis his seniority is to be counted on the post of ASI from the date of his officiation. Baleshwar Dass case (supra) relied upon by the learned counsel for the appellant has no application in the instant case. In that case, it was held that "if the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantial (sic substantive ?) capacity. Therefore, the point from which service has to be counted is the commencement of the officiating service of the Assistant Engineers who might not have secured permanent appointments in the beginning and in that sense may still be temporary, but who, for all other pursposes, have been regularised and are fit to be absorbed into permanent posts as and when they are vacant. 12. The case in question is fully covered by the judgment of the Constitution Bench in the case of Direct Recruit Ciass-II Engineering Officers Association & ors. V/s. State of Maharashtra & ors. { (1990) 2 SCR 900 }, and the State of West Bengal & ors. V/s. Aghore Nath Dey & ors. { (1993) 2 SCR 919 } and State of Bihar V/s. Kameshwar Prasad Singh (2000(3) PLJR (SC) 81). In the case of Direct Recruit Class U Engineering Officers Association (supra), it was held by the Apex Court that once an incumbent is appointed according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. However, it was clarified that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. However, it was clarified that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. in the case of State of West Bengal (supra) it was held by the Apex Court that to count the seniority from the date of initial appointment, the incumbent of the post has to be initially appointed according to rules and ad hoc appointment de hors the rule, the officiation cannot be taken into account for considering the seniority. In the case of State of Bihar (supra), the question for consideration was with regard to promotion from the post of Sub-Inspector of Police to the post of Inspector of Police. Relying upon the aforesaid two judgments, the Apex Court held that no seniority can be claimed by Sub-Inspector of Police promoted on officiating basis from the date of officiation which was not made consistent with the rules. 13. In this case as stated above, the appellant was neither having requisite eligibility on the relevant date nor he was promoted by following the procedure for promotion to the post of ASI, and ad hoc promotion de hors the rules to the post of ASI was a stop gap arrangement for a limited period and as such he cannot claim seniority on the post of ASI from 1.10.1980 specially when no person junior to him has been promoted in the general category as ASI. The counter affidavit filed on behalf of the State clearly shows that constable appointed up to May, 1976 has been promoted to the post of ASI. 14. At this state, I would like to clarify that the learned Single Judge has already found that so far promotion to Radhe Shyam Singh, Shailendra Kumar Singh, Ram Sagar Rai and Bashishtha Narayan Singh to the post of Sub-Inspector of Police is concerned, they were appointed in 1971 prior to the appointment of the appellant as constable so the appellant cannot have similarity with their cases. 15. 15. So far the assertion made on behalf of the appellant that Sabir Ahmad Khan who was officiating along with him has been confirmed on the post of ASI is concerned, it is to be stated that in view of the fact that the appellants ad hoc promotion/temporary promotion was de hors the rules, he cannot claim officiation on that basis to the post of ASI from 1.10.1980. Any direction by this Court to consider his case like Sabir Ahmad Khan will amount to issuing a direction to the respondent to commit illegality as has been done in the case of Sabir AhmadKhan. No writ can be issued directing the State to act contrary to law. Equality clause as contained in Article 14 of the Constitution of India contains a positive concept and same cannot be enforced in a negative manner. In the case of State of Bihar (supra) the Apex Court held that where any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, then the same cannot be claimed in the writ court by others on the ground of denial thereof to them. It is relevant to quote paragraphs 28 and 29 of the judgment to negative the claim of the appellant on this ground : "The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals others cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh & ors. V/s. NDMC & ors. [ (1996) 2 SCC 459 ] held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. The Court observed : "Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him while it has been extended to others and in this process there has been a discrimination." Again in Secretary, Jaipur Development Authority, Jaipur V/s. Daulat Mal Jain & Ors [ (1997) 1 SCC 35 ] this Court considered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the concept of equality holding : "Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would not form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, nor could it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus considered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents." In State of Haryana & ors. V/s. Ram Kumar Mann [ (1997) 3 SCC 321 ] this Court observed : "The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. The respondent has no right, whatsoever and cannot be given the relief wrongly given to them i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the conclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after committing mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into service. Can a similarly circumstanced person claim equality under Section 14 for reinstatement ? The answer is obviously "No". In converse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right." 16. No doubt, the order of reversion has been passed without giving an opportunity of hearing to the appellant but the fact remains that he was promoted temporarily on the post of ASI for a limited period up to 28.2.1981. Thereafter he continued on the said post contrary to the rules. No post was in existence. Any admininstrative order affecting the rights of the citizens is to be passed consistent with the requirement of principles of natural justice and opportunity to show cause before passing an adverse order affecting the citizen is a check and balance concept so that a right of person is not taken away without giving an opportunity to state his version. However when the facts are admitted or no plausible explanation or defence is available, then the principle of natural justice is not to be insisted upon by treating as a ritual which has to be performed irrespective of the fact that insistence for observance of the principles of natural justice would be only an empty formality or wastage of time. 17. In the present appeal, the admitted facts are that the appellant was promoted as ASI purely on ad hoc basis for a limited period. He was not eligible for promotion to the said post, as such his ad hoc promotion was de hors the rules. 17. In the present appeal, the admitted facts are that the appellant was promoted as ASI purely on ad hoc basis for a limited period. He was not eligible for promotion to the said post, as such his ad hoc promotion was de hors the rules. He has not been able to show even before this Court that his order for officiation on the said post was made by following the procedure for promotion. In view of these admitted facts quashing the order of reversion only on the ground that the same was passed without giving an opportunity of hearing, in our view will amount to only an empty formality. Thus, the learned Single Judge was not justified in quashing the order of reversion on the ground of violation of principles of natural justice and directing the authorities to consider the case in the same manner as was done in the case of Sabir Ahmad Khan. It will be open for the State Government to reconsider the matter regarding promotions given to Sabir Ahmad Khan on the post of ASI and Sub-Inspector of Police in accordance with law. As the matter is not before us, we are not expressing any opinion with regard to his case. 18. ln the result, LPA No.244 of 2000 is allowed and LPA No. 1602 of 1999is dismissed. There shall be no order as to costs.