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2000 DIGILAW 130 (PAT)

Mohammad Hasnain v. State Of Bihar

2000-01-21

SHIVA KIRTI SINGH

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Judgment 1. Heard the parties. 2. Petitioners are Inspectors in the police service of Government of Bihar. It appears that they had been denied confirmation from due date and for that they had to move this Court and by judgment and order dated 6.5.1997 of this Court, reported in 1997(1) PLJR 996 , the matter was remitted back to the authorities for considering their confirmation from due date. Subsequently, by Annexure-7 dated 27.9.1997 the petitioners grievance was rectified and their placement in the seniority list of Inspectors on the basis of their due date of confirmation was also corrected. As a consequence of such correction of their placement in the seniority list prepared on the basis of date of confirmation, the petitioner no.1 was placed at serial 105 ka and was, therefore, senior to one Sudhir Kumar Singh and others who were promoted to the post of Dy.S.P. by Annexure-9 in December 1994. Similarly, petitioner no.2 was placed at serial 101 ka and thus, became senior to one Imran Hassan, who had been promoted to the post of Dy.S.P. on 6.6.1994 by Annexure-8. 3. Since persons admittedly junior to the petitioners had been promoted to the post of Dy.S.P. hence, upon restoration of their seniority by Annexure-7, the petitioners represented before the authorities and it appears that their cases for promotion to the post of Dy.S.P. was considered by the competent committee and recommendation was made to the Government on 22.4.1998. When no action was taken by the Govenment with regard to claim of petitioners for promotion they again moved this Court through CWJC No.7763 of 1998 which was disposed of on 16.10.1998 by an order contained in Annexure-11 and the respondents were directed to take a decision in the matter at an early date preferably within four months. 4. Thereafter it appears that in another writ proceeding a judgment was passed on 7.3.1995 wherein a single Judge of this Court took the view that for the purpose of promotion to the post of Dy.S.P. a joint selection list should be prepared not on the basis of date of confirmation but on the basis of continuous officiation. The State of Bihar took a policy decision in view of such decision of this Court and issued a circular dated 17.10.1998 (Annexure-13) which contains provision for preparation of joint gradation list on the basis of continuous officiation. The State of Bihar took a policy decision in view of such decision of this Court and issued a circular dated 17.10.1998 (Annexure-13) which contains provision for preparation of joint gradation list on the basis of continuous officiation. This change of policy for preparation of gradation list is the reason given for not granting promotions to the petitioners. 5. Learned counsel for the petitioners submitted that claim of the petitioners for promotion to the post of Dy.S.P. with effect from dates when their juniors were so promoted i.e. with effect from December 1994 and June 1994 respectively cannot be treated as a case of regular promotion in due course but such a claim has to be considered as a case for undoing wrong done to the petitioners when the juniors were promoted as per the policy then prevailing and hence, the competent committee has rightly recommended the case of the petitioners and this stand has been clarified through a letter contained in Annexure-14 dated 19.12.1998 issued from the office of Director General of Police to the Deputy Secretary of the Government in the department of Home, Bihar, Patna. Learned counsel for the petitioners placed before this Court an order dated 16.12.1999 passed in LPA No.120 of 1996. A perusal of the said order passed by a Division Bench shows that by an interim order the effect of the judgment of the single Judge dated 7.3.1995 passed in CWJC No.12358 of 1993, which required preparation of joint gradation list on the basis of continuous officiation has been stayed. The aforesaid LPA has been filed by the State of Bihar and its officials and their stand in the said LPA is that promotions to the post of Dy.S.P. should be on the basis of a gradation list prepared on the basis of date of confirmation. 6. Learned counsel for the State in this case submits that in view of policy decision contained in circular dated 17.10.1998 (Annexure-13), the petitioners cannot be considered for promotion at this stage because their seniority will go down on the basis of principle of continuous officiation. 7. 6. Learned counsel for the State in this case submits that in view of policy decision contained in circular dated 17.10.1998 (Annexure-13), the petitioners cannot be considered for promotion at this stage because their seniority will go down on the basis of principle of continuous officiation. 7. In the facts and circumstances of the case, in my view, the new policy contained in Annexure-13 dated 17.10.1998 cannot be made applicable to the cases of the petitioners since their case involves correction of mistakes committed by the authorities in the past by which they denied due place to the petitioners in the joint seniority list prepared at the relevant time in accordance with law then prevailing. There is already a recommendation in favour of the petitioners dated 22.4.1998 and the circular contained in Annexure-13 cannot be given any retrospective effect so as to adversely effect the cases of the petitioners. 8. Accordingly, I dispose of this writ application with a direction to the Secretary, Home (Police), respondent no.2 to consider the cases of the petitioners for promotion to the post of Dy.S.P. in accordance with observations made above and in accordance with law as expeditiously as possible preferably within a period of four months from the date of communication production of a copy of this order.