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2004 DIGILAW 431 (GAU)

Lohit Bhuyan v. State of Arunachal Pradesh

2004-06-29

I.A.ANSARI

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JUDGMENT I.A. Ansari, J. 1. By the present application made under Article 226 of the Constitution of India, the Petitioners, while challenging promotion of the private Respondents, namely, Respondents No. 3, 4 and 5 to the posts of Deputy Superintendent of Police (hereinafter referred to as "the DSP"), have sought for issuance of appropriate writ/writs setting aside the impugned order, dated 08.10.2001, whereby the private Respondents have been promoted, as indicated hereinbefore, and for further directions to the State Respondents to promote the Petitioners to the posts of DSP in terms of their actual inter-se seniority as per the seniority list of the Inspector of Police, as on 01.07.2001, by applying 40 point roster system. 2. I have heard Mr. R. Deka, learned Counsel for the Petitioners, and Mr. B.L. Singh, learned Sr. Govt. Advocate, appearing on behalf of the Respondents No. 1 and 2. I have also heard Mr. T. Pertin, learned Counsel appearing on behalf of the Respondents No. 3, 4 and 5. 3. The material facts, which emerge as undisputed in the present case are as follows: The three writ Petitioners, namely, Shri Lohit Bhuyan, Shri Manik Gogoi and Shri Heramba Kumar Deori, were appointed as Sub-Inspectors of Police in the year 1978. After their entry into the service, the Sub-Inspector of Police (Group 'C posts) Recruitment Rules, 1988 (hereinafter referred to as "the Recruitment Rules of 1988") was notified on 15.12.88. According to this Rule, there were 46 posts of Inspector of Police and out of these posts, 75% were to be filled up by promotion from Sub-Inspectors of Police and the remaining 25% by deputation, failing which by way of promotion, the qualifying period of service for such promotion being five years of regular service in the grade of Sub-Inspector. While the Petitioner No. 1 and 2 aforementioned were promoted as inspectors of Police on 08.05.87, the Petitioner No. 3 was promoted as Inspector of Police on 01.07.87, the promotion of the Petitioners having been made following 40 point roster system as was in force at the relevant time. 4. By Notification, dated, 23.07.98, the Arunachal Pradesh Police Service Rules, 1989, (hereinafter referred to as "the Service Rules of 1989") was partially amended, the amended Rules being called the Arunachal Pradesh Police Service Amendment Rules, 1998. 4. By Notification, dated, 23.07.98, the Arunachal Pradesh Police Service Rules, 1989, (hereinafter referred to as "the Service Rules of 1989") was partially amended, the amended Rules being called the Arunachal Pradesh Police Service Amendment Rules, 1998. The combined effect of the Arunachal Pradesh Police Service Rules, 1989, read with the Arunachal Pradesh Police Service Amendment Rules, 1998, is that these rules govern, as per Rule 3 thereof, the service conditions of two classes of posts, namely, (a) SP/Commandant/Deputy Commandant (Armed Bn/I.R. Bn) Non IPS and selection grades and (b) Dy. Superintendent of Police and Assistant Commandant (Armed Bn/I.R. Bn.) As per Rule 5, contained in Part III (Method of Recruitment) of the Service Rules of 1989 read with Rule 12, contained in Part V (Recruitment by promotion), 50% of the substantive vacancies, which occur from time to time in the authorized permanent strength of service, such as in the posts of DSP, shall be filled up by direct recruitment and the rests 50% by way of promotion on the basis of merit-cum-seniority with due regard to seniority in the manner as indicated in Part V thereof Rule 12, contained in Part V, which relates to recruitment by promotion, while laying down the conditions of eligibility and procedure for making selection for promotion, it clearly specifies that the Selection Board shall consider from time to time the cases of officers, who have served, in the cadre of Inspector of Police, for not less than three years, and prepare a list of such officers recommending them for promotion to the posts of DSP taking, however, into account the actual vacancies at the time of selection and those, which are likely to occur during the year, the selection being based on merit-cum-seniority with due regard to the seniority. 5. Thus, Rule 12 aforementioned clearly shows that the Selection Board shall consider the cases of promotion every year from the post of Inspectors to the posts of DSP, the minimum qualifying period of service for such consideration being three years, the selection being based on merit-cum-seniority with due regard to seniority and the list, so prepared, shall not only recommend those, who are found qualified for promotion in respect of the vacancies, which are in existence, but also in respect of the vacancies, which are likely to occur during the year concerned. In the case at hand, it is not in dispute that contrary to the mandates of Rule 12, no selection process for making promotion to the posts of DSP in terms of Rule 12 was resorted to inasmuch as no Selection Board was convened every year for consideration of promotion and no select list for making promotion in terms of the conditions of the Rules aforementioned were prepared annually. 6. In the above backdrop, the Government of Arunachal Pradesh published, vide order, dated 17.05.2001, a gradation list of Inspectors of Police and in this list, in respect of the persons, whose names appeared from serial Nos. 1 to 47, inter-se seniority positions were made final and in respect of the rests of the persons, who names appeared in this list from serial Nos. 48 to 63, the inter-se seniority depicted therein was kept provisional. In this list, while the Petitioner No. 2 and 3 aforementioned were placed at serial No. 10 and 14 respectively, the name of the Petitioner No. 1 was placed at serial No. 12, whereas the names of the private Respondents No. 3, 4 and 5, namely, Shri Tasho Toko, Shri Babu Taloh and Shri Yido Boje, were placed at serial No. 18, 20 and 21 respectively. As per this gradation list, which was final in respect of the Petitioners as well as the private Respondents, the three writ Petitioners were, admittedly, treated as senior to the three private Respondents aforementioned. As a result of the objections raised to the seniority list, so published, the Government of Arunachal Pradesh, vide order, dated 17.05.2001, revised the seniority list deleting from the seniority list dated 17.05.2001, the name of Inspector K.K. Lungchang, who had expired on 29.06.2001. Following on the death of Inspector K.K. Lungchang aforementioned, whose name had appeared at serial No. (1) of the seniority list, dated 17.5.2001, the seniority positions of the Petitioners Nos. 1, 2 and 3 stood upgraded and they were placed at serial Nos. 11, 9 and 13 respectively. Simultaneously therewith, the seniority positions of Respondent Nos. 3, 4 and 5 also stood upgraded to serial Nos. 17, 19 and 20 respectively By order, dated 09.02.2000, the Government promoted seven numbers of Inspectors of Police to the posts of DSP following 40 point roster system. 11, 9 and 13 respectively. Simultaneously therewith, the seniority positions of Respondent Nos. 3, 4 and 5 also stood upgraded to serial Nos. 17, 19 and 20 respectively By order, dated 09.02.2000, the Government promoted seven numbers of Inspectors of Police to the posts of DSP following 40 point roster system. Thereafter, as many as 13 Inspectors of Police, whose names appeared in the final seniority list of Inspectors of Police were, vide impugned order, dated 08.10.2001, promoted to the posts of DSP. For making such promotions in respect of vacancies, which arose before 01.02.2001, 100-point roster system was followed, instead of 40-point roster, though the 100-point roster system was introduced with effect from 01.02.2001. 7. Thus, despite the fact that the present three writ Petitioners were senior to the three private Respondents as indicated hereinabove, they were not considered for promotion, as the roster system followed was 100-point and not the 40-point. It is the case of the three writ Petitioners aforementioned that since 100 point roster system came into effect on 01.02.2001, the question of promotion of the Inspectors of Police, whose names appeared in the final senior list, dated 01.07.2001, ought to have been considered on the basis of 40 point roster system until 31.01.2001 i.e., the date till 40 point roster system remained in force. 8. In view of what has been agitated in the present writ petition, the question, which falls for determination is this: Was non consideration of the case of the writ Petitioners for promotion to the posts of DSP in violation of the relevant provisions of law and the principles of service jurisprudence and if so, what relief (s) the parties are entitled to? 9. While answering the above question, it is of paramount importance to note that a person has to be considered for promotion under the Rules, which were in force at the time, when he became eligible for such promotion unless the subsequently made Rules, by giving retrospective effect, take away the right of consideration for such promotion given to the person under the old Rules. In the case of Ex. Capt. K.C. Arora and Anr. v. State of Haryana and Ors. reported in (1984) 3 SCC 281 , the Apex Court has observed as follows: 15. In the case of Ex. Capt. K.C. Arora and Anr. v. State of Haryana and Ors. reported in (1984) 3 SCC 281 , the Apex Court has observed as follows: 15. It is, however, a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect. But the Rule in general is applicable where the object of the statute is to affect the vested rights or to impose new burden or to impair existing obligations. Unless there are words in the statute sufficient to Show the intention of the Legislature to effect existing rights, it is deemed to be prospective only. Provisions, which touch a right in existence at the passing of the statute, are not to be applied retrospectively in the absence of express enactment or necessary intendment. 10. Reference may also be made to the case of P. Mahendran and Ors. v. State of Karnataka and Ors. reported in AIR 1990 SC 405 , wherein the Apex Court has observed as follows: It is well settled rule of construction that every statute or statutory Rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language, which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending rule of 1987 in the instant case does not contain any express provision giving the amendment retrospective effect not there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending rule seeking the change in the eligibility criteria for selection and appointment to the post of Motor Vehicles Inspectors was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment. Moreover construction of amending rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter. (See M. Laiphalang (Dr.)(Ms.) and Ors. v. State of Meghalaya and Ors. reported in 2004 (1) GLT 308 (February, 2004 Edition) 11. In the case at hand, the Petitioner Nos. 1 and 2 were, as already indicated hereinabove, promoted to the posts of Inspector of Police on 08.05.87 and the Petitioner No. 3 was promoted to the said post on 01.07.87. As per the Rule 12 of Inspector of Police (Group 'C post) Recruitment Rules 1988, all these three Petitioners, having put in three years of regular service in the grade of Inspector of Police acquired eligibility for promotion to the posts of DSP way back in the year 1990. It is also not in dispute that all these three writ Petitioners were senior to the three private Respondents in the grade of Inspector of Police. There is no dispute before me that seven posts of Assistant Commandant fell vacant on 19.06.97 and one post of DSP on 05.11.2000 meaning thereby that by 05.11.2000 as many as eight posts for promotion to the grade of Deputy Superintendent of Police and Assistant Commandant have fallen vacant. It could also not be disputed by the parties appearing before me that one post of DSP fell vacant on 01.02.2001 and five posts of DSP on 23.01.2001, since 100 point roster system came into force, admittedly, with effect from 01.02.2001, it is clear that the eight posts of DSP/Assistant Commandant were to be filled up in accordance with 40 point roster system and the remaining six posts, which fell vacant between 01.02.200 Land 21.03.2001 were to be filled up by following 100 point roster system. Had the 40 point roster system been followed in respect of the said eight vacancies, which occurred between 19.06.97 and 05.11.2000, the present three writ Petitioners would have been eligible for consideration for promotion to these posts but this has not been done. Had the 40 point roster system been followed in respect of the said eight vacancies, which occurred between 19.06.97 and 05.11.2000, the present three writ Petitioners would have been eligible for consideration for promotion to these posts but this has not been done. What the State Respondents have done is to consider the accumulated vacancies in the posts of Assistant Commandant/DSP as the same occurred after 01.02.2001 and thereby those, such as the writ Petitioners who had already become eligible for consideration for such promotion before coming into force of the 100 point roster system were denied their lawful and fundamental right of being considered for promotion. Such a course has not been approved and, in fact, deprecated by the Apex Court in State of Andhra Pradesh and Ors. v. J. Sreenivasa Rao and Ors. reported in (1983) 3 SCC 285. In the case of J. Sreenivasa Rao (supra), there was a delay in preparing Panel for promotion resulting into deprivation of chances of promotion of those who were, otherwise, eligible for promotion under the unamended Rules. The panel for promotion was prepared not within the stipulated time in the relevant rules instead drawn up-after amendment of the Rules for promotion. As the system, so followed, adversely affect those, who were eligible for consideration for promotion before the amended Rules came into force were held to have been unjustly denied promotion and the directions were issued to fill up the vacancies in the promotional post occurring prior to the amendment of the Rules in accordance with the unamended Rules. 12. Coupled with the above, it also utmost importance to note that while changing, vide Notification, dated 01.02.2001, the promotional policy from 40 point roster to 100 point roster, the Notification made it clear that the new promotional policy will not apply to the matters of determination of seniority and clearance of back-log. (See Sankar Choudhury v. State of Arunachal Pradesh, reported in 2003 (2) GLT 2 (May, 2003 edition). 13. In view of the fact that the three writ Petitioners became eligible for promotion, as I have already indicated hereinabove, as far back as 1998, their cases for promotion ought to have been considered in respect of the said seven vacancies, which occurred to the posts of Assistant Commandant/DSP between 19.09.96 and 05.11.2000. 13. In view of the fact that the three writ Petitioners became eligible for promotion, as I have already indicated hereinabove, as far back as 1998, their cases for promotion ought to have been considered in respect of the said seven vacancies, which occurred to the posts of Assistant Commandant/DSP between 19.09.96 and 05.11.2000. Thus, the right, which stood vested in the writ Petitioners for being considered for promotion, was arbitrarily and illegally denied by not considering them at all, while promoting the three private Respondents, who were, admittedly, junior to the writ Petitioners in the grade of Inspector of police. 14. The law with regard to determination of the question as to whether a person falls within the zone of consideration or not is well settled. Reference made, in this regard by Mr. Deka to the case of Union of India v. N.R. Banerjee, reported in (1997) 9 SCC 287 , is not misplaced. In this case, the Apex Court has laid down the procedure to be followed for the purpose of preparation of panel for promotion. The observations made by the Apex Court laying down the law on the subject are as follows: DPCs should be convened every year, if necessary, on a fixed date, i.e. 1st of April or May. In the middle of the para, by way of amendment brought on 13.05.1995, it postulates that very often action for holding DPC meeting is initiated after the vacancy has arisen. This results in undue delay in filling up of vacancies and causes dissatisfaction among those who are eligible for promotion. It may be indicated that regular meeting of DPC should be held every year for each category of posts so that approved select panel is available in advance for making promotions against vacancies arising every year. Under para 3.2 the requirement of convening annual meetings of the DPC should be dispensed with only after a certificate has been issued by the appointing authority that there are no vacancies to be filled by promotion or no officers are due for confirmation during the year in question. It would thus, be seen that DPCs are required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. It would thus, be seen that DPCs are required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. The required materials should be collected in advance and merit list finalized by the appointing authorities and placed before the DPCs for consideration. The requirement can be dispensed with only after a certificate is issued by the appointing authority that there are no vacancies to be filled up by promotion, or that no officers are due for confirmation during the year in question. Considered from that perspective, the question arises whether the view taken by the Tribunal is justified in law. It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one's name in the list does not confer any right on him her to appointment. It is not incumbent that all posts may be filled up. But the authority must act reasonably, fairly and in public interest and omission thereof should not be arbitrary. In Shankarsan Dash v. Union of India (1991) 3 SCC 47 the Constitution Bench had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The State is under no legal duty to fill up all or any of the vacancies even though the State acts in an arbitrary manner. In Babita Prasad v. State of Bihar reported in 1993 Supp (3) SCC 268 it was held that mere inclusion of one's name in the panel does not confer on him/her any indefeasible right to appointment. It was further held that the purpose of making a panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be to the extent of the notified or anticipated vacancies. Unduly wrong panel should not be operated. It was further held that the purpose of making a panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be to the extent of the notified or anticipated vacancies. Unduly wrong panel should not be operated. In Union Territory of Chandigarh v. Dilbagh Singh reported in (1993) 1 SCC 154 it was held that the mere fact that a candidate's name finds a place in the select list as a selected candidate for appointment to a post does not confer on him/her an indefeasible right to be appointed in such post in the absence of any specific rule entitling him to such appointment. In State of Bihar v. Secretari at Asstt. Successful Examinees Union 1986 reported in (1994) 1 SCC 126 it was held that a person who is selected and empanelled does not on account of the empanelment alone acquire any indefeasible right to appointment. Empanelment is, at the best, a condition of eligibility for the purposes of appointment and that by itself does not amount to selection or creation of a vested right to appointment unless relevant rules state to the contrary. However, in the light of the above principles and in the light of the clear rules extracted hereinbefore, it is seen that the exercise of preparation of the panel is undertaken well in advance to fill up the clear vacancies or anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, year wise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. In Nagar Mahapalika v. Vinod Kumar Srivastava reported in (1987) 1 SCC 602 this Court had pointed out with respect to the prescription of the limitation of one year of the waiting list thus: The reason underlying the limitation of the period of a list for one year is obviously to ensue that other qualified persons are not deprived of their chances of applying for the posts in the succeeding years and being selected for appointment. (See 2003 (2) GLT 376 (Moli Tatu v. State of Arunachal Pradesh) 15. (See 2003 (2) GLT 376 (Moli Tatu v. State of Arunachal Pradesh) 15. What clearly transpires from the above observations is that unless the authority concerned certifies that no vacancies arose in a particular year and no suitable candidate is available, it is mandatory to prepare and finalise a yearly panel of promotion and consider the cases of persons, who fall within the zone of consideration for promotion during the year concerned. 16. In the light of the law laid down by the Apex Court in NR Baneijee (supra) and pointed out in Moli Tatu (Supra), there can be no escape from the conclusion that the consideration for promotion, in the present case, by the DPC was contrary to the law laid down by the Apex Court inasmuch as the DPC did not consider the case of promotion in respect of the vacancies arising each year separately. 17. In the case of Govt. of A.P. v. A. Suryanarayanarao, reported in 1991 Supp 2 SCC 369 , the Apex Court has made it clear that no employee can be made to suffer on account of intervening events, which take place between the date he becomes eligible for promotion and the date, when the promotions are considered. 18. I have already indicated hereinabove that the scheme projected by Rule 12, contained in Part V of the Sub Inspector of Police (Group "C" post) Recruitment Rules, 1988, shows that the Selection Board shall meet every year to consider promotion to fill up not only the posts, which have already fallen vacant when the Board considers promotion, but also the posts, which are likely to fall vacant during the year. Had Rule 12 been followed in letter and spirit and had the State Respondents not acted illegally and arbitrarily in promoting the three private Respondents aforementioned, the three writ Petitioners could have been considered for promotion in terms of the 40-point roster system before the 100-point roster system came into force and thus, if I may reiterate, the fundamental right, which stood vested in the writ Petitioners of being considered for promotion, was not only denied to them, but, was arbitrarily taken away from them. Such a course of action shall, if allowed to stand good on record, cause serious miscarriage of justice. Such a course of action shall, if allowed to stand good on record, cause serious miscarriage of justice. However, as the three private Respondents aforementioned have been working in the promotional posts for the last more than three years, endeavour shall be made by the State Respondents not to revert or demote them to the rank of Inspector of Police and to the extent possible, the State Respondents shall make endeavour to accommodate the three private Respondents too in the grade of Assistant Commandant/DSP without affecting the inter-se seniority positions between the writ Petitioners, on the one hand, and the private Respondents, on the other. 19. Considering, therefore, the matter in its entirety and in the interest of justice, this writ petition is allowed. The State Respondents are directed to make necessary arrangement, within a period of one month from the date of receipt of a certified copy of this judgment and order by the Respondent No. 1 namely, Secretary-cum-Commissioner, (Home), Govt. of Arunachal Pradesh, Itanagar, for considering the cases of the present three writ Petitioners for promotion to the posts of DSP/Assistant Commandant following 40-point roster system and if they qualify for promotion, they shall be accorded promotion with effect from the date, when their juniors were promoted. If placing of the writ Petitioners in the grade of Assistant Commandant/DSP in terms of this order necessitates reversion and/or demotion of the private Respondents to the grade of Inspector of Police, the State Respondents shall revert or demote the private Respondents by following the policy of 'last come first go'. 20. Considering, however, the fact, as already indicated hereinabove, that the private Respondents have been serving in the promotional posts for the last more than three years, the State Respondents are given the ( liberty to accommodate the private Respondents against the posts of Assistant Commandant/DSP meant to be filled up by direct recruitment quota and as and when the vacancy in such promotional post to be filled up by promotional quota arises, the private Respondents, who could not be accommodated against the promotional quota, shall be accordingly adjusted by avoiding undue and inordinate delay in filling up of the vacancy concerned by direct recruitment. It is made clear that the seniority/gradation list to be published in respect of the Assistant Commandants/DSPs shall depict correctly the inter-se seniority between the Petitioners vis-a-vis the private Respondents ensuring therein that the writ Petitioners are placed in their respective positions of seniority above the private Respondents in the grade of Assistant Commandant/DSP. 21. If against any of the writ Petitioners, there is any disciplinary or criminal proceeding pending, his case also should be considered for promotion and the result of such consideration shall be kept in sealed cover and if such a person is exonerated or acquitted, he must be given his promotion with retrospective effect from the date on which his juniors were promoted. (See C.O. Arumugam and Ors. v. State of Tamil Nadu and Ors. reported in 1991 Supp 2 SCC 199). 22. With the above observations and directions, this writ petition shall stand disposed of. 23. No order as to costs.