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2005 DIGILAW 776 (PAT)

Han Nath Choubey v. State Of Bihar

2005-08-30

RADHA MOHAN PRASAD

body2005
Judgment 1. In this writ petition, petitioner has sought for direction to the Respondents to consider his case for promotion from post of Assistant Sub-Inspector of Police to the rank of Sub-Inspector of Police with effect from the date his juniors in service has been Promoted and to pay the differential salary from that date. 2. It appears that in the counter affidavit filed on behalf of Director Generalcum-lnspector General of Police and Inspector General of Police (Administration), Bihar, Patna, it is stated that earlier the case of the petitioner was considered by the Central Selection Committee in the meeting held from 10.1.2002 to 31.1.2002, but, he was not found suitable as he had received four major punishments. Besides this, it is also stated that in the year 2004, however, nominations of A.S.I, of Police were called for from all Range D.I.Gs., but, the same was not received with respect to the petitioner, as such, his case could not be placed before the Board in 2004. It is also stated that in the year 2005 nominations of the petitioner alongwith other A.S.Is. have been received and the promotion matter is under consideration of the Central Selection Board, which is in progress. 3. It appears that the petitioner represented before the authority on 4.8.2003 vide Annexure 5/1, yet his case was ignored from time to time. Accordingly, this Court while expressing displeasure that the authorities are obliged to dispose of his claim raised in the representation, contained in Annexure-5/1, with all promptness and did not even bother to send the nomination for consideration in the year 2004 directed the Respondents to ensure disposal of the representation of the petitioner by a reasoned order and to produce the same on 22.8.2005. On 22.8.2005 learned J.C. to G.R VII produced a copy of the order, contained in memo no. 3998/P-2 dated 20th August, 2005 passed by the I.G. (S.C.R.B.), Police Headquarters, Bihar, Patna in compliance of the aforesaid order dated 18.8.2005 and a copy of the same was handed over to the learned counsel for the petitioner. On 22.8.2005 learned J.C. to G.R VII produced a copy of the order, contained in memo no. 3998/P-2 dated 20th August, 2005 passed by the I.G. (S.C.R.B.), Police Headquarters, Bihar, Patna in compliance of the aforesaid order dated 18.8.2005 and a copy of the same was handed over to the learned counsel for the petitioner. On 24.8.2005 a supplementary affidavit was filed on behalf of the petitioner and learned counsel for the petitioner submitted that the order disposing of the claim is bad on the face of it as Inspector General of Police (Administration) (Respondent No. 3) has only found that the petitioner is not entitled to get promotion from retrospective effect i.e. from 1995. He has not considered the point that even as per his own admission the petitioner remained adversely affected from 1990 till 10.2.2000 on account of punishments awarded to him and, thus, the petitioner was obviously entitled for consideration of his case by the Central Selection Board in the meeting held from 10.1.2002 to 31.1.2002, pursuant to which others including some of his juniors were granted promotion. However, the Central Selection Board vide Annexure-1 declined to consider the case of the petitioner and directed for review of the order of punishment awarded in proceeding no. 45/96. 4. On query as to how Central Selection Board has directed for review of the punishment, learned Government Pleader No. VII on 25.8.2005 referred to Rule 853A of Bihar Police Manual which empowers the concerned authority for review but within a reasonable time. He, however, fairly submitted that the Central Selection Board had no authority to give such direction. Further, he submitted that the State authorities have decided not to review the said order of punishment, which was passed long back. He, however, contended, that in view of the punishments awarded to the petitioner during his service on several occasion, he was not entitled to be considered; for promotion even after the adverse effect of the order of punishment lost its force pursuant to the Government circular/decision bearing no. 3/R 201/86 Ka 2475 dated 24th February, 1986. He, however, contended, that in view of the punishments awarded to the petitioner during his service on several occasion, he was not entitled to be considered; for promotion even after the adverse effect of the order of punishment lost its force pursuant to the Government circular/decision bearing no. 3/R 201/86 Ka 2475 dated 24th February, 1986. In support of this learned Government Pleader has relied upon the observation of the Supreme Court in the case of Union of India vs. K.V. Jankiraman, which has been quoted in paragraph 6 of the decision of the Apex Court in the case of State of T.N. vs.Thiru K.S. Murugesan, reported in (1995)3 Supreme Court Cases 273. 5. I am unable to appreciate the said submission of learned Government Pleader No. VII. Admittedly, the adverse effect of the order of punishment awarded earlier lost its force after 2001 i.e. before consideration of the case for promotion by the! Central Selection Board in its meeting held from 10.1.2002 to 31.1.2002. It is true that the Apex Court in the case of Union of India vs. K.V. Jankiraman* observed that the least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct" The Apex Court further observed that "If, further, the promoting authority can take into consideration the penalty or penallies awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the oenalty into consideration when it is imposed at a later date the authority considers the promotion." 6. But, in the present case, learned Government Pleader No. VII has admitted ir.at as per the Government circular decision dated 24.2.1986 the promoting authority can take into consideration only the penalty or penalties awarded to an employee in the last five years. But, in the present case, learned Government Pleader No. VII has admitted ir.at as per the Government circular decision dated 24.2.1986 the promoting authority can take into consideration only the penalty or penalties awarded to an employee in the last five years. It is not disputed that on 31.12.1996 last penalty as imposed upon the petitioner and thereer no adverse entry was ever made in nis service record. Thus, obviously till the Central Selection Board met from 10.1.2002 31.1.2002 there was nothing adverse in service record of the petitioner which cuold debar him from consideration for comotion. According to the Government circular/decision, the promoting authority cannot take into consideration the penalty or penalties awarded five years prior to the date of consideration by Central Selection Board which in the present case met from 10.1.2OO2 to 31.1.2002. 7. This Court, thus, finds that the reliance placed by the learned G.R VII upon the decision of the Apex Court in K.V. Jankiraman* is completely misplaced and has got no application to the present case and the petitioner was entitled for consideration of his case by the Central Selection Board in the year 2002 itself as per the Government circular/decision referred to above. 8. Accordingly, this writ petition is allowed. The Respondents are directed to consider the case of the petitioner for promotion from due date i.e. when his juniors were given promotion pursuant to the recommendation of the Central Selection Board in the year 2002 with all consequential benefits.