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2006 DIGILAW 390 (HP)

JAGJEET RAJ v. STATE OF HP

2006-12-13

B.S.CHAUHAN

body2006
JUDGEMENT B.S. Chauhan, Member (A):- This original application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the benefit of promotion as Deputy Superintendent of Police w.e.f. 31.8.1989 with all consequential benefits. 2. The brief and relevant facts of the case as set out in the original application are that the applicant was initially recruited in the police department as constable (Clerical) on 22.10.1957 and with the passage of time the applicant was promoted as different levels. On 31.8.1987 he was promoted as Inspector and was confirmed as such w.e.f. 20.12.1990. The applicant claims that he was due for promotion from the post of Inspector (Head Clerk) as Deputy Superintendent of Police in accordance with rule-6 of the HP Police Service Rules. There is a requirement of 2 years continuous service as Inspector for being eligible to be considered for promotion as Deputy Superintendent of Police, which is fulfilled by the applicant. Inspite of this the applicant has not been promoted on the post of Deputy Superintendent of Police. The applicant has referred to H.P.S. Rules, 1973 under which there is no distinction between different categories of Inspector who are eligible for promotion to the rank of Deputy Superintendent of Police and the only requirement under the rules is that they should complete 2 years of continuous service as Inspector. The applicant has also referred to the decision of this Tribunal delivered in OA-398/88 titled as Hira Singh vs. State of H.P. & others, in which similar issue has been decided by allowing the benefit of promotion as Deputy Superintendent of Police. Feeling aggrieved to this the applicant has preferred this original application seeking a direction to promote his as Deputy Superintendent of Police on completion of 2 years of service i.e. from 31.8.1989. 3. Reply was filed by the respondents/state in which the claim of the applicant was opposed. Feeling aggrieved to this the applicant has preferred this original application seeking a direction to promote his as Deputy Superintendent of Police on completion of 2 years of service i.e. from 31.8.1989. 3. Reply was filed by the respondents/state in which the claim of the applicant was opposed. The main ground for disputing the claim of the applicant is that the applicant is not eligible for promotion in accordance with the latest H.P.S. Rules, 1973 as amended as per notification dated 11.11.1994 which now provides that promotion as Deputy Superintendent of Police is to be made as under: "60% from substantive Inspectors who have passed the Upper School Course from Police Training College and have two years continuous service in the rank of Inspector (both officiating and substantive) are eligible for promotion as Dy. S.P. provided their minimum educational qualification is B.A." The claim of the applicant has been opposed as the applicant was serving in the executive clerical cadre and had not passed the Upper School Course. As such he was not eligible for promotion to the post of Dy. S.P. It has been further stated in the reply that the applicant was never superseded by any junior in his cadre. As far as the confirmation of the applicant is concerned the same has been made against permanent post and he could not be confirmed as Inspector as there was no post in his cadre. As far as the issue of judgment passed in OA-398/88 is concerned the stand taken in the reply is that this judgment is not in rem but is in personem. Therefore, this judgment is not ipso fact applicable to the case of applicant. It is further submitted in the reply that at the relevant time there were no R&P Rules for the said cadre and as per the precedent the promotions in the said cadre were being made on the principle of seniority subject to rejection of being unfit. No departmental examinations have been prescribed for the personnel posted in Executive Clerical Cadre to which applicant belongs. Thus it is wrong for the applicant to aver that he passed requisite departmental examination. 4. Rejoinder has been filed in which the stand taken in the reply was opposed and the claim made in the original application is re-affirmed. No departmental examinations have been prescribed for the personnel posted in Executive Clerical Cadre to which applicant belongs. Thus it is wrong for the applicant to aver that he passed requisite departmental examination. 4. Rejoinder has been filed in which the stand taken in the reply was opposed and the claim made in the original application is re-affirmed. The applicant has also annexed the list of some persons who were junior to him, but stood promoted as Dy. S.P. 5. I have heard the learned counsel for the applicant and learned Additional Advocate General for the respondents/State and have gone through the pleadings carefully. 6. The learned counsel for the applicant argued that the case of the applicant is fully covered by the judgment of this Tribunal passed by the Division Bench in OA-398/88. He pleaded that the case of the applicant is fully covered by this judgment as similar issue has been adjudicated in this original application and the benefit of promotion has been allowed to the applicant therein. In support of his contention he argued that the judgment is in rem and as such applicable to the facts, and circumstances of the present case. The learned counsel for the applicant contended further that since similar issue has been decided and the original application has been allowed with the direction to consider the applicant for promotion to the post of Dy. S.P. The present case is fully covered under this judgment. In reply the learned Additional Advocate General argued that the judgment of Division Bench of this Tribunal relied upon by the learned counsel for the applicant is not applicable to the present case as the same judgment is in personem not in rem. He argued further that the case of the applicant has to be considered in the light of the latest R & P Rules which stood amended on 11.11.1994 in which the eligibility criteria for promotion as Dy. S.P. has been changed. The applicant is not eligible to be promoted as Dy. S.P. in accordance with the latest criteria, hence the case is not covered un the R&P Rules. This being so he is not entitled to any benefit. He went on to argue that in view of the new R&P Rules the applicant is not eligible for promotion as he has not challenged the latest R&P Rules. S.P. in accordance with the latest criteria, hence the case is not covered un the R&P Rules. This being so he is not entitled to any benefit. He went on to argue that in view of the new R&P Rules the applicant is not eligible for promotion as he has not challenged the latest R&P Rules. In reply the learned counsel for the applicant argued that his case is covered under the R & P Rules which were in force at the relevant time when he became eligible for promotion under the old R&P Rules. The applicant has not claimed any benefit under the new R&P Rules. He reiterated further that his case is fully covered by the Division Bench judgment of this Tribunal passed in OA-398/88. He also relied upon the decision of-the Honble Apex Court in 1997 (6) SCC 72, K.C. Sharma and others vs. Union of India and others. 7. It is admitted position that the applicant is from the category of executive clerical cadre and he is claiming the benefit of promotion under the H.P.S. Rules, 1973. It is accepted position that the applicant was promoted as Inspector (Head Clerk) from 31.8.1987 and he was confirmed as Inspector on 12.12.1990. His claim is that he was eligible to be promoted as Dy S.P. on completion of 2 years of service w.e.f. 31.8.1989. The perusal of record reveals that the applicant was to be considered for promotion under the provisions of Rule 6.1. of the H.P. Police Rule 1973 as he was eligible to be promoted as Dy. S.P. before the amendment was carried out as the same was made applicable on 11.11.1994. Similar issue has been decided by Division Bench of this Tribunal in OA-398/88 Hira Singh Vs. State of H.P. and others, in which benefit of promotion to the post of Dy. S.P. was allowed to the applicant in that original application. The case of the applicant is fully covered by this judgment and the same would be applicable to the case in hand. Accordingly it is held that the applicant would be entitled to be considered for promotion from the date of his confirmation i.e. w.e.f. 12.12.1990 with all consequential benefits. As far as the arrears are concerned the same would be restricted to 3 years prior to filing of this original application i.e. 20.11.1997. Accordingly it is held that the applicant would be entitled to be considered for promotion from the date of his confirmation i.e. w.e.f. 12.12.1990 with all consequential benefits. As far as the arrears are concerned the same would be restricted to 3 years prior to filing of this original application i.e. 20.11.1997. The respondents are further directed to process and finalize the case of the applicant who has since retired from service within a period of 3 months by allowing all financial benefits as admissible to the applicant from the date of passing of this order. The original application is disposed of in terms of above order with no order to costs.