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Himachal Pradesh High Court · body

2007 DIGILAW 333 (HP)

DHRUB KUMAR v. STATE OF H. P.

2007-08-09

B.S.CHAUHAN, NARINDER SINGH THAKUR

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JUDGEMENT Narinder Thakur, Vice Chairman:- The plain and simple case of the applicant is that he was initially appointed by the respondent department as a Constable in the year 1984. He was granted further promotion as a Head Constable in the year, 1989. Vide Annexure- a-1, the applicant was granted promotion as a Assistant Sub Inspector (A.S.I.). The said promotion order was "issued by the Director General of Police, Himachal Pradesh, in exercise of the power vested in him by the virtue of Rule 13.21 of Punjab Police Rule (as applicable of State of H.P.). The said promotion was granted by relaxation of the " rules in the following unambiguous terms:- "the following police personnel are hereby promoted by giving relaxation in the rules as per rule 13.21 of Punjab Police Rule with effect and on promotion they were posted to the District/Units shown against their names." 2. Now in the above background, it will be fruitful to re-produced the provision of Rule 13.21 of PPR as under:- "13.21 power of relaxation- where the Inspector General of Police is of the opinion that it is necessary or expedient to do so, he may, by order for reasons to be recorded in writing relax any of the provisions of this chapter with respect to any class or category of persons." 3. It is this provision of P.P.R. in exercise of which the Director General of Police has given his categorical relaxation while ordering promotion of the applicant to the post of Assistant Sub Inspector of Police. The said provision was invoked as the applicant was awarded Prime Ministers Life Saving Police Medal for the gallantry work. 4. However, the controversy arose when the applicant was shown in list D-1 w.e.f. 6.6.1995, which is later then the date he has already been given relaxation for promotion as Assistant Sub Inspector. The persons junior to him have been shown senior to him as such the applicant was claiming his seniority from the date of his such promotion. Promotion. 4. However, the controversy arose when the applicant was shown in list D-1 w.e.f. 6.6.1995, which is later then the date he has already been given relaxation for promotion as Assistant Sub Inspector. The persons junior to him have been shown senior to him as such the applicant was claiming his seniority from the date of his such promotion. Promotion. The contention of the respondent department that the applicant was required to pass Intermediate School Course as the promotion to the rank of Assistant Sub Inspector from Constable is governed under Rule 13.9 and with cogent reading of Rule 13.8 make amply clear that for promotion to the rank of A.S.I. one has to come in list D which has to be maintained in two parts of Head Constable. In Rule 13.9. (2) it has been provided that the names of Head Constables who qualify at Police Training College in the promotion course for Head Constables will be entered in para-1 of the list D as soon as they qualify the same. While entering the names in this part, they will maintain their seniority inter-se. 5. This plea of respondent department is not sustainable. It is amply evidence from the bare reading of provisions of Rule 13.21 of PPR that once a relaxation has been given, the rules do not come into play any more. They very basic purpose giving relaxation is to over ride the provisions of rules of Chapter 13. Otherwise, the very purpose of giving relaxation becomes defunct. 6. We have heard the learned counsel for the applicant and the learned Additional Advocate General for the State and have gone through their pleadings very carefully and have perused the record. 7. Respondent State has filed the supplementary affidavit that other "persons promoted vide Rule 13.21 and their orders also have been annexed as Annexure-R-1 have not been given seniority until they pass list D Course. We have gone through Annexure- R-1. As per Annexure-R-1 which pertains to one Smt. Meenakshi Devi was promoted as A.S.I, on officiating basis under Police Rule 13.21 with immediate effect against the existing vacancies in district Shimla on the grounds of professional ability and exceptional merit. We have gone through Annexure- R-1. As per Annexure-R-1 which pertains to one Smt. Meenakshi Devi was promoted as A.S.I, on officiating basis under Police Rule 13.21 with immediate effect against the existing vacancies in district Shimla on the grounds of professional ability and exceptional merit. But in this order it was also stipulated "it is further ordered that this promotion shall not entitled her to claim the benefit of seniority in the rank of A.S.I, till such time she is promoted as such on regular basis after her name is duly brought in list D in due course;" Similar condition was stipulated in R-2 as has been mentioned in R-1 and same conditions was in R-3 also. But there is no condition in Annexure-A-1 so for as the applicant is concerned. 8. In this regard the Honble Apex Court in case reported in 2005 (13) SCC 606 titled as Jagdish Kumar vs. State of H.P. has observed that "once the relaxation has been given there is no need further relaxation once the criteria has already been relaxed. Moreover, there is no such stipulation in the promotion order of the applicant to have pass the promotional examination as has been stipulated in other candidates who are referred to above in Annexures-R-1 to R-3. Looking from any angle, the impugned order Annexure-A-5 passed by the respondent department cannot be sustained. The impugned order Annexure-A-5 is accordingly quashed and set aside, We hold the applicant entitled for seniority w.e.f. 1.9.1993 for all purposes and intents with all consequential benefits. Respondents are directed to comply with these directions within two months from this order. The applicant shall also be entitled for interest on the arrear 9% per annum from the day he filed the Original Application till its payment. In the light of the above the present original application stand finally disposed of.