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2009 DIGILAW 650 (HP)

PRITHVI PAUL v. STATE OF H. P.

2009-07-20

KULDIP SINGH

body2009
JUDGMENT Kuldip Chand, Judge:-The Original Application No.236 of 1996 was filed in the Himachal Pradesh Administrative Tribunal and the cases of the Tribunal were transferred to this Court vide Himachal Pradesh Administrative Tribunal (transfer of decided and pending cases and applications) Act, 2008. On transfer Original Application No. 236 of 1996 has been registered in this Court as CWP (T) No.3622 of 2008. 2. The pleaded case of the petitioner is that he was enrolled as Constable on 1.4.1965 and had been serving as Head Constable continuously w.e.f. 14.6.1985 . The petitioner was placed in list ‘D’ and became eligible for intermediate school course and consequently promotion as Assistant Sub Inspector. He was selected for intermediate course commencing from 1.10.1994. The respondent No.4 vide memo dated 20.9.1994 Annexure PD requested Chief Medical Officer, Mandi to get the concerned Head Constables medically examined whether they are fit to undergo the course or not. The name of the petitioner was mentioned in memo dated 20.9.1994 at serial No. 5. 3. The petitioner vide letter dated 20.9.1994 Annexure PE made a representation to respondent No.2 through proper channel submitting therein that when he was posted at Police Post, Sangla during 1991 and was going to Kullu in connection with investigation of case FIR No. 107/1991, P.S. Kalpa, he met with an accident on 18.11.1991 on the way as a result of which his left leg fractured and remained under treatment in Zonal Hospital, Mandi. The petitioner requested that he may be allowed to undergo inter class course only in indoor subjects and be exempted from PT and parade. 4. It appears that respondent No.4 vide letter dated 21.9.1994 Annexure PG in response to letter dated 17.9.1994 of respondent No.3 had sent application dated 20.9.1994 Annexure PE to respondent No.3. The respondent No.4 had also sent wireless message dated 29.9.1994 Annexure PC to respondent No.2 informing him that petitioner was got medically examined and C.M.O., Mandi has declared him only fit to do light work. In these circumstances, the petitioner is unfit to undergo the said training which is arduous and hard training. The petitioner submitted representations dated 4.10.1995 Annexure PH and 4.1.1996 Annexure PI to respondent No.2. The respondent No.2 rejected the representation of the petitioner vide memo dated 15.3.1996 Annexure PA. In these circumstances, the petitioner is unfit to undergo the said training which is arduous and hard training. The petitioner submitted representations dated 4.10.1995 Annexure PH and 4.1.1996 Annexure PI to respondent No.2. The respondent No.2 rejected the representation of the petitioner vide memo dated 15.3.1996 Annexure PA. In the memo dated 15.3.1996, it has been stated that there is no provision under the rules wherein exemption to undergo physical training and parade is allowed to trainee during promotion courses. 5. The petitioner has also contended that vide office order dated 6.10.1988 Annexure PJ one HeadConstable Karam Singh No. 165 of Bilaspur District was promoted by relaxing Police Rule 13.9 (amended) by invoking relaxation clause of Police Rule 13.21 (amended). The petitioner has also pleaded that Prem Singh No.411, Brahm Dass No. 82 and Rattan Chand No.408 shown at serial numbers 27, 29 and 30 respectively in office order dated 19.12.1995 and who were junior to petitioner were promoted as Assistant Sub Inspectors vide office order dated 19.12.1995 Annexure PK. The petitioner has placed on record Rule 13.9 and Rule 13.21 vide Annexure PL. 6. The respondents have contested the petition by filing reply. They have admitted that petitioner was selected to undergo intermediate school course (promotional course for Head Constables) commencing from 1.10.1994. The petitioner was not found medically fit to undergo the course. The respondent No.4 rightly recommended that petitioner was not fit to undergo the said training. The representation made by the petitioner was not denied. It was pleaded that the representation of the petitioner was examined and rejected inasmuch as there is no provision in the rules wherein exemption to undergo physical training and parade is allowed to trainee during promotion course. The persons who were junior to the petitioner had qualified the intermediate school course and they were rightly promoted to the higher rank. The petitioner could not be deputed to undergo training on medical grounds. 7. Heard and perused the record. 8. The respondents have projected the case that there is no provision in the rules for exemption to undergo physical training and parade for trainee undergoing promotional course. This line of reasoning has also been given by the respondent No.2 in Annexure PA dated 15.3.1996 while rejecting the representation of the petitioner. 7. Heard and perused the record. 8. The respondents have projected the case that there is no provision in the rules for exemption to undergo physical training and parade for trainee undergoing promotional course. This line of reasoning has also been given by the respondent No.2 in Annexure PA dated 15.3.1996 while rejecting the representation of the petitioner. The petitioner has not sought total exemption from the training, he had sought only exemption with respect to physical training and parade. The rule 13.21 provides relaxation. In other words, the competent authority is authorized to relax rule 13.9 which provides with respect to list ‘D’ selection of candidates for promotion course for Head Constables and promotion to the rank of Assistant Sub Inspector. The office order dated 6.10.1988 Annexure PJ indicates that one Head Constable Karam Singh No. 165 of Bilaspur District who was selected for intermediate school course but he could not undergo that course due to fracture. It has been noticed in Annexure PJ that all the Head Constables of his batch have since been promoted as Assistant Sub Inspectors. In those circumstances, Police Rule 13.9 (amended) was relaxed by invoking Police Rule 13.21 (amended) and the promotion of Head Constable Karam Singh No.165 of Bilaspur District was approved to officiate as Assistant Sub Inspector. The contention of the petitioner is that his juniors have been promoted vide office order dated 19.12.1995 Annexure PK which fact has not been denied by the respondents. 9. It has also come on record that petitioner met with an accident on 18.11.1991 when he was going to Kullu in connection with investigation of case FIR No. 107 of 1991 of Police Station, Kalpa. In the accident left leg of the petitioner was fractured and he remained under treatment in Zonal Hospital, Mandi. The case of the petitioner is on better footing in comparison to Head Constable Karam Singh referred in Office Order dated 6.10.1988 Annexure PJ. The petitioner offered to join the course but he sought exemption from physical training and parade during the course. He was not allowed to join the course on medical ground. In the case of Head Constable Karam Singh there is no indication in Annexure PJ that he offered to join course and sought exemption with respect to particular part of training. Head Constable Karam Singh was promoted after giving relaxation under Police Rule 13.21 (amended). He was not allowed to join the course on medical ground. In the case of Head Constable Karam Singh there is no indication in Annexure PJ that he offered to join course and sought exemption with respect to particular part of training. Head Constable Karam Singh was promoted after giving relaxation under Police Rule 13.21 (amended). The case of the petitioner was rejected simply on the ground that there is no provision in the training to give exemption from physical training and parade. 10. The respondent No.2 has not considered Police Rule 13.21 (amended) in the case of petitioner keeping in view the facts and circumstances of the case. The rejection of representation dated 15.3.1996 Annexure PA by respondent No.2 is thus not sustainable and is set-aside. The matter is quite old. The petitioner in his affidavit dated 15.4.1996 has given his age 48 years. It means the petitioner as of today is around 61 years. The petition is allowed, the respondent No.2 is directed to consider the case of the petitioner for promotion to the post of Assistant Sub Inspector by relaxing Police Rule 13.9 (amended) by invoking Police Rule 13.21 (amended) Annexure PL from the date his juniors were promoted as Assistant Sub Inspectors with all consequential benefits and a decision to this effect be taken within a period of two months from today.