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2010 DIGILAW 359 (JHR)

Rajendra Prasad v. State Of Jharkhand

2010-03-19

D.G.R.PATNAIK

body2010
JUDGMENT : D.G.R. Patnaik, J. 1. Both these writ applications arise out of a common impugned order dated 28.02.2004 (Annexure-25) passed under the signature of the Respondent No. 3 whereby the up-gradation/adjustment of the petitioners against the post of Assistant Sub-inspector (Technical), has been cancelled and they have been reverted to the post of Literate Constable (Technical). 2. The grounds of challenge to the impugned order, as raised by the petitioners, are that the order of reversion is totally illegal and could not have been resorted to in absence of any charge of misconduct or any fault on the part of the petitioners and that the impugned order is wholly arbitrary, illegal, unjust, improper and without jurisdiction and it was passed even without offering any opportunity to the petitioners to explain as to why they should not be reverted to the post of Literate Constables. 3. Heard counsel for the parties. 4. Learned Counsel for the petitioners would explain that by an office order No. 1886/82, the petitioner Nos. 1 and 2, upon their being selected by the Selection Committee, were initially appointed on the post of Literate Constables (Mechanic) on temporary basis in the pay scale of Rs. 425-605/- By a similar order dated 19.01.1984, the petitioner No. 3 was appointed as Literate Constable (Technical) in the same pay scale. By order dated 19.11.1979, the petitioner No. 4 was initially appointed as Literate Constable (Mechanical) in the pay scale of Rs. 205 - 284/-. All the petitioners were sent for Grade-III training and after completing their training, they had appeared at the qualifying examination conducted by the Ministry of Home Affairs, Director of Co-ordination, Police Wireless, Government of India, New Delhi. Upon their passing the departmental examination, the petitioners became eligible for their promotion to the higher post of Assistant Sub-inspector (Technical) in the Wireless Department. Upon assessment made by the Assistant Inspector General of Police (Inspection), Bihar, Patna based upon verification of the entire records and relevant documents, the Deputy Secretary (Home) was informed that there were 81 sanctioned posts of Assistant Sub-inspector (Technical) in the Wireless Department. On being apprised of the existence of 81 sanctioned posts, the Deputy Inspector General of Police (Wireless) granted promotion to all the persons who had passed the Grade-III examination, to the post of Assistant Sub-inspector (Technical). On being apprised of the existence of 81 sanctioned posts, the Deputy Inspector General of Police (Wireless) granted promotion to all the persons who had passed the Grade-III examination, to the post of Assistant Sub-inspector (Technical). The petitioners too had benefited by the order of such promotion/up-gradation to the post of Assistant Sub-inspector (Technical) with effect from 16.12.1995. Learned Counsel explains further that as a matter of fact, upon considering the fact that there was actually no post of Literate Constable (Technical) in the organization and in compliance with an order passed by the Patna High Court in a writ application vide C.W.J.C. No. 4193 of 1989, the Literate Constables including the petitioner, were upgraded to the post of Assistant Sub-inspector (Technical) in the department. The petitioners were accordingly enjoying the benefits of the higher posts on which they were confirmed with effect from the date of their passing the Grade-III examination. Furthermore, a gradation list of all such Assistant Sub-inspector (Technical) was prepared by the Assistant Inspector General of Police (Wireless), Bihar which which the names of the present petitioners also figured. 5. Upon bifurcation of the erstwhile State of Bihar, 20 posts of Assistant Sub-inspector (Technical) were allocated to the State of Jharkhand as indicated in the final allocation list of State Advisory Committee on 30.07.2003. The petitioners were working in the post of Assistant Sub-inspector (Technical) in the Technical Cadre of the Wireless Department within the territory of State of Jharkhand. 6. While the petitioners were enjoying the benefits of their promotion to the higher post, they were served with a notice dated 09.08.2002 asking them to show cause why their promotion to the post of Assistant Sub-inspector (Technical) should not be cancelled and they be not reverted to the post of Literate Constable (Technical). 7. Being aggrieved, the petitioners and similarly situated other personnel preferred a writ application before this Court vide W.P.(S) No. 5271 of 2002. By an interim order dated 25.09.2002, this Court had restrained the respondents from recovering any amount from the petitioners pursuant to the impugned show cause notice dated 09.08.2002. The writ application was finally disposed of by order dated 30.10.2002 holding that the Deputy Inspector General of Police (Wireless) of the State of Bihar has no jurisdiction to issue any order of recovery in respect of those police personnel who were posted in the State of Jharkhand. The writ application was finally disposed of by order dated 30.10.2002 holding that the Deputy Inspector General of Police (Wireless) of the State of Bihar has no jurisdiction to issue any order of recovery in respect of those police personnel who were posted in the State of Jharkhand. Accordingly the impugned show cause notice dated 09.08.2002 was set aside. The State of Jharkhand was however given a liberty to go through the records and to take appropriate decision in accordance with law taking into consideration the actual number of sanctioned posts of Assistant Sub-inspector (Technical) as were existing at the time of promotion of the petitioners and as existing at present. 8. Consequent upon the order passed by this Court in the aforementioned writ application, the Deputy Inspector General of Police(Wireless), Jharkhand, Ranchi issued show cause notices to the petitioners. In response, the petitioners submitted their respective show cause replies. 9. However, by the impugned office order dated 28.02.2004 issued by the Respondent No. 3, the order of the year 1995 granting promotions to the petitioner on the post of Assistant Sub-inspector (Technical) was cancelled and they were reverted to the post of Literate Constables. Being aggrieved, the petitioners have filed the present writ application. 10. Per contra, the stand taken by the respondent State Government is that though the petitioners were granted promotion to the post of Assistant Sub4 inspector (Technical) by way of their up-gradation from the post of Literate Constable (Technical), but it was detected subsequently that such up-gradation was done by the Bihar Police (Radio) even without obtaining prior consent of the Finance Department of the Government of Bihar. It is further pointed out that though the actual vacant sanctioned posts of Assistant Sub-inspector (Technical) was 61 but by way of wrong calculation, 20 more posts were added to wrongly suggest that the total number of vacancies in the said post was 81. When the error was detected, the earlier order dated 29.03.1995 passed by the Government of Bihar was cancelled by a fresh order dated 03.01.1998. Consequently, the promotions granted to 20 Literate Constables, including the present petitioners, to the wrongly calculated additional 20 posts of Assistant Sub-inspector (Technical), was cancelled by the Government of Bihar by the letter issued in the appropriate department dated 02.04.2002. Consequently, the promotions granted to 20 Literate Constables, including the present petitioners, to the wrongly calculated additional 20 posts of Assistant Sub-inspector (Technical), was cancelled by the Government of Bihar by the letter issued in the appropriate department dated 02.04.2002. The impugned order passed by the Deputy Inspector General of Police (Wireless), Bihar, Patna was only in compliance with the Government's order (Annexure-5) and as a consequence thereof, the promotion/ up-gradation/absorption of all such Literate Constables in the rank of Assistant Sub-inspector (Technical) was withdrawn and they were reverted /demoted to their original post of Literate Constable. 11. Upon hearing the counsel for the parties and upon going through the documents available on record, it appears that the impugned order of reversion has been passed by the Respondent No. 3 on the inference that there were only 61 sanctioned posts of Assistant Sub-inspector (Technical) in the Police Wireless Department in the State of Bihar and the promotions granted to 20 more persons were improper. It also appears from the information furnished by the Inspector General of Police (Inspection), Bihar, Patna vide his letter dated 28.02.1995 and the letter of the Deputy Secretary, Home (Police), Bihar Patna dated 29.03.1995 (Annexure-10 and 11 respectively) that the total number of sanctioned posts were 82 which included 62 unreserved posts. The posts allocated to the State of Jharkhand upon bifurcation of the erstwhile State of Bihar was confined only to the 62 unreserved posts. 12. It also appears that though the petitioners were initially appointed as Literate Constables, but in absence of any promotional avenues and in absence of any post of Literate Constable (Technical), the petitioners were upgraded/adjusted in the initial post of Assistant Sub-inspector (Technical) in 1995 after they had attained their eligibility by passing the Grade-III examination. Such up-gradation was given to the Literate Constables pursuant to the directions contained in the order of the Supreme Court in the case of Raghunath Prasad Singh v. Secretary, Home (Police) Department AIR 1988 1033 (SC) upon considering the fact that no promotional avenues were provided to Literate Constables in the police organization. 13. Such up-gradation was given to the Literate Constables pursuant to the directions contained in the order of the Supreme Court in the case of Raghunath Prasad Singh v. Secretary, Home (Police) Department AIR 1988 1033 (SC) upon considering the fact that no promotional avenues were provided to Literate Constables in the police organization. 13. In the order of this Court in W.P.(S) No. 5271 of 2002, a specific direction was given to the concerned authorities of the State of Jharkhand to go through the records and reports and to take an appropriate decision in accordance with law taking into consideration the actual number of sanctioned posts of Assistant Sub-inspector (Technical) as was existing at the time of the petitioners' promotion and as existed on the date of order. 14. While passing the impugned order, the respondent No. 3 appears to have acted only on the belief that there were only 61 available vacant sanctioned posts of Assistant Sub-inspector (Technical) in the Wireless Department of the State of Bihar and that promotions/up-gradations were given to 18 Literate Constables (Technical) without there being any sanctioned posts available for them. The impugned order does not appear take into consideration the undisputed fact that in absence of any promotional avenues available to Literate Constables and in pursuance to the directions contained in the judgment of the Supreme Court in the case of Raghunath Prasad Singh v. Secretary, Home (Police) Department (Supra), the Literate Constables were allowed the benefit of two promotions and accordingly their up-gradation were made to the post of Assistant Sub-inspector (Technical) with consequential benefits of higher pay scale. The impugned order does not also appear to record as to the actual number of vacant posts of Assistant Sub-inspector (Technical) which was available on the date of the final order passed by this Court in W.P.(S) No. 5271 of 2002 so as to assess as to whether there were vacant posts of Assistant Sub-inspector (Technical) available accommodating the petitioners. 15. The up-gradation granted to the petitioners pursuant to the directions contained in the judgment of the Supreme Court in the case of Raghunath Prasad Singh (Supra) cannot possibly be withdrawn abruptly and that too unilaterally by the respondents. 16. 15. The up-gradation granted to the petitioners pursuant to the directions contained in the judgment of the Supreme Court in the case of Raghunath Prasad Singh (Supra) cannot possibly be withdrawn abruptly and that too unilaterally by the respondents. 16. Furthermore, the impugned order of reversion could not have been passed against the petitioners in absence of any charge of misconduct on their part and in absence of any charge that they had obtained the benefits of upgradation of the higher pay scales by practicing any fraud or deception. 17. In the light of the above discussions, I am of the opinion that the impugned order whereby the petitioners have been reverted to the post on which they were initially appointed on the lower pay scales, has been passed without proper application of mind and without proper appreciation of the circumstances in which the petitioners were granted up-gradation and without fully complying with the directions contained in the order of this Court in W.P.(S) No. 5271 of 2002. The impugned order is therefore hereby set aside. The petitioners are entitled to be restored to the upgraded post which was granted to them in the year 1995. The concerned authorities of the Respondents must pass appropriate orders accordingly within one month from the date of receipt/production of a copy of this order. These applications are accordingly disposed of. Let a copy of this order be given to the counsel for the respondents. Applications disposed of.