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2010 DIGILAW 748 (HP)

Bahadur Singh v. State of H. P.

2010-04-21

SANJAY KAROL

body2010
JUDGMENT : Sanjay Karol, J. The Petitioner was appointed as Civil Defence Instructor on 5.9.1963. His appointment was with the Himachal Pradesh Home Guards and Civil Defence Organization. It is his grievance that the persons appointed subsequent to his date of appointment have been promoted as Company Commander w.e.f. 6.6.1966 and Commander w.e.f. 1970 but however such benefits have not been accorded to him. 2. The petition is opposed on the ground that the Petitioner's appointment was not with the Home Guards Organization but the Civil Defence Organization. Since there were no R&P Rules in existence prior to 1.5.1971, hence the Petitioner could not have been promoted as prayed for. Regretfully, the plea taken by the State is contrary to its own action and material placed on record. Unfortunately, the Petitioner has been made to run from pillar to post and litigate due to the insensitive and callous attitude adopted by the State. 3. The first round of litigation initiated by the Petitioner culminated with the State deciding the Petitioner's representation after the matter had reached the Apex Court. Even though the Petitioner was initially promoted as Company Commander w.e.f. 8.1.1974 but however subsequently he was given the benefit of notional promotion w.e.f. 1.5.1971. His promotion from a prior date was denied to him. Therefore, Petitioner is seeking promotion w.e.f. 6.6.1966 for the reason that the persons who had been appointed subsequent to his initial appointment were promoted with effect from the said date. 4. It is not in dispute that the persons appointed subsequent to the Petitioner's appointment were actually promoted w.e.f. 6.6.1966 as Company Commander and 1.1.1970 as Commander. 5 Importantly, the Petitioner has placed on record the letter dated 28.11.1994, relevant portion of which reads as under: "Before the issue of R and P Rules, promotions were made without any consideration of feeder category. In 1966, for instance Shri S.S. Thapa was promoted as Company Commander within about 9 months of his appointment as Chief Instructor and Shri Hira Singh who was merely a Platoon Commander was also promoted direct to the post of Company Commander along with Shri S.S. Thapa. The Chief Instructor's post was equivalent to that of SI (Police) whereas Platoon Commanders were in the lower rank i.e. equivalent to that of A.S.I (Police). The Chief Instructor's post was equivalent to that of SI (Police) whereas Platoon Commanders were in the lower rank i.e. equivalent to that of A.S.I (Police). It is further added that Shri Manohar Lal Kashyap, Platoon Commander was promoted to the post of Civil Defence Instructor in the year 1967 & Shri Hem Chand Sharma, Platoon Commander was also promoted as Civil Defence Instructor in the year 1970. Shri Brij Lal Gautam, Civil Defence Instructor was promoted to the post of Company Commander in the year 1970, but he was reverted back to the post of Civil Defence Instructor by the judgment of HP High Court dated 11.8.1972. 6. Thus from the same, it is evidently clear that the distinction now sought to be drawn by the State is in fact fictional and not true. The persons appointed even under the Civil Defence Organization have been given promotion in the absence of R and P Rules. Importantly, no D.P.C. was held for promoting of any of other named persons. 7. That apart Petitioner has furnished the particulars of the persons who were given promotion in the absence of R and P Rules. Importantly, no such distinction of two distinct organizations was drawn while giving promotion to such persons. 8. List of such persons is as under: S. No. Name Approx. year of appointment Approx. year of retirement. 1. Sh. Amar Singh Jan. 1964 July 1969 2. Sh. Jaswant Singh Jan. 1964 Oct 1970 3. Sh. Shankar Singh Jan. 1964 Apr 1966 4. Sh. Hira Singh Dec. 1965 Jan. 1968 5. Sh. Paras Ram Apr. 1966 May 1963 6. Sh.S.S. Thapa Apr. 1966 Feb. 1981 7. Sh. Hira Singh Apr. 1966 Reverted 8. Sh. Upender Singh Aug. 1966 Oct. 1969 9. Sh. Rattan Singh Jul. 1968 Jun. 1973 10 Sh. J. S. Bakshi Dec. 1967 Mar. 1991 (Retd) 11. Sh. V. S. Mankotia Sep. 1969 Mar. 1973 (Selected as Secy. Soldier Boad) 12. Sh. V. S. Watni Aug. 1973 Retd. As Div. Commandant 13. Sh. Brij Lal Aug. 1970 14. Sh. Surender Singh Jul. 1970 Jan. 1972" 9. This fact has not been controverted by the State even till date. 10. Most importantly, the Petitioner has placed on record the reply verified by the Commandant General Home Guards, Himachal Pradesh as filed in C.W.P. No. 215 of 1979 titled as J. R. Sharma and Anr. Brij Lal Aug. 1970 14. Sh. Surender Singh Jul. 1970 Jan. 1972" 9. This fact has not been controverted by the State even till date. 10. Most importantly, the Petitioner has placed on record the reply verified by the Commandant General Home Guards, Himachal Pradesh as filed in C.W.P. No. 215 of 1979 titled as J. R. Sharma and Anr. v. State of Himachal Pradesh C.W.P. No. 215 of 1979., wherein the State has categorically pleaded as under: Respondent No. 3 Sh. Bahadur Singh, was appointed as Civil Defence Instructor on 5.9.63 and had put in more than 3 years of service on the date the rules were notified and as such was eligible for promotion to the post of Company Commander in the year 1966. 11. In this view of the matter, the Petitioner's grievance is genuine. He has been wrongfully discriminated. It is not the stand of the State that the appointments of the others are illegal. The stand taken by the State is false. The petition filed by the Petitioner needs to be allowed. 12. In this view of the matter, it is directed that the State shall immediately take steps for giving promotion to the Petitioner as Commander w.e.f. 6.6.1966 and as Commandant w.e.f. 1.1.1970. Necessary action shall be positively taken within a period of four months from today, after affording due opportunity of hearing to the Petitioner. 13. Needless to add, all consequential actions shall also be taken by the State within the aforesaid period. The State shall endeavour to pass an order without disturbing the rights which might have accrued in favour of the other parties. 14. The petition is disposed of as such.