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2012 DIGILAW 1558 (JHR)

Om Prakash v. Union of India

2012-10-31

APARESH KUMAR SINGH

body2012
Judgment Heard learned counsel for the parties. 2. The petitioner has come before this Court for a direction upon the respondents to promote him in the Grade of Sub Inspector with effect from the date when his Juniors or similarly situated persons have been granted promotion. The petitioner has also sought a direction upon the respondents to fulfil their assurance as contained in Letter dated 28th May, 2004. 3. According to the petitioner, he was enrolled in BSF on 20.1.1994 as ASI (Clerk). A limited departmental examination for preparation of selection list for promotion of ASI (Clerk) was held on 11.12.2000 and petitioner's name figured at serial no.98 in the said selection list issued on 22.2.2001 (Annexure-1). The petitioner is aggrieved that the other persons have been promoted from the selection list but the petitioner has not been promoted. The petitioner further submits that from para 19 to the writ petition, it appears that two persons, namely, Manoranjan Sarkar and Surjit Singh, placed at serial nos.99 and 100, have been promoted ignoring the genuine claim of the petitioner. The petitioner relies upon a document i.e. letter dated 29.4.2004 issued by the Commandant as contained in Annexure 4 and submits that there was an assurance that the petitioner's case would be considered for promotion. However, since the respondents have not granted him promotion, he has been compelled to move this Court in the present writ petition. 4. The respondents have appeared and filed their counter affidavit. Another supplementary counter affidavit has also been filed on 20th September, 2012 reiterating the stand taken in the first counter affidavit, which has already been replied by the petitioner earlier. 5. It is the consistent case of the respondents that no junior to the petitioner has been promoted. The persons, whose names are reflected in the writ petition, are the members of Scheduled Caste category. It is the further case of the respondents that due to restructuring of the cadre, certain posts have been rendered surplus. The respondents in their counter affidavit have also stated that the method to fill up the vacancy of SI. The persons, whose names are reflected in the writ petition, are the members of Scheduled Caste category. It is the further case of the respondents that due to restructuring of the cadre, certain posts have been rendered surplus. The respondents in their counter affidavit have also stated that the method to fill up the vacancy of SI. was through 75% by way of promotion from amongst ASI/Clerk, who has rendered not less than 8 years of service in the grade, 25% by selection through a departmental examination from amongst ASI/Clerk with not less than 5 years regular service in the grade and 5% by transfer from amongst SI/Steno, who has rendered not less than 5 years of service, failing which by departmental examination and failing both by promotion. Counsel for the respondents further submits that the petitioner's name figured at serial no.98 in the selection list circulated on 22.2.2001. Out of 101 candidates, upto serial no.89 were cleared for promotion during the period from 14.3.2001 to 26.3.2004 based on the recommendation of the Departmental Promotion Committee. Thereafter, due to restructuring, some posts of Sub Inspector/Clerk have become surplus with effect from 1.4.2004, which has caused withholding of promotion of such persons including the petitioner and no DPC for empanelment of ASI/Clerk to SI/Clerk was held from the years 2004-05 and 2006-07. Counsel for the respondents also submits that two persons named at serial nos.99 and 100 belong to Scheduled Caste category were promoted on different quota. Since the petitioner is in general category, he cannot alleged discrimination or violation of Article 14 on that count. It is further submitted that the letter issued by the Commandant, relied upon by the petitioner, cannot be a basis creating legal right for grant of promotion. In these circumstances, the respondents, while relying upon the letter, which is contained in Annexure 5, submits that promotions have been given in accordance with law and there is no discrimination, as alleged by the petitioner. 6. I have heard the counsel for the parties on merit and gone through the relevant materials on record. It appears that on the basis of a departmental examination held for filling up 25% of the quota for promotion to the cadre of SI/Clerk, the petitioner's name figured at serial No.98 out of 101 candidates. Candidates from serial no.89 to above have been promoted. It appears that on the basis of a departmental examination held for filling up 25% of the quota for promotion to the cadre of SI/Clerk, the petitioner's name figured at serial No.98 out of 101 candidates. Candidates from serial no.89 to above have been promoted. Thereafter, due to restructure, the posts of Sub Inspector have become surplus, which caused delay in promotional exercise to other candidates below the selected candidates, who have not been granted promotion including the petitioner. However, two candidates, who have been alleged to be promoted as juniors to the petitioner belong to different category i.e. Scheduled Caste category, while the petitioner is the general category candidate. 7. In the aforesaid facts and circumstances and the discussions made herein-above, the petitioner has not been able to make out a case for direction to grant promotion or any illegality in the exercise conducted by the respondents so as to warrant interference by this Court under Article 226 of the Constitution of India. 8. Accordingly, this writ petition is dismissed.