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2012 DIGILAW 163 (HP)

Sawaroopa Nana v. State of Himachal Pradesh

2012-04-05

DHARAM CHAND CHAUDHARY

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JUDGEMENT Justice Dharam Chand Chaudhary, Judge: The only point in issue, which needs adjudication in this writ petition, is as to whether the petitioner in the given facts and circumstances is entitled to be promoted as Head Constable in Band staff of District Police, Shimla. 2. Admittedly, the petitioner was appointed as Constable in band staff of District Police, Shimla on 11.8.1983. As per the seniority list Annexure P-2 of Head Constable/ Constable posted in Band staff as on 31/12/2005, the name of petitioner figures at Sl. No.3. The personnel namely Bhagat Ram and Mast Ram at Sl. No.1 and 2, respectively, above him were promoted as Head Constables purely on the basis of seniority. Shri Mast Ram at Sl. No.2 in the seniority list was promoted vide order dated 8.9.2006 Annexure P-3. The personnel at Sl. No.1, Shri Bhagat Ram, who as per the note below remarks column of the seniority list Annexure P-2, was promoted as Head Constable (Band) on 17.2.2005, stands retired from service on 31.3.2007. His retirement from service has caused a vacancy in the rank of Head Constable (band). When the petitioner was not considered for promotion against the vacancy of Head constable so caused, he made a representation to the respondents on 22.7.2008. The petitioner has not been conveyed anything about the fate of the representation so made by him. 3. Admittedly, as per the past practice, in the band organization the promotion from the post of Constable to Head Constable was being made purely on the basis of seniority. A reference in this behalf can be made to the communication Annexure P-1 whereby the Superintendent of Police Shimla had informed the Deputy Inspector General of Police, Southern Range, Shimla that in band staff, the promotion to the post of Head Constable is being made purely on the basis of seniority and no test of the incumbents is being conducted. 4. The stand of the respondent in reply to the writ petition, however, is that in Police organization promotion of a constable to the Rank of Head Constable is governed under Punjab Police Rules 13.7 and 13.8 and that passing of Lower School Course is pre-requisite for such promotion. The constable who qualifies B-1 test is only recommended to undergo the Lower School Course and after qualifying such course is brought on list C-1. The constable who qualifies B-1 test is only recommended to undergo the Lower School Course and after qualifying such course is brought on list C-1. It is thereafter that he is promoted as Head Constable in order of merit obtained in Lower School Course, keeping in view the availability of post in District/Unit. The personnel posted in the band staff are also eligible to take B-1 Test. 5. In para 3 of the reply, while admitting the petitioner having made a representation for promotion to the post of Head Constable, it is further submitted as follows:- “It is, however, submitted in reply to this para that while examining the promotion case of the petitioner forwarded by the Superintendent of Police, Shimla through the Deputy Inspector General of Police, Southern Range, it was found that in the past no rules or set procedure was being followed while making promotions of the Band personnel. There are no separate Recruitment & Promotion rules in vogue for promotion of the Band Staff and the promotions were being made on the basis of seniority. It is pertinent to submit here that as per rule the promotions of the Band personnel has to be governed under Rule 13.7 and 13.8 read with Rule 13.1 of Punjab Police Rules as applicable to the state of H.P. as they do not form a separate cadre. Keeping the above position in view it has been decided that in order to regulate the promotion of Band Staff a Standing order is issued. Accordingly, a Standing order has been drafted and sent to the Govt. of H.P. for approval which is under examination. In this background the promotion order in respect of the petitioner has not been approved.” 6. While denying the claim of the petitioner for promotion as Head Constable, it is submitted that mere existence of a vacancy does not confer any right on the employee to seek his promotion against such post when no person junior to him has been promoted. 7. It is in this backdrop, learned counsel representing the petitioner and learned Deputy Advocate General have made submissions during the course of arguments. 8. 7. It is in this backdrop, learned counsel representing the petitioner and learned Deputy Advocate General have made submissions during the course of arguments. 8. On careful analysis of the rival submissions and also the record of this case, it would not be improper to conclude that the respondents have not approached this Court with clean hands and rather blown hot and cold in the same breath as is apparent from the perusal of the reply filed to the writ petition. The conclusion so drawn by this Court is substantiated from the self contradictory stand taken by the respondent in reply to the writ petition. On the one hand, there is no denial to the claim of the petitioner that as per the practice being followed by the respondents, an incumbent holding the post of Constable was being promoted to the post of Head Constable purely on the basis of seniority because as per the own case of the respondents, as emerges from the perusal of para 3 of the reply to the writ petition, there is no set rules for making promotion to the post of Head Constable in band staff reproduced supra nor are there any separate Recruitment and Promotion Rules in vogue governing promotion of the band staff. Not only this as per further admission on the part of the respondent, it is for this reason that the promotion in band staff was being made purely on the basis of seniority. The so called standing order making provisions to regulate the promotion of band staff has not yet seen the light of the day because in view of the reply, the same have been drafted and sent to the State Government for approval. 9. Per contra it is only such incumbents who have qualified the lower School Course and brought on list C-1, are entitled for promotion to the post of head Constable under Rule 13.7 and 13.8 of Punjab Police Rules as applicable to the State of Himachal Pradesh. It is thus established that the respondents have raised self contradictory plea in reply filed to this writ petition. 10.True it is that the band staff is part and parcel of the District Police establishment. Such staff, however, seems to be kept out side the purview of the Police Rules. It is thus established that the respondents have raised self contradictory plea in reply filed to this writ petition. 10.True it is that the band staff is part and parcel of the District Police establishment. Such staff, however, seems to be kept out side the purview of the Police Rules. No doubt it has been claimed in reply to the writ petition that the band staff is also governed under Rules 13.7 and 13.8 read with Rule 13.1 of Punjab Police Rules as applicable to the State of H.P., as they allegedly form a separate cadre, however, this Court is not persuaded with such submissions for the reason that had it been so, there would have been joint seniority list of the personnel in band organization and the police staff on the establishment of District Police, Shimla. It is, however, not so because the seniority list annexure P-2 as on 31.12.2005 pertains to personnel on the establishment of the band organization of Shimla District Police. Meaning thereby that the band staff was being treated as a class in it and in the matter of promotion also, the personnel in band staff are being governed purely by way of their respective seniority. The case of the petitioner to this effect finds support from Annexure P-1, a communication made by Superintendent of Police Shimla to Deputy Inspector General of Police Southern Range, Shimla. It is abundantly clear from the perusal of this document that the promotions in band staff were being made purely on the basis of seniority and no test etc. of an incumbent to such promotion is required to be conducted. There is no denial to the promotion of Bhagat Ram and Mast Ram at Sl. No.1 and 2 of seniority list Annexure P-2 purely on the basis of seniority. In such a situation when a vacancy in the rank of Head Constable had been caused due to retirement of Head Constable Bhagat Ram long back on 31.3.2007 and the petitioner being eligible and senior-most also, in all fairness, should have been promoted as Head Constable, because it is well settled at this stage that a government servant must get promotion in his service career and if there is no provisions of promotional avenues, his employer is under an obligation to make a suitable provisions in this behalf. In the given facts and circumstances, the present is a case where the causing of vacancy in the rank of Head Constable on and w.e.f. 1.4.2007 has resulted in legitimate expectation of being promoted against such post to the petitioner. Such expectation cannot be allowed to be taken away by the respondents and that too on self contradictory defence raised in reply to the writ petition. The present is thus a fit case where the unescapable conclusion would be that the petitioner has been given an arbitrary and discriminatory treatment in the matter of his promotion to the post of Head Constable. The petitioner has not been informed about the fate of the recommendation made qua his promotion against the post in question. He has also not been informed about the fate of the representation in this behalf, which he made to the respondents. All such acts and deeds attributed to the respondents are against all cannons of natural justice and fair play, besides being unknown to the service jurisprudence. 11. Be it stated that the petitioner now stands retired from service on 31st December, 2011 i.e. during the pendency of this writ petition in this Court. However, in view of the appraisal of the material available on record, irrespective of his retirement from service, the just and reasonable benefit to which he is entitled, can be granted in this petition. 12. For the foregoing reasons, this petition succeeds and the same is accordingly allowed. Consequently the respondents are directed to promote the petitioner notionally with all consequential benefits from the due date i.e. 1.4.2007. They are also directed to release the due and admissible amount payable to the petitioner on account of his promotion to the post of Head Constable within three months from the date of production of a copy of this judgment by the petitioner before the second respondent, failing which together with interest at the rate of 9% from the date of filing of this writ petition till realization of the entire amount and in that event the officer(s)/official(s) responsible for the delay shall be personally liable for the same. The writ petition is disposed of, so also the pending application(s), if any.