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Madhya Pradesh High Court · body

2012 DIGILAW 531 (MP)

G. R. S. Thakur v. State of M. P.

2012-05-14

K.K.TRIVEDI

body2012
JUDGMENT : This petition was originally filed as Original Application before the Administrative Tribunal which has come on transfer to this Court after closure of the Tribunal and has been registered as writ petition. 2. The claim made in this petition by the petitioner is that he was appointed in the District Police Force on 1st January, 1960 as Sub-Inspector. He belongs to Scheduled Tribe Community. Though, there were no adverse reports available against the petitioner, he was having meritorious service record to his credit, he was not timely promoted on account of which he was put in the list of Sub-Inspector, who were to be put on trial for the post of Inspector in the year 1979 but was promoted as Inspector in the year 1980. Thus, after about 21 years of service the petitioner was promoted as Inspector. He was subsequently promoted on the post of DSP on 19-6-1989, whereas his other batch-mates and junior to him were considered for such promotion much before the petitioner even when the name of the petitioner was not considered. It is contended that continuously representations were made by the petitioner but the same were not considered. Ultimately, communications were sent to the petitioner in the year 1991 and 1992 that his claims are rejected. Therefore, he was required to approach the Tribunal by way of filing this petition. The reliefs claimed by the petitioner in the Original Application were : "1. Records of all the DPCs refusing promotion of the applicant along with other relevant record may kindly be called for perusal. 2. The Hon'ble Tribunal may kindly issue an appropriate writ, direction or order to the respondents to consider the case of promotion of the applicant from 1968, when he became entitled to be nominated for the post of Inspector and onwards to the post of Deputy Superintendent of Police from the year 1976, and to fix the pay as per "NEXT BELOW, RULE" as per F.R. 30- Annexure A-11. 3. The Hon'ble Tribunal may also be pleased to issue appropriate writ, direction or order to the respondents to fix the pay and other emoluments for which the applicant becomes entitled from the due dates of promotions as per NBR Rules as per Annexure A-11. 4. Any other suitable relief which the Hon'ble Tribunal considers just and equitable. 5. Cost of the petition may be awarded." 3. 4. Any other suitable relief which the Hon'ble Tribunal considers just and equitable. 5. Cost of the petition may be awarded." 3. On receipt of notices of this petition, respondents have filed their response and have contended that as per the availability of the vacancies, as per the seniority of the petitioner his claim was considered within time and he was promoted. It was not that the petitioner was superseded in the year 1968 or 1976 without any reason and, therefore, the petitioner would not be entitled to any relief. It is contended that such a claim of the petitioner cannot be granted and the petition being devoid of any substance is liable to be dismissed. 4. The petitioner has not filed any rejoinder to the aforesaid return, but it is to be seen whether such a rejection of the petitioner by the Committee was just and proper or not. It is not disputed by the respondents that the petitioner became eligible to be considered for promotion on completion of requisite years of service with effect from the year 1968 as has been categorically reflected in their own document (Annexure R-l) filed along with the return. When the comments were asked by the State Government to consider the claim of the petitioner for grant of seniority to him, the Director General of Police has sent the information vide memo dated 4-8-1992. In this memo it was recorded that the petitioner was appointee of the batch of 1-1-1960 as Sub Inspector and on completion of 8 years of service he became eligible to be promoted as Inspector with effect from the year 1968. However, the record of fit list prepared for the year 1968 and 1969 was not available and, therefore, the comments on the same could not be given. The batch-mates of the petitioner were taken into consideration for grant of promotion with effect from the year 1970. In paragraph 3 of this memo, it is contended that the petitioner was given promotion on the post of Inspector by order dated 5-8-1980 on which post he joined on 26-8-1980. The name of the petitioner was brought in the fit list of the Inspectors issued in the year 1979 and his promotion was regularized vide order dated 17-6-1981. In paragraph 3 of this memo, it is contended that the petitioner was given promotion on the post of Inspector by order dated 5-8-1980 on which post he joined on 26-8-1980. The name of the petitioner was brought in the fit list of the Inspectors issued in the year 1979 and his promotion was regularized vide order dated 17-6-1981. The other information which is given in paragraph 4 of this memo indicates that the name of the petitioner was not sent for consideration in the year 1970, 1971, 1972 and 1973. Why nomination of the petitioner was not done is not clear. For the year 1974 he was said to be ineligible. Again for the year 1975 and 1976 the nomination of the petitioner was not received. In 1977 no nomination was made as the merit list itself was not prepared. In 1978 the petitioner was not found fit. However, if the nomination of the petitioner was not done with effect from the year 1970 to 1973, it was to be reviewed. It appears that no review was done as the Committee has contended that interview of the petitioner was not possible after such a long time and, therefore, his name was not considered. 5. From narration of these facts, it is clear that it was a case of left out person without any reasons. If the petitioner was left out from the list for consideration, the fundamental right available to the petitioner to be considered for promotion was violated by the respondents. However, justification for the same was not shown by the respondents. 6. It is because of this delayed promotion that the claim of the petitioner was not considered for his further promotion on the post of DSP. According to the information submitted by the respondents themselves the petitioner was promoted as DSP on 19-6-1989. Had it been a case that rightful consideration was done but the petitioner was not found fit for promotion at the relevant time, no direction could have been issued by this Court. But in the case in hand, from the record produced by the respondents themselves, it is clear that the petitioner was denied right to be considered at the appropriate time. But in the case in hand, from the record produced by the respondents themselves, it is clear that the petitioner was denied right to be considered at the appropriate time. In the case of Bal Kishan vs. Delhi Administration and anr., AIR 1990 SC 100 , the Apex Court has categorically held that a junior shall not be promoted without considering the case of his senior. Any deviation from this principle will have demoralizing effect in service apart from being contrary to Article 16(1) of the Constitution of India. This being so, it was the duty cast on the respondents to consider the representation of the petitioner in appropriate manner and to take a decision on it properly. Nothing except that the representation of the petitioner is rejected, is communicated vide impugned order dated 19-10-1992. If such a representation was rejected in such a manner, it cannot be said that the respondents have discharged their duty as employer in appropriate manner. It was the responsibility of the respondents to decide the representation of the petitioner objectively taking into consideration all the facts. There are procedures prescribed in the GOP for consideration of cases of Sub Inspectors for promotion. These procedures were not followed in the case of petitioner as without any reasons assigned the nomination of the petitioner was not made in appropriate manner. Thus, the stand taken by the respondents cannot be accepted at all. 7. Consequently, the petition is allowed. The respondents are directed to review the claim of the petitioner for grant of promotion on the post of Inspector with effect from the year 1970, when his case was left out and juniors to him were considered. In case, the petitioner is found fit for grant of promotion, the order be issued in this respect granting him promotion on the post of Inspector with retrospective effect. However, only a notional promotion would be granted to the petitioner as when he was aware of the fact that he has been superseded, he had not taken any course to approach the Court of law for grant of justice. On promotion as Inspector, the claim of petitioner would also be considered for grant of promotion as DSP and appropriate orders be passed in that respect. On promotion as Inspector, the claim of petitioner would also be considered for grant of promotion as DSP and appropriate orders be passed in that respect. In case he is found fit for promotion on the said post with retrospective effect, only 50% of the arrears of salary on refixation of salary would be paid to the petitioner. The exercise in this respect be completed within a period of four months from the date of communication of this order. 8. The petition is finally disposed of. There shall be no order as to costs. Petition allowed.