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2012 DIGILAW 605 (PAT)

Din Bandhu Maharaj v. State of Bihar

2012-04-11

V.N.SINHA

body2012
ORDER Heard learned counsel for the petitioner and the State, who says that he filed a counter affidavit in the matter placing on record the order bearing Memo No. 3847/P-2 dated 19.7.2006, whereunder request of the petitioner for promotion on the post of Inspector, Dy.S.P. has been rejected ignoring the contents of order bearing Memo No. 3547/P-2 dated 25.6.1997, Annexure-3, whereunder petitioner was allowed seniority as Sub-Inspector of Police with effect from 16.2.1979. In the light of the aforesaid submission report was called for from the Filing Section of the Court but from office notes dated 22.11.2010 it is evident that no counter affidavit has been filed in the matter, which was again confirmed by the Filing Section even today. In the circumstances the matter is being heard without the benefit of the counter affidavit. 2. Petitioner was appointed as a Police Constable on 4.7.1970 after completion of one year successful service he became Writer Constable acquired PTC Training at Hazaribagh and promoted as Assistant Sub-Inspector of Police with effect from 10.07.1975 and transferred to C.I.D., Crime Branch. In the C.I.D., Crime Branch petitioner was asked to officiate as Sub-Inspector of Police with effect from 16.2.1979. Such officiation was allowed to the petitioner without considering the seniority of his other colleagues and cancelled under orders dated 30.3.1991, 2.4.1991, which the petitioner and others challenged by filing C.W.J.C. No. 2686 of 1991 and other analogous matters, which was disposed of under judgment dated 8.5.1996, Annexure-2 observing as follows: “It is not the case of the respondents that the petitioners had not been officiating or that they had been found unfit for officiation by the Central Selection Board but the stand of the State is that certain persons, who were senior to the petitioners, in view of the criterion for determination of seniority on the basis of Police Order No. 204/1988 were awaiting officiating promotions.” With direction that the petitioners, who were officiating as Sub-Inspector of Police for specified durations but after a day’s break, shall be entitled to reckon their seniority with effect from the date of their initial officiation. Aforesaid order dated 8.5.1996 was challenged by the State by filing S.L.P., which was also dismissed. Aforesaid order dated 8.5.1996 was challenged by the State by filing S.L.P., which was also dismissed. In the light of the order of the High Court dated 8.5.1996, the State-respondents issued order bearing Memo No. 3547/P-2 dated 25.6.1997, Annexure-3 indicating that petitioner shall be entitled to reckon his seniority as Sub-Inspector of Police from 16.2.1979 the date of his officiation ignoring the substantive appointment made under order bearing Memo No. 2692/P-2 dated 12.7.1994, Annexure-1. 3. By filing this writ petition, submission is being made that others appointed as Assistant Sub-Inspector of Police until 30.7.1981 were considered for promotion and appointed as Inspector under order bearing Memo No. 193/P-1 dated 15.1.2004, Annexure-7 but petitioner though allowed seniority as Sub-Inspector of Police with effect from 16.2.1979 was not considered along with other Sub-Inspectors appointed until 30.7.1981 for promotion/appointment as Inspector. Learned counsel for the petitioner in this connection submitted that once the State-respondents granted the petitioner seniority as Sub-Inspector of Police with effect from 16.2.1979, they are duty bound to consider the case of the petitioner for promotion as Inspector on the basis of his continuous officiation on the post of Sub-Inspector of Police with effect from 16.2.1979 and as for the present petitioner has retired, he is required to be reimbursed the arrears of difference of salary of the promoted post. In support of the aforesaid plea, learned counsel for the petitioner has relied on the judgment of the Constitution Bench of the Supreme Court in the case of Madan Mohan Pathak and another Vs. Union of India and others, reported in A.I.R. 1978 Supreme Court 803 and submitted that as the mandamus issued by the High Court dated 8.5.1996, Annexure-2 has become final, on the basis of which seniority of the petitioner as Sub-Inspector of Police has already been reckoned with effect from 16.2.1979 under order dated 25.6.1997, Annexure-3, the State-respondents cannot be allowed to violate the mandamus issued by the High Court. In the case of Madan Mohan Pathak (supra) Hon’ble Supreme Court considered the effect of the High Court order recognizing the right of the Class-III, IV employees of the L.I.C. to receive bonus under Section 11(1) of the Life Insurance Corporation Act, 1956 and the effect of the subsequent enactment, namely, Life Insurance Corporation (Modification of Settlement) Act, 1976 denying the rights of the Class-III, IV employees of the L.I.C. to receive bonus and held that the rights of the citizen against the State which has become basis of a mandamus from the High Court could not be taken away. In this connection, learned counsel for the petitioner has also relied on the another Constitution Bench judgment of the Hon’ble Supreme Court in the case of The Direct Recruit Class-II Engineering Officers’ Association and others Vs. State of Maharashtra and others, reported in A.I.R. 1990 Supreme Court 1607 paragraph 44(B), which is quoted hereinbelow for ready reference: “If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.” 4. Learned counsel for the State has opposed the aforesaid submission and submitted that petitioner and others were transferred to the C.I.D., Crime Branch without considering their seniority. While asking the petitioner and others to officiate as Sub-Inspector of Police in the C.I.D., Crime Branch with effect from 16.2.1979, the authorities never considered the seniority of those who were not given the option to come to the C.I.D., Crime Branch. This aspect of the matter was appreciated by the authorities themselves and in appreciation of such fact petitioner and others were allowed officiation as Sub-Inspector of Police in the C.I.D., Crime Branch for specified period, that too with break. Later, when such aspect of the matter was further agitated by the Senior colleague of the petitioner, under order dated 30.3.1991, 2.4.1991, the petitioner and others were reverted to serve as Assistant Sub-Inspector of Police which the petitioner and others impugned by filing C.W.J.C. No. 2686 of 1991 and other analogous matters, which was disposed of under order dated 8.5.1996, Annexure-2 directing the State-respondents to ignore the break in officiation as also to grant the petitioner and others seniority with effect from their date of initial officiation. It is submitted that aforesaid direction of the Division Bench was in teeth of the judgment of the Constitution Bench in the case of Direct Recruit Class-II Engineering Officers’ Association Vs. The State of Maharashtra (supra), as thereunder the Court held that seniority with effect from the date of continuous officiation can be allowed only in those cases in which the service holder was allowed officiation on the higher post in accordance with the Rules after considering his seniority and officiated on the higher post uninterruptedly until regularization. In the instant case, petitioner and others were allowed officiation on the higher post without considering the seniority of other senior colleague of the petitioner who were never given option to come to the C.I.D., Crime Branch when petitioner and others were asked to officiate on the higher post of Sub-Inspector in the C.I.D., Crime Branch ignoring Police Order No. 204 of 1988 which was brought to the notice of the Division Bench, but not considered under order dated 8.5.1996, Annexure-2. The other seniors of the petitioner who were not allowed option to join the C.I.D., Crime Branch and officiate as Sub-Inspector of Police were not even impleaded as party in the writ petitions filed against the reversion order dated 30.3.1991, 2.4.1991 but the Division Bench instead of dismissing the writ petition for not impleading the seniors of the petitioner and other who were being affected because petitioner and others were allowed officiation on the higher post of Sub-Inspector in the C.I.D., Crime Branch ignoring the seniors, proceeded to direct that petitioner and others be granted seniority with effect from the date of their continuous officiation. Similar was the case of one Brij Bihari Prasad, which was considered by the Hon’ble Supreme Court in the case of State of Bihar and others Vs. Kameshwar Prasad Singh and another, reported in A.I.R. 2000 Supreme Court 2306 and the Hon’ble Supreme Court observed as follows: “It appears that the High Court totally lost sight of the fact that in his petitions filed from time to time Brij Bihari Prasad Singh had not impleaded any of his seniors as party-respondents. In the absence of persons likely to be affected by the relief prayed for, the writ petitions should have normally been dismissed unless there existed specific reasons for non-impleadment of the affected persons. In the absence of persons likely to be affected by the relief prayed for, the writ petitions should have normally been dismissed unless there existed specific reasons for non-impleadment of the affected persons. Neither any reason was assigned by the writ petitioner nor the Court felt it necessary to deal with this aspect of the matter. Ignoring such a basic principle of law has resulted in the supersession of 168 Inspectors and 407 Dy.SPs. The writ petition filed Brij Bihari Prasad Singh being totally misconceived, devoid of any legal force and prayers made being in contravention of the rules applicable in the case deserved dismissal, which was unfortunately not done with the result that the interests of many seniors have been threatened, endangered and adversely affected. The appeal of the Sate has, therefore, to be allowed by setting aside the impugned judgment.” 5. Having heard counsel for the parties and having perused the earlier order of this Court dated 8.5.1996, Annexure-2 and the order dated 25.6.1997, Annexure-3, whereunder petitioner was allowed seniority as Sub-Inspector of Police with effect from 16.2.1979, in my opinion, cannot be given effect to for considering his case for promotion on the post of Inspector and above, as seniority allowed to the petitioner in the light of the judgment of the High Court dated 8.5.1996, was passed without considering the case of the seniors of the petitioner who were never given option to join C.I.D., Crime Branch as also to officiate on the higher post in appreciation whereof reversion order dated 30.3.1991, 2.4.1991 was passed against the petitioner and others on the ground that they were allowed officiation as Sub-Inspector of Police in the C.I.D., Crime Branch without considering the seniority of their senior colleagues in teeth of Police Order No. 204/1988, which requires maintenance of the original seniority in the promoted grade. In the light of my discussions above reliance placed by the learned counsel for the petitioner on the judgment of the Constitution Bench in the case of Madan Mohan Pathak (supra) is wholly misplaced as in the said case right of Class-III, IV employees of the L.I.C. to receive annual bonus for the year 1st April, 1975 to 31st March, 1976 was not only statutory but also crystallized in the judgment of the High Court after hearing L.I.C. and others concerned. In the case in hand, the seniority of the petitioner and others who were transferred to the C.I.D., Crime Branch without giving option to the seniors to avail transfer in the C.I.D., Crime Branch was directed to be fixed by the High Court under judgment dated 8.5.1996, Annexure-2 ignoring Police Order No. 204/1988 without considering the case of the seniors as the seniors were never impleaded as party respondents in the said writ case, as such, judgment dated 8.5.1996, Annexure-2 cannot be acted upon to the detriment of the seniors. Accordingly, I do not find any merit in the writ petition, which is dismissed. ?