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2013 DIGILAW 1141 (MP)

Amarnath Singh v. State of M. P.

2013-09-19

K.K.TRIVEDI

body2013
Judgment: K.K. Trivedi, J. 1. This petition was initially filed as Original Application before the M.P. Administrative Tribunal Bench at Bhopal, challenging the action of the respondents in promoting respondents No. 4 and 5 on the post of Assistant Sub Inspector (Radio), superseding the claim of the petitioner, who was said to be senior to these two respondents on the post of Head Constable (Radio). It was contended that while preparing a fit list, the selection Committee did not consider the case of the petitioner in appropriate manner and superseded him in the matter of bringing his name in the fit list. Out of the said fit list in which the juniors to the petitioner were named and included, promotion order was issued on 28-10-2002. The petitioner made a representation before the respondents, but since the same was not being considered, he approached the Tribunal. During pendency of the Original Application, since the Tribunal was closed, the petition has been transmitted to this Court and is registered as writ petition. By filing a return before this Court, the respondents have contended that the petitioner was considered strictly in order of GOP issued in this respect and since in terms of the provisions made in the GOP, the petitioner was visited with two major penalties in the past services, he was not found fit for promotion. The list of such persons who were found fit for bringing their names in the fit list was prepared, and since there were vacancies, orders of promotion were issued in their respect. It is contended that since the Committee has properly considered the case of the petitioner, there is no scope of judicial review available and the petition as filed by the petitioner is liable to be dismissed. 2. By filing a rejoinder, all such allegations made by the respondents are refuted and it is contended that in view of the subsequent GOPs issued it was categorically provided that reduction in pay for a particular period and treating any period of absence as leave without pay is a minor penalty and cannot be treated as a major penalty. Thus, it is contended that in view of these instructions, in fact the case of the petitioner was to be considered in appropriate manner and such a benefit of promotion was required to be extended to the petitioner. Thus, it is contended that in view of these instructions, in fact the case of the petitioner was to be considered in appropriate manner and such a benefit of promotion was required to be extended to the petitioner. Thus, it is contended that the petitioner would be entitled to the reliefs claimed in the petition. No additional return to such a rejoinder of the petition has been filed by the respondents. 3. Heard learned counsel for the parties at length and perused the record. 4. First of all, this is to be seen whether the GOP relied by the respondents has any force of law or not. The GOPs are issued in exercise of powers conferred under the Indian Police Act. The only requirement is that nothing contrary to the provisions of the Rules made by the State Government could be provided by the GOP. The M.P. Police Regulations (hereinafter referred to as the Police Regulations for brevity) prescribes the channel of promotions, but how the promotion is to be considered and what should be the specific criteria, is not prescribed in the Police Regulations and, therefore, the GOPs can be issued in that respect. The GOP No. 98/2001 issued on 31-12-2001 has been relied by the respondents. This GOP was made applicable on the date of Departmental Promotion Committee (hereinafter referred to as the DPC for brevity) i.e. on 25-10-2002. The GOP is specifically made for promotion on the post of Assistant Sub Inspector (Radio - operator). It is prescribed that all these posts are to be filled in by promotion only. The eligibility conditions prescribed are, three years of service on 1st of January of the year in which the DPC is convened. The other criteria is that in the entire service an incumbent should not have visited with two major punishment, and for the last three years immediately the date of consideration, there should not be any major punishment. The last criteria is that in the last three years more reward should have been earned than the minor punishment. The procedure is also prescribed in the said GOP. The last criteria is that in the last three years more reward should have been earned than the minor punishment. The procedure is also prescribed in the said GOP. In the last of the procedure, it is specifically provided that if a Head Constable is imposed a punishment after a departmental enquiry and his increment of pay is withheld, the same is to be treated as a minor punishment and after the effect of the penalty is over, the name of such a Head Constable can be brought in the fit list and he will be granted promotion prospectively and the seniority, only from the date of joining on promotional post. This makes it clear that the withholding of increment is a minor punishment. 5. It is the contention of the respondents that the petitioner was absent from service and, therefore, his pay was reduced by two rupees per month for a period of one year and the period of absence was regularised as leave without pay way back in the year 1976. The petitioner was reverted in the year 1992 from the post of Head Constable, Radio operator, for a period of one year and this has to be treated as a major punishment. However, the reduction of the pay cannot be a greater punishment than the punishment of withholding of increments of pay nor the period of absence which was subsequently regularised as leave without pay, could be treated as a major punishment. Thus, there was only one major punishment imposed on the petitioner that too in the year 1992 when he was reverted from the post of Head Constable. The other penalty of the year 1976 could not have been treated as a major punishment. The master chart produced by the respondents along with their return indicates that the information with respect to petitioner was given along with the list of other persons and while mentioning the name of petitioner at Serial No. 22, it was categorically recorded that as on 1-1-2001, the petitioner has completed 30 years of service as Head Constable, he has passed the Basic Training Examination has also obtained the BRO training of 9 months. However, erroneously it was said that the petitioner was imposed two major punishments. However, erroneously it was said that the petitioner was imposed two major punishments. There were no major punishment thereafter as with respect to that particular entry made in the relevant column where it was to be mentioned that whether in the past three years any major punishment was imposed, the categorical entry was made as Nil. Only two minor punishments were given in the last three years and the petitioner was given 16 rewards. From this, it is clear that but for the information with respect to the major punishment in the entire service, there was no other impediment of refusing promotion to the petitioner. Had it rightly been considered, in terms of the GOP itself, the name of the petitioner would have been put in the fit list and he would have been promoted immediately as per the vacancies available. 6. From the aforesaid analysis, it is clear that the petitioner was denied promotion only because of wrong consideration of the fact that there were two major punishments in the entire service of the petitioner which according to the GOP of the respondents itself, was incorrect. Out of two penalties, only one was to be treated as major penalty and the other one was to be treated as a minor penalty. This being so, non-inclusion of the name of the petitioner in the fit list was not just and proper. Now the fact remains that the petitioner was 54 years of age in the year 2003 and by now would have attained the age of superannuation. The petitioner was not given any benefit of promotion in his service career because of improper action taken by the respondents. That being so, it would be just and proper to direct the respondents to review the claim of petitioner for bringing his name in the fit list of the year 2001, strictly keeping in view the findings recorded hereinabove, and to grant him promotion on the post of Assistant Sub Inspector (Radio) from the date the same was made available to the respondents No. 4 and 5 i.e. with effect from 28-10-2002, with all consequential benefits of such promotion. Let the aforesaid exercise be completed within a period of three months from the date of receipt of copy of the order passed today. Let the aforesaid exercise be completed within a period of three months from the date of receipt of copy of the order passed today. Needless to say, the petitioner would be entitled to get the benefit of revised pension after his promotion as directed hereinabove. The petition is allowed to the extent indicated hereinabove. There shall be no order as to costs.