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2013 DIGILAW 702 (MP)

Tulsidas Patel v. State of M. P.

2013-06-25

K.K.TRIVEDI

body2013
JUDGMENT : K.K. Trivedi. J.:- The controversy involved in the present petition is relating to cancellation of promotion of the petitioner on the post of Head Constable (Excise) as granted in the year 1986and the subsequent promotion on the post of Sub-Inspector (Excise) granted in the year 2000, by the impugned order dated 20.7.2006 said to be passed by the respondent No.2.The grievance put forth by the petitioner in short is that he was appointed as a Constable in the year 1979 in the Excise Department. He has served honestly and sincerely and considering the candidature of the petitioner, vide order dated 9.9.1986, the petitioner was promoted on the post of Head Constable (Excise). The petitioner joined on the promotional post and started working. Since the posting on promotion was made at Panna, the joining was accepted at Panna. Later on, in the year 1987, again the petitioner was transferred back to Jabalpur. The petitioner belongs to the other Backward Class category and in that category his claim was considered for promotion in the year 2000 and since he was found fit for such promotion, by order dated22.9.2000, the petitioner was promoted as Sub Inspector (Excise). While the petitioner gave joining on the said post one of the General Category candidate, namely, Shri Gyanendra Prasad Tiwari, filed an Original Application before the M.P. Administrative Tribunal beingO.A.No.5261/2002, challenging the promotion of the petitioner on the post of Head Constable (Excise). The said Original Application came on transfer to this Court after closure of the Tribunal and was registered as Writ PetitionNo.21946/2003. This Court dismissed the said writ petition on the ground of delay and laches, but made an observation that the departmental authorities will look into the representation of said Shri Gyanendra Prasad Tiwari and will decide the same in accordance to law and communicate the decision to him. 2. Pursuance to the said order, a show cause notice was issued to the petitioner on 24.3.2006 intimating that after enquiry and examining the record, it was found that the petitioner was promoted on the post of Head Constable (Excise) against the quota of Scheduled Tribe category whereas, the petitioner belongs to Other Backward Class category, which was not granted any reservation till the year 1986 and the petitioner was to be treated as a General category candidate. It was communicated to the petitioner that since his promotion on the post of Head Constable (Excise) was illegal, his subsequent promotion on the post of Sub-Inspector (Excise) was also bad and, therefore, he was called upon to explain as to why such order should not be cancelled. The petitioner filed his response to the show cause notice, but by the impugned order dated 20.7.2006 since the orders of promotion of the petitioner have been cancelled, he has been reverted to the post of Constable, the petitioner has filed the present writ petition. While entertaining this writ petition, an interim stay has been granted and the petitioner has worked on the post of Sub-Inspector (Excise) and has now attained the age of superannuation and has retired. 3. By filing the return, it is contended that the name of the petitioner was included in the list of candidates belonging to the Scheduled Caste community and this is how he was promoted on the post of Head Constable (Excise) as back as in the year 1986. A declaration was made that in terms of the consideration for promotion, the order of promotion was issued strictly following the provisions of the reservation. It is further contended that when the representation of said Shri Gyanendra Prasad Tiwari was received, a probe was made and it was found that the petitioner in fact belongs to 'Kachhi' community which is treated to be the Other Backward Class and not a reserved category in Scheduled Caste or Scheduled Tribe.It was further found that since no reservation was made for the Other Backward Class till the year 1986, the petitioner was not to be given any promotion under the reserved category. He at the best could have been treated as a General category candidate and could have been promoted in his turn. It was found that certain seniors to the petitioner in General category were left out and this is how it was held that the promotion of the petitioner as Head Constable (Excise) was bad in law. Consequently, it was further held that the petitioner could not have been promoted on the post of Sub-Inspector (Excise) and that being so, the order has rightly been issued by the respondents. Consequently, it was further held that the petitioner could not have been promoted on the post of Sub-Inspector (Excise) and that being so, the order has rightly been issued by the respondents. It is further contended that said Shri Gyanendra Prasad Tiwari has been informed by the order dated 29.7.2006 that he could not be given promotion since no juniors to him have been promoted superseding the claim of the said person and junior like petitioner has already been reverted. It is stated that the petition being wholly misconceived deserves to be dismissed. 4. A rejoinder has been filed by the petitioner, but the material facts have already been stated in the writ petition, therefore, it would not be necessary for this Court to refer to the pleadings made in the rejoinder. Suffice it to say, nothing has been placed on record by the respondents to indicate that the Departmental Promotion Committee considered the cases of reserved category candidates only in the year 1986 for promotion on the post of Head Constable (Excise). 5. Heard learned counsel for the parties at length and perused the record. 6. Undisputedly, there was no complaint made against the petitioner that he has misrepresented the facts before the respondents authorities that he was belonging to any reserved category for which any special drive of promotion on the post of Head Constable (Excise) was initiated. The order dated 9.9.1986 issued in respect of petitioner indicates that he was considered and promoted simply on the post of Head Constable (Excise) and it was nowhere said that the petitioner was promoted against a post which was reserved for the particular category. In absence of such specific pleading in the return or production of documents, it cannot be said that the petitioner has made any misrepresentation or that by error his claim was considered against the vacancy of the reserved category candidates. The document placed on record as Annx.R/1with the return indicates nothing except that some promotion proceedings were done in the year 1986 for filling the vacancies available for the year 1984-1986 on the post of Head Constable (Excise). If any special drive for promotion of reserved category candidate was under taken by the respondents, it should have been specifically mentioned. The document placed on record as Annx.R/1with the return indicates nothing except that some promotion proceedings were done in the year 1986 for filling the vacancies available for the year 1984-1986 on the post of Head Constable (Excise). If any special drive for promotion of reserved category candidate was under taken by the respondents, it should have been specifically mentioned. If there was Departmental Promotion Committee held for the purposes of filling the backlog of vacancies of reserved category candidates only, again it was required to be specifically pleaded and the relevant documents should have been produced before this Court for perusal, as this was the sole allegation made by the respondents while cancelling the promotion order of the petitioner on the post of Head Constable (Excise). In absence of any such pleadings and documentary evidence, such a stand taken by the respondents cannot be accepted at all. 7. However, if the petitioner was promoted erroneously against a reserved category post, this fact should have been verified immediately, but nothing was done for a good14 years even when the posts were made available for promotion on the post of Sub Inspector (Excise). Treating the seniority of petitioner on the post of Head Constable (Excise), his claim was considered and he was promoted on the said post. At that time also, no probe was made by the respondents whether the petitioner was rightly promoted on the post of Head Constable or not. Even if any representation was made by said Shri Gyanendra Prasad Tiwari in the year 1997, this should have been verified at that time and at least some action could have been taken and if necessary, the case of the petitioner could have been deferred for consideration for promotion on the post of Sub Inspector (Excise). On the lapses on the part of respondents, after putting in entire services, the petitioner6cannot be denied benefit of promotion. This is being held because this Court has already held while dismissing the writ petition filed by Shri Gyanendra Prasad Tiwari that such writ petition was hit by delay and laches hopelessly as the promotion order of the year 1986 was said to be challenged only in the year 2000. 8. Now another aspect is required to be examined. The petitioner has worked though under the interim order of this Court on the post and has attained the age of superannuation on 31.8.2012. 8. Now another aspect is required to be examined. The petitioner has worked though under the interim order of this Court on the post and has attained the age of superannuation on 31.8.2012. It will not be proper now to say that promotion would not be granted to the petitioner on the post of Head Constable (Excise) and on the post of Sub-Inspector (Excise). In these circumstances, the respondents are liable to be commanded to treat the post on which the petitioner was promoted in the year 1986 as a post in the General category and to regularise the promotion of the petitioner as Head Constable (Excise) on the said post. The order impugned cannot be sustained in view of the aforesaid findings. 9. Resultantly, the writ petition is allowed. The order dated 20.7.2006 is hereby quashed. Let the period of services of the petitioner be regularised within two months from today and all the benefits of service be extended to him including the pensionary benefits within the aforesaid period. 10 : The writ petition stands allowed to the extent indicated herein above. There shall be no order as to costs.