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Meghalaya High Court · body

2014 DIGILAW 190 (MEG)

Rajan K. v. Union Of India

2014-08-12

T.NANDAKUMAR SINGH

body2014
JUDGMENT : T. Nandakumar Singh, J. 1. By means of this writ petition, the petitioner prays for a direction to the respondents to consider his case for promotion to the post of Sub (CLK) w.e.f. the date his juniors i.e. respondents No. 7 and 8 had been promoted to the post of Sub (Clks) w.e.f. 01.01.2012 vide order dated 29.02.2012. 2. Heard Mr. HG Baruah, learned counsel for the petitioner and Mr. SC Shyam, learned Senior counsel, assisted by Mr. B Deb, learned counsel for the respondents No. 1 to 4. None appears for respondents No. 5 to 8 inspite of proper service of notice to them. 3. The petitioner was enrolled in Assam Rifles on 02.05.1987 as a Lnk/writer against the reserved vacancy of Scheduled Caste after proper verification of the Scheduled Caste certificate submitted by the petitioner. The petitioner also annexed a copy of duly filled-up casualty form-JCO, OR & NCsE dated 25.11.1987 issued by the competent authority of the Assam Rifles in the writ petition and it shows that the petitioner had been enrolled in the Assam Rifles against reserved vacancy of Scheduled Caste. The said casualty form-JCO, OR & NCsE dated 25.11.1987 is reproduced below : "ASSAM RIFLES SERVICE & CASUALTY FORM - JCO, OR & NCsE The entries made on this form must invariably agree with those recorded the Sheet Roll and/or Casualties published in Part II, Order of the Assam Rifles C/361495 Rank R_-___ Name Rajan K Trade Writer Med. Cat ............ H/Name - Pachali Tharai Casualties affecting the military history of personnel including important items mentioned above will be recorded with appropriate authority on the......" 4. Later on the petitioner was promoted to the rank of Nk/CLK w.e.f. 02.02.1994 in common roster of the seniority of gradation list against reserved vacancy of Scheduled Caste; and rank of NK/CLK was merged with the rank of Hav/CLK w.e.f. 10.10.1997. As on 23.03.2001, the petitioner had completed 7 years, 2 months and 22 days in the rank of Hav/CLK. 5. By an order dated 10.09.1999, promoted respondents No. 5 and 6 from the rank of Hav/CLK to the rank of WO/CLK w.e.f. 01.09.1999 against reserved vacancy of the Scheduled Caste. By an order being Rec (Adm-IV)/Promotion/208 dated 07.08.2006, the petitioner was promoted to the rank of Nb Sub (Clk) w.e.f. 29.04.2006 against reserved vacancy of Scheduled Caste. 5. By an order dated 10.09.1999, promoted respondents No. 5 and 6 from the rank of Hav/CLK to the rank of WO/CLK w.e.f. 01.09.1999 against reserved vacancy of the Scheduled Caste. By an order being Rec (Adm-IV)/Promotion/208 dated 07.08.2006, the petitioner was promoted to the rank of Nb Sub (Clk) w.e.f. 29.04.2006 against reserved vacancy of Scheduled Caste. A copy of the said order dated 07.08.2006 is available at Annexure V to the writ petition; and on perusal, it is clear that the petitioner had been shown as a member of the Scheduled Caste and his promotion was against reserved vacancy of Scheduled Caste. For easy reference, the relevant portions of the said order dated 07.08.2006 are quoted hereunder : "MAHANIDESHALAYA ASSAM RIFLES DIRECTORATE GENERAL ASSAM RIFLES SHILLONG-793011 ORDER Rec(Adm-IV) Promotion/208 Dated Shillong, the 07 Aug 2006 1. The following WO (Clk)/Hav (Clk) are hereby temporarily promoted to the rank of Nb Sub (Clk) with effect from date shown against each individual subject to fulfillment of discipline and medical criteria as mentioned in Appx 'A' to ROI 4/2002:- WO (Clk) to Nb Sub (Clk) 1. ........ 2. ........ 3. 360928 WO (Clk) Ranjit Singh Guleria- 16 AR- to be promoted wef 29 Apr 06 in situ. ......... 142. 361495 WO(Clk)- HQ DGAR- to be promoted wef 29 Apr 06 in situ. Rajan K (SC) (Med Branch) ......... 172. 361810 WO(Clk) - ARTS & S-to be promoted wef 29 Apr 06 in situ. Dev Raj (SC). 2. In case any of the above individual is involved in a disciplinary case or placed in low medical category and do not fulfill following discipline criteria, will not be promoted to the aforesaid rank and intimate to this effect will be given to this Directorate for cancellation of promotion order:- (a) An individual should not have more than a total of three red ink entries in the entire service, including not more than one red ink entry during last five years. (b) No red ink entry has been incurred during last one year. 3. Option to be exercised within one month from the date of assumption of duty by the individuals for fixation of pay in the new post either straightway from the date of assumption to the new post or from the date of their next increment in the old post vide GID (17), FR-22. 4. 3. Option to be exercised within one month from the date of assumption of duty by the individuals for fixation of pay in the new post either straightway from the date of assumption to the new post or from the date of their next increment in the old post vide GID (17), FR-22. 4. Personal occurrences relating to promotion be notified in BRO Part II order allowing them to pay and allowances from the date of assumption of duty. 5. The assumption certificate as per Appx K to ROI 4/2002 may please be furnished to this Directorate (Adm-IV) at the earliest. A copy of the same and option certificate as mentioned in Para 3 above may also be enclosed alongwith the BRO Part II (Doc Group) of this Directorate. 6. Since the latest information regarding discipline and medical criteria is not available in the documents, fmns/ests/units are requested to make a fresh check of these aspects, before implementing promotion orders in each case. In case any of the above mentioned individuals is found ineligible, Record Branch this Directorate shall be apprised by signal within 72 hours for further clarification. 7. Holding str of Nb Subs of a No of units/fmns will be more than the auth due to these bulk promotions. The str is being rationalized separately keeping service/sector profiles of the affected pers in view. Representation on this account be therefore, avoided. 8. Please acknowledge on receipt. (J.S. Guleria) Lt. Col SO-1(Adm & Docu) For DGAR" 6. The next higher promotional post of Nk Sub (CLK) is Subedar (CLK). It is not disputed by the parties that under relevant Recruitment Rules, Nb Sub (CLK) with 3 years regular service in the grade and Medical Category Shape-I is eligible for promotion to the post of Subedar (Clerks). The relevant portion of Recruitment Rules, 2006 for promotion to the post of Subedar (Clerks) are quoted hereunder : The petitioner on 29.04.2012 had completed 6 years of service in the rank of Nb Sub (CLK). The qualifying service for promotion under the Recruitment Rules, 2006 for the post of Sub (CLK) is only for 3 years. 7. It is the further case of the petitioner that respondent No. 7 i.e. JC-361810 Mr. Dev Raj and the respondent No. 8 i.e. JC-361836 Mr. Tara Ram were promoted to the post of Nb Sub (CLK) only on 01.01.2012. 7. It is the further case of the petitioner that respondent No. 7 i.e. JC-361810 Mr. Dev Raj and the respondent No. 8 i.e. JC-361836 Mr. Tara Ram were promoted to the post of Nb Sub (CLK) only on 01.01.2012. Therefore, the petitioner is senior to respondents No. 7 and 8 in the Grade of Nb Sub (CLK), inasmuch as, they were promoted to the post of Nb Sub (CLK) only on 01.01.2012 and the petitioner was promoted to the post of Nb Sub (CLK) w.e.f. 29.04.2006. 8. The Headquarters DGAR under WT Message dated 03.12.2009 requested the concerned Commandants to send Caste Certificate of the petitioner and others for verification as to whether they are members of the Scheduled Caste or not. In response to the said WT message dated 03.12.2009, the Commandant 6th Assam Rifles under his letter dated 08.12.2009 forwarded the Scheduled Caste Certificate in original as well as attested copies of the certificates of the petitioner to the Director General Assam Rifles for verification. The Director General Assam Rifles verified the Scheduled Caste certificate of the petitioner forwarded by the Commandant under said letter dated 08.12.2009 and issued the order that the Scheduled Caste certificate of the petitioner had been duly verified vide order of the DGAR dated 26.09.2009, a copy of which is available at Annexure IV to the writ petition which is reproduced hereunder : "Extract of part two Order ser 53 Unit : HQ Mizoram Range Assam Rifles Station: Field Present Part Two Order Ser 53 dt. 26 Sep 2000 Sheet No: 7(Seven) Typed by No. 355061 W Hav/Ciph Checked no 360655pJayachandran G R Das By S/D M.S. Yadav Asst Comdt Camp Comdt For Ex-Officio-Comdt" 9. It is stated that after the Scheduled Caste certificates of the petitioner had been duly verified by the DGAR, the DGAR under WT Message dated 16.11.2011 again requested the concerned Commandant for submission of the Scheduled Caste Certificate of the petitioner and others. In response to the said WT Message dated 16.11.2011 of the DGAR, the Commandant 6th Assam Rifles under letter dated 21.11.2011 informed the DGAR that the Scheduled Caste Certificate of the petitioner had already been verified and that such verification had been intimated to the Commandant by an earlier letter of the DGAR dated 21.05.2010. In response to the said WT Message dated 16.11.2011 of the DGAR, the Commandant 6th Assam Rifles under letter dated 21.11.2011 informed the DGAR that the Scheduled Caste Certificate of the petitioner had already been verified and that such verification had been intimated to the Commandant by an earlier letter of the DGAR dated 21.05.2010. For easy reference, said letter of Deputy Commandant of 6th Assam Rifles dated 21.05.2010 is quoted hereunder : "REGISTERED Mahanideshalaya Assam Rifles Directorate General Assam Rifles, Shillong 793011 No. REC/463/2010/Adm-II/325 6th Assam Rifles Pin No. 932006 dated 21.05.2010 Co 99 APO CASTE CERT : RETURNING OF 1. Ref you letter No. 6033/A/2009/188 dated 8.12.09 2. Caste cert in r/o following pers of your HQ/Fmn/Unit recd vide your letter under ref is/are returned herewith duly verified :- (a) JC-361495 Nb/Sub (ClK) K Rajan (SC) (b) (c) (d) (e) 3. Please pub necy cas on the subject if not pub earlier, and fwd copy of BRO-II along with attested copy of caste cert to this Dte (Doc Group) for making entry/retention in the Sheet Roll. Sd/ For DGAR" 10. It is categorically stated in the writ petition that because of the lapses on the part of the authority to submit Scheduled Caste Certificate of the petitioner and also failure on the part of the authority to properly verify the Scheduled Caste Certificate submitted by the petitioner, the petitioner was not considered for promotion to the post of Subedar (CLK) against the reserved vacancy of Scheduled Caste but his juniors including respondents No. 7 and 8 had been considered for promotion to the post of Subedar (CLK). As a result of the non consideration of the petitioner for promotion to the post of Subedar (CLK) in the reserved vacancy of Scheduled Caste, the name of the petitioner was not included in the order dated 29.02.2012 for promotion to the post of Subedar (CLK). It is not disputed that respondents No. 7 and 8 who are admittedly juniors to the petitioner in the rank of Nb Sub (CLK) had been promoted to the post of Subedar (CLK) under the said order dated 29.02.2012. Being aggrieved by non consideration of the case of the petitioner for promotion to the post of Subedar (CLK) in the reserved vacancy of Scheduled Caste candidate, the petitioner had approached this Court by filing the present writ petition. 11. Being aggrieved by non consideration of the case of the petitioner for promotion to the post of Subedar (CLK) in the reserved vacancy of Scheduled Caste candidate, the petitioner had approached this Court by filing the present writ petition. 11. The respondents filed affidavit-in-opposition, and the main case of the respondents is that the petitioner was enrolled in the Assam Rifles as General candidate and therefore, the petitioner could not be considered for promotion to the post of Subedar (CLK) in the reserved vacancy of Scheduled Caste. As stated above, the petitioner was enrolled in the Assam Rifles in the reserved category of the Scheduled Caste, in as much as, the said casualty form as quoted above clearly shows that the petitioner had been enrolled in the Assam Rifles in the reserved vacancy of Scheduled Caste. Over and above, the promotion order dated 07.08.2006, clearly shows that the petitioner had been promoted to the rank of Nb Sub (CLK) in the reserved category of Scheduled Caste. In this situation, this Court is not accepting the case of the respondents in the affidavit-in-opposition that the petitioner had been enrolled as General Candidate in the Assam Rifles. The other correspondences clearly show that the petitioner had been treated as a member of Scheduled Caste by the respondents and the Commandant of 6th Assam Rifles, and in the earlier instances, the petitioner had been requested to produce the Caste certificate for verification. The Commandant of the 6th Assam Rifles submitted the Scheduled Caste Certificates of the petitioner to the DGAR for verification and the DGAR, after proper verification of the Caste certificates of the petitioner, had informed the Commandant of the 6th Assam Rifles that Caste certificates of the petitioner had been properly verified by the DGAR. 12. It is the case of the petitioner in the writ petition that he had not been considered for promotion to the post of Subedar (CLK) against reserved vacancy of Scheduled Caste because of the lapses on the part of the authorities and there was no lapses on the part of the petitioner. The petitioner further stated in the writ petition that his juniors had been considered for promotion to the post of Subedar (CLK) while his case has been left out. 13. Mr. The petitioner further stated in the writ petition that his juniors had been considered for promotion to the post of Subedar (CLK) while his case has been left out. 13. Mr. HG Baruah, learned counsel appearing for the petitioner strenuously contended that the right to be considered for promotion is a fundamental right provided the concerned employee is eligible for promotion under the relevant Recruitment Rules. In the instant case, the petitioner is admittedly eligible for promotion to the post of Subedar (CLK) under the relevant Recruitment Rules and his case was not considered for promotion for the lapses on the part of the concerned authorities. Learned counsel for the petitioner further contended that the case of the petitioner should be considered for promotion to the post of higher post w.e.f. the date his juniors had been promoted. Learned counsel for the petitioner by referring to the said promotion order of the juniors i.e. respondents No. 7 and 8 dated 29.02.2012 contended that his juniors i.e. respondents No. 7 and 8 had been promoted to the posts of Subedar (CLK) w.e.f. 01.01.2012. Therefore, it is the case of the petitioner that the petitioner should have been promoted to the post of Subedar (CLK) w.e.f. 01.01.2012. 14. Learned counsel for the petitioner, in support of his submission, referred to the decision of the Apex Court in R.K. Sethi and another Vs. Oil and Natural Gas Commission and others, AIR 1997 SC 899 and in Union of India (UOI) and Another Vs. Hemraj Singh Chauhan and Others, AIR 2010 SC 1682 . Para 12 of the SCC in RK Sethi's case (supra) reads as follows : "12. Once it is held that Telex Operators have been rightly placed en bloc below regular employees in AG -II cadre as a result of the merger of the said cadre in the cadre of AG-II on 25-4-1980, regular employees in AG -II cadre who were senior to the Telex Operators could rightly feel aggrieved if they were denied promotion while their juniors were promoted as AG-I. The "next below rule" in service jurisprudence seeks to ensure that if a junior employee is given promotion without considering his senior then the senior employee can claim the right to be considered for such promotion with effect from the date on which the junior was so promoted. The action of the Commission in extending the benefit of promotion to regular employees in AG-II cadre as AG-I with effect from the date the Telex Operators were so promoted on account of the 12 years' Policy, being in consonance with this principle, cannot, therefore, be held to be arbitrary or unreasonable. So also the further promotion from AG-I to the post of Superintendent (P & A) under the 18 years' Policy. We are unable to endorse the view of the High Court that since regular employees in AG-II cadre did not fulfill the criteria laid down in those policies, they could not be extended the benefit of the said policies. The High Court has failed to note that when it was found that certain senior employees were left out of consideration for promotion because they did not fulfill the conditions regarding 18 years' service contained in the Office Memorandum dated 27-5-1982, the Commission modified the policy contained in the said Office Memorandum by issuing Office Memorandum dated 3-2-1983 whereby it was decided that such senior employees would be considered for promotion and, if found suitable, senior employees would be promoted with effect from 1-4-1982. In view of the said modification in the 18 years' Policy it cannot be said that regular employees in AG-II cadre could not be considered for promotion since they did not fulfill the criterion of 18 years' service". Para 36 of the SCC in Union of India's case (supra) reads as follows : " 36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution." 15. For the foregoing discussions, this Court is of the considered view that the petitioner could make out a good case for granting the relief sought for in the present writ petition. The guarantee of a fair consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution." 15. For the foregoing discussions, this Court is of the considered view that the petitioner could make out a good case for granting the relief sought for in the present writ petition. Accordingly, this writ petition is disposed of by directing the respondent No. 2 i.e. Director General of Assam Rifles to consider the case of the petitioner for promotion to the post of Subedar (CLK) in the reserved category of Scheduled Caste w.e.f. the date his juniors i.e. respondents No. 7 and 8 promoted to the rank of Subedar (CLK) w.e.f. 01.01.2012 within a period of four months from the date of receipt certified copy of this judgment and order. 16. The writ petition is allowed to the extent indicated above.