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2014 DIGILAW 293 (JHR)

Devendra Thakur v. State of Jharkhand

2014-02-24

APARESH KUMAR SINGH

body2014
ORDER Heard counsel for the parties. 2. The petitioner, in the present writ application is once again seeking direction upon the respondents to consider his case for promotion from the post of Sub Inspector of Police to the post of Inspector of Police w.e.f. 27.2.2003 alleging that his juniors have been promoted as such. The petitioner had earlier preferred writ petition being W.P.S. No. 3898 of 2004 for consideration of his claim for promotion to the post of Inspector in the Photo Bureau of C.I.D, Jharkhand. The said writ petition was decided on 25.2.2010 which is annexed as Annexure-1 to the writ application, relevant extract of the said judgment which have dealt with the petitioner's contention and there upon certain directions issued are evidenced herein below:- “3. From the rival submissions, two significant aspects do emerge. Firstly, the petitioner's original appointment was in the general police category and he was later shifted to the Photo Bureau of the CID, Ranchi. He had attained the status of Sub Inspector of Police in the Photo Bureau. His case along with other officers of the rank of Inspector was considered by the Screening Committee and he was found fit for promotion, but the only ground on which his promotion to the post of Inspector was refused, is that in the Photo Bureau of the CID branch, there is no post of Inspector. If this was so, then the petitioner ought to have been given an option to withdraw himself from the Photo Bureau of the CID and to join the general branch of the police alternatively. Alternatively, instead of allowing him to stagnate in the post of S.I. Police while other officers of the same rank have been allowed promotional benefits, the concerned authorities of the respondents could have ensured that the benefits of the higher pay scales by way of selection grade scales is given to the petitioner. The other aspect which appears is that though, having recognized the fact that the petitioner had put in more than 30 years of service prior to the date of his retirement and his name was forwarded to the Screening committee for considering the grant of benefits of the 3rd ACP, but even this has not been done only on the ground that his ACRs for two years were not readily available. This is a ridiculous excuse which appears to have been taken only to deny the petitioner the benefit which he may have legitimately earned. 4. Considering the above facts and circumstance, this application is disposed of with a direction to the concerned authorities of the respondents to consider the petitioner's case and his claim for grant of monetary benefits of the higher scales applicable to the selection grade / Senior Experts, from the date when he was found fit by Screening Committee for his promotion to the post of Inspector. Alternatively, the respondents shall consider the petitioner's case for grant of the 3rd ACP to him, as per the Rules applicable. The decision in terms of the direction contained herein-above, shall be taken by the concerned authorities of the respondents within a period of three months from the date of receipt / production of a copy of this order. With these observations, this writ application is disposed of. Let a copy of this order be given to the counsel for the respondent State”. 3. Apparently after consideration of the facts and circumstances, the said writ petition was disposed of with a direction to the concerned authority to consider the petitioner's case and his claim for grant of monetary benefits of the higher scale applicable to the selection grade/ senior expert from the date he was found fit by the Screening Committee for his promotion to the post of Inspector. Alternatively, the respondents were directed to consider the petitioner's case for grant of third A.C.P. as per the rules applicable. The petitioner, thereafter pursued contempt petition being Cont.(Civil) No. 112 of 2011 which was however disposed of with finding that no willful disobedience of the order passed in the writ petition have been committed by the concerned opposite parties. Para 2 to 5 of the said order is quoted herein below:- “2. Learned counsel for the respondent-State submitted that a detailed counter affidavit has been filed and looking to the paragraph no. 7 as well as paragraph no.15 thereof, there is due compliance of the order passed by this Court. Moreover, the contention, made in the counter affidavit, is also supported by the documentary evidence, which are at Annexure A, B and C to the counter affidavit. 3. 7 as well as paragraph no.15 thereof, there is due compliance of the order passed by this Court. Moreover, the contention, made in the counter affidavit, is also supported by the documentary evidence, which are at Annexure A, B and C to the counter affidavit. 3. Though a copy of the counter affidavit, filed by the respondents, has already been served upon the learned counsel for the petitioner in the month of March, 2011, no rejoinder to the same has been filed by the petitioner controverting the facts, stated in the counter affidavit. 4. In view of the aforesaid submission and looking to the order, passed by this Court and the statements, made in paragraph no.7 onwards of the counter affidavit and also looking to Annexure A, B and C of the counter affidavit, it appears that legally payable amount has already been calculated by the respondents towards the revised pay scale on account of the benefit given to the petitioner under Modified Assured Career Progression Scheme and to this effect order has also been passed. 5. In view of the aforesaid facts, there is no willful disobedience committed by the respondents of the order, passed by this Court in W.P.(S) No. 3898 of 2004. This contempt petition is, accordingly, disposed of”. 4. The petitioner, in the instant case has once again sought direction upon the respondents to give him promotion to the post of Inspector w.e.f. 27.2.2003. These facts were considered in the earlier writ petition and it was found on the stand of the respondents that there was no post of Inspector in Photo Bureau of C.I.D branch and in such circumstance, directions were issued which are referred to in para 4 of the judgment passed in the earlier writ petition extracted herein above. 5. The respondents in the present writ application by way of counter affidavit have once again reiterated the same stand. It is once again stated that the petitioner voluntarily opted for his change of cadre in Photo Bureau of the C.I.D and thereafter he underwent training in photography, where after he was promoted to the post of A.S.I. by the Screening Committee vide memo no. 6254 dated 27.11.1976. This promotion was extended only to the person in the Photo Bureau of C.I.D which is a closed cadre. 6254 dated 27.11.1976. This promotion was extended only to the person in the Photo Bureau of C.I.D which is a closed cadre. The said memo of 1976 clearly indicates that if the petitioner chooses to join General Police Cadre then the said promotional benefits will not be admissible to him. The petitioner was again promoted to the post of S.I. in the Photo unit of CID vide memo dated 19.3.1979. The services of the petitioner was confirmed in the Photo Bureau vide order no. 1222/2002 issued by the Office of C.I.D. In such circumstance, it has been stated that the claim of the petitioner for promotion, as applicable to the General Police Cadre is not applicable to him. Once again they have stated that the Screening Committee has wrongly recommended the name of the petitioner for promotion to the post of Inspector at par with the General Police Cadre. As a matter of fact there was no post of Inspector in the Photo Unit of C.I.D. Accordingly, claim of the petitioner was rejected and communicated to him on 6.9.2004. 6. In the aforesaid background the respondents have also stated that after rejection of his claim for promotion to the post of Inspector the petitioner has been granted third A.C.P. vide order dated 10.5.2010 in the scale of Rs. 933-34,800, Grade Pay 4600 w.e.f. 1.9.2008. The petitioner has also been granted the revision in his pension pursuant to such grant of third A.C.P. by issuing letters to the Accountant General, Jharkhand and difference of salary on such grant of third A.C.P. has been deposited in the bank account of the petitioner. Petitioner has retired from service on 30.4.2009 itself. 7. Petitioner in their rejoinder have further contested the claim of the respondents so far as the question of promotion of the petitioner to the post of Inspector / Senior Expert by relying upon the Rule 422(2) (kha) of the Bihar Police Manual. Learned counsel for the petitioner has referred to the minutes of the selection committee meeting held on 26.11.2002 annexed as Annexure-5 to submit that cases of certain persons were considered and given promotion but the petitioner was not granted such promotion despite the fact that said persons were not found fit. 8. Learned counsel for the petitioner has referred to the minutes of the selection committee meeting held on 26.11.2002 annexed as Annexure-5 to submit that cases of certain persons were considered and given promotion but the petitioner was not granted such promotion despite the fact that said persons were not found fit. 8. However, the aforesaid document is of the year 2002 and the petitioner had also brought it to the notice of this Court in the earlier writ petition as is evidenced from para 1 of the judgment dated 25.2.2010 passed in the said case. In any case the claim of the petitioner for grant of promotion was also rejected in the year 2004 and communicated to him which are also enclosed being memo dated 31.8.2004 and 6.9.2004 which the petitioner also seeks to impugn. The petitioner, however cannot be allowed to impugn the orders of 2004 at this stage, to unsettle things, which has attained finality and petitioner has also retired in 2009. In the matter for claim of promotion the concerned employee should be vigilant to raise his grievance within a reasonable time as has been held in the judgment rendered by the Hon'ble Supreme Court in the case of State of Uttaranchal and another Vrs. Sri Shiv Charan Singh Bhandari and others reported in JT 2013(12) SC 269, para 21 and 22 of the said judgment is reproduced herein below for better appreciation of the case:- Para 21. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivasway V. State of Tamil Nadu [(1975)1SCC 152], wherein it has been laid down that a person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 not is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time, but it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. Para 22. We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled. There may not be unsettlement of the settled position but, a pregnant one, the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Any one who sleeps over his right is bound to suffer. As we perceive neither the tribunal nor the High Court has appreciated these aspects in proper perspective and proceeded on the base that a junior was promoted and, therefore, the seniors cannot be denied the promotion. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the tribunal and accepted by the High Court. True it is notional promotional benefits have been granted but the same is likely to affect the State exchequer regard being had to the fixation of pay and the pension. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadgi. But equality has to be claimed at the right juncture and not after expiry of two decades. These aspects have not been taken into consideration. What is urged before us by the learned counsel for the respondents is that they should have been equally treated with Madhav Singh Tadgi. But equality has to be claimed at the right juncture and not after expiry of two decades. Not for nothing, it has been said that everything may stop but not the time, for all are in a way slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time”. 9. It, therefore, appears that the petitioner is not entitled to further relief in the matter after his last writ petition was disposed of with certain direction upon which benefit of third A.C.P. has been granted to him. 10. Therefore, the writ petition being devoid of merit is accordingly, dismissed.