Director General-cum-Inspector General Of Police v. Kartikeswar Jena
2016-12-01
SANJU PANDA, SUJIT NARAYAN PRASAD
body2016
DigiLaw.ai
JUDGMENT : S. N. Prasad, J. The order dated 15.2.1999 passed by the Orissa Administrative Tribunal, Bhubaneswar in Original Application No.990 of 1988 has been assailed by the Director General of Police, State of Orissa, whereby and whereunder the learned Tribunal has allowed the Original Application and directed the authorities to extend the benefit of promotion to opposite party no.1 to the rank of Inspector holding the reversion as illegal. 2. The fact of the case in brief is that the opp.party no.1 entered into the Govt. Service as Sub-Inspector of Police in the year 1964. In the year 1986 recommendations were called for from the Superintendents of Police of the respective districts for promotion to the rank of Inspector. The opposite party no.3 has been nominated for promotion to the rank of Inspector and during pendency of the final decision to be taken by the Departmental Promotion Committee, opposite party no.1 has been allowed to officiate in the rank of Inspector purely on ad hoc basis with immediate effect subject to condition that he will be reverted to the rank of Sub-Inspector of Police at any time without issuing any notice or assigning any reasons thereof.
The case of opposite party no.1 has been considered for promotion to the rank of Inspector by the Central Selection Board, but he was not found fit to get promotion to the rank of Inspector and accordingly, his case has been rejected and in consequence he was directed to discharge his duties as Sub-Inspector of Police to which opp.party no.1 has challenged before the Orissa Administrative Tribunal, Bhubaneswar on the ground that before asking the opposite party no.1 to discharge his duties as Sub-Inspector of Police, the process under Article 311(2) of the Constitution of India has not been followed, this plea of opposite party no.1 has been accepted by the Tribunal, the order of restoring back the service of the opposite party no.1 as Sub-Inspector of Police has been recalled, he has been directed to discharge his duties as Inspector, which is under challenge in this writ application by the Director General-cum-Inspector General, State of Odisha on the ground that there is no question of reversion of the opposite party no.1 from the rank of Inspector to the rank of Sub-Inspector since opposite party no.1 has never been granted regular promotion of Inspector as would be evident from the order dated 24.4.1987 (Annexure-3) by which it is found that he was directed to discharge his duties as officiating Inspector and when he was found fit by the duly constituted Selection Committee, he was asked to discharge his duties in his substantive post and as such, there is no question of following the principle as laid down under Article 311(2) of the Constitution of India since it is not a punishment. 3. None appears for opposite party no.1. We have heard the learned counsel for the State and perused the documents available on record. 4. It is settled that ‘promotion’ means to advance to a higher position, grade or honour. It not only covers advancement to higher position or rank but also implies advancement to a higher grade. It is also settled that no one has a right to ask for or stick to a current duty charge. (See: State of Rajasthan Vs. Fateh Chand Soni, 1996(1) SCC 562 ) 5.
It not only covers advancement to higher position or rank but also implies advancement to a higher grade. It is also settled that no one has a right to ask for or stick to a current duty charge. (See: State of Rajasthan Vs. Fateh Chand Soni, 1996(1) SCC 562 ) 5. The Hon’ble Apex Court in Ramakant Shripad Sinai Advalpalkar v. Union of India and others, 1991 Supp(2) SCC 733 has held as follows : “……… Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post; but gets only what in service parlance is called a “charge allowance”. Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority does not enter into it. The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement.” 6. The undisputed fact in this case is that the opposite party no.1, who was holding a substantive post of Sub-Inspector of Police, was nominated by the Selection Board in the year 1986 for promotion to the rank of Inspector and during the pendency of the final decision, which was to be taken by the duly constituted Selection Board, he was allowed to officiate in the rank of Inspector purely on ad hoc basis with immediate effect with the condition that he will be reverted to the rank of Sub-Inspector at any time without any notice or assigning any reason thereof. The case of opp.party no.1 was placed before the duly constituted Central Selection Board for consideration for promotion to the rank of Inspector, but the Central Selection Board on scrutiny of the service record of opposite party no.1 along with others have found that he was not fit to continue in view of the adverse entry in his service record, accordingly, he has been directed to go to his substantive post i.e. to the post of Sub-Inspector of Police, which has been challenged before the Orissa Administrative Tribunal on the ground that before passing such order of reversion, which amounts to punishment, a regular proceeding as contemplated under Article 311(2) of the Constitution of India ought to have been initiated.
Since the same has not been followed, the decision of the authorities is absolutely illegal and as such the same is liable to be set aside. The learned Tribunal accepting the argument of the opp.party no.1 has allowed the Original Application and directed the authorities to restore him to function in the rank of Inspector of Police. 7. There is no dispute about the fact that an employee is entitled to be promoted to the higher rank and that is to be done by following a regular process i.e. by sending the name of one or the other employee intending to be promoted to the higher post before the duly constituted promotion committee which is generally known as “Departmental Promotion Committee”, along with all records of one or the other employees, who has been authorised to scrutinize the service records before the final recommendation which is to be made by the Board before the appointing authority and in case of recommendation for promotion that has to be accepted by the appointing authority and thereafter a formal order in the shape of notification has to be passed. Opposite party no.1 has been nominated for consideration of promotion to the rank of Inspector from the rank of Sub-Inspector of Police and during pendency of the said decision, for administrative exigencies he was allowed to officiate as Inspector, in which post he resumed his duties and started discharging the same. His case was placed before the Central Selection Board, but due to the adverse entry in the service record, he was not found fit to be promoted on substantive basis to the rank of Inspector of Police, as would be evident from the decision of the Central Selection Board as contained in Annexure-6 to the writ application. It transpires from the recommendation that he was not found fit to retain in the said post and accordingly, the competent authority after accepting the recommendation, directed the opposite party no.1 to go to his substantive post i.e. the post of Sub-Inspector of Police. 8.
It transpires from the recommendation that he was not found fit to retain in the said post and accordingly, the competent authority after accepting the recommendation, directed the opposite party no.1 to go to his substantive post i.e. the post of Sub-Inspector of Police. 8. Now question arises that can the officiating posting of opposite party no.1 be said to be promotion to the substantive post of Inspector, the answer would be definitely in negative for the reason that no where in the order of the learned Tribunal, we find that the order of promotion on substantive basis in the rank of Inspector has been discussed, rather emphasis has been given upon Annexure-3 dated 24.4.1987, which according to us cannot be said to be an order of promotion on the substantive post of Inspector, rather it is by way of an interim arrangement by asking the opposite party no.1 to discharge his duty as Inspector of Police on ad hoc basis. It is also not in dispute that if an employee has been granted regular promotion to the higher post and the authorities have directed him to go the lower post, it will be said to be reversion being a punishment under the Discipline and Appeal Rule and in that situation, it is settled that before passing an order of reversion, a regular departmental proceeding is needed as contemplated under the Discipline and Appeal rule read with Article 311(2) of the Constitution of India, but here this is not the case. Since opposite party no.1 has never been granted regular promotion as Inspector of Police, asking the opposite party no.1 to go to his substantive post cannot be said to be reversion in the true sense of reversion and merely by using the word ‘reversion’ in Annexure-3, it cannot be said that it is reversion in the eye of law. This legal as well as factual aspect has not been taken into consideration by the learned Tribunal while passing the impugned order. Accordingly, in our considered view the impugned order suffers from infirmity. Hence, it is not sustainable and accordingly quashed. 9. The writ petition stands allowed.