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Madhya Pradesh High Court · body

2017 DIGILAW 148 (MP)

Shivpal Bhadoriya v. State of M. P.

2017-01-31

ANAND PATHAK

body2017
ORDER : Anand Pathak, J. Shri MPS Raghuvanshi, learned counsel For the Petitioners. Shri C.R. Roman, learned GA For the Respondents/State. 2. Heard on I.A. No. 1953/2016, an application for taking additional facts and documents on record. 3. Considering the contents and in the interest of justice, application is allowed. Facts and documents as pleaded and placed with the application are taken on record. I.A. stands closed. 4. Also heard on I.A. No. 2484/2016, an application for taking GOP dated 14/8/2012, as Annexure P/8, on record. 5. On due consideration and in the interest of justice, application is allowed and GOP dated 14/8/2012 placed with the application as Annexure P/8 is taken on record. I.A. stands closed. 6. Also heard on I.A. No. 554/2017, an application for hearing the matter under caption 30 minutes of hearing. 7. Both the parties unanimously submit that matter can be heard within 30 minutes and they are ready to argue the matter, therefore, with the consent of parties, application is allowed and matter is taken up today itself for final hearing. 8. With consent heard finally. 9. Facts in brief are that petitioners have preferred the present petition being aggrieved by the order dated 30/10/2012 passed by the respondent No.3; whereby, the representations submitted by them for grant of promotion as per the earlier GOP dated 2/4/1997 (Number 77 of 1997) have been rejected. Along with the aforesaid, petitioners are seeking a direction to the respondents to grant them promotion to the post of Head Constable as per the select list prepared by the respondents after conducting the eligibility test. 10. According to counsel for the petitioners, who were working as Constable at the time of filing the petition, in the Districts as mentioned in the cause title, respondents department has issued a GOP vide No. 77 of 1997 dated 2/4/1997 (Annexure P/1-A); wherein, the rules and procedure in respect of promotion of Police Constable to Head Constable have been prescribed. The clause 1 of the said GOP deals in respect of the different exigencies for promotion, wherein, it has been stipulated that 80% of the posts of Police Constable Cadre would be filled up through merit-cum-seniority basis and remaining 20% of posts would required to be filled up on the basis of seniority-cum-merits basis. In Clause 2 of the said rules, eligibility conditions have been prescribed. In Clause 2 of the said rules, eligibility conditions have been prescribed. The said GOP in extenso prescribe the different physical qualification tests as well as other written examinations for evaluating the performance of the candidates while granting promotion to the post of Head Constable. 11. Submission of counsel for the petitioners is that the petitioners appeared in the fitness test conducted by the Police Department as per the GOP dated 2/4/1997 and stood successful in the said test. The copy of the fit/pass (list of successful candidates in exam) is placed on record as Annexure P/2; wherein, names of petitioners No. 1,2 and 4 appears at serial No. 71, 72 and 82 respectively; whereas, name of petitioner No. 3 appears at serial No. 29 of another fit list of even date i.e. 12/4/2012 annexed with the petition. The petitioners along with other successful candidates were entitled to get into the select list and resultantly, getting promotion and subsequently posting to the post of Head Constable. On 1/8/2012 vide Annexure P/3, some of the successful candidates whose names were figured in the pass/fit list were given the promotion as well as posting to the post of Head Constable, Police. It is the general practise in the Department that after fit list is being prepared, it exhausts in sereatum as per the vacancies and posts available, therefore, toppers of the list were given priority in respect of issuance of promotion orders and postings and chance of the petitioners was to follow subsequently. 12. Further submission of counsel for the petitioners is that on 14/8/2012, another GOP has been issued by the Police Department which is placed as Annexure P/8 with the petition and reproduced by the respondents also along with the reply as Annexure R/1 and on the basis of said GOP issued in year 2012, the respondents' Department has ignored the claim of the petitioners prompting them to file representation to the authorities, which are part of the record as Annexure P/4 collectively. Respondent No. 4-Deputy Inspector General of Police, Gwalior Range Gwalior has addressed the letter to the Inspector General of Police, Gwalior Zone, Gwalior on 30th October, 2012 (Annexure P/1) and intimated the authority regarding the state of affairs and clarified that the persons who have been successful earlier in the exam and names of those figured in the select list, are to be governed by the earlier GOP of 1997 and after the promulgation of GOP of 14/8/2012, the further proceedings in respect of other candidates of pass/fit list would be governed by the said GOP of 2012. 13. Counsel for the petitioners relied upon an order dated 28/9/2015 passed by the Coordinate Bench of this Court in W.P.No. 6211/2014 (s) (Sanjay Yadav v. State of M.P. & Ors.) and pleaded parity. In sum and substance, petitioners seek promotion on the post of Head Constable, Police from the date when the benefit of promotion has been accorded to other similarly situated persons. 14. Counsel for the petitioners further submits that the petitioners have been promoted last year in 2016 to the post of Head Constable but their claim is alive w.e.f. the date when other similarly situated persons have been granted benefit of promotion from the earlier GOP of 1997. Counsel for the petitioners pleads that they are entitled to be considered from the date when their other similarly situated Constables have been promoted with the help of GOP of 1997 and further specifically pleads that they are ready to relinquish their rights in respect of back wages and they only seek notional seniority w.e.f. the date, when their other colleagues of the fit list have been promoted vide order dated 1/8/2012 (Annexure P/3). 15. On the other hand, learned counsel for the respondents/State on the basis of return submits that petitioners are not entitled to get the benefit because of the subsequent GOP issued by the Police Headquarter on dated 14/8/2012. According to him, GOP of 2012 would prevail in respect of service conditions of the petitioners and no benefit could be granted to them. He prayed for dismissal of the petition. 16. Heard learned counsel for the parties and perused the record. 17. From the record, it appears that petitioners have appeared in the departmental examination and after qualifying the same their names figured in the pass list or fit list. He prayed for dismissal of the petition. 16. Heard learned counsel for the parties and perused the record. 17. From the record, it appears that petitioners have appeared in the departmental examination and after qualifying the same their names figured in the pass list or fit list. Normally, in the police department, after getting successful in departmental exam and undergoing Drill Test and Physical Proficiency Test, candidates undergo Pre-promotion Course and after completing it get promotion, as per the availability of vacancies. The order dated 12/4/2012 reflect the name of the petitioners in the fit list. Similarly, it is not in dispute that some of the persons of fit list have been granted benefit of the said examination and they got promoted to the post of Head Constables and the said process has been conducted treating the GOP of 1997 as the guiding force of their service conditions. Petitioners were also part of the said fit list, therefore, their service conditions cannot be put to disadvantage to their detriment on the basis of subsequent GOP dated 14/8/2012. Once, benefits accrued to some of the candidates vide Annexure P/3 then same benefits should also be accrued to the petitioners also, subject to their standing in the merit list. Fit list cannot be divided as pre GOP of 2012 and post GOP of 2012, as this would amount to discrimination because it discriminates between two similarly situated persons. 18. The letter dated 30/10/2012 written by the DIG, Gwalior Range Gwalior to the IG, Police, Gwalior Zone, Gwalior in fact partly supports the cause of the petitioners; wherein the DIG, respondent No. 4 has partially clarified and intimated the authority and admitted the fact that even after the promulgation of new promotion policy, 2012, the fit list would remain intact and those persons would be granted benefit who are in the select list only and the rest of the candidates who have qualified the exam, but are not in the select list would be governed by the subsequent GOP. 19. 19. Although the respondent No. 4 has tried to make an attempt to clarify the position but from the record, it appears that only one list has been prepared which may be treated as final list/select list/fit list and no distinction has been made in respect of the factum of passing of the examination by the petitioners as well as those candidates who have been promoted to the post of Head Constable by the effect of the order dated 1/8/2012. In fact, the candidates who were on top of the list were given promotion, due to availability of vacancies, whereas, present petitioners could not be given promotion, because at that time no vacancy was available. Once, some of the candidates have been given the benefit of passing of the same examination governed by GOP of 1997 then remaining lot cannot be denied the benefit of same on technical pretext. 20. Even otherwise, it is well settled in law that the rules of the game cannot be changed midway and once the process has been started under a particular set of rules then the persons would be governed by the said set of rules and cannot be put to disadvantage; midway. Hon'ble Apex Court in the matter of P. Mahendran and Ors. v. State of Karnataka and Ors. And Matteesh Y. Annigeri and Ors. v. State of Karnataka and Ors., AIR 1990 SC 405 has clarified the position in respect of rule of construction and its implementation. Similarly in the matter of State of Uttar Pradesh and Ors., v. Mahesh Narain and Ors., (2013) 4 SCC 169 in para 15 and 16 has held as under:- "15. And Matteesh Y. Annigeri and Ors. v. State of Karnataka and Ors., AIR 1990 SC 405 has clarified the position in respect of rule of construction and its implementation. Similarly in the matter of State of Uttar Pradesh and Ors., v. Mahesh Narain and Ors., (2013) 4 SCC 169 in para 15 and 16 has held as under:- "15. The principle laid down in Nirmal Chandra Case, 1991 Supp (2) SCC 363 aptly fits into the facts and circumstances of this case as the subsequent amendment of 1990 laying down to fill in all the posts of Assistant Director, Forensic Science by direct recruitment could not have been applied in case of the respondents who were already holding the post of Scientific Officer and hence were eligible to the promoted quota of 25% posts of Assistant Director after completion of five years of service as Scientific Officers in terms of the Rules of 1987 and, therefore, their experience of five years on this post could not have been made to go waste on the ground that the amendment came into effect in 1990 making all the posts of Assistant Director to be filled in by direct recruitment. In support of this view, the counsel for the Respondents also relied on the decision of this Court in the matter of B.L. Gupta v. MCD, reported in (1998) 9 SCC 223 wherein this Court had held that any vacancy which arose after 1995 was to be filled up according to rules but the vacancies which arose prior to 1995 should have been filled up according to the 1978 rules only. 14. As a consequence of the aforesaid analysis, we have no hesitation in holding that the High Court was right in taking the view that the respondents were eligible for promotion to the post of Assistant Director under the Rules of 1987 against 25 per cent quota to be filled in by promotion as they satisfied the conditions of five years of requisite experience on the post of Scientific Officer if the experience were to be counted from the date of publication of the Rules in the U.P. Government Gazette." 21. The Coordinate Bench of this court in the matter of Sanjay Yadav (supra) has also issued direction to the respondents for issuance of order of promotion and in compliance to the said order, the respondents have issued promotion order to the said petitioner vide order dated 7/1/2016 (Annexure P/7). 22. The range and scope of Article 14 and consequently Article 16 have been widened by process of judicial interpretation so that the right to equality not only means the right not to be discriminated against but also protection against any arbitrary or irrational act of the State. It has been said that "Article 14 and 16 strike at arbitrariness in state action and ensure fairness and equality of treatment. (See:- Pradeep Kumar Viswas v. Indian Institute of Chemical Biology and Ors, (2002) 5 SCC 111 ) 23. Once the petitioners after facing gruelling exercise of departmental examination and Pre-promotion (P.P.) Course and stood successful; then the said benefit cannot be denied or retracted on the basis of subsequent GOP issued by the department, therefore, petitioners are entitled for the benefits flowing out of the order dated 12/4/2012. Although, it is made clear that petitioners can seek their seniority as per their standing in the merit list prepared by the department after the departmental exam and/or any relevant rules or regulation in this regard. 24. In the police department for promotion to the post of Head Constable, initially departmental examination is conducted, procedure of which is already indicated in the GOP. Thereafter, successful candidates undergo pre-promotion course (P.P. Course). Thereafter, as per the merit list prepared and on the basis of availability of vacancies, the successful candidates are given posting on the post of promoted post i.e. Head Constable from the date when as per their position in the merit list vacancies have been accrued. 25. Thereafter, successful candidates undergo pre-promotion course (P.P. Course). Thereafter, as per the merit list prepared and on the basis of availability of vacancies, the successful candidates are given posting on the post of promoted post i.e. Head Constable from the date when as per their position in the merit list vacancies have been accrued. 25. Counsel for the petitioners on behalf of petitioners has already conceded that the petitioners are not interested in claiming back wages, they are only seeking notional seniority with proper placement in the gradation list, therefore, if the petitioners have already been promoted then the appropraite authority is directed to consider the claim of the petitioners in accordance with the observations and the mandate of the Hon'ble Apex Court as well as the observations made above and pass an appropriate order in this regard within a period of three months from the date of receipt of certified copy of this order and if the petitioners are otherwise found eligible for promotion w.e.f. the date when the vacancies accrued (Head Constable) and they became eligible as per their seniority in the merit list, then they may also be accorded the same benefits within three months thereafter.