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2017 DIGILAW 2101 (JHR)

Manoj Kumar Tiwari v. State of Jharkhand

2017-12-06

AMITAV K.GUPTA, D.N.PATEL

body2017
JUDGMENT : D.N. PATEL, J. I.A. No. 3908 of 2017: 1. This interlocutory application under Section 5 of the Limitation Act has been filed by the appellant for condonation of delay of 25 days in preferring the instant Letters Patent Appeal. 2. Having heard learned counsels and looking to the reasons stated in paragraphs 5, 6 and 7 of the interlocutory application, there are reasonable reasonably for condoning the delay in preferring the instant Letters Patent Appeal. 3. Accordingly, I.A. No. 3908 of 2017 is allowed and delay in filing the instant Letters Patent Appeal is condoned. L.P.A. No. 203 of 2017: 4. This Letters Patent Appeal has been preferred by the original petitioner, whose writ petition being W.P. (S) No. 5004 of 2016 was dismissed by the learned Single Judge vide judgment and order dated 7.2.2017, whereby the claim of this appellant to get out-of-turn promotion was rejected by this Court. Hence, the original petitioner has preferred the present Letters Patent Appeal. 5. Having heard counsels for both sides and looking to the facts and circumstances of the case, it appears that this appellant is seeking out-of-turn promotion from the post of Sub-Inspector of Police to the post of Inspector of Police. This appellant thinks that he is a very fit person for getting out-of-turn promotion because there is no major punishment inflicted upon him and the Superintendent of Police. Hazaribagh has recommended his case for out-of-turn promotion. For getting this type of out-of-turn promotion, counsel for the appellant has relied upon Rule 660(C) of the Jharkhand Police Manual to be read with Rule 726(III) and has submitted that unless there is a major punishment inflicted upon an employee, his case cannot be rejected and that too, by the Director General of Police vide order at Annexure-8 dated 25.4.2016 and hence, the petition was preferred by this appellant being W.P. (S) No. 5004 of 2016 and the major contention raised by the counsel for the appellant is want of jurisdiction on the part of the Director General of Police for dismissing the out-of-turn promotion of this appellant, as there was no major punishment inflicted upon this appellant. These aspects of the matter have not been properly appreciated by the learned Single Judge while deciding the writ petition preferred by this appellant and hence, the judgment and order delivered by learned Single Judge in W.P. (S) No. 5004 of 2016 dated 7.7.2017 deserves to be quashed and set aside. REASONS: 6. It appears that there is a wrong notion in the mind of this appellant (original petitioner). There is no right vested into an employee to get promotion. There is only a right vested into an employee is to be considered for promotion and nothing beyond that. 7. It has been held by Hon'ble Supreme Court in the case of Syed Khalid Rizvi vs. Union of India, 1993 Supp (3) SC 575 as under:- "31. No employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are defensible. Take an illustration that the Promotion Regulations envisage maintaining integrity and good record by Dy. S.P. of State Police Service as eligibility condition for inclusion in the select-list for recruitment by promotion to Indian Police Service. Inclusion and approval of the name in the select-list by the UPSC, after considering the objections if any by the Central Government is also a condition precedent. Suppose if 'B' is far junior to 'A' in State Services and 'B' was found more meritorious and suitable and was put in a select-list of 1980 and accordingly 'B' was appointed to the Indian Police Service after following the procedure. 'A' was thereby superseded by 'B'. Two years later 'A' was found fit and suitable in 1984 and was accordingly appointed according to rules. Can 'A' thereafter say that 'B' being far junior to him in State Service 'A' should become senior to 'B' in the Indian Police Service. The answer is obviously no because 'B' had stolen a march over 'A' and became senior to 'A'. Here maintaining integrity and good record are conditions of recruitment and seniority is an incidence of service. Take another illustration that the State Service provides rule of reservation to the Scheduled Castes and Scheduled Tribes. 'A' is a general candidate holding No. 1 rank according to the roster as he was most meritorious in the State service among general candidates. Here maintaining integrity and good record are conditions of recruitment and seniority is an incidence of service. Take another illustration that the State Service provides rule of reservation to the Scheduled Castes and Scheduled Tribes. 'A' is a general candidate holding No. 1 rank according to the roster as he was most meritorious in the State service among general candidates. 'B' Scheduled Castes candidate holds No. 3 point in the roster and 'C' Scheduled Tribe holds No. 5 in the roster. Suppose Indian Police Service Recruitment Rules also provide reservation to the Scheduled Castes and Scheduled Tribes as well. By operation of the equality of opportunity by Articles 14, 16(1), 16(4), 335 and 'B' and 'C' were recruited by promotion from State Services to Central Services and were appointed earlier to 'A' in 1980. 'A' thereafter in the next year was found suitable as a general candidate and was appointed to the Indian Police Service. Can 'A' thereafter contend that since 'B' and 'C' were appointed by virtue of reservation, though were less meritorious and junior to him in the State service and gradation list would not become senior to him in the cadre as IPS officer. Undoubtedly 'B' and 'C' by Rule of reservation, had stolen a march over 'A' from the State Service. By operation of Rule of reservation 'B' and 'C' became senior and 'A' became junior in the Central Services. Reservation and roster were conditions of recruitment and seniority was only an incidence of service. The eligibility for recruitment to the Indian Police Service, thus is, a condition of recruitment and not a condition of service. Accordingly we hold that seniority, though, normally an incidence of service. Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the Indian Police Service by promotion, which should be strictly complied with before becoming eligible for consideration for promotion and are not relaxable." 8. It has been also held by Hon'ble Supreme Court in the case of State of M.P. vs. J.S. Bansal, (1998) 3 SCC 714 as under: "13. Undoubtedly, an employee has a right of being considered for promotion but he cannot claim promotion as of right. Right to be considered for promotion is obviously different and distinct from right of promotion. It has been also held by Hon'ble Supreme Court in the case of State of M.P. vs. J.S. Bansal, (1998) 3 SCC 714 as under: "13. Undoubtedly, an employee has a right of being considered for promotion but he cannot claim promotion as of right. Right to be considered for promotion is obviously different and distinct from right of promotion. Even if disciplinary proceedings are initiated against an employee and those proceedings are pending on the date on which names of other employees are considered for promotion to the next higher post, the delinquent employee, if he is similarly circumstanced as other employees and is also eligible, has a right to be considered for promotion to the next higher post along with other employees. His name cannot be omitted from consideration merely because of the pendency of the departmental proceedings. An employee cannot be denied this right at the interlocutory stage of the departmental proceedings as he is still to be found guilty on the basis of the evidence which might be produced against him during those proceedings. Till the charges are established, his right to be considered cannot be defeated as he is not under the cloud of having been found guilty but is only suspected to be guilty. Mere suspicion is not a substitute for proof. Consideration for promotion along with other eligible candidates is done so as to give effect to the fundamental right available even to a delinquent employee under Articles 14 and 16 of the Constitution. Once the name is considered for promotion, the recommendations of the Departmental Promotion Committee are required to be kept in a "Sealed Cover" obviously for the reason that if the employee is ultimately found to be not guilty and the charges set out against him are found as "not established" he may be promoted immediately to the next higher post." 9. It has also been held by Hon'ble Supreme Court in the case of Union of India vs. Sangram Keshri Nayak, (2007) 6 SCC 704 , as under: "11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. It has also been held by Hon'ble Supreme Court in the case of Union of India vs. Sangram Keshri Nayak, (2007) 6 SCC 704 , as under: "11. Promotion is not a fundamental right. Right to be considered for promotion, however, is a fundamental right. Such a right brings within its purview an effective, purposeful and meaningful consideration. Suitability or otherwise of the candidate concerned, however, must be left at the hands of the DPC, but the same has to be determined in terms of the rules applicable therefor. Indisputably, the DPC recommended the case of the respondent for promotion. On the day on which, it is accepted at the Bar, the DPC held its meeting, no vigilance enquiry was pending. No decision was also taken by the employer that a departmental proceeding should be initiated against him." 10. It has been further held by Hon'ble Supreme Court in the case of Hardev Singh vs. Union of India, (2011) 10 SCC 121 as under: "17. It cannot be disputed that no employee has a right to get promotion, so the appellant had no right to get promotion to the rank of Lieutenant-General but he had a right to be considered for promotion to the rank of Lieutenant-General and if as per the prevailing policy, he was eligible to be promoted to the said rank, he ought to have been considered. In the instant case, there is no dispute to the face that the appellant's case was duly considered by the SSB for his promotion to the rank of Lieutenant-General." 11. It has been further held by Hon'ble Supreme Court in the case of High Court of Judicature of Madras vs. R. Perachi, (2011) 12 SCC 137 as under: "32. Besides, there is no right of promotion available to an employee. He has a right to be considered for promotion which has been held to be a fundamental right (see para 13 of S.B. Bhattacharjee vs. S.D. Majumdar). However, though a right to be considered for promotion is a condition of service, mere chance of promotion is not (see para 15 of the Constitution Bench judgment in Mohd. Shujat Ali vs. Union of India)." 12. However, though a right to be considered for promotion is a condition of service, mere chance of promotion is not (see para 15 of the Constitution Bench judgment in Mohd. Shujat Ali vs. Union of India)." 12. In view of the aforesaid decisions, it ought to be kept in mind that this appellant has no legitimate right to be promoted from the post of Sub-Inspector of Police to the post of Inspector of Police, even though he is highly qualified and highly meritorious. There is only a right vested into this appellant is to be considered for promotion. It appears that this appellant thinks that he is highly suitable person for getting promotion to the post of Inspector of Police from the post of Sub-Inspector of Police and that too, out-of-turn under Rule 660(C) of the Jharkhand Police Manual. 13. When there is no right vested into an employee to get promotion, there is no question of right vested into the employee to get out-of-turn promotion. At the highest, his case ought to be considered as and when the respondents-authorities are considering the cases of promotion of others. 14. It appears that earlier a petition was preferred by this appellant being W.P. (S) No. 2126 of 2015 which was disposed of by this Court vide order dated 23.2.2016, wherein direction was given by this Court that his representation can be decided by the Director General of Police and in fact the Director General of Police of the State of Jharkhand has appreciated the case of this appellant and has decided vide order dated 25.4.2016 (Annexure-8 to the memo of this Letters Patent Appeal). 15. It appears that this appellant has been punished for 41 times and they were minor punishments. The reasons have been assigned by the Director General of Police in his order dated 25.4.2016. 16. As stated above that there is no right vested into an employee to get promotion and much less there is any right vested into this appellant to get promotion out-of-turn and hence, we see no reason to interfere with the order passed by the Director General of Police dated 25.4.2016 (Annexure-8 to the memo of this Letters Patent Appeal) and there is no error committed by the learned Single Judge while deciding W.P. (S) No. 5004 of 2016 vide judgment and order dated 7.2.2017. 17. 17. Much has been argued about the want of jurisdiction on the part of the Director General of Police. This contention is not accepted by this Court mainly for the reason that nothing much has been done by the Director General of Police except to comply with the direction given by this Court as enshrined in the order dated 23.2.2016 in W.P. (S) No. 2126 of 2015. This petition was preferred by this appellant and the order was also obtained by him. The order was passed at the behest of this appellant. Moreover, as and when the Selection Board will consider the case of promotion of others in ordinary course of business, such Selection Board may consider the case of this appellant also, if they so think fit otherwise, prima-facie, as per the Director General of Police, this appellant is not fit to get out-of-turn promotion. This is absolutely in consonance with the law and there is no need of any interference by this Court while exercising its power under Article 226 of the Constitution of India. 18. Much has been argued out by the counsel for the appellant that there is no major punishment. This contention is also not helpful to the appellant for getting out-of-turn promotion. It ought to be kept in mind that those who have not suffered any major punishment, they cannot claim as a matter of right out-of-turn promotion. Something more is required, which is missing in this case. No major punishment has been mentioned in Rule 660(C) to be read with Rule 726(III) of Jharkhand Police Manual but, as stated herein above, there is no right vested into an employee to get promotion, much less, out-of-turn promotion and, hence, even if there is no major punishment inflicted upon this appellant, there is no right vested into this appellant that he may be given out-of-turn promotion. There are as many as 41 minor punishment inflicted upon this appellant. This indicates several things and at least the fact remains that out-of-turn promotion cannot be a right of this appellant. These aspects of the matter have been properly appreciated by the learned Single Judge while deciding the writ petition preferred by this appellant being W.P. (S) No. 5004 of 2016 vide judgment and order dated 7.2.2017. 19. This indicates several things and at least the fact remains that out-of-turn promotion cannot be a right of this appellant. These aspects of the matter have been properly appreciated by the learned Single Judge while deciding the writ petition preferred by this appellant being W.P. (S) No. 5004 of 2016 vide judgment and order dated 7.2.2017. 19. Hence, there is no substance in this Letters Patent Appeal and therefore, the same is, hereby, dismissed with a cost of Rs. 20,000/- which will be deposited by this appellant before the respondents-authorities, within six weeks from today, failing which Rs. 2,000/- will be deducted every month from the salary of this appellant till realization of the said cost. Appeal dismissed.