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2018 DIGILAW 225 (ORI)

Bal Krishna Dwivedi v. Union of India

2018-03-07

SUJIT NARAYAN PRASAD

body2018
JUDGMENT : S.N. Prasad, J. This writ petition under Article 226 and 227 of the Constitution of India has been filed wherein the direction has been sought for upon the opposite parties to give promotion to the petitioner by recasting his seniority at par with his juniors with all other consequential service benefits. 2. The brief facts of the case is that the petitioner is an enrolled member of the Force and he was appointed as Constable/Security Guard on 02.09.1975 and thereafter he has been transferred and posted to different C.I.S.F. Units at different Industrial Undertakings throughout India. While working at BHEL, Haridwar, he was proceeded departmentally vide order dated 22.09.1988 which was culminated into the order of punishment of withholding one increment with cumulative effect under the provision of Rule-35 of the Central Industrial Security Force Rules, 1969. The petitioner, being aggrieved with the order of punishment, had preferred an appeal before the Commandant, C.I.S.F. Unit BHEL, Haridwar on 24.09.1988. The appeal of the petitioner has been considered by the authority only in the year 2004 by reducing the order of punishment to that of withholding of one increment without having any effect on the future increment. 3. The case of the petitioner is that he although was at par with private opposite parties, but denied his promotion to the higher post without any fault on his part and as such, he has approached to this Court for issuance of appropriate direction in this regard. 4. Counter affidavit has been filed by the opposite parties wherein the claim of the petitioner has seriously been disputed on the ground that the petitioner has initially proceeded departmentally and punishment was imposed of withholding one annual increment with cumulative effect. However, the same was subsequently been reversed to the minor punishment by converting it withholding increment with non-cumulative effect. Counter affidavit has been filed by the opposite parties wherein the claim of the petitioner has seriously been disputed on the ground that the petitioner has initially proceeded departmentally and punishment was imposed of withholding one annual increment with cumulative effect. However, the same was subsequently been reversed to the minor punishment by converting it withholding increment with non-cumulative effect. The petitioner was appointed as Security Guard (Constable) on 02.09.1975 and was absorbed as Constable under the Fire Cadre of C.I.S.F. on 14.10.1991 and accordingly he was allotted PSL No.03 as Constable/F. He was subsequently been promoted to the rank of Naik on 12.06.1993 after having been recommended by the duly constituted Departmental Promotion Committee which was held in the year 1992 and accordingly he was allotted PSL No.86 as Naik/F. His case was again considered for promotion to the post of Head Constable and after recommendation of the Departmental Promotion Committee, he was promoted to the rank of Head Constable/Fire on 25.09.1996 and accordingly he was allotted PSL No.135 as Head Constable/Fire. The private opposite parties have been appointed along with the petitioner as Security Guard, but subsequent to the promotion having been granted in their favour as Naik they have been absorbed in Fire Cadre on 14.10.1991 whereas on the date of absorption in the Fire Cadre, i.e., 14.10.1991, the petitioner was holding the post of Constable/General Duty and thereafter he was promoted to the rank of Naik/Fire and Head Constable/Fire at later days, i.e. on 12.06.1993 and 25.09.1996 respectively and it is for this reason since the private opposite parties have become senior to them in the feeder cadre, the petitioner has not been granted promotion to the rank of Assistant Sub-Inspector/Fire at par with the private opposite parties. Hence, there is no illegality. Hence, there is no illegality. It has been stated in the counter affidavit that promotion cannot be claimed as a matter of right and since the cadre of the petitioner has been changed from the general duty to that of the fire service and on the date when the petitioner has taken birth in the fire service by way of absorption from the general duty, the private opposite parties have already got promotion in the higher cadre way back in the year 1993, but the petitioner has not assailed the order of promotion given to the private opposite parties in the year 1991 and it is only after 16 years the writ petition has been filed questioning the promotion of the private opposite parties which was granted in the year 1991. Hence, the same is not to be entertained on the ground of delay and laches. 5. It has been submitted by the learned Central Government Counsel representing the C.I.S.F. that the private opposite parties have been given promotion in the next higher cadre prior to that of the petitioner. The authorities, after taking into consideration the position of the feeder cadre, i.e., the post of Naik, the private opposite parties have been granted promotion as Head Constable as also to the post of Assistant Sub-Inspector and as such, since the petitioner has not questioned the order of promotion of the private opposite parties granted to them in the year 1991, he cannot raised the issue of not granting promotion to the post of Assistant Sub-Inspector reason being that the promotion is to be given on the basis of seniority in the feeder cadre and the feeder cadre of the post of Head Constable was the post of Naik and the post of Assistant Sub-Inspector is the post of Head Constable and since the private opposite parties have been given promotion as Naik prior to that of the petitioner, hence basing of the said order of promotion, they have been granted promotion. Hence, there is no illegality. 6. Hence, there is no illegality. 6. Heard the learned counsel for the parties and on appreciation of their rival submissions, the fact which is not in dispute in this case is that the petitioner has been appointed as Constable/Security Guard in the C.I.S.F. on 02.09.1975 and was absorbed as Constable/Fire on 14.10.1991 while the opposite parties have been absorbed in the Fire Cadre holding the post of Naik and as such, they become the senior in the Fire Service Cadre. The petitioner has been granted promotion as Naik/F on 12.6.993 and as Head Clerk/Fire on 25.09.1996. It is also not in dispute that the petitioner has departmentally proceeded in the year 1988 in which a major punishment of withholding annual increment with cumulative effect for one year was imposed. However, the same was subsequently been modified by making it from cumulative to non-cumulative for a period of one year, but the petitioner, in the light of this factual aspect, has approached this Court for seeking direction upon the opposite parties to give him promotion at par with the senior employees, i.e., the private opposite parties herein. 7. Here the petitioner is seeking a direction to promote him as Naik, Head Constable and Assistant Sub-Inspector at par with the private opposite parties and as such, it is to be seen as to whether the case of the petitioner is at par with the private opposite parties or not? 8. This Court, in order to examine this aspect of the matter, has considered the factual aspect and has found that the private opposite parties as well as the petitioner have been absorbed in the Fire Cadre which is altogether a separate cadre from the general duty on 14.10.1991. 9. It is the admitted position that on the date of absorption in the Fire Cadre, the petitioner was holding the post of Constable while the private opposite parties was holding the post of Naik, meaning thereby the private opposite parties have taken birth in the new cadre, i.e., the Fire Service Cadre as Naik while the petitioner has taken birth in the newly created Fire Service Cadre as Constable. It is also admitted position that the petitioner has not assailed the order of promotion granted in favour of the private opposite parties either as Naik or the Head Constable even though it has been granted in the year 1991, i.e., prior to the absorption in the Fire Service Cadre on 14.10.1991. It is also important to state here that the post of Constable/Fire will be said to be a basic cadre and next higher post is the post of Naik/Fire and subsequent to the said post, the promotion is to be given to the rank of Head Constable/Fire and thereafter to the rank of Assistant Sub-Inspector/Fire. For the purpose of consideration of promotion to the post of Head Constable/Fire, the post of Naik/Fire will be said to be the feeder cadre while considering the promotion to the post of Assistant Sub-Inspector/Fire, the post of Head Constable/Fire will be said to be the feeder cadre. It is not in dispute that while granting promotion from basic cadre to the next hierarchy, the seniority of the basic cadre will be taken into consideration but for granting promotion to the next higher rank, i.e., from the post of Naik to the post of Head Constable or Assistant Sub-Inspector, the seniority of the post of Naik for the purpose of granting promotion to the post of Head Constable and for the purpose of granting promotion to the rank of Assistant Sub-Inspector, the seniority of the post of Head Constable is to be considered. 10. Since it is not in dispute that the private opposite parties have been granted promotion as Naik prior to their absorption in the Fire Service Cadre and on the date of absorption in the Fire Service Cadre, i.e., on 14.10.1991, the petitioner was holding the post of Constable. The petitioner has not questioned the promotion of Naik given to the private opposite parties way back in the year 1991 and as such, now after delay of about 16 years, i.e., on the date of filing of the instant writ petition i.e. on 30.04.2007, the petitioner has approached this Court to give him parity with the private opposite parties. 11. 11. According to the considered view of this Court for the reason that the order of promotion having known to the petitioner which has been issued in the year 1991 has not been questioned or challenged within a reasonable period and after delay of 16 years it is being questioned and the parity is being sought for, but on the principle of delay and laches, the said relief cannot be granted to the petitioner. 12. Since the private opposite parties have been granted promotion as Naik prior to that of the petitioner, who has been granted promotion on 12.06.1993 while opposite parties granted promotion as Naik before the absorption, i.e., prior to 14.10.1991 in the Fire Cadre and as such, the authorities, by taking into consideration the date of promotion of the private opposite parties given to them as Naik/Fire, have granted them promotion to the next higher posts, i.e., to the post of Head Constable and Assistant Sub-Inspector respectively. 13. This Court is of the considered view that since the authorities have followed the principle of seniority in the feeder cadre which has not been challenged by the petitioner at any time earlier to filing of this writ petition, the relief sought for in the instant writ petition cannot be extended. 14. In view of the entirety facts and circumstances of the case narrated hereinabove and according to the conscious view of this Court, the petitioner has failed to make out a case. In the result, the writ petition fails and it is dismissed.