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Rajasthan High Court · body

2019 DIGILAW 1583 (RAJ)

RAJENDRA SHARMA v. STATE OF RAJASTHAN

2019-05-21

ARUN BHANSALI

body2019
JUDGMENT : 1. This writ petition has been filed by the petitioner aggrieved against order dated 05.10.2017 (Annexure-1), whereby, rank of the petitioner as Ad hoc honorary Havildar Platoon Commander (HPC) has been taken back. 2. It is, inter alia, indicated in the writ petition that the petitioner was appointed on the post of Home Guard on 21.08.1998, he underwent necessary training and was issued identity card and started discharging his duties. By order dated 21.02.2006 (Annexure-3) the petitioner was accorded ad hoc honorary rank of HPC. 3. Certain allegations have been made against the Commandant regarding his having developed malice against the petitioner, resulting in passing of the order dated 05.10.2017 (Annexure-1), whereby, rank given to the petitioner of HPC was withdrawn. 4. It is submitted by learned counsel for the petitioner that action of the respondents in passing the order dated 05.10.2017 (Annexure-1) is absolutely baseless. Submissions were made that the averments contained in the order regarding holding of the test for promotion on 09.02.2009 was factually incorrect as no such information was accorded to the petitioner and/or similarly situated persons and that no such test was held and, therefore, the entire exercise of taking back the honorary rank of HPC is essentially on account of the mala fides of respondent No. 4 and, therefore, the order impugned deserves to be quashed and set aside. 5. A reply to the writ petition has been filed by the respondents, inter alia, claiming that on 09.02.2009 the requisite test was held and those who had passed the test only were entitled to conferred/continue with the honorary rank of HPC and as the petitioner failed to appear in the test held on 09.02.2009, he was not entitled to continue with the said rank. 6. It was submitted with reference to the averments made in the reply that in the Sampark Parade all the Volunteer Home Guards were informed about the honorary promotion test, which was conducted by Committee constituted at the Head Quarter level and, therefore, the allegations made regarding not holding of the examination/test is baseless. Alongwith reply an order dated 10.02.2009 (Annexure-R/13) has been placed on record indicating honorary promotions accorded to the candidates therein, who were selected pursuant to the test held on 09.02.2009. 7. Alongwith reply an order dated 10.02.2009 (Annexure-R/13) has been placed on record indicating honorary promotions accorded to the candidates therein, who were selected pursuant to the test held on 09.02.2009. 7. Learned counsel for the respondents also made submissions that even if the petitioner was accorded ad hoc honorary promotion as HPC, it was incumbent on him to pass the requisite test in absence whereof the petitioner was not entitled to continue with the rank. Certain orders passed by the respondents according ad hoc promotions were also supplied for perusal of the Court to indicate that in all the cases the stipulation has been made that as and when the test was held those granted ad hoc promotions were required to undergo the said test and, therefore, the order impugned dated 05.10.2017 does not call for any interference. 8. During course of submissions, by order dated 04.04.2019 learned counsel for the respondents was granted time to complete his instructions as to whether those granted promotion on 10.02.2009 vide Annexure-R/13 were already granted ad hoc promotion prior to 2009 as was granted to the petitioner and to others qua whom the order Annexure-1 was passed. 9. Learned counsel for the respondents on instructions submitted that none of the persons, who were granted promotion vide Annexure-R/13 were earlier granted ad hoc promotion. 10. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 11. A perusal of the order dated 21.02.2006 (Annexure-3), by which, the petitioner was accorded ad hoc promotion to the post of HPC, reads as under:- ^^dk;kZy;& fMohtuy dekUMj] gkse xkMZ Vsfuax lsUVj] tks/kiqjA ekad%& 5666&69 fnukad%& 21-2-06 &%dk;kZy; vkns'k%& bl dsUnz ds gkse xkMZ Lo;a lsod Jh jktsUnz 'kekZ csYV uEcj 684 us fofHkUu pquko M~;wVh ,oa fofHkUu dkuwu O;oLFkk fM;wfV;ksa esa cgqr esgur ,oa yXu ls Hkkx fy;k ,oa lsDVj uEcj&1 esa gkse xkMZ lnL;ksa dks fofHkUu izdkj dh M~;wfV;ksa ij bDdBk djus esa cgqr gh esgur ls dk;Z fd;k gSA vr% bUgs gkslyk vQtkbZ ds fy, Jh jktsUnz 'kekZ ua- 684 dks ,Mksd ,p-ih-lh- jSad nh tkrh gSA fMohtuy dekUMj gkse xkMZ Vsfuax lsUVj] tks/kiqjA 12. A perusal of the order indicates that the same has been issued by the Divisional Commander and indicates grant of HPC rank on ad hoc basis. 13. A perusal of the order indicates that the same has been issued by the Divisional Commander and indicates grant of HPC rank on ad hoc basis. 13. It is not in dispute that the petitioner continued to enjoy the said rank till the order dated 05.10.2017 was issued, which reads as under:- ^^&%dk;kZy; vkns'k%& eq[;ky; t;iqj ds vkns'k ekad 21964&22044 fnukad 22-07-2000 ,oa 35154&240 fnukad 06-11-01 ds vuqlkj xfBr inkSUufr VsLV lfefr }kjk bl dsUnz esa fnukad 09-02-2009 dks voSrfud lhlh@ihlh dk inkSUufr VsLV fy;k x;k ftlesa Hkkx ysus okys lQy gq, Lo;a lsodksa dks inkSUur dj voSrfud jSad vkns'k ekad 736&77 fnukad 10-02-2009 }kjk tkjh djrs gq, voSrfud inksa ij inkSUur fd;s x;sA rnFkZ voSrfud jSad/kkjh lnL;ksa us mijksDr inkSUufr VsLV esa Hkkx ugha fy;s tkus ds dkj.k iwoZ esa tkjh lHkh rnFkZ voSrfud jSad ij inkSUur fd;s rnFkZ vkns'k Lor% gh fujLr gks x;sA vr% bl dsUnz ds rnFkZ voSrfud jSad/kkjh Lo;a lsodksa dh voSrfud jSad gVkbZ tkdj lwph fuEukuqlkj gS%& - la lnL; la[;k Lo;a lsod dk uke rnFkZ jSad 1 919 Jh ';ke lqUnj HPC 2 161 Jh lqjsUnz flg HPC 3 712 Jh jkds'k dqekj HPC 4 487 Jh fot; izdk'k HPC 5 85 Jh guqeku izlkn HPC 6 550 Jh eksgu yky HPC 7 847 Jh iznhi lka[kyk HPC 8 1459 Jh tCcj flag HPC 9 684 Jh jktsUnz 'kekZ HPC bl dsUnz ds mijksDr Lo;a lsodksa dks vknsf'kr fd;k tkrk gS osa viuh rnFkZ voSrfud jSad dk bLrseky ugha djsaxsA ;fn Hkfo; esa muds }kjk voSrfud jSad dk bLrseky fd;k tkuk ik;k x;k rks muds fo:) vuq'kklukRed dk;Zokgh dh tk;sxhA jfo O;kl dek.MsUV gkse xkMZl Vsfuax lsUVj tks/kiqj^^ 14. A perusal of the order indicates that a reference has been made to the promotion test held on 09.02.2009 and thereafter it has been indicated that those who did not participate in the promotion test, their ad hoc orders stood cancelled automatically and, therefore, for the volunteers indicated in the order, their honorary ranks were ordered to be removed. No explanation whatsoever has been indicated as to once the test was held on 09.02.2009 and if persons like the petitioner were required to appear in the said test and they failed to appear, despite that why it took more far than 8 years in passing the order dated 05.10.2017 removing the honorary rank from the persons like petitioner. 15. No explanation whatsoever has been indicated as to once the test was held on 09.02.2009 and if persons like the petitioner were required to appear in the said test and they failed to appear, despite that why it took more far than 8 years in passing the order dated 05.10.2017 removing the honorary rank from the persons like petitioner. 15. A perusal of the order dated 21.02.2006 (Annexure-3) quoted hereinbefore clearly indicates that though the same was indicated as ad hoc, the same was not made subject to the petitioner passing the promotion test and/or to any other stipulation. 16. The very fact that for all those years since 2006 to 2017 the petitioner continued to enjoy the honorary rank of HPC, the passing of order dated 05.10.2017 purportedly on the ground of the petitioner failing to appear in a test held way back on 09.02.2009 does not appear to be in regular course of business/bona fide. No explanation whatsoever has been indicated in the reply for the so called delay in passing the order impugned. 17. As already noticed, the respondents have placed on record Annexure-R/13, which pertain to the candidates, who have passed the test held on 09.02.2009 and as has been submitted by learned counsel for the respondents none of the candidates who passed the test was already accorded ad hoc rank of HPC. 18. The said fact clearly indicates that officers, who were holding ad hoc rank were not subjected to the test held on 09.02.2009. No material whatsoever has been produced to indicate calling upon the petitioner to appear in the said test. 19. A spacious plea has been taken in the reply that in Sampark Pared all the Volunteer Home Guards were informed about honorary promotion test, which plea in absence of any material and/or consequential action of the respondents for nonappearance by persons like petitioner clearly appears to be an after thought. 20. 19. A spacious plea has been taken in the reply that in Sampark Pared all the Volunteer Home Guards were informed about honorary promotion test, which plea in absence of any material and/or consequential action of the respondents for nonappearance by persons like petitioner clearly appears to be an after thought. 20. It is also interesting to note that all the 9 persons whose rank has been removed by order dated 05.10.2017 have been removed for the same reason i.e. they did not appear in the promotion test, which is also indicative of the fact that all those who were accorded ad hoc promotion, were not called upon to appear in the promotion test, as this plea cannot be believed that none of the persons who were accorded ad hoc promotion would not have participated in the promotion test, if they were called upon to do so. 21. In view thereof, the entire plea raised by the respondents regarding the petitioner having failed to appear in the test held on 09.02.2009 appears to be a ruse to deprive the petitioner of the honorary rank enjoyed by him, which cannot be sustained. 22. The above aspect is besides the point that though the ad hoc rank was conferred by the Divisional Commander, the order impugned has been passed by the respondent No. 4, who is Commandant only, which is a rank lower than the officer who had passed order Annexure-3, which aspect also vitiates the order dated 05.10.2017. 23. In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 05.10.2017, qua the petitioner, is quashed and set aside.