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2019 DIGILAW 162 (GAU)

SHEO PRASAD RAM v. UNION OF INDIA

2019-02-05

A.K.GOSWAMI, A.S.BOPANNA

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JUDGMENT : A.S. Bopanna, J. 1. Heard Mr. U.K. Nair, learned senior counsel assisted by Mr. A. Chetry, learned counsel for the petitioner. Also heard Mr. S.C. Keyal, learned Assistant Solicitor General of India for Respondent No.1 and Mr. T.C. Chutia, learned Additional Senior Government Advocate, Assam for Respondents No.2 and 3. 2. The petitioner is before this Court assailing the order dated 09-09-2010 passed by the Central Administrative Tribunal, for short "CAT", in Original Application No.220 of 2009 and Misc. Application No.126 of 2010. Through the said order, the CAT has dismissed the application filed by the petitioner herein thereby declining the relief for which the petitioner had approached the CAT. It is in that light, the petitioner is before this Court assailing the said order. 3. The petitioner herein is an IPS Officer of 1974 Batch, belonging to the joint cadre of Assam Meghalaya. The petitioner was before the CAT limiting his claim ultimately to grant him the benefit of promotion to the post of DGP with effect from 14-03-2005 and for the consequential monetary benefits. The facts leading to such prayer before the CAT was that the name of the petitioner was at Serial No.7 in the seniority list, while that of one Shri W.R. Marbaniang, an IPS Officer of the 1975 Batch, was at Serial No.11. In that view, it was contended by the petitioner that despite the petitioner being senior to the said Shri W.R. Marbaniang, the Respondent No.4 before the CAT, namely the State of Meghalaya, vide notification dated 14-03-2005, promoted him to the post of DGP, Meghalaya, in the pay scale Rs. 24050-65 26000/- with effect from the date of taking over charge until further orders. 4. The petitioner at that point of time was on deputation to the Government of India in the Ministry of Railways. It is in that background, the petitioner contends that, in a circumstance where the said Shri W.R. Marbaniang was promoted by the State of Meghalaya overlooking the seniority of the petitioner herein in the joint cadre, the petitioner would also be entitled to such consideration to the ex-cadre post of DGP with effect from 14-03-2005. It is in that view, the petitioner had claimed the benefit in his application before the CAT. It is in that view, the petitioner had claimed the benefit in his application before the CAT. The fact that the petitioner herein has been granted such benefit by the State of Assam to which cadre the petitioner belongs through the notification dated 22-05-2008, is not in dispute. However, as noticed, since the benefit claimed by the petitioner is from 14-03-2005, the petitioner not being satisfied with the order dated 22-05-2008, was before the CAT claiming the present relief subsequent to the communication dated 27-05-2009 was issued. In that circumstance, the only issue for consideration in a petition of the present nature is as to whether such benefit, as claimed would be admissible, and as to whether the CAT, while taking note of this aspect, had arrived at an appropriate conclusion. 5. The learned senior counsel for the petitioner, while assailing the order passed by the CAT, would contend that the CAT was not justified in declining the relief by making an observation that the very promotion granted to said Shri W.R. Marbaniang to the post of DGP was contrary to law and, therefore, such benefit cannot be extended to the petitioner. Learned senior counsel would refer to the Indian Police Service (Cadre) Rules, 1954, with specific reference to clause 4(2) thereof which provides for the cadre strength and, in that regard, it is pointed out that the State Government concerned may provide for a period not exceeding two years and with the approval of the Central Government for a further period not exceeding two years, to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to the cadre posts. In that light, it is contended that when the State Government has exercised the power and issued the notification dated 22-05-2008, in the present circumstance, when a junior officer of the same cadre has been promoted, such powers ought to have been exercised by providing the benefit from the same date when his junior had been promoted and appropriate approval was required to be taken from the Central Government and in a situation where the petitioner was to attain the age of superannuation on 31-03-2009, if an appropriate order had been made earlier, the benefit would be available to the petitioner at the time of his superannuation. In that light, even at this stage if a consideration to that effect is made, though the petitioner has superannuated, the monetary benefits in terms of pensionary benefits would be available to the petitioner. It is in that light, contended that appropriate direction is necessary to be issued to the Central Government as well as the State Government to pass appropriate orders and obtain approval in accordance with law. 6. Learned Additional Senior Government Advocate, Assam as also the learned Assistant Solicitor General of India, would however oppose the contentions as put forth by the learned senior counsel for the petitioner. Learned Additional Senior Government Advocate, Assam, has, with reference to the objection statement filed before the CAT indicating the stand of the State Government, would point out that the admitted case of all the parties appear to be that the promotion accorded to Shri W.R. Marbaniang, is contrary to law and, in such circumstance, the petitioner cannot seek that the illegalities is to be perpetuated. Even otherwise to the extent possible, the State Government, in order to protect the officer of its cadre, has taken a decision and passed an order dated 22-05-2008 and accorded the benefit to the petitioner. Beyond the same, unless there is a concurrence from the Central Government, no action could be taken by the State Government and, therefore, he contends that the CAT having taken into consideration all these aspects had arrived at a conclusion and, therefore, the order does not call for interference. 7. The learned Assistant Solicitor General of India would refer to the communication dated 21-12-2005 (Annexure-II with the writ petition papers) to point out that as far back as on the said date itself, the Central Government has taken a stand that the promotion granted to Shri W.R. Marbaniang is contrary to law and had indicated to the State of Meghalaya to reverse the situation. In that light, he contends that in such circumstance, the prayer made on behalf of the petitioner would not be justified. 8. In that light, he contends that in such circumstance, the prayer made on behalf of the petitioner would not be justified. 8. In the light of the rival contentions and in that background, a perusal of the consideration made by the CAT would disclose that there is no room for making any other consideration except to at the outset notice the common case of all the parties that the promotion accorded to Shri W.R. Marbaniang to the post of DGP by the State of Meghalaya, though he was below the petitioner herein and the three other officers, was contrary to the seniority position of the joint cadre. In normal circumstance, the senior officers could have availed their remedy in accordance with law to question such promotion and seek for an appropriate relief. Be that as it may, in the instant case, since the petitioner nor any other senior officers have resorted to that position and, in that light, at present through the order dated 22-5-2008, the Government of Assam has in exercise of Rule 4 of the Indian Police Service (Cadre) Rules, 1954 to the extent has sought to remedy the position by granting the proforma promotion to the petitioner and other officers with effect from the date of the notification, the issue is as to whether in such situation, the benefit should be accorded from 14-03-2005 and, in that regard, whether necessary directions have to be issued ? To that effect, having taken into consideration all aspects and Rule 4(2) of the Indian Police Service (Cadre) Rules, 1954, the State Government, in any event, could have granted the benefit only for the period of 2(two) years and beyond the same, it was for the Central Government to consider to extend for the next 2(two) years. Therefore, in that circumstance, presently no direction is required to be issued to the Government of Assam, at this stage. 9. Therefore, in that circumstance, presently no direction is required to be issued to the Government of Assam, at this stage. 9. However, taking note of the contention put forth by the learned senior counsel for the petitioner that the petitioner having retired from service on 31-03-2009, a consideration of the pensionary benefits with the proforma promotion from 14-03-2005 is required to be made, the only aspect we find at this stage is to take note that the Central Government, in fact, had been notified by the Government of Assam with regard to the requests of the petitioner and three other officers seeking creation of four ex-cadre posts on the apex level in view of the promotion granted to Shri W.R. Marbaniang who was their junior in the joint cadre. Such communication was made as far back as in the year 2005 immediately after the promotion had been granted to Shri W.R. Marbaniang. The Central Government through its communication dated 21-12-2005 though being aware of the position and also having arrived at the conclusion that the promotion granted to Shri W.R. Marbaniang overlooking the seniority of the petitioner and three other officers was not appropriate, had indicated to the State of Meghalaya through the said communication to consider reversal to be affected. Thus, though the same was within the knowledge of the Central Government and such communication had been issued, no further action has been taken by the Central Government to remedy the situation but allowed the illegal promotion to continue. It is in that background, we take note that the State of Assam had, thereafter, issued the notification dated 22-05-2008 to remedy the situation to the extent possible. Therefore, in the present circumstance and limited to the facts of the case arising herein, we are of the opinion that even though a specific direction to the Central Government to grant the benefit, at this stage would not lie, the Central Government is however required to take note of the situation that though it was aware of the wrongful promotion granted to Shri Marbaniang as far back as on 14-03-2005 itself, since they have allowed the situation to continue. In that background, since the petitioner and three other officers had made representation to the State Government, which has made favourable consideration through the notification dated 22-05-2008 to the extent they are empowered, a consideration by the Central Government at this stage as to whether the benefits either for the lost period between 14-03-2005 and 22-05-2008 for all benefits or to count the said period in the promoted post i.e. for the pensionary benefits is required to be made by them and appropriate orders is required to be passed. In this regard, they shall make a consideration on all aspects including the fact of the illegal promotion being within their knowledge in 2005 and take a decision in accordance with law. Such decision shall be taken as expeditiously as possible, but not later than three months and the nature of the decision taken shall be communicated to the petitioner. Hence, except for the observation to the extent as made, we do not see any reason to interfere with the order passed by the CAT. 10. In terms thereof, the instant petition stands disposed of.