Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 845 (MP)

Home Department v. Rajendra Singh Rajput

2019-12-04

AJAY KUMAR MITTAL, S.C.SHARMA

body2019
ORDER 1. Regard being had to the similitude in the controversy involved in the present cases, the writ appeals were analogously heard and by a common order, they are being disposed of by this Court. Facts of Writ Appeal No. 1157 / 2019 are narrated hereunder. 2. The present Writ Appeal is arising out of the common order dated 10.12.2018 passed by the learned Single Judge in Writ Petitions No. 10404/2018, 10405/2018 and 10428/2018. 3. Facts of the case reveal that the respondent in the present appeal, who was the petitioner, has filed a Writ Petition being aggrieved by order dated 2.5.2018 by which his promotion was cancelled. He was appointed on the post of Constable in the year 1994 and was promoted to the post of Head Constable in the year 2011. In the year 2015 he was considered for promotion to the next higher post of Assistant Sub-Inspector of Police and a fitness list was published for promotion. His name was included in the fitness list and he was promoted finally by order dated 17.7.2015. The another important aspect of the case is that based upon the representations of two Head Constables namely; Rajesh Handa and Suresh Kushwaha dated 19.7.2016 the promotion order of the petitioner was cancelled by order dated 2.5.2018. In the representations Rajesh Handa and Suresh Kushwaha who were also the Constables, stated that the petitioner was promoted to the post of Head Constable and he had submitted his joining in the night i.e. on 2.12.2011 at 12:00 O’clock and, therefore, he has not completed 3 years of service as Head Constable. The appointing authority taking into account the aforesaid representations, has passed an order cancelling the promotion of the petitioner after almost three years. 4. The learned Single Judge in paragraphs No. 8 to 12 has held as under: 8. Shri Sharan, learned counsel for the petitioners, submitted that cancellation of promotion and reduction in rank is a major punishment which cannot be done in violation of Article 311(2) of the Constitution of India. The respondents have cancelled the promotion of the petitioners without giving any opportunity of hearing, which is not permissible, hence, the impugned order is not sustainable in law and deserves to be set aside. The petitioners never misrepresented for obtaining the promotion. The respondents have cancelled the promotion of the petitioners without giving any opportunity of hearing, which is not permissible, hence, the impugned order is not sustainable in law and deserves to be set aside. The petitioners never misrepresented for obtaining the promotion. Provisions of Rules of 2012 came into force w.e.f. 14.8.2012 are not applicable to the case of the petitioners having applicable prospectively and not retrospectively. 9. On the other hand, Shri Deshmukh, learned Govt. Advocate appearing for the respondents, urged that the petitioners were wrongly promoted to the post of ASI as they did not complete 3 years’ service as Head Constable, therefore, no opportunity of hearing was required to be given as the facts are not in dispute. Promotion given to undeserving incumbent can be set aside at any stage of service career. Promotions to the post of ASI were wrongly given to the petitioners and such cancellation of promotion is not a punishment, therefore, no opportunity of hearing was required. Hence, the petitions are liable to be dismissed. 10. Respondents issued the fitness list in the year 2015 of eligible Head Constables for promotion to the post of ASI, in which, name of petitioners was there. The petitioners were promotion to the post of Head Constable w.e.f. 2.12.2011. According to the respondents, they joined their service on the post of Head Constable after 12 ‘O’ clock in the night, therefore, they are not eligible for promotion as they did not complete actual 3 years as Head Constable w.e.f. 1.1.2015. Respondents have placed reliance over the Rules of 2012 which came into force on 14.8.2012. As per Schedule ‘A’ appended to the Rules of 2012, three years’ complete service as on 1st January of the year of promotion is required for promotion from the post of Head Constable to the post of ASI. Respondents have placed reliance over the Rules of 2012 which came into force on 14.8.2012. As per Schedule ‘A’ appended to the Rules of 2012, three years’ complete service as on 1st January of the year of promotion is required for promotion from the post of Head Constable to the post of ASI. Relevant part of Schedule ‘A’ is reproduced below:- vkj{kd ds Á/kku vkj{kd ,oa Á/kku vkj{kd ls lgk;d mi&fujh{kd ij inksUufr gsrq %& ØŒ laŒ in ik=rk ds ekin.M ¼d`i;k ns[ks fu;e&6½ vkpj.k ds ekin.M ¼d`i;k ns[ks fu;e&6½ foHkkxh; inksUufr lfefr dk xBu ¼d`i;k ns[ks fu;e&4½ baMD'ku dkslZ ¼d`i;k ns[ks fu;e&7½ ;ksX;rk lwph tkjh djus gsrq l{ke vf/kdkjh ¼d`i;k ns[ks fu;e&7½ 2- Á/kku vkj{kd ls lgk;d mifujh{kd ftl o"kZ inksUufr nh tkuk gS ml o"kZ dh ,d tuojh dks Á/kku vkj{kd ds :i esa U;wure 03 o"kZ dk lsokdky iw.kZ gksuk pkfg,A ¼1½ iw.kZ lsokdky esa ,d ls vf/kd cM+h ltk ugha feyh gksA Á/kku vkj{kd ls lgk;d mi&fujh{kd inksUufr gsrq lacaf/kr mi&iqfyl egkfujh{kd@mi&iqfyl egkfujh{kd jsUt foHkkxh; inksUufr lfefr ds xBu ds fy;s l{ke vf/kdkjh gksaxsA foHkkxh; inksUufr lfefr esa 02 iqfyl v/kh{kd] 01 vfrŒiqŒvŒ laoxZ dk vf/kdkjh gksxk foHkkxh; inksUufr lfefr esa de ls de ,d lnL; vŒtkŒ@vŒtŒtkŒ dk gksxkA ¼1½ Á/kku vkj{kd ls lŒmŒfuŒ dh inksUufr ds i'pkr fd;s tkus okyk fu/kkZfjr baMD'ku dkslZA mi&iqfyl egkfujh{kd ¼2½ foxr 3 o"kksZ esa dksbZ cM+h ltk ugha feyh gksA ¼2½ VªsM lgk;d mi&fujh{kd ds fy, i`Fkd ls fu/kkZfjr baMD'ku dkslZA ¼3½ fiNys 5 o"kksZ esa NksVh ltkvksa ls bZuke vf/kd gksA ¼4½ lfu"Bk ij lansg u gks ¼lfu"Bk bdkbZ Áeq[k }kjk lR;kfir dh tkosxh½ 11. The petitioner was promoted to the post of Head Constable on 1.12.2011 and even if his date of joining as Head Constable is taken to be 2.12.2012, three years’ is liable to be reckoned from 1.1.2012 to 1.1.2015 as three years complete service, because he was considered for promotion to the post of ASI in the year 2015. Therefore, as on 1.1.2015, they had completed even more than three years complete service as Head Constable. It is not clear from the impugned order as to how the respondents have considered the petitioners ineligible by counting his service from 2.12.2011. Therefore, as on 1.1.2015, they had completed even more than three years complete service as Head Constable. It is not clear from the impugned order as to how the respondents have considered the petitioners ineligible by counting his service from 2.12.2011. The petitioners were promoted to the post of ASI vide order dated 1.9.2015, therefore, as per Rules of 2012, their three years’ complete service was liable to be counted as on 1.1.2015 as Head Constable and which they have already completed. Hence, the respondents have wrongly cancelled the promotion of the petitioners. 12. In view of the foregoing discussion, the petitions deserve to be and are hereby allowed. Impugned order dated 2.5.2018 cancelling the promotion of the petitioners is hereby set aside. All the writ petitions are allowed with the cost of Rs. 5,000/- (Five Thousand only) each payable to the petitioners. 5. Undisputedly, the petitioner was promoted as Head Constable on 1.12.2011 and even if it is presumed that he has joined as Head Constable on 2.12.2012, three years’ service is over on 1.1.2015 and, therefore, he was rightly considered for promotion to the post of Assistant Sub-Inspector in the year 2015. Otherwise also, the order dated 2.5.2018 has been passed in utter violation of the principles of natural justice and fair play. The petitioner was having 3 years experience on the post of Head Constable, his case for promotion was recommended by the duly constituted promotion committee and he was found fit for promotion and, therefore, the impugned order of reversion which has been passed after 3 years of the promotion of the petitioner, without granting any opportunity of hearing, has rightly been set aside by the learned Single Judge. 6. This Court does not find any reason to interfere with the order passed by the learned Single Judge and, therefore, the present appeal and other connected appeals stand dismissed. A copy of this order be placed in the record of connected appeals. .................