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Himachal Pradesh High Court · body

2020 DIGILAW 798 (HP)

Brij Bhushan v. State of H. P.

2020-11-02

AJAY MOHAN GOEL

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ORDER : Ajay Mohan Goel, J. (Through Video Conference) 1. By way of this writ petition, the petitioners have prayed for the following substantive reliefs:- "(i) That impugned order dated 05.01.2016 Annexure A-8 may kindly be quashed and set aside. (ii) That the impugned seniority list dated 11.1.2016 Annexure A-9 may kindly be quashed and set aside by further ordering that respondent No. 4 may be placed below all the applicants. (iii) That standing orders Order No. 19226 dated 19.10.2015 may kindly be ordered to be summoned from the respondents and the same may kindly be quashed and set aside." 2. Brief facts necessary for the adjudication of this petition are as under:- The case of the petitioners is that they were serving as Sub Inspectors in the Communication & Technical Services of Himachal Pradesh Police. Their grievance is with regard to reflection of the private respondent over and above them in the seniority list of Sub Inspectors, who was promoted to the said post on account of 'Prime Minister's Police Medal for Life Saving' having been conferred upon him. According to the petitioners, the Standing Orders issued by the respondent-Department from time to time nowhere provide that upon promotion, respondent No. 4 could have been granted seniority over and above them. 3. The private respondent was awarded 'Prime Minister's Police Medal for Life Saving' in the year 2003. At the relevant time, Standing Order No. P.II (4) of 2002 (copy of which is appended with the petition as Annexure A-3), was in force. This Standing Order was issued under the provisions of Police Rules 13.19 and 13.21 which provided for one rank out of turn promotion to enrolled Police Officers (up to the rank of Inspector of Police), who were awarded Police Medals mentioned therein and those who during discharge of their officials duties exhibit exceptional courage or presence of mind and devotion to duty or high degree of professional competence. The medals which were mentioned in this Standing Order included 'Prime Minister's Police Medal for Life Saving'. 4. Clause 2 of the Standing Order provided as under:- "2. The medals which were mentioned in this Standing Order included 'Prime Minister's Police Medal for Life Saving'. 4. Clause 2 of the Standing Order provided as under:- "2. Promotions under this scheme shall be governed as under:- (i) Enrolled Police Officers up to the rank of Assistant Sub Inspector of Police who are awarded any Police Medal out of those mentioned in para-1 shall be promoted to the next higher rank immediately, subject to vacancy, and then deputed to under to prescribed promotion courses in the next batch irrespective of other eligibility conditions. (ii) They will not be reverted to the lower rank while undergoing such promotion courses. (iii) In case of Sub-Inspectors of Police, they shall be immediately promoted to the next higher rank, irrespective of other eligibility conditions and their seniority will be reckoned from their date of promotion". 5. As per the petitioners, this Standing Order nowhere provided that upon promotion as Sub Inspector on out of turn basis, the incumbent was also entitled for seniority because the Standing Order was clear and categoric that seniority could have been conferred only in case of Sub Inspectors of Police getting promoted, who in terms of Standing Order, were to gain seniority from the date of promotion. 6. Petitioners have also referred to Standing Order No. 4 of 2007, appended with the petition as Annexure A-4. By referring to Clause 4 of the same, it stands pointed out that it was for the first time that, in this Standing Order it was contemplated that enrolled Police Officers up to the rank of Assistant Sub Inspector of Police, who are awarded any Police Medal mentioned in para 2 thereof, would be entitled for seniority in the higher rank immediately after passing the prescribed promotion course and not on the basis of seniority from the date of promotion on out of turn basis. Reference has also been made to another Standing Order dated 31.12.2013 appended with the petition as Annexure A-5, wherein also similar condition is provided and by referring to the same, the petitioners contend that the grant of seniority to the private respondent from the date of his promotion as Sub Inspector is bad in law and the final seniority list in which the private respondent is reflected over and above the petitioners is thus not sustainable in law. 7. The respondents have contested the claim of the petitioners. 7. The respondents have contested the claim of the petitioners. As per the respondent-Department, the private respondent was awarded the 'Prime Minister's Police Medal for Life Saving' in the year 2003 and was rightly and legally promoted to the rank of Sub Inspector/CTS in terms of Standing Order No. P.II (4) of 2002. As the petitioners were not the awardee of any of the Medals mentioned in the Standing Order P.II (4) of 2002, therefore, as per the respondents, they had no locus standi to challenge grant of promotion to the private respondent or seniority conferred upon him and that too belatedly. 8. I have heard learned Counsel for the parties and gone through the pleadings as well as documents appended with the petition. 9. The grievance of the petitioners is that upon promotion to the post of Sub Inspector on account of 'Prime Minister's Police Medal for Life Saving' having been awarded to the private respondent, he was not entitled for seniority as from the date of his promotion on out of turn basis. This is the sole issue of contention between the petitioners and private respondent and the reliefs prayed for by the petitioners are primarily around this premise only. 10. Before proceeding further, I will refer to the orders, quashing of which, is sought by way of this petition. Impugned order dated 5.01.2016, Annexure A-8, is the order passed by the Superintendent of Police, Communication and Technical Services, H.P., vide which the representations of the petitioners filed against tentative/provisional seniority list of Sub Inspectors/CTS, as it stood on 31.10.2015, in which, the private respondent was reflected above the petitioners, stood rejected by the authority concerned by holding that the same were devoid of any merit and tentative seniority list was prepared rightly and legally. Impugned seniority list dated 11.1.2016, Annexure A-9, which is the final seniority list of Sub Inspectors/Operators, as it stood on 31.11.2015, is the one which stood finalized after rejection of the petitioners' representation, in which, the name of private respondent is reflected at Serial No. 2 on the basis of his being promoted against the post of Sub Inspector on 10.6.2003, whereas, the names of the petitioners are reflected at Serial No. 14 onwards on the basis of their being promoted to the post of Sub Inspector on 01.03.2005 and thereafter. Impugned Standing Order No. 19226, dated 19.10.2019, was not appended with the original application as filed before the erstwhile Tribunal. 11. The promotion of private respondent as Sub Inspector, on out of turn basis, on the basis of 'Prime Minister's Police Medal for Life Saving' having been awarded to him, is not the subject matter of challenge in this petition, as quashing of the same has not been prayed for by the petitioners. 12. Private respondent stood promoted against the post of Sub-Inspector on out of turn basis w.e.f. 10.06.2003. It is not in dispute that he stood promoted to the post of Sub-Inspector on 10.06.2003, whereas the petitioners were promoted to the post in issue in the month of March, 2005 and thereafter. Though the private respondent was junior to the petitioners as Assistant Sub-Inspector, however, he gained promotion over and above the petitioners to the post of Sub-Inspector on out of turn basis. The Standing Order, which was occupying the field, when the private respondent was given out of turn promotion, is Standing Order No. P-II(4) of 2002. Clause 2 of the said Standing Order has already been quoted by me hereinabove. In the case of a Sub-Inspector being promoted to the next higher post, this Clause clearly provides that irrespective of other eligibility conditions, seniority of such an incumbent shall be reckoned from the date of promotion. In the case of enrolled Police Officers up to the rank of Assistant Sub-Inspector of Police, who are awarded any of the Police Medal mentioned therein, the Clause contemplates that they shall be promoted to the next higher rank immediately, subject to vacancy, and then deputed to undergo prescribed promotion courses in the next batch irrespective of other eligibility conditions. 13. The subtle difference which exists between the enrolled Police Officer up to the rank of Assistant Sub-Inspector of Police and the Officer of the rank of Sub-Inspector of Police is that whereas in terms of the abovementioned Standing Order, promotion of an enrolled Police Officer up to the rank of Assistant Sub-Inspector is dependent on the availability of vacancy, there is no such embargo in the case of Sub-Inspector of Police who is to be promoted to the next promotional post on out of turn basis. Another embargo which exists as far as enrolled Police Officer up to the rank of Assistant Sub-Inspector of Police is that after promotion, which is subject to vacancy, the promoted officer is deputed to undergo prescribed promotion courses in the next batch irrespective of other eligibility conditions, no such condition is there as far as Sub Inspector of Police is concerned. 14. It is settled law that the seniority of an employee in a cadre is as from the date on which the employee is born in that cadre. In this particular case, the respondent-Department, which promoted the private respondent to the post of Sub-Inspector of Police has given him seniority as from the date of his promotion, i.e. with effect from 10.06.2003, which is the date on which he was promoted as Sub-Inspector. Admittedly, on the date when the private respondent stood promoted as such, may be on out of turn basis, the petitioners were still serving in the cadre of Assistant Sub-Inspectors. Thus, private respondent became senior to the petitioners because he ceased to be in the cadre of Assistant Sub-Inspectors and gained promotion to the next cadre before the petitioners. 15. It is not the case of the petitioners that as on 10.06.2003, when the private respondent stood promoted against the post of Sub-Inspector, no vacancy of Sub-Inspector was existing. Now incidentally, if we peruse the language of other Standing Orders, which have been appended with the petition, i.e. Standing Order No. 4 of 2007, dated 23.06.2007 (Annexure A-4) and Standing Order dated 31.12.2013 (Annexure P-5), a perusal of the contents thereof demonstrates that in these Standing Orders, it was expressly mentioned that as far as seniority of the enrolled Police Officers up to the rank of Assistant Sub-Inspector of Police, who are awarded any of the Police Medals mentioned in the Standing Order, was concerned, the same was to be regulated after passing the prescribed promotion courses. The only inference, which can be drawn from this condition which subsequently stood expressly incorporated in the said Standing Orders, is that earlier neither there was any such condition in the Standing Order, nor the seniority of the promoted enrolled Police Officers up to the rank of Assistant Sub-Inspector, post promotion was dependent on clearing of prescribed promotion courses. The only inference, which can be drawn from this condition which subsequently stood expressly incorporated in the said Standing Orders, is that earlier neither there was any such condition in the Standing Order, nor the seniority of the promoted enrolled Police Officers up to the rank of Assistant Sub-Inspector, post promotion was dependent on clearing of prescribed promotion courses. Subsequently, in order to impose certain conditions as far as conferment of seniority vis-a-vis such like Officers who gained promotion on out of turn basis and other Officers is concerned, clarification stood incorporated in the later Standing Orders. 16. When the private respondent stood promoted on out of turn basis, it was Standing Order No. P.II(4) of 2002, which was occupying the field, as has been already mentioned hereinabove, and in terms thereof, there was no such condition that the seniority of the promoted incumbent was to be gained as from the date when he successfully cleared the prescribed promotion courses. The argument of learned Senior Counsel for the petitioners that as Standing Order of the year 2002 (Annexure A-3) did not expressly provide for conferment of seniority to the enrolled Police Officer up to the rank of Assistant Sub-Inspector of Police, who were promoted on out of turn basis, therefore, the petitioners on their routine promotion to the post of Sub-Inspector were entitled to steal march over the private respondent as far as seniority is concerned, is totally misconceived. This I say so for the reason that in service jurisprudence, when a person is born in a cadre by way of promotion, then, it is the date of his being born in the cadre, may be by way of promotion, which governs his seniority. The only exception was the candidates belonging to the Scheduled Caste and Scheduled Tribe categories, wherein the field, before the necessary amendment was incorporated in the Constitution of India, was governed by the judgment of Hon'ble Supreme Court of India in Ajit Singh (II) vs. State of Punjab, (1999) 7 SCC 209 . 17. The only exception was the candidates belonging to the Scheduled Caste and Scheduled Tribe categories, wherein the field, before the necessary amendment was incorporated in the Constitution of India, was governed by the judgment of Hon'ble Supreme Court of India in Ajit Singh (II) vs. State of Punjab, (1999) 7 SCC 209 . 17. Therefore, in this background, the act of the respondent-Department of conferring seniority upon the private respondent as Sub-Inspector of Police, on his promotion on out of turn basis, as from the date of promotion, cannot be faulted with and this Court is of the view that the seniority has been rightly conferred by the respondent-Department to the private respondent and representations of the petitioners have also been rightly rejected by the competent authority. 18. Incidentally, during the course of arguments, this Court was informed that the private respondent had already passed the relevant prescribed Courses, which were necessary for a candidate to pass for being promoted to the post of Sub-Inspector from the post of Assistant Sub-Inspector while he was serving as Assistant Sub-Inspector before his out of turn promotion and the courses were successfully undergone by him much before the petitioners. This submission made by learned Counsel for the private respondent could not be controverted during the course of arguments, and therefore also, no fault can be found in the act of respondent-Department of conferring seniority upon the private respondent as from the date of promotion. 19. In view of the findings returned hereinabove, this writ petition being devoid of any merit, is dismissed. Interim order(s), if any, stand vacated. Pending miscellaneous application(s), if any, also stand disposed of accordingly. No order as to costs.