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2023 DIGILAW 1 (HP)

Maan Singh v. State of H. P.

2023-01-02

SATYEN VAIDYA

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JUDGMENT : SATYEN VAIDYA, J. 1. By way of instant petition, petitioner has prayed for the following substantive relief: “(i) That a writ in the nature of mandamus may be issued directing the respondents to promote the petitioner as Deputy Superintendent of Police on ad-hoc basis w.e.f. 9.7.1999 and thereafter to regularize the promotion as Deputy Superintendent of Police w.e.f. 29.4.2006 against the vacancy available for general category in the year 1999 in order of merit cum seniority and such promotion may very kindly be ordered to be granted with all consequential benefits of pay, arrears, seniority, etc. etc.” 2. The case of the petitioner in nut-shell is that he was appointed as Constable in Himachal Pradesh Police on 30.10.1974. He was promoted as Head Constable in the year 1981. He qualified the Intermediate Course and was promoted as Assistant Sub-Inspector in the year 1986. Petitioner was further promoted as Sub-Inspector in the year 1990 and as Inspector on 22.8.1995. He was confirmed as Inspector w.e.f. 30.3.1998. 3. The grievance of the petitioner is that his juniors Inspectors with similar qualifications and with relaxation in educational qualifications were promoted as DSPs on ad-hoc basis w.e.f. 9.7.1999, whereas petitioner was denied the benefit of ad-hoc promotion as DSP till 2.11.2000 without any basis. 4. Further objection of the petitioner is that in DPC held on 18.4.2006 for promotion to the post of Deputy Superintendent of Police on regular basis, again the juniors of the petitioner were promoted by ignoring him. Petitioner made various representations but justice was not imparted to him 5. It is further submitted on behalf of the petitioner that representations of petitioner remained undecided with the observation to await the decision in CWP No. 3174 of 2012 as the respondents had clearly identified the case of petitioner to be similar to the case of petitioner in CWP No. 3174 of 2012. 6. In rejoinder, the petitioner clarified that during the pendency of instant petition, CWP No. 3174 of 2012 was decided by this Court on 8.4.2013 and the issue was decided in favour of the petitioner in that case. Petitioner further placed on record a copy of order dated 1.7.2014, issued by the Chief Secretary to the Government of Himachal Pradesh, whereby all consequential benefits were granted to the petitioner in CWP No. 3174 of 2012. 7. Respondents filed their reply. Petitioner further placed on record a copy of order dated 1.7.2014, issued by the Chief Secretary to the Government of Himachal Pradesh, whereby all consequential benefits were granted to the petitioner in CWP No. 3174 of 2012. 7. Respondents filed their reply. It is evident from the reply of respondents that the factual position with respect to the date of initial appointment of petitioner, his further promotions and seniority position in the rank of Inspector was not denied. It has also not been denied that the juniors to the petitioner were promoted firstly on ad-hoc basis and then on regular basis before petitioner. The only visible defence of the respondents is that the petitioner had already received the benefit of scheduled caste category in the matter of promotion and as such, he could not again get the benefit to be promoted on the basis of jumped up seniority, till the time the representation of scheduled caste (reserved) category fell short by the prescribed percentage of reservation. 8. I have heard learned counsel for the parties and have also gone through the record carefully. 9. Respondents have not disputed the factual aspect that the representations of the petitioner were not finally decided and were kept pending awaiting the decision in CWP No. 3174 of 2012. It will be relevant to reproduce the contents of note sheets of the department from N-352 and N-353, as under: “N-352 So far his regular promotion by considering him among General Category candidates is concerned, as per information received from the DGP, H.P. he had already derived the benefit of reservation. The instructions dated 27.05.1996 in this regard are reproduced as under: “If a candidate has taken a benefit of promotion on account of reservation at any stage and has gained seniority above the senior general candidate in the promoted post, such reserved candidate will not be entitled to the consideration for the next promotion on the basis of such jumped up seniority till such time the representation of the said reserved category falls short of the prescribed percentage of reservation.” N-353 Hence he has rightly been considered for promotion among ST category candidates by the DPC held during 2006 and subsequent DPCs and was promoted as such on 7.10.2008. It is also pertinent to mention here that a case CWP No. 3174/2012 on similar grounds is pending in Hon’ble High Court, H.P.” 10. It is also pertinent to mention here that a case CWP No. 3174/2012 on similar grounds is pending in Hon’ble High Court, H.P.” 10. Thus, it is clear that the respondents had no doubt regarding similarity of issues involved in the case of petitioner as also in CWP No. 3174 of 2012. 11. From perusal of judgment passed by a Coordinate Bench of this Court in CWP No. 3174 of 2012, it is clear that the issue involved in said case related to application of “catch up” principle. The official respondents in said case had raised the contention that since the petitioner in that case had availed the benefit of Scheduled Tribe category at the time of passing of Intermediate Course, it was a case of accelerated promotion and the said petitioner could not be considered for further promotion in view of “catch up” principle. 12. In the instant case also the stand of respondents is that petitioner had derived the benefit of reservation under Scheduled Tribe category, while he was deputed to undergo the Intermediate School Course in October, 1985, therefore, he was not entitled to the consideration for the next promotion on the basis of such jumped up seniority till such time the representation of the said reserved category fell short of the prescribed percentage of reservation. 13. Undisputedly, petitioner was promoted as Assistant Sub-Inspector in the year 1986 after qualifying the aforesaid Intermediate School Course. Similar was the fact situation in the case of petitioner in CWP No. 3174 of 2012. In that case also, the petitioner was promoted as Assistant Sub-Inspector after he had qualified Intermediate Course by taking the benefit of Scheduled Tribe category. 14. While considering the above noted fact situation in CWP 3174 of 2012 the Coordinate Bench of this Court held the principle of “catch up” not applicable, by observing as under: “6. Petitioner was promoted as Assistant Sub-Inspector in the year 1988 after he had qualified the intermediate course by taking benefit of Scheduled Tribe category. However, fact of the matter is that when the petitioner was promoted to the post of Sub-Inspector, he has not been promoted against the roster point reserved for Scheduled Tribe category, but as per rule 13.21 of the Punjab Police Rules. Rule 13.21 of the Punjab Police Rules reads as under: “13.21. Power of relaxation. However, fact of the matter is that when the petitioner was promoted to the post of Sub-Inspector, he has not been promoted against the roster point reserved for Scheduled Tribe category, but as per rule 13.21 of the Punjab Police Rules. Rule 13.21 of the Punjab Police Rules reads as under: “13.21. Power of relaxation. Where the Inspector-General of Police is of the opinion that it is necessary or expedient so to do, he may, by order for reasons to be recorded in writing relax any of the provisions of this Chapter with respect of any class or category of persons.” 7. Petitioner has further been promoted to the post of Inspector on the basis of Seniority of Sub-Inspectors not against the roster point of Schedule Tribe, Respondent-State was directed to file supplementary affidavit whether the petitioner was considered for the post of Inspector against the roster point reserved for Scheduled Tribe Category candidate as per order dated 5.3.2013. The supplementary affidavit was filed by the Director General of Police on 26.3.2013. It is specifically stated therein that the petitioner was not given the benefit of reservation while promoting him to the rank of Inspector. In the seniority list of Inspectors of Police circulated on 22.1.2003, as it stood on 1.10.2002, petitioner was at S. No. 113 and private respondents No. 4 to 8 were at S. No. 115, 117, 122, 123 and 131, respectively. In the tentative seniority list of Inspectors of Police issued on 28.1.2005, as it stood on 1.1.2005, High petitioner is at S. No. 103 and private respondents No. 4 to 8 were at S. No. 105, 107, 112, 113 and 118, respectively. The Departmental Promotion Committee met on 27.11.2006. Case of the petitioner was required to be considered against the general category and not against the eligible Scheduled Caste/Scheduled Tribe candidates. Case of the petitioner has been considered by treating him as Scheduled Tribe candidate by treating his case as jump up seniority. This is contrary to law. Hypothetically, the promotion of the petitioner to the post of Assistant Sub-Inspection can be taken as. Thereafter, he was promoted as Sub-Inspector on 15.12.1994 with effect from 25.11.1993 but not again the roster point of Scheduled Tribe, but as per rule 13.21 of the Punjab Police Rules. This can be taken as L-2. This is contrary to law. Hypothetically, the promotion of the petitioner to the post of Assistant Sub-Inspection can be taken as. Thereafter, he was promoted as Sub-Inspector on 15.12.1994 with effect from 25.11.1993 but not again the roster point of Scheduled Tribe, but as per rule 13.21 of the Punjab Police Rules. This can be taken as L-2. Thereafter, petitioner was promoted as Inspector on the basis of merit-cum-seniority on the basis of seniority list of Sub-Inspectors. It can be treated hypothetically L-3. He has not taken the benefit of belonging to Scheduled Tribe category at the time when he was promoted as Sub-Inspector on 15.12.1994 with effect from 25.11.1993 and Inspector on 10.12.1998. He was senior to the private respondents, whose names were recommended by the Departmental Promotion Committee in its meeting held on 27.11.2006 by considering the case of the petitioner on the basis of Scheduled Tribe category. Petitioner again has been considered against the post of Scheduled Tribe category in the Departmental Promotion Committee held on 30.9.2008 instead of general category as per the seniority list of Inspectors of Police issued either on 22.1.2003 or 28.1.2005. Petitioner was fully eligible as per rules since he had two years experience as Inspector of Police. It is not the case of the respondent-State that the persons of the general category have caught up with the petitioner at L-2 or L-3. Thus, the principle of accelerated/jump up seniority would not be applicable and the petitioner was required to be considered as per the seniority list of Inspectors for induction into H.P.P. Services. Respondent-State has misconstrued the notification dated 27.5.1996. In order to complete the facts at this stage, it is noted that the petitioner has been inducted into H.P.P. Services on 18.6.2009.” 15. After considering the factual position, as noted above and also the applicable law, the Coordinate Bench proceeded to pass the following directions while disposing of the said writ petition: “11. Accordingly, in view of the observations and discussions made hereinabove, the writ petition is allowed. Respondents are directed to consider the case of the petitioner for induction into H.P.P. Services for the vacancies, which were available in the years 2004, 2005, 2006 onwards, on the basis of seniority list circulated on 22.1.2003 or 28.1.2005 by convening review Promotion Committee, within a period of eight weeks from today. Respondents are directed to consider the case of the petitioner for induction into H.P.P. Services for the vacancies, which were available in the years 2004, 2005, 2006 onwards, on the basis of seniority list circulated on 22.1.2003 or 28.1.2005 by convening review Promotion Committee, within a period of eight weeks from today. If the petitioner is found suitable, he shall be promoted with all the consequential benefits. In normal circumstances, promotions of private respondents were liable to be quashed and set aside, but in order to balance the equities, their promotions are not quashed and the respondent-State is directed to create supernumerary post if the petitioner is found suitable for the post of Deputy Superintendent of Police. Pending applications, if any, also stands disposed of. No costs.” 16. Since the respondents had withheld the decision on the representations of petitioner on account of pendency of CWP No. 3174 of 2012 and now since the said petition stands finally decided and the respondents have implemented the same in letter and spirit, the case of the petitioner is also required to be finally considered and decided by the respondents in terms of the judgment passed in CWP No. 3174 of 2012. 17. Another contention of the petitioner that his ad-hoc promotion as Deputy Superintendent of Police was delayed without any basis also deserves to be upheld. Admittedly, the ad-hoc promotions were made on the basis of seniority. Though, the minimum educational qualification for the post of Deputy Superintendent of Police was Graduation, relaxation was given in cases of many Inspectors, who were Matriculate. Petitioner was also in the same category. The juniors of petitioner were promoted as DSPs on ad-hoc basis w.e.f. 9.7.1999, whereas petitioner was denied the benefit of ad-hoc promotion as DSP till 2.11.2000. Admittedly, petitioner had passed the matriculation in 1998 and had all other qualifications to be promoted as DSP. In such view of the matter, merely because the relaxation in case of petitioner was given from a later date that too under misconception of fact about his educational qualification, cannot be held sufficient to discriminate the petitioner. 18. In view of above discussion, the petition is allowed. In such view of the matter, merely because the relaxation in case of petitioner was given from a later date that too under misconception of fact about his educational qualification, cannot be held sufficient to discriminate the petitioner. 18. In view of above discussion, the petition is allowed. The respondents are directed to consider the case of petitioner for induction into Himachal Pradesh Police Service in the rank of Deputy Superintendent of Police in light of the judgment passed by a Coordinate Bench of this Court dated 8.4.2013 in CWP No. 3174 of 2012, by convening review DPC within a period of eight weeks from today and if the petitioner is found suitable, he be promoted with all consequential benefits from due date and in case of need, a supernumerary post be created. 19. The petition is disposed of. Pending applications, if any, also stand disposed of.