Gauhati High Court
Mritunjay Saikia And 3 Ors vs The State Of Assam And 4 Ors on 5 February, 2020
Equivalent citations: AIRONLINE 2020 GAU 49
Author: Manash Ranjan Pathak
Bench: Manash Ranjan Pathak
Page No.# 1/6
GAHC010318892019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C) 9575/2019
1:MRITUNJAY SAIKIA AND 3 ORS.
ASI (UB) S/O- SRI GOLAP CHANDRA SAIKIA, POLICE COMMISSIONERATE,
GUWAHATI, 781001, DIST- KAMRUP (M), ASSAM
2: ANSURA SARKAR
ASI (UB) D/O- LATE ABTUL AHUT SARKAR
DHUBRI DISTRICT EXECUTIVE FORCE
DHUBRI
PIN- 783301
ASSAM
3: JITUMANI KALITA
ASI (UB)
S/O- SRI GUNA RAM KALITA
UDALGURI DISTRICT EXECUTIVE FORCE
UDALGURI- 784509
ASSAM
4: PRAMOD MEDHI
ASI (UB) S/O- SRI BHADRESWAR MEDHI
BARPETA DISTRICT EXECUTIVE FORCE
BARPETA- 781301
ASSA
VERSUS
1:THE STATE OF ASSAM AND 4 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT OF ASSAM,
HOME DEPTT, ASSAM SECRETARIAT, DISPUR, GHY- 06
2:THE DGP
ASSAM
Page No.# 2/6
ASSAM POLICE HQ
ULUBARI
GUWAHATI- 781007
3:THE ADGP (T AND AP)
ASSAM POLICE HQ
ULUBARI
GUWAHATI- 781007
4:THE IGP
ASSAM
ASSAM POLICE HQ
ULUBARI
GHY- 07
5:THE POLICE COMMISSIONERATE
GHY
DIST- KAMRUP(M)
GUWAHATI- 0
Advocate for the Petitioner : MR D N SARMA
Advocate for the Respondent : GA, ASSAM
BEFORE
HON'BLE MR. JUSTICE MANASH RANJAN PATHAK
ORDER
05-02-2020 Heard Mr. D. N. Sarma, learned counsel for the petitioners and Mr. D. Nath, learned Additional Senior Government Advocate, Assam for all the respondent Nos. 1 to 5.
2. With regard to the Departmental Examination of Assistant Sub-Inspectors/ Head Constables/Havildars for promotion to the rank of Sub-Inspector (Un-Armed Branch), the Additional Director General of Police, (T&AP), Assam issued a Communication under Memo No. TAP/T/Board/313/2019/13 dated 15.11.2019, informing all the Superintendents of the Police of the State asking them to furnish required particulars in the proforma enclosed with Page No.# 3/6 it, both in hard copy and soft copy in Excel format and e-mail with regard to respective ASIs/HCs/Havs of their respective Units/Districts/Organizations who would complete minimum 3(three) years of service in those ranks as on 30.11.2019 (Annexure-6).
3. In the said Communication dated 15.11.2019 (Annexure-6), it was specifically mentioned that the categories of personnel (i) Hony. ASI/Hony. (HC/Hav), (ii) Ad-hoc HCs (UB) of SB Assam who have not passed the Sr. NCOs Cadre course/Combined course and not completed 3 (three) years of service in the rank after passing the Sr. NCOs Cadre Course and
(iii) PSO Hav of AB stream/UB stream, if not passed the Sr. NCOs cadre Course/Combined course are not eligible to appear in the examination, with the further direction that those authorities shall furnish the required particulars in respect of ASIs/HCs/Havs so as to reach the concerned office by 20.11.2019.
4. The petitioners have appeared in the Departmental Examination of Assistant Sub- Inspector (Un-Armed Branch) in the year 2005 and their results were declared on 20.04.2005.
5. By order dated 12.04.2017, the Director General of Police, Assam, promoted 62 Nos. of Un-Armed Branch Constables/Head Constables of different units/districts/organizations, who cleared the Pre-Promotion Cadre Course (in 44 th Batch), including the petitioner Nos. 1, 3 and 4 to officiate in the rank of Assistant Sub-Inspector (UB) temporarily against existing vacancies. By an order dated 03.05.2017, the petitioner No. 1 was promoted to the post of ASI with effect from 03.05.2017. By order dated 03.12.2017, the petitioner No. 2 was promoted to the post of Women ASI of Police (Un-armed Branch).
6. Relying on the basis of an order passed earlier by another bench of this Court on 05.10.2012 in WP(C) No. 3070/2010 (Kumud Gogoi Vs. the State of Assam and 5 others), the petitioners claimed that they should be allowed to sit in the ensuing written Departmental Examination to be held on 08.02.2020 for their promotion to the post of Sub-Inspector (Un- armed Branch).
7. Petitioners were promoted to the posts of ASI in the year 2017 and they are yet to complete 3 years of services as an ASI/Head Constable for consideration of their selection and promotion to the post of Sub Inspector. The learned Single Judge in the said judgment dated 05.10.2012 at Para No. 16 observed as follows:-
Page No.# 4/6 "In view of the above, I have no hesitation to hold that the petitioner is fully eligible to sit in the said examination as the requirement is three years of service in the department irrespective of the stream in which he has been serving. If the analogy adopted by the respondents in counting the seniority of petitioner from 20.04.2008, i.e. on the date on which the petitioner was converted from Armed Branch to Unarmed Branch is accepted, his entry period of earlier service would get effaced. Seniority and experience on the length of service are two distinct and different concepts. The petitioner would get seniority from the date of conversion in the present stream w.e.f. 20.04.2008, but so far as experience is concerned, same will have to be counted from his initial date of entry in his service, i.e. 11.03.1994. Thus, even if the plea of the respondents that requirement five years of service is accepted, he fully conforms to the requirement to the said eligibility."
8. The petitioners claimed that they have completed the requisite period of three years from their initial date of entry in service and as such, they are entitled to sit in the ensuing written Departmental Examination for the post of Sub-Inspector of Police (Un-armed branch).
9. It is submitted on behalf of the petitioners that the Departmental Examination for their promotion to the post of ASI of Police (Un-armed Branch) was held in the year 2005 for which result was declared on 20.04.2005 by the Director General of Police, Assam and they were promoted to the post of ASI only in the year 2017. On 29.05.2017, representation was submitted before the respondents in the Police Department to consider their seniority status in joining order as per FR-10 and Chapter XI FR-105 i.e., w.e.f. the date of issue of promotion order that is 12.04.2017 and that the said representation is still pending for disposal.
10. Mr. D. Nath, learned Additional Senior Government Advocate, Assam on instructions, submitted that in the Departmental Examination that was held in the year 2005 for the promotion to the post of Assistant Sub-Inspector, altogether 2651 Nos. of Un-armed Branch Constable/Women Police Constable/Head Constable including the petitioners were declared qualified for their promotion to the rank of ASIs and they were promoted from time to time on the basis of their seniority and the existing vacancies in the rank of ASI. Therefore, due to non availability of vacancies of ASI in the department earlier, the petitioners could be promoted to the post of ASI (UB) only in the month of April and May, 2017 on the basis of their seniority.
11. Mr. D. Nath, learned Additional Senior Government Advocate, Assam placed before the Court that against the judgment and order passed on 05.10.2012 by the learned Single Judge in said WP(C) No. 3070/2010, the State Government preferred an appeal being Writ Appeal Page No.# 5/6 No. 06/2014 and it was decided on 06.10.2015, which was reported in (2015) 4 GLT 1103 wherein the Appellate Court, following the Rule 40 of the Assam Police Manual Part-III, at para 13 observed as follows:--
"13. In other words, any police officer who had 3 years experience as ASI/Head Constable in the department, regardless of his being in Unarmed Branch/Armed Branch, shall be entitled to sit in the departmental examination for promotion to the post of Sub-Inspector of police. Being so, the writ petitioner/respondent who has such experience is entitled to sit in the aforesaid departmental promotional examination ."
12. Mr. D. Nath, submitted that from the date of their promotion in April/May, 2017 in the rank of ASI/Head constable, the petitioners have not yet completed 3 years period of service in those ranks and in terms of the observation made by the Division Bench in said Writ Appeal No. 06/2014, the petitioners are not entitled to sit in the ensuing written Departmental Examination for the post of Sub-Inspector of Police to be held on 08.02.2020.
13. On specific inquiry being made by the Court, Mr. Sarma, learned counsel for the petitioners, on instruction, submitted that as Assistant Sub-Inspector/Head constable of Police (UB), the petitioners have not yet completed 3 years of service. The petitioners also admitted that their claim to sit in the ensuing Departmental Examination for promotion to the posts of Sub-Inspector is solely on the basis of the judgment and order dated 05.10.2012 passed by learned Single Judge in WP(C) No. 3070/2010.
14. Mr. Sarma, learned counsel for the petitioners relying on the judgment of the Hon'ble Supreme Court in the case of Prabhakar and others Vs. State of Maharastra & others reported in (1976) 2 SCC 890 submitted that at Para No. 7 of the said judgment it is observed that the method of fixation of seniority should be considered from the date of commencement of their training. Mr. Sarma, accordingly submitted that in the present case, the petitioners have already completed the police training prior to their promotion to the post of ASI in April/May, 2017 and it should be considered as one of the ground of their eligibility to participate in the Departmental Examination for the post of Sub-Inspector.
15. From the said judgment of the Hon'ble Apex Court in the case of Prabhakar and Others (Supra) it is seen that the same relates to Bombay Police Officers (Combined Cadre) Conditions of Service Order, 1954; whereas the present case relates to the provisions of the Assam Police Manual Part-III, which is no way connected to the Rules and Order involved in Page No.# 6/6 the said case placed before the Court by Mr. Sarma.
16. After hearing the learned counsel for the parties and considering the entire aspect of the matter, the Rule 40 of the Assam Police Manual Part-III and the aforementioned Division Bench judgment of this Court reported in (2015) 4 GLT 1103, as the petitioners have not completed 3 (three) years of their service as an ASI (UB)/Head Constable, this Court is of the view that the petitioners herein are not eligible to sit in the ensuing written Departmental Examination for promotion to the posts of Sub-Inspector (UB) that is going to be held on 08.02.2020.
17. For the reasons above, this writ petition, being devoid of merit, stands dismissed.
JUDGE Comparing Assistant