Madhya Pradesh High Court
Gyanendra Singh Bhadoria (Dead) Thr. ... vs The State Of Madhya Pradesh on 19 September, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 19th OF SEPTEMBER, 2022
WRIT PETITION (SERVICE) NO. 774 OF 2005
Between:-
GYANENDRA SINGH BHADORIA S/O
SHRI SUJAN SINGH, AGED 64 YEARS
OCCUPATION RETIRED HEAD
CONSTABLE FROM THE 2ND BN. S.A.F.,
GWALIOR (PENSIONER), R/O
BADHAWAR COLONY, OPPOSITE 1ST
GATE OF S.A.F., BHIND - DELETED
THROUGH HIS LEGAL
REPRESENTATIVES
1. SMT. KIRAN CHAUHAN, AGED 55 YEARS,
W/O SHRI DEVENDRA SINGH CHAUHAN
D/O LATE SHRI GYANENDRA SINGH
BHADORIA
2. PRABAL PRATAP SINGH BHADORIYA,
AGED 45 YEARS, S/O LATE SHRI
GYANENDRA SINGH BHADORIA
3. SMT. PREETI TOMAR, AGED 40 YEARS
W/O SHRI RAGHVENDRA SINGH
TOMAR, D/O LATE SHRI GYANENDRA
SINGH BHADORIA
4. SMT. PRIYANKA JADAUN, AGED 35
YEARS W/O SHRI SATYENDRA SINGH
JADAUN, D/O LATE SHRI GYANENDRA
SINGH BHADORIA
ALL R/O BADHAWAR COLONY,
OPPOSITE 1ST GATE OF S.A.F., BHIND
2
........PETITIONERS
(BY SHRI ANIL SHARMA - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH THE SECRETARY, MINISTRY
OF HOME DEPARTMENT, VALLABH
BHAWAN, BHOPAL
2. THE DIRECTOR GENERAL OF POLICE,
POLICE HEAD QUARTER, BHOPAL
3. THE ADDITIONAL DIRECTOR GENERAL
OF POLICE (S.A.F.), P.H.Q. BHOPAL
4. THE COMMANDANT, 2ND BN. S.A.F.,
GWALIOR
........RESPONDENTS
(SHRI SANJAY KUMAR SHARMA - GOVERNMENT ADVOCATE FOR
STATE)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking following relief:-
The petitioner, therefore, most humbly pray that this Hon'ble Court may kindly be pleased to allow this petition thereby issuing a writ of Mandamus thereby quash the impugned order and the respondents may further kindly be directed to extend the benefit of notional promotions with effect from the date from which juniors have been promoted. The respondents may further kindly be directed to re-fix the salary of the petitioner notionally and also pension and make the payment of arrears of pension along with interest @ 12% per annum. To pass such other further order(s) deemed fit 3 and proper in the interest of justice. Cost may also be awarded. "The petitioner alternatively prays to this Hon'ble Court to direct the respondents to extend the benefit of krammonati to the petitioner in terms of circular dated 19.4.1999 when the petitioner has worked for more than 18 years on the very same post, within the period as prescribed by this Hon'ble Court and consequential arrears may also kindly be directed and the respondents may also kindly be directed to issue the revised PPO and pensionary benefits.
2. It is not out of place to mention here that original petitioner has expired and the petition is being prosecuted by his legal representatives.
3. The facts necessary for disposal of present petition in short are that original petitioner was initially appointed in Army and, thereafter, he joined the service as Constable on 01.05.1962. Thereafter, he was promoted on the post of Head Constable. Vide order dated 13.04.1983, he was reverted back to the post of Constable for one year. Vide order dated 23.10.1983 he was dismissed from service which was challenged by the petitioner by filing writ petition before this Court, which was subsequently transmitted to erstwhile State Administrative Tribunal and was renumbered as T.A. No.543/1992. The said transfer application was allowed by order dated 31.07.1995 and dismissal order dated 23.10.1993 and the order of appellate authority dated 30.12.1983 were quashed. Upon quashing of the order of dismissal, the petitioner was reinstated as Constable by treating him as new appointee and adopted the principle of "no work no pay". The order dated 22.11.1995 was challenged by the petitioner before the State Administrative Tribunal and claimed for reinstatement on the post of Head Constable as well as consequential relief of arrears by filing O.A. No.340/1997. The said original application was disposed of by order dated 16.05.2001 with a direction that the 4 applicant shall be reinstated in continuation of his past services and he shall not be treated as new appointee and he should also be given consequential benefits of seniority, salary etc.
4. So far as payment of salary from the date of dismissal till reinstatement was concerned, respondents were directed to take action as per FR 54-A. Against the said order, the respondent preferred W.P. No.1047/2001 which was dismissed by order dated 24.04.2003. Thereafter the respondent made payment of arrears, but the consequential benefits of promotion and fixation of seniority was not done. Accordingly, the petitioner filed another W.P. No.206/2004 with an averment that the petitioner was appointed as Constable in the year 1962 and was promoted on the post of Head Constable in the month of January, 1967. Ramavtar Singh, who was appointed as Constable in the month of August, 1964 and was promoted on the post of Head Constable in the month of December, 1971, was promoted as Assistant Platoon Commander in the month of July, 1987 and he was promoted on the post of Platoon Commander in the month of February, 1991 and was further promoted as Company Commander in the month of October, 2002. Similarly, Arjun Singh, who was appointed as Constable in the month of November, 1963 and was promoted as Head Constable in the month of April, 1967, was promoted as Assistant Platoon Commander in the month of July, 1987 and was promoted as Platoon Commander in the month of February, 1991 and was further promoted as Company Commander in the month of October, 2002. The aforesaid writ petition came up for hearing on 09.02.2002 and the petitioner was permitted to file representation before the competent authority / respondent No. 2 and respondent No. 2 was directed to consider the case of the petitioner in view of the 5 directions issued by the Tribunal on 16.05.2001 in O.A. No.340/1997. The petitioner thereafter submitted his application which has been decided by the respondent by impugned order and the petitioner has been found to be unfit for promotion for the reason that he has not participated in the relevant course for promotion.
5. Respondents filed their return and submitted that the case of the petitioner has been considered and after taking the facts and circumstances into account, his claim has been rejected mainly on the ground that as per the Rules relating to grant of promotion, he was not having minimum qualification. The promotion claimed by the petitioner is not to be made on the basis of seniority alone and the employee seeking promotion has to pass requisite test as per the Rules governing the promotions including fulfillment of other requisites. The petitioner was re-instated back in the service in the year 1995, but he never shown his interest to pass Pre-Test / P.P. Course, which is a pre-condition for seeking promotion. It is not the case of the petitioner that his juniors, who have been named in the writ petition, had also not passed requisite examination. In the earlier writ petitions, which were filed by the petitioner, he never claimed that he should be permitted to appear in the examination, but he was always asking for promotion.
6. The petitioner filed his rejoinder and submitted that initially the petitioner was appointed as Constable on 01.05.1962 and was promoted in the year 1963, but for some reasons, he was reverted to the post of Constable for one year vide order dated 13.04.1983 and during the said period, he was dismissed from service on 25.10.1983. As per the norms of promotion, minimum three years experience is required for promotion to the post of Assistant Platoon Commander. There is no provision for an 6 employee to join the training or departmental examination on his own and there is nothing on record that the petitioner was offered to undergo the examination by the department. There is no fault on the part of the petitioner and the respondents should have permitted the petitioner to undergo requisite course. Many juniors have been promoted to the post of Assistant Platoon Commander which has been demonstrated from the averments made in the writ petition.
7. The respondents filed their additional return and re-iterated the pleadings taken in the return. Apart from that, it was also submitted that five years service record of the petitioner from the year 1997 to 2001 was not found fit for being promoted by the departmental promotion committed constituted for this purpose. During this five years, the petitioner had obtained only one mark and according to this and GOP, he could not be held to be qualified in terms of the physical performance, hence, he is not entitled for being promoted.
8. It is submitted by the counsel for the petitioners that the respondents while passing the impugned order has not considered that the petitioner was dismissed from service by violating the principles of natural justice and the dismissal from service was quashed and, accordingly, the petitioner was reinstated on the post of Constable instead of Head Constable and thereafter he was compelled to file another petition which was allowed with a direction to give the consequential benefits of seniority etc. Despite that, the respondent did not comply the order nor gave an opportunity to the petitioner to participate in the relevant examination for promotion because the petitioner was being treated as Constable for no fault on his part. It is submitted that the respondents were under obligation to permit the 7 petitioner to participate in the departmental examination for promotion which has not been done and, therefore, the petitioner should have been granted promotion as has been granted promotion to his juniors. It is submitted that the petitioner had joined as Constable on 01.05.1962 and thereafter he was promoted on the post of Head Constable on 13.04.1983 and by circular dated 19.04.1999 by providing that minimum two higher pay scales shall be given to the employees who had worked on the same post for more than 18 years. The petitioner has not been granted Kramonnati from 1983 till his retirement. Accordingly, this petition has been filed.
9. Per contra, the petition is vehemently opposed by the counsel for the State. It is submitted that original petitioner has no vested right for his promotion to a higher post and at the most, he can be considered for the same. For promotion, the petitioner was required to undergo Pre- Test / P.P. Course and since he had not passed the said course, therefore, he was not found to be fit for promotion to the post of Assistant Platoon Commander. It is submitted that the petitioner had already retired in the year 2001, whereas the impugned order was passed on 22.03.2004, therefore, in absence of basic qualification, the petitioner was rightly found to be unfit.
10. Heard the learned counsel for the parties.
11. Merely because the juniors were granted promotion would not ipso facto give rise to any vested right in favour of the delinquent officer to seek promotion. At the most, he can pray for consideration of his case for promotion. Services of the original petitioner were terminated. Original Application No. 340/1997 was allowed by order dated 16.05.2001 and according to the petitioner, he had already retired by that time. Thus, 8 there was no occasion for the respondents to give an opportunity to the petitioner to undergo Pre-Test / P.P. Course, which was essential for promotion to the post of Assistant Platoon Commander.
12. Since the petitioner was not having minimum qualification for his consideration for promotion to the post of Assistant Platoon Commander, this Court is of the considered opinion that respondents did not commit any mistake by rejecting his claim for promotion on the ground that he had not passed Pre-Test / P.P. Course.
13. So far as non-grant of Kramonnati is concerned, it is not a case of the stagnation. The petitioner was dismissed from service, thereafter, in the light of the order passed by the State Administrative Tribunal, he was reinstated on the post of Constable because prior to his dismissal, he was already reverted back to the post of Constable. Thereafter, the petitioner again approached the State Administrative Tribunal in the month of May, 2001. It was directed that he shall be treated to be re-instated on the post of Head Constable. By that time, the petitioner had attained the age of superannuation.
14. Under these circumstances, this Court is of the considered opinion that it is not a case, where it can be held that the petitioner could not get any promotion and was a victim of stagnation. Thus, the petitioner is not entitled for Kramonnati as claimed by him.
15. Accordingly, the petition fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE Abhi Digitally signed by ABHISHEK CHATURVEDI Date: 2022.09.23 18:51:27 +05'30'