Madhya Pradesh High Court
Tahir Khan vs The State Of Madhya Pradesh on 29 June, 2017
WP-7919-2014
(TAHIR KHAN Vs THE STATE OF MADHYA PRADESH)
29-06-2017
1. The petitioner before this Court is a Head Constable (RT) in
the Police Department and is aggrieved by the order dated
26.03.2014 passed by the respondent no.1 whereby a
representation submitted by the petitioner for his promotion has been rejected. The aforesaid representation was submitted by the petitioner claiming promotion to the post of Assistant Sun- Inspector (R) and correction in the gradation list seeking his seniority over respondent No.5/Shiv Narayan Upadhyay. The representation has been decided by the respondents in compliance of the order passed by this Court in W.P. No.12664/2013 dated 07.01.2014, whereby this Court had directed the respondents to decide the petitionerâs representation within a period of three months.
2. The case of the petitioner is that he was appointed in the Police Department on 06.05.1981 on the post of Constable (Radio), the appointment order is also filed by the petitioner as Annexure A/3, wherein his name finds place at Sr. No.2. The petitioner has also passed the Basic Radio Technician (In short BRT) course in the year 2000 and it is submitted that on the basis of BRT course, he was entitled to be promoted as Head Constable (Radio Technician) and it is further submitted by the petitioner that at that time out of 466 posts of Head Constables (RT), 233 posts were vacant and available for promotion because 50% of such posts are to be filled up by promotion and 50% by direct recruitment. Subsequently, on 29.10.2002, the petitioner was promoted on the post of Head Constable (Radio). In the appointment order (Annexure A/4), the name of the petitioner finds place at Sr.No.17 and thereafter, he has also passed Radio Technician Second Grade Examination from Central Police Radio Training Institute, New Delhi. On the basis of his service tenure and having passed the BRT, the petitioner has claimed promotion on the post of Assistant Sub-Inspector (RT).
3. It is further submitted by learned counsel for the petitioner that passing of Radio Technician Course is also compulsory for directly recruited Head Constables, which course the petitioner has already passed in the year 2000.
4. The grievance of the petitioner is that directly recruited Head Constables who had passed the BRT subsequent to the year 2000 have given priority over and above while deciding the promotion. In the gradation list dated 01.01.2010 for consideration of promotion to the post of ASI(R), the name of the petitioner is mentioned at Sr.No.192, although it should be at Sr.No.58 and when the petitioner made a representation in this behalf, the same was decided on 13.01.2010 (Annexure A/6). In the year 2012, another gradation list was issued wherein the petitionerâs name was again wrongly mentioned at Sr.No.75. Subsequently, on 14.06.2013, a provisional gradation list was issued in which the name of the petitioner finds place at Sr.No.166, although his name should have been placed between Shri Brijnath Singh at Sr.No.33 and Shri Shivnarayan Upadhyay at Sr.No.34, a copy of the provisional gradation list has also filed by the petitioner as Annexure A/7.
5. It is further contended by the petitioner that the representation (Annexure A/8) to this effect was also submitted by the petitioner on 08.07.2013, but no order was passed on the same. Hence, W.P. No.12664/2013 was filed by the petitioner which was disposed of by this Court on 07.01.2014 with a direction to the respondents to decide the petitionerâs representation within a period of three months and as already stated above, the said representation was rejected by the respondents vide order dated 26.03.2014.
6. The main plank of the arguments advanced by learned counsel for the petitioner is that the other employees, who have not even passed the BRT course examination have been placed above the petitioner and as such, their promotion is illegal. The petitioner has also relied upon the case of Gajendra Singh who was placed at Sr.No.158 in the gradation list of 2010 and has contended that after an order of this Court, he has been upgraded in the seniority list by placing him at Sr. No.26 in the gradation list of 2013, on the basis of which, he has been awarded promotion of ASI(R).
7. The contention of the petitioner is that the representation has been dismissed without application of mind which has led to harassment to the petitioner as he is required to work under his subordinate/juniors which is caused considerable humiliation to him.
8. In return, the respondents have submitted that the petition is misconceived and is liable to be dismissed for the reason that in the GOP No.98/2001 filed as Annexure R/1, it is specifically provided that the persons who have been directly recruited may be placed over and above to the person who has been promoted as Head Constable (Radio) for the same year irrespective of the fact of taking over the charge to the said post and it is also submitted that the petitioner has not challenged the aforesaid GOP.
9. It is further submitted that the petitionerâs representation has been properly dealt with by the respondents and a reasoned order has been passed. The respondents have also relied upon the fit list of 2001 and 2002 and have submitted that the case of Shri Brij Narayan Singh is distinguishable. As the petitioner was not even found suitable in the fit list of 2001 whereas Shri Gajendra Singh Bhadouriaâs name appeared in the fit list of 2001 and it is further submitted that Shri Brij Nath Singh is a promotee candidate and has been placed enblock over and above the direct recruitees in view of the Court order. Hence, the petitioner cannot claim parity and seniority.
10. It is further submitted that Annexure R/1 and R/2 clearly demonstrate that a person who has been directly recruited is to be placed as senior then the one who has been promoted to the post in that particular year and has submitted that the gradation list has been rightly prepared by the respondents.
11. The petitioner has not filed any rejoinder to the aforesaid reply but has filed an application on 10.08.2014 to bring certain documents on record, which is accompanied by a fit list order dated 28.07.2014 (Annexure A/14) and also a promotion order dated 02.08.2014 (Annexure A/15).
12. Respondent No.5 has not filed any reply despite service of notice.
13. Heard learned counsel for the parties and perused the record.
14. From the order dated 29.03.2011 passed in W.P. No.1768/2011 in respect of Gajendra Singh Bhadouria, the following observations have been made by the Gwalior Bench of this Court:
âThe present petition filed by the petitioner is disposed of with a direction to the respondent no.2 to consider the case of the petitioner in view of clause 14 of Madhya Pradesh Police Door Sanchar Shakha Vivarnika, before proceeding further by passing a reasoned order.
With the aforesaid, the petition stands disposed of.â
15. Thus, there is nothing to suggest from this order that in the case of Gajendra Singh Bhadouria any specific order was given by this Court to upgrade his seniority and to promote him on the post of Assistant Sub-Inspector (Radio). In the impugned order dated 26.03.2014, the distinction is said to be drawn by the respondents with the case of Gajendra Singh Bhadouria on the ground that petitionerâs gradation list was 28.10.2002 whereas in case of Ganjendra Singh Bhadouria, fit list was prepared on 29.12.1999 i.e. around two years ago but the contention of the respondents is that Gajendra Singh Bhadouria has been appointed on the basis of the order passed by this Court in W.P. No.1768/2011 cannot be accepted on its face value as no such order was passed by this Court and the order was passed only to decide the representation of Gajendra Singh Bhadouria, but having said so, the petitioner still cannot derive any benefit from the order passed by the respondents in case of Gajendra Singh Bhadouria.
16. In Clause 14 of Annexure A/2 which is GOP No.98/2001 dated 31.12.2001, it is provided that the final seniority list shall be on the basis of the selection list of the employees and till the direct rerecruited employee does not pass the basic Radio Technician course, he shall not be entitled to further promotion.
17. It is an admitted fact that the petitioner was promoted on the post of Head Constable w.e.f. 29.10.2002 as per Annexure A/4 dated 29.10.2002 & Annexure R/4 filed with reply whereas the respondent no.5 Shri Narayan Upadhyay was directly recruited on 08.04.2002 as is apparent from A/7. On the other hand it is also admitted by the respondents that Gejendra Singh Bhadouria with whom the petitioner is claiming parity was also promoted on the post of Head Constable on 28.10.2002 which is apparent from Annexure A/1 as well as Annexure A/12.
18. The respondents have also filed Annexure R/1 which are the M.P. Police Door Sanchar Shakha G.O.P. No.98/2001 para 14 of the same is relevant and reads as under:
^^14- ikjLifjd ojh;rk %& e/;iznsâk flfoy lsok ¼lsok dh lkekU; 'krsZ½ fu;e 1961 ds fu;e 12 ;Fkk laâkksf/kr ds vn~;ru izko/kkuksa ds varxZr jgrs gq;s ikjLifjd ofj;rk ds fu/kkZj.k gsrq fuEufyf[kr fl)karksa dk ikyu fd;k tkosxk 1- ,d dSysUMj o"kZ esa p;fur fd;s x;s iz/kku vkj{kd ¼jsfM;ks VsDuhfâk;u½ mRrjorhZ o"kksZa esa p;fur fd;s x;s iz/kku vkj{kd ¼jsfM;ks VsDuhfâk;u½ ls ,d lkFk ofj"B gksaxs] pkgs mudh dk;Z xzg.k fnukad dqN Hkh gks 2- Tkgka inksUufr;ka fdlh foHkkxh; inksUufr lfefr }kjk p;u ds vk/kkj ij dh tkrh gS rks bl izdkj inksUur O;fDr;ksa dh ofj"Brk ml dze easa gksxh] ftl dze esa lfefr }kjk bl izdkj inksUr djus ds fy;s mudh flQkfjâk dh tkrh gS] pkgs mudh dk;Z xzg.k fnukad dqN Hkh gksA 3- fdlh ,sls O;fDr dh ofj"Brk] ftldk ekeyk foHkkxh; inksUufr lfefr }kjk okf"kZd pfj=koyh ds vHkko esa ;k vU; dkj.kksa ls jksdk x;k Fkk fdUrq ckn esa ml rkjh[k ls inksUufr ds fy; mi;qDr ik;k tk;s] ftl rkjh[k dks mlls dfu"B O;fDr inksUur fd;k x;k Fkk] p;u lwph esa mlls rRdky dfUk"B O;fDr dh inksUufr dh rkjh[k ls ;k ml rkjh[k ls] ftl rkjh[k dks og foHkkxh; inksUufr lfefr }kjk mi;qDr ik;k x;k gks] vo/kkfjr dh tkosxhA 4- ;fn lh/kh Hkjrh ds fy;s fu;ekuqlkj tkjh dh xbZ p;u lwph esa ls dksbZ O;fDr iz/kku vkj{kd ¼jsfM;ks VsDuhfâk;u½ ds in ij mlh o"kZ esa inksUufr ls cus iz/kku vkj{kd ¼jsfM;ks VsDuhfâk;u½ deZpkjh ls igys dk;Zxzg.k djrk gS rks lh/kh Hkjrh dh mDr p;u lwph esa 'kkfey lHkh O;fDr inksUur deZpkjh ls ,d lkFk ofj"B gksxs] pkgs mDr p;u lwph esa 'ks"k O;fDr;ksa dh dk;Z xzg.k fnukad dqN Hkh gksA^^ (Emphasis supplied)
19. According to para 1 of Clause 14, Head Constables promoted in one Calendar year shall be senior enblock from the Head Constables who have been promoted in the subsequent years, regardless of their date of joining. And, as per para 4 of this Clause 14, in case of direct recruits, if any one of such direct recruit joins prior to the date of promotee in the same year in that case all the direct recruits shall be senior enblock to the promotees regardless of the different joining dates of other direct recruits.
20. In the circumstances, in the considered opinion of this Court there appears to be no justifiable reason for the respondents to distinguish the case of the petitioner with that of Gajendra Singh Bhadouria on extraneous reasons other than as provided in GOP No.98/2001 as both these personâs date of promotion is 28.10.2012. As already observed above that the Gwalior Bench of this Court in W.P. No.1768/2012 has not passed any order touching the merits of Gajendra Sing Bhadouriaâs case, then there was no reason for the respondent to take shelter of the order passed in W.P. No.1768/2012 and the reference of all the other dates as mentioned by the respondents is the impugned order Annexure A/1 dated 26.03.2014 was totally inconsequential.
21. In the result, the impugned order dated Annexure A/1, dated 26.03.2014 is hereby quashed and the respondents are directed to reconsider the petitionerâs case afresh on the basis of the observations made hereinabove and correct the gradation list Annexure A/1 accordingly.
22. Petitioner stands partly allowed.
(SUBODH ABHYANKAR) JUDGE vc