Ali Mohd. Bhat vs State and Others

Muzaffar Hussain Attar, Judge

The grievances of the petitioner commenced in the year 1968, when he was not placed in List 'E' which would enable him for being promoted to

the rank of Sub Inspector of police (SI for short). The stumbling block in not placing him the 'E' list was that he had suffered two major and one

minor punishments. He was, subsequently, promoted and appointed to the next higher post/rank. By now he has retired from service on

superannuation.

The petitioner, after finding that respondent No.3, who had suffered 3 major and two minor punishments and was junior to him in the rank of

Assistant Sub Inspector of police (ASI for short), was placed in 'E' list and promoted to the rank of SI in the year 1968,' filed representations

seeking redressal of his grievances. In this regard, it is submitted that Under Secretary to Govt. Home Department vide his communication bearing

No. Home/29/G/91-PR-III dated 10-06-1992 addressed to the Director General of Police, highlighted the issues referred to hereinabove and

stated that as no reasons have been recorded for not promoting the petitioner to the rank of SI in the year 1968, so his (petitioner's) case be

considered for promotion as SI in the year 1968 when his juniors were promoted. However, grievances of the petitioner were not redressed which

prompted him to approach the Court by medium of SWP 1486/95. The said writ petition was disposed of by the Court vide its order dated 01-

02-1996 with the direction to respondent No.2 therein to consider and dispose of the aforementioned communication within six weeks from the

date of receipt of the order and inform the petitioner about the decision taken. As the respondent No.2 had, allegedly, not implemented the

judgement, the petitioner filed a Contempt petition 167/96 but same was dismissed for non prosecution on 29-01-2004 as nobody appeared for

petitioner in the matter. However, petitioner was given liberty to approach the Court if his grievances were not redressed. Thereafter the petitioner

filed another contempt petition 308/06, wherein statement of facts was filed and a stand was taken by the respondents that communication dated

10-06-1992 was considered in the light of the DPC norms, vis-a-vis service record of the petitioner where it emerged that the petitioner had

suffered one major and two minor punishments and as such he was declared to be unfit for promotion to the post of SI in the year 1968 when the

DPC was convened for making promotion to the said post. This contempt petition was also dismissed by the Court vide order dated 15-09-2007

giving liberty to the petitioner to invoke appropriate remedy against the order of consideration. It is how the writ petition on hand is filed.

On notice issued, respondents filed objections. However, after admission of the writ petition as the counter affidavit was not filed, the Court vide

order dated 24-11-2010 allowed one week's last and final opportunity for filing counter affidavit and it was made clear that if counter affidavit is

not filed within the stipulated period, right to file the same shall stand closed and case will be processed for final hearing. Note of the Registry

reveals that counter affidavit has not been filed, therefore, matter has come up for final hearing.

Heard learned counsel for the parties. Considered the matter.

The grievance as projected by Mr. Bashir, learned counsel for the petitioner, is that despite the fact that the respondent No.3 had suffered more

major and minor punishments than the petitioner and was, admittedly, junior to the petitioner yet his case was considered by the DPC in the year

1968 and he was placed on 'E' list and thereafter promoted and appointed to the rank of SI, whereas, the petitioner, who had suffered less

punishments both major as well as minor, has been subjected to invidious discrimination. The learned counsel for the petitioner also submitted that

the communication dated 10-06-1992, issued by the Under Secretary to Govt. Home Department, was specific in its tenor that the petitioner shall

be considered for promotion as SI in the year 1968 when his juniors were promoted. It was also stated in the said communication that as no

reason is recorded for non consideration of the petitioner, the denial of promotion to the petitioner would warrant reconsideration. It is submitted

by learned counsel for the petitioner that no decision till date has been taken in the light of the aforementioned communication. Mr. Bashir, learned

counsel for the petitioner has also invited attention of the Court to the tentative seniority list annexed with the writ petition to show that the

petitioner figures at S.No.216 of the said seniority list whereas respondent No.3 figures at S.No.392. He also submitted that it is not denied in the

objections, filed prior to admission of the writ petition to hearing, that the respondent No.3 was promoted to the rank of SI in the year 1968.

Learned counsel also submitted that even in the objections, the contention raised in the aforesaid communication has not been specifically dealt

with. He further submitted that claim of the petitioner requires to be allowed.

Learned counsel for the respondents submitted that the writ petition suffers from latches. She also submitted that the claim of the petitioner was

considered but as he had suffered punishments, therefore, he was not found eligible for being placed in 'E' list and thereafter he was not considered

for being promoted and appointed to the next rank of SI when the DPC was convened and when other persons were promoted to the next rank of

SI. Learned counsel for the respondents further submitted that in view of the orders passed in the earlier writ petition (SWP 1486/95) and the

decision taken in pursuance thereto, this writ petition is not maintainable. It was, accordingly, submitted by her that the writ petition merits

dismissal.

In view of the material brought on record, it is not in dispute that respondent No.3 had suffered three major and two minor punishments,

whereas the petitioner had suffered two major and one minor punishments. In view of the communication dated 10-06-1992, no reason has been

recorded by the respondents as to why the petitioner was not brought on promotion 'E' list and, subsequently, not considered for being promoted

and appointed to the next higher rank/post of SI in the year 1968 when his junior, viz. respondent No.3, was brought on promotion 'E' list and was

also promoted and appointed to the rank/post of SI. Even in the objections, nothing is said on the issue raised in the communication dated 10-06-

1992. Same was the case in the statement of facts filed in the contempt petitions seeking implementation of the judgement passed in the earlier writ

petition (SWP 1486/95).

From the record available, what emerges is that when officials were brought on promotion 'E' list, person, viz. respondent No.3, who had

suffered major punishments, was also brought on the promotion 'E' list and thereafter promoted/appointed to the rank of SI. The respondents, if

they have promoted/appointed respondent No.3 to the rank of SI, what prevented them from not considering the claim of the petitioner for meting

out same treatment, nothing is forthcoming. It appears that the petitioner has been subjected to discrimination by not considering his claim for being

promoted/appointed to the next higher post/rank of SI in the year 1968.

The respondent-State and its authorities are governed by the rule of law. In view of the mandate contained in article 14 of the Constitution of

India, they have to treat similarly circumstanced people similarly. If the infliction of punishment has not become an impediment in the case of the

respondent No.3 for according consideration to him from being promoted/appointed to the rank/post of SI, same could not have, as well, become

a stumbling block for the petitioner to be accorded consideration for being promoted/appointed to the rank/post of SI. What has become crystal

clear in this case is that suffering of punishments was not considered by the respondents to be a ground for denying consideration to an employee

for being promoted/appointed to the next higher post/rank. In the facts and circumstances of this case, the petitioner has been, illegally and

arbitrarily, denied right of consideration for being promoted/appointed to the rank/post of SI. The respondents are not saying that the respondent

No.3 had not suffered punishments as mentioned hereinabove. They have not even dealt with his case in their objections and statement of facts

filed by them before the Court in the earlier round of litigation. The petitioner has been craving for justice for all these years and is now living a life

as a retired employee. Severance of relationship between the petitioner and the official respondents, after the former's retirement on

superannuation, would not mean that the rights, which would flow to the him from the consti tutional provisions, can also be denied to him. This

Court is the sentinel of the rights of people and it becomes its duty to undo the injustice meted out to a person. It cannot be said that the injustice,

though staring one in the face, cannot be remedied because of the distance of time. Such an argument cannot be countenanced in the situation like

this where the petitioner has been striving for justice all these years. Respondents are duty bound to remedy the wrong that has been committed in

the case of the petitioner.

For the above stated reasons, this petition is allowed in the following manner:

By issuance of writ of mandamus, respondents 1&2 are directed to consider claim of the petitioner for being promoted/appointed to the rank/post

of Sub Inspector of Police from the year 1968 on the analogy of respondent No. 3. Respondents are further directed to give notional benefits to

the petitioner from the date his juniors have been promoted/appointed to the rank/post of Sub Inspector in the year 1968. They shall also give all

subsequent benefits to the petitioner including grant of promotion to the next higher rank/post. The benefits will accrue to the petitioner nationally

for the period he has not, actually, worked on the post. He will, however, be entitled to get all the retrial benefits on the basis of the benefits which

will accrue to him in view of aforementioned direction. The exercise to be conducted by the official respondents within a period of three months to

be reckoned from the date a copy of this judgement is served on them.

Disposed of along with all connected CMPs.