Laxman Singh Rathore vs State of M.P. and Others

Sujoy Paul, J.—This is second visit of the petitioner to this court for the same grievance. The petitioner was not promoted on the post of Assistant Sub-Inspector. Against his supersession, he filed Writ Petition No. 5615/2009 which was decided on 29.01.2013, Annexure P/3. This Court set aside the earlier impugned order dated 25.11.2008 and opined that on account of placement of the petitioner in the Special Branch cadre, the petitioner shall be entitled for other consequential benefits including consideration for promotion if his juniors have been given the same benefit. In turn, the petitioner was considered by a review DPC convened on 24.04.2013. On the basis of decision of review DPC, impugned order dated 9.5.2013, Annexure P/1, is passed. In the said order, it was held that the petitioner''s case was considered as per GOP 104/02. During relevant period of five years, petitioner has received more number of punishments than rewards, and therefore, he could not fulfill the eligibility criterion for promotion. It is further held that the petitioner cannot be recommended for promotion in category ''B''.

Shri D.K. Katare, learned counsel for the petitioner, criticized this order by contending that as per the GOP, there are two modes of induction on the post of Assistant Sub-Inspector, one is by way of promotion by applying the criteria of ''Seniority-cum- fitness'' and another is by way of departmental examination. Admittedly, the petitioner''s case is in category ''B'', and therefore, he should have been considered by applying the criteria-''Seniority-cum-fitness'', whereas the respondents have tested the eligibility of the petitioner on the anvil of a criteria which was fixed for a different category i.e. category ''A''. Putting it differently, it is contended that GOP makes it clear that for category ''A'' only, the condition of more rewards than punishment will be applicable. Same has no application so far as petitioner is concerned. In nutshell, it is contended that petitioner is a victim of application of wrong provision which resulted into deprivation from a right of fair consideration for promotion.

Prayer is opposed by Mrs. Sangeeta Pachouri. By taking this Court to the various paragraphs of the return, it is contended that there is no flaw in the order impugned. Since petitioner has received one minor punishment during last five years and he has not earned any reward during those years, he was rightly deprived in the light of clause 2 which deals with eligibility condition. Attention is drawn on internal page 11 of the GOP filed with the additional return. She drew attention on para 3 and 4 of the additional return.

I have heard learned counsel for the parties and perused the record of the review DPC which was produced by Mrs. Sangeeta Pachouri for perusal.

A bare perusal of the review DPC record, shows that the petitioner was held to be ineligible on the ground that during last five years, the petitioner suffered with a minor punishment. He did not earn any reward during those five years, and therefore, he was held to be ineligible. Before dealing with rival contentions advanced at the bar, I deem it apposite to refer to the relevant provision from the GOP. Page 19 deals with the procedure for promotion from Head Constable to Assistant Sub-Inspector. Clause 2 (2) makes it clear that 20% promotions are to be made on the basis of ''Seniority-cum-fitness''. The employees who are within this category are called as ''B'' category. The respondents have treated the petitioner in this category. This is evident from the rejection order, Annexure P/1, also. The eligibility condition on which heavy reliance is placed by the respondents reads as under:-

A plain reading of the aforesaid provision makes it clear that this eligibility condition is applicable for those candidates who fall in category ''A''. These candidates are required to participate in a written examination. For this category of candidates, it is made clear that they should have good conduct during last five years and they should not have received more punishment than reward. It is crystal clear that this condition cannot be made applicable on ''B'' category employee/petitioner. Thus, it is clear that respondents have applied a wrong provision in the case of the petitioner. This aspect can be viewed from another angle. GOP (2)(2)(3) reads as under:-

The impugned order leaves no room for any doubt that petitioner was treated in ''B'' category. Thus, he was required to be considered by the DPC by applying the criteria of seniority-cum- fitness, whereas the respondents have applied the criteria which was applicable to ''A'' category which is wholly impermissible.

The right of consideration for promotion is a statutory as well as fundamental right flowing from Articles 14 and 16 of the Constitution of India. Right of consideration means right of fair consideration. If petitioner''s right of consideration as per relevant provision is taken away and he is subjected to scrutiny by applying a wrong provision, his fundamental right is infringed.

On the basis of aforesaid analysis, in my view, the respondents have committed an error of law in holding that the petitioner is not eligible for promotion. The said finding runs contrary to the aforesaid GOP. Resultantly, the order dated 09.05.2013 is set aside. The respondents are directed to hold a review DPC to consider the case of the petitioner for promotion under ''B'' category by applying criteria of ''Seniority-cum-fitness''. If the petitioner is recommended and promoted, he be given promotion from the date Shri D.K. Tiwari was promoted with all consequential benefits. Since in the earlier round of litigation (Writ Petition No. 5615/2009), this court has directed that the petitioner shall be entitled for consequential benefits, I find no reason to deprive the petitioner from the consequential benefits. In case petitioner is found suitable and promoted, he shall get all consequential benefits. The petitioner, who was all along willing to be promoted, was deprived from the fruits of promotion for the reasons solely attributable to the respondents. Resultantly, the respondents are directed to convene a review DPC within 45 days and pass appropriate order as directed by this court above. Petition is allowed. No costs.