Nirmal Shashi Tirkey vs State Of Jharkhand

Deepak Roshan, J

Heard learned counsel for the parties.

The instant writ application has been preferred by the petitioner for the following reliefs:-

(a) For issuance of a writ of or in the nature of mandamus or for any other appropriate writ, order or direction, for directing the respondents to make necessary correction in the final seniority list dated 01.01.2016 (Annexure-6) prepared by the respondents, for the officers of the State Police Service i.e. Dy. S.P., Sr. Dy. S.P. and above so far as the seniority position of this petitioner is concerned;

(b) For directing the respondents to place the petitioner at Sl. No. 22 or 21A of the Seniority List dated 01.01.2016 (Annexure-6) instead of putting the petitioner at Sl. No. 41;

(c) After correcting the seniority position of the petitioner in the Seniority List dated 1.1.2016 prepared for the State Police Service (Annexure-6), the case of the petitioner be considered for next higher scale of Senior Dy.S.P., as has been given to the juniors to the petitioner, with all consequential benefits.

(d) For issuance of such other writ, order or direction as may appear just and proper for doing equitable justice to the petitioner.

(e) For issuance of an appropriate writ)s/order(s)/direction(s) in nature of certiorari for quashing the part of the letter dated 18.09.2009 (Annexure-3) whereby and whereunder the case of the petitioner has been considered partially and the date of promotion of the present petitioner has been considered from 21.04.1998 instead of 1997 even when there is an order of the Hon’ble Court passed in W.P.(S) No. 1404 of 2009 which is sheer violation of Article 14 &16 of the Indian Constitution.

The brief facts of the case as per the pleadings are that the Petitioner is a direct recruit Sub Inspector of 1984 Batch. In 1997, when similarly situated persons were being considered for promotion to the post of Inspector, the case of the Petitioner was not considered owing to the missing service records. Aggrieved by this, the Petitioner pursued the matter before the concerned authorities and when no action was taken, the Petitioner filed writ application being W.P.(S) No. 1404 of 2009 where this Court vide order dated 18.04.2009 disposed of the case directing the Respondents to consider the Petitioner's case for promotion with effect from the year 1997.

Consequently, the Police Headquarters vide Memo No.2589 dated 18.09.2009 revised the seniority position and the Petitioner was given notional promotion to the post of Inspector w.e.f. 21.04.1998. Further, the office of the Director General of Police, Jharkhand requested the Home Department, vide letter no. 424 dated 17.05.2010, to re-determine the seniority position of the Petitioner to the post of Dy. S.P. w.e.f. 16.06.2008.

Thereafter, a Seniority List was prepared for the cadre of Dy. S.P. where the Petitioner's date of promotion is wrongly shown as 02.09.2009 instead of 16.06.2008 because of the fact that he lost his two years seniority during consideration for promotion to the post of Inspector. On 01.01.2016, a Final Seniority List for the officers of the State Police Service was published; however, the Petitioner's position was still not corrected against which the Petitioner raised objection; however, no action has been taken. Hence, this writ application.

Learned counsel for the Petitioner submits that the Petitioner is a direct recruit of Sub Inspector from the 1984 batch and holds the seniority position at Sr. No. 2759 according to the seniority cum merit list. He further submits that despite the order of this Court the Respondents have not updated the seniority of Petitioner which still remains inaccurate.

He further submits that the Police Headquarters sent a letter No. 424 to the Home Department, Government of Jharkhand requesting the re-determination of Petitioner’s seniority in the Dy. S.P. cadre starting from 16.06.2008; however, no action has been taken by the Respondents.

He contended that the reason for the Petitioner not being promoted in due time is because of the wrong seniority fixed by the Respondents themselves and prays that the writ application be allowed.

Learned Counsel for the Respondents submits that since the cadre of Dy. S.P. is the feeder post for the promotion to the post of Sr. Dy. S.P. and S.P. as such, it is considered to be a fresh appointment and it would not be possible for the Respondents to give promotion to the Petitioner with retrospective date.

He further submits that since the Petitioner has been promoted to the post of Dy. S.P., w.e.f. 02.09.2009 his seniority in that cadre shall be considered with effect from same date and not from any prior date as per Rule 689(c) of the Police Manual.

Learned Counsel finally submits that the request of the Police Headquarters, to re-determine the seniority position of the Petitioner w.e.f. 16.06.2008 cannot be acceded to since the same shall disturb the entire seniority list of the cadre and placed his reliance upon Government of West Bengal & ors. v. Dr. Amal Satpathi and Ors 2024 SCC OnLine SC 351.

Having heard learned counsel for the parties and after going through the respective documents annexed with the affidavits it appears that the Petitioner is a direct recruit Sub Inspector of 1984 Batch and holds the seniority Sr. No. 2759 as per the seniority-cum-merit list prepared by The Police Training College, Hazaribagh. In the year 1997, when similarly situated persons were being considered for promotion, the case of the Petitioner was not considered because the concerned authorities did not have the service record of the Petitioner on file; as such, the promotion of the Petitioner was delayed which forms the basis of the grievance.

It appears that the case of the Petitioner falls under the category of departmental promotion and the relevant factors in such promotion is the inter-se seniority amongst the cadre of Inspectors. The main reason for the promotion of the Petitioner being delayed to the post of Dy. S.P. in due time is due to the fact that the Respondents have fixed wrong seniority position themselves which resulted in juniors getting the promotion before the Petitioner.

The Petitioner was well eligible for promotion to the post of Inspector in the year 1997 instead of 1999 but even after the order of this Court which has attained finality, as the respondents did not prefer any appeal against it, the relevant corrections were not done.

It further appears that the promotions to the post of Dy. S.P. is made from the cadre of Inspectors considering the respective seniority in the said cadre and promotion to a separate cadre does not mean that it can be done on arbitrary basis. This court fails to understand that when the Petitioner was fulfilling all the criteria for promotion to the post of Dy. S.P. then why the Respondent authorities have overlooked the inter-se seniority.

It is not the responsibility of the Petitioner that her case for promotion was not considered at the right time due to the negligence and error committed by the Respondent authorities.

Learned counsel for the Respondents has contended that the seniority of the Petitioner shall be considered with effect from the same date on which she was granted promotion and not from any prior date in view of Rule 689(c) of the Police Manual. In order to decide such contention, it is necessary to peruse Rule 689(c) of the Police Manual, which is quoted herein below:

“689. (c) The seniority of all Sub-Inspectors and Deputy Superintendents in their respective ranks, whether recruited directly or promoted will be counted from the dates on which they were actually recruited or promoted against permanent post.”

This Court does not agree with the contention of learned counsel for the Respondents regarding the applicability of rule 689 (c) of the Police Manual as in the present  case,  the  Petitioner  is  not  at  fault;  rather  the Respondent authorities have not corrected the seniority position of the Petitioner in-spite of the order passed by this Court. For the in-actions of the Respondent authorities, the Petitioner cannot be made to suffer. Reliance in this regard is placed upon the decision rendered by Kerala High Court in the case of Alappat Narana Menon v. State of Kerala (1977 Volume II S.L.R. 656). The relevant paragraph is quoted herein below:

“The foregoing discussion with reference to the pronouncement of the Supreme Court and the Gujarat, Allahabad and Mysore High Courts clearly establish that a Government Servant cannot be said to have forfeited his claims for arrears of salary when he did not get his due promotion for no fault of his. The Government's plea the petitioner was given only a notional promotion is not sustainable in law. What the petitioner got was not a notional promotion and it is wrong to call this promotion as ‘notional’ in the context of the peculiar facts and circumstances of this case. The concept of notional promotion cannot enter the realm of discussion in this case. Notional promotion is one which a Government servant gets under particular exigencies of situation, which he cannot claim as of right. Here the petitioner is entitled as of right to get the promotion from 1.4.1955 and, therefore, his claim for arrears of salary and other material benefits cannot be denied to him on the plea that what was given to him was only a notional promotion and the policy of the Government is not to give the arrears of salary in such cases. It is no argument to say that many have been promoted ignoring the petitioner's claim. I, therefore, hold that the petitioner is entitled to succeed.”

The proposition of the law in the above case in my view fully applies in the instant case. It is an admitted fact that the Petitioner was not considered for promotion due to the non-availability of service record while similar situated persons were considered and promoted. She was superseded without their being any disqualification being found as such rule 689 (c) of the Police Manual is not applicable in the instant case.

Learned Counsel for the respondents has placed reliance upon Government of West Bengal & ors. v. Dr. Amal Satpathi and Ors (supra) which is not applicable in the present case since in the said case the Hon’ble Apex Court has held that the Respondent could not claim the retrospective financial benefits associated to the promotional post since he had superannuated before being able to serve in that capacity. However, in the case at hand the Petitioner was not promoted owing to the in-action of the Respondent authorities and prays for the correction of the seniority position.

Even otherwise, the Police Headquarters, Jharkhand has accepted the contention of the Petitioner for rectifying his seniority position. The fact that the Respondent authorities have not alleged that on consideration of promotion, the Petitioner was found to be unfit and the seniority of the Petitioner in service in not in dispute.

The fact that similarly situated persons were promoted while the case of the Petitioner was not considered for no fault of her own; is not denied by the Respondent authorities. Independent of any other consideration, on the sole consideration of the ends of Justice, I have no hesitation in holding that the Respondents have denied the Petitioner’s right of equal protection of law and equality before law in the matter of employment and thus violated Article 16(1) of the Constitution of India and Article 14 thereof.

Having regard to the above discussion, the instant writ stands allowed and the Respondents are directed to make necessary correction in the final seniority list dated 01. 01.2016 (Annexure-6); prepared for the State Police Service. Further, the letter dated 18.09.2009 to the extent where the case of Petitioner has been considered partially and date of promotion has been considered from 21.04.1998 instead of the year 1997 (Annexure-3), is hereby, quashed and set aside. The case of the Petitioner shall be considered for next higher scale of Senior Dy. S.P., as has been given to the juniors to the Petitioner, with all consequential benefits within a period of 12 weeks from the date of receipt/production of copy of this order.

Accordingly, the instant writ application stands disposed of in the manner indicated hereinabove. Pending I.A., if any, also stands disposed of...