Puran Das
Vs. Union of India & Ors [2006] Insc 85 (23 February 2006)
Arijit
Pasayat & Tarun Chatterjee Arijit Pasayat, J.
These
appeals are interlinked and are disposed of by this common judgment.
Appellant
challenges the judgments of a Division Bench of the Himachal Pradesh High Court
at Shimla holding that the appellant was not entitled to the benefit of
promotion from the date his juniors were granted promotion. The appellant's
case was that he was deprived of the opportunity of acquiring the requisite
qualification for promotion as he was initially placed under suspension and
subsequently removed from service. After reinstatement he qualified at the
requisite tests and on the basis of such qualification he shall be deemed to
have acquired the right to be considered along with his juniors when the
consideration was made.
The
factual background is as follows:-
Appellant
joined the Indo-Tibetan Border Police Force as a Constable on 7.1.1967. In 1969
he was promoted as Head Constable. On 11.9.1973 he was suspended from service
as a criminal case was registered against him. He was subsequently acquitted in
that criminal case. During the period of suspension, appellant was directed to
stay at Taradevi and not to leave the Headquarters. On 25.10.1974 his application
for station leave was rejected and he was directed to stay at Taradevi. Notice
was given to him for proposing disciplinary action for not reporting at Taradevi.
After enquiry the appellant was held guilty of charge of deserting the services
during the period of suspension. On 14.2.1976 show-cause notice was issued to
the appellant to show-cause as to why the punishment of removal from service
shall not be imposed upon him. By order dated 1.3.1976, the appellant was
ordered to be removed from service. By order dated 24.4.1976 the appeal was
rejected by the appellate authority. The appellant filed Civil Writ Petition
No.324/1976 in the High Court praying for the quashing of the aforesaid order
of removal from service. As noted above, appellant was acquitted in the
criminal case by judgment dated 31.5.1979. The High Court allowed the writ
petition by order dated 4.1.1983 and directed that all consequential reliefs be
given to the appellant. On 8.2.1983, an order was passed to reinstate the
appellant in service with all consequential reliefs with arrears of salary. In
March, 1984 the appellant qualified Radio Operator Grade II test and in June
1986 he qualified in the Grade I test. He became eligible for departmental
promotion test i.e. 'D' test subsequently. Representation was made by the
appellant to the concerned authorities for granting relief in terms of the High
Court's orders. The same was not accepted by the concerned authorities. The
appellant again filed the C.W.P. No.16/1987 in the High Court for grant of
consequential reliefs. On 18.9.1987 during the pendency of the writ petition
respondents 5 to 9 were promoted. According to the appellant they were junior
in service to the appellant. Civil Writ Petition No.562/87 was filed by the
appellant challenging promotion given to respondents 5 to 9. The High Court
partly allowed CWP No.562/87, declining the claim of promotion from the date
his junior were promoted on the basis that under the relevant rules the
appellant had qualified at the test in 1986 only. Appellant had highlighted
that some of the persons who were granted promotion had not qualified in all
the tests and the appellant was prevented from qualifying at the test because
he was placed under suspension and/or dismissed. The High Court held that since
the appellant did not possess requisite qualification for promotion at the time
of consideration for promotion, his claim for promotion from the date his
juniors were granted promotion cannot be accepted. In CWP. No.16 of 1987, the
High Court granted reliefs with which the present appeals have no direct nexus.
But the prayer for promotion from earlier point of time was rejected. In CWP
No.562 of 1987 that was the essential prayer, as the relief sought for was
promotion from the date his juniors were given promotion.
In
support of the appeals, learned counsel for the appellant submitted that the
approach of the High Court is clearly erroneous. Strong reliance was placed on
a decision of this Court in C.O. Arumugam and Ors. v. State of Tamil Nadu and Ors. (1991 Supp. 2 SCC
199) more particularly para 5 thereof. It was submitted that by the acts of the
respondent the appellant was deprived of the opportunity to appear at the
concerned test. The order of removal has been set aside by the High Court and consequential
benefits were directed to be given. The right to be considered for promotion
was one of the consequential benefits which flows from the order of the High
Court. The appellant could not appear in the test as he was under suspension,
and that cannot be a ground to deny him promotion.
In
response, learned counsel for the respondent submitted that at the time of
consideration for promotion, the appellant did not possess the requisite
qualification and, therefore, the High Court was right in justifying in
revising the benefits claimed.
Strong
reliance was placed as noted supra by learned counsel for the appellant on para
5 of Arumugam's case (supra). It reads as follows:
-
As to the merits of the matter, it is necessary to state that every civil
servant has a right to have his case considered for promotion according to his
turn and it is a guarantee flowing from Articles 14 and 16(1) of the
Constitution. The consideration of promotion could be postponed only on
reasonable grounds. To avoid arbitrariness, it would be better to follow
certain uniform principles. The promotion of persons against whom charge has
been framed in the disciplinary proceedings or charge-sheet has been filed in
criminal case may be deferred till the proceedings are concluded. They must,
however, be considered for promotion if they are exonerated or acquitted from
the charges. If found suitable, they shall then be given the promotion with
retrospective effect from the date on which their juniors were promoted."
The aforesaid decision has no relevance so far as the present case is
concerned. Undisputedly, at the point of time when the consideration was made
the appellant was not qualified. The written and the practical tests were held
by the concerned authorities in July and August, 1975 for the promotion of Head
Constables (W/T) to the rank of JIO (W/T) vacancies. Under the promotion order
33 persons were promoted on ad hoc basis and were brought on approved list 'D'
with stipulation that they would clear the practical test. The persons whose
promotion was cited as illustration by the appellant stood at a different
footing. Head Constable Ved Prakash was promoted on regular basis and Raghubir
Singh and V.P. Nautiyal were promoted on ad hoc basis against the unqualified
cadre and they were directed to clear the practical test within 12 months
failing which they were liable to be reversed. The appellant could not be
considered for promotion as he did not have the basic qualification under the
India-Tibetan Border Police (Non-Gazetted Telecommunication Cadre) Rules, 1983
(in short the 'Rules'). The appellant had qualified Grade II test and Grade I
test in March 1984 and June 1986 respectively. He became eligible for promotion
test i.e. "D" list test and became qualified subsequently. The
question of giving any retrospective effect to his qualification is clearly
impermissible. In C.O. Arumugam's case (supra) the factual position was
different. The persons whose cases were not considered, had already qualified
and in that background this Court held that they were entitled to be considered
from an anterior point of time. That logic is not applicable in the present
case, as admittedly the appellant did not possess the requisite qualification
on the date of consideration.
Above
being the position the appeals are clearly devoid of merit, deserve dismissal
which we direct. No costs.
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