Full Judgment
HIGH COURT OF MADHYA PRADESH, JABALPUR W.P. No.5197/09 Vinot Kumar Barsaiya .. .. Petitioner Vs./- State of M.P. and others .. .. Respondents ------------ For the Petitioner : Shri A.K. Singh, Advocate For Respondents No.1 : Smt. Nirmala Nayak, to 3 Government Advocate =============== Present: HON’BLE MR. JUSTICE ALOK ARADHE ---------------------------------------------------------------- ORDER
(13.12.2012) In this petition, the petitioner inter alia, has challenged the validity of the orders dated 6.8.2008, 16.2.2009 and 15.4.2009 by which the representation submitted by the petitioner for grant of promotion to the post of Sub-Inspector in special branch has been rejected and the petitioner has been informed that the application for review of the order dated 6.8.2008 has been rejected. The petitioner also seeks a direction to the respondents to modify the order of promotion dated 29.12.2010 by which the petitioner has been promoted to the post of Sub-Inspector in District Police Establishment. In order to appreciate the petitioner's grievance, few facts need mention which are stated infra”
2. The petitioner was appointed on 26.8.1982 and was promoted to the post of Assistant Sub- Inspector in the special branch. The petitioner thereafter submitted an application on 14.5.1997 seeking his transfer in District Police Force. The application submitted by the petitioner was duly considered and by order dated 7.6.1997, the petitioner was transferred to the District Police Force. After the transfer of the petitioner to the District Police Force, in view of the order dated 16.10.1997 issued by the State Government, special branch was constituted as a separate cadre and a separate gradation list was directed to be prepared in respect of the employees working in the special branch. In view of the application submitted by the petitioner, the petitioner vide communication dated 7.5.1999 was asked to submit his option with regard to his posting in Special Branch. Thereupon, vide communication dated 15.5.1999, the petitioner submitted his option for posting in Special Branch subject to the condition that seniority on the post of Sub-Inspector be accorded to him with retrospective effect. It appears that no decision was taken on the option which was submitted by the petitioner. Thereafter, by an order dated 26.10.1998, the respondents 4 and 5 who were junior to the petitioner, were promoted to the post of Sub- Inspector in Special Branch. The petitioner thereupon submitted representations. Thereafter the petitioner filed a writ petition, namely, W.P. No.5406/2008 in which he sought the benefit which was given to one Jayant Bandopadhyay vide order dated 6.7.2006 passed in W.P. No.24078/2003 ( Jayant Bandopadhyay Vs. State of M.P. and others) . The writ petition preferred by the petitioner was disposed of by learned single Judge vide order dated 15.5.2008 on the following terms:
3. “The present petition is filed by the petitioner seeking the benefit of the judgment passed by the Writ Appellate Court which was registered as W.A. No.243/2007 whereby the judgment passed by this Court in W.P. No.24078/2003 (O.A. No.796/1998) ( Jayant Bandopadhyay v. State of M.P. and Others) decided on 6.7.2006 has been affirmed. The petitioner submits that the case of the petitioner is also similar to the case already decided by this Court Jayant Bandopadhyaya (supra) which has also been affirmed in the writ appeal. In view of the aforesaid, I am inclined to direct the respondents to consider the case of the petitioner whether the petitioner is also entitled to be given the benefit of the judgment passed in W.A. No.243/2007 decided on 21.8.2007 ?. The petitioner shall furnish the necessary representation along with the certified copy of this order to the respondents. Accordingly, petition stands disposed of.”
3. The petitioner thereafter submitted a representation to the competent authority seeking the benefit of decision rendered in Jayant Bandopadhyay (supra). The competent authority vide order dated 6.8.2008 inter alia held that the petitioner was never 4 posted in the Special Branch after its formation as a separate cadre and the petitioner was transferred to District Police Force on his own request dated 14.5.1997 therefore, the case of the petitioner is different from the case of Jayant Bandopadhyay. It was further held that the petitioner after having remained posted for a period of more than ten years in District Police Force, cannot be allowed to be transferred to Special Branch. Thereafter the petitioner submitted an application for review of the aforesaid order which was rejected vide order dated 16.2.2009. In the meanwhile, the petitioner was promoted to the post of Sub-Inspector in District Police Force vide order dated 29.12.2010. Admittedly, the petitioner has accepted the promotion on the post of Sub-Inspector and is working as such in District Police Force. By way of amendment, the petitioner has sought modification of the order of promotion and has prayed for a direction to the respondents to treat the order of promotion dated 29.12.2010 in Special Branch.
4. Learned counsel for the petitioner submitted that the petitioner had given his consent vide communication dated 15.5.1999 to work in the Special Branch. It is further submitted that the petitioner was transferred to District Police Force prior to formation of the Special Branch as a special branch therefore his lien in the separate cadre was not terminated therefore, the petitioner is entitled to be promoted as Sub-Inspector in the Special Branch with effect from the date when his juniors in the Special Branch were promoted. On the other hand, learned Government Advocate submitted that the petitioner on his own request was posted in District Police Force. In view of the order issued by the State 5 Government dated 16.10.1997 a decision was taken to constitute Special Branch as a separate cadre. Thereafter, the separate gradation list was prepared in respect of the Special Branch in the year 1997. However, the petitioner never demanded for inclusion of his name in the gradation list of Special Branch. It is further submitted that the competent authority has examined the matter in detail and has held that the case of the petitioner is different than that of Jayant Bandopadhyay and, therefore, the representation of the petitioner has rightly been rejected.
5. I have considered the submissions made by learned counsel for the parties. In view of the order dated 15.5.2008 passed in writ petition namely W.P. No.5406/08 filed by the petitioner, the only question which arises for consideration is whether the petitioner is entitled to be give the benefit of the judgment passed in W.A. No.243/2007. Admittedly, the petitioner submitted an application on 10.7.1996 for his transfer to District Police Force. Thereupon vide order dated 7.6.1997 the petitioner was transferred to the District Police Force. The petitioner submitted conditional option for joining the Special Branch on 15.5.1999. Thereafter the petitioner did not take any action except for submitting the representations for inclusion of his name in the gradation list of Special Branch. The petitioner filed W.P. No.5406/2008 in the year 2008 which was disposed of with the direction to the competent authority to consider whether the petitioner is entitle to be given the benefit which was granted to the petitioner in Jayant Bandopadhyay (supra). The respondents have examined the case of the petitioner in detail and have found that the case of the petitioner is different than that of Jayant 6 Bandopadhyay. It has been held that the aforesaid Jayant Bandopadhyay has remained posted throughout in the Special Branch whereas the petitioner on his own request was posted at District Police Force for a period of ten years and has never worked in Special Branch after its constitution as a separate cadre. Therefore, the case of the petitioner is different than Jayant Bandopadhyay. It is pertinent to mention here that during pendency of the writ petition, the petitioner has been promoted to the post of Sub- Inspector in District Police Force. The petitioner has accepted the order of promotion and is working as Sub-Inspector in District Police Force. Therefore, now, the petitioner cannot be permitted to turn around and to claim the promotion with retrospective effect in Special Branch. The conduct of the petitioner, in the facts of the case, disentitles him to any relief in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.
6. In view of the preceding analysis, I do not find any merit in the writ petition. The same fails and is hereby dismissed. (Alok Aradhe) Judge ks