Judgment:
Prasun Kumar Deb, J.
1. The order passed by respondent No. 2, the Director General-cum-Inspector General of Police, Bihar, Patna, vide Memo No. 5218 dated 31.10.1996 (Annexure-14) has been sought to be quashed by this writ application.
2. By the above mentioned order, the respondent No; 2 has not only rejected the petitioner's case for promotion on the post of Sub-Inspector or Police after placing him at proper place in the gradation list of Assistant Sub-Inspectors of Police, it has also cancelled the earlier order of selection grade granted to the petitioner vide order dated 13.1.1989.
3. The petitioner was recruited as a Constable in the Bihar Police Force On 10.4.1973 and was posted in the district of Darbhanga. He was promoted to the rank of Assistant Sub-Inspector of Police with effect from 12.1.1976 vide' Darbhanga D.P.F. Order No. 404/77 by the Superintendent of Police, Darbhanga, on the basis of his extra-ordinary merit and efficiency. The said order of promotion is contained in Annexure-1 to the writ petition. The promotion order got the approval of Deputy Inspector General of Police also. According to the petitioner, such promotion was granted to the petitioner on the basis of the Government policy as per Notification No. 5805 dated 27.4.1966 which was again reiterated by another notification dated 26.8.1972. Since that promotion in the year, 1976, the petitioner remained as Assistant Sub-Inspector of Police and he did not get promotion as Sub-Inspector or Police whereas juniors to the petitioner, namely, Rameshwar Prasad Singh and Ors. had been promoted to the post of Sub-Inspector of Police in the month of April, 1993. Moreover, other juniors had also been promoted, but the petitioner's case had never been considered and for the last 20 years he is rotting on the post of Assistant Sub-Inspector of Police.
4. On various occasions enquiries etc., were made but ultimately the petitioner's promotion to the post of Assistant Sub-Inspector of Police had been confirmed vide Annexure-5/C By Annexure 5/D, the petitioner had been given Selection Grade as per the observations made in Annexure-5/C. The petitioner made representation for his promotion to the post of Sub-Inspector of Police vide Annexure 6/A but the same had been rejected vide Annexure-6/B on 11.2.1991. The petitioner came to this Court in C.W.J.C. No. 2300 of 1990 (R) and after filing of the counter-affidavit from the side of the State, the said writ petition has been disposed of vide Annexure-9 giving direction to the petitioner to file representation before the appropriate authority who should dispose it of in accordance with law. Vide Annexure-8, representation was filed by the petitioner but the same has been rejected by the Director General of Police on 2.11.1995 as contained in Annexure-10. Against such rejection order, the petitioner again came up in C.W.J.C. No. 3856 of 1995 (R) which has been disposed of on 30.7.1996 after considering the counter-affidavit filed on behalf of the State vide order dated 2.11.1995 as contained in Annexure-10 to the writ petition. In the counter-affidavit objection was raised regarding non- compliance of the Police Order No. 204/88 in giving seniority but relying on the decision of Yamuna Prasad Yadav and Ors. v. The State of Bihar and Ors. CWJC No. 2328 of 1990 (R) which was tested upon the Supreme Court to the effect that the Police Order No. 204 of 1988 cannot stand as a barrier for determination of seniority and when the police order had been discarded and the barrier regarding consideration of the petitioner's seniority of the petitioner had been removed, the learned Single Judge in the said writ petition of the petitioner held in the following manner:
Accordingly the impugned order contained in Letter dated 20.10.1995 (Annexure-10) is hereby set aside. The respondent are directed to decide the seniority of the petitioner taking in note both the orders including the District Order No. 404/77 and the District Order No. 2747/86. They will also take in the note that the representation of the petitioner will decide the seniority of the petitioner. It was further ordered that the decision of Yamuna Prasad Yadav (supra) and the Supreme Court decision regarding the counting of seniority should be considered in view of the District Order No. 404/77 granting promotion to the post of A.S.I. with effect from 12.1.1976.
5. The petitioner then made further representation in terms of Annexure-12 and also citing the decision of the Apex Court as reported in AIR 1991 Supreme Court 518 but by Annexure-14 again the representation of the petitioner has been cancelled and not only that the selection grade granted to the petitioner as A.S.I, had also been withdrawn without giving any show cause to the petitioner although such selection grade was granted long back and that was never challenged in the earlier writ petition which were contested from the side of the State.
6. According to the petitioner, his case is wholly covered by the Yamuna Prasad Yadav (supra) and this position has not been challenged by the respondents in the counter-affidavit also but still it is stated that the petitioner's promotion to the post of A.S.I. on 12.1.1976 was not a regular promotion by the District Order No. 404/77 and as such promotion cannot be acted upon for the purpose of giving seniority to the petitioner.
7. Mr. A.K. Sinha, learned Counsel appearing for and on behalf of the petitioner has taken this ground in this writ petition that the impugned order as contained in Annexure-14 is not in consonance with the order/direction given by this Court vide Annexure-12. His second submission is that even if it is considered that the promotion given by the District Order No. 404/99 with effect from 12.1.1976 to the post of A.S.I, is considered to be an ad hoc one but the same has been confirmed with retrospective effect/long back by the State Appointment Authority and as such it cannot be said by referring to Rules/Act of the Police Manual which came into force in 1978 that such ad hoc promotion was illegal and practically such ad hoc promotion was sought to be cancelled by the impugned order at Annexure-14 after long 20 years that too when the petitioner was fighting for a long time for getting his promotion to the higher heirarchy. The submission of Mr. A.K. Sinha has got much force in view of the direction being given by the learned Single Judge in the earlier writ petition field by the petitioner as contained in Annexure-12 on the basis of the earlier decision of this Court and on going through the counter-affidavit filed on behalf of the State, the point for consideration was taken whether the petitioner in entitled to seniority in view of his earlier promotion on ad hoc basis long back in the year, 1976. The direction was specific to the respondents to consider the seniority of the petition taking into note both the orders including the District Order No. 404 of 1977 and District Order No. 2747 of 1986. So till the disposal of that writ petition, the State Government or the authorities of the petitioner never challenged the District Orders as mentioned above. Now, for the first time, it is said that the petitioner's promotion was irregular to the post of Assistant Sub-Inspector of Police that too after 20 years and when the petitioner fought on earlier occasion were not being challenged from the side of the authorities. Even if it is considered that the district promotion of the petitioner was improper/irregular but the same has been confirmed, even after coming into force of the Police Manual and the training required under the Police Manual had also been taken by the petitioner, then his ad hoc promotion by the District Order of 1977 without giving any notice or opportunity of being heard cannot be cancelled and when the said order had not been challenged on earlier occasions. By applying the principles laid down in Yamuna Prasad Yadav's case, the petitioner's promotion cannot be cancelled as the Police Order in the Police Manual cannot stand as the barrier. Thus this part of the order as contained in Annexure-14 to the writ petition is totally bad. More so, it appears that similarly situated persons as contained in Annexure-15 had been given promotion to without questioning their promotion to the posts of Assistant Sub-Inspector of Police. This Annexure-15 had been annexed in the supplementary affidavit filed by the petitioner and even in the supplementary counter-affidavit, the said Annexure-5 had not been contradicted so there is clear discrimination in the case of the petitioner.
8. On the basis of that ad hoc promotion in the year, 1976, the petitioner had been given selection grade and the same is sought to be cancelled by Annexure-14 which was not a matter of controversy as the said promotion to Selection Grade had never been challenged from the side of the State in the earlier writ petitioner. The petitioner ramained in the post of Assistant Sub- Inspector of Police for the last 20 years and his services were having no black spot as is contended from the side of the petitioner and not being challenged from the side of the authorities, hence, the petitioner is definitely entitled to get promotion to higher post when his juniors have been given so. Even if the ad hoc promotion was not a regular promotion as per the District Order in the year, 1976 even if considered on the basis of the Police Manual which came latter on after the promotion was made by the District authorities at Darbhanga, the such services should be counted in his seniority. This is the clear principle enunciated by the Apex Court in the case of Rajbir Singh v. Union of India AIR 1991 SC 580. The when the petitioner's case is wholly covered by Yamuna Prasad Yadav's case and when his service as the Assistant Sub-Inspector of Police remained continued for 20 years then the petitioner is entitled to get the promotion to the post of Sub-Inspector and to the Higher posts in the heirarchy at least from the date when his juniors had been promoted. He is entitled to be put in his proper place in the gradation list of A.S.I, on counting of his services as A.S.I, from the date when he was promoted on ad hoc basis.
9. It appears that on various occasions that Court passed the order for consideration of the case of the petitioner on representation being filed by the petitioner but on each and every occasion, same unforseen grounds were being taken by the authorities only to debar the petitioner from the higher post in the heirarchy, so this time it is felt improper to ask for consideration of the petitioner's case again rather direction is required to be given by the Court in the form of mandamus to put the petitioner in the proper place of seniority and giving promotion to the post of Sub-Inspector and then in heirarchy post when his juniors were given so and give him all financial benefits.
10. The writ petition is thus allowed, Annexure-14 is hereby quashed and the authorities are hereby directed to give all benefits to the petitioner in the light of the observations made above.