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ASI JAGBIR SINGH versus STATE OF HARYANA & ORS

High Court of Punjab and Haryana, Chandigarh

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ASI JAGBIR SINGH v. STATE OF HARYANA & Ors - CWP-14254-2003 [2005] RD-P&H 156 (16 September 2005)

In the High Court of Punjab and Haryana, Chandigarh

....

C.W. P. No.14254 of 2003

....

Date of decision:23.5.2005

Parties Name

ASI Jagbir Singh

....Petitioner

v.

State of Haryana and others

....Respondents

.....

Present: Mr. S.N. Yadav, Advocate for the petitioner.

Mr. Anil Rathee, Additional Advocate General, Haryana for the respondents.

.....

S.S. Saron, J.

The petitioner, who is an Assistant Sub Inspector (`ASI' for short) in the Haryana Police in this petition under Article 226/227 of the Constitution of India seeks quashing of the order dated 8.7.2003 C.W.P. No.14254/2003

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(Annexure-P.5) whereby his representation for regularization of ad hoc service in the rank of ASI has been rejected. The petitioner further seeks a direction against the respondents to re-fix his seniority after counting the benefit of the ad hoc promotion service.

The petitioner was enrolled as a Constable in the Haryana Police on 15.9.1972. He then passed the lower school course in the term ending in October 1982 and was brought on list-`C' w.e.f. 13.10.1982.

He was promoted to the rank of officiating Head Constable w.e.f.

13.1.1989 and confirmed as such w.e.f. 31.8.1991. It is stated that on account of the outstanding police working, the petitioner was promoted as ASI on ad hoc basis w.e.f. 1.4.1991 with the approval of W/DIG, Rohtak Range, Rohtak and since then he has been working as ASI without any break. The petitioner passed his intermediate school course in the term ending 1999 and thereafter he was regularly promoted as ASI w.e.f. 13.10.1999. On 26.3.2003 one ASI Ram Bhaj made a representation to the Inspector General of Police, Rohtak Range, Rohtak for regularization of his service. The same was allowed and his ad hoc service from 8.3.1989 to 18.7.1999 was regularized and his seniority re- fixed from the date of his promotion i.e. 8.3.1989. The petitioner also made a representation to Inspector General of Police, Rohtak Range, C.W.P. No.14254/2003

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Rohtak for regularization of his ad hoc service w.e.f. 1.4.1991 as in an identical case of ASI Ram Bhaj the same has been allowed. The said representation has been rejected vide impugned order dated 8.7.2003 (Annexure-P.5) which, as already noticed, is assailed in this petition.

On notice of motion, written statement has been filed by the Inspector General of Police, Rohtak Range, Rohtak on behalf of the respondents. It is stated that the petitioner was promoted as ASI on ad hoc basis w.e.f. 1.4.1991 without any recommendation of the Superintendent of Police, Rohtak (respondent No.3) where the petitioner was serving at that time. The representation of the petitioner for re- fixation of his seniority after counting the ad hoc promotion service was sent to the Superintendent of Police for his para wise comments. The Superintendent of Police, Rohtak (respondent No.3) stated that the name of the petitioner was not recommended for promotion from his office.

Besides, as per record, the petitioner had never been outstanding sportsman nor performed any act of bravery against the terrorist at the cost of his life. It is also stated that the petitioner has never shown extra- ordinary devotion to duty for which he could be recommended for out of turn promotion and for that reason he was not recommended from the office of Superintendent of Police, Rohtak (respondent No.3) for out of C.W.P. No.14254/2003

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turn promotion. Insofar as Sub Inspector Ram Bhaj is concerned, it is stated that he was promoted to the rank of ASI on ad hoc basis which has been regularized in view of his extra-ordinary devotion to duty and good police working for which his name was twice recommended for President's Police Medal. Besides, the case of Ram Bhaj is covered by an order dated 11.11.1992 passed by this Court in Civil Writ Petition No.2474 of 1992. Therefore, it is stated that the case of the petitioner is not identical as that of Ram Bhaj.

In the replication filed by the petitioner, it is stated that the services of one Satya Ram, who is junior to the petitioner, have been regularized w.e.f. 25.4.1991 by relying on the judgment in Jai Bhagwan's case. Besides, the ad hoc services of ASI Rajinder Singh has also been regularized. It is stated that the fact that the petitioner was promoted without any recommendation by the Superintendent of Police, Rohtak is totally false because the promotion order (Annexure-P.1) of the petitioner and Annexure-P.2 of ASI Ram Bhaj are same. More over the petitioner has been continuing as ASI since 1991. As regards outstanding performance, it is stated that the petitioner was awarded 86 commendation certificates. The two copies of certificates have been placed as Annexures A.3 and A.4. It is stated that ASI Ram Bhaj was C.W.P. No.14254/2003

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neither a sportsman nor had he shown any act of bravery. Besides, ASI Ram Bhaj has filed Civil Writ Petition No.2474 of 1992 against his reversion and due to the order passed by this Court he continues to hold the post of ASI. However, services of the petitioner, who has been working as ASI since 1991 are not being regularized.

The respondents have filed a rejoinder to the replication to the petitioner in which it is stated that ASI Satya Ram was an outstanding player of Kabaddi at the national level. Keeping this in view the Court of Additional Civil Judge (Senior Division), Rohtak vide order dated 4.4.2003 passed in a civil suit filed by ASI Satya Ram directed not to revert him. The said order of the learned Additional Civil Judge (Senior Division), Rohtak, it is stated, was not appealed against on the advice of the District Attorney. It is in compliance of the order of the Court that seniority of ASI Satya Ram was fixed and his ad hoc service was regularized. The case of Rajinder Singh, it is stated, is identical to that of Satya Ram and the department has given the same benefits to Rajinder Singh in view of the government instructions dated 2.5.2002 (Annexure- R.1).

Learned counsel for the petitioner contends that the petitioner is entitled to have his ad hoc promotion service as ASI C.W.P. No.14254/2003

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regularized keeping in view the fact that in similar circumstances the ad hoc services of other co-employees have been regularized.

Consequently, the impugned order dated 8.7.2003 (Annexure-P.5) rejecting the representation of the petitioner is liable to be quashed.

In response, learned counsel for the State submits that the case of the petitioner for promotion as ASI was not recommended by the Superintendent of Police and, therefore, he is not entitled to the regularization of his ad hoc promotion service as ASI. Besides, it is stated that the case of the petitioner is not identical to that of the co- employees as stated.

We have given our thoughtful consideration to the respective contentions. The claim of the petitioner is for regularizing his ad hoc promotion service rendered by him as Assistant Sub Inspector from 1.4.1991 to the date he was regularly promoted w.e.f. 13.10.1999.

The case set-up by the petitioner is one of discrimination vis-a-vis other co-employees, namely, ASI Ram Bhaj, ASI Satya Ram and ASI Rajinder Singh. Therefore, in the circumstances, it is to be seen whether there has been any discrimination by an executive organ of the State. The order of promotion of the petitioner (Annexure-P.1) for promotion to the post of ASI has been passed by the Superintendent of Police, Rohtak (respondeat C.W.P. No.14254/2003

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No.3). It is stated that the petitioner is promoted as ASI on ad hoc basis w.e.f. 1.4.1991. However, his promotion is stated to be purely temporary and fortuitous and he would have no claim of seniority towards his senior. Besides, he could be reverted at any time without any notice.

Similar order dated 13.3.1989 (Annexure-P.2) was passed by the Superintendent of Police, Rohtak (respondent No.3) in the case of ASI Ram Bhaj. The order of ad hoc promotion having been passed by the Superintendent of Police Rohtak (respondent No.3) in respect of the petitioner, it is quite inappropriate for the respondents to take the stand that the Superintendent of Police, Rohtak (respondent No.3) in his comments to the representation made by the petitioner has stated that the name of the petitioner was not recommended for promotion from its office. Ram Bhaj, with whom the petitioner states that he is similarly situated was working as Head Constable and was promoted on ad hoc basis to the post of ASI vide order 13.3.1989 (Annexure-P.2). The said Ram Bhaj made a representation for regularization of his service. The same has been allowed by the Inspector General of Police, Rohtak Range, Rohtak (respondent No.2) vide order dated 9.5.2003 (Annexure- P.3). It is recorded by respondent No.3 that he had examined the representation of ASI Ram Bhaj and had also gone through the judgment C.W.P. No.14254/2003

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in Jai Bhagwan v. State of Haryana (CWP No.7957 of 1993) and was of the considered opinion that ASI Ram Bhaj stood on better footing than ASI Ram Kumar and Inspector Jai Bhagwan who were given accelerated promotions without passing lower school course and intermediate school course, whereas ASI Ram Bhaj had passed the said promotional course.

Besides, ASI Ram Bhaj was serving as ad hoc ASI for the last 14 years.

Accordingly, his ad hoc service as ASI from 8.3.1989 to 18.7.1991 was regularized and his seniority was re-fixed by giving him deemed date of promotion. During the ad hoc promotion service of ASI Ram Bhaj he was sought to be reverted on administrative grounds which again he (ASI Ram Bhaj) assailed in this Court by way of CWP No.2474 of 1992 which was allowed by this Court on 11.11.1992. It was held that once the competent authority by applying its independent mind granted certain service benefits to the said petitioner (Ram Bhaj), the successor in office cannot withdraw the same by reviewing or re-considering the earlier decision unless some fresh material was brought on the record which renders the employee unqualified or ineligible for the grant of benefit.

Otherwise also it was observed that if the recognition shown by the competent authority at a certain moment to an employee for an act of bravery or devotion to duty is later on sought to be nullified or C.W.P. No.14254/2003

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neutralized by withdrawing the recognition, it would adversely affect the credibility of administration. Therefore, in the consideration process of ASI Ram Bhaj in terms of order dated 9.5.2003 (Annexure-P.3) there has been a detailed reconsideration to the relevant material on record and it was observed that his case stands on better footing than Ram Kumar and Inspector Jai Bhagwan who were given accelerated promotions without passing lower school course and intermediate school course which has been passed by ASI Ram Bhaj. In the case of the petitioner, however, in his representation dated 26.5.2003 (Annexure-P.4) there has been no due consideration and it is merely recorded by the Superintendent of Police, Rohtak (respondent No.3) that the representation of the petitioner has been considered and filed being devoid of merit. Therefore, evidently there has been no due consideration to the relevant material and documents which were required to be taken into consideration in the decision making process. The petitioner in his representation dated 26.5.2003 (Annexure-P.4) had stated that he was promoted as ASI w.e.f.

1.4.1991 with the approval of W/DIG, Rohtak Range, Rohtak and since then he was on the said rank without any break or reversion. Besides, he passed the intermediate school course in term ending 1999. He was brought on list `D' w.e.f. 12.10.1999 and promoted as officiating ASI C.W.P. No.14254/2003

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w.e.f. 13.10.1999. Besides, similar representations of Jai Bhagwan and Ram Kumar, who were given ad hoc accelerated promotions though they had not even passed a promotion course have been allowed the benefit of ad hoc promotion service. The other cases of discrimination pointed out by the petitioner are that of ASI Satya Ram and ASI Rajinder Singh. The copies of the orders dated 14.11.2003 (Annexure-A.1) accepting representation of ASI Satya Ram and that dated 28.8.2003 (Annexure- A.2) accepting representation of ASI Rajinder Singh have been placed on record. The said orders have been passed by the Inspector General of Police, Rohtak Range, Rohtak. Insofar as ASI Satya Ram is concerned, it is mentioned in the order dated 14.11.2003 (Annexure-A.1) that the relevant record as also the judgment of this Court in Jai Bhagwan's case (supra) had been examined and ASI Satya Ram stands on a better footing than that of ASI Ram Bhaj and Inspector Jai Bhagwan. It is also mentioned that Superintendent of Police, Rohtak had intimated that ASI Satya Ram was served a show cause notice for reversion from service against which he filed a civil suit which was decided in his favour on 4.4.2003. Accordingly, the ad hoc service of ASI Satya Ram from 25.4.1991 to 27.3.2002 was allowed in compliance with the civil court decree dated 4.4.2003. The ad hoc service of ASI Rajinder Singh was C.W.P. No.14254/2003

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regularized vide order dated 28.8.2003 (Annexure-A.2) after going through the judgment in Jai Bhagwan's case (supra). It was observed that he stands on better footing than that of Rajinder Kumar and Inspector Jai Bhagwan who were given accelerated promotions without passing the lower school course and intermediate school course. In the case of the petitioner, the representation of the petitioner dated 26.5.2003 has been declined by the Superintendent of Police, Rohtak on 8.7.2003 (Annexure-P.5). It is recorded that copy of memo dated 1.7.2003 from Inspector General of Police, Rohtak Range, Rohtak to Superintendent of Police, Rohtak had been received. In other words there is no due or detailed consideration in the case of the petitioner as there has been in the cases of ASI Ram Bhaj vide order dated 9.5.2003 (Annexure-P.3) and that of ASI Satya Ram and Rajinder Singh vide order dated 14.11.2003 (Annexure-A.1) and dated 28.8.2003 (Annexure-A.2) respectively.

Therefore, evidently there has been failure to take into consideration the relevant material and documents which were required to be taken into consideration in respect of the petitioner in the decision making process which has rendered the decision arbitrary. Besides, it has not satisfied the test of reasonableness which requires the decision making authority to take into consideration all relevant facts and exclude irrelevant facts C.W.P. No.14254/2003

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from consideration. Besides, the decision is neither to be perverse nor irrational. In the case in hand, as already noticed, there has been no due consideration to the material on record. Moreover, the action of the respondents is discriminatory inasmuch as ad hoc promotion service of similarly situated employees who were promoted to the rank of ASI have been regularized and there is no reason forthcoming as to why the ad hoc promotion service of the petitioner has not been regularized. There is per se arbitrariness and violation of Article 14 of the Constitution of India which protects all persons from discrimination by the executive organ.

Even otherwise, the stand of the respondents is untenable for the reason that it has taken the stand that the office of Superintendent of Police, Rohtak (respondent No.3) had not recommended the name of the petitioner for promotion as ASI whereas the promotion order of the petitioner (Annexure-P.5) has been passed by the Superintendent of Police, Rohtak (respondent No.3) itself.

In the circumstances, the writ petition is allowed. The order dated 8.7.2003 (Annexure-P.5) is quashed and a direction is issued to the respondents to consider the case of the petitioner for regularizing his ad hoc promotion service as ASI for the period from 1.4.1991 to 13.10.1999 in accordance with the law and after taking into consideration all the C.W.P. No.14254/2003

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relevant material and documents pass fresh orders and if found due fix his seniority accordingly. There shall, however, be no order as to costs.

(S.S. Saron)

Judge

May 23, 2005. (S.S. Nijjar)

Judge

hsp


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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