CWP No. 16894 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.16894 of 2007 (O&M) Date of decision:17.11.2009 S.I. Bhim Sain ... Petitioner Versus State of Haryana and others ... Respondents CORAM: HON’BLE MR. JUSTICE AJAY TEWARI Present: Mr.Arun Nehra, Advocate for the petitioner. Mr. Harish Rathee, Sr. DAG, Haryana. Mr. Akshay Bhan, Advocate for respondent No.6. **** 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters or not ? 3. Whether the judgment should be reported in the digest ? **** Ajay Tewari , J . (Oral) This petition has been filed primarily challenging the order dated 19.01.2007 (Annexure P-30) whereby the officiating promotion of the petitioner as Sub Inspector has been changed to ad hoc. The further prayer which has been made is that the petitioner should be considered for promotion with effect from the date that the respondent No.6 was so considered. CWP No. 16894 of 2007(O&M) 2 The brief case set out by the petitioner in the writ petition was that in the year, 1994-95, respondent No.6, who was junior to him, was picked up for being posted in the newly set up Commando Wing. Thereafter, the petitioner was also so picked up and at one stage he was granted seniority over respondent No.6 (Annexure P-25/A). But later on by passing order 19.01.2007 (Annexure P-30), his subsequent officiating promotion as Sub-Inspector was changed to ad hoc and that this would have the effect of making him junior to respondent No.6. In the written statement filed by the State, the plea taken was that at the time when the respondent No.6 was picked up for the Commando Wing, options were called for from all eligible persons, but the petitioner did not submit his willingness. It is further pleaded that subsequently when the petitioner submitted his willingness, he was taken to Commando Wing and, since by that time, the respondent No.6 had earned further promotions, the petitioner could not be permitted to catch up with him. In replication, the petitioner contradicted the assertion that options were called for from all persons. It was his categorical stand that in fact had options ever been called for, the petitioner would also have opted since he was continuously representing for being placed in the Commando Wing. Thereafter, various opportunities were granted to the respondents to confirm the assertion that options had been called for from all eligible persons. Today, the learned Senior Deputy Advocate General has fairly stated that there is no record available to confirm the averment that options were called for from all eligible persons. In the circumstances, it has to be held that when the respondent No.6 was transferred in the Commando Wing, the mandatory requirement of seeking options from all other eligible CWP No. 16894 of 2007(O&M) 3 employees was not followed. Once this seminal issue is held against the respondents what remains to be seen is whether on his subsequent transfer to the Commando Wing, the petitioner was entitled to claim the benefits of his earlier service and claim seniority and over the respondent No.6. In Civil Writ Petition No. 15809 of 1997 SI Vijender Singh No.4/22 v. The State of Haryana and others decided on 9th of March, 1998, a Division Bench of this Court held as follows :- “As observed above, the petitioner was a confirmed Constable in HAP with effect from 31.1.1988. Once the petitioner has been ordered to be transferred to Commando Force, where he was earlier on the deputation, it would be taken as if he became member of the Commando Force and his date of confirmation as Head Constable would remain the same i.e. 31.1.1988 and he is entitled to be considered for promotion on ad hoc basis/regular basis to the next higher ranks with effect from the date any of his juniors Head Constables in the Commando Force were so promoted. It will be up to the respondents to see as to what rank the petitioner is to be given in the Commando Force; meaning thereby that if any junior Head Constable is holding the rank of ASI on ad hoc basis or even any other rank on ad hoc basis, then the petitioner should be allowed to continue on that rank which any of his junior is holding even on ad hoc basis unless there is anything against the petitioner for holding that rank on ad hoc basis. Similarly, if any of the junior has been promoted on regular basis in the Commando Force to the rank of ASI and SI the petitioner's case for regular promotion with effect from those dates, when any of his juniors, might have been promoted to the higher rank, would be considered in accordance with law.” Apart from this it is not disputed that one CWP No.15485 of CWP No. 16894 of 2007(O&M) 4 2005 had been filed by one Roshan Lal also claiming back dated promotion (on slightly different grounds). It was during the pendency of that writ petition that the order dated 12.01.2006 (Annexure P-25-tentative seniority list) and order dated 14.03.2006 (Annexure P-25/A) were placed on the file of the record of this Court. In both these orders, the petitioner was shown senior to the respondent No.6. Since by that time, the respondent No.6 was functioning as a Sub Inspector, by order dated 21.04.2006 (Annexure P- 26), the petitioner was also promoted to the rank of officiating Sub Inspector. Immediately thereafter, the petitioner filed representation dated 09.06.2006 (Annexure P-27) wherein he reiterated his request that he may be given the benefits which had been granted to Mohinder Singh and which had been given to him by Anneuxre P-12 (At this stage it would be apposite to dilate on this document Annexure P-12). When the petitioner was originally representing for being taken into the Commando Wing at one stage, a letter dated 09.02.2001 (Annexure P-10) was written by the Director General of Police, Haryana to him directing him to intimate in writing whether he was willing to go to the Commando Wing on deputation where his seniority would be maintained in the Haryana Armed Police Cadre and he would not be entitled to any promotion in the Commando Wing. In response, the petitioner wrote a letter dated 27.03.2001 again saying that he was entitled to be absorbed in the Commando Wing and was further entitled to get the same benefits as respondent No.6 who had been given all the seniority etc. when he was taken into the Commando Wing. It was thereafter that the Director General of Police, Haryana wrote a letter (Annexure P-12) deciding that the petitioner was transferred from the Haryana Armed Police to the Commando Wing and permanently absorbed. CWP No. 16894 of 2007(O&M) 5 It was further mentioned as follows:- “........His seniority may be fixed in Commando Wing as already fixed in other cases under intimation to this office....” Coming back to the main narrative, instead of giving him the benefit claimed by Annexure P-27, he was given a notice for converting officiating promotion into ad hoc promotion on the ground that he was amongst the junior most S.I. of Commando Wing; that only 50% vacancies had to be filled up by promotion; that wrongly all vacancies had been filled up by promotion and thus, he was asked to show cause why his officiating promotion be not converted to ad hoc promotion. It is thereafter that the impugned order was passed. In my opinion this writ petition deserves to succeed. Once the respondents were setting up a new wing and were seeking to induct employees from other wings it was not open to them to make pick and choose selections. All concerned had to be given right to apply for the same through thereafter it would have been up to the respondents to select the most suitable one. In fact the defence set up-viz. all persons were notified- itself reveals that the official respondents accepted the applicability of the doctrine of equal opportunity. As could be seen from the facts narrated above the suitability of the petitioner cannot now be disputed since the petitioner has been inducted into the Commando Wing. In the circumstances in keeping with the decision of this Court in Civil Writ Petition No. 15809 of 1997 SI Vijender Singh No.4/22 v. The State of Haryana and others (supra) the petitioner would be allowed to continue on the rank which his junior, respondent No.6 was holding. Once that benefit has to be granted to the petitioner he would not be treated as junior most and consequently his officiating promoting as Sub Inspector CWP No. 16894 of 2007(O&M) 6 could not be changed to ad hoc. Resultantly this writ petition is allowed. Order Annexure P-13 is set aside and it is directed that the petitioner be placed above the respondent No.6 in the seniority list and be considered for all benefits which may have been granted to the said respondent. (AJAY TEWARI) JUDGE November 17, 2009 sunita