--- 1 --- HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE S.B.: HON'BLE MR. S. C. SHARMA, J WRIT PETITITION NO. 4910 / 2006 MANJU BALA SOLANKI Vs. STATE OF MP & 4 ORS., * * * * * O R D E R ( 13/1/2011) The petitioner before this Court, a lady Constable belonging to the Scheduled Caste Category, has filed this present petition for issuance of an appropriate writ, order or direction, directing the respondents to promote the petitioner to the post of Head Constable. The contention of the petitioner is that she was appointed as a Constable on 23/8/89 and was posted at Dewas. Petitioner has further stated that at the relevant point of time, GOP 77/97 and GOP 81/98 were governing the field relating to promotion from the post of Constable to the post of Head Constable and applications were invited for promotion to the post of Head Constable in the year 2002. The petitioner has further stated that as per the Scheme of Examination a candidate was required to pass --- 2 --- preliminary examination and thereafter main examination and the total number of vacancies notified were 7 under the General Category, 2 under the SC Category and 2 for ST Category. The petitioner has further stated that she was declared successful in the preliminary examination and result was declared as contained in Annexure P/2. Petitioner has further stated that she was entitled to appear in the final examination. However, she was not granted permission by the then Subedar-M Babu Choudhary. The petitioner has categorically stated that she was denied permission intentionally by the then Subedar-M and a complaint was submitted to the higher authorities in the matter. The petitioner has further stated that on the basis of her complaint a fine of Rs.2,000/- was inflicted upon the Superintendent of Police and the petitioner was informed vide letter dt. 3/2/2006. The petitioner has further stated that while all this was going on the statutory provisions governing promotion to the post of Head Constable were modified and in respect of preliminary and main examination by virtue of order dt. 31/12/2004 a process of only one examination was introduced by the department known as Selection Examination. The petitioner --- 3 --- has filed Annexure P/4 dt. 25/1/05 and the same reflects that after 31/12/04 only one qualifying examination is required for the purposes of promotion to the post of Head Constable. Petitioner's contention is that she has already qualified the preliminary examination in the year 2002 and therefore she is not required to appear again in any examination. It is pertinent to note that petitioner was also granted liberty by the department to appear in the examination introduced by virtue of amendment dt. 31/12/04. A letter was issued on 23/3/06 permitting the petitioner to appear in the examination and the petitioner has preferred this present writ petition and is claiming promotion to the post of Head Constable. Her contention is that she is not required to appear in any examination for the purposes of promotion to the next higher post of Head Constable. Learned counsel for the petitioner has relied upon a judgment delivered by the apex court in the case of N.A. Patel and others Vs. K.G. Chauhan and others (2001) 10 SCC 469. A reply has been filed in the matter and the contention of the respondents is that a qualifying examination took place in the year 2002 for promotion to the post of Head Constable in accordance with the provisions as contained --- 4 --- under GOP 77/97 and the petitioner did appear in the preliminary examination. The respondents have also stated that on account of mistake committed by one S. S. Chaudhary, Subedar-M in preparing the Roster the petitioner's name could not be sent for final examination which was to be held at the level of the Office of Dy. Inspector General of Police. Respondents have also stated that the Departmental Enquiry was conducted against Mr. S.S. Chaudhary, Subedar-M. Respondents have also stated that the petitioner as she has not passed the main examination, is not entitled for promotion to the post of Head Constable automatically. The respondents have also stated that later on the scheme of examination itself has been modified by amending GOP of 77/97 w.e.f. 31/12/04 and one unified examination is in existence. The respondents have further stated that the petitioner has to appear in the examination as the same is provided as a mandatory condition under the GOP 77 / 97 as amended on 31/12/04. Respondents have also stated that the petitioner was directed to appear in the examination as per the amended GOP in the year 2006 but she has not appeared in the examination and therefore the question of granting promotion to the petitioner does not arise. --- 5 --- Respondents have prayed for dismissal of the writ petition. Heard learned counsel for the parties at length and perused the record. In the present case, the petitioner a lady Constable belonging to reserved category has filed this present petition claiming promotion to the post of Head Constable. The petitioner was appointed as Constable on 23/8/89. It is an admitted fact that in the year 2002 for the purposes of promotion to the post of Head Constable GOP 77/97 was in existence and as per the aforesaid GOP the Scheme of Examination included a preliminary examination and a final examination. It is also an admitted fact that the petitioner has obtained 87 marks in the preliminary examination and was entitled to participate in the main examination. It has also been admitted by the respondents that one Mr. S.S. Chaudhary, Subedar-M has committed a mistake in preparing Roster and the name of the petitioner was not sent for final examination which was to be held at DIG Level on account of the mistake committed by Mr. S.S.Chaudhary. It has also been admitted that a Departmental Enquiry took place in the matter and a fine of Rs.2,000/- was imposed by the competent disciplinary --- 6 --- authority vide order dt. 30/9/2006. The petitioner as she was not permitted to appear in the main examination represented before the higher authorities and only in the year 2006, a punishment order was passed inflicting a punishment upon Mr. S.S. Chaudhary, the officer who was responsible in the matter, meaning thereby, the petitioner was certainly not at fault and was denied her legitimate right of participation in the main examination which took place in the year 2002 itself. The GOP governing the field ie., GOP 77/97 was subsequently amended on 31/12/04 and instead of two examinations a procedure of conducting one consolidated examination was introduced. The respondents have thereafter issued a letter granting permission to the petitioner ie., on 23/3/06 to appear in the unified examination for the purposes of promotion to the next higher post of Head Constable. In the present case, the petitioner has not qualified both the examination ie., preliminary examination as well as main examination required for the purposes of promotion to the post of Head Constable as per GOP 77/97 and GOP 81/98, the question of directing the respondents to promote the petitioner directly to the post of Head Constable without qualifying the --- 7 --- qualifying examination does not arise. Similarly, the petitioner has also not qualifying the unified examination introduced vide amendment dt. 31/12/04 in GOP 77/97. The GOP governing the field as on date provides for qualifying the unified examination which the petitioner has not qualified and therefore at this juncture, directing promotion of the petitioner to the post of Head Constable without qualifying the unified examination also does not arise. In the present case, the petitioner was certainly not at fault in the year 2002. The Departmental Enquiry held against Mr. S. S. Chaudhary has established that it was a mistake committed by Mr. S. S. Chaudhary on account of which the petitioner was not permitted to appear in the main examination. Persons who were permitted to appear in the main examination in the year 2002 have been promoted to the next higher post and the petitioner is languishing on the post of Constable for no fault on her part. As it has been admitted by the State Government that the petitioner was not at fault in the matter at any point of time, this court is of the considered opinion, that a special examination has to be held for the petitioner ie., main examination as required under GOP 77/97 and GOP 81/98. --- 8 --- The respondent State shall held a special examination (main examination) for the petitioner within 3 months and based upon the performance of the petitioner the respondent shall pass a final order in the matter. In case the petitioner successfully qualifies the main special examination conducted by the department as directed by this court, the petitioner shall be entitled for promotion to the post of Head Constable from the same date other persons have been promoted on the basis of examination conducted in the year 2002. The petitioner shall also be entitled for notional fixation of seniority, salary and all other consequential benefits. However, she will not be entitled for backwages. The judgment relied upon by the learned counsel for the petitioner in the case of N. A. Patel and others (supra) is distinguishable on facts. In the aforesaid case the candidates have already passed the earlier examination prescribed under the recruitment Rules and they were granted exemption, whereas, in the present case, the petitioner has not at all qualified the earlier examination meaning thereby she has not qualified the preliminary examination and main examination. She has only qualified the preliminary examination and the petitioner cannot be promoted to the post --- 9 --- of Head Constable only because she has qualified the preliminary examination as in the year 2002 a candidate was required to qualify both the examinations. Resultantly the judgment relied upon by the learned counsel for the petitioner is of no help to the petitioner. With the aforesaid this petition stands partly allowed. No order as to costs. (S. C. SHARMA) J U D G E KR