IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP(T) No. 3733 of 2008 Judgment reserved on 20.10.2010 Date of decision: 29.10.2010 Jagdish Sharan Kanihal ….. Petitioner. Vs. The State of H.P. and ors. …. Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Kuldip Singh, Judge. For the Petitioner : In person. For the Respondents : Mr. R.K. Bawa, A.G. with Mr. J.K. Verma, Dy. A.G. for respondents No. 1 to 4. Justice Kuldip Singh, Judge The petitioner has prayed following reliefs in the petition:- 1. The seniority list of Inspectors as on 1.12.93 and notification No. Home-D(A)(3)-2/81 dated 11.11.94 may be set aside and quashed. 2. The applicant may be considered promoted to the rank of A.S.I., S.I., Inspector and D.S.P. in C.I.D. Department prior to respondent Nos. 5 to 9 and pay the salary of the ranks. 3. Other consequential pecuniary benefits accruing thereon be also allowed and direction may be issued to release the amount of cash award. 2 2. The case of the petitioner is that he was enrolled as Constable in Police in State of Punjab on 18.1.1956, he was promoted as Head Constable vide S.P. Office Dharamsala O.B. No. 19/63 on 1.1.1963. On reorganization of State of Punjab in the year 1966, the petitioner was allocated to Himachal Pradesh. The promotion entry relating to O.B. No. 19/63 in the character roll was removed in a malafide manner so as to show the petitioner junior to those, who were actually juniors to the petitioner. The petitioner is an M.A. and has completed various courses and trainings, as stated by him in the petition. 3. The petitioner was due for promotion course for the post of Assistant Sub Inspector (ASI) in the year 1976. However, he was not sent to the course in the year 1976 by the authorities in order to oblige their own men, who were juniors to petitioner. 4. The Punjab Police Rule 13.9 (revised) provides that selection for admission to the promotion course for Head Constable at the Police Training will be made by the Deputy Inspector General of Police concerned in the following order of their inter se seniority from amongst (a)Confirmed Head Constable; (b) Head Constable on probation and (c)Officiating Head Constables, who have put in at least five years of continuous service in that rank. 5. The petitioner was confirmed as Head Constable and was in merit among confirmed Head Constables and was also eligible for sending for admission to the promotion course for Head Constable at Police Training College, Phillour. The authorities ignored the claim of the petitioner without any reason; instead officiating Head Constables, 3 respondents Siridhar, Onkar Singh, Babu Ram and Pritam Singh etc., were sent for training. The authorities, thus, violated Rule 13.9 and discriminated the petitioner. The petitioner filed CWP No. 466/1976 in this court, which was decided in his favour on 20.12.1977. It was observed that since the courses in question are already over, it was strongly recommended that the case of the petitioner in future shall be dealt with by the DPC with leniency and sympathy. The petitioner during the pendency of the petition was sent for next intermediate course commencing from 1.4.1977. 6. It has been alleged that Siridhar, Onkar Singh, Babu Ram, Pritam Singh etc., who had passed the intermediate course in March 1977, were promoted ASIs on 19.3.1977 immediately when they had come after passing the course. The petitioner after passing the intermediate course was promoted as ASI on 4.9.1978. The petitioner was discriminated in the matter of promotion as ASI, though there were a number of vacancies of ASIs. 7. The petitioner on receiving the seniority list of ASIs in August 1983 came to know that his juniors were shown senior to him. He represented to Inspector General of Police that his seniority may be placed above his juniors and he may be sent for upper class course before them or along with them so that juniors may not rank senior to petitioner in future. However, instead of giving seniority to the petitioner, he was ignored for sending to upper class course. The petitioner filed CWP No. 551/1984 in this Court and during the pendency of the writ petition, the petitioner was sent for upper class course in December 1984 and the petitioner passed the upper class course in March 1985. 4 8. The petitioner was not given proper seniority and the petitioner filed CWP No. 43 of 1986 in this court, which was transferred to erstwhile Tribunal and registered there as T.A. No. 92 of 1986. The Tribunal vide order dated 24.3.1989 directed that the petitioner may be considered for inclusion in the ‘F’ list/promotion to the rank of Inspector in accordance with Rules, subject to eligibility, if he falls within zone of consideration. In case, the petitioner is recommended by DPC for inclusion in ‘F’ list/promotion to the rank of Inspector, he may be promoted in accordance with his merit subject to availability of vacancies. 9. One Vidya Sagar and respondent No.7, Hardesh Bisht, Inspectors, represented their case for seniority, which was considered favourably on 24.7.1993, but when the petitioner applied for the same on 21.2.1994 his case was not decided. It is the case of the petitioner that as per Police Rule 12.3 seniority of lower subordinate shall be reckoned from the date of appointment. The petitioner was appointed as Constable in Police Department on 18.1.1956, whereas Mohinder Singh, Siridhar, Nag Chand and Hari Ram were appointed as such on 25.11.1957, 14.7.1961, 22.7.1964 and 12.1.1961 respectively. Hadesh Bisht was appointed as ASI on 13.5.1977. According to petitioner, all private respondents were juniors to him. 10. It was the duty of the authorities to keep the petitioner above his juniors in the seniority list. The petitioner made several representations against the injustice done to him, but the authorities promoted respondents No. 5 to 9 as Dy.S.P.s vide notification dated 13.5.1994. It has been alleged by the petitioner that respondents No. 5 to 9 were juniors to him. It has 5 been alleged that junior Inspectors were confirmed and promoted as Dy. S.P.s on 13.5.1994, whereas some Inspectors including petitioner were confirmed later on and they were made juniors and without any reason they were discriminated. The petitioner was confirmed as Inspector on 10.10.1994 and immediately thereafter the Rules to the promotion to the rank of Dy.S.P. were changed. The petitioner was eligible for promotion as Dy.S.P., even after amendment of the Rules, but he was not promoted as such. 11. One Lekh Raj was promoted as Dy.S.P. on regular basis on 14.6.1995, even though his qualification was only upto 9th class. The petitioner was promoted as Dy.S.P. on 26.6.1995 for six months. Notification, dated 11.11.1994, Annexure PD is arbitrary and not sustainable. Khub Ram, Rajesh Kumar and Saju Ram etc., Inspectors were confirmed on 11.7.1995 and they were promoted as Dy.S.P.s on 12.9.1995. Khub Ram, Rajesh Kumar and Saju Ram were juniors to petitioner. The petitioner was promoted 8 months after the confirmation. Though several vacancies were available at that time, but the promotion of the petitioner was deliberately delayed. 12. The petitioner has raised grievances about payment of various rewards and incentives, to which he was entitled, which were not paid to him. In these circumstances, the petition was filed for the reliefs noticed above. 13. The petition was contested by respondents No. 1 to 4 by filling reply. It has been admitted that the petitioner was recruited as Constable in the Police Department on 18.1.1956 in the State of Punjab and was 6 subsequently allocated to the State of Himachal Pradesh on re-organization of State of Punjab. The petitioner was promoted as Head Constable on 9.10.1963. The name of the petitioner was considered for selection to undergo intermediate school course w.e.f. 1.10.1976 in accordance with Punjab Police Rule 13.9. The name of the petitioner was low in the merit list and, therefore, he could not be deputed to undergo intermediate school course w.e.f. 1.10.1976. The respondents No. 1 to 4 have relied Punjab police Rule 13.9 (1) for selection, admission and promotion to the post of Head Constable. 14. The petitioner qualified intermediate school course in September 1977 and the result was received in November 1977. The petitioner along with 12 other Head Constables was promoted to the rank of A.S.I. w.e.f. 4.9.1978. Siridhar, Onkar Singh, Babu Ram and Pritam Singh etc., had passed intermediate school course in March, 1977 and as such, they were promoted as ASIs against the available vacancies at the relevant time. The petitioner was promoted to the rank of A.S.I. along with other Head Constables, who had passed intermediate school course along with petitioner. 15. The seniority list of ASIs of Northern Range was circulated by D.I.G. Northern Range on 27.4.1983. The representation was duly considered by DIG, Northern Range and rejected on the ground that selection of the officials to undergo intermediate school course in 1976 was made as per Punjab Police Rule 13.9. The Head Constables deputed for training w.e.f. 1.10.1976 had obtained higher merit than the petitioner. 7 Accordingly, he was rightly shown junior to personnel, who had passed the intermediate school course prior to petitioner. 16. The petitioner was rightly promoted as Inspector on his turn in accordance with his seniority. No junior person to the petitioner was promoted earlier to him and, thus, he has no cause for early promotion. The seniority position of Vidya Sagar and Hardesh Bisht was determined on the basis of date of confirmation. The seniority of petitioner is correct and requires no change. The seniority of upper class subordinates is reckoned from the date of confirmation in particular rank and not from the date of appointment. The respondents for this purpose have relied Punjab Police Rule 12.2 (3). Mohinder Singh, Siridhar, Nag Chand and Hari Ram were confirmed on 1.4.1993, 1.4.1993, 14.7.1993 and 14.7.1993 respectively, whereas the petitioner was confirmed after the aforesaid officials. Hence, they are seniors to petitioner. 17. The confirmation in the rank of Inspector is made on seniority basis keeping in view the availability of permanent post. The petitioner was confirmed on 10.10.1994. The Rules were amended in view of changed circumstances. It has been denied that the petitioner was discriminated for amending the Rules for promotion to the rank of Dy.S.P. as no junior person to the petitioner was promoted prior to petitioner. The Himachal Pradesh Police Service Rules, 1973 were amended on 11.11.1994, whereas Lekh Raj was promoted on 13.5.1994. The notification, dated 11.11.1994 is just and legal. The promotion to the rank of Dy.S.P. is made on the basis of availability of vacancies in consultation with the Himachal Pradesh Public Service Commission. It has been denied that promotion of the 8 petitioner was deliberately delayed. There was no bias or prejudice against the petitioner. The seniority list is correct and in accordance with the Rules. 18. The rewards in question were not paid to petitioner due to non-availability of funds and it was decided to cancel cash rewards. The petitioner was not discriminated as rewards of other personnel were also cancelled. The respondents No. 1 to 4 have ultimately prayed for dismissal of the petition. 19. We have heard petitioner in person and learned Advocate General. The petitioner has also submitted written arguments, in which he has reiterated his case projected in the petition. The petitioner has assailed provisional seniority list of Inspectors as on 1.12.1993, Ext. PG. He has prayed for quashing of said seniority list along with notification, dated 11.11.1994, Annexure PD. The seniority list, dated 1.12.1993, Annexure PG cannot be quashed for more than one reason. The perusal of seniority list, Annexure PG indicates that the petitioner is at Sl. No. 95 in the seniority list. There are several persons above the petitioner in the seniority list, out of them he has impleaded only Mohinder Singh, Siridhar, Nag Chand and Hari Ram. But, there are other Inspectors also in the provisional seniority list, Annexure PG, who are seniors to petitioner, but they have not been impleaded in the petition. The petitioner has not pointed out whether seniority list dated 1.12.1993 was finalized. In these circumstances, provisional seniority list of Inspectors as on 1.2.1993, Annexure PG cannot be quashed. 20. The Governor under Article 309 of the Constitution of India has further amended Himachal Pradesh Police Service Rules, 1973 9 vide notification, dated 11.11.1994, Annexure PD. The authority of Governor to amend the Himachal Pradesh Police Service Rules, 1973 has not been questioned or assailed by the petitioner nor any other legally acceptable ground has been raised in the petition for amending the said Rules. Therefore, prayer of the petitioner for quashing notification, dated 11.11.1994, Annexure PD cannot be favourably considered. 21. The petitioner has prayed that he may be considered for promotion to the rank of ASI, SI, Inspector and Dy.S.P. prior to respondents No. 5 to 9 and respondents may be directed to pay consequential salary to him. It is the consistent stand of respondents No.1 to 4 that the petitioner was promoted from time to time in accordance with Rules. At no point of time his any junior was promoted. The persons, who passed the relevant courses earlier to petitioner, were entitled to promotion earlier to petitioner and they were promoted as such. The seniority of the upper subordinates is to be reckoned from the date of confirmation under Punjab Police Rules 12.2 (3). The petitioner has not pointed out his seniority and that of respondents No. 5 to 9 after confirmation, but in provisional seniority list Annexure PG of Inspectors petitioner has been shown officiating, whereas respondents No. 5 and 6 have been shown confirmed on 1.4.1993, respondents No. 7 to 9 have been shown confirmed on 14.7.1993. The respondents No. 1 to 4 have specifically pleaded that there was no bias and prejudice against the petitioner. The petitioner has levelled general allegations of favouritism, but without naming the Officer, who allegedly gave favours to some persons as alleged by petitioner. Therefore, bald allegations of favouritism levelled by petitioner cannot be accepted. The petitioner has not assailed Punjab Police Rules 13.9 and 12.2 (3) as applicable to Himachal Pradesh. 10 22. The factum of filing various petitions by the petitioner has not been denied by respondents No. 1 to 4, but their stand is that the petitioner was promoted on different ranks as per his entitlement in accordance with Rules. The petitioner has not pointed out specifically as to which earlier decision of the Court has not been complied by respondents No. 1 to 4 to the prejudice of petitioner. The petitioner has opted not to file any rejoinder without denying or explaining the stand taken by respondents Nos. 1 to 4 in the reply, in which they have taken the stand that the petitioner was promoted on his turn as Head Constable, ASI etc. upto Dy. S.P. The case of the petitioner was considered by the authorities for promotion on different ranks at due time. The petitioner has failed to make out that he is entitled to promotions, as claimed by him prior to respondents No. 5 to 9. 23. The respondents have submitted in the reply that various rewards and incentives announced in favour of petitioner were not paid to him due to financial constraints. The rewards announced in favour of other personnel were also cancelled for want of funds. The rewards and incentives are announced in recognition of service of a policeman. It is unilateral act of the employer. The petitioner has not pointed out that after announcement of rewards and incentives, he has vested right to claim such rewards under some Rule. Thus, it is clear that the rewards and incentives announced in favour of petitioner at particular time could not be paid to him due to financial constraints. The rewards of other policemen were also cancelled due to financial constraints. Therefore, it cannot be said that the petitioner was discriminated for not paying rewards and incentives to him, which were announced earlier. In these circumstances, the petitioner is not 11 entitled to a direction to respondents No. 1 to 4 to pay rewards and incentives to petitioner announced earlier. 24. In view of above discussion, there is no merit in the petition, which is accordingly dismissed. The pending application(s), if any are also disposed of. (Justice Kurian Joseph), Chief Justice October 29, 2010 (Justice Kuldip Singh), (pankaj) Judge.