© ^c \-^^ |G. ^ IN THE STATE ADMIMISTBATIVE TRIBTO3AL : JABALPUR 0<A.No«. ^.s 795 APPLICANTS! Baiolyanath Tewari, s/o Shrio / Shiv jPrasad Tiwari aged 40 yrs ^presentiy posted as Constable (Trademan-BCook) in Police Train- ing School, Rajnandgaon (MP)o Versus NON-APPLICANTS; 1<, State of M<,Po through Secretary, Home pepartrpent Vallabh Bhavan, Bhbpal (MP). 2» Director General of Police, Bhop-al (MP). 3< Superintendent of Pol&ce» Police TralnJLng School, Baj nandgaon /(M^ ]?) o 4o Dtrector, JoN.Police Academy, Sagar .(N.P)^ ^^^ICAT.IGN U1SJDE& SECTION 19 OF THE AttIINISTRATTVE TglBUmiSi ACTS^ 19J^~ HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. PETITIONER RESPONDENTS Writ PetitionfSl No. 1066/2005 Baidyanath Tiwari Versus State ofM.P. and others 2J Appearance: Shri Sunil Sahu, counsel for the petitioner. Shri Chandresh Shrivastava, Panel Lawyer for the State/ Respondents No.l and 3. ORAL-ORDER (Passed on 13& April, 2010) 1. By this petition, the petitioner has prayed that he xnay be allowed to appear in the examination for promotion/appointment to the higher posts similar to Constable (General Duty). The petitioner has further prayed for direction to consider his case for promotion and seniority over and above Constables (G.D.), who are junior to him but promoted to higher post of Head Constable. The petitioner has also prayed for issuance of direction to respondents to create a channel for promotion for the petitioner and similarly placed Constable (Trademan/Follower cook). 2. The genesis of petitioner's claim rests on the submission that the petitioner was initially appointed as Constable (T.M.) in Cooking Branch on 19/02/1982. The Constables (G.D.) are being considered and promoted to the post of Head Constable but the petitioner and other Constables (T.M.), who are working in Cooking Branch are»neither being -2- ^ allowed to shift to General Duty Branch of Constable nor are they being considered for promotion to the posts of Head Constable. Learned counsel for the petitioner also submits that the requisite qualification for appointment to the posts of Constable (T.M.) and Constable (G.D.) are one and the same. They are governed by the same recruitment rules and enjoying the same pay scales. According to him, though the two posts are similar in all respects, based on different duty assigned, they are known as Constable (G.D.) and Constable (T.M). Number of Constables (G.D.) who were junior to the petitioner, namely Yogesh Narayan Sharma, Shiv Nath Singh Bhadoria 85 Shiv Mangal Singh, who were appointed in the year 1984, were promoted to the post of Head Constable and then as Asst. Sub-Inspector, whereas the petitioner and those Constables, who are working as Constable (T.M.) in the Cooking Branch are stagnated on the post without getting any consideration for promotion to the post of Head Constable..They are also not being allowed to be shifted on the post of Constable (G.D.). In this manner, the petitioner has been stagnated on the post ofConstable (T.M.) since his initial date of appointment i.e. 1982. In order to get an avenue for promotion, the petitioner demanded that he be allowed to appear in the examination for promotion to the post of Head Constable vide his application dated 23/09/1989 (Annexure C), but his prayer was not accepted. In response to petitioner's representation, respondents, vide their memo dated 22/11/91 (Annexure D) informed the petitioner that it is not possible to accede to petitioner's request for promotion to the post of Constable (G.D.) as under the rules there is no provision for grant of promotion from the post of Constable (T.M.) to Constable (G.D.). However, one Suresh Rao, who was working as Constable (T.M.), was absorbed on the post of Constable (G.D) vide order dated 13/02/89 (Annexure E). The petitioner submitted representation -3- / L <2Z) on 31/12/91 for being sent for training which also failed to evoke any response. In the entire service career, the petitioner has not received a single promotion. It is argued that respondents are duty bound to create promotional avenues for the post of Constable (T.M.). 3. Per contra, the submission of the learned counsel for the respondents is that the petitioner could neither claim parity with the post of Constable (G.D.) nor claim promotion to the post of Head Constable nor claim promotion from the post of Constable (T.M.) to Constable (G.D.) or claim parity of treatment with Constable (G.D.). The petitioner has applied for the post of Constable, Trade Man (Cook) and was selected and appointed. As such, he was never selected for the post of Constable (G.D.) nor was ever absorbed. It is also submitted that the qualifications for appointment to the post of Constable is Higher Secondary Examination with height 5.6" and Chest 32??, whereas the qualification for appointment to the post of Constable, Trade Man (Cook) is only a little knowledge of reading and writing and well versed in his trade. The pay scales for the two posts are also different. The pay scale of the post of Constable (G.D.) was Rs.515- 840/-, whereas that of Constable (T.M.) was Rs.445-635/- at the time of selection. The Constable (T.M.) is not required to undergo basic training whereas constable (G.D.) has to undergo 9 monfhs' basic training after recruitment and he is required to pass basic examination as well. Though, there is no channel for promotion from the post of Constable (T.M.), now it has been proposed to open-up promotional avenues for Constable (T.M.) to the extent of 20% of the posts of Head Constable. According to promotion rules, framed by the Government placed on record as Annexure R-4, only those Constables who have completed service of 2 years and passed Higher Secondary Examination/those who are non- -4- 1—'Y metric but have completed 4 years of service on the post of Constable with the extraordinary records, are eligible to appear in the pre-promotion examination for the post of Head Constable. Only Constable (G.D.) are eligible to appear in the said pre-promotion examination and Constable (T.M.) are not eligible. In view of Government Circular dated 25/06/93 (Annexure R-6), one who is willing to join on the post of Constable (G.D.) is required to face open competitive test held for appointment to the post ofConstable (G.D.). 4. I have considered the rival submissions made by learned counsel for the parties and perused the record. 5. From the record of the case particularly the extract of the Service Book of the petitioner flled by the respondents (Annexure R-l), it is clear that the petitioner was initially appointed as Follower/Cook on 19/02/82. This is consistent with respondents' submission that petitioner was initially appointed as Follower/Cook. The petitioner also does not dispute this factual position as he himself submits that he was appointed in Cooking Branch as Constable (T.M.). From the aforesaid pleadings and documents, it is found that initial appointment of the petitioner was as a Cook. It has been stated in the return that later on Follower (Cook) were known as Constable (T.M.). There is no averment in the petition that at the time of appointment as Constable, the petitioner fulfilled the minimum eligibility requirement for appointment to the post of Constable as prescribed under Police Regulation No.53 of the Police Regulations. Even by way of rejoinder, the petitioner has not<%-aversed the pleadings made in the return that at the time of his appointment, qualifications for the posts of Constable (T.M.) and that of Constable (G.D.) were one and the same. On the other hand, there is no reason for this Court to ./^^%i rf i^,^ " % f's- II il It %^~.-.. • 1 "%tiil. j '^ .^. ;^, ^—.^- ''-^SK^" -5- @ disbelieve what has been pleaded by the respondents that the post of Constable (T.M.) and Constable (G.D.) had different eligibility criteria and pay-scale. The entire claim of the petitioner appears to have been based on the submission that since he was also a Constable, no distinction could be made between Constable (T.M.) and Constable (G.D.), I am not inclined to accept this submission for the reason that the two posts have been demonstrated to be different in eligibility, pay-scales and functions. The petitioner has admitted that his duly was to act as a Cook. The other submission of learned counsel for the petitioner that one Suresh Rao, Constable (T.M.) was absorbed as Constable (G.D.), therefore, he is also entitled to be absorb, is difficult to accept, as this would amount to enforce negative equality. In the absence of petitioner's demonstrating that he was appointed as Constable (G.D.) and there being nothing on record to establish that posts ofConstable (T.M.) and Constable (G.D.) are interchangeable, coupled with clear assertion of the respondents that the 2 posts are different in all respects, the petitioner cannot be granted any such relief on the ground of parity of treatment. It is rather shocking that the respondent authorities, acting at their sweet will, absorbed one Suresh Rao as Constable (G.D.) No explanation whatsoever has come in the return of respondents as to under what circumstances Suresh Rao was allowed to be absorbed as Constable (G.D.) 6. Learned counsel for the petitioner also contended that some of the Constable (Ardali) approached the Tribunal claiming that they should be treated as Constable. Their petitions were heard and by a common order dated 19/07/94, Tribunal directed respondents to consider their cases after due assessment and consideration as per rules and law for the post of Constable and if they are found fit to be duly qualified and eligible for -6- the post, to consider their claim and pass necessary orders. The said case cannot be relied upon by the petitioner as it related to ArdaH, whereas petitioner was appointed as Constable, Trademan (Cook). Further, the Tribunal only directed consideration of the cases as per rules. 7. The respondents have, however, stated in the return that the decision has now been taken to consider Constable (T.M.) for promotion to the post of Head Constable as against 20 % of the post of Head Constable. In the supplenientary return filed by the respondents on 12.5.09, respondents have placed on record the scheme of promotion (Annexure R-7). It has also been averred that the 20% of the posts of Head Constable will be filled-up from the post of Constable (T.M.) under the aforesaid promotion scheme (Annexure R-7). 8. True it is that the petitioner having been appointed as Constable (T.M.) could not get any promotion for want of promotional avenues on the higher post of Head Constable, the petitioner has been benefited by the scale promotion in the years 2000 and 2006. Though this Court is of the opinion that the petitioners and other similarly situated Constable (T.M.) were stagnated on one post without providing any promotional avenue, in view of the new promotion scheme (Annexure R-7), there is now no necessity for this Court to issue further direction in this matter. It is expected that the respondent / State as a model employer will consider the case of the petitioner according to their new promotion scheme of granting promotion against 20% of the post of Head Constable. Taking into consideration that except getting scale promotion, petitioner has been continued on the post of Constable (T.M.) ever since his initial appointment in the year 1982, respondents are directed to consider the -7- Deepti "\1 case of the petitioner for promotion as Head Constable, strictly in accordance with the scheme as expeditiously as possible. 9. The petition accordingly finally disposed of subject to aforesaid observations. No order as to costs. Sd/- Manindra Mohan Shrivastava Jude