SBCWP NO.7571/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.7571/2002. Mam Chand Yadav Versus State of Rajasthan & Ors. Date of order:- March 6, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.M. Mehrishi for the petitioner. Shri Zakir Hussain, Additional Government Counsel. ***** BY THE COURT:- This writ petition has been filed by the petitoner challenging the order of the Rajasthan Civil Services Appellate Tribunal to the extent, amount of special pay to the extent of Rs.20/- was not ordered to be paid to the petitioner in future and reversion of the petitioner from the post of Lans Head Constable to that of the Constable was not interfered with. Petitioner has additionally prayed that respondents be directed to give him benefits of the post of Head Constable on the post of Lans Head Constable as the said post had not SBCWP NO.7571/02. 2 been included in the Rajasthan Police Subordinate Service Rules, 1974. 2) Shri M.M. Mehrishi, learned counsel for the petitioner has argued that the Director General of Police vide his order dated 26/6/1984 awarded Gallantry promotion to as many as 14 Constables. Name of the petitioner was included at Sr.No.1. Promotion was granted to the petitioner in recognition of his excellent and brave services rendered by him while arresting Sikh Military personnel who deserted in the Army camp in Alwar in the month of June, 1984, after operation 'Blue Star' in Amritsar. The Director General of Police recommended his name for gallantry promotion from Constable to Head Constable as he had shown outstanding gallantry in the Anti Dacoity and special field of police work having exceptionally good and unblemished record of service with integrity. The aforesaid recommendations were made in compliance of Rule 25 of the Rajasthan Police Subordinate service Rules, 1974. However, subsequently when Rules of 1974 were repealed by the Rajasthan Police Subordinate service Rules, 1989, respondents took the view that Petitioner could not retain the promotion on the postg of Lans Head Constable and therefore was also not entitled to receive the special pay. Respondents directed recovery of amount of special pay for the SBCWP NO.7571/02. 3 period subsequent to enforcement of the Rules of 1989. The Tribunal although quashed the order of recovery but for future period, the special pay was denied to be given to the petitioner. The Tribunal has also not granted the relief in so far as impugned order of reversion of the petitioner from Lans Head Constable to Constable was concerned. Learned counsel submitted that respondents acted arbitrarily in giving discriminatory treatment to the petitioner as those, who were granted gallantry promotion from Constable to Head Constable were not reverted to the post of Constable. This gallantry promotion was granted to the petitioner under Rule 25 of the Rules of 1974 by the Director General of Police. Once the petitioner was promoted and occupied the higher post, his reversion to the lower post cannot be made except by recourse to due process of law. Action of the respondents be therefore declared arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India. Writ petition be allowed in terms of the prayers made therein. 3) Shri Zakir Hussain, learned Additional Government Counsel opposed the writ petiton and argued that post of Lans Head Constable was a status in between Constable and Head Constable but that post has since been discontinued by SBCWP NO.7571/02. 4 promulgation of new Rajasthan Police Subordinate Service Rules, 1989. Petitioner was therefore not entitled to be retained on the post of Lans Head Constable and the special pay payable on the said post was also rightly withdrawn. Respondents were therefore justified in discontinuing the payment of special pay. It was contended that the post of Lans Head Constable was created on 1/6/1983 for promotion from amongst the Constables upto 10% of the vacancies in a particular year. Constables upto 10% of the vacancies in a particular year could be nominated for promotion to the post of Lans Head Constable who have shown outstanding work in the Anti Dacoity, Anti Smuggling or in any Special field of Police work and having exceptionally good and unblemished record of service with integrity under Rule 25 of the Rules of 1974. Such order could be passed by the Director General of Police but now that the relevant rule has ceased to exist, petitioner cannot be granted any relief. 4) Having heard learned counsel for the parties and perused the material on record, I find that respondents do not deny the fact of gallantry promotion awarded to the petitioner and they have also not denied the fact that it was in lieu of recognition of the exemplary service as valour shown by the petitioner, on such a power vested in SBCWP NO.7571/02. 5 the Director General of Police under Rule 25 of the Rules of 1974 being exercised, petitioner was promoted. The post of Lans Head Constable was part of the Rules of 1974 and was a post of promotion higher in rank and status than the post of Constable which also entitle a promotee to special pay. When the respondents have granted such promotion to the petitioner, suddenly, with promulgation of Rules of 1989, he could not be left in lurch. They could not revert him again on the post of Constable. There is no denial to the fact that under the self-sale Rules of 1974, other similarly situated persons, who were also promoted on the post of Head Constable or on other posts, on the recommendations of the Director General of Police, were not reverted to the lower post. Why then petitioner alone has been singled out from being accorded a different treatment. He cannot therefore be discriminated in an arbitrary manner. Respondents while framing the Rules of 1989 could not remain totally oblivious of the fact that there exist a category of employees by the nomenclature of Lans Head Constable. If what is contended by the respondents is accepted, that would tantamount to authorising reversion of the petitioner and the likes of him without recourse to the procedure provided in law. It would be an arbitrary and colourable exercise of power being SBCWP NO.7571/02. 6 discriminatory and violative of Articles 14 and 16 of the Constitution of India. The assertion of the respondents that upon promulgation of Rules of 1989, petitioner cannot be retained in the post of Lans Head Constable, is appears to be a creation of the respondents themselves. 5) In the peculiar facts of the case, in a situation like this, the action of the respondents cannot be held legal and justified. 6) In the result, the writ petition is allowed. It is directed that petitioner shall be entitled to be treated as Head Constable from the date of promulgation of the Rules of 1989 when the post of Lans Head Constable was abolished. For the intervening period, however petitioner shall only be entitled for the notional benefits. Compliance of the judgment shall be made within a period of two months, from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. anil