CWP No.16991 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 11.3.2010 Krishan Chander ...Petitioner VERSUS State of Haryana & Others …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Sanjiv Gupta, Advocate for the petitioner Mr.RS Kundu, Addl.A.G., Haryana Permod Kohli, J. (Oral) With the consent of counsel for the parties, this petition is disposed of at motion stage. The petitioner was enrolled as Constable on 13.4.1973. He passed Lower School Course in the batch of 1978-79 and was brought in List-C on 1.4.1979 in District Sirsa. He was promoted as Head Constable on 23.8.1982 whereas he was confirmed as such w.e.f. 31.1.1985. He was transferred from District Sirsa to G.R.P. While serving in GRP, he was deputed to the Intermediate School Course w.e.f. 1989. He successfully completed the Course on 25.4.1990 and was promoted as ASI w.e.f. 25.11.1993. The petitioner made a representation to the respondents CWP No.16991 of 2008 2 regarding promotion of one Satnam Singh who was admittedly confirmed as Head Constable on 31.8.1986 i.e. later in time than the petitioner. The petitioner claimed seniority from the date Satnam Singh was promoted who was admittedly junior to the petitioner. This representation of the petitioner came to be considered by Deputy Director General of Police, Railways & Commando (H), Panchkula and vide its order dated 7.9.1998 the petitioner was granted retrospective benefit of promotion as ASI from 27.9.1988, from 6.2.95 as SI with date of confirmation as ASI on 31.1.95. He was accordingly ordered to be ranked senior to HC Satnam Singh No.167/GRP and HC Ajmer Singh No.189/GRP. Arrears of retrospective promotion were, however, declined. The petitioner continued to earn further promotion on the basis of the seniority position as assigned to him vide the aforesaid order and retired from service on 30.6.2008. A show-cause notice dated 25.4.2006 (Annexure P-4) came to be served upon the petitioner, after a lapse of more than seven years of his last promotion seeking explanation from him regarding his alleged wrong promotion as HC w.e.f. 15.4.1988 as also the subsequent promotions. The petitioner submitted reply dated 20.5.2006 to the aforesaid show-cause notice. The petitioner specifically pleaded that his seniority was rightly fixed as Head Constable with effect from the date of his confirmation i.e. 31.1.1985. The Director General of Police, Haryana however, passed the impugned order dated 29.7.2007 (Annexure P-6) whereby the order dated 7.9.1998 has been withdrawn and all benefits emanating from the said order have been taken away. Aggrieved of this order, the petitioner has filed this petition. It is contended by Mr.Sanjiv Gupta, learned counsel for the petitioner that the petitioner was entitled to seniority over and above Satnam Singh CWP No.16991 of 2008 3 with effect from the date of his confirmation. He referred to Rule 12.2 of the the Punjab Police Rules as applicable to Haryana State. Sub rule (3) of Rule 12.2 reads as under:- “12.2..... (3)All appointment of enrolled police officers are on probation according to the rules in this chapter applicable to each rank. Seniority in the case of upper subordinates, will be reckoned in the first instance from the date of first appointment, officers promoted from a lower rank being considered senior to persons appointed direct on the same date, and the seniority of officers appointed direct on the same date being reckoned according to age. Seniority shall, however, be finally settled by the dates of confirmation, the seniority inter-se of several officers confirmed on the same date being that allotted to them on first appointment. Provided that any officer whose promotion or confirmation is delayed by reason of his being on deputation outside his range or district shall, on being promoted or confirmed, regain the seniority which he originally held vis-a-vis any officers promoted or confirmed before him during his deputation. The seniority of lower subordinates shall be reckoned from the dates of appointment, subject to CWP No.16991 of 2008 4 the conditions of rule 12.24 and provided that a promoted officer shall rank senior to an officer appointed direct to the same rank on the same date. [Provided that in the case of officers recruited direct after 23rd December, 1958, as a result of the same examination or selection, their inter se seniority shall be reckoned. (a)by the order of merit fixed by the selection body, and (b)when there is no such order by merit indicate, by the age of the candidate i.e. the oldest being placed the senior-most and the youngest the junior- most.]” It is contended that the date of confirmation is the determinative factor for grant of seniority in the cadre of service. Admittedly, the petitioner was confirmed on 31.1.1985 whereas Satnam Singh was confirmed w.e.f. 31.8.1986 and thus his representation was rightly accepted which resulted in passing of the order dated 7.9.1998. Apart from this, the other contention raised by the petitioner is that there was no occasion for the Director General of Police, Haryana to have reviewed the order after lapse of seven years, particularly when there was no representation filed by any person against the order dated 7.9.1998. The respondents have filed detailed written statement. It is stated that since the petitioner passed the Intermediate School Course on 2.4.1990, he was entitled to be brought on List B only with effect from the said date and CWP No.16991 of 2008 5 thus he was not entitled to be granted the benefit of promotion w.e.f. 27.9.1988. According to the respondents, he could not have been promoted w.e.f. 25.4.1990 from the date he cleared the Intermediate School Course. It is admitted position that the petitioner was senior to Satnam Singh on the basis of confirmation as Head Constable, though the petitioner passed the Intermediate School Course w.e.f. 25.4.1990. It is also an admitted position that the representation of the petitioner was accepted by the competent authority. No dispute was raised by Satnam Singh against the position allotted to the petitioner. The Director General of Police, after a period of seven years and without there being any complaint/representation or any valid reason reviewed the order dated 7.9.1998. Though the competent authority has the power of review, but the exercise of such power, after lapse of more than seven years itself is arbitrary in nature and is not sustainable in law. No fault can be found with the grant of seniority to the petitioner from the date of confirmation as the rule clearly provides for it. In view of the above, this petition is allowed and the impugned order dated 29.7.2007 (Annexure P-6) is hereby quashed and the order dated 7.9.1998 (Annexure P-2) is restored. (PERMOD KOHLI) JUDGE 11.3.2010 MFK