SBCWP2018/1997 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.2018/1997 {Bhanwar Lal Sharma Vs. State of Rajasthan and Others} Date of Order ::: 27.01.2010 Present Hon'ble Mr. Justice Mohammad Rafiq Ms. Shabnam for Shri Tej Prakash Sharma, Counsel for petitioner Shri B.S. Rajawat, Deputy Government Counsel for respondents #### By the Court:- This writ petition was filed by petitioner, who has been serving as Constable in the respondent Department since 1980, with prayer that respondents be directed to provide him benefit of pay scale of post of Electronic Data Processor from the date of his initial appointment with all consequential benefits; in alternative, prayer is made to provide him benefit of pay scale of Electronic Data Processor, which is applicable in National Crime Record Bureau as well as in other States, from the date of his initial appointment. Further prayer has been made that the respondents be directed to provide him benefit of promotion, which is being provided in other SBCWP2018/1997 // 2 // wings of Police, like - Finger Print Bureau and CID-CB, with retrospective effect as the petitioner was not called for qualifying examination. Contention of Ms. Shabnam, holding brief of Shri Tej Prakash Sharma, learned counsel for petitioner, is that he was initially appointed as Constable with the Superintendent-I, CID-CB, Rajasthan, Jaipur, vide order dated 05.02.1980, in the pay scale of 250-360. He was posted in computer cell in the Office of Director, Rajasthan State Crime Record Bureau, Jaipur. Ever since his posting, he was being required to work as Data Entry Operator in the said Office, yet he is being paid salary of post of Constable. Even otherwise, he was entitled to promotion to the post of Head Constable as per Schedule appended to the Rajasthan Police Subordinate Service Rules, 1989, however, his that right was curtailed. The petitioner requested the respondents time and again while working in the Rajasthan State Crime Record Bureau that he has limited chance of promotion and, therefore, either post of Head Constable should be sanctioned in that Bureau or he should be allowed benefit of pay scale of Electronic Data Processor, i.e. 1150-1500 for Group A and that of 1350-2200 for Group B post of EDP. In this SBCWP2018/1997 // 3 // connection, reference was made to the letter dated 04.05.1991 of the Deputy Secretary to the Government of India issued to Director General, National Crime Record Bureau, New Delhi. The petitioner submitted that he should be paid the pay scale of EDP on same pattern on which it was granted in National Crime Record Bureau. It is contended that the Director, State Crime Record Bureau, Jaipur, recommended to the Government that post of Constable be upgraded to that of Head Constable; reference was made to letter dated 04.02.1991. The respondent No.4 issued a letter on 21.09.1987 mentioning therein that 15 Constables, who have been working continuously from last 10 years and completed 10 years of service as Data Entry Operators in Computer Cell, should be provided facility of training for promotion to next higher post. The Director General of Police issued an order on 01.10.1988 agreeing to that proposal and it was directed that as and when qualifying examinations are conducted, they shall also be called in as per their eligibility on respective posts. Despite issuance of letter by the Director General of Police on 01.10.1988, the Constables working in the State Crime Record SBCWP2018/1997 // 4 // Bureau were not called in the examination held in the years 1989, 1990, 1992, 1994 and 1995. The petitioner has given reference to number of awards/certificates, which he received during his service. He also referred to the order dated 02.09.1996 issued by the Director General of Police addressing to Superintendent, State Crime Record Bureau, informing that posts of Data Entry Operators are lying vacant for which sanction has already been issued. It is contended that since the petitioner was discharging the duties on that post, he should be regularised and paid the pay scale of that post. Moreover, the petitioner is also being deprived of consideration for promotion to the post of Head Constable and subsequently to the post of Assistant Sub Inspector. Despite categorical order issued in that regard by the Director General of Police on 01.10.1988, nothing has been done. The petitioner also stated that the Deputy Secretary, Home Department, State of Rajasthan, by his letter dated 14.06.1991, invited proposal from the Director, State Crime Record Bureau, Jaipur, for giving post of EDP to the Constables working as Data Entry Operator in Computer Cell and also issued SBCWP2018/1997 // 5 // letter dated 06.02.1991 in respect of up- gradation of 12 posts of working Constables. Shri B.S. Rajawat, learned Deputy Government Counsel, opposed the writ petition and submitted that there is no question of petitioner being either made permanent on the post of Data Entry Operator or being absorbed on that post, because his substantive appointment was made on the post of Constable; he also cannot be granted pay scale of Data Entry Operator on same pattern on which the National Crime Report Bureau of the Government of India has granted to its employees. The learned counsel for the respondents submitted that in so far as proposal moved by the Deputy Secretary, Government of Rajasthan, vide his letter dated 14.06.1991, inviting proposal from the Director, State Crime Record Bureau, is concerned, the matter was still pending for consideration with the State Government at the time of filing reply on 14.08.1998. Regarding assertion made by the petitioner in Para 19 of the writ petition that despite specific instructions issued by the Director General of Police (Headquarters) vide order dated 01.10.1988, the Constable of the State Crime Record Bureau including the SBCWP2018/1997 // 6 // petitioner were not allowed to appear in the departmental examination held for promotion in the years 1989, 1990, 1992, 1994 and 1995, Shri B.S. Rajawat, learned Deputy Government Counsel, referring to Para Nos.18 and 19 of reply to writ petition, submitted that the petitioner, if wanted, could appear in the departmental examination to be held for promotion. The petitioner did not produce any authentic document on the basis of which it can be proved that he appeared in departmental examination held for promotion. The learned counsel for the respondents further submitted that petitioner's application for granting him pay scale of the post of Data Entry Operator could be considered only after receiving approval from the Government. The matter should be dismissed because the petitioner even otherwise has been granted selection scales on completion of 9, 18 and 27 years of service, respectively. In the last selection scale granted on completion of 27 years of service, he has been fixed in the pay scale of 5500-9000. Having considered the arguments raised by the petitioner and heard learned Deputy Government Counsel appearing on behalf of the SBCWP2018/1997 // 7 // respondents, I find that reply submitted by the respondents on both counts is evasive and not certain. First contention raised by the petitioner that he has been continuously working as Data Entry Operator and that the proposals have also been sent for upgrading post of Constable to that of Data Entry Operator or paying him pay scale of that post, the respondents have submitted that the said proposal was pending. Regarding the departmental examination conducted for promotion by the respondents in the years 1989, 1990, 1992, 1994 and 1995, contention of the respondents is that the petitioner did not appear whereas the petitioner repeatedly asserted in the writ petition that despite specific order issued by the Director General of Police on 01.10.1988, he was not allowed to appear in said examination so conducted for promotion; he was never called for appearing in said examination. Plea of the respondent that petitioner should be required to prove this fact by producing any authentic document that he was not included in the departmental examination conducted for promotion, cannot be accepted because the petitioner has not SBCWP2018/1997 // 8 // asserted this fact qua himself but also for other constables working in the Bureau. It is surprising that if the petitioner did not appear why other Constables working with the Bureau also would not appear and, if that was so, the respondents could assert otherwise that while the petitioner on his own did not appear whereas other Constables appeared therein. It cannot be believed that if given a chance, petitioner and other Constables would forgo their right of consideration for promotion and would not entitle themselves to appear in the examination. The assertion made by petitioner that he was not called for appearing in the departmental examination held for promotion, has, therefore, to be believed. However, in so far as the up-gradation of post of Constable to that of Data Entry Operator or the matter of payment of salary in pay scale of Data Entry Operator is concerned, that plea of the petitioner cannot be accepted because it lies within the domain of employer and that it is not for the petitioner to decide at his own as to which post should be designated in what name and what pay scale should be given to which post. The petitioner was appointed SBCWP2018/1997 // 9 // substantively as Constable; though, he has been working as Data Entry Operator but, in absence of duly sanctioned post, he could not be paid pay scale of that post merely because there existed provision like that in the National Crime Record Bureau. However, regarding right of petitioner of consideration for promotion to the post of Head Constable and subsequent higher post, that right cannot be curtailed merely because respondents have granted him selection scales on completion of 9, 18 and 27 years of service, respectively, which, in any case, was meant to compensate for inability of employer in not being able to provide him promotion within a span of every 9 years of service. In the result, this writ petition is partly allowed. The respondents are directed to conduct a special departmental examination for promotion, for the petitioner for the year 1989 and, if the petitioner qualifies that examination, consider his case for promotion to the post of Head Constable, with effect from the date last candidate in said selection was so promoted in the CID-Crime Branch Range, and thereafter further consider his case as to when such last candidate was promoted on the post SBCWP2018/1997 // 10 // higher than thereafter and grant him all consequential benefits. Compliance of this judgment shall be made within a period of three months from the date its copy is produced before the respondents. (Mohammad Rafiq) J. //Jaiman//