1. Pure and heartburning grievance made by the petitioner in this petition is to the effect that the petitioner is superseded in the matter of promotion by his junior one Shri Kavji Nathu Chaudhary to the post of Head Constable Gr. II. The petitioner has made prayer seeking direction to the respondents to promote him to the post of Head Constable Gr. II and further to direct the respondents to give deemed date promotion when his junior Shri Chaudhary was promoted and to pay him all consequential benefits with arrears of salary. This prayer is made in the background of following facts.
2. The petitioner joined the Police Department in SRP Group 11 at Vav, District Surat on 13.4.1982. He was, thereafter, appointed as Police Constable in Band Section on 13.5.1987. Band Section has separate seniority and promotion to the next higher post is made according to the seniority in the Band Section. On 28.9.1992, seniority list of Constables in Band Section was published showing the position as on 1.1.1992. As per the said seniority, the petitioner was figured at serial No.7 whereas Shri Kavji Chaudhary, who superseded the petitioner, was shown at serial No.11. The post of Head Constable Gr. II had fallen vacant, because of promotion of Shri P.S. Caurav to the post of Police Sub Inspector, because of promotion of Head Constable Shri B.D. Pawar Gr. II to the post of Head Constable Gr. I. The person who is at serial No.3 Shri G.L. Chaudhary was already promoted to Gr.II Constable and the persons at serial Nos.4 to 6 were under suspension. Therefore, it was the turn of the petitioner in seniority to be promoted to the post of Head Constable Gr. II. However, ignoring the seniority of the petitioner, Shri Kavjibhai Chaudhary was promoted on the basis of the seniority. The petitioner felt aggrieved by such action and made representation to the Additional Director General (Arms Unit) dated 11.11.1992 and thereafter, also made representation dated 4.9.1993 but though promised by the higher officer to do justice to the petitioner, nothing was done and therefore, the petitioner had to file Special Civil Application No.13174 of 1993 before this Court and this Court directed the respondents to undertake the exercise of fixing roster position as per the reply filed in that petition. It is the say of the petitioner that as per Rule 70(8) of the Gujarat Police Manual, criteria for promotion to the post of Head Constable, is seniority-cum-merit and unless a person is found positively unfit as per the seniority, such person is entitled to promotion. The petitioner was, therefore, entitled to accordingly, promotion as there was no positive demerit against the petitioner. It is further the say of the petitioner that seniority of his junior was wrongly considered for promotion and there was no even question of giving benefit of roster because one Shri G.L. Chaudhary, who belongs to Scheduled Tribe community, was already given benefit of roster in the matter of promotion. Thus, there cannot be two promotions from one community even as per the roster system.
3. The petition was admitted after hearing the learned Assistant Government Pleader for the State and no reply was filed. From the record, it is found that this Court passed order dated 11.3.1996, as under:-
"Rule.
By way of interim relief, it is directed that the respondent authorities shall take a decision in the case of the petitioner as regards his promotion to the post of Head Constable Grade-II in context of their earlier communication dated 8th October, 1992, a copy of which is at Annexure "F" to the petition, in which the petitioner was informed that if any irregularity was noticed, then it will be set right and process of giving promotion to the petitioner will be undertaken. It is surprising that though earlier by order dated 25th March, 1994 in a petition which was filed by this petitioner, it was directed that a decision should be taken as soon as possible after the exercise of fixing the roster position was undertaken as per the said communication dated 8.10.92 and the petitioner should be informed the result of such exercise, nothing has been done so far by the respondents in that direction. The respondents are therefore, directed to take an appropriate decision in the matter within two weeks from today and place it on the record of this petition. Matter to be listed for final hearing on 2.4.1996. Direct service is permitted."
The above order was required to be passed to find out as to whether any irregularity was committed in giving promotion to the junior of the petitioner by giving benefit of roster and therefore, exercise was required to be carried out for fixing the roster position. Unfortunately, though directed, no decision was taken and the matter remained pending as it is. The respondent authority neither acted as per the above order nor filed any reply till this Court passed order dated 8.2.2012 so as to enable the learned Assistant Government Pleader to get the copies of relevant documents. It is after this order, affidavit-in-reply on behalf of respondent Nos.1 and 2 came to be filed on 13.3.2012.
4. In the reply affidavit, it is stated that every SRP Group has Band, Armourer and Motor Transport section. Even person joining the Force of SRP, can be assigned duty in Band, Armourer or in Motor Transport section. Similarity for the entire Force is separately maintained and seniority qua Band and Armourer is also separately maintained. It is fairly stated that the petitioner was posted in Band and he was senior in Band as well as in Force to Shri Chaudhary and the petitioner is superseded in the matter of promotion. However, promotion of Shri Chaudhary is sought to be justified in the reply, by stating that since the post of Constable Gr. II was vacant in the Band, Shri Chaudhary was given benefit of ST candidate. It is stated in the affidavit that considering the backlog of ST candidates in group cadre of HC, every post falling vacant in the Force or the Band had to go to some ST candidate.
5. At this stage, it is required to be noted that pursuant to order dated 11.3.1996, no decision was taken nor even the reply speaks about the decision to find out, as to whether roster was rightly applied or not. In fact, even till the promotion in 1992 to Shri Chaudhary, the case of the petitioner was not considered though the petitioner had already become due for promotion.
6. Learned advocate Mr. R.R. Vakil for the petitioner, therefore, submitted that there is a case of gross injustice meted out to the petitioner, where the petitioner was though entitled to be promoted as on the day when Shri Chaudhary was promoted, still the petitioner was not given any benefit of promotion nor subsequently, the case of the petitioner was considered. Learned advocate Mr. Vakil has also submitted that the reply affidavit is nothing but sheltering the illegal action of giving promotion out of turn to Shri Chaudhary though Shri Chaudhary was junior to the petitioner. Mr. Vakil has first drawn the attention of the Court to the order 7.11.1992, to point out that the said order clearly reveals that the promotion to Shri Chaudhary was in consideration of the seniority and by not giving the benefit of roster. He has also submitted that no decision was yet taken pursuant to the order passed by this Court dated 11.3.1996 and except bare assertion in the affidavit, it is not known whether actually the promotion to Shri Chaudhary was as per roster point or not. Mr. Vakil has pointed out that even if roster point was required to be fixed, the same could have been fixed by considering the service of Shri Chaudhary in the Force and then the benefit of roster point was required to be decided and on that basis only, promotion, considering the backlog was required to be granted. Mr. Vakil has, therefore, pointed out that there is nothing on record that at any point of time, exercise to fix roster point was undertaken and then the benefit of roster was given to Shri Chaudhary for the purpose of promotion. He, therefore, urged that the petitioner cannot be made to suffer because of such wrong action on the part of the respondents and the case of the petitioner is required to be considered for giving deemed date of promotion to the petitioner when the case of his junior was considered.
7. As against the above-said arguments advanced by learned advocate Mr. Vakil for the petitioner, learned Assistant Government Pleader Mr. Dave has submitted that though no exercise was undertaken as directed by the Court, however, the reply is filed to explain that the promotion was given to Shri Chaudhary as he belonged to ST community and not on the basis of the seniority.
8. Learned Assistant Government Pleader Shri Dave has stated that there is no reason not to believe the say of the deponent in the affidavit and since the benefit of roster point was given to Shri Chaudhary for promotion on the vacant post in Band, there was nothing wrong on such promotion, because even if roster point was to be fixed for the entire force, wherever vacancy has arisen, benefit of such roster point to the ST candidate was required to be given. He pointed out that in the present case, at the relevant point of time, vacancy has arisen in the Band and therefore, Shri Chaudhary, being ST candidate, was promoted by giving benefit of roster point. He, therefore, submitted that there is no substance in the grievance made by the petitioner and therefore, the petition should not be entertained.
9. Having heard learned counsel for the parties and having perused the documents on record, I find that there is no exercise undertaken by the respondents pursuant to the order dated 11.3.1996 and mere assertion is made in the affidavit-in-reply that promotion to Shri Chaudhary was given by giving benefit of roster as Shri Chaudhary belonged to ST community. It is pertinent to note that promotion order of Shri Chaudhary clearly states that the promotion was given to Shri Chaudhary by considering his seniority. There is no dispute that the petitioner was senior to Shri Chaudhary in the Band. There is nothing on record as to how much backlog was there and as to when roster point was to be fixed in the Force and when was it required to be given benefit of in respect of the vacant post in the Band.
10. It clearly appears to this Court that the petitioner was entitled for promotion on the basis of the seniority, because as could be found from the reply itself, the petitioner was not only senior available candidate for promotion at the relevant time but he was very much fit for promotion in the Band Section. Unfortunately, the case of the petitioner was, thereafter, not considered for promotion.
11. The petitioner has filed rejoinder and has rightly ventilated the grievance that though direction was given on 11.3.1996 to undertake exercise for fixing roster position, no record is placed to justify fixation of roster position for the purpose of giving benefit to Shri Chaudhary. It is also stated that even if promotion was given on the basis of the roster, the same could not be straightway given in the Band Section, because if such benefit of roster is given in individual section, there will be multiplicity of benefits on the basis of roster in the Force. Therefore, if roster is to be fixed, then it has to be in the context of the entire Force and persons belonging to reserved categories cannot be considered in different sections. In any case, since there is nothing placed on record as to how exercise of roster point was undertaken, it clearly appears that the petitioner was wrongly denied promotion right from 1992 till he was promoted to the post of Head Constable Gr. II in 2007. Under the circumstances, I am of the opinion that the case of the petitioner is required to be considered by the respondents for deemed date of promotion to the post of Head Constable Gr. II as on the date when his junior Shri Chaudhary was considered and given promotion.
12. Accordingly, this petition is accepted and allowed. The respondents are directed to consider the case of the petitioner for promotion on the post of Constable Gr. II as on 7.11.1992 when his junior Shri Kavji Nathubhai Chaudhary was promoted, for the purpose of giving deemed date of promotion and other consequential benefits flowing from such deemed date of promotion. The respondents shall complete the above-said exercise within a period of two months from the date of service of this order to the respondents.
13. The petition is allowed to the aforesaid extent. Rule is made absolute accordingly.
Sd/-
(C.L.
SONI, J.) omkar Top