Subhash Singh vs The State Of Madhya Pradesh
2024 Latest Caselaw 6470 MP

Madhya Pradesh High Court

Subhash Singh vs The State Of Madhya Pradesh on 4 March, 2024

Author: Anand Pathak

Bench: Anand Pathak

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        IN THE HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                                       BEFORE

               HON'BLE SHRI JUSTICE ANAND PATHAK

                     WRIT PETITION NO. 21141 of 2019

       BETWEEN:-

       SUBHASH SINGH S/O SHRI RAMRATAN SINGH,
       AGED ABOUT 65 YEARS, OCCUPATION: RETIRED
       R/O BY-PASS AMBAH SAINIK COLONY, MORENA
       DISTRICT MORENA (MADHYA PRADESH)

                                                                    .....PETITIONER

       (BY SHRI ARUN KATARE - ADVOCATE)

       AND

1.     STATE OF MADHYA PRADESH THROUGH
       PRINCIPAL SECRETARY,    DEPARTMENT OF
       HOME (POLICE), GOVT. OF M.P., VALLABH
       BHAWAN, BHOPAL (MADHYA PRADESH)
2.     THE DIRECTOR GENERAL OF POLICE, POLICE
       HEADQUARTERS, BHOPAL (MADHYA PRADESH)
3.     THE DEPUTY INSPECTOR GENERAL, CHAMBAL
       RANGE GWALIOR (MADHYA PRADESH)
4.     THE SUPERINTENDENT OF POLICE, MORENA
       DISTRICT MORENA (MADHYA PRADESH)

                                                                 .....RESPONDENTS

       (BY SHRI VISHAL UPADHYAY - GOVERNMENT ADVOCATE)
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        Reserved on                                  :          26-09-2023
        Delivered on                                 :           04-03-2024
---------------------------------------------------------------------------------------
       This petition having been heard and reserved for orders coming on for
pronouncement this day, delivered the following:-
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                                 ORDER

1. The present petition under Article 226 of the Constitution is preferred by the petitioner seeking following reliefs:

"((i) That, the present petition filed by the petitioner may kindly be allowed;

(ii) That, the order Annexure P/1 dated 25.5.2019 passed by the respondent may kindly be directed to be quashed and the respondents may kindly be directed to extend the benefit of promotion to the petitioner at par with junior of the petitioner mentioned in Annexure P/4 and may kindly be extended benefit of salary and seniority and other benefits to the petitioner.

(iii) That, the respondents may kindly be directed to refix the pension of the petitioner and pass fresh PPO after granting promotion to the petitioner along with interest at the rate of 10% per annum.

(iv) That, any other just, suitable and proper relief, which this Hon'ble Court deems fit, may also kindly be granted to the petitioner. Costs be also awarded in favour of the petitioner."

2. Precisely stated facts of the case are that the petitioner was appointed on the post of Constable on 22-12-1972 and promoted on the post of Head Constable on 03-04-1984 and he continued to work on the said post till 24-08-2013, when he was promoted on the post of Assistant Sub Inspector (ASI Police) and ultimately got superannuated in 2014. Petitioner received 225 rewards between the period 1975 to 2004 and according to petitioner, no major punishment was inflicted to the petitioner but still he was

not considered for promotion on the pretext that major punishments have been inflicted over him. Earlier petition was preferred by the petitioner vide writ petition No.7859/2012 which was decided on 27-08-2018 in which direction was given to consider the case of petitioner in the light of plea raised by the petitioner regarding non receipt of communication in respect of major punishments. In pursuance thereof, respondents considered the case and passed the impugned order dated 25-05-2019 and therefore, petitioner is before this Court.

3. It is the submission of learned counsel for the petitioner that as per the impugned order itself petitioner received three punishments; one on 23-02-1979, of stoppage of one increment without cumulative effect, other punishment order was dated 23- 03-1994 whereby petitioner was again inflicted punishment of stoppage of one increment for one year without cumulative effect and the another punishment order was 30-05-1994 in which reversion/demotion of petitioner from the post of Head Constable to the Constable has been made. Therefore, according to learned counsel for the petitioner earlier two increments were minor in nature and for the third punishment whereby he was reverted, he was not given any opportunity of hearing, therefore, it cannot be presumed that it was a just and legal order.

4. It is further submitted by learned counsel for the petitioner that his juniors have been promoted from 1996 and so on but petitioner is denied the promotion whereas petitioner was promoted on the post of Head Constable in 1984 and he was promoted to the post of A.S.I. On 24-08-2013 and he worked till

30-06-2014 as A.S.I. Time scale of pay could have been given to the petitioner if promotion was not granted. However respondents did not give the promotion to the petitioner from the time his juniors were promoted. According to him, stoppage of increment without cumulative effect is not major punishment and if the said punishment is treated as major punishment then for that no enquiry was conducted by the respondents. Therefore, as per the mandate of Apex Court in the case of Kulwant Singh Gill Vs. State of Punjab, 1991 Supp. (1) SCC 504 approach of respondents is arbitrary and illegal.

5. Learned counsel for the respondents opposed the prayer. While relying upon the reply, it is submitted that as per rule 10(5) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 (hereinafter referred to as ""the Rules of 1966) stoppage of increment without cumulative effect is major punishment and the third penalty which has been imposed over the petitioner of reversion is also major punishment as per rule 10(6) of the Rules of 1966, therefore, three major penalties have been inflicted over the petitioner. Therefore, he was not entitled to get promotion. Counsel for the respondents relied upon GOP No.81/98 dated 02- 04-1998 filed as Annexure R/1 and M.P. Police Executive (Non- Gazetted) Service Promotion Rules, 1997 (hereinafter referred to as the Rules of 1997") filed as Annexure R/2. Thus, prayed for dismissal of petition.

6. Heard learned counsel for the parties and perused the documents appended thereto.

7. This is a case where petitioner who was working as Head

Constable since 1984 is seeking promotion on the post of Assistant Sub Inspector (ASI) when his juniors were promoted. He stood retired on 30-06-2014 as A.S.I., but he promoted belatedly in 2013, whereas his juniors promoted earlier. Therefore, any benefit if any, would be given to him as retired employee, would be notional and for pensionary benefits only.

8. Promotion Rules, 1997 and the impugned order Annexure P/1 which take into account the GOP No.81/98 gave an understanding that 80% promotions are given through departmental examination and remaining 20% promotions are given to the employees on the basis of seniority cum record. Impugned order 25-05-2019 deals in detail in respect of different contingencies about promotion. According to the respondents, petitioner is suffering three major penalties whereas as per clause 3 (c) of GOP if Head Constable has not received major punishment for last 5 years and in last 5 years number of punishments should not exceed the rewards received and if his integrity/loyalty is upto mark, then he would be entitled for promotion.

9. Now one has to see whether petitioner who received two punishments of stoppage of increments without cumulative effect would fall under Minor punishment or Major. For that Police Regulations does not appear to be clear because in Police Regulations as per regulation No.214 different kind of punishments have been prescribed but they have not been categorized as Minor and Major as classified in the Rules of 1966. Therefore, one has to take guidance from the judgment of Apex Court and this Court to reach to the conclusion.

10. If any cue is taken from the Rules of 1966 even then it appears that withholding of increment is Minor penalty as per rule 10(iv) and therefore, contention of respondents lacks merits that it is a case of Major punishment under rule 10(v) of the Rules of 1966. This Court in the case of Roop Singh Bhadoriya Vs. State of Madhya Pradesh and others, 2023 (4) MPLJ 175 while considering the judgment of Apex Court in the case of Food Corporation of India Vs. A. Prahalada Rao (2001) 1 SCC 165 and Division Bench of this Court in the case of Ratan Singh Silawat Vs. The State of Madhya Pradesh passed in W.A.No.761/2020 vide order dated 08-09-2020 held that stoppage of increment without cumulative effect is minor punishment, therefore, it is to be treated as minor punishment.

11. If the Police Department considers this punishment as major punishment then as per regulation 214 respondents were obliged to conduct full-fledged departmental enquiry against the petitioner while inflicting such punishment. From the documents it is nowhere gathered that any enquiry was conducted by the respondents against the petitioner.

12. Be that as it may.

13. The fact remains that petitioner was reverted from the post of Head Constable to the Constable vide order dated 30-05-1994, therefore, he suffered one Major Punishment. Thus, in the conspectus of facts itself it appears that the case of petitioner has not been considered in the light of the judgment passed by this Court as referred above.

14. Another facet of dispute is that an incumbent should not receive

two major punishments for last 5 years, therefore, till 2013 (in 2013 he was promoted to the post of A.S.I.) petitioner was not considered for promotion is surprising. Reason is obvious that punishment was of 1994 and that 5 years ends in 1999. At least, thereafter petitioner was entitled to be considered for promotion. But no document has been filed by the respondents to indicate that any consideration in this regard was made by the respondents. Therefore, valuable right of consideration of petitioner is infringed.

15. Even the infliction of stoppage of increment vide order dated 23- 02-1979 was for six months and it has been clarified that it would not affect the pensionary benefit of petitioner (as per Annexure P/3), therefore, while inflicting that punishment department was aware of the fact that it was like a punishment of stoppage of increment for six months without cumulative effect.

16. Promotion is an incentive for a Government employee to excel in his performance and if that incentive is denied then employee loses interest to improve his performance. No doubt promotion is not indefeasible right but objective consideration shall certainly be made to address the anxiety of an employee.

17. All these aspects have not been considered by the respondents yet therefore, in the considered opinion of this Court, the impugned order passed by the respondents is not sustainable and deserves to be set aside. Accordingly, the petition preferred by the petitioner is allowed and impugned order Annexure P/1 is set aside. Respondents are directed to reconsider the case of petitioner in the following manner:

i. Penalty No.1 order dated 23-02-1979 and penalty No.2 order dated 23-03-1994 whereby the punishment of withholding of increment without cumulative effect was inflicted upon the petitioner were Minor punishments and one Major punishment dated 30-05-1994 was given when he was reverted, what is the status of petitioner in light of those punishments. Still he would be denied or given promotion ?

ii. If all the three punishments are treated as Major then whether the respondents conducted regular departmental enquiry or not. In that condition judgment of Apex Court in the case of O.K. Bhardwaj Vs. Union of India, (2001) 9 SCC 180 whether may come into play or not. iii. Whether ceiling of consideration of punishments/rewards of last five years as prescribed for promotion were followed in the case or not ?

iv. If the petitioner is found entitled for promotion to the post of A.S.I. when his juniors were promoted or any date around their date of promotion, then what would be the fate of petitioner for subsequent promotion to the post of Sub Inspector.

All these questions are required to be answered in objective manner and in light of judgments referred above of this Court.

18. Petitioner may submit his representation in detail to competent authority and in turn the said authority shall consider it in tabular form if required and thereafter pass a detail order as expeditiously as possible preferably within two months from the date of

submission of certified copy of this order.

19. Petition stands allowed and disposed of in above terms.

                                                    (ANAND PATHAK)
Anil*                                                   JUDGE


              ANIL KUMAR
              CHAURASIYA
              2024.03.04
              19:54:52
              +05'30'