Orissa High Court
State Of Odisha And Others vs Chandrasingh Bahla on 11 December, 2023
Bench: B.R. Sarangi, Murahari Sri Raman
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No. 1633 of 2022
State of Odisha and others ..... Appellants
Mr. R.N. Mishra, AGA
Vs.
Chandrasingh Bahla ..... Respondent
Ms. Babita Kumari Pattanayak, Adv.
CORAM:
ACTING CHIEF JUSTICE DR. B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
11.12.2023
Order No. This matter is taken up by hybrid mode.
03.
2. Heard Mr. R.N. Mishra, learned Addl. Government
Advocate appearing for the appellants Ms. Babita Kumari
Pattanayak, learned counsel appearing for the respondent.
3. The State-appellants have filed this writ appeal seeking to
quash the order dated 29.09.2022 passed by the learned Single
Judge in W.P.(C) No. 23945 of 2022 under Annexure-2, by which
this Court held that pendency of the vigilance proceeding, which
was initiated in the year 2001, cannot be treated as a bar to allow
the respondent to undergo A.S.I. training.
4. Mr. R.N. Mishra, learned Addl. Government Advocate
appearing for the appellants contended that the learned Single
Judge has committed gross error apparent on the face of record
by permitting the respondent to go for training. As such, case of
the respondent is covered by the judgment of this Court in the
case of State of Odisha and another v. Joseph Barik (W.A.
No.805 of 2021 and batch disposed of on 11.05.2023), for which
the order impugned passed by the learned Single Judge cannot be
sustained in the eye of law.
5. Ms. Babita Kumari Pattanayak, learned counsel appearing
for the respondent vehemently refuted the contention raised by
learned Addl. Government Advocate appearing for the appellants
and contended that the case of the respondent is covered by the
orders of this Court passed in the cases of State of Odisha and
others v. Ashok Kumar Hota and others (W.P.(C) No. 18500 of
2015, disposed of on 06.05.2022) and in the case of State of
Odisha v. Siba Prasad Mallick, (W.A. No. 2559 of 2023 disposed
of on 09.11.2023).
6. Having heard learned counsel for the parties and after
going through the records, this Court finds that the respondent,
on being duly selected, was appointed as Constable on
01.12.1989 in the district of Khurdha. Subsequently, he was
transferred to PTC, Angul. Since the date of appointment, the
respondent continued to discharge his responsibilities assigned to
him. As per the hierarchy of promotion, the next promotion of
Constables is Asst. Sub-Inspector (ASI) of Police. Rule 660 of
Odisha Police Manual Rules prescribed the procedure for
appointment to the post of ASI of Police. Rule 660 of the Manual
had undergone an amendment in the meantime. According to the
pre-amendment Rules, Matric Constables, who had passed the
Writer Constables Course/Training or the Constable Course of
Training and have had at least three years of service after the
period spent under training, were eligible for deputation to the
ASI Course/Training for a period of six months commencing
from January and July every year or any other date fixed by the
I.G. of Police. After amendment of the said Rules, three years
period was increased to seven years, keeping all other conditions
as it is. As per detailed procedure prescribed under Rule 660, as
to the manner of appointment to the posts of ASI, the posts of
ASI are filled up from the posts of eligible Constables by way of
promotion and there is no provision for appointment to the posts
of ASI directly by open advertisement. As per Rule 660, both
Matric and Non-Matric Constables, having seven years of service
to their credit, after the training, are eligible for consideration for
promotion to the posts of ASI subject to the condition that they
are to appear in a written test conducted by the D.G. & I.G. of
Police centrally or at the place suitable for the purpose of written
test and such candidates, who qualify the written test, are to be
recommended by the respective S.Ps. with their service
particulars to the Board, who, after due scrutinization, has to
prepare a select list considering the seniority of such candidates
nominated by the Board and to depute them for training for the
ASI course to the Police Training College, Angul as per their
seniority so as to appoint them as ASI on successful completion
of the training. The amendment in Rule 660 of the Odisha Police
Manual Rules was made by the State Government in the year
1999 and the same was communicated by the D.G. & I.G. of
Police, vide letter no.11947 dated 27.02.1999. The respondent
had long since completed the qualifying service, as prescribed in
Rule 660 of Odisha Police Manual Rules. As per the said Rules,
the appellants used to prepare a list of qualifying Constables to
appear in the written test as on the date of communication and to
publish a list of those who pass such examination irrespective of
number of vacancies available and to allow such list to be
exhausted by deputing constables who passed such test to the
ASI course and on exhaustion of the list another examination is
to be conducted.
7. In the year 2000, a communication was made by the
appellants to all the District Superintendents of Police of the
State, vide letter no.29644 dated 26.05.2000, in continuation of
headquarter's letter no.20085 dated 11.05.2000 declaring that the
written test of Constables to undergo ASI course of training to be
held on 18.06.2000 at different places of the State. The papers of
examination was conducted, namely, Law and Rules, Translation
and Re-translation and, as such, for departmental examination,
the qualifying mark is taken as 30 out of 100 so as to declare a
candidate to have passed in the written test. The appellant no.2,
without prior approval of appellant no.1, put 50% marks as
qualifying marks, so as to declare a candidate to have passed the
written test, and basing on the same, a list of 98 candidates was
published, vide office order no.1240 dated 11.03.2001.
Aggrieved by such action of appellant no.2 in enhancing pass
mark from 30% to 50%, without approval of the State
Government, some Constables approached the Tribunal in filing
O.A. No. 790 of 2001 and batch and being failed there, they
approached this Court by filing W.P.(C) No.1858 of 2002 and
batch. When the matter was sub-judice before this Court, a
communication was made by the appellants to all the District
Superintendents of Police declaring that the written test of
constables to undergo ASI training to be held on 18.08.2002. As
such, the result was published by appellant no.2, vide order
no.3473 dated 13.10.2003, declaring 174 Constables to have
passed the examination conducted on 18.08.2002. After
declaration of result on 18.08.2002, this Court in W.P.(C) No.
1858 of 2002 and batch, declared the prescription of 50%, as pass
mark, in the examination held on 20.05.2000 is not supportable
in law. After the order passed by this Court, without examining
the ratio of decision on its own perspective, appellant no.2 issued
a letter stating inter alia that cut off mark will be fixed by the
D.G. & I.G. of Police, Cuttack according to availability of
vacancies in the rank of ASI of Police to be filled up in the State.
When the examination was held for fixing a cut off mark to pass
the test for promotion to the rank of ASI, some candidates
approached the Tribunal by filing O.A. No.3104 of 2003 and
batch. However, to overcome such situation, the Government
issued instructions on 15.10.2005 to the D.G. & I.G. of Police
that before fixing the eligibility criteria the orders of the
Government have to be obtained.
8. As per Section 12 of the Police Act, every promotion
whether by selection or otherwise, is a fresh appointment,
therefore, the eligibility criteria for consideration of candidates
for each and every appointment (whether direct or indirect or by
promotion) and the procedure to be followed for selection are
required to be decided by the Government and not by the
appointing authorities. The Tribunal, after hearing the parties,
vide order dated 07.08.2008, directed the appellants to operate
the list of 2136 prepared on the basis of result of 2000
Examination and take steps for inducting the candidates selected
by the CSB and approved by the D.G. of Police into the training
course for eventual appointment as ASIs. As such, the select list
of 174 candidates prepared on the basis of the Examination held
on 18.08.2002 was set aside with direction to the appellants to
finalize a fresh list on the basis of only 30% aggregate pass
marks, and that the list would be operated only after the list of
2000 Examination is exhausted to the exclusion of unsustainable
candidates. Furthermore, since the criterion for passing in the
examination held on 18.06.2002 was taken as 30% in aggregate,
the communication of the Special I.G. (Admn.) to all Heads of
Police Establishment impugned in O.A. No. 2071 of 2006 was
quashed. Thereafter, on the basis of the direction, a list of 2319
candidates were prepared declaring them to have passed the
written test conducted on 18.08.2002 for undergoing ASI course
of training. Till the list is exhausted, no further examination has
been conducted in respect of unreserved candidates. As such,
Rule 660 (a) was amended by notification dated 28.02.2009. In
the said list, the name of the respondent found place at
sl.no.2024. As per the vacancy position in the training centre and
on the basis of seniority, the pass out Constables were sent for
undergoing ASI course of training. The respondent was selected
to undergo ASI course of training. As entangled in a criminal
case bearing T.R. Case No.78/77 of 2005, even though he was
qualified in the written test to undergo ASI training, he was not
nominated for undergoing ASI training, whereas others were sent
for training from the select list dated 11.11.2008. Thereafter also,
in phased manner, the juniors to the respondent were sent for
training, but he was not sent for training on the plea of pendency
of the criminal case. Therefore, question arises, if the training
qualification is pre-requisite for getting promotion to the post of
ASI and the respondent has already qualified the written
examination, in the name of pendency of the criminal case,
should he be denied to go for training when his turn reached? A
vigilance case being pending against him, which was initiated in
the year 2001, cannot stand on the way of the respondent to
undergo training, as because in the Rules, there is no bar to go for
such training. Furthermore, the respondent may not get the
benefit of promotion because of pendency of vigilance case, but
training being a pre-requisite qualification for promotion, the
appellants should not have denied the same, as he has already
qualified in the written examination conducted by the authority.
9. In the above view of the matter, this Court finds that the
learned Single Judge is well justified in holding that pendency of
the vigilance proceeding, that too which was initiated in the year
2001, cannot be treated as a bar to allow the respondent to
undergo ASI training, if he has been declared as fit by the
medical board to undergo such training. As regards the reliance
placed by learned Addl. Government Advocate appearing for the
appellants on the case of Joseph Barik, mentioned supra, this
Court finds that the ratio decided therein, has no application to
the present context. On the other hand, the orders of this Court
relied upon by the learned counsel appearing for the respondent
are squarely applicable to the present case.
10. In view of the above, this Court does not find any error
apparent on the face of order dated 29.09.2022 passed by the
learned Single Judge in W.P.(C) No. 23945 of 2022 so as to
warrant interference with the same.
11. Accordingly, the writ appeal merits no consideration and
the same is hereby dismissed.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
(M.S. RAMAN)
JUDGE
Ashok
Signed by: ASHOK KUMAR JAGADEB
Location: HIGH COURT OF ORISSA
Date: 12-Dec-2023 18:51:09
