JUDGMENT
S.J. Mukhopadhaya, J.
1. The petitioner prayed before the authorities to count his services rendered as Officiating Sub-Inspector of Police w.e.f. 11th June, 1976, but it was rejected by Deputy Inspector General of Police (Hqrs.) Jharkhand, Ranchi (hereinafter referred to as the D.I.G. Police (Hqrs.), Jharkhand, Ranchi), by letter No. 984 dated 2nd May. 2003. The said order has been challenged by the petitioner in this case.
2. According to the petitioner, he is entitled for seniority as a Sub-Inspector of Police w.e.f. 11th June, 1976 in the light of judgment rendered by Supreme Court in the case of Direct Recruit Class-II Engineering Officers’ Association v. State of Maharashtra reported in AIR 1990 SC 1970. According to him, the period of officiating service can be counted in certain cases, as held by the Supreme Court in the aforesaid case, paragraph 44 (b) of which is quoted hereunder:
(b) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.
3. The petitioner who was appointed as Literate Constable in the year 1964, was promoted as Assistant Sub-Inspector of Police in the year 1974. Subsequently, he was promoted as Sub-Inspector of Police on officiating basis, vide Memo No. 9088 dated 26th June, 1976 w.e.f. 11th June, 1976. He having been found fit, was confirmed to the post of Sub Inspector of Police, vide Memo No. 478 of 1990 w.e.f. 1st February, 1983.
In the aforesaid background, according to petitioner, the Respondents should count his seniority as Sub-Inspector of Police w.e.f. 11th June, 1976 and not w.e.f. 1st February, 1983, the date of confirmation.
4. The petitioner having not granted such benefit, had to move before this Court in W.P. (S) No. 52 of 2003 with the claim that he is entitled for seniority as Sub-Inspector of Police w.e.f. 11th June, 1976. A bench of this Court having noticed the fact aforesaid and observations of the Supreme Court at paragraph 44 (b) made in the case of Direct Recruit Class-II Engineering Officers’ Association” (supra), remitted to Respondents for decision by an order dated 25th March, 2003. The D.I.G. Police (Hqrs.), Jharkhand, Ranchi having rejected such prayer by letter No. 984 dated 2nd May, 2003, the present writ petition has been preferred against the said order of rejection.
5. In the counter affidavit filed in the earlier case , W.P. (S) No. 52 of 2003, the Respondents had not disputed the following fact:
(a) The petitioner was promoted as Sub-Inspector of Police, on officiating basis, vide Memo No. 9088 dated 26th June, 1976 w.e.f. 11th June, 1976;
(b) He was confirmed to the post of Sub-Inspector of Police, vide Memo No. 478 of 1990 w.e.f. 1st February, 1983; and
(c) No order of regular promotion to the post of Sub- Inspector of Police was issued in respect to petitioner.
In their counter affidavit, the only plea was taken that certain allegations were pending consideration before the Vigilance Department and departmental proceeding was initiated in the year 1992. By Impugned order, contained in Memo No. 984 dated 2nd May, 2003 while the Respondents have stated that his promotion to the post of Sub-Inspector of Police w.e.f. 11th June, 1976 was not regular and ad hoc, but it has not been made clear as to from which date he is entitled for seniority in the cadre of Sub-Inspector of Police.
Admittedly, the order of officiating promotion as Sub-Inspector of Police given w.e.f 11th June, 1976, the petitioner was confirmed to the said post w.e.f. 1st February, 1983. There is no other date of promotion to the post of Sub-Inspector of Police.
6. In the present case, the only question requires to be determined, as to from which date, the petitioner is entitled for seniority in the cadre of Sub-Inspector of Police.
7. In the case of S.B. Patwardhan v. State of Maharashtra , the Supreme Court held that accident of confirmation cannot be an intelligible criterion for determining seniority.
In the case of Roshan Lall v. International Airport Authority of India reported in AIR 1981 SC 592, the Supreme Court held that it would not be justified in reopening the question of legality of appointment, several years after their appointment, in a case where dispute relates to seniority.
8. In the case of “Direct Recruit Class-II Engineering Officers’ Association” (Supra), the Supreme Court held that if initial appointment is not made by following the procedure laid down by the rules, but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with rules, the period of officiating service will be counted.
9. In view of the aforesaid decisions of Supreme Court and discussions as made above, it is not open to the respondents to fix the seniority of petitioner as Sub-Inspector without any basis. It cannot be fixed on the basis of date of confirmation. In the circumstances, the respondents have no other option, but to allow the petitioner’s seniority as Sub-Inspector of Police w.e.f. 11th June. 1976.
10. So far as promotion to the higher post of Inspector of Police is concerned, by impugned order the respondents have stated that the petitioner is entitled for such promotion w.e.f. 20th August, 1994, but in view of the findings, as given above, the respondents are not to consider afresh as to from which date the petitioner is entitled for regular promotion to the post of Inspector of Police, if allowed seniority as Sub-Inspector of Police, w.e.f. 11th June, 1976.
11. In view of the discussions, as made above, and order contained in letter No. 984 dated 2nd May, 2003 being contrary to the law, the said letter is set aside. The case is remitted with direction to respondents to provide the petitioner the benefit of seniority in the cadre of Sub-Inspector of Police w.e.f. 11th June, 1976, with further direction to consider his case for promotion to the next higher post of Inspector of Police from the date he is so entitled on the basis of the seniority as allowed above, within a period of four months from the date of receipt/production of a copy of this order.
12. The writ petition is allowed with the aforesaid observations and directions. However in the facts and circumstances, there shall be no order, as to costs.