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W.P. (S) No. 1398 of 2004
With
W.P.(S) No. 2109 of 2004
[In the matter of an application under Article 226 of the Constitution of India]
...
1. Rajendra Prasad
2. Arbind Kumar Sinha
3. Bimal Kant Kuwar
4. Shashi Bhushan Pramanik ... Petitioners (in 1398 of 2004)
1. Arun Kumar
2. Ram Brich Yadav
3. Rajiv Kamal ... Petitioners (in 2109 of 2004)
-V e r s u s-
1. The State of Jharkhand
2. Director General-cum-Inspector General
of Police, Jharkhand, Ranchi
3. Deputy Inspector General of Police (Wireless)
Jharkhand, Ranchi
4. Assistant Inspector General of Police(Inspection),
Bihar, Patna ... Respondents (in both cases)
...
For the Petitioners : - M/s. Rajesh Kumar & Deepak Kumar Bharti,
Advocates (in W.P.(S) No. 1398 of 2004)
Mr. A.K.Sahani, Advocate (in 2109 of 2004)
For the Respondents : - J.C. to Sr. S.C.-II &
Mr. Pankaj Ambastha, Advocate
...
Present
The Hon'ble Mr. Justice D.G.R.Patnaik
C.A.V. On - 11.03.2010 Pronounced on 19.03.2010
D.G.R.Patnaik, J. Both these writ applications arise out of a common impugned order
dated 28.02.2004 (Annexure-25) passed under the signature of the Respondent
No. 3 whereby the upgradation/adjustment of the petitioners against the post
of Assistant Sub-inspector (Technical), has been cancelled and they have been
reverted to the post of Literate Constable (Technical).
2. The grounds of challenge to the impugned order, as raised by the
petitioners, are that the order of reversion is totally illegal and could not have
been resorted to in absence of any charge of misconduct or any fault on the
part of the petitioners and that the impugned order is wholly arbitrary, illegal,
unjust, improper and without jurisdiction and it was passed even without
offering any opportunity to the petitioners to explain as to why they should not
be reverted to the post of Literate Constables.
3. Heard counsel for the parties.
4. Learned counsel for the petitioners would explain that by an office
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order No. 1886/82, the petitioner Nos. 1 and 2, upon their being selected by
the Selection Committee, were initially appointed on the post of Literate
Constables (Mechanic) on temporary basis in the pay scale of Rs. 425-605/-
By a similar order dated 19.01.1984, the petitioner No. 3 was appointed
as Literate Constable (Technical) in the same pay scale.
By order dated 19.11.1979, the petitioner No. 4 was initially appointed
as Literate Constable (Mechanical) in the pay scale of Rs. 205 - 284/-.
All the petitioners were sent for Grade-III training and after completing
their training, they had appeared at the qualifying examination conducted by
the Ministry of Home Affairs, Director of Co-ordination, Police Wireless,
Government of India, New Delhi.
Upon their passing the departmental examination, the petitioners
became eligible for their promotion to the higher post of Assistant Sub-
inspector (Technical) in the Wireless Department.
Upon assessment made by the Assistant Inspector General of Police
(Inspection), Bihar, Patna based upon verification of the entire records and
relevant documents, the Deputy Secretary (Home) was informed that there
were 81 sanctioned posts of Assistant Sub-inspector (Technical) in the
Wireless Department.
On being apprised of the existence of 81 sanctioned posts, the Deputy
Inspector General of Police (Wireless) granted promotion to all the persons
who had passed the Grade-III examination, to the post of Assistant Sub-
inspector (Technical). The petitioners too had benefited by the order of such
promotion/upgradation to the post of Assistant Sub-inspector (Technical) with
effect from 16.12.1995.
Learned counsel explains further that as a matter of fact, upon
considering the fact that there was actually no post of Literate Constable
(Technical) in the organization and in compliance with an order passed by the
Patna High Court in a writ application vide C.W.J.C. No. 4193 of 1989, the
Literate Constables including the petitioner, were upgraded to the post of
Assistant Sub-inspector (Technical) in the department. The petitioners were
accordingly enjoying the benefits of the higher posts on which they were
confirmed with effect from the date of their passing the Grade-III
examination. Furthermore, a gradation list of all such Assistant Sub-inspector
(Technical) was prepared by the Assistant Inspector General of Police
(Wireless), Bihar which which the names of the present petitioners also
figured.
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5. Upon bifurcation of the erstwhile State of Bihar, 20 posts of Assistant
Sub-inspector (Technical) were allocated to the State of Jharkhand as
indicated in the final allocation list of State Advisory Committee on
30.07.2003
. The petitioners were working in the post of Assistant Sub-
inspector (Technical) in the Technical Cadre of the Wireless Department
within the territory of State of Jharkhand.
6. While the petitioners were enjoying the benefits of their promotion to
the higher post, they were served with a notice dated 09.08.2002 asking them
to show cause why their promotion to the post of Assistant Sub-inspector
(Technical) should not be cancelled and they be not reverted to the post of
Literate Constable (Technical).
7. Being aggrieved, the petitioners and similarly situated other personnel
preferred a writ application before this Court vide W.P.(S) No. 5271 of 2002.
By an interim order dated 25.09.2002, this Court had restrained the
respondents from recovering any amount from the petitioners pursuant to the
impugned show cause notice dated 09.08.2002.
The writ application was finally disposed of by order dated 30.10.2002
holding that the Deputy Inspector General of Police (Wireless) of the State of
Bihar has no jurisdiction to issue any order of recovery in respect of those
police personnel who were posted in the State of Jharkhand. Accordingly the
impugned show cause notice dated 09.08.2002 was set aside. The State of
Jharkhand was however given a liberty to go through the records and to take
appropriate decision in accordance with law taking into consideration the
actual number of sanctioned posts of Assistant Sub-inspector (Technical) as
were existing at the time of promotion of the petitioners and as existing at
present.
8. Consequent upon the order passed by this Court in the aforementioned
writ application, the Deputy Inspector General of Police(Wireless), Jharkhand,
Ranchi issued show cause notices to the petitioners. In response, the
petitioners submitted their respective show cause replies.
9. However, by the impugned office order dated 28.02.2004 issued by the
Respondent No. 3, the order of the year 1995 granting promotions to the
petitioner on the post of Assistant Sub-inspector (Technical) was cancelled
and they were reverted to the post of Literate Constables. Being aggrieved, the
petitioners have filed the present writ application.
10. Per contra, the stand taken by the respondent State Government is that
though the petitioners were granted promotion to the post of Assistant Sub-
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inspector (Technical) by way of their upgradation from the post of Literate
Constable (Technical), but it was detected subsequently that such upgradation
was done by the Bihar Police (Radio) even without obtaining prior consent of
the Finance Department of the Government of Bihar. It is further pointed out
that though the actual vacant sanctioned posts of Assistant Sub-inspector
(Technical) was 61 but by way of wrong calculation, 20 more posts were
added to wrongly suggest that the total number of vacancies in the said post
was 81. When the error was detected, the earlier order dated 29.03.1995
passed by the Government of Bihar was cancelled by a fresh order dated
03.01.1998. Consequently, the promotions granted to 20 Literate Constables,
including the present petitioners, to the wrongly calculated additional 20 posts
of Assistant Sub-inspector (Technical), was cancelled by the Government of
Bihar by the letter issued in the appropriate department dated 02.04.2002. The
impugned order passed by the Deputy Inspector General of Police (Wireless),
Bihar, Patna was only in compliance with the Government’s order
(Annexure-5) and as a consequence thereof, the promotion/
upgradation/absorption of all such Literate Constables in the rank of Assistant
Sub-inspector (Technical) was withdrawn and they were reverted /demoted to
their original post of Literate Constable.
11. Upon hearing the counsel for the parties and upon going through the
documents available on record, it appears that the impugned order of reversion
has been passed by the Respondent No. 3 on the inference that there were only
61 sanctioned posts of Assistant Sub-inspector (Technical) in the Police
Wireless Department in the State of Bihar and the promotions granted to 20
more persons were improper. It also appears from the information furnished
by the Inspector General of Police (Inspection), Bihar, Patna vide his letter
dated 28.02.1995 and the letter of the Deputy Secretary, Home (Police), Bihar
Patna dated 29.03.1995 (Annexure-10 and 11 respectively) that the total
number of sanctioned posts were 82 which included 62 unreserved posts. The
posts allocated to the State of Jharkhand upon bifurcation of the erstwhile
State of Bihar was confined only to the 62 unreserved posts.
12. It also appears that though the petitioners were initially appointed as
Literate Constables, but in absence of any promotional avenues and in absence
of any post of Literate Constable (Technical), the petitioners were
upgraded/adjusted in the initial post of Assistant Sub-inspector (Technical) in
1995 after they had attained their eligibility by passing the Grade-III
examination. Such upgradation was given to the Literate Constables pursuant
to the directions contained in the order of the Supreme Court in the case of
Raghunath Prasad Singh Vs. Secretary, Home (Police) Department, AIR 1988
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SC 1033 upon considering the fact that no promotional avenues were provided
to Literate Constables in the police organization.
13. In the order of this Court in W.P.(S) No. 5271 of 2002, a specific
direction was given to the concerned authorities of the State of Jharkhand to
go through the records and reports and to take an appropriate decision in
accordance with law taking into consideration the actual number of sanctioned
posts of Assistant Sub-inspector (Technical) as was existing at the time of the
petitioners’ promotion and as existed on the date of order.
14. While passing the impugned order, the respondent No. 3 appears to
have acted only on the belief that there were only 61 available vacant
sanctioned posts of Assistant Sub-inspector (Technical) in the Wireless
Department of the State of Bihar and that promotions/upgradations were given
to 18 Literate Constables (Technical) without there being any sanctioned posts
available for them. The impugned order does not appear take into
consideration the undisputed fact that in absence of any promotional avenues
available to Literate Constables and in pursuance to the directions contained in
the judgement of the Supreme Court in the case of Raghunath Prasad Singh
Vs. Secretary, Home (Police) Department (Supra), the Literate Constables
were allowed the benefit of two promotions and accordingly their upgradation
were made to the post of Assistant Sub-inspector (Technical) with
consequential benefits of higher pay scale. The impugned order does not also
appear to record as to the actual number of vacant posts of Assistant Sub-
inspector (Technical) which was available on the date of the final order passed
by this Court in W.P.(S) No. 5271 of 2002 so as to assess as to whether there
were vacant posts of Assistant Sub-inspector (Technical) available
accommodating the petitioners.
15. The upgradation granted to the petitioners pursuant to the directions
contained in the judgement of the Supreme Court in the case of Raghunath
Prasad Singh (Supra) cannot possibly be withdrawn abruptly and that too
unilaterally by the respondents.
16. Furthermore, the impugned order of reversion could not have been
passed against the petitioners in absence of any charge of misconduct on their
part and in absence of any charge that they had obtained the benefits of
upgradation of the higher pay scales by practicing any fraud or deception.
17. In the light of the above discussions, I am of the opinion that the
impugned order whereby the petitioners have been reverted to the post on
which they were initially appointed on the lower pay scales, has been passed
without proper application of mind and without proper appreciation of the
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circumstances in which the petitioners were granted upgradation and without
fully complying with the directions contained in the order of this Court in
W.P.(S) No. 5271 of 2002. The impugned order is therefore hereby set aside.
The petitioners are entitled to be restored to the upgraded post which was
granted to them in the year 1995. The concerned authorities of the
Respondents must pass appropriate orders accordingly within one month from
the date of receipt/production of a copy of this order.
These applications are accordingly disposed of.
Let a copy of this order be given to the counsel for the respondents.
(D.G.R. Patnaik, J.)
High Court of Jharkhand, Ranchi
Dated the 19th day of March, 2010
Birendra/A.F.R.