TULSIDAS PATEL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The controversy involved in the present petition is relating to cancellation of promotion of the petitioner on the post of Head Constable (Excise) as granted in the year 1986 and the subsequent promotion on the post of Sub-Inspector (Excise) granted in the year 2000, by the impugned order dated 20.7.2006 said to be passed by the respondent No. 2. The grievance putforth by the petitioner in short is that he was appointed as a Constable in the year 1979 in the Excise Department. He has served honestly and sincerely and considering the candidature of the petitioner, vide order dated 9.9.1986, the petitioner was promoted on the post of Head Constable (Excise). The petitioner joined on the promotional post and started working. Since the posting on promotion was made at Panna, the joining was accepted at Panna. Later on, in the year 1987, again the petitioner was transferred back to Jabalpur. The petitioner belongs to the Other Backward Class category and in that category his claim was considered for promotion in the year 2000 and since he was found fit for such promotion, by order dated 22.9.2000, the petitioner was promoted as Sub Inspector (Excise). While the petitioner gave joining on the said post, one of the General Category candidate, namely, Shri Gyanendra Prasad Tiwari, filed an Original Application before the M.P. Administrative Tribunal being O.A. No. 5261/2002, challenging the promotion of the petitioner on the post of Head Constable (Excise). The said Original Application came on transfer to this Court after closure of the Tribunal and was registered as Writ Petition No. 21946/2003. This Court dismissed the said writ petition on the ground of delay and laches, but made an observation that the departmental authorities will look into the representation of said Shri Gyanendra Prasad Tiwari and will decide the same in accordance to law and communicate the decision to him. Pursuance to the said order, a show cause notice was issued to the petitioner on 24.3.2006 intimating that after enquiry and examining the record, it was found that the petitioner was promoted on the post of Head Constable (Excise) against the quota of Scheduled Tribe category whereas, the petitioner belongs to Other Backward Class category, which was not granted any reservation till the year 1986 and the petitioner was to be treated as a General category candidate. It was communicated to the petitioner that since his promotion on the post of Head Constable (Excise) was illegal, his subsequent promotion on the post of Sub-Inspector (Excise) was also bad and, therefore, he was called upon to explain as to why such order should not be cancelled. The petitioner filed his response to the show cause notice, but by the impugned order dated 20.7.2006 since the orders of promotion of the petitioner have been cancelled, he has been reverted to the post of Constable, the petitioner has filed the present writ petition. While entertaining this writ petition, an interim stay has been granted and the petitioner has worked on the post of Sub-Inspector (Excise) and has now attained the age of superannuation and has retired.

(2.) By filing the return, it is contended that the name of the petitioner was included in the list of candidates belonging to the Scheduled Caste community and this is how he was promoted on the post of Head Constable (Excise) as back as in the year 1986. A declaration was made that in terms of the consideration for promotion, the order of promotion was issued strictly following the provisions of the reservation. It is further contended that when the representation of said Shri Gyanendra Prasad Tiwari was received, a probe was made and it was found that the petitioner in fact belongs to 'Kachhi' community which is treated to be the Other Backward Class and not a reserved category in Scheduled Caste or Scheduled Tribe. It was further found that since no reservation was made for the Other Backward Class till the year 1986, the petitioner was not to be given any promotion under the reserved category. He at the best could have been treated as a General category candidate and could have been promoted in his turn. It was found that certain seniors to the petitioner in General category were left out and this is how it was held that the promotion of the petitioner as Head Constable (Excise) was bad in law. Consequently, it was further held that the petitioner could not have been promoted on the post of Sub-Inspector (Excise) and that being so, the order has rightly been issued by the respondents. It is further contended that said Shri Gyanendra Prasad Tiwari has been informed by the order dated 29.7.2006 that he could not be given promotion since no juniors to him have been promoted superseding the claim of the said person and junior like petitioner has already been reverted. It is stated that the petition being wholly misconceived deserves to be dismissed.

(3.) A rejoinder has been filed by the petitioner, but the material facts have already been stated in the writ petition, therefore, it would not be necessary for this Court to refer to the pleadings made in the rejoinder. Suffice it to say, nothing has been placed on record by the respondents to indicate that the Departmental Promotion Committee considered the cases of reserved category candidates only in the year 1986 for promotion on the post of Head Constable (Excise).