RAMESH CHANDRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE dispute in this writ petition relates to seniority between the petitioner and respondent No. 7 Suresh Prasad (hereinafter referred to as 'the respondent'). THE petitioner seeks quashing of the decision of the Departmental Board dated 23-8-2001 holding the respondent senior to him and the consequential order dated 3-9-2001, copies whereof are Annexures 16 and 17 to the writ petition. THE petitioner also seeks direction upon the respondents concerned to promote him to the post of Divisional Fire Officer holding him senior to the respondent on the basis of his out of turn promotion on the post of Assistant Divisional Fire Officer with effect from 8-9-1995. THE facts of the case, so far as relevant, briefly stated, are as follows.

(2.) THE petitioner was appointed as Fire Station Officer in the Bihar Fire Service, a post equivalent in rank to the post of Sub-Inspector of Police on 28-6-1976. He joined the post on 12-7-1976. He was granted 1st time-bound promotion on completing ten years of service on 12-7-1986 which was later adjusted against the junior selection grade of the post. On 10-7-1991, the petitioner was recommended by the Government of Bihar for the President's Fire Service Medal with reference to an incident which took place in the Secretariat and other offices at Patna on 13-1 -1991. On 8-7-1992, he was again recommended for the President's Fire Service Medal with respect to another incident of 21-9-1991. THE petitioner was awarded Fire Service Medal for meritorious service by the President of India on the eve of 1992 Independence Day which was notified on 29-8-1992. He was granted another President's Fire Service Medal for distinguished service on the eve of 1994 Independence Day. On 27-9-1994, the petitioner filed representation for out of turn promotion on the post of Assistant State Fire Officer, a post equivalent in rank to Inspector of Police, under Rule 660-C of the Bihar Police Manual. THE claim was rejected by the Promotion Committee/DG Board on 27-7-1995 and the same was communicated to the petitioner on 8-9-1995. On 6-9-1997, the petitioner was again awarded President's Fire Service Medal for gallantry. At this stage, he came to this Court in CWJC No. 4521/98 challenging the said decision of the DG Board dated 27-7-1995/8-9-1995. It is relevant to mention here that in the said decisions the DG Board had taken the view that the provisions of Rule 660-C of the Police Manual are not applicable to the members of B has Fire Service. By judgment dated 27-6-2000, this Court set aside the said decision of the DG Board holding that by virtue of Rule 11 of the Bihar Fire Service Rule, 1955, framed under Section 23 of the Bihar Fire Service Act 1948 read with the proviso to Article 309 of the Constitution of India, the provisions of Bihar Police Manual are applicable mutatis mutandis to the members of the Bihar Fire Service in respect of matters not covered by the Rules, i.e., Bihar Fire Service Rules, 1955 or the Rules made by the IG of Police under Section 22 of the Bihar Fire Service Act. THE petitioner filed representation, annexing copy of the judgment, to re-consider his case for out of turn promotion. On 20-12-2000, the DG Board considered his case in the light of the said judgment of this Court and decided to grant out of turn promotion to the post of Assistant Divisional Fire Officer, equivalent in rank to Inspector of Police, with effect from 8-9-1995, i.e., the date of the act of gallantry. It is relevant to mention here that the petitioner had been promoted to the said post of Assistant Divisional Fire Officer, on merit, and according to seniority, on 5-7-1996. On 5-1-2001, consequential order was issued on behalf of the DG Board modifying/shifting the date of promotion, on the post of Assistant Divisional Fire Officer, From 5-7-1996 to 8-9-1995. THE order stated that his seniority in service will be determined accordingly. On 15-1 -2001, the petitioner filed representation for his promotion to the post of Divisional Fire Officer, a post equivalent in rant to Deputy Superintendent of Police, on the basis of said out of turn promotion on the post of Assistant Divisional Fire Officer, with effect from 8-9-1995, pointing out that he had completed the period of 'Kalawadhi' of five years on the post on 8-9-2000. Some time after, on 9-7-2001 the provisional seniority list of the Assistant Divisional Fire Officers, was circulated by the State Fire Service Headquarters wherein the petitioner was placed at Serial No. 2 below the respondent who was placed at Serial No. 1. THE petitioner objected to his being placed below the respondent. On 27-7-2001 the Deputy Inspector-General-cum-Deputy Commandant General, Homeguards and Fire Service sought guidance from the Police Headquarters. By communication dated 7-8-2001, the office of the Director-General and IG of Police, Bihar (in short, the DGP) informed the DIG-cum-Deputy Commandant General, Homeguards and Fire Service that by virtue of his out of turn promotion on the post of Assistant Divisional Fire Officer with effect from 8-9-1995 the petitioner had become senior to the respondent and their inter se seniority may accordingly be fixed. Disagreeing with the said opinion, the Departmental Board vide impugned decision dated 23-8-2001 held the respondent to be senior to the petitioner. Objection of the petitioner to the provisional seniority list thus was rejected. Consequential order was passed circulating the final gradation list on 3-9-2001 which is the other order innpugned in this case, as noticed at the outset.

(3.) SHRI K.K. Mandal, learned Counsel for the respondent No. 7, submitted that the out of turn promotion is fortuitous and compassionate in nature and cannot be treated at par with merit promotion and, in any view, does not give accelerated seniority in service. He relied on Chandradeo Singh v. Bhojpur, Rohtas Gramin Bank and Ors. 2001 (2) PLJR 575. SHRI A.B. Sinha, SC X, appearing for the State submitted that out of turn promotion also confers corresponding seniority on the person concerned. The petitioner is thus entitled to be treated as senior to the respondent.