DIN BANDHU MAHARAJ Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and the State, who says that he filed a counter affidavit in the matter placing on record the order bearing Memo No. 3847/P-2 dated 19.7.2006, whereunder request of the petitioner for promotion on the post of Inspector, Dy.S.P. has been rejected ignoring the contents of order bearing Memo No. 3547/P-2 dated 25.6.1997, Annexure-3, whereunder petitioner was allowed seniority as Sub-Inspector of Police with effect from 16.2.1979. In the light of the aforesaid submission report was called for from the Filing Section of the Court but from office notes dated 22.11.2010 it is evident that no counter affidavit has been filed in the matter, which was again confirmed by the Filing Section even today. In the circumstances the matter is being heard without the benefit of the counter affidavit.

(2.) Petitioner was appointed as a Police Constable on 4.7.1970 after completion of one year successful service he became Writer Constable acquired PTC Training at Hazaribagh and promoted as Assistant Sub-Inspector of Police with effect from 10.07.1975 and transferred to C.I.D., Crime Branch. In the C.I.D., Crime Branch petitioner was asked to officiate as Sub-Inspector of Police with effect from 16.2.1979. Such officiation was allowed to the petitioner without considering the seniority of his other colleagues and cancelled under orders dated 30.3.1991, 2.4.1991, which the petitioner and others challenged by filing C.W.J.C. No. 2686 of 1991 and other analogous matters, which was disposed of under judgment dated 8.5.1996, Annexure-2 observing as follows:

(3.) By filing this writ petition, submission is being made that others appointed as Assistant Sub-Inspector of Police until 30.7.1981 were considered for promotion and appointed as Inspector under order bearing Memo No. 193/P-1 dated 15.1.2004. Annexure-7 but petitioner though allowed seniority as Sub-Inspector of Police with effect from 16.2.1979 was not considered along with other Sub-Inspectors appointed until 30.7.1981 for promotion/appointment as Inspector. Learned counsel for the petitioner in this connection submitted that once the State-respondents granted the petitioner seniority as Sub-Inspector of Police with effect from 16.2.1979, they are duty bound to consider the case of the petitioner for promotion as Inspector on the basis of his continuous officiation on the post of Sub-Inspector of Police with effect from 16.2.1979 and as for the present petitioner has retired, he is required to be reimbursed the arrears of difference of salary of the promoted post. In support of the aforesaid plea, learned counsel for the petitioner has relied on the judgment of the Constitution Bench of the Supreme Court in the case of Madan Mohan Pathak and another V/s. Union of India, 1978 AIR(SC) 803 and submitted that as the mandamus issued by the High Court dated 8.5.1996. Annexure-2 has become final, on the basis of which seniority of the petitioner as Sub-Inspector of Police has already been reckoned with effect from 16.2,1979 under order dated 25.6.1997. Annexure-3, the State-respondents cannot be allowed to violate the mandamus issued by the High Court. In the case of Madan Mohan Pathak Hon'ble Supreme Court considered the effect of the High Court order recognizing the right of the Class-Ill, IV employees of the L.I.C. to receive bonus under Section 11(1) of the Life Insurance Corporation Act, 1956 and the effect of the subsequent enactment, namely, Life Insurance Corporation (Modification of Settlement) Act, 1976 denying the rights of the Class-Ill, IV employees of the L.I.C. to receive bonus and held that the rights of the citizen against the State which has become basis of a mandamus from the High Court could not be taken away. In this connection, learned counsel for the petitioner has also relied on the another Constitution Bench judgment of the Hon'ble Supreme Court in the case of The Direct Recruit Ciass-II Engineering Officers Association and others V/s. State of Maharashtra, 1990 AIR(SC) 1607 paragraph 44(B), which is quoted hereinbelow for ready reference: