SANJAY KUMAR SINHA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) PETITIONER was appointed as Fireman on 7.6.1990. Vide memo No. 939 dated 15.9.2001 applications were invited from the persons who were desirous to go for the training for Sub Officers course duly conducted at Nagpur. Officials below the age of 50 years alone were asked to apply in the prescribed form. Petitioner is said to have applied for the aforesaid course. Even the financial liability of the course was also undertaken by the State Government as is evident from the memo No. 987 dated 25.9.2001. Petitioner was asked to file another application form, which was submitted and he was deputed for the course. He has successfully completed the course and was posted in the Central Store, Nepal House, Doranda, Ranchi as Fireman. He was later posted to Fire Brigade Service School, Dhurwa, Ranchi for imparting training to the officers in the department. Vide memo dated 16.10.2002, it was claimed that he has imparted training to number of Fireman/Leading Fireman/Driver. Vide memo No. 399 dated 16.3.2004, a list of eligible officials was prepared and published asking them to appear in the test to be conducted by the department for giving promotion to them to the post of Sub Officer. A test was conducted on 2.4.2004. Grievance of the petitioner is that he has been excluded from consideration for promotion to the post of Sub Officer as his name is not figuring in the aforesaid list prepared for consideration for promotion. Petitioner has accordingly approached this Court seeking a direction for quashment of letter dated 16.3.2004, whereby officers were asked to participate in the selection process. List of as many as 31 candidates in the general category and 15 candidates in the scheduled tribe and scheduled caste category was prepared. Admittedly, petitioner's name is not included in the list. During pendency of this petition, selection has been made for the purpose of promotion and consequently promotions have been made. Under these circumstances, petitioner has filed supplementary affidavit seeking amendment of the writ petition. Vide supplementary affidavit dated 17.1.2006, a prayer is made in para -4 to grant promotion to the petitioner to the post of Sub -Officer with all consequential benefits. Only ground for challenging the impugned letter and consequential promotion is that petitioner has successfully completed the Sub -Officers course from the National In re Service College, Nagpur and on the basis of specialized qualification acquired by him he is entitled to be promoted to the post of Sub -Officer.

(2.) RESPONDENTS in their affidavit has placed on record the draft Rules giving hierarchy of the service. There is a dispute between the parties regarding the enforcement of the draft Rules. Be that as it may, at least the hierarchy in the service has to be followed irrespective of the fact whether the Rules have been approved by the Government or not. In so far the hierarchy in the service is concerned, a Fireman is required to be promoted to the post of Leading Fireman and Leading Fireman to the post of Sub -Officer. It is not in dispute that the petitioner is holding substantive rank of Fireman although he has been granted higher scale under Assured Career Progression Scheme of the State vide letter dated 4.3.2005. Any promotion under the Assured Career Progression Scheme is to remove stagnation and place a person in a higher scale but it has no concern with the substantive promotion to the next higher category. The substantive rank of the employee remains the same. For any regular promotion in the hierarchy it is a substantive rank which is relevant not pay scale and even if higher rank is allowed to a person under the Scheme for removal of the stagnation it is personal to the incumbent and vanishes on his retirement.

(3.) AS is evident from the aforesaid Rule that petitioner is at Sl. No. (iv) and he is seeking promotion to the post indicated at Sl. No. (ii) i.e. two steps above. Learned Counsel appearing for the petitioner has tried to impress upon the Court that under Rules the post in the hierarchy of the services is equated to the posts indicated in the police manual and hence all the promotions are required to be made as per the police manual. He has relied upon the Rules 1271, 683 and 685. Even in Rule 1271 hierarchy of fire services is indicated. Position remains the same as in the notification dated 19.7.1955 as also in the draft Rules placed on record by the respondents. Rule 685 provides for promotion of Constables to the post of Assistant Sub Inspectors on the basis of training from the Police Training Schools. This Rule cannot be applied to the members of the Fire Service for purposes of promotion particularly when the separate hierarchy is prescribed for the members of Fire Service. Respondents have also stated that the petitioner is at S1. No. 148 in the seniority list of Fireman and not even a single person junior to him has been promoted to the post of Sub -Officer. Needless to say that even if acquisition of specialized course, from the National Fire Service College, Nagpur is an essential condition for promotion that does not mean that a person can get promotion Two steps higher in the hierarchy of service ignoring the seniority merely because he has acquired the specialized qualification. Apart from that when petitioner was deputed for the post he had given an undertaking on 12.10.2000 specifically stating therein that he will not claim promotion contrary to Rules on the basis of his qualification to be acquired by him. Even in that undertaking, it clearly indicated that petitioner is not entitled to promotion contrary to Rules. I have not been able to find out anything on record or even the Rules whereunder petitioner is entitled 10 be considered for promotion to the post of Sub -Officer merely on account of qualification and ignoring seniority for promotion to the higher category. There is another reason to deny the relief to the petitioner the selectees/promotees whose promotion is sought to be challenged are not parties in this petition.