Supreme Court of India (Division Bench (DB)- Two Judge)

AA, CIVIL APPEAL NO.3906 OF 2009 Judgment Date: Nov 27, 2014

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.3906 OF 2009

M.P. Singh Bargoti                                  .....Appellant

      Versus

State of Madhya Pradesh & Anr.                      .....Respondents


                               J U D G M E N T


SHIVA KIRTI SINGH, J.

This appeal is directed against final judgment and  order  dated  15.10.2007
passed in Writ Petition No.4449 of 2001 whereby the  High  Court  of  Madhya
Pradesh dismissed the  writ  petition  of  the  appellant  and  declined  to
interfere with  order  of  the  M.P.  Administrative  Tribunal  (hereinafter
referred to as 'the Tribunal') dated 26.02.2001  passed  in  O.A.No.1122  of
2000.
The simple case of the appellant is that he has been  deprived  of  benefits
of timely consideration and promotion from the  post  of  Inspector  to  the
post of Deputy Superintendent of Police although there was  a  direction  of
the Tribunal in cases filed by others and  disposed  of  on  15.06.1993  and
03.11.1997 and also in a case filed  by the appellant along with  29  others
bearing O.A. No.893 of 1997 allowed  on  11.03.1998  for  preparation  of  a
Combined Gradation List for promotion to the post of  Deputy  Superintendent
of Police and to include in it the names of all who were petitioners  before
the Tribunal.
Since the order of the Tribunal dated 11.03.1998 was not challenged  by  any
one and attained  finality,  the  case  of  the  appellant  deserves  to  be
considered on the basis of facts noted in paragraph 1 of that order and  the
relief granted in paragraphs 8 and 9 of that order.  They are as follows :
"The applicants in this case are inspectors in the Finger  Print  Branch  of
the Police Department, which is an executive Branch of the said  department.
 The applicants have averred that for promotion to the next higher  post  of
Deputy Superintendent of Police the  respondents  have  from  time  to  time
issued a combined gradation list of inspectors of the executive branches  of
the department.  The applicants' contention is that the  combined  gradation
list issued for the year 1996 does not include their names in it.   In  this
connection they have submitted that all the persons belonging to the  finger
print branch have not been included in the  combined  gradation  list.   The
applicants' contention is that the  non-inclusion  of  their  names  in  the
combined gradation list is in violation of the provisions of Madhya  Pradesh
Police (Gazetted Officers) Recruitment Rules 1987 - '1987 Rules'  for  short
- and also the directions of the Tribunal given  in  order  dated  15.6.1993
passed  in  O.A.No.93/92  placed  at  Annexure  A-1,  as  also  order  dated
3.11.1997 passed in  O.A.No.834/93.   The  applicants'  submission  is  that
meeting of the departmental promotion committee is going to be held  shortly
on the basis of a combined gradation list excluding  their  names  and  they
will therefore, thus be deprived of consideration for  promotion  illegally.
The applicants have, therefore, prayed for a direction  to  the  respondents
to include their names as also names  of  other  inspectors  of  the  Finger
Print Branch in the combined gradation list of inspectors of  the  executive
branches and to consider the cases of their promotions on the basis of  such
a combined gradation list.  By way of interim relief it was directed by  the
Tribunal that the  meeting  of  the  departmental  promotion  committee  for
considering promotion to the post of Deputy Superintendent of Police may  be
held but no orders promoting anyone out  of  the  select  list  so  prepared
shall be issued till the disposal of this case.

.... .... .... ....
.... .... .... ....

8.    In view of the above discussion the petition deserves to  be  allowed.
The  applicants  shall  be  included  in  the  combined  gradation  list  of
Inspectors for consideration of their cases for promotion  to  the  post  of
Deputy Superintendent of Police in accordance with  the  inter-se  seniority
position which may be assigned to them in such a list.  If a meeting of  the
Departmental Promotion Committee has been held already  without  considering
the claims of the applicants then the recommendations of  that  departmental
promotion committee shall not be acted upon  and  a  fresh  meeting  of  the
departmental  promotion  committee  shall  be  held  keeping  in  view   the
directions given herein.

9.    Cost of the petition amounting to Rs.1500/- shall also be paid to  the
applicants by the respondents."

It is also not in dispute that there was a subsequent  adjudication  by  the
Tribunal  of  a  similar  dispute  wherein  there  was  an   opposition   to
preparation of Combined Gradation List for Inspectors of  other  disciplines
like  Finger  Print,  Motor  Transport  etc.   The   appellant   and   other
beneficiaries of order of the Tribunal dated 11.03.1998 were not parties  to
those cases when such subsequent order  dated  22.06.1999  was  passed.   In
paragraph 13 of this order, the Tribunal  re-affirmed  the  correctness  and
validity of the earlier order of the Tribunal dated 11.03.1998,  upheld  the
Combined Gradation List under challenge and  examined  various  new  aspects
raised in the subsequent case leading to issuance of  additional  directions
to  amend  the  Rules.   The  Madhya  Pradesh  Police  (Gazetted   Officers)
Recruitment Rules 1987 were amended by the State  Government  on  26.05.2000
and in view of the amended rules, fresh Gradation List  was  prepared  which
was admittedly only for Inspectors  who  were  still  in  service  and  were
required to be governed by the amended Rules of 2000.  It  is  also  not  in
dispute that the appellant did not challenge the Gradation List of the  year
2000 because his claim was only on the basis of  unamended  rules  which  as
per final judicial pronouncement noticed earlier, required publication of  a
Combined Gradation List for promotion to the post of  Deputy  Superintendent
of Police.  Admittedly, appellant retired on 31.03.1998  while  holding  the
post of Inspector.
The appellant preferred a Misc. Application bearing No.113  of  1998  before
the Tribunal which was heard along with another  O.A.  bearing  No.1122/2000
filed by other Inspectors.  The Tribunal  dismissed  the  applications  vide
order dated 26.02.2001 by holding that the appellant  failed  to  show  that
the order of the Tribunal dated 11.03.1998 had  been  ignored  or  violated.
The Tribunal further took a technical stand that no person was impleaded  as
a party whose promotion could cause  a  grievance  to  the  appellant.   The
appellant challenged the order of the Tribunal dated  26.02.2001  through  a
writ petition which has been dismissed  by  the  order  under  appeal  dated
15.10.2007.  The High Court relied upon the  observations  of  the  Tribunal
and came to an opinion that in the absence of any allegation regarding  non-
consideration in  the  Departmental  Promotion  Committee,  supersession  by
juniors as well as absence of any challenge to the orders  of  the  Tribunal
passed in O.A.Nos.817 and 818 of 1998, the  writ  petition  deserved  to  be
dismissed as misconceived and meritless.
In the course of hearing  of  this  appeal,  on  25.06.2014,  we  noted  the
submissions advanced by learned counsel for the appellant.  The  order  runs
as follows :
      "We have heard arguments in extenso.
      Learned counsel for the appellant's submission  is  that  despite  the
directions passed on 15.6.1993  and  3.11.1997,  a  combined  list  was  not
prepared.  Meanwhile, persons junior to the petitioner were  promoted,  such
as Mr. V.N. Dubey at serial no.42 in Annexure P9 before the writ  court  who
had been promoted with effect  from  29.5.1997.   It  is  prayed  that  even
though the petitioner has superannuated on 31.1.1998, he would at  least  be
entitled to pensionary benefits computed from the date on which the  persons
junior  to  him  in  the  service  were  promoted  and  to   simplify   this
determination, the Appellant has referred to Mr. V.N. Dubey.

      It is in these circumstances that learned counsel for  the  respondent
prays for an adjournment to obtain instructions on the veracity of  Annexure
P9.

      Re-notify for this purpose  only  on  7th  August,  2014  for  further
hearing."

 The date of superannuation of the appellant suffered from  a  typographical
error in the  aforesaid  order.   That  date  is  31.03.1998.   Annexure  P9
available before the writ court showed that appellant was at  serial  no.12,
much higher to  Mr.  V.N.  Dubey  at  serial  no.42.   The  reason  for  not
promoting the appellant and some others like him appointed on  the  post  of
Inspector on 29.05.1981 was indicated to be non-inclusion  in  the  Combined
Gradation List.  Mr. V.N. Dubey appointed on the post of Inspector  in  1983
has been  admittedly  promoted  w.e.f.  29.05.1997  and  on  that  date  the
appellant was still in service.
When the matter was listed for further hearing on  18.11.2014,  the  learned
counsel for the respondents confirmed  that  Annexure  P9  is  an  authentic
document and the  particulars  noted  above  on  its  basis  are  not  under
dispute.  However, learned counsel  for  the  respondents  again  sought  to
defend the stand of the State on the  ground  that  Mr.  Dubey  belonged  to
another Section  and  not  to  Finger  Print  Section  and,  therefore,  his
promotion made subsequently after the superannuation of  the  appellant  but
from an earlier date cannot furnish any cause of  action  to  the  appellant
for claiming that if not actual promotion, he should  be  given  benefit  of
notional promotion to that post at  least  for  the  purpose  of  pensionary
benefits.
We have carefully considered the rival contentions, the relevant  facts  and
the prevailing rules governing promotion at the relevant time.  There is  no
dispute that despite directions passed since 15.06.1993 by the Tribunal  and
lastly reiterated in the case of the appellant  on  11.03.1998,  a  Combined
Gradation List was not prepared at the appropriate time and ultimately  when
it was prepared to show compliance with the order of the  Tribunal,  it  was
never acted upon because the  subsequent  directions  of  the  Tribunal  for
amendment of rules  was  preferred  by  the  State  and  the  claim  of  the
appellant was never considered by the Departmental Promotion Committee  till
he was in service or even thereafter when person like  Mr.  V.N.  Dubey  who
was junior to the appellant in the Combined Gradation  List  was  considered
allegedly on the basis of another subsequent  gradation  list  and  promoted
with effect from a date when the appellant was still in service.
In the aforesaid circumstances, in our considered  view,  the  Tribunal  and
the High Court erred in law as well as on facts in  denying  relief  to  the
appellant.  The position would have been  different  if  appellant's  junior
had been promoted from  a  date  subsequent  to  his  superannuation.   Then
appellant would have  suffered  only  on  account  of  passage  of  time  or
innocuous delay but in  the  present  facts  he  has  suffered  hostile  and
arbitrary discrimination vis--vis a junior.   The  order  under  appeal  is
therefore  set  aside.   Since  the  appellant  was  in  service  only  till
31.03.1998, he is held entitled to notional promotion to the post of  Deputy
Superintendent of Police w.e.f. 29.05.1997  till  31.03.1998.   He  will  be
deemed to have superannuated on that post and shall be given  all  the  post
retirement benefits by re-calculating the same on the premise that  he  held
the post of  Deputy  Superintendent  of  Police  from  29.05.1997  till  his
superannuation on 31.03.1998.  The revised pensionary benefits  as  well  as
arrears on that account should be made available to  the  appellant  at  the
earliest and in any case within three months from the date  of  this  order.
The appellant is held entitled to a consolidated cost of  Rs.50,000/-  which
should also be paid along with other  benefits  within  the  time  indicated
above.  The appeal is allowed to the aforesaid extent.

                       ...........................................J.
                                              [VIKRAMAJIT SEN]


                       ............................................J.
                                           [SHIVA KIRTI SINGH]

New Delhi.
November 27, 2014.

ITEM NO.1               COURT NO.8               SECTION IV

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal  No(s).  3906/2009

M.P.SINGH BARGOTI                                  Appellant(s)

                                VERSUS

STATE OF MADHYA PRADESH & ANR.                     Respondent(s)


Date : 27/11/2014 This appeal was called on for hearing today.

CORAM :
         HON'BLE MR. JUSTICE M.Y. EQBAL
         HON'BLE MR. JUSTICE SHIVA KIRTI SINGH
For Appellant(s)
                     Mr. Vishal Arun,Adv.

For Respondent(s)
                     Mr. C. D. Singh,Adv.


          UPON hearing the counsel the Court made the following
                             O R D E R

            T

(Sukhbir Paul Kaur)                         (Indu Pokhriyal)
   Court Master                               Court Master