Vinod Kumar Barsaiya vs The State of Madhya Pradesh

This is an appeal under Section 2(1) of M.P. (Uchcha Nyayalaya Khand Peeth Ko Appeal) Adhiniyam, 2005 calling in question tenability of an order dated 13.12.2012 passed by the Writ Court in W.P. No.5197/2009 in the matter of granting seniority to the appellant in the cadre of Sub Inspector for the period when the appellant was working in the Special Branch, this appeal has been filed as challenge made to denial of seniority has been rejected by the Writ Court.

Appellant was appointed on 26.8.1982 and was promoted as an Assistant Sub Inspector in the Special Branch. On 14.5.1997 appellant on his own request sought transfer to the District Police Force. Application submitted by the appellant was considered and vide order dated 7.6.1997 the petitioner was transferred to the District Police Force. After transfer of the petitioner to the District Police Force vide order dated 16.10.1997 issued by the State Government a separate Special Branch was constituted with a separate cadre and a separate gradation list for employees working in the Special Branch was formulated. In view of this the appellant submitted an application on 15.5.1999 and wanted to go back to the Special Branch as he would have gain some benefit of seniority in this Branch which was now constituted separately on 16.10.1997. It seems that the option of the appellant was not considered and nothing was done. On the contrary the appellant continued to work in the District Establishment wherein he was granted promotion on the post of Sub Inspector in the District Establishment vide order dated 29.12.2010 i.e. after a period of 11 years. He accepted this promotion and started working in the District Establishment. In the meanwhile, just before grant of promotion on 29.12.2010 he filed a writ petition claiming a right to be sent back to the Special Branch but after the promotion was granted in the District Establishment, he wanted retrospective promotion at par with his juniors who are working in the Special Branch. All these contentions having been rejected, the appellant filed writ petition and claimed parity with one Shri Jayant Bandopadhyay in whose case an order was passed by a Bench of this Court in W.P. No.24078/2003 granting seniority to Shri Jayant Bandopadhyay. Petitioner''s case was examined in the light of case of Jayant Bandopadhyay and it was found that Shri Bandopadhyay continued to work in Special Branch, whereas the appellant was working in the District Police Force for a period of more than 10 years. He never worked in the Special Branch after constitution of a separate cadre and after submitting his representation and option on 7.5.1999 as he did not take any action, the Writ Court dismissed the writ petition. The Writ Court has considered the contention of the appellant in the following manner :-

"5. I have considered the submissions made by learned counsel for the parties. In view of the order dated 15.5.2008 passed in writ petition namely W.P. No.5406/2008 filed by the petitioner, the only question which arises for consideration is whether the petitioner is entitled to be given the benefit of the judgment passed in W.A. No.243/2007. Admittedly, the petitioner submitted an application on 10.7.1996 for transfer to District Police Force. Thereupon vide order dated 7.6.1997 the petitioner was transferred to the District Police Force. The petitioner submitted conditional option for joining the Special Branch on 15.5.1999. Thereafter the petitioner did not take any action except for submitting the representations for inclusion of his name in the gradation list of Special Branch. The petitioner filed W.P. No.5406/2008 in the year 2008 which was disposed of with the direction to the competent authority to consider whether the petitioner is entitled to be given the benefit which was granted to the petitioner in Jayant Bandopadhyay (supra). The respondents have examined the case of the petitioner in detail and have found that the case of the petitioner is different than that of Jayant Bandopadhyay. It has been held that the aforesaid Jayant Bandopadhyay has remained posted throughout in the Special Branch whereas the petitioner on his own request was posted at District Police Force for a period of ten years and has never worked in Special Branch after its constitution as a separate cadre. Therefore, the case of the petitioner is different than Jayant Bandopadhyay. It is pertinent to mention here that during pendency of the writ petition, the petitioner has been promoted to the post of Sub Inspector in District Police Force. The petitioner has accepted the order of promotion and is working as Sub Inspector in District Police Force. Therefore, now the petitioner cannot be permitted to turn around and to claim the promotion with retrospective effect in Special Branch. The conduct of the petitioner, in the facts of the case, disentitles him to any relief in exercise of extraordinary jurisdiction of this Court under Article 226 of the Constitution of India."

Even though Shri A. K. Singh tried to emphasize that the appellant was entitled to grant of seniority in the Special Branch as he was transferred to the Special Branch on administrative consideration and he had submitted an option for going back to the Special Branch on 7.5.1999. The fact remains that the appellant was transferred from the Special Branch to the District Police Force on his own request when he submitted the application on 14.5.97 and thereafter after 1999 till filing of the petition in the year 2009 appellant kept quite. That apart, he has only claim parity with one Jayant Upadhyay. Learned Single Judge in para 5 as reproduced herein above has considered the matter and has clearly indicated that case of Jayant Bandopadhyay and petitioner are clearly different.

In view of the reasonable finding recorded by the learned Single Judge, we see no reason to interfere into the matter.

Appeal is therefore dismissed.