Rajinder Kumar Vs State of Hp and Others

For the petitioner: Mr. Virender Verma, Advocate. For the respondents: Mr. Pushpinder Jaswal, Additional Advocate General with Mr. Rajat Chauhan, Law Officer, for respondents No.1 to 3.

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Mr. Ashwani Dhiman, Advocate, for respondent No.4.

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Ajay Mohan Goel, Judge (Oral )

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By way of this writ petition, the petitioner has, inter

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alia , prayed for the following reliefs:-

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“i) That respondents No.1 to 3 may be directed to conduct an inquiry pertaining to the case FIR No.50 of 2014 dated 08.04.2014 registered in Police Station Boileauganj to the effect that why it has not been put in before the learned Court No.5 Shimla by the then IO (Investigating Officer) respondent No.4 and why false Road Certificate has been prepared by him. An appropriate action may be ordered to be taken against respondent No.4 for concealing the material facts of the case FIR as per law and rules.

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ii) That respondents No.1 to 3 may be directed to promote the petitioner as Honorary Assistant Sub Inspector from 12.07.2021, the date when his juniors/counterparts have been promoted/designated to the post of Honorary Assistant Sub Inspector of Police with all consequential benefits with interest.”

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Mr. Virender Verma, learned counsel appearing for

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the petitioner submits that as per his instructions, the petitioner is not pressing relief No.1.

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Heard learned counsel for the petitioner as well as learned Law Officer.

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Brief facts necessary for the adjudication of the present petition are that the petitioner was initially recruited as a Constable on 8.09.1988. He was promoted as Honorary Head Constable in the year 2013. His grievance is that, when, in terms of Annexure P-1 dated 12.07.2021, an order was passed by the Director General of Police approving the placement of Honorary Head Constables in the rank of Honorary Assistant Sub Inspectors of Police with immediate effect, despite the fact that incumbents junior to the petitioner were reflected therein from Serial No.15 to 17 and from Serial No.56 to 294, the petitioner was ignored. Despite his repeated

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representations in this regard, till the time of the filing of the writ petition, no steps were taken by the Department to rectify the mistake, of not including his name in order passed vide Annexure P-1.

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As per the petitioner, the reason why the petitioner was denied placement in the rank of Honorary Assistant Sub Inspector per se is not sustainable in law. Simply, because there were two FIRs, i.e. FIR Nos.49 of 2014 and 50 of 2014, registered at Police Station (West) Shimla, one at the behest of the petitioner and other at the behest of his landlord, under Sections 341, 323, 504 and 34 of the Indian Penal Code, placement could not have been denied as registration of FIRs cannot be construed to be pendency of criminal proceedings.

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Learned counsel for the petitioner has submitted that it is not in dispute that the FIRs which stood filed against the petitioner were not on account of any act of the petitioner, which could be attributed to his duty, but, it was simply on account of a dispute that was there between him and his landlord. Learned counsel further submitted that lodging of an FIR cannot be construed to be pendency of criminal

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proceedings, because, it is settled law that criminal proceedings enunciate only after a Competent Court of jurisdiction takes cognizance of the offence and thereafter, frames charges thereupon. As per him, as on the date, when the Departmental Promotion Committee met to consider the eligible Honorary Head Constables for placement in the rank of Honorary Assistant Sub Inspectors of Police, there was nothing before the learned Trial Court and in this view of the matter, the act of the respondents of not placing the petitioner in the rank of Honorary Assistant Sub Inspector, when his juniors were placed as such vide Annexure P-1, is bad.

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Accordingly, he prays that the petition be allowed by issuance of a direction to the respondents to place the petitioner also in the rank of Honorary Sub Inspector of Police as per his seniority, when persons junior to him were placed as such.

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Learned Law Officer, on the other hand, has defended the act of the Department of not placing the petitioner as Honorary Assistant Sub Inspector. He has drawn the attention of the Court to Annexure R-1, appended with the

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reply, which is the copy of a Standing Order of 2018, issued by the Office of the Director General of Police and has submitted that one of the eligibility conditions for an Honorary Head Constable to be placed in the rank of Honorary Assistant Sub Inspector is that he or she should not be facing any departmental proceedings or criminal proceedings. As in the case of the petitioner, there was an FIR registered against him in the year 2014, which was still pending, when the order was issued by the Department in the year 2021, the name of the petitioner was rightly not included therein.

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Having carefully gone through the pleadings on record as well as the submissions of the learned counsel for the parties, this Court is of the considered view that the stand of the respondents is not sustainable in law.

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It is not in dispute that in terms of Annexure P-1, in terms whereof, 294 Honorary Head Constables were placed as Honorary Assistant Sub Inspectors of Police, incumbents junior to the petitioner were placed as such.

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It is also not in dispute that in the only reason as to

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why the petitioner was not placed in the rank of Honorary

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Assistant Sub Inspector of Police was that there was an FIR pending against him, which was registered in the year 2014.

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A perusal of the reply filed by the State demonstrates that as in the year 2021, even the challan was not filed before the learned Trial Court.

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Para-4 of the preliminary submissions mentions that as per report dated 08.02.2024 of Station House Officer, Police Station (West) District Shimla, FIR No.50 of 2014, dated 08.04.2014 was registered against the petitioner under Sections 341, 323 and 504 of the IPC. In terms of the said report, vide Road Certificate No. 200/14 dated 27.10.2014, the case was stated to be presented before learned JMIC Court No.5, Shimla for trial, however in reality, charge-sheet was never presented in the learned Court and this fact came to the knowledge of Superintendent of Police Shimla in the month of June, 2023, when the complaint of the petitioner was inquired into.

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It is further mentioned in this Para of the preliminary submissions that on 15.06.2023, the case file of FIR No.50 of 2014 was recovered from the box (trunk) kept in Police Station

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(West), District Shimla. A general diary No.42, dated 15.06.2023, was entered in the Police Station and thereafter, the case was entrusted to ASI Rajinder Pal for further investigation.

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After the completion of investigation on 08.02.2024, case was presented in the Court of learned Chief Judicial Magistrate, Shimla for trial vide Road Certificate No. 44/2024.

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The above admissions, as are there in the preliminary submissions of the reply filed by the respondents, clearly demonstrate that as in the year 2021, there was no criminal proceeding pending against the petitioner before the Trial Court. The FIR, which was registered against the petitioner had not culminated even into filing of a challan before the learned Trial Court, what to speak of framing of charges thereupon by the learned Trial Court in the year 2021.

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This Court by placing reliance upon the judgment of the Hon’ble Supreme Court of India in Union of India and others versus K.V. Janakiraman and others, 1991 (4) SCC 109, in CWP No.3466 of 2021, titled Rajeshwar Dayal Janartha versus State of Himachal Pradesh and others, decided on 22.08.2022,

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has held that a criminal charge can be stated to be pending against an incumbent only when a charge sheet is served upon the accused and which obviously will follow the framing of the charge and by no stretch of imagination it can be held that a prosecution for criminal charge is pending against an employee before the charges are framed.

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At the cost of repetition, it is stated that herein as in the year 2021, the challan was lying in the trunk of the Police Station concerned and it had not seen the light of the day, in these circumstances, by no stretch of imagination, it could be said that there were criminal proceedings pending against the petitioner on account whereof, he could have been denied placement against the post of Honorary Assistant Sub Inspector, when Annexure P-1 dated 12.07.2021, was issued. 19. Accordingly, in view of the above findings, this writ petition is allowed. The act of the respondents of not placing the petitioner as an Honorary Assistant Sub Inspector vide Annexure P-1, dated 12.07.2021, when incumbents junior to him were placed as such, is held to be bad. A mandamus is issued to the respondents to place the petitioner as an

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Honorary Assistance Sub Inspector as from the date when his juniors were placed as such in terms of Annexure P-1, dated 12.07.2021, by assigning him seniority next below his immediate senior and next above the immediate junior. This will be with all consequential benefits including monetary benefits as from the date of placement, because, the placement has been arbitrarily denied to him by the Department for no fault of the petitioner.

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The Court is not issuing any direction for reconsideration of the case of the petitioner by the respondents for his placement as Honorary Assistant Sub Inspector, because, it is not the stand of the respondents in the reply that otherwise also the petitioner was not eligible to be placed as an Honorary Assistant Sub Inspector. Pending miscellaneous applications, if any, also stand disposed of.

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(Ajay Mohan Goel) Judge

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August 13, 2024 (Vinod)

Rajinder Kumar v. State of Hp and Others

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Rajinder Kumar v. State of Hp and Others

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