M.P. SINGH BARGOTIversusSTATE OF MADHYA PRADESH & ANR.

••                  (2014) 11 S.C.R. 211


                    M.P. SINGH BARGOTI                          A
                              v.
          STATE OF MADHYA PRADESH & ANR.
             (Civil Appeal No. 3906 of 2009)
                    NOVEMBER 27, 2014
                                                                B
     [VIKRAMAJIT SEN AND SHIVA KIRTI SINGH, JJ.]

       Service Law: Promotion from the post of Inspector to
 Deputy Superintendent of Police - Tribunal's direction in
 cases fifed by others and also in case fifed by the appellant c
 along with others for preparation of a Combined Gradation List
 for promotion to the post of Deputy Superintendent of Police
 and to include names of all those who were petitioners before
  the Tribunal - In subsequent case also, the Tribunal re-
  affirmed the said directions passed in earlier case and upheld 0
 the Combined Gradation List - Recruitment Rules amended
  and in view thereof fresh Gradation List prepared which was
  admittedly only for Inspectors still in service - Appellant's
 junior promoted w.e.f. the date when appellant was stiff in
  service - Appellant did not challenge the Gradation List of E
  2000 because his claim was only on the basis of unamended
  rules - Appellant retired in 1998 while holding the post of
  inspector - Application by appellant dismissed by Tribunal
 - High Court upheld the same - Held: Despite directions
 passed by Tribunal, a Combined Gradation List was not
 prepared at the appropriate time and ultimately when it was F
  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 till
  he was in service - Appellant's junior promoted w.e.f date G
 when the appellant was still in service - Tribunal and the High
  Court erred in denying relief to the appellant - Appellant
 entitled to notional promotion w.e.f date his junior was

                             211                                H
    212      SUPREME COURT REPORTS            [2014] 11 S.C.R.


A promoted - Madhya Pradesh Police (Gazetted Officers)
                                                                 •
  Recruitment Rules, 1987.
          Allowing the appeal, the Court
         HELD: 1. The reason for not promoting the appellant
B   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. One 'VND'
    appointed on the post of Inspector in 1983 was
    admittedly promoted w.e.f. 29.05.1997 and on that date
c   the appellant was still in service. 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
0
    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
E   thereafter when person like 'VND' 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. The Tribunal and the High
F   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
G    innocuous delay but in the present facts he has suffered
    hostile and arbitrary discrimination vis-a-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
H    Superintendent of Police w.e.f. 29.05.1997 till 31.03.1998.
•   M.P. SINGH BARGOTI v. STATE OF MADHYA
                  PRADESH
He will be deemed to have superannuated on that post
                                                         213


                                                                A
and shall be given all the post retirement benefits by re-
calculating the same. [Paras 7, 9 and 10] [217-F-G; 218C-
H; 219-A]                                      .

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.             B
3906 of 2009.

     From the Judgment & Order dated 15.10.2007 of the High
Court of Judicature of Madhya Pradesh at Jabalpur in Writ
Petition No. 4449 of 2001.
                                                                c
    Shyam Moorjani, Shantanu Bhardwaj, Vishal Arun for the
Appellant.                              '

    Sunny Chowdhry, Mishra Saurabh, Ankit Lal for the
Respondent.                                                     D

    The Judgment of the Court was delivered by

     SHIVA KIRTI SINGH, J. 1. 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       E
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.
                                                                F
      2. 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 G
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.
                                                                 H
A
    214       SUPREME COURT REPORTS                 [2014] 11 S.C.R.


         3. 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 :
B
          "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
c         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
D         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 grada,tion list is in violation of the provisions of
          Madhya Pradesh Police (Gazetted Officers) Recruitment
E         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.9.3/92 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
F         promotion committee is going to be held shortly on the
          basis of a combined gradation list excluding their names
          and they will therefcre, thus be deprived of consideration
          for J.11omotion illegally. The applicants have, therefore,
          prayed for a direction to the respondents to include their
G         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 cif
          their promotions on the basis of such a combined
          gradation list. By way of interim relief it was directed by
H         the Tribunal that the meeting of the departmental promotion
•   M.P. SINGH BARGOTI v. STATE OF MADHYA
         PRADESH [SHIVA KIRT! SINGH, J.)
                                                            215


    committee for considering promotion to the post of Deputy
    Superintendent of Police may be held but no orders
                                                                    A

    promoting anyone out of the select list so prepared shall
    be issued ti.II the disposal of this case.

                                                                    B


    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      C
    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         D
    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.                                                   E

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

     4. It is also not in dispute that there was a subsequent
adjudication by the Tribunal of a similar dispute wherein there     F
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               G
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        H
                                                                     )
A
    216     SUPREME COURT REPORTS               [2014] 11 S.C.R.


  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
B 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
c List for promotion to the post of Deputy Superintendent of
  Police. Admittedly, appellant retired on 31.03.1998 while
  holding the post of Inspector.

        5. The appellant preferred a Misc. Application bearing
  No.113 of 1998 before the Tribunal which was heard along with
0
  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
E 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
F 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
G in O.A.Nos.817 and 818of1998, the writ petition deserved to
  be dismissed as misconceived and meritless.

        6. 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 :
H
•   M.P. SINGH BARGOTI v. STATE OF MADHYA
         PRADESH [SHIVA KIRT! SINGH, J.]
    "We have heard arguments in extenso.
                                                           217


                                                                   A

          Learned counsel for the appellant's submission is
    that despite the directions passed on 15.6.1 gg3 and
    3.11.1gg7, a combined list was not prepared. Meanwhile,
    persons junior to the petitioner were promoted, such as B
    Mr. V.N. Dubey at serial no.42 in Annexure pg before the
    writ court who had been promoted with effect from
    2g.5.1 gg7, It is prayed that even though the petitioner has
    superannuated on 31.1.1 gg8, he would at least be entitled ·
    to pensionary benefits computed from the date on which C
    the persons junior to him in the service were promoted and
    to simplify this determination, the Ap'pellant has referred
    to Mr. V.N. Dubey.

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

           Re-notify for this purpose only on 7th August, 2014
    for further hearing."
                                                                   E
     7. The date of superannuation of the appellant suffered
from a typographical error in the aforesaid order. That date is
31.03.1 gg8. Annexure pg 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        F
Inspector on 29.05.1981 was indicated t,o be non-inclusion in
the Combined Gradation List. Mr. V.N. Dubey appointed on the
post of Inspector in 1g83 has been admittedly promoted w.e.f.
29.05.1 g97 and on that date the appellant was still in service.
                                                                   G
     8. When the matter was listed for further hearing on
18.11.2014, the learned counsel for the respondents confirmed
that Annexure pg 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     H
A
    218       SUPREME COURT REPORTS                [2014) 11 S.C.R.

  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
B promotion, he should be given benefit of notional promotion to
  that post at least for the purpose of pensionary benefits.

        9. We have carefully considered the rival contentions, the
  relevant facts and the prevailing rules governing promotion at
c 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
D 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.
E 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 effec.1 from
  a date when the appellant was still in service.

          10. In the aforesaid circumstances, in our considered view,
F 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
G but in the present facts he has suffered hostile and arbitrary
  discrimination vis-a-vis a junior. The order under appeal is
  therefore set aside. Since the appellant was in servic!'! 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
H 31.03.1998. He will be deemed to have superannuated on that
•    M.P. SINGH BARGOTI v. STATE OF MADHYA
          PRADESH [SHIVA KIRTI SINGH, J.]
                                                             219


post and shall be given all the post retirement benefits by re-     A
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   B
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. Tbe appeal is allowed to the aforesaid extent.

Devika Gujral                                     Appeal allowed.
                                                                    c