Madan Kumar Chaturvedi, Member (A)

1. By this O.A., applicant makes a prayer to set aside the order passed by respondent No. 3 vide Memorandum No. HMA(IPS) 145/Pt.IV/246 dated 19.11.2011 and to issue directions to the respondents to give him promotion to the rank of IGP with retrospective effect i.e. 22.2.2006. Mr. Binay Kumar Mishra, IPS appeared in person before us. Our attention was invited on the order dated 19th November, 2011. This order was passed pursuant to the direction rendered by this Tribunal vide its order dated 15.6.2011 passed in O.A. No. 117 of 2011. The prayer of the applicant to give promotion to the rank of Inspector General of Police with retrospective effect i.e. 22.2.2006 was rejected on the following three grounds namely:

(i) Disciplinary proceedings drawn against the applicant is still pending;

(ii) Shri A.K. Casshyap, IPS and Shri Bhaskar Jyoti Mahanta, IPS both senior to Shri B.K. Mishra, IPS i.e. present applicant had not been promoted to the rank of IGP retrospectively with effect from 22.2.2006 under the next below rule; and

(iii) Assam-Meghalaya Cadre, despite being a joint Cadre, officers are promoted in their own respective segment depending on the availability of vacancies without consideration of common seniority as per gradation list of the joint Cadre. Furthermore, for a long time inter-segment transfers on the basis of promotion had not taken place. It would therefore, be an administrative nightmare if the next below rule is strictly followed in the Assam segment for the Cadre management of the IPS, cutting across several batches. It will have cascading effect over several batches in the Assam segment.

2. At the outset, Mr. Mishra invited our attention on the order dated 12th April, 2012 by which the disciplinary proceeding initiated against the applicant was dropped. In regard to the promotion of Shri A.K. Casshyap, IPS (RR-87) and Shri Bhaskar Jyoti Mahanta, IPS (RR-88) Mr. Mishra relied on the decision of the Honble Apex Court rendered in the case of Brij Nath Pandey v. State of U.P. & Ors,. : (2001) 9 SCC 398. Honble Apex Court has held that - appellant was entitled to fresh consideration for his promotion. Dispute in question being purely between appellant and State. As such, there is no need for hearing other candidates who might be affected by instant order.

3. Mr. B.K. Mishra relied on the decision of the Honble Apex Court rendered in the case of State of Maharashtra v. Jagannath Achyut Karandikar, : 1990(1) SLJ 146 (SC)=1989 Supp. (1) SCC 393 . In this case, Honble Apex Court has held that - an employee should not suffer for the lapse on the part of the Government.

4. Mr. Mishra submitted that Shri M.R. Vijay Kumar, IPS (RR-1988) was junior to him in service in the inter se seniority of the joint cadre. Despite he was promoted and applicant was ignored. Apropos the last objection as regards to the promotion on the basis of availability of vacancies in particular segment, Mr. Mishra submitted that it violates the equality rule, as right to be considered for promotion is indeed a fundamental right within the meaning of the Articles 14 & 16(1) of the Constitution of India. For this proposition, he placed reliance on the decision of the Honble Supreme Court rendered in the case of Ajit Singh and Ors. (II) v. State of Punjab & Ors., : (1999) 7 SCC 209.

5. Mr. K. Das, learned Jr. Govt. Advocate appearing for the respondent Nos. 2 & 3 did not make any comment in regard to the 1st objection since the proceeding was dropped vide order dated 12th April, 2012. In regard to the 2nd objection, Mr. Das submitted that Shri A.K. Casshyap, IPS and Shri Bhaskar Jyoti Mahanta, IPS are senior to the applicant. As such, applicant has got no case. In regard to the last objection, Mr. Das submitted that Assam-Meghalaya Cadre, despite being a joint Cadre, officers are promoted in their own respective segment depending on the availability of vacancies without consideration of common seniority as per gradation list of the joint Cadre. Furthermore, for a long time inter-segment transfers on the basis of promotion had not taken place. It is therefore, not feasible to follow the next below rule in a strict sense. If this rule is followed, it will have cascading effect over several batches in the Assam segment.

6. We have heard the rival submission in the light of the material placed before us and precedents relied upon. It is abundantly clear from the perusal of the order dated 12th April, 2012 that the Governor of Assam dropped the proceedings by exonerating the applicant. As such, objection on this count is not tenable. Next objection relates to the seniority of Shri A.K. Casshyap, IPS and Shri Bhaskar Jyoti Mahanta, IPS, both the officers stated to be senior to the applicant. It is pertinent to note that these officers have not made any claim before this Court. It is not necessary to hear all those persons who might be affected. It is well known dictum of law that - "Vigilantibus, Non Dormientibus, Jura Subveniunt" (Law helps the vigilant not the dormant). If somebody is not vigilant as to his rights, law cannot assist him. In the case of Brij Nath Pandey (Supp.), it was held that - where appellant seeks direction with reference to the seniority, dispute remains between the appellant and respondents. Therefore, it is not necessary to hear other persons who might be affected. In the case of Ajit Singh and Ors. (II) v. State of Punjab & Ors. (supra) Honble Apex Court has held that - "the word "employment" being wider, there is no dispute that if takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be "considered" for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be "considered" for promotion, which is his personal right."

7. In the context of the joint Cadre also, the promotional aspect ought to be based on the equality rules. There can not be discriminatory rules in different segments violative of the equality rules. Right to equality is a primordial right which is raison de etre for all other rights. Learned Counsel for the respondents could not produce before us any rule to support the promotion on segment basis. As such, we do not find any merit in the plea taken by the respondents Counsel in this regard. Equality is the corner stone of the rule of law. The plea of the learned Counsel that next below rule will be inconvenient as it will have cascading effect can not be approved. The rule cannot be sacrificed at the altar of administrative convenience or celerity, for convenience and justice as Lord Atkin felicitously put it are often not on speaking terms. It is the fundamental principle of law canonized in the dictum - "Fiat Justitia Ruatet Coelum" (Justice should be done even if the heaven falls).

8. There cannot be anything of greater consequence than to keep the Stream of justice clear and pure, that parties may proceed with safety both to themselves and their characters. Taking into consideration the entire conspectus of the facts in the light of the precedents relied upon and submissions made, we hereby set aside the order passed by respondent No. 3 vide Memorandum No. HMA(IPS) 145/Pt.IV/246 dated 19.11.2011 and direct the respondents to consider the promotion of the applicant to the rank of IGP with effect from 22.2.2006, the date when his immediate junior got promoted to the rank of IGP within a period of two months from the date of the receipt of this order. In the result, O.A. stands allowed at the admission stage. There will be no order as to cost.