High Court quashes DoP notification of 2010 granting retrospective promotion to Inspectors

GANGTOK, 14 Oct: The arbitrary functioning of the state government, especially in matters of promotions, has been pulled up by the judgment of the High Court of Sikkim in relation to the petition filed by Adup Tshering Bhutia, now retired, DSP. The single bench of the Court comprising Chief Justice P Kohli has struck down a notification of the Department of Personnel issued in the year 2010 granting promotions to several Sub Inspectors in the Sikkim Police as retrospective promotion to the rank of Inspectors from the year 1994 as unconstitutional.
In a further direction which should induce contemplation on the part of the state is the quashing by the court of the amended Rule 9(iv) (b) and other related amendments to the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000 as amended by a notification of the DoP issued on 20 January, 2010. This set of amendments have also been struck down and quashed as being unconstitutional.
This judgment has affected not only the prospects of the petitioner, Adup Tshering but also that of around 20 police officials who were the private respondents and whose promotions with retrospective effect to the rank of Inspector has been quashed. The controversy in the present petition relates to fixation of seniority of officials constituting the amalgamated force and their consequential promotional claims on merger of different wings of police.
The petitioner’s grievance was in respect to the action of the state granting retrospective promotion to the private respondents making them senior to him even when their officiating/substantive dates of appointment as Inspectors of Police in their respective services prior to merger of the three wings of the police force were much later than the date of appointment of the petitioner.

The court also noted that 4 of the police officials/ respondents were promoted to DSP in officiating capacity on May 2010; a month later another 5 of the police officials/ respondents were granted promotion to DSP and a week later vide another Office Order granted promotion to 6 of the police respondents in this case. The petitioner Adup Tshering was granted promotion to DSP only on 23 February, 2012.
The court has directed that he be promoted as DSP with effect from 3 May 2010 when the first 4 police respondents were promoted as DSP. In view of the retirement of the petitioner, he shall be entitled to all financial and other consequential benefits of such promotion, the court directed.
Adup Tshering retired on 31 August, 2012. In this circumstance the court did note that the question of seniority became irrelevant but since the prayer of the petitioner was for retrospective promotion and consequential retirement benefits the question of seniority needed to be addressed, the court observed.
The court in its judgment order observed that “It is useful to note that except police respondent No. 21 who was appointed as Inspector on 04.01.1994, (the petitioner was promoted to the rank of Inspector in 1995) respondents No.7 and 8 were promoted as Inspectors on 07.02.2000, whereas all other private police respondents were promoted as Inspectors on 29.08.2008 on substantive basis. The only legal consequence of such merger could be that respondent No.21 is to rank senior than the petitioner on the basis of his prior promotion as Inspector and all other private respondents were to rank below the petitioner in the seniority.
The State-respondents, however, by granting retrospective promotion to the private respondents No.7 to 28 except 21, made them Inspectors from the year 1994, i.e. respondents No.7 to 20 with effect from 04.01.1994 and No.22 to 28 with effect from 26.09.1995. This retrospective promotion was granted to them when they were only holding the substantive rank of Sub-Inspectors and there were no vacancies in their respective services for such promotion.”
Furthermore as a consequence of such retrospective promotion, respondents No. 7 and 8 got the benefit of 6 years, respondents No.22 to 28 got benefit of 13 years and 11 months whereas the respondents No.9 to 20 got benefit of 14 years and 7 months of service as Inspectors.
Chief Justice P Kohli further noted that while this was only an administrative order granting promotions with retrospective effect, “…however with a view to grant statutory colour to retrospective promotion, amendment was made to the Sikkim Police Force (Recruitment, Promotion and Seniority) Rules, 2000. This amendment came to be made on 20.01.2010, i.e. after almost 10 years of the merger, the effective date of merger being 11.09.2000.”
It is this set of related amendments issued as a notification by the DoP which has been quashed for being unconstitutional. The petitioner had particularly challenged Rule 9(iv) (b) of the amended rules which stated, “The inter-se-seniority of Police Inspectors of Sikkim Police, Sikkim Vigilance Police, Sikkim Armed Police and Indian Reserve Battalion on the date of amalgamation of the cadres for the purpose of their promotion to the rank of Deputy Superintendent of Police shall be determined on the basis of their date of appointment to the entry level of Sub-Inspector.”
The state government could have opted for the simpler way out when the high court asked the state respondents to consider the retrospective promotion of the petitioner from the date the first promotion was granted to any of the private police respondents. The court noted “…but it seems that the state is unwilling…”. Had the state accepted this suggestion several of the intricate issues arising out of the petition could have been avoided including validity of the amended Rules etc,.
As a result not only has the court made very strong rulings and observations vis a vis the state it has also imposed a cost of Rs. 20,000 on the state and private respondents. Half of this, Rs.10,000 is to be borne by the state respondents.
The court has observed that the basis of granting retrospective promotions after the merger of the cadres is manifestly illegal, per se, unconstitutional being violative of Articles 14 and 16 of the Constitution. Subsequent amendment of the rules suffers on the same principles, noted the Chief Justice.
Importantly the court also noted that “The State as an employer has authority to determine the seniority according to rules and also to fix the seniority giving it retrospective operation by law. Such action of the State is liable to be interfered or struck down only if it is found to be arbitrary, discriminatory and actuated by malafide. However, the retrospective action is not justified to negate any accrued or vested right, particularly, where such action affect the right acquired over a longer period of time.”
The court further directed that “Private respondents shall be deemed to have been promoted as Inspectors from the dates of their substantive promotion i.e. respondents No.7 and 8 on 07.02.2000 and respondents 9 to 17, 19 to 23 and 26 to 28 on 29.08.2008 (respondents 18, 24 and 25 having been deleted vide order dated 01.12.2011). In view of the quashment of amended Rule 9(iv)(b) and consequential amendments in Notification dated 20.01.2010, the seniority of the petitioner and private respondents be re-fixed with effect from the dates of their substantive appointment as Inspectors in the amalgamated force.”