S.A. Shah, J.
1. The petitioner was appointed as an unarmed Constable in the erstwhile State of Saurashtra in the year 1950. By an order dated May 31st, 1957, he was promoted as Head Constable and transferred to Kutch district in the pay-scale of Rs. 55-3-85. It is averred by the petitioner that the Head Constables were not prepared to go to Kutch and, therefore, the grade of Police Head Constables at Kutch was higher by Rs. 5/- than the grade at other places. The petitioner opted for Kutch only to get Rs. 5 more in his pay-scale. However, for the reasons best known to the Police Department he was not granted that grade. No affidavit to this point has been made by the respondents.
2. The main grievance of the petitioner is that by the Government Resolution dated 18-4-72 the cadre of Head Constable which was formerly divided into three grades were reconstituted into two grades in accordance with the recommendations of the Pay Commission and, therefore, every person who was serving as Head Constable Grade-Ill automatically became entitled to Grade-II atleast under the new set up. It has been averred by the petitioner that respondent No. 1 had published a seniority list by his Office order dated August 10, 1973 which is produced at Annexure-F. The petitioner is shown at serial No. 9 and the date of his confirmation as Head Constable is shown as October 1st, 1959. The fact of the seniority list has not been disputed by the respondents except the following sentence:
I say that no doubt, through mistake against the petitioner's name at page 24 serial No. 19, (correct number is 9) the date of confirmation is 1-10-59 but this is clearly a mistake which is required to be corrected because the said fact is not borne out from his service sheet and the petitioner was Head Constable Grade-Ill upto 1-6-67 and he has drawn the salary attached to the post of Head Constable Grade-Ill till that date. I say that the petitioner was confirmed as Head Constable Grade-Ill with effect from 1-10-57 whereas he is not still confirmed as Head Constable Grade-II.
3. This averment of the District Superintendent of Police, Bhuj, Respondent No. 1, is incorrect from the face of it, because if a person is confirmed as Grade-III Police Head Constable and if Grade-III is abolished, he is automatically upgraded to Grade-II Head Constable and there is no necessity of confirmation again because his post is upgraded by Government Resolution dated April 18th, 1972. It also appears that there is no material placed before the Court except the statement of the Respondent No. 1 that there is a mistake in the gradation list and if the petitioner has been denied his due promotions and consequential benefits upon the assumption of a mistake which, on the face of it, is untenable, it is unnecessary to go into other points. However, in order to put an end to the controversy I will also enter into the merits of the petition briefly.
4. The petitioner has in para 15 of the petition made a specific averment that the first respondent had promoted 45 Second Grade Head Constables whose particulars are given in the list marked Annexure-G and who are juniors to the petitioner. If 45 constables have been promoted by the order dated 1-8-1974, the petitioner being at serial No. 9 in the seniority list considered for further promotion and unless it is shown that the petitioner was not suitable for promotion to the higher post of Constable Gr. I he cannot be denied promotion merely on the arbitrary decision of the competent authority. It has not been shown in the affidavit that the petitioner was denied his promotion on account of any demerits. The tone of the affidavit is that the petitioner being wrongly confirmed he appears to have been not considered for further promotion.
4.1. The averments made in para 15 of the petition have not been conversed by the respondent No. 1. His only contention is that the petitioner having not been confirmed in Grade II was not entitled to or eligible for promotion. In my opinion the submission of the respondents is wholly unfounded and the respondents were enjoined to consider the petitioner for promotion when his turn came i.e., when his immediate junior was considered for promotion. It is amply proved by Annexure-I to the petition that by order dated 1-8-1974 45 persons who are alleged to be juniors to the petitioner have been promoted to the higher grade of Head Constable Grade-I.
5. In absence of any affidavit to this point and in absence of averments w the affidavit that the petitioner was considered for Grade I at the relevant time i.e. prior to 1-8-1974 I have necessarily to come to the conclusion that the petitioner was left out by the competent authority from consideration only on the ground that there was some mistake in confirmation and seniority list. It is not shown to me upto this date that the above mistake if any has been corrected.
6. In the aforesaid view of the matter the petitioner is entitled to be considered for promotion when his immediate junior was considered and promoted by order dated 1-8-1974 and the petitioner is entitled to all the monetary benefits including wages, seniority and promotion if he is found fit on such consideration. It may be mentioned here that the promotion being based upon seniority-cum-merit or suitability the petitioner can be denied further promotion only if he is found unfit i.e. by applying the negative test as has been settled by various decisions of this High Court. It is said at the Bar that the petitioner has been actually promoted in the year 1979. It has also been stated by Mr. Mankad, learned advocate appearing on behalf of the petitioner that the petitioner has not been communicated any adverse remarks before his due promotion, except that departmental inquiry was commenced against him which lasted for ten long years and ultimately the petitioner was exonerated from all the charges. It appears that pendency of the departmental inquiry must have also weighed with the authorities.
In any view of the matter 1 direct that the petitioner should be considered for promotion on due date.
7. In the result the petition is allowed. Writ be issued against the respondents directing them to consider the petitioner for promotion on the date when his juniors were considered and promoted and if promoted by applying above test he shall be given all the consequential benefits like deemed seniority, further promotion and additional wages in accordance with law. Since the petitioner has lost several chances of promotion his assessment may be made as early as possible and not later than three months from the date of receipt of the writ of this Court. Rule is made absolute with costs.