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IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE VIVEK RUSIA &

HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI th ON THE 28 OF MAY, 2024 WRIT APPEAL No. 646 of 2023 BETWEEN:-

DHEERENDRA AGARWAL S/O SHRI OMPRAKASH AGARWAL, AGED ABOUT 38 YEARS, OCCUPATION: SERVICE CONSTABLE G D NO 414 SPECIAL ARMED FORCE IN BATTALION SHIVPURI (MADHYA PRADESH)

.....APPELLANT (RAJENDRA SINGH DHAKAR-ADVOCATE) .

AND THE STATE OF MADHYA PRADESH THROUGH ITS PRINCIPAL SECRETARY, 1. DEPARTMENT OF HOME, GOVT OF MP, VALLABH BHAWAN, BHOPAL (MADHYA PRADESH)

DIRECTOR GENERAL OF POLICE MADHYA PRADESH HEAD QUARTER, 2.

BHOPAL DISTT. GWALIOR (MADHYA PRADESH)

COMMANDANT 18TH BATTALION

3. SPECIAL ARMED FORCE SHIVPURI SHIVPURI (MADHYA PRADESH)

.....RESPONDENTS Signature Not Verified (2)

( SHRI ANKUR MODY-ADDITIONAL ADVOCATE GENERAL)

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This petition coming on for admission this day, Justice Vivek Rusia passed the following:

O R D E R

The appellant/petitioner has filed this intra-court Appeal against the order dated 27/03/2023 passed in Writ Petition No.7479/2013 whereby the Writ Court has dismissed the Writ Petition filed by the petitioner.

2. Brief facts of the case are that the petitioner joined the services as a Constable on 13/08/2004 in the Police Department. According to the petitioner, he possesses the minimum qualification i.e. graduation for promotion to the post of Head Constable as per the eligibility criteria prescribed in the M.P. Police Regulations. That apart, he has also completed 9 years of service. As per Appendix 'A' i.e. the Promotion Rules of the Police Regulations, a Constable who has passed the matric examination and has completed 2 years of service becomes eligible for promotion to the post of Head Constable. Such constables and other Constables who do not possess the matric qualification shall be selected by the Commandant for the cadre Signature Not Verified (3)

course. The record of the petitioner is unblemished as he has not received any punishment or adverse ACR. The petitioner has also passed the various departmental examinations and training from time to time. As per the promotion rules of Police Regulations, 80 % of posts of Head Constable are reserved for promotion from the post of Constable. The grievance of the petitioner is that without assigning any reason, the Authority was not sending his name for the cadre course. As per procedure adopted by the Authority, in the year 2011, he secured 26 marks and in the year 2012, he obtained 27 marks and despite that, his name was not sent. Thereafter, he approached this Court by filing WP No.4490/2012.

3. The respondent filed a reply in which they placed reliance on GOP No.128/08 dated 7/6/2008. The Writ Petition No.4490/2012 was disposed of by giving direction to the respondent to decide the representation. Vide order dated 15/09/2013, respondent No.3-Commandant 18^th Battalion, Special Armed Force, Shivpuri rejected the representation on the ground that the petitioner has not completed the requisite experience of 3 years of service as active duties as he has been posted in head office.

Signature Not Verified (4)

4. The petitioner initially challenged the impugned order on merits and, thereafter, challenged the validity of condition No.4 of Clause 2.3 of GOP No.128/08 dated 7/6/2008 on the ground that the executive instructions can not override the Police Regulations. By way of amendment, the petitioner seeks quashment of condition No.4 of Clause 2.3 of the GOP in question. Respondent filed the reply by justifying the impugned action.

5. After hearing learned counsel for parties, vide order dated 27/03/2023, the Writ Court dismissed the Writ Petition with the observation that the petitioner is required to have a continuous period of three years of active company duty out of the last 5 years which will not include the duty as gunman duty, mess duty, head office (accounts) duty and deputation. Regulation No.973 has sta