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2000 DIGILAW 376 (PAT)

Prithawi Nath Ram v. State Of Bihar

2000-03-07

S.N.JHA

body2000
Judgment S.N.Jha, J. 1. This contempt petition arises from CWJC No. 1120 of 1998(R) By order dated 30.3.99 passed in the case the respondents have been directed to consider the case of the petitioner for his out of turn promotion to the post of Deputy Superintendent of Police with effect from the date his junior has been promoted. 2. Though the jurisdiction of this Court in contempt proceeding is rather limited and the Court is not supposed to go behind the orders passed in the connected case, having regard to the fact that the respondents may not be held to be guilty of contempt for disobeying a wrong order, in the facts of the case. I called upon the counsel to satisfy the Court that the direction of the kind could be issued. In other words, whether it is permissible to the Court to direct the State Government to consider the case of an Inspector of Police for his out-of turn promotion to the post of Dy. S.P. Counsel accordingly made his submissions. 3. The provisions regarding out of turn promotion are contained in Rule 660C of the Bihar Police Manual 1978 as amended by Notification SO 1623 dated 4.2.89. According to the counsel for the petitioner, there is nothing in the Rule which excludes Inspector of Police from being given out-of tum promotion to the post of Dy. S.P. I am unable to agree. Rule 660C contemplates promotion on the basis of the recommendation by the Selection Board. As per the amended rule the Selection Board consists of DirectorGeneral and I.G. of Police as its Chairman, Senior Officer Incharge of CID, Senior most Officer Incharge of Special Branch, Seniormost Officer Incharge of Personnel, Seniormost Regional I.G. of Police and Special Secretary/Additional Secretary, Home(Police) Department as members has been constituted. The point is whether such Selection Board is competent to consider the case of Inspector of Police for his promotion to the post of Dy. S.P. 4. Undisputedly there are two modes of appointment to the post of Dy. S.P., one by direct recruitment and the other by promotion. Rule 645 refers to appointment in accordance with the rules contained in Appendix 71. Appendix 71 of the third volume of the Manual contains rules with respect to both direct recruitment and promotion. While Part I of the Appendix relates to direct recruitment, Part II relates to promotion. S.P., one by direct recruitment and the other by promotion. Rule 645 refers to appointment in accordance with the rules contained in Appendix 71. Appendix 71 of the third volume of the Manual contains rules with respect to both direct recruitment and promotion. While Part I of the Appendix relates to direct recruitment, Part II relates to promotion. Since in this case we are concerned with the question of promotion to the post of Dy. S.P. it would be useful to quote the relevant part of the Rule as under :- The Board for promotion shall be presided by Chairman, Bihar Public Service Commission which is called Departmental Promotion Committee, vide Department of Personnel, Government of Bihar resolution no. 22576 dated the 27th November 1976 (P.M. Appendix 72). This committee shall nominate Inspectors in twice the number of vacancies to be filled by promotion. The names of nominated Inspectors shall be arranged generally in order of seniority and if any Officer is placed above in the list than his seniority warrants, the reasons for special nomination shall be recorded. Before the Committee holds its meeting, the Inspector General shall send all concerned papers of candidates including the confidential records to Public Service Commission. The I.G. shall send entire papers and confidential records of such Officiers also who are being superseded. After scrutiny of papers, the Commission shall send its recommendation to the State Government. The State Government shall take decision only on this." It would be also useful to notice Rule 646 and Rule 724A (so far as relevant) as under :- "646. Promotion of inspectors and Reserve Inspectors.The promotion of Inspectors including Reserve Inspectors of District armed police and equivalent ranks of Bihar Armed Police to the rank of Deputy Superintendent will be made by Government on the recommendation of a Selection Board consisting of Chairman, Bihar Public Service Commission as Chairman and Inspector-General and others as members as given in Appendix 72 (see Rule 724A) "724A. Promotion of Inspectors (including Reserve Inspectors). (i) The promotion of Inspectors (including Reserve Inspectors) to the rank of Deputy Superintendent will be made in accordance with the rules for recruitment to the Bihar Police Service (Part 2, Appendix 71)." 5. From bare perusal of the above provisions it would appear that the matter relating to promotion of Inspectors (including Reserve Inspectors and Subedars) to the post of Dy. From bare perusal of the above provisions it would appear that the matter relating to promotion of Inspectors (including Reserve Inspectors and Subedars) to the post of Dy. S.P. is to be considered by a Departmental Promotion Committee headed by the Chairman of the Bihar Public Service Commission. It is on the basis of the recommendation of such committee that the promotion is given by the State Government. Reading the provisions of Rule 660C conjointly with Rules 646 and 724A and Part II of Appendix 71, the distinction would become clear. Under Rule 660 promotion can be given only upto the ranks with respect to which the Selection Board is competent to take the decision. Since separate rules have been framed with respect to appointment by direct recruitment as well as by promotion to the post of Dy. S.P. it is obvious that the provisions of Rule 660 C cannot be extended to the post of Dy. S.P. 6. Counsel for the petitioner submitted that in the past out-of-turn promotions have been given to two Inspectors of Police, namely, Raj Kumar Yadav and Shashi Bhushan Sharma. Copies of the orders giving them promotion, it is stated, were brought on record in the writ petition. From perusal of the said orders it does not appear that the promotions have been given under Rule 660C. But it does appear that they have been granted out-of-tum, promotion. There being no mention of the provision under which such promotion was given to them, I do not propose to express my opinion on the contention raised. Also because they are not parties to the proceeding and the promotions do not appear to have been challenged, I would nonetheless observe that there apparently being no provision in the relevant rules under which out of turn promotion can be granted to an Inspector of Police to the post of Dy. S.P., such promotions granted to both Raj Kumar Yadav and Shashi Bhushan Sharma prima facie do not appear to be in accordance with law. It is not necessary to make further observation in that regard in the present case. S.P., such promotions granted to both Raj Kumar Yadav and Shashi Bhushan Sharma prima facie do not appear to be in accordance with law. It is not necessary to make further observation in that regard in the present case. It is well settled that one wrong cannot justify another wrong, and so far as the court of law is concerned, if the State Government has passed a wrong order in a particular case for reasons which are not known to the Court, it would not be appropriate exercise of jurisdiction to pass similar order. 7. It may be pointed out that grant of out-of-turn promotion is always at the cost of others, who, if such promotion were not granted, would have been promoted to the post in the ordinary course. The provisions regarding out-of-tum promotion ought, therefore, in my opinion, to be very strictly construed. It is unfortunate that the provisions of Rule 660C are being liberally exercised and such promotions have been inserted in many undeserving cases. It is the duty of the police to prevent crime and catch the criminals. Every such case cannot be regarded as an act of gallantry for which the person concerned should be rewarded with out-of-turn promotion at the cost of others. 8. Coming to the instant case, as I have already indicated above, though the nature of contempt jurisdiction is rather limited, the authorities cannot be held to be guilty of contempt for not obeying an order which is not in accordance with law. in the above view of the matter, in my opinion, it is not a fit case in which this Court should proceed against the respondents in contempt. 9. The petitioner has already been confirmed as inspector in accordance with the decision of this Court in Md. Hasnains case, 1997(1) PLJR 996 in the light of earlier order of this Court in CWJC No. 181 of 1997(R) and is thus now eligible for being considered for promotion to the post of Dy. S.P. on the basis of seniority from the combined list of Inspector/Sergeant Majors/Subedars in accordance with the rules. 10. The contempt petition standa dismissed accordingly.