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2001 DIGILAW 308 (ALL)

SUSHIL KUMAR DUBEY v. STATE OF UTTAR PRADESH

2001-03-31

O.P.GARG

body2001
O. P. GARG, J. ( 1 ) THE case of the petitioner-Sushll Kumar Dubey, who is Sub-Inspector of Police and was. at the relevant time, posted in district Agra was recommended for out of turn promotion pursuant to the government Order No. 665 (1) PU-1-24/94, dated 3. 2. 1994 for having displayed exemplary courage and bravery risking his own life in the course of an encounter with a dreaded and notorious criminal, namely, Alya alias Ali Mohd. alias Pappu Pahalwan. The Incident had taken place in the following circumstances : on 19. 1. 1997, a prominent businessman-brick kiln owner and leader of Kisan Kamgar party--Chaudhary Nepal Singh was kidnapped with his Maruti car by certain unknown miscreants. The incident gave rise to Crime No. 33 of 1997 under Section 364, I. P. C. registered at P. S. Kotwali. Bulandshahr city. On getting a tip from an informer, the Senior Superintendent of Police. Bulandshahr organised a raid on 25. 2. 1997 and positioned four separate police parties comprising in all 31 police officials, including four Sub-Inspectors of Police, viz. , Rajesh Kumar dwivedi. Ashok Kumar Verma, Jitendra Kumar Slngh and present petltloner-Sushll Kumar dubey. AC about 11. 35 a. m. , on noticing a moving white Maruti car coming from the side of aligarh. Rajesh Kumar Dwivedi, Sub-Inspector of Police signalled it to stop. It sped up. The presence of the abductee Chaudhary Nepal Singh in the car was noticed and consequently Rajesh kumar Dwivedi, S. I. pursued the same. The miscreants swerved the car on a Kuccha pathway, It struck up in sand near a bush. Thereupon, desperadoes, five in number, alighted from the car and dragging the abductee moved swiftly towards the jungle. There was exchange of fire. Police. parties surrounded the miscreants and asked them to surrender. Rajesh Kumar Dwivedi and ashok Kumar Verma. Sub-inspectors of Police sustained fire arm injuries in the process of getting the abductee released. The other party members opened fire with the result three miscreants were laid to death on the spot. The other two were successful in escaping. Chaudhary nepal Singh. abductee was recovered. Three criminals who were killed in encounter included alya alias All. Mohd. alias Pappu Pahalwan. ( 2 ) THE gallantry on the part of the police officials was praiseworthy and it received wide publicity and commendation. The other two were successful in escaping. Chaudhary nepal Singh. abductee was recovered. Three criminals who were killed in encounter included alya alias All. Mohd. alias Pappu Pahalwan. ( 2 ) THE gallantry on the part of the police officials was praiseworthy and it received wide publicity and commendation. Recommendation for out of turn promotion of the concerned police officials was made which was met with favourable response at all the stages till it reached the high Powered Committee constituted for the purposes of consideration of out of turn promotion. On 2. 5. 1998, the committee scrutinized the entire matter and after taking into consideration all the facets, implications and ramifications, did not recommend promotion of any one of the police officials mainly on the ground that it was a group action and no particular person was responsible for the successful outcome of the raid. This decision obviously incensed the participants and resulted in dissatisfaction and frustration in the rank and file. A proposal was sent for reconsideration of the matter for out of turn promotion of Sub-Inspectors Rajesh Kumar dwivedi, Ashok Kumar Verma, Jitendra Kumar Singh. and Constables Ram Kumar and Jitendra singh through the Inspector General of Police. Meerut Zone. The Committee in its meeting dated 26. 10. 1998 reviewed and reconsidered the matter and after appropriate examination and analysis of the documents and the facts, turned down the recommendation. The Director General of police discussed the matter with the members of the Committee and constituted a committee headed by Deputy Inspector General of Police, Meerut for in-depth study of the matter and to report about the Individual role played by the police officials in the entire episode. The committee sponsored and recommended the names of the abovenamed three Sub-Inspectors and two Constables for out of turn promotion in its meeting held on 23. 12. 1998 to the Director general of Police who approved the same on 24. 12. 1998. The name of the petitioner did not figure in the recommendations. He made a representation and sought out of turn promotion but was not met with any better luck. ( 3 ) BY means of this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for a writ to command the respondents to grant him out of turn promotion w. e. f. 27. 12. He made a representation and sought out of turn promotion but was not met with any better luck. ( 3 ) BY means of this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for a writ to command the respondents to grant him out of turn promotion w. e. f. 27. 12. 1998 and to permit him to function as Inspector in the Civil Police, ( 4 ) COUNTER and rejoinder-affidavits have been exchanged. Record of the proceedings of the committee constituted for the purpose of consideration of out of turn promotion under government order dated 3. 2. 1994 was produced. ( 5 ) HEARD Sri Ashok Khare. Senior Advocate, for the petitioner and the learned standing counsel. Sri Ashok Khare pointed out that there was a clear, unambiguous and positive recommendation at all the stages in favour of the petitioner also for out of turn promotion and non-consideration of his case which resulted in ultimate denial of promotion to the petitioner is arbitrary. Sri Khare maintained that since other three Sub-Inspectors of Police have been given the benefit of out of turn promotion, the petitioner. in all fairness, should have been extended the same benefit. The learned standing counsel urged that out of turn promotion has been granted to five out of 31 police officials on the basis of specific role played by them in challenging and encountering of the criminals and recovery of the abductee. It was pointed out that Rajesh Kumar Dwivedi, and ashok Kurnar Varma, Sub-Inspectors of Police received bullet injuries which indicated that they had risked their lives to get the abductee released from the clutches of the criminals. Sri Ashok khare pointed out that the third Sub-Inspector-Jitendra Kumar Singh, who has been given out of turn promotion. did not receive any fire arm injury and the case of the petitioner is exactly on similar footing. ( 6 ) I have given anxious consideration to the matter. Promotion as understood under service law jurisprudence means advancement in rank, grade or both. It is always a step towards advancement to a higher position, grade or honor. It is normal incident of service. The provision for promotion increases efficiency in public service while stagnation reduces efficiency and makes the service ineffective. Tn Council of Scientific and Industrial Research v. K. C. S. Bhatt, air 1989 SC 1972 . It is always a step towards advancement to a higher position, grade or honor. It is normal incident of service. The provision for promotion increases efficiency in public service while stagnation reduces efficiency and makes the service ineffective. Tn Council of Scientific and Industrial Research v. K. C. S. Bhatt, air 1989 SC 1972 . the Honble Supreme Court observed : "it is often said and indeed, adroitly, an organization public or private does not hire a hand but engages or employs a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organization. It is an incentive for personnel development as well. (See Principles of Personnel Management by Flipo Edwin B. 4th Ed. p. 246 ). Every management must provide realistic opportunities for promising employees to move upward. "the organization that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non- managerial employees and their supervisors. (See personnel Management by Dr. Udai Pareek p. 277 ). There cannot be any modern management much less any career planning, man-power development. management development etc. . which is not related to a system of promotion. (See Management of Personnel in Indian Enterprises by prof. N, N. Chatterjee Ch. 12. p. 128. Since efficiency in public service is an essential part of machinery of a welfare State, promotional policies having the effect of stagnation either by reason of the terms of the policy or by not providing for promotion will result in reducing such efficiency and making the service ineffective. Such a policy would obviously be unfair, unjust and against public interest and, therefore, unreasonable and arbitrary violating Articles 14 and 16 of the Constitution. " although an employee has no right to be promoted, he has a right to be considered for promotion. The right to be considered for promotion is one of the matters relating to employment or appointment within the meaning of Article 16 (1) of the Constitution of India. " although an employee has no right to be promoted, he has a right to be considered for promotion. The right to be considered for promotion is one of the matters relating to employment or appointment within the meaning of Article 16 (1) of the Constitution of India. The operation of Articles 14 and 16 in matters relating to employment is now too elementary and hardly needs further discussion. The Fundamental Right to equality in Articles 14 and 16 of the constitution, therefore, prohibits the application of unreasonableness or unfair standards in the matter of considering an employee for promotion. The discrimination or unfairness or unreasonableness in the rules or norms or policies relating to promotion may be with regard to criteria for consideration, i. e. , determination of seniority or determination of merit. Article 14 specifically obligates the State to ensure equality of opportunity in matters relating to employment or appointment to any office under the State. Consideration for promotion is directly related to the concept of opportunity in Article 16 and the constitutional requirements of equality with regard to such opportunity necessarily means exclusion of arbitrariness in the course of consideration for promotion, for example, arbitrary deviation from rules or norms. A statutory rule or a statutory norm or a policy or an executive order relating to promotion cannot transgress any constitutional restriction. In the context of the principle under consideration, it is necessary to emphasise that Article 16 of the Constitution expressly provides equality of opportunity in the matters relating to appointment (which includes promotion also) to any office, under the State. ( 7 ) IN the background of the constitutional prescription contained in all pervasive Articles 14 and 16 of the Constitution, the policy of out of turn promotion has to be viewed. The Government order dated 3. 2. 1994 for out of turn promotion is applicable to the employees of the police department. The safety, security, peace and tranquillity of the citizens is to be maintained at all costs by the police force. There are various serious hazards in the way of police officials in providing security to the public, in general. and individuals. In particular, and maintaining peace and tranquillity in the society. They have to be prepared to make any sacrifice to meet any eventuality. There are various serious hazards in the way of police officials in providing security to the public, in general. and individuals. In particular, and maintaining peace and tranquillity in the society. They have to be prepared to make any sacrifice to meet any eventuality. With a view to ensure that every police official has zeal and enthusiasm in exhibiting exemplary courage, bravery and gallantry, a provision for out of turn promotion has come to be made by way of incentive. Out of turn promotion is granted to those police officials who have shown extraordinary courage and bravery by risking their lives in the performance of their duties. ( 8 ) IN the present case, the stand taken by the petitioner Is that he has been discriminated in the matter of out of turn promotion by not considering his case at all. and in any case, he has been denied equal treatment as has been extended to other Sub-Inspectors. As said above, there were 31 members who formed different parties to combat the menace of the dreaded notorious criminal AJya aims Ali Mohd. alias Pappu Pahalwan who had extended his criminal activities in different States. Out of them, the names of eight persons (four Sub-Inspectors of Police and four constables) were initially recommended for out of turn promotion. The petitioner was one of them. The recommendation was turned down obviously on the ground that it was a group action and individual specific role was not discernible. On subsequent reconsideration of the matter, the recommendation was confined to five persons only, namely, three Sub-Inspectors of Police and two Constables and it was at this stage that the name of the petitioner came to be omitted. Sri ashok Khare took pains to point out that in the cadre of Sub-Inspectors, Jitendra Kumar Singh has been granted out of turn promotion and since the case of the present petitioner was on the same footing as that of Jitendra Kumar Singh. he cannot be denied promotion on any perceivable ground. This submission is founded on the basis that though the two Sub-Inspectors-Rajesh kumar Dwivedi and Ashok Kumar Varma have received bullet injuries as a result of the cross firing, the present petitioner as well as Jitendra Kumar Singh did not receive any injury. It was maintained that if Jitendra Kumar Singh could be granted promotion, why not petitioner? Call of equable treatment was made. It was maintained that if Jitendra Kumar Singh could be granted promotion, why not petitioner? Call of equable treatment was made. It was also urged that the petitioner is entitled for promotion In view of the decision of this Court in Ashok Rana V- Home Secretary, U. P. Shashan. 2000 (4)ESC 2713 (All ). 1 have thoroughly studied the said decision and find that the observations made therein do not squarely apply to the facts of the present case. In the instant case, the question is whether the case of the petitioner can be distinguished from that of Jitendra Kumar Singh, who has been granted out of turn promotion. The report of the Committee which was ultimately accepted by the Director General of Police does not indicate that the case of the petitioner was ever considered. His case had been recommended at all the stages. Things would have been different if the case of the petitioner had been considered and then rejected on the ground of the specific role played by him. It is quite possible that on account of positioning of the petitioner at the time of the raid, his role may have been negligible or otherwise beyond the ambit of the expression exemplary courage and bravery. If on the ground of parity only, promotion is granted to the petitioner, the remaining 25 persons would spring up to claim out of turn promotion. Granting of promotion to all would frustrate the very purpose for which Government order for out of turn promotion has been issued. The Government order cannot be reduced to a farce and cannot be banked upon for normal promotion. ( 9 ) THE power of Judicial review does not extend to interfering with a policy providing for out of turn promotion. This Court is not in a position to say that which particular person has to be granted out of turn promotion and which one has to be denied. Ultimately, departmental wisdom has to prevail. The past antecedents of the employee concerned are also to be looked into. If an employee is not having neat past, or his service record is not up to the mark, he would perhaps be denied the benefit of out of turn promotion howsoever exemplary courage or bravery he might have exhibited. There have to be certain parameters which have to be adopted In granting out of turn promotion. If an employee is not having neat past, or his service record is not up to the mark, he would perhaps be denied the benefit of out of turn promotion howsoever exemplary courage or bravery he might have exhibited. There have to be certain parameters which have to be adopted In granting out of turn promotion. ( 10 ) AS said above, since the case of the petitioner was earlier recommended for out of turn promotion, his case undoubtedly was required to be considered by the Committee. It was necessary to record reasons for denying the benefit of out of turn promotion to the petitioner as his case had been recommended at all the levels. If the individual role of the petitioner is not. in any manner. Inferior to the role played by Jitendra Kumar Singh, Sub-Inspector, who has been granted out of turn promotion and all other things remaining (he same, then certainly, the petitioner would also be entitled for out of turn promotion. All the above facts can well be taken into consideration by the departmental authorities. To ensure fairness ind equable treatment, the case of the petitioner needs reconsideration. ( 11 ) IN the conspectus of the above facts, the writ petition is finally disposed of with the direclion that the Deputy Inspector General of Police. Karmik, U. P. Police Headquarters. Allahabad, respondent No. 5 shall place the necessary material before the committee formed under the government order dated 3. 2,1994 for consideration of the matter of the petitioner in the light of the observations made above. The committee shall meet for the purpose within a period of six months from the date of production of a certified copy of this order before the respondent No. 5. .