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2001 DIGILAW 54 (PAT)

Subhash Yadav v. State Of Bihar

2001-01-18

S.N.JHA

body2001
Judgment S.N.Jha, J. 1. The petitioner seeks direction upon the respondents to grant him out-of-turn promotion to the rank of Assistant Sub-Inspector (ASI) of Police in terms of Rule 660-C of the Bihar Police Manual. He is presently a Literate Constable working in the Special Branch of the Police Department. The claim for out-of-turn promotion was rejected by the Director-Generals (DG) Board on 31.1.94. The grievance of the petitioner is that one Bindeshwar Singh, whose similar claim based on the same incident had been rejected by the same Board on 31.1.94, was allowed later on 25.3.98 and he has been granted out-of-turn promotion. The claim being similar and based on same incident, the petitioner thus is also entitled to similar promotion. Having regard to the nature of the grievance, Bindeshwar Singh was allowed to be added as respondent by order dated 25.1.2000 and he was accordingly added as respondent No. 4 in the case. Despite service of notice, however, he has chosen not to appear in the case and contest. 2. The case of the petitioner is that on 29.10.92, the car of the Chief Minister was attacked by anti-social elements when he was on tour of Dhanbad district and was on way to Barawada Airstrip. The petitioner along with Bindeshwar Singh and others at the risk of their lives saved the life of the Chief Minister and his entourage. Such an act of bravery entitle him to out-of-turn promotion to the next higher rank. 3. From the records produced by the State Counsel, it appears that recommendation was made by Sri Ram Naresh Singh, MLA on 29.12.93/4.1.94 to give out of turn promotion to the petitioner and Bindeshwar Singh. Similar recommendation was made by Shri Uday Narayan Choudhary another MLA for out-of-turn promotion to one Ram Bhajan Choudhary ASI of Police on the basis of the same incident. The DG Board, which is competent to grant out-of-turn promotion, considered the claim of as many as 84 persons of various ranks including those of petitioner, Bindeshwar Singh and the said Ram Bhajan Choudhary in its meeting held on 31.1.94 but reject the same. It may be mentioned here that out of them six persons were found fit for out-of-turn promotion while cases of ten others was kept pending. The decision of the DG Board was duly communicated to the persons concerned. It may be mentioned here that out of them six persons were found fit for out-of-turn promotion while cases of ten others was kept pending. The decision of the DG Board was duly communicated to the persons concerned. It appears that later fresh recommendation was made by Shri Ganesh Shanker Vidyarthi, another MLA, on 18/28.9.95 for out-of-turn promotion to both petitioner and Bindeshwar Singh. Nothing however seems to have happened on that. On 23.3.98, another recommendation was made by Shri Ramji Prasad Sharma, MLC for giving out-of-turn promotion to Bindeshwar Singh. The said letter, of the MLA seems to have been written on the premise that though recommendation had been made for out of turn promotion to Bindeshwar Singh earlier no action had been taken. Though it is true, as mentioned above, that no action was taken on the recommendation of Shri Ganesh Shanker Vidyarthi on 18/28.9.95, the fact of the matter is that the claim/recommendation in this regard already stood rejected on 31.1.94 which fact was apparently suppressed. From the records, it appears that the said recommendation by Shri Ramji Prasad Sharma, MLC was made at a time when steps had been taken to convene the meeting of the DG Board to consider cases for out-of-turn promotion. From File No. XP-K-4-98 it appears that meeting of the DG Board was scheduled to be held on 9.2.98, communication for which was sent to the officers/members concerned on 28.1.1998. In the meeting which was eventually held on 25.3.98, the case of Bindeshwar Singh was taken up for consideration and he was allowed out-of-turn promotion. 4. In the counter-affidavit which was originally filed in this case, it was stated in para 7 that the recommendation for out-of-turn promotion to Bindeshwar Singh was "later on separately received with respect to other event and Director-General Board also found him fit for out-of-turn promotion". After correctness of the statement was challenged in course of hearing on 25.1.2000, the State filed supplementary counter-affidavit stating that above-mentioned statement in para 7 of the counter-affidavit was incorrect, stating, categorically, further was categorically stated that "Constable 835 Bindeshwar Singh has been granted out-of-turn promotion for the same event in which the petitioner has claimed for out-of-turn promotion". After correctness of the statement was challenged in course of hearing on 25.1.2000, the State filed supplementary counter-affidavit stating that above-mentioned statement in para 7 of the counter-affidavit was incorrect, stating, categorically, further was categorically stated that "Constable 835 Bindeshwar Singh has been granted out-of-turn promotion for the same event in which the petitioner has claimed for out-of-turn promotion". It may be mentioned here that while the pervious counter-affidavit was sworn by Shri Lalit Mohan Sinha, Section Officer working in the office of Director General-cum-I.G. Police, Bihar, the supplementary counter-affidavit was sworn by Shri Ajit Dutt, DIG (Headquarters). Perusal of the relevant record, also leads to the same conclusion that it was with respect to the same incident of 29.10.92 that Bindeshwar Singh was allowed out-of-turn promotion. 5. From perusal of the record (File No. XP-K-34-98), it appears that the officers concerned have expressed a view that out-of-turn promotion granted to Bindeshwar Singh was contrary to rules inasmuch as neither the facts justified such out-of-turn promotion nor any formal recommendation had been received for such promotion, in the supplementary counter-affidavit, however, the out of turn promotion granted to Bindeshwar Singh is sought to be justified on the ground that Zonal Inspector-General of Police, Ranchi who was also present in the Director-Generals meeting as member "confirmed about the incident and role displayed by Constable 835 Bindeshwar Singh". It may not be out of place to mention here that while DG Board which reconsidered the cases for out-of-turn promotion on 31.1.94 consisted of Sri Vijay Jain, DG-cum-IG Police, Bihar as Chairman, and Sri S.K, Saxena, IG of Police, Special Branch, Sri K.A. Jacob, IG of Police, CID and Sri Aditya Swaroop, Additional Secretary, Home Police Department as member, the DG Board which considered the cases including that of Bindeshwar Singh consisted of Sri S.K. Saxena, DG-cum-IG of Police as Chairman, Sri Jyoti Kumar Sinha, IG of Police, Chhotanagpur Zone, Ranchi, Sri Rameshwar Oraon, IG of Police, CID, Sri Neyaz Ahamad. IG of Police (Administration) and Sri Dadan Prasad, Deputy Secretary (Home) Police Department as members. The point for consideration is whether in the circumstances mentioned above out-of-turn promotion to respondent No. 4 can be justified. 6. IG of Police (Administration) and Sri Dadan Prasad, Deputy Secretary (Home) Police Department as members. The point for consideration is whether in the circumstances mentioned above out-of-turn promotion to respondent No. 4 can be justified. 6. It may at this stage be mentioned, so far as the claim of the petitioner for out-of-turn promotion is concerned, that in course of preliminary hearing of this case on 4.1.2000 itself, this Court had observed that while it may not be possible to grant desired relief to the petitioner for his out-of-turn promotion, in the facts of the case the Court would like to be satisfied about the circumstances in which such promotion has been given to Bindeshwar Singh. This Court thus virtually rejected the claim of the petitioner but expressed doubts about the correctness of the validity of promotion to Bindeshwar Singh. 7. At this stage, the provisions relating to out of turn promotion contained in Rule 660-C of the Bihar Police Manual may be noticed as under: 660-C Out-of-turn promotion:- The following criteria and procedure will be adapted forgiving out-of-turn promotion. (a) (i) The officer concerned should not have been awarded any major punishment till the date of consideration and order of out-of-tum promotion. (ii) Should have "Very good" entries in permanent Character Roll. (iii) Should have received citations for High Standard of investigation, supervision of cases and excellence in intelligence work. (iv) Should have ability for shouldering higher responsibilities consonant with the proposed promotion. OR Should have been awarded Presidents Medal or Medal for gallantry. OR Should have received citation for outstanding operational work. (b) Out-of-turn promotion will be decided by a committee which will be constituted as follows: (i)... 8. Though it may not be necessary for this Court to make any observation on merit of the claim as if sitting in appeal over the decision of the DG Board, prima facie it appears that the case of the petitioner as indeed respondent Bindeshwar Singh apparently did not come in any of the categories mentioned in the Rule. 8. Though it may not be necessary for this Court to make any observation on merit of the claim as if sitting in appeal over the decision of the DG Board, prima facie it appears that the case of the petitioner as indeed respondent Bindeshwar Singh apparently did not come in any of the categories mentioned in the Rule. It is relevant to point out here that while considering their cases in 1994, a view was expressed that the petitioners were not the only ones who played role in preventing untoward happening in course of attack by the anti-social elements on the cavalcade of the Chief Minister on 29.10.92, apart from the petitioner there were large number of persons including those attached with the Chief Minister as his personal security who were responsible for preventing any mishappening. It was on such objective consideration, if I may say so, that the claim was rejected by the DG Board on 31.1.94. I wonder if it was a fit case for review. In any view of the matter, as is clear from the notes in the file concerned (No. XP-K-98) no formal recommendation was received for out-of-turn promotion to the respondent Bindeshwar Singh. In fact, as noted above, it was f n the recommendation of an MLC, Sri Ramji Prasad Sharma dated 23.3.98 that respondents claim came to be considered by the Board. It is curious to find that such recommendation was made only two days prior to the date when the Board eventually met (that was an adjourned meeting, the meeting was initially fixed to be held on 9.2.98 and adjourned to 24.2.98). I have no doubt in my mind that out-of-turn promotion cannot be granted on the recommendation of MLA or MLC who has absolutely no role to play in the matter, much less where similar claim has been rejected earlier by the DG Board on objective consideration. 9. As noticed above, the only plea put forward by the respondents in defence of the out-of-turn promotion to respondent Bindeshwar Singh is that the Zonal IG of Police, Ranchi recommended his case in the meeting. 9. As noticed above, the only plea put forward by the respondents in defence of the out-of-turn promotion to respondent Bindeshwar Singh is that the Zonal IG of Police, Ranchi recommended his case in the meeting. A member of the Board is undoubtedly at liberty to express his views, and in a given case, the other members of the Board may agree with him, the tenor of the affidavit, however, suggests that Zonal IG of Police, Ranchi spoke about the incident on personal level. Possibly, it appears, the officer, Sri Jyoti Kumar Sinha, had personal knowledge about the incident, and that is why it has been stated in the affidavit "The Zonal Inspector-General, Ranchi, who was also present in the Director-General Board meeting as member also confirmed about the incident and role displayed by Constable-835 Bindeshwar Singh. Zonal Inspector-General, Ranchi stated before the board, that during the tour of Dhanbad of the Ex-Chief Minister of Bihar, he was attacked by anti-social elements, but was saved by the efforts of the said constable, who put his life on risk in the time of duty. On the above oral rectification of Zonal inspector-General, Ranchi, the Director-General Board considered him fit for out-of-turn promotion." 10. While it is natural for an officer to speak with conviction on the basis of his personal impression/knowledge, I wonder if personal conviction/knowledge should be allowed to transgress the rules. It is not clear from the minutes of the proceeding/decision if the Board was aware of the fact that the similar claim for out of turn promotion stood rejected on 31.1.94, and if it was so, certainly, special case had to be made for giving such promotion; the so-called oral testimony of a member could not be regarded as making out a special case or ground for such promotion. 11. I have already stated above that after the writ petition was filed and the respondents were directed to file affidavit stating the circumstances in which respondent Bindeshwar Singh was allowed out-of-turn promotion, the officers who dealt with the file expressed view the impugned promotion was not according to rules. 11. I have already stated above that after the writ petition was filed and the respondents were directed to file affidavit stating the circumstances in which respondent Bindeshwar Singh was allowed out-of-turn promotion, the officers who dealt with the file expressed view the impugned promotion was not according to rules. On the notes to that effect put up by the DIG (Administration) and IG (Administration) the DGP wrote following note in file No. XP-K-34-98 in the context of filing counter-affidavit in the present case, on 12.8.2000: Documents to be given: We will take stand that out-of-turn promotion granted to the other person was also not strictly as per the rules and we do not intend to commit another mistake on the same line. 12. Though the affidavit actually filed in the case was not on the same line and as a matter of fact attempt was earlier made in the counter-affidavit filed on 21.9.98, i.e., after the above-quoted note was recorded by the DGP, to justify the promotion of respondent Bindeshwar Singh on the ground that it related to some other incident for which separate recommendation had been made, the facts are just otherwise. I need not say all that again. 13. In the above premises, I have no doubt in my mind that out-of-turn promotion granted to respondent No. 4 Bindeshwar Singh was not in accordance with law and the same is fit to be set aside. Unfortunately, despite notice he has not appeared to defend his promotion. 14. In the result, while the claim of the petitioner for his out-of-turn promotion is rejected, out-of-turn promotion granted to respondent No. 4 Bindeshwar Singh pursuant to the decision of the DG Board dated 25.3.98 is set aside and the writ petition is allowed to that extent. That will be no order as to costs.