Research › Search › Judgment

Allahabad High Court · body

2001 DIGILAW 615 (ALL)

ACHAL SINGH YADAV v. STATE OF UTTAR PRADESH

2001-07-04

ASHOK BHUSHAN

body2001
ASHOK BHUSHAN, J. ( 1 ) THIS is a writ petition praying for quashing of order dated 27. 11. 1997 passed by the Director general of Police, Uttar Pradesh by which the claim of the petitioner for out of turn promotion has been refused. Petitioner has further prayed for issue of a writ of mandamus commanding the respondents to grant promotion to the petitioner in view of the Government order dated 3. 2. 1994. Petitioner is working as Sub-Inspector of Police. Petitioner Initially joined as constable on 30. 11. 1971 and through rankers examination, he was selected as Sub-Inspector of Police. The petitioner in writ petition has stated that he has earned several gallantry awards. The State government issued a Government order dated 3. 2. 1994 which has been filed as Annexure-1 to the writ petition. The Government order provides that those police constables/sub-Inspectors who have shown "adamya Sahas" indomitable courage and shaurya" gallantry in an encounter or arrest of dreaded terrorist or heinous criminal will be given out of turn promotion. The aforesaid Government order has been issued to give boost to morale of police force. Thus, for getting out of turn promotion in accordance with the aforesaid Government order, following conditions should exist : (i) the act of the police officer should demonstrate Indomitable courage and gallantry, (ii) the above action should be while encountering or arresting the dreaded terrorist or heinous criminal. Petitioners case is that on 12. 4. 1994 while conducting checking of vehicles, a Maruti car came without number from the side of Javar which was signalled to be stopped by constable Madhur prakash and Rajpal. The car slowed down and stopped on the patari of Nahar as soon as constable Madhur Prakash took steps to get open the window of said car to search, one criminal came down from the car and snatched the rifle of constable Madhur Prakash and fired from the same rifle which missed the target. After hearing the fire and noise of constables, the petitioner along With fellow persons of the force started towards the car of the criminals and at that moment, criminals from the car fired on the Jeep damaging the window screen : and the head-light of the Jeep. On this petitioner and fellow policemen fired by taking position. After hearing the fire and noise of constables, the petitioner along With fellow persons of the force started towards the car of the criminals and at that moment, criminals from the car fired on the Jeep damaging the window screen : and the head-light of the Jeep. On this petitioner and fellow policemen fired by taking position. Petitioners case is that he warned the criminals on which he fired and in self-defence petitioner fired from the rifle A. K.-47 and due to exchange of fires person who snatched the rifle fell down and two other criminals ran away in Maruti car. The dreaded criminal was identified as mahendra Fauji. Petitioner stated that an F. I. R. was lodged of the incident by the petitioner himself on 12. 4. 1994. Mahendra Fauji was dreaded criminal on which the State Government has declared reward of Rs. 2,00,000. The Senior Superintendent of Police, Bulandshahr, sanctioned the payment of the award to all 12 persons of the police party. It was further stated that the Delhi government has also declared award, which too was distributed amongst all 12 members of the police force. ( 2 ) PETITIONERs further case is that in view of the Government order, dated 3. 2. 1994, his case was recommended for out of turn promotion by the Superintendent of Police. Deputy Inspector general of Police and Inspector General of Police. The committee empowered to consider the recommendation for purposes of granting out of turn promotion refused the claim of the petitioner vide its decision dated 5. 5. 1995. Against the order dated 5. 5. 1995, petitioner filed a writ Petition No. 21428 of 1995 which was disposed of by this Court on 8. 7. 1997 directing the consideration of the petitioners case afresh after quashing the order dated 5. 5. 1995. A copy of judgment of this Court dated 8. 7. 1997 is annexed as Annexure-20 to the writ petition. After the judgment of this Court dated 8. 7. 1997, the claim of the petitioner was again considered by the committee. The committee again considered the relevant facts and has refused the claim of the petitioner of out of turn promotion. The order dated 27. 11. 1997 was issued by the Director general of Police and the said order has been filed as Ahnexure-25 to the writ petition. 7. 1997, the claim of the petitioner was again considered by the committee. The committee again considered the relevant facts and has refused the claim of the petitioner of out of turn promotion. The order dated 27. 11. 1997 was issued by the Director general of Police and the said order has been filed as Ahnexure-25 to the writ petition. The petitioner has filed the present writ petition challenging the order dated 27. 11. 1997. ( 3 ) COUNTER-AFFIDAVIT and rejoinder-affidavit have been exchanged and the petitioner has also filed a supplementary-affidavit dated 15. 5. 2001 to which a supplementary counter-affidavit has also been filed by the learned standing counsel. With the consent of the parties, the writ petition is being finally decided. ( 4 ) I have heard Sri C. B. Yadav. counsel for the petitioner and Sri Rajni Kant Tiwari standing counsel appearing for the respondent. Counsel for the petitioner made following submissions : (a) that the act of the petitioner in which dreaded criminal Mahendra Fauji was killed, was an act of exemplary courage and bravery entitling the petitioner to out of turn promotion in accordance with the Government order dated 3. 2. 1994. The claim of the petitioner was recommended by the Superintendent of Police. Deputy Inspector General of Police and Inspector general of Police. The recommendation made by the higher police officers were valid material before the committee and their being no other material to take any contrary view the committee committed error in rejecting the claim of the petitioner. In support of the above submission counsel for the petitioner has relied on two Judgments of this Court, i. e. , Ashok Rana v. Home secretary, U. P. Shashan, Lucknow and others, 2000 (3) UPLBEC 2324 and the judgment dated 24. 4. 2000 of this Court passed in W. P. No. 38692 of 1997, Brij Nandan Rai v. State of V. P. and others ( b) the Director General of Police on the recommendation of the committee has granted out of turn promotion to three other police parties in encounters with different criminals. Details of which have been given in paragraph 21 of the writ petition. Counsel for the petitioner submitted that when on similar acts of the other police parties out of turn promotion is given then not giving of out of turn promotion to the petitioner is discriminatory. Details of which have been given in paragraph 21 of the writ petition. Counsel for the petitioner submitted that when on similar acts of the other police parties out of turn promotion is given then not giving of out of turn promotion to the petitioner is discriminatory. (c) that the committee while rejecting the claim of the petitioner has reiterated the same reasons which were given in the earlier order dated 5. 5. 1997 ; which was quashed by this Court vide its judgment and order dated 8. 7. 1997. The committee cannot rely on the reasons which did not find favour by this Court. ( 5 ) THE learned standing counsel, while opposing the writ petition, has submitted that the committee consisted of high ranking police officers of the police department and the committee is the best judge to assess the action of the police officers to find out as to whether the act of the police officer amounted to indomitable courage and gallantry or not. The committee having considered all the materials on record including the recommendation of the police officers and have decided that the act of the petitioner do not amount to indomitable courage and gallantry this Court will not substitute its own opinion nor this Court will perform the Job of assessment. Learned standing counsel has produced the original record on 14 and 15. 5. 2001 during the course of hearing. Learned standing counsel has shown the original record ; which consist of the recommendation made in favour of the petitioner by the Superintendent of Police. Deputy inspector General of Police and Inspector General of Police and all other materials on record and the decision of the committee refusing to grant out of turn promotion to the petitioner. ( 6 ) BEFORE considering the submissions of the counsel for the parties, it is necessary to find out as to what is the object of the Government order 3. 2. 1994 and what are the requirements which have to be fulfilled before granting benefit of the Government order to a police person. All police personnel are governed by the Police Act of 1861 and the U. P. Police Regulation and statutory rules framed governing their service condition. Section 23 of the Police Act of 1861 provides the duties of the police officers. Section 23 Is quoted below : "23. All police personnel are governed by the Police Act of 1861 and the U. P. Police Regulation and statutory rules framed governing their service condition. Section 23 of the Police Act of 1861 provides the duties of the police officers. Section 23 Is quoted below : "23. Duties of police officers.--It shall be duty of every police officer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace : to prevent the commission of offences and public nuisances ; to detect and bring offenders to Justice ; and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient ground exists ; and it shall be lawful for every police officer, for any of the purpose mentioned in this Section without a warrant, to enter and inspect any drinking shop, gaming-house or other place of resort of loose and disorderly characters. " Thus, normal duties of the police officer include detection and bring the offenders to justice and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient ground exists. ( 7 ) POLICE regulation provides for made of promotion. Chapter XXX of Police Regulation provides for promotion and Chapter XXI provides for rewards. Police Regulation contemplates different acts of "good service". Paragraph 466, sub-clause (4) of the Police Regulation provides : 466 (4) Rewards should not be given to any class officer for "general good work" but only for particular acts of special merit such as good arrests, good detection or good service on a special occasion. Cash rewards for good marksmanship during annual weapon firing and shots during musketry competitions are also admissible. Rewards are not to be given as a matter of routine whenever a case is directed. Nor should they be given for the efficient discharge of ordinary duties, e. g. . to a reserve inspector for good recruiting or for training recruits. "the above paragraph 466, sub-clause (4) clearly contemplate that the rewards should not be given for general good work. The Government order dated 3. 2. 1994 contemplates giving out of turn promotion on indomitable courage and gallantry. Government order contemplates not merely a courage but indomitable courage. to a reserve inspector for good recruiting or for training recruits. "the above paragraph 466, sub-clause (4) clearly contemplate that the rewards should not be given for general good work. The Government order dated 3. 2. 1994 contemplates giving out of turn promotion on indomitable courage and gallantry. Government order contemplates not merely a courage but indomitable courage. The Government order do not contemplate giving of out of turn promotion to a police officer who in discharge of his official duties apprehend the criminal to which he is duty bound. For good work including an act of bravery, a police officer may be rewarded according to Chapter XXXI of Police Regulation but the Government order dated 3. 2. 1994 requires something more than good work and bravery and the Government order, requires person claiming out of turn promotion to prove that his action showed indomitable courage and gallantry. The action of the person may be his individual act or his act in aid of collective effort of a police team. ( 8 ) AFTER having examined the object and contents of the Government order, it has now to be seen as to whether any error has been committed by the committee in examining the claim of the petitioner for grant of out of turn promotion. The writ petition asks this Court to review the decision of the committee. The scope of judicial review of assessment made by the departmental promotion committee are well defined. The Apex Court in Badrinath v. Government of Tamil nadu and others, (2000) 8 SCC 395 , has laid down in paragraphs 40 and 41 as under : "40. Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides. Courts and Tribunals cannot interfere with assessments made by Departmental Promotion committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or Irrelevant or, insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspects of ones career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusion, or If there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed. 41. 41. While the Courts are to be extremely careful in exercising the power of judicial review in dealing with assessment made by Departmental Promotion Committee, the executive is also to be in mind that, in exceptional cases, the assessment of merit made by them is liable to be scrutinised by Courts, within the narrow Wednesbury principles or on the ground of mala fides. The judicial power remains but its use is restricted to rare and exceptional situations. We are making these remarks so that Courts or Tribunals may not--by quoting this case as an easy precedent interfere with assessment of merit in every case. Courts and Tribunals can neither sit as appellate authorities nor substitute their own views to the views of Departmental Promotion committees. Undue interference by the Courts or Tribunals will result in paralysing recommendations of Departmental Committees and Promotions. The case on hand can be a precedent only in rare cases. " ( 9 ) IN the writ petition, no foundation has been laid down for allegation of bias nor any officer has been impleaded by name. There being no personal allegation against any respondent, no claim of any bias can be looked into. The petitioner has also not been able to show as to what were inadmissible or irrelevant or Insignificant material, which have been taken into consideration by the committee. The counsel for the petitioner has given much emphasis ; on the fact that the petitioners case was recommended by the Superintendent of Police, Deputy inspector General of Police and Inspector General of Police. The recommendations made by the aforesaid police officers were in accordance with the procedural requirements for enabling the competent authority to consider the claim. After Issuance of the Government order dated 3. 2. 1994, the Director General of Police has issued a circular dated 10. 2. 1994 which has been filed as Annexure-2 to the writ petition. Paragraph 6. 2 deals with the procedure which provides that all the claims of out of turn promotion be sent to the Director General of Police through concerned Superintendent of Police. Deputy Inspector General of Police and Inspector General of Police. The circular dated 10. 2. 1994 Itself contemplates that examination of the claim will be considered by the committee constituted which consist of higher police officers along with the proposal the other required materials have also been enumerated in the circular. Deputy Inspector General of Police and Inspector General of Police. The circular dated 10. 2. 1994 Itself contemplates that examination of the claim will be considered by the committee constituted which consist of higher police officers along with the proposal the other required materials have also been enumerated in the circular. The Government order dated 3. 2. 1994 provides that the decision is required to be taken by the Director General of police. The recommendations sent are thus only a proposal and it cannot be said that the proposal is necessary to be accepted by the committee. When the decision is entrusted to a particular authority or body, the decision is to be taken by the said body and proposal and other materials are only materials to take a decision. The committee has every right to take decision on the facts and the proposal submitted before It. I have also gone through the recommendations sent by the Superintendent of Police, Deputy Inspector General of Police, and Inspector General of Police, which have been filed as Annexures-12. 13 and 14 to the writ petition. The aforesaid proposals only states the events and make recommendations. The recommendations have been made in favour of 12 police personnel who consisted the police party. The recommendations do not specifically point out particular act of the petitioner showing indomitable courage and gallantry. The recommendations are only general recommendations. The impugned order gives following reasons : (i) In the police party apart from the petitioner, there were 11 other police personnel and it is not found that the petitioner has personally shown any indomitable courage and gallantry work to come within the purview of the Government order dated 3. 2. 1994 : (ii) The encounter was a chance encounter in which it was only subsequently found that the dead person was Mahendra Fauji ; (iii) In reply to three fires of criminals, police party has fired 35 rounds ; (iv) In the encounter apart from dead criminal, all other criminals were successful in escaping. ( 10 ) ABOVE considerations cannot be said to be irrelevant. The committee is right while taking the view that for getting benefit of Government order dated 3. 2. 1994, specific act of indomitable courage and gallantry has to be proved by the individual officer. ( 10 ) ABOVE considerations cannot be said to be irrelevant. The committee is right while taking the view that for getting benefit of Government order dated 3. 2. 1994, specific act of indomitable courage and gallantry has to be proved by the individual officer. Requirement of showing act of indomitable courage and gallantry has to be proved whenever a police personnel is claiming the benefit of Government order whether the act was his act alone or the act done in aid of carrying out operation by a team, even when the individual is claiming benefit of Government order on the basis of his collective role as part of the team it has to be proved that his individual act as part of team work shows indomitable courage and gallantry work. ( 11 ) NO doubt the work done by the police party was commendable ; for which the police party has already received reward from the State Government and by Delhi Government The giving of award/reward clearly shows good work by the police party and the aforesaid award is in recognition of good work by the police party. However, out of turn promotion on the basis of the government order dated 3. 2. 1994 is a shade higher than merely courageous or commendable work. Every courageous or commendable work does not come within the purview of the government order dated 3. 2. 1994. This Court has no doubt that the act performed by the petitioner was courageous and commendable. ( 12 ) WHILE assessing the recommendation of the committee, this Court can interfere only when error is one which has been explained by the Apex Court in Badrinath v. Government of Tamil nadu and others (supra ). I do not find that the petitioner has made out any ground to Interfere with the decision of the committee. ( 13 ) WITH regard to the second submission made by the counsel for the petitioner that the benefit was given to other police personnel in different incident for which reference has been made by the petitioner to Annexures-16. 17 and 18 to the writ petition. Annexures-16, 17 and 18 to the writ petition pertained to different incidents of encounter and each encounter depends to a different set of circumstances. 17 and 18 to the writ petition. Annexures-16, 17 and 18 to the writ petition pertained to different incidents of encounter and each encounter depends to a different set of circumstances. The committee which is entitled to examine particular incident and the act of courage has taken its decision with regard to other incident. Every case depends on facts of own case and petitioner for getting the benefit has to prove his case within the purview of the Government order dated 3. 2,1994. Committee having found that the petitioners act did not amount to Indomitable courage and gallantry, the fact that certain other persons have been granted benefit cannot help the petitioner. ( 14 ) WITH regard to third submission, it is stated that the High Court while quashing the order dated 5. 5. 1995 has not held that the reasons given by the Director General of Police in earlier order dated 5. 5,1995 were not valid reasons. The High Court quashed the order on the ground that the respondents have not taken into consideration various aspects of the matter and his past service record. The respondents were directed to consider the petitioners case afresh after taking into account his performance and recommendations of the Superintendent of Police and pass a reasoned order. The relevant portion of the judgment is quoted below : "the respondents are directed to consider the petitioners case afresh taking into account his performance and recommendation of the Superintendent of Police and pass a reasoned order in accordance with law without being influenced by any of the observations, made above. Such consideration shall be taken by the respondent concerned within a period of four months from the date a certified copy of this order is produced before the concerned respondent. " ( 15 ) THE High Court made it clear in the judgment that the respondents were to take decision without being Influenced by any of the observations made in the judgment. From the judgment, it appears that the High Court did not hold in its judgment that earlier reasons which weighed with the committee in rejecting the claim of the petitioner were irrelevant. Further more, the reasons given in the order dated 27. 11. 1997 are not the same reasons ; which were given in the earlier order. From the judgment, it appears that the High Court did not hold in its judgment that earlier reasons which weighed with the committee in rejecting the claim of the petitioner were irrelevant. Further more, the reasons given in the order dated 27. 11. 1997 are not the same reasons ; which were given in the earlier order. In view of the above, it cannot be said that the reasons given in the impugned order were irrelevant or the respondents were forbidden by the earlier order of this Court in giving the said reasons. I do not find any substance In the said argument of the counsel for the petitioner. ( 16 ) THE counsel for the petitioner apart from the fact that the recommendation of the superintendent of Police : Deputy Inspector General of Police ; and Inspector General of Police formed valid material and could not be ignored by the respondent has not submitted as to what other materials were not considered by the committee. It has been discussed above that the recommendations were only proposal for purposes of submissions of facts to enable the committee to form its opinion. The recommendations are neither binding nor are final words in the matter. ( 17 ) WITH regard to the decision of Ashok Rana v. Home Secretary : U, P. Shashan, Lucknow and others, (supra) cited by the petitioner, standing counsel has pointed out that the special appeal was filed against the aforesaid judgment being Special Appeal No. 87 of 2000 which was allowed setting aside the judgment and directing the selection committee to reconsider the matter of Ashok Rana again. In the aforesaid judgment, the special appellate court directed for reconsideration on the ground that the impugned order in question (in writ petition of Ashok rana) does not show consideration of material on record In the aforesaid case, the Division bench was satisfied with the submission of the counsel for appellant that the committee had not taken into account all the relevant material as indicated above. In the present writ petition, the original records have been placed by the standing counsel, which were perused by the Court. The perusal of the record shows that the recommendation by the Superintendent of Police : Deputy inspector General of Police and Inspector General of Police were part of the record and were considered by the committee. In the present writ petition, the original records have been placed by the standing counsel, which were perused by the Court. The perusal of the record shows that the recommendation by the Superintendent of Police : Deputy inspector General of Police and Inspector General of Police were part of the record and were considered by the committee. ( 18 ) IN view of the above, the Judgment in Ashok Ranas case (supra) do not help the petitioner. The other decision cited by the petitioner of Brij Nandan Rai was on facts of that case. This court in the aforesaid judgment held that the reasons given for denying out of turn promotion were not valid reasons. The Court in that case held that no doubt the decision of the committee has to be subjectively formulated but the decision must be based on objective consideration on valid materials. In the present case there Is consideration of valid material. The aforesaid judgment is also distinguishable. ( 19 ) IN view of the above, I do not find any ground to Interfere with the impugned order dated 27. 11. 1997. The writ petition lacks merit and is liable to be dismissed. ( 20 ) THE writ petition is dismissed.