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Madhya Pradesh High Court · body

2008 DIGILAW 28 (MP)

Hasan Khan v. State of M. P.

2008-01-08

A.M.NAIK

body2008
ORDER 1. Case of the petitioner is that he in the capacity of Constable with the police team participated in face to face encounter with Dacoits on 9.5.1998. Dacoit Vimles Jatav was killed in encounter by the police party. S.P., Gwalior recommended the case of petitioner and other constable for out of turn promotion vide Annexure A-6. Inspector General of Police, Gwalior gave out of turn promotion to the petitioner to the post of Head 'Constable vide order dated 9.5.1998 contained in Annexure A-7. It is stated that petitioner has joined on the said poston 9.5.1998 and had been working on the promotion post since then. After lapse of more than two years, petitioner was served with the impugned order contained in Annexure A-8, declining thereby approval for out of turn promotion to the petitioner. This has been challenged in the original application before State Administrative Tribunal which came up for hearing today on account of abolition of State Administrative Tribunal. 2. Shri Kat are , learned Advocate contended that petitioner was duly promoted on the post of Head Constable in out of turn manner and cannot be reverted to the post of Constable in the impugned manner. It is further contended that no, opportunity of hearing was provided to the petitioner who was working on the promotional post. 3. In the return it has been stated that Annexure A-7 is merely a wireless communication. Moreover, on the recommendation by Inspector General of Police but in absence of approval from Director General of Police no out of turn promotion could have been granted by the I.G.P. Even in Annexure A-7 it was clearly mentioned that the case for obtaining the formal sanction for out of turn promotion was forwarded to PHQ, Bhopal. Thus, it is amply clear that there was no approval for out of turn promotion to the petitioner and such approval having been declined no infirmity is found in Annexure A-8. 4. Ms. Sudha Shrivastava, learned Panel Lawyer made her submissions in support of return and documents annexed thereto. 5. Thus, it is amply clear that there was no approval for out of turn promotion to the petitioner and such approval having been declined no infirmity is found in Annexure A-8. 4. Ms. Sudha Shrivastava, learned Panel Lawyer made her submissions in support of return and documents annexed thereto. 5. Out of turn promotion is provided in Regulation 70-A of M.P. Police Regulations which reads as under: 70-A. Notwithstanding anything contained in Regulation 70,a Constable may be promoted to the rank of Head Constable by the Superintendent of Police with the prior approval of the Directors General of Police and a Head Constable to the rank of Assistant Sub Inspector by the Deputy Inspector General of Police with the prior approval of the Director General of Police if he has distinguished himself in anti dacoity operations, law and order situations of shooting competitions or in some other field of duty or who has been awarded the President's Police Medal for Gallantry or for meritorious/ distinguished services, if he considers him Suitable for promotion. Similarly the Inspector General of Police may promote an Assistant Sub Inspector to the rank of an Inspector on similar grounds if found suitable for promotion and subject to the prior approval of the Directors General of Police. The number of Officers promoted under this Regulation shall not exceed 10 percent." 6. Aforesaid provision empowers the Superintendent of Police with prior approval of DGP to promote a constable to the rank of Head Constable, if he has distinguished himself in anti dacoity operations. Thus, prior approval is sign-qua-non for exercising power for out of turn promotion. Surprisingly, there is no office order regarding promotion of the petitioner, from the post of Constable to the rank of Head Constable. On perusal of Annexure A-7 it seems to be a wireless communication from Inspector General of Police Gwalior to Director General of Police (M.P.) with the following language: "i. In compliance of your consent and orders Constable No. 1480 Hasan Khan (petitioner) and Constable No.4 Udaibhan Singh have been promoted to the rank of Head Constables. A case for obtaining formal sanction for their out of turn promotion has been forwarded to PHQ, Bhopal. ii. Consent and orders of DGP were mentioned in Annexure A-7. A case for obtaining formal sanction for their out of turn promotion has been forwarded to PHQ, Bhopal. ii. Consent and orders of DGP were mentioned in Annexure A-7. It has been emphatically denied by the respondents that an approval was accorded for out of turn promotion to the petitioner as required under Regulation No. 70-A. Moreover, it is clearly mentioned in Annexure A-7 itself that the case for out of turn promotion was forwarded to PHQ, Bhopal for obtaining sanction". 7. Shri Katare, learned counsel contended that it has never been the case of the respondents that no approval was earlier granted for out of turn promotion to the petitioner for the rank of Head Constable. This contention does not seem to be correct because petitioner had earlier submitted Writ Petition No. 1285/2000 which was dismissed by the learned Division Bench of this Court on 15.9.2000. Learned Division Bench observed : "It is claim of respondents that in fact there was no prior approval which had been obtained and on the contrary the formal sanction referred to in the wireless massage, was refused by the Directors General of Police. It is also contended on behalf of the respondents that in face of the report of the magisterial enquiry there could not arise any question of granting prior approval and that too on the very date on 9.5.1998 itself as claimed by the petitioner". 8. It may be seen that wireless massage is of the date of occurrence itself i.e. 9.5.1998. It does not appeal to reason that approval would have been accorded by the DGP on the date of occurrence itself when even entire report of the occurrence would not have been received by him. Moreover, case was forwarded to PHQ for sanction which clearly goes to show that the I.G.P. was not in receipt of necessary' approval under Regulation 70-A while issuing. wireless communication contained in Annexure A-7. In absence of office order regarding promotion of petitioner to the rank of Head Constable, petitioner cannot be treated to have been promoted in accordance with law. DGP (M.P.) was within his power to refuse to accord approval for out of turn promotion., Thus, petitioner has failed to establish that he was promoted to the rank of Head Constable in accordance with the Regulations., 9. DGP (M.P.) was within his power to refuse to accord approval for out of turn promotion., Thus, petitioner has failed to establish that he was promoted to the rank of Head Constable in accordance with the Regulations., 9. It is contended by Shri Katare; learned counsel that no reason has been assigned in Annexure A-8 for reversion. Annexure A-8 is not an order of reversion but is a document whereby DGP(M.P.) has refused; to accord the approval for out of turn promotion. Thus this contention of Shri Katare has no force.. 10. Shri Katare placed reliance on (1999) 8 SCC 378 [Gajanan L. Pernekar v. State of Goaand another], (1999) 1 SCC 685 [Ram Ujarey v. Union of India], 1997 MPLSR 109 [Ku. Rita Bhaduri and others v. Municipal Corpn. Durg and others] and 2002 MPWN (2) 46 [Surendra Kumar Namdeo v. State of M.P.] and contended that no opportunity of hearing was provided to the petitioner before making his reversion to the post of Constable from the post of Head Constable. On perusal of the impugned document (Annexure A-8) it is observed that the same does not amount to reversion. DGP has merely refused to accord approval for out of turn promotion. In none of-the cases, relied by Shri Katare, the petitioner therein was holding the post which required prior approval. However, the purpose of the petitioner would be served if post decisional opportunity of hearing is granted to him for establishing prior approval, if any. 11. It may be seen that State Administrative Tribunal has refused to grant interim relief to the petitioner vide its order dated 16th of May, 2000 which was challenged by the petitioner before this Court in Writ Petition No. 1285/2000. Writ petition was dismissed on 15.9.2000. This being so, a post decisional opportunity of hearing is sufficient for the petitioner and he is not entitled to any other relief, so far as this petition is concerned. 12. In the result, petition is disposed of with a direction that respondent No.2 shall grant a post decisional opportunity of hearing to the petitioner in the matter within a period of three months from the date of receipt of certified copy of this order. No order as to costs.