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2010 DIGILAW 34 (ALL)

SANGAM LAL MISHRA v. STATE OF U P

2010-01-05

A.P.SAHI

body2010
A. P. SAHI, J, J. ( 1 ) HEARD Shri P. S. Baghel, learned Senior Counsel for the petitioner and the learned Standing Counsel. ( 2 ) THE challenge is to the proceedings of the Committee dated 15th January, 2009 whereby the claim of the petitioner for out-of-turn promotion has been rejected. The petitioner is an Assistant Sub-Inspector of Police and he claims out-of-turn promotion on the ground that there are citations in his favour of showing exemplary courage while facing an encounter with dacoits. ( 3 ) SHRI Baghel questioning the legality of the said order has urged that the same proceeds on erroneous assumptions of fact and law and further it does not conform to the ratio of the decisions relied upon on behalf of the petitioner. He submits that there was no material on the basis whereof the Committee could have arrived at a different conclusion and that the reliance place on the F. I. R. is an erroneous exercise, inasmuch as, there was no material apart from the F. I. R. to assess that the petitioner has not shown exemplary courage while discharging his duties, and therefore under the Government Order he is entitled for out-of-turn promotion. He submits that it is for this reason that when the matter had earlier come up before this Court, a Division Bench in the direction dated 23rd May, 2008 had indicated that the claim of the petitioner should be considered in the light of the judgements referred to therein. Shri Baghel further submits that apart from this the department itself has been granting out-of-turn promotions for several other persons in similar circumstances and therefore the order amounts to discriminating the petitioner. Shri Baghel contends that the impugned order deserves to be set aside and the petitioner is entitled for out-of-turn promotion on the strength of the guidelines of the Government Order and the material which was already there before the Committee. ( 4 ) LEARNED Standing Counsel, on the other hand, contends that the Committee has considered the entire material on record including the first information report and has thereafter arrived at a conclusion that the discrepancies between the first information report and the citations sufficiently establish that the petitioner had not acted in a way which amounted to an act of exemplary courage and as such the conclusion drawn by the Committee cannot be faulted with. ( 5 ) HAVING heard learned counsel for the parties and having perused the relevant material on record including the first information report, which is the basis for nonsuiting the petitioner in respect of the claim of out-of-turn promotion, it appears that a police party had been organized for conducting a raid against some dacoits. The petitioner was also one of the members of the raiding party and when they approached the site as pointed out by the police informer, some of the dacoits started indiscriminate firing. The first information report recites that in spite of that indiscriminate firing, at the first instance, all the police personnel some how the other saved themselves but thereafter when the police party returned back the fire, the dacoits again resorted to firing, as a result whereof, the petitioner was injured and he sustained a bullet injury on his face. ( 6 ) THE citations, which have been relied upon and which have been extended in favour of the petitioner, state that such an act in which the petitioner while engaged in an encounter had received bullet injuries on his face, amounts to exemplary courage shown and therefore the petitioner was recommended for awarding him out-of-turn promotion. ( 7 ) THE Committee after perusing the records came to the conclusion that a perusal of the first information report there was no element of exemplary courage and it was in the ordinary course of duty that the petitioner was there in order to conduct a raid against the dacoits during day time. It was during the exchange of fire that he sustained the injury and mere sustenance of such an injury does not amount to an act of exemplary courage. ( 8 ) SHRI Baghel contends that the decisions which have been rendered by this court clearly indicate that nothing more is required and that the participation in an encounter is sufficient to establish the fact that the petitioner was engaged in an encounter and he received an injury which amounts to an act of exemplary courage. ( 9 ) I have perused the judgment and also the Division Bench judgment, which was rendered in favour of the petitioner while remanding the matter back to the committee for a decision afresh. ( 9 ) I have perused the judgment and also the Division Bench judgment, which was rendered in favour of the petitioner while remanding the matter back to the committee for a decision afresh. The ration of the said decision is quoted below however, the aforesaid two judgments cited before us explain the meaning of exemplary courage and bravery on the part of the officer and on the basis of the aforesaid judgments, it can be held that it is the attempt of the officer participating in the encounter without caring for his life, which is material while considering the out-of-turn promotion and not that by his act any miscreant or dacoit has been killed, injured or apprehended. ( 10 ) A perusal of the aforesaid ratio would clearly indicate that the participation in the encounter has to be without caring for the life of the police personnel. The same ratio has been indicated in the decisions which have been relied upon by the learned counsel for the petitioner wherein also the same view has been expressed. Reliance has been placed in the case of Ashok Rana v. Home secretary, U. P. Shasan, Lucknow and others, which has been appended along with the writ petition, in which the words full of danger and exemplary courage have been considered and in essence the said judgment rules that the act should be such that the police personnel had acted in a manner without any fear of loving life. In the instant case, the Committee has gone through the entire records and it has discounted the claim of the petitioner on the recital contained in the first information report, which does not indicate in any way that the petitioner having scant respect for his life engaged himself in the encounter. This is the material which has been made the basis for rejecting the claim of the petitioner. The F. I. R. itself recites that the police personnel tried to take a defensive position and had actually saved themselves by escaping any injury in the first round of encounter. ( 11 ) IT is well settled that where the authority has expressed its discretion after consideration of the material on record, it cannot be said that the case of the petitioner has been discriminated as against the case of other similar situated persons. ( 11 ) IT is well settled that where the authority has expressed its discretion after consideration of the material on record, it cannot be said that the case of the petitioner has been discriminated as against the case of other similar situated persons. ( 12 ) IN my opinion, the aforesaid view cannot be said to be arbitrary or perverse and the same is founded on a material, which was relevant to the controversy. ( 13 ) THE writ petition lacks merit and is accordingly dismissed. .