Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1139 (MP)

Shivnath Singh Bais v. State of M. P.

2014-09-11

SHEEL NAGU

body2014
JUDGMENT Sheel Nagu, J. 1. This petition under Article 226 of Constitution of India assails the order dated 09.08.2007 Annexure P-4 by which recommendation made by the Superintendent of Police to grant out of turn promotion to the petitioner on the post of Assistant Sub Inspector to Sub Inspector of Police under the provisions of Regulation 70(A) of M.P. Police Regulation (for brevity 'Regulations') has been declined by the Director General of Police (for brevity 'DGP') and instead award of Rs. 5,000/- has been sanctioned for bravery shown by the petitioner in an anti Dacoity operation which took place in the District of Shivpuri leading to elimination of T-9 Gang. 2. Learned counsel for the rival parties are heard for final disposal of this petition. 3. Contentions of the Petitioner 4. Learned counsel for the petitioner contends that the petitioner, who was holding the rank of Assistant Sub Inspector showed unmatched and unprecedented bravery in his capacity as a member of police team which eliminated the T-9 Gang in the encounter which took place on 27.02.2005 at Bhansada khurd, Dist. Shivpuri. It is further contended that the said team comprised of SDOP, Mohinder Kanwar, T.I. D.S. Kushwah, the petitioner and few police constables. The operation conducted by the said team led to elimination of three members of the said T-9 Gang namely Ramesh, Kshetrapal Singh and Kamal Singh Jatav and large amount of arms and ammunitions were recovered from the spot. It is further submitted that the Superintendent of Police, Shivpuri lauding the act of bravery of the petitioner recommended the case of the petitioner for out of turn promotion vide Annexure P-1 dated 05.12.2006. It is further submitted by learned counsel for the petitioner that instead of granting out of turn promotion, the petitioner was merely awarded Rs. 5,000/- as cash price by the DGP by order dated 09.08.2007 (Annexure P-4). It is further submitted that the petitioner made representation for reconsideration of his case for out of turn promotion by Annexure P-5 dated 08.10.2007, but to no avail. 5,000/- as cash price by the DGP by order dated 09.08.2007 (Annexure P-4). It is further submitted that the petitioner made representation for reconsideration of his case for out of turn promotion by Annexure P-5 dated 08.10.2007, but to no avail. Lastly, learned counsel for the petitioner drew the attention of this Court to the order dated 08.04.2009 of DGP (Annexure P-6) to contend that in case of a constable R.S. Kushwah, who had also been denied out of turn promotion under Regulation 70(A) of the Regulations and merely cash award was granted, on approaching the High Court, whereby, direction was given for reconsideration, the case of the said R.S. Kushwah was considered and DGP granted him out of turn promotion to the post of Head Constable. 5. In support of the contentions, learned counsel for the petitioner has placed reliance on the decision of the Apex Court in the case of Kranti Associates Private Limited & Another Vs. Masood Ahmed Khan & Ors. reported in : (2010) 9 SCC 496 to emphasis the need to record the reasons while passing adverse order and the decision in the case of Hasan Khan Vs. State of M.P. & Ors. reported in 2008(1) MPWN 111 and the decision in the case of Suresh Pal Singh Vs. State of M.P. & Ors. reported in : 2012 (III) MPJR 195 to emphasis that though Regulation 70(A) vests discretion upon the DGP, but the same has to be exercised judiciously without the element of arbitrariness, mala fide, bias or irrationality from coming in the way. 6. Learned counsel for the petitioner lastly contends that the impugned order is bereft of reasons and is non speaking, thus falls foul of Article 14 of Constitution of India. 7. Contentions of the Respondents 8. Per contra, learned State counsel contends by referring to the return that the provision of Regulation 70(A) of the Regulations is discriminatory and does not bestow any right of out of turn promotion on any police personnel. The State counsel further submits that the case of the petitioner for out of turn promotion was duly considered based upon favourable recommendation of Superintendent of Police, Dist. Shivpuri, but competent authority i.e. DGP did not find the act of the petitioner during said operation of elimination of T-9 Gang to be distinguishable and suitable enough for grant of out of turn promotion. Shivpuri, but competent authority i.e. DGP did not find the act of the petitioner during said operation of elimination of T-9 Gang to be distinguishable and suitable enough for grant of out of turn promotion. It is further submitted that the competent authority while rejecting the application for out of turn promotion has dealt with it in objective manner. 9. Findings 10. Considering the submissions of learned counsel for the rival parties and perusal of the record, it is necessary to re-produce the provision of Regulation 70(A) of Regulation :- 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 Sub-Inspector and a Sub-Inspector to the rank of an Inspector on similar grounds if found suitable for promotion and subject to the prior approval of the Director General of Police. The number of Officers promoted under this Regulation shall not exceed 10 percent. 11. It is further essential to re-produce the provisions of Regulation 70 of regulation, which is as follows:- "70. S.I. Promotion of.---- The system of promotions in the subordinate executive ranks will be as laid down in the supplement to the Madhya Pradesh Police Gazette dated 05.10.1960. As given in appendix 'A'." 12. Regulation 70 lays down rule that all promotions of Subordinate executive officers shall be done in accordance with procedure laid down in M.P. Police Regulation Gazette dated 05.10.1960. The District Executive Force defined in Regulation 6 provides for Executive Officer of the District Executive Force which includes Assistant Sub Inspector under clause C (1). Thus in normal circumstances, the promotion of Sub Inspector is governed by the procedure laid down in M.P. Police Gazette dated 05.10.1960. Pertinently Regulation 70-A starts with non-obstinate clause (notwithstanding). The District Executive Force defined in Regulation 6 provides for Executive Officer of the District Executive Force which includes Assistant Sub Inspector under clause C (1). Thus in normal circumstances, the promotion of Sub Inspector is governed by the procedure laid down in M.P. Police Gazette dated 05.10.1960. Pertinently Regulation 70-A starts with non-obstinate clause (notwithstanding). By employing non-obstinate clause Regulation 70-A excludes the operation of Regulation 70. Thus Regulation 70-A is an exception to the general rule provided in Regulation 70 of Regulations. The out of turn promotions contemplated by Regulation 70-A from the post of Constable to the post of Head Constable, from the post of Head Constable to the post of Assistant Sub Inspector, from the post of Assistant Sub Inspector to the post of Inspector. Different authorities are vested with power to issue out of turn promotion order subject to following three conditions :- (i) That, the officer concerned has distinguished himself in anti dacoity operations, law and order situations of shooting competitions or in some other field of duty or has been awarded the President's Police Medal for Gallantry or for meritorious/distinguished services; (ii) Prior approval of the DGP is necessary and; (iii) Such out of turn promotion should not exceed 10 percent of total sanctioned strength of the cadre in which out of turn promotion is being made. 13. The respondents in the instant case while rejecting the case of the petitioner for out of turn promotion, by impugned order Annexure P-4 dated 09.08.2007, has not assigned any reason. Even the return filed by the State does not disclose any specific reason except that the case for out of turn promotion has been duly considered in accordance with law and the case of the petitioner for out of turn promotion was not found deserving. The reasons for not finding the case of petitioner deserving for out of turn promotion are not only conspicuously absent in the impugned order but also in the return. Since the impugned order is bereft of reasons explaining the cause for finding the petitioner unfit for out of turn promotion, this Court refrains from going into the merits of the claim of the petitioner for out of turn promotion. 14. The decision of the Apex Court in the case of Kranti Associates (supra) comes to the assistance of the petitioner. 14. The decision of the Apex Court in the case of Kranti Associates (supra) comes to the assistance of the petitioner. Every executive authority when passing order entailing adverse consequence is required to give reasons so that the affected person can assail the same on the basis of reasons, which reflect the mind of the authority passing the order. The reasons are the bridge between the facts and findings which validate and validate the executive action. Giving of reasons further prevents the executive order from falling prey to the reasonableness clause in Article 14 of Constitution of India. 15. In a democratic set up when statutory provision in the shape of Regulation 70(A) of Regulations vests exceptional power in the hands of executive authority to grant out of turn promotion and the said power is couched in a language which render it an exception to the general rule then the said exceptional power needs to be exercised with due care, caution and circumspection and any order passed in exercise of such power ought to satisfy the bare minimum requirements of reasonableness, fair play of good consciousness. 16. In view of the above discussions, this Court is inclined to interfere in the impugned order dated 09.08.2007 (Annexure P-4) passed by DGP denying out of turn promotion to the petitioner, solely on the ground of the same being non-speaking one. 17. Accordingly, this petition is allowed to the extent indicated herein below:- (i) The impugned order dated 09.08.2007 (Annexure P-4) is hereby quashed. (ii) The competent authority i.e. DGP after applying statutory provisions of Regulation 70-A of Regulations and following the principle of law as explained above, shall be free to pass order afresh after considering all the material available on record as expeditiously as possible preferable within a period of two months from the date of receipt of certified copy of this order. No order as to cost.