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2016 DIGILAW 1144 (RAJ)

State of Rajasthan v. Ummed Singh son of Shri Gulab Singh

2016-08-08

NAVIN SINHA, PANKAJ BHANDARI

body2016
ORDER : Navin Sinha, J. The present appeals arise from a common order dated 19.12.2014 allowing three separate writ petitions setting aside a common but separate orders dated 26.7.2012 under Rule 28(a) of the Rajasthan Police Subordinate Service Rules, 1959 (hereinafter referred to as "the Rules"). awarding a sum of Rs. 2,000/- as reward, substituting it by special promotion under the Rules. 2. Learned Additional Advocate General submitted that the Learned Single Judge has herself observed that special promotion cannot be granted as a matter of course and that the power was discretionary, to be exercised by the Director General of Police and also that the Court cannot interfere with this exercise of discretion unless it was malafide or arbitrary. There is no finding of malafide or arbitrariness in the present cases. The assessment for grant of out of turn promotion under Rule 28 (a) is made on the recommendation by a Committee of officers. There is no challenge to the constitution of the Committee much less has the recommendation of the Committee been assailed on any specific grounds. The challenge is only to the order of the Director General of Police on basis of the recommendation. The investigation was conducted by the Respondents as a team and not individually. It was but a part of routine duty of a police officer to investigate crimes. The Director General of Police, Rajasthan has recently issued guidelines for exercise of discretion under Rule 28 on 3.5.2016. Recognition has been granted to the Respondents. The nature of recognition to be granted either by monetary award or out of turn promotion is a matter of administrative discretion and the Court ought not to have interfered with it. 3. Learned counsel for the Respondents submitted that the Director General of Police has acted on the mere recommendation of the Selection Committee without independent application of mind. The Rules provide that such cases are required to be considered and ordered by the Director General-cum-Inspector General of Police. It was next submitted that the specific allegation of discrimination by citing more than one incident was not denied in the counter affidavit. The Learned Single Judge therefore ruled both with regard to arbitrariness and discrimination. In the circumstances malafide becomes an irrelevant issue. 4. We have considered the submissions on behalf of the parties. 5. It was next submitted that the specific allegation of discrimination by citing more than one incident was not denied in the counter affidavit. The Learned Single Judge therefore ruled both with regard to arbitrariness and discrimination. In the circumstances malafide becomes an irrelevant issue. 4. We have considered the submissions on behalf of the parties. 5. The Respondents who are police personnel were required to investigate an FIR lodged in the year 2010. It is not in dispute that they performed their duties. The bone of contention is Rule 28(a) which provides for out of turn promotion to the extent of 10% for what is described as "outstanding work in anti-dacoity, anti-smuggling or in any special field of police work". We concerned with the third part of the Rule as the crime was neither a dacoity nor anti-smuggling operation. 6. If a crime is committed, it is the normal and routine duty of the police to investigate and unravel crime, identify the victims and the perpetrators of the crime and see to it that the latter are dealt with by the law and punished if found guilty by the Court. To that extent, all police personnel would axiomatically speaking be at par. Rule 28 (a) visualises "outstanding work in any special field of police work". 7. A specific allegation was made that in similar circumstances others who investigated murder cases were given out of turn promotion. Thus the allegation of hostile discrimination. The counter affidavit did not deny the primary facts with regard to each of the cases for the year 2010 and also for which out of turn promotions have been given. The Learned Single Judge has also recorded a finding that in none of the cases the life of the police personnel was at stake where award had been given. We find no reason to differ with the conclusion of the Learned Single Judge that the recommendation of the Selection Committee itself was non-speaking in nature and simply reiterated by the Director General of Police. 8. Rule 28 (a) does not contain any guidelines for deciding who are to be considered as having performed "outstanding work". No criterion appears to have been laid down as to what shall constitute "outstanding work". The power is therefore discretionary. Merely because the power is discretionary cannot lead to a conclusion that it suffers from the vice of arbitrariness. 8. Rule 28 (a) does not contain any guidelines for deciding who are to be considered as having performed "outstanding work". No criterion appears to have been laid down as to what shall constitute "outstanding work". The power is therefore discretionary. Merely because the power is discretionary cannot lead to a conclusion that it suffers from the vice of arbitrariness. Discretionary power can also be exercised with care and caution with due diligence by application of mind. But if similarly situated persons are dealt with in different manner by exercise of unreasoned discretionary orders it becomes discriminatory and arbitrary. 9. If there are no objective criteria laid down for exercise of the discretion and the power is absolute, it is bound to suffer from the vice of arbitrariness and discrimination. The more the discretion the greater the caution required in its exercise. In such case the standard of scrutiny by judicial review will also be higher. In State of W.B. v. Debasish Mukherjee, (2011) 14 SCC 187 it was observed as follows :- "35. ..........At the outset, we may note that in a democracy, governed by the rule of law, where arbitrariness in any form is eschewed, no Government or authority has the right to do whatever it pleases. Where the rule of law prevails, there is nothing like unfettered discretion or unaccountable action. Even prerogative power is subject to judicial review, but to a very limited extent. The extent, depth and intensity of judicial review may depend upon the subject-matter of judicial review." 10. The job of the police is highly complex and technical, more so with the increasing intelligence with which crime is committed where the police has to be smarter than the criminal. In this context, we may usefully refer to the definition of the word "outstanding" from Webster's Encyclopedic Unabridged Dictionary of the English Language 2001 Edition which defines it as "prominent; conspicuous; striking; marked by superiority or distinction; excellent; distinguished.." Therefore the word "outstanding" constitutes some thing different from the routine. We purposefully refrain from further judicial analysis of the term as it may impinge upon the freedom of the police authorities in deciding the objective criterion in light of the same to guide the discretion of the Selection Committee and the Director General of Police. We purposefully refrain from further judicial analysis of the term as it may impinge upon the freedom of the police authorities in deciding the objective criterion in light of the same to guide the discretion of the Selection Committee and the Director General of Police. Suffice it to observe that it will necessarily vary from one case to another where even the nature of the crime and the manner it was solved may become a very relevant factor. The right to be considered for out of turn promotion is not a vested right. But if the Rules provide for the same, there have to be objective criteria or guidelines with regard to the manner of its exercise in absence of which the discretionary power may degenerate into arbitrariness or discrimination causing a civil wrong to one and an undue benefit to another though both may be similarly situated. 11. The guidelines framed recently on 3.5.2016 will not govern the case of the Respondents. Nonetheless we shall take notice of the same for future reference. It read as follows:- "1. Use of IT in detection of crime. 2. Outstanding intelligence collection leading to successful operations. 3. Detection of special & economic crimes...." 12. On a very broad framework it cannot be said that it does not lay down certain objective criteria. We purposefully refrain from further analysis of the same except for observing that it may be advisable to have structured guidelines with regard to the same and parameters for exercise defined with further classification and elucidation. With great caution and without indicating that we propose to lay down guidelines, there may be cases where use of IT technology may be complex and where it may be simple. Similarly outstanding intelligence collection may include recovery admissible under Section 27 of the Evidence Act or could go much beyond it into the modern world of science and technology. Crimes can be solved by individuals and by teams both and sometimes individual efforts may not be sufficient. 13. In the facts and circumstances of the case, the findings of discrimination, the absence of any guidelines at the relevant time, we find no reason to interfere with the order under appeal. The appeals are dismissed.