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2017 DIGILAW 2051 (ALL)

STATE OF U. P. v. RAVINDRA KUMAR SAINI

2017-09-01

ARUN TANDON, SIDDHARTHA VARMA

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JUDGMENT : Hon'ble Arun Tandon,J. Hon'ble Siddhartha Varma,J. Heard Sri Vijay Gautam on behalf of the appellant-State. No one is present for the respondents. 2. This intra court appeal is directed against the judgment and order of the learned Single Judge dated 20.12.2011 passed in Writ Petition No. 66308 of 2006 (Ravindra Kumar Saini Vs. State of U.P. and others). 3. The facts in short as are relevant for deciding the appeal are as under: Ravindra Kumar Saini was employed as a Constable in the police department and was posed at Police Station Muzaffar Nagar. On 19.2.2004, an information was received that two persons armed with A.K. 47 rifles riding a Honda motorcycle were going towards Roorki for creating some act of terrorism. In order to stop them a police party headed by Station House Officer, Sri S.K.Pratap and some other Constable including the petitioner chased the culprits. The terrorists allegedly fired upon the Jeep, which fire was returned by the members of the police party. One terrorist died on the spot and the other managed to escape. 4. Two sets of police parties are alleged to have been engaged in the encounter, one was headed by the Station House Officer and the other by the S.S.P. Muzaffarnagar. 5. The police headquarter granted out of turn promotion in favour of the three Constables namely Raj Kumar Yadav, Praveen Kumar Yadav and Naseem but the name of the petitioner was not included therein. 6. The petitioner, therefore, approached this Court by means of Writ Petition No.28157 of 2005. The writ petition was disposed of vide order dated 11.04.2005 requiring the Authority to consider the matter afresh. The S.S.P. vide communication dated 28.5.2005, recorded that the role played by the petitioner in the encounter of the terrorists was similar to the roles played by Raj Kumar Yadav, Praveen Kumar Yadav and Naseem who had already been granted out of turn promotion. 7. The Director General of Police who is the competent authority, however, did not agree with the recommendation so made and rejected the request of the petitioner for out of turn promotion. This led him to the filing of Writ petition No. 66308 of 2006. 8. 7. The Director General of Police who is the competent authority, however, did not agree with the recommendation so made and rejected the request of the petitioner for out of turn promotion. This led him to the filing of Writ petition No. 66308 of 2006. 8. The learned Single Judge after recording that no reason had been assigned for rejecting the report of the S.S.P. which had resulted in denial of out of turn promotion to the petitioner has proceeded to issue a positive mandamus commanding the respondents to grant out of turn promotion to the petitioner as had been done in the case of Raj Kumar Yadav, Praveen Kumar Yadav and Naseem. Not being satisfied, the State of U.P. has approached this Court by means of this Special Appeal. 9. In our opinion, the discretion to grant out of turn promotion vests with the State through Director General of Police. The S.S.P. is only to make his recommendation which is not binding on the D.G.P. and other higher officials. 10. We are also of the opinion that if the Writ Court was of the opinion that the recommendation of the S.S.P. could not have been rejected without disclosing any reason, the order which could have been passed was that and the D.G.P. may reconsider the recommendation of the S.S.P. and thereafter pass a reasoned order, even he had to disagree with the recommendation. Under Article 226 of the Constitution of India Writ Court could not have exercised the discretion which vested in the D.G.P. Therefore, could not have been a positive direction for out of turn promotion being granted to petitioners as has been done in the present case. 11. We, therefore, set aside the order of the learned Single Judge dated 20.12.2011 and substitute the same by providing that the D.G.P. will reconsider the matter afresh and shall pass a reasoned order after conducting the report of the S.S.P. The exercise shall be completed within a period of eight weeks. 12. The special appeal is, accordingly, allowed subject to the observations aforesaid.