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2018 DIGILAW 564 (ALL)

SHAKTI SINGH YADAV v. STATE OF U. P.

2018-03-08

SHASHI KANT, SUDHIR AGARWAL

body2018
JUDGMENT : 1. Heard Sri Udai Chandani, learned counsel for appellant and learned Standing Counsel appearing for the respondents. 2. This intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 has arisen from judgment dated 12.01.2011 passed by learned Single Judge in Civil Misc. Writ Petition No. 1617 of 2011 - Shakti Singh Vs. State of U.P. and Others, dismissing appellant's writ petition challenging the order of competent authority whereby petitioner's claim for Out of Turn Promotion (hereinafter referred to as "O.T.P.") was turned down. 3. Petitioner-appellant participated in an encounter operation carried out on 09.11.2009 wherein Naxal Commander was shot dead. He claimed out of turn promotion in the same manner as was allowed to Akhilesh Singh (Sub-Inspector), Gopal Singh (Head Operator), Siya Ram (Station Officer) and Vijay Kumar (Head Constable). 4. The respondents had taken a stand that actually an enquiry was conducted in the matter and only those persons who actually participated in the operation were granted O.T.P. and since petitioner-appellant was not found involved in the said operation, though he was member of team, therefore, was awarded cash prize of Rs.7,500/-. 5. Learned Single Judge has observed that Superintendent of Police did not make any recommendation in favour of petitioner for O.T.P., whether a Police Officer is entitled for O.T.P. or not, such matter has to be examined objectively by State and its authorities and unless view taken by authorities is found to be perverse or otherwise any arbitrariness is found, Court would not sit in appeal to make assessment whether alleged act of a Police Officer is such so as to justify O.T.P. or not. 6. In the present case there is subsequent development also. Relevant Government Order (hereinafter referred to as "G.O.") providing O.T.P. was issued on 03.02.1994. Thereafter, State Government framed U.P. Sub-Inspector and Inspector (Civil Police) Service Rules, 2008 (hereinafter referred to as "SI and I Rules, 2008") and U.P. (Civil Police) Constables and Head Constables Service Rules, 2008 (hereinafter referred to as "C and HC Rules, 2008"). These Rules were made in exercise of powers conferred by Section 2 read with Section 46(2) of Police Act, 1861 (hereinafter referred to as "Act, 1861"). These Rules superseded existing Rules made in that behalf. Effect of enforcement of aforesaid Rules was considered by a Division Bench in Kandwa Kumar Mishra Vs. These Rules were made in exercise of powers conferred by Section 2 read with Section 46(2) of Police Act, 1861 (hereinafter referred to as "Act, 1861"). These Rules superseded existing Rules made in that behalf. Effect of enforcement of aforesaid Rules was considered by a Division Bench in Kandwa Kumar Mishra Vs. State of U.P. and Others - Special Appeal No. 117 of 2014 (decided on 03.02.2014). It directed Government to take decision whether after enforcement of Rules, 2008, G.O. dated 03.02.1994 providing O.T.P., would continue to hold field or not? Court issued direction to Principal Secretary (Home), Government of Uttar Pradesh to the following effect :- "In the circumstances, we direct that, in the first instance, the Principal Secretary (Home) shall, after eliciting the views of the Director General of Police, take a considered decision within a period of three months from today on the administrative circulars for the grant of out of turn promotions and make a determination as to whether they would continue to remain in force after the enforcement of the 2008 Rules. Based on the aforesaid decisions, the State Government may take an appropriate decision in respect of the case of the appellant which has been recommended by the superior officers of the Police Force, expeditiously and in accordance with law." 7. Pursuant to aforesaid directions, State Government issued G.O. dated 7th June, 2014, declaring that provisions contained in Office Memorandum dated 03.02.1994, with immediate effect has been rescinded and in its place Proviso 1 was made for Police Personnels who demonstrate exemplary courage while on duty to provide monetary award on recommendation of Director General of Police. 8. Again an issue was raised that aforesaid G.O. dated 7th June, 2014 is prospective and all matters which were pending before Government for O.T.P., till issue of G.O. dated 7th June, 2014, shall be governed by earlier Scheme/G.O. Dated 03.02.1994. Learned Single Judge has accepted claim that matters where recommendations were made prior to 7th June, 2014 for O.T.P., it would be considered as per G.O. dated 03.02.1994. Division Bench in Special Appeal (D) No. 884 of 2015 - State of U.P. and Others Vs. Mahaveer Singh and Others (decided on 12.01.2016), did not accept view taken by learned Single Judge. It relied on Full Bench judgment in Anand Kumar Sharma Vs. Division Bench in Special Appeal (D) No. 884 of 2015 - State of U.P. and Others Vs. Mahaveer Singh and Others (decided on 12.01.2016), did not accept view taken by learned Single Judge. It relied on Full Bench judgment in Anand Kumar Sharma Vs. State of U.P. and Others, 2014 (2) ADJ 742 (FB), and held that no person has any vested or indefeasible right to be granted O.T.P. or Appointment in terms of G.O. dated 03.02.1994, once subsequent G.O. dated 7th June, 2014 was issued and earlier G.O. was rescinded. Any direction thereafter could not have been issued for considering any one for O.T.P./Appointment as per G.O. dated 03.02.1994. 9. Considering question whether in matters where recommendations were made for O.T.P. before 7th June, 2014, whether it can be considered conferring any vested or indefeasible right or not; Division Bench clearly held that such claim of O.T.P. is based on G.O. dated 03.02.1994. Aforesaid G.O. provides for creation of ex-cadre posts by State Government and recommendation of Police Officer for O.T.P.. Thus, O.T.P. is not be to granted against existing vacancy and an existing vacancy cannot be filled up by making O.T.P. Observation to this effect in Division Bench judgment in State of U.P. Vs. Mahaveer Singh and Others (Supra) reads as under :- "The important aspect in the present case which needs to be emphasized is that there were no vacancies as such which existed and which were required to be filled up by initiating a process of promotion under a prevailing set of rules. As we have noted earlier, the office memorandum dated 3 February 1994 contemplated the creation of ex-cadre posts on the recommendation of the Director General of Police by the State Government and against which out of turn appointments were to be made again by the State Government on the recommendation of the Director General of Police. In this background, it would be far fetched to postulate that a mere recommendation which was made - in the present case by the Senior Superintendent of Police - conferred upon a member of the police force an indefeasible or vested right to promotion. In this background, it would be far fetched to postulate that a mere recommendation which was made - in the present case by the Senior Superintendent of Police - conferred upon a member of the police force an indefeasible or vested right to promotion. Once the Government Order dated 7 June 2014 has taken effect, which has the effect of rescinding the office memorandum dated 3 February 1994, any promotion which is required to be made would necessarily have to be governed by the statutory rules which hold the field." 10. Proceeding further, Division Bench said that mere making an application would not create a situation to confer indefeasible vested right to claim O.T.P. or Appointment under G.O. dated 03.02.1994. It also held that even recommendation made upon application would not confer such indefeasible vested right to claim O.T.P. It is only when ex-cadre posts is created and recommendation is made, that Government would consider matter for O.T.P. and not otherwise. Relevant observation made by Division Bench in State of U.P. and others Vs. Mahaveer Singh and others (supra), read as under :- "In our view, the aforesaid judgments will not assist the case of the respondents. In fact, as held by the Full Bench of this Court in Anand Kumar Sharma (supra), the mere making of an application would not in a situation such as the present confer an indefeasible or vested right to out of turn appointments or promotions, nor for that matter, would a recommendation made upon the application confer such an indefeasible right. The office memorandum contemplated the creation of ex-cadre posts by the State Government on the recommendation of the Director General of Police. It is only upon the creation of ex-cadre posts and the recommendation of the Director General of Police for an out of turn appointment that the State Government would make an out of turn appointment. A conscious policy decision has been taken by the State Government based on the exigencies of the service to the effect that in terms of the Government Order dated 7 June 2014, the office memorandum would stand rescinded and that the scheme of out of turn appointments would stand substituted by monetary compensation. A conscious policy decision has been taken by the State Government based on the exigencies of the service to the effect that in terms of the Government Order dated 7 June 2014, the office memorandum would stand rescinded and that the scheme of out of turn appointments would stand substituted by monetary compensation. Emphasis was sought to be laid on behalf of the respondents on the fact that the judgment of the Public Service Tribunal in the case of a Sub-Inspector by the name of Jitendra Singh Kalra accepted the case for the grant of out of turn promotion which has been accepted by the State Government. Even assuming that this is so, we find no reason or basis to extend the benefit in general terms in other cases once the Government Order dated 7 June 2014 has come into force." 11. Thus, Division Bench categorically held that after issue of G.O. dated 7th June, 2014, no matter of O.T.P. can be proceeded and completed in terms of Office Memorandum dated 03.02.1994 which has been rescinded. 12. In this view of the matter also it cannot be said that appellant is entitled to claim O.T.P. in the case in hand since neither in his favour there is any recommendation nor any ex-cadre post has been created and Office Memorandum dated 03.02.1994 has already been rescinded by subsequent G.O. dated 7th June, 2014. Thus no relief can be granted. 13. We therefore, find no merit in this appeal. Dismissed.