This writ petition has been filed for quashing the order impugned dated 28.08.2009, passed by the respondent No.2 (Annexure-11 to the writ petition), rejecting the claim of the petitioner for out of turn promotion in view of Government Order 1994. Further, a writ in the nature of mandamus commanding the respondents to promote the petitioner out of turn to the post of Inspector Civil Police w.e.f. 2000.
The petitioner was appointed in Civil Police on the post of Sub Inspector and from time to time after 1995 he was posted at several places and when the petitioner was posted as Station Officer of Police Station Attarsuiya, District Allahabad, he gun-down hardened criminal, namely, Samar Bahadur Singh alias Sajju Kana, who was having award of Rs.5,000/- declared by the State of U.P.. In the aforesaid incident, life of the petitioner became in danger as bombs were thrown on him. The petitioner was given a cash award of Rs.5,000/- by the Deputy Director General of Police, Allahabad Range, Allahabad. The Superintendent of Police as well as the Senior Superintendent of Police recommended the claim for awarding out of turn promotion to the petitioner. A magisterial enquiry was also made in respect of encounter of criminal Samar Bahadur Singh alias Sajju Kana and submitted a report on 11.07.2001, in which work of the petitioner was appreciated. The Deputy Inspector General of Police has also recommended claim of the petitioner for out of turn promotion on 19.06.2002. The claim of the petitioner was rejected in spite of recommendation made by various authorities. Then, the petitioner filed a writ petition before this Court being Writ Petition No. 35627 of 2005, which was finally decided by this Court on 01.10.2007, and the matter was remanded back to the Director General of Police for passing appropriate order in view of the observation made in the said judgment. The claim of the petitioner has again been rejected vide impugned order (Annexure-11 to the writ petition) on the same ground mentioning therein that work of the petitioner does not come under the purview of bravery and as it is not mentioned in the recommendation that what effort has been made by the petitioner to kill the hardened criminal and whether he has died due to fire made by the petitioner, therefore, he is not entitled to get out of turn promotion in view of Government Order dated 03.02.1994.
As regards achievement made by the petitioner, it is not necessary to be mentioned in the present writ petition being the fact that in Writ Petition No. 35627 of 2005 a detailed mention has been made and this Court after considering various judgments has set aside the order and directed the authority to consider the claim of the petitioner strictly in accordance with law that too within a period of three months.
As counter and rejoinder affidavits have already been exchanged, therefore, with consent of the parties, this writ petition is being decided finally.
Sri Swapnil Kumar, learned counsel for the petitioner submits that rejection of the claim of the petitioner is almost on the same ground mentioning therein that in the recommendation it has not been mentioned that aforesaid criminal was killed by the petitioner. In the magisterial investigation, it has also not been proved that the life of these persons, who were involved in the killing of the hardened criminal, were in danger. The actual role of the petitioner has not been indicated, therefore, according to Government Order, it does not come under clause (3) of Government Order dated 03.02.1994, as such, he cannot be promoted out of turn. He further submits that the petitioner being In-charge of the party, on his instigation and under his guidance and supervision, the aforesaid act was done and hardened criminal, against whom various criminal cases i.e. about 46, were pending, which is mentioned in the earlier judgment of the writ petition, were pending. The hardened criminal Samar Bahadur Singh alias Sajju Kana only on the information received by the petitioner being In-charge of the Police Station concerned has taken steps for the said purpose and ultimately he was killed. It has come from the record that from both sides firing has taken place and police personnels accompanying were injured. Further, it has been submitted that about 26 persons, who were in security of the Chief Minister, have been given out of turn promotion without considering the fact regarding bravery work done by them. The petitioner has brought on record promotion of various persons, who have also been granted out of turn promotion, though in that incident nobody was killed, but eight persons were arrested. That act of those persons was taken into consideration by the Committee and it was held that their act was of bravery and they are entitled to get out of turn promotion. Learned counsel for the petitioner has submitted that fact regarding promoting 26 persons, who were in security of the Chief Minister have been given promotion vide order dated 10.02.2004, a copy of the same has been annexed as Annexure-12 to the writ petition. The petitioner has submitted that from the perusal of the order, it is not clear that what work of bravery according to 1994 Government Order they have done, therefore, rejection of the claim of the petitioner is bad in law and is liable to be quashed. He has placed reliance upon a judgment of this Court, passed in Service Bench No. 982 of 2010; State of U.P. Thru. Prin. Secy., Deptt. Of Home & Anr. Vs. Sunder Singh Solanki. In that case writ petition was allowed directing the authority concerned to consider case of claim of person concerned for out of turn promotion. Reliance has been placed upon paragraphs 14, 17, 20, 23 & 25 of the aforesaid judgment, which are being quoted below:-
"14. From the perusal of the inference drawn by the Committee it appears that the action of the claimant respondent has not been treated to be daring one since he suffered minor injury and a finding has been recorded that it was the collective act of police team. Ordinarily every time when teams are constituted to apprehend the dreaded criminal or terrorist, actions are collective but while discharging collective obligations the importance of leadership abilities and individual effort plays important role like in the present case, where during the course of encounter the claimant respondent courageously at the stake of his life when two of his police constables were injured forwarded his steps towards the dreaded criminal to apprehend him. The office memorandum regulating out of turn promotion (supra) provides that the act of police personnel must be of outstanding bravery where a famous or dreaded criminal is killed or apprehended. It has not been disputed that the criminal killed, namely Deepak Dhobi was a dreaded one and famous criminal and police was in his search. The District Level Committee though found that because of outstanding bravery and immediate action of claimant respondents the criminal was killed but State Level Committee had recorded a finding that it was a collective act.
17. The State Level Committee had not considered the recommendation of District Level Committee in its real prospective after considering letter and spirit of the recommendation of Sponsoring Authority. In the event of disagreement the State Level Committee should have recorded reason instead of recording vague finding in its report. Reason of disagreement should have been recorded by the State Level Committee which has been not done. The tribunal had rightly held that State Level Committee has been failed to exercise jurisdiction vested in it.
20. Power conferred by Article 162 of the Constitution of India empower government to issue executive instruction to lay down service condition like out of turn promotion. Office memorandum is meant to encourage the police officers for the dedication to their duty while serving the public. It is an encouragement to keep them ready to fight with the antisocial element. It is an award for their good conduct, outstanding bravery in apprehending or killing the criminals. In the absence of any statutory provision the order issued under Article 162 of the Constitution of India creates civil rights as the part of condition of service.
23. In view of above, the Director General of Police or the State Government have to discharge their obligation with regard to out of turn promotion in just and fair manner keeping in view the letter and spirit of office memorandum dated 3.2.1994. It is unfortunate that this is the 4th round of litigation with regard to claimant respondent's fight for justice. State Government and Director General of Police must be conscious to the fact that no finding may be recorded contrary of contents of FIR as it shall be fatal to prosecute other accused who may be arrested by Investigating agency in due course of time.
25. The observation made by this court in the first round of litigation (supra) should have awaken the State Government/D.G.P. with regard to claimant's right for out of turn promotion but seems to not happened. Once the State Government provides or makes provision for out of turn promotion then every police personnel shall be entitled for its benefit for his/her act of bravery keeping in view the letter and spirit of office memorandum. The denial of such benefit shall discourage and demoralize the police personnel."
The Court has taken a view that ordinarily every time when teams are constituted to apprehend the dreaded criminal or terrorist, actions are collective but while discharging collective obligations the importance of leadership abilities and individual effort plays important role like in the present case, where during the course of encounter the claimant respondent courageously at the stake of his life when two of his police constables were injured forwarded his steps towards the dreaded criminal to apprehend him. He has submitted that the petitioner being Sub-Inspector In charge of the team each and every work was done under his leadership, and if the person, who is leading the team, is competent and according to his direction work is being done his role has to be appreciated and it cannot be held and said that he was not responsible for the work and bravery done.
Further reliance has been placed upon apex court judgment reported in JT 2011 (4) SC 85; Mohammad Aftab Mir v. State of J & K & Ors, paragraphs 10, 13 & 16 of which are being quoted below:-
"10. Having considered the submissions made on behalf of the parties and the materials on record, as also the judgments of the learned Single Judge and the Division Bench of the High Court, it does appear that the circumstances prevailing within the town of Charare Sharif and in Chadoora were different during the disturbance and the decision to grant out-of-turn promotion to Shaikh Hamidulla, who was the Station House Officer, Charare Sharif, during those fateful days was fully justified. In the absence of any glaring discrepancy or bias in the decision-making process, ordinarily the Court does not normally take upon itself the task of making a subjective assessment of an officer's performance in relation to matters of promotion and that too of the nature contemplated in the present case. However, at the same time, the Court is also entitled to consider the materials placed before it in order to arrive at a conclusion as to whether an injustice has been caused to the concerned officer. In the present case, both the Superintendent and Senior Superintendent of Police, Budgam District, had a chance to observe the Appellant's performance on the ground on 10th and 11th of May, 1995, when the incident was actually taking place and they have recommended that the Appellant should be given out-of-turn promotion. The Director General of Police has also recognized the exemplary performance of the appellant. All such recommendations seemed to suggest that the performance of the Appellant merited special consideration. Of course, the Appellant has already been promoted to the post of Inspector on 19th August, 2000, and the only question which now survives is whether such promotion should be given retrospective effect from the date on which Shaikh Hamidulla and Sub-Inspector Sonaullah were given such promotion.
13. However, from the materials on record it is quite clear that the claim of the Appellant is covered by the policy decision of the Government contained in Circular No.14-GR of 1990 dated 6th March, 1990, which provided an incentive to all Government employees to give their best performance of duties in the service of the people and in meeting the challenge of the anti-national forces to disturb the law and order situation in the State. It is only subsequently that on 6th January, 2000, that a Government Order No.Home-3(P) of 2000 was published by the State in its Home Department regarding the procedure for out-of-turn promotion in the Police Department. It is in the said circular that it has been indicated that out-of-turn promotion could be considered only for consistently exceptional performance on the anti-militancy front and that the recommendations of the Director General of Police, along with the dossier of the concerned employee, along with other formalities and the extent of deviation from the seniority rule, would have to be placed before the Home Department Select Committee for consideration and recommendation which would then be placed before the Chief Minister with the prior approval of the Minister of State, Home Department.
16. In these circumstances, we are of the view that the Appellant's claim for out-of-turn promotion, on the basis of the facts disclosed, require reconsideration in the light of the Circular dated 6th March, 1990, and not the Circular dated 6th January, 2000, as has been sought to be done in his case."
Further submission has been made on behalf of the petitioner that the petitioner has been discriminated amongst the equals and those persons, who have not done any bravery work according to 1994 Government Order, has been given promotion, which is apparent and admitted by the respondents.
On the other hand, learned Standing Counsel filed a counter affidavit stating therein that work done by the petitioner does not come under bravery, as defined under 1994 Government Order, which is apparent from the report dated 01.10.2002, which clearly goes to show that it was a team work and the petitioner cannot be given credit to that. In the order dated 28.08.2009, Director General of Police has recorded a finding that in combing operation two Station Officers were involved along with seven other police personnels, and as they jointly completed the operation, therefore, it cannot be said that the petitioner alone was involved in the said incident and is entitled to out of turn promotion. The competent authority ascertained the case and come to the conclusion that case of the petitioner does not come under the definition of Adamya Sahas Saurya, therefore, his claim for the purpose of out of turn promotion cannot be considered, as such the claim of the petitioner has been rejected.
I have considered the submissions of the petitioner and perused the record. In the earlier judgment of this Court, this Court has considered the issue in detail and on the basis of work done by the petitioner, as claim of the petitioner for out of turn promotion was recommended by the relevant authorities, therefore, this Court has quashed the order and directed the authority concerned to consider his claim again. One of the main ground for quashing that order was that no reasons have been recorded, but from the perusal of the order impugned, it does not appear that how the authorities have come to the conclusion that work done by the petitioner, though in team, cannot be said to be act of bravery. Admittedly, the person who was killed against him various criminal cases were pending. It has come on record that firing was done from other side as well from the petitioner's side, who was leading the team, therefore, there was danger of life of the petitioner as well as other police personnels, who were involved in the operation.
The Division Bench while considering the claim of the persons like the petitioner has held that the authority concerned or the State Government have to discharge their obligation with regard to out of turn promotion in just and fair manner keeping in view the letter and spirit of office memorandum dated 03.02.1994.
The State Level Committee had not considered the recommendation of District Level Committee in its real prospective after considering letter and spirit of the recommendation of Sponsoring Authority. In the event of disagreement the State Level Committee should have recorded reason instead of recording vague finding in its report. Further, it has to be seen that ordinarily every time when teams are constituted to apprehend the dreaded criminal or terrorist, actions are collective but while discharging collective obligations the importance of leadership abilities and individual effort plays important role like in the present case, where during the course of encounter the claimant respondent courageously at the stake of his life has done the act. The petitioner being a Sub-Inspector was leader of the team and, therefore, if the leader is able and has done the act properly in a prospective manner, the respondents have got no authority to ignore such bravery done by the petitioner. From the perusal of the order impugned, it is clear that after considering the report and the act done by the petitioner, claim of the petitioner has been rejected on the ground that in the said incident, as two Sub-Inspectors and seven police personnels were involved, the credit cannot be given to the petitioner alone.
In my opinion, such view taken to reject the claim of the petitioner cannot be said to be in total consonance of the Government Order of 1994. It is not the intention of the office memorandum which provides consideration and providing out of turn promotion that in such circumstances if a collective work has been done of bravery, then credit should not be given to a person, who is admittedly leading the party for the purpose of the act. The Division Bench of this Court in State of U.P. Thru. Prin. Secy., Deptt. Of Home' case (supra) has considered the issue in detail and has held that judgment and order passed by Hon'ble Single Judge is correct and the petitioner in that petition is entitled for out of turn promotion. From the perusal of the memorandum dated 03.02.1994, which provides that outstanding bravery of an Officer may be given out of turn promotion from the post of Sub Inspector to Inspector or Company Commander. As regards the contention of the respondents that the petitioner's claim does not come under clause (3) of the said memorandum appears to be misconceived. Admittedly, in the incident firing has taken place from both sides and there was a clear apprehension regarding life of these persons, including the petitioner. In the case of Mohammad Aftab Mir (supra), the apex court has held that as after assessment of bravery work done by the person concerned a reward to that effect was given regarding exemplary services rendered by the petitioner, therefore, the Court held that dismissing the claim like such cannot be held to be correct. The apex court has also held that recommendation made by various officers for the purposes of bravery work regarding performance needs special consideration. It cannot be taken very lightly on a very technical ground to reject the claim of the petitioner and the apex court after setting aside the order has further directed to reconsider the claim of the person concerned strictly in accordance with recommendations.
Further, it has to be seen that the petitioner has been discriminated in view of the fact that 26 persons, who does not come under the purview of 1994 Government Order, has been given out of turn promotion only on the ground that they were in security of the Chief Minister. From the perusal of the order of promotion of those persons, it is clear that the assessment has not been made strictly in accordance with 1994 Government Order. In the opinion of the Court, it is not permitted that the authorities have a power to discriminate the police personnels and if they does not come under the definition of 1994 Government Order, only on the basis of their personal satisfaction or on the basis of recommendation of some person, without act of any bravery, as defined under 1994 Government Order, they can be promoted. In the present case, it is clear that the petitioner has clearly been discriminated and, therefore, I am of the opinion that the order impugned passed by the respondents is not sustainable in law.
The writ petition is allowed. The order dated 28.08.2009, passed by the respondent No.2 (Annexure-11 to the writ petition) is hereby quashed and the matter is again remanded back to the respondent concerned to take appropriate positive decision in view of Division Bench judgment of this Court, mentioned above, within a period of two months from the date of production of certified copy of the order.
No order as to costs.
Order Date :- 25.5.2011 NS