CIVIL WRIT PETITION NO.7515 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: JUNE 11, 2010 Sukhbir Singh .....Petitioner VERSUS The State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Anurag Goyal, Advocate, for the petitioner. Mr. V. S. Rana, Addl.A.G., Haryana, for the State. Mr. S. K. Sharma, Advocate, for respondent Nos.7, 8 & 11. **** RANJIT SINGH, J. Own Rank Pay (ORP) promotion granted due to an act of bravery has been a cause of heart burning for a large number of employees. It is generally felt that it is being misused to favour the favourites. This Court also felt so, when this writ petition came up for hearing on 7.5.2008. The petitioner has approached this Court with the grievance that ORP promotions in this case were given to a few selected favourites for an action where the petitioner also participated but was not considered and granted ORP promotion CIVIL WRIT PETITION NO.7515 OF 2008 :{ 2 }: whereas five others were so promoted. He accordingly filed this writ to pray for grant of ORP promotion to him as well. Can one ask for ORP promotion on the ground that he has performed a gallant act, may, thus, be a question, which may have to be addressed? Would the ORP promotion be the only mode to recognise an act of bravery is another question requiring consideration? These issues would arise in these two Civil Writ Petition Nos.7515 of 2008 (Sukhbir Singh Vs. The State of Haryana and others) and 5126 of 2007 (Constable Giani Ram Vs. The State of Haryana and others), though these petitions are filed seeking O.R.P. Promotions. Civil Writ Petition No.7515 of 2008 is filed to impugn the order dated 8.10.2007, through which O.R.P promotions were granted to respondent Nos.7 to 11, which are termed as discriminatory, besides praying that claim of the petitioner was ignored without assigning any reason. Prayer for issuing a writ of certiorari to quash these promotions is thus, pressed and also a writ of mandamus for directing the official respondents to promote the petitioner to the post of A.S.I under O.R.P Scheme. Not honouring a deserving person can be as harmful as honouring some one who is not fully deserving. The heart burning, where such promotion is granted and where it is denied in a deserving case, thus, is natural. This Court had also expressed itself so. When this case came up for hearing before a Division Bench on 7.5.2008, the Court after perusing the record declined to grant the prayer in the writ petition but felt that benefits were wrongly given to CIVIL WRIT PETITION NO.7515 OF 2008 :{ 3 }: the private respondents and as such, issued notice of motion to the official respondents to that extent only. As can be noticed from the order, the Court rather expressed its' anguish by noticing that there was no extra ordinary bravery shown by the respondents and that they had performed their duties in routine. The relevant part of the order reads as under:- “After looking into the contents of the FIR, we have failed to understand as to what act of bravery has been committed/displayed by the 16 police officials. It is also on record that one ASI Balraj, along with other police personnel, also reached at the spot. Benefit of ad hoc promotion has been given to the five police officials. It is duty of the members of the police to chase and apprehend the anti social elements. In that process, it is expected that the criminals may put up resistance and if during action, two police officials have received injuries on the non-vital part of their body, it cannot be termed as an act of bravery. Number of the police officials was more than 16, one additional police party also reached at the spot, they were armed, in view of that they were bound to over power both the criminals. We have noted with concern that this Policy of `Own Rank and Pay' ad hoc promotion has caused a lot of heart burning in the police force. It is being used in a pick and choose manner. We have seen that on getting awards and commendation letters, many officials have been promoted on ad hoc basis as per the above said CIVIL WRIT PETITION NO.7515 OF 2008 :{ 4 }: policy, even in cases where they were doing their routine duties. This compassion of appreciation can be shown in favour of those police officials, who may have shown extra ordinary courage but not in a case of ordinary nature. In view of that, we are not inclined to give any relief to the petitioner and to that extent, his prayer stands rejected. At the same time, we are also convinced, after going through the record, that benefit has wrongly been given to the private respondents. Notice of motion to that extent only for 26.5.2008.” The case was thereafter adjourned to different dates. In its order dated 6.8.2008, the Court had noticed that record of the committee, which has examined the cases of the respondents for adhoc promotion/O.R.P promotion was not readily available. The case was accordingly adjourned. On 25.8.2009, this Court viewed that there would be a need to ensure that some fair system is put in place to be followed so that the apprehension that a policy of pick and choose was being followed is mitigated to an extent. The Court considered it necessary to receive suggestion from the State counsel as well as other counsel appearing for the parties. The order in this regard reads as under:- “In view of the anguish, which is quite apparent from order dated 7.5.2008, some parameters would need to be laid down for grant of ORP promotion, specially when these are to be granted on the ground of showing bravery or a gallant act. Though the very policy seems to be in CIVIL WRIT PETITION NO.7515 OF 2008 :{ 5 }: question as seen from the observations made by the Division Bench as recorded in order aforementioned, yet there may not be a need to interfere as such in the policy, the same having been recognised in the rule and having been impliedly approved by the Hon'ble Supreme Court. There is, however, general consensus between the counsel representing the parties that such type of promotions are source of heart burning in the staff. Allegations of pick and choose are frequently made. Those allegations may be true or it may be otherwise but the impression which is conveyed is that these promotions are not fairly made. There is always apprehension in the mind of everyone concerned that such promotions are made by adopting pick and choose policy. There would thus be a need to ensure that some fair system is put in place to be followed so that this apprehension is mitigated. It may not lead to removing the mischief, if any, altogether but such a system/policy, if formulated, would certainly go to mitigating the grievance of all concerned, who are to be considered for grant of such promotions. Before any order in this regard is passed as is prayed for, it would be appropriate to request the State as well as counsel representing the parties to give some suggestions in this regard so that they can be considered and appropriate orders passed. For this purpose, adjourned to 7.10.2009.” Subsequently, submissions were made by the counsel CIVIL WRIT PETITION NO.7515 OF 2008 :{ 6 }: appearing for the petitioner. Another Writ Petition No.5126 of 2007 was also tagged with this writ petition. The counsel appearing in this writ petition was also requested to render assistance. Suggestions were invited from whosoever was interested in assisting the Court and some counsel have appeared in this case to give some suggestions. It has transpired that some policy was in operation to which reference would be made hereinafter. On behalf of the State, it is submitted before the Court that the D.G.P., Police had constituted a Committee to go into the matter and lay down the broad parameters, which would govern the award of bravery, so that uniform policy can be formulated. Affidavit in this regard was filed on behalf of the Director General of Police. The counsel appearing for the parties have also given some valuable suggestions, which would be noted hereinafter. As per the reply initially filed on behalf of the State, it is averred that a policy of adhoc promotion in the State titled as “Own Rank and Pay” was formulated which was duly approved by the State Government vide memo No.8/31/99-6HGI dated 20.12.1999. It is also stated that O.R.P policy was produced before this Court and had also been circulated to all police units. As per this policy, benefit of O.R.P is given under the following three categories:- “i. For an act of bravery. ii. For the achievements in the field of sports. iii.For a consistent good performance in police work i.e. professional excellence.” Reference is also made to the observations made by Hon'ble Supreme Court while deciding Civil Appeal No.2273 of 2004 CIVIL WRIT PETITION NO.7515 OF 2008 :{ 7 }: arising out of S.L.P. No.13389 of 1998 titled Paras Kumar and others Vs. S.I.Ram Charan and others. ORP policy was impliedly approved. The relevant part is as under:- “.....Before parting with the case, it has to be clarified that out of turn or adhoc promotion is to encourage the subordinate police officers and shall be given only to enrolled police officers as under Rule 1.13 of PPR i.e. upto the rank of Inspectors. As per rule 13.3 (1) the power to make promotions among gazetted officers and from non-gazetted to gazetted rank vests in the local Government with the concurrence of the Governor. Therefore, the gazetted police officers i.e. Deputy Superintendents and above can not come under the ORP Scheme, which is essentially an exercise of powers under Section 12 of the Police Act. In order to avoid similar controversies in the future, it will be appropriate for the State Government to formulate appropriate rules/policies so as to streamline the promotion for appreciation.” Some directions were also issued by this Court while disposing of Civil Writ Petition No.10309 of 2004. This order reads as under:- “However, we do feel that the State Government should frame a comprehensive policy for regulating out of turn promotion against the sports quota earmarked under the rules so as to ensure that all eligible candidates get due consideration at the time of recruitment/promotion. Such policy should contain provision for issuance of public CIVIL WRIT PETITION NO.7515 OF 2008 :{ 8 }: notice/advertisement for appointment of sports persons by direct recruitment. Similarly, there should be provision for circulation of departmental notice so as to enable all eligible persons to apply for promotion against the sports quota. The policy should also contain a discernible criteria to be strictly followed while making appointment against sports quota by direct recruitment and/or by promotion. Hence, while declining the petitioner's prayer for quashing/modification of order dated 3.4.2004, we direct the State Government to frame a comprehensive policy for consideration of the candidature of eligible persons for direct recruitment and/or promotion against the posts earmarked for sports persons and ensure that the candidature of all eligible persons is concerned at the time of recruitment by either methods. The needful be done within a period of four months from the date of submission of certified copy of this order. If the Government has already framed such policy, then the same should be given wide publicity and it should be ensured that in future, recruitment is made against the sports quota after due consideration of all eligible persons. The writ petitioner is directed to give attested copy of this order to the learned Addl.Advocate General.” While complying with the above directions passed by the Courts, the revised ORP policy appears to have been framed. This policy was limited only to giving recognition to some gallant action and in the policy, it was proposed that Member of the police force, CIVIL WRIT PETITION NO.7515 OF 2008 :{ 9 }: who has got an O.R.P shall not be eligible for another O.R.P unless he has got a regular promotion to the next higher substantive rank. This revised policy was approved and issued on 12.5.2006. This policy was again examined, when it was found that the policy had not catered for a situation where the person had excelled in professional excellence, other than a gallant act. It was noticed that there was no provision in the policy to give O.R.P promotion to enrolled police official for showing some exceptional good work/achievement in professional areas as well as outstanding achievement in the field of sports. It was, therefore, decided to grant O.R.P in recognition of exceptional achievement in professional areas of policing as well as outstanding achievement in the field of sports, such as to those who were recipient of Arjuna Award or Bhim Award or those who won gold medals in All India Police Games and Duty Meet or gold/silver/bronze medal in Olympics or gold/silver/bronze medal in Common Wealth Games or Asian Games or gold medal in Asian/Common Wealth Championship/Inter State Championship or gold/silver medal in SAARC Games or gold medal in National Championships. This policy was approved by the State through letter No.8/131/99-6HGI dated 27.3.2008. A Committee was also constituted by the D.G.P. to examine and recommend each case for granting O.R.P promotion and it consisted of Sh.V.P.Singh, IPS, ADGP, L&O as a Chairperson, Shri B.S.Sandhu, IPS, IGP/M&W, as a Member Secretary and IGP, Range as a Member. It is also disclosed that the recommendations received from the concerned S.P and I.G.P are examined by the above noted Committees and then are put up to the D.G.P. for approval and thereafter O.R.P rank is given as per the policy. CIVIL WRIT PETITION NO.7515 OF 2008 :{ 10 }: Accordingly, an attempt was made to blunt the criticism that was being made while granting O.R.P and it was justified on the ground that only deserving people were being so promoted. The Director General of Police has now re-examined the entire issue. An additional affidavit has been filed by the Director General of Police and the broad parameters, which were kept in view for grant of O.R.P for showing bravery or gallant act are summarized as under in the said affidavit:- “i. Promotions under ORP are meant to encourage the subordinate police officers and is given only to enrolled police officers (Constable to Sub Inspector) only upto the rank of Inspector. ii. The `ORP' is given in recognition of some `Gallant Action' by the member of Police force. The `Gallant Action' means an act of bravery of the highest order by a police officer/official (NGO), in the face of imminent danger to his own life in furtherance of maintenance of peace and public order, protection of public life and property, and serving larger public interest i.e. apprehending and taking prompt legal action in face to face encounters with terrorists/militants/desperadoes/ antisocial elements and violent/furious mobs or similar actions during natural calamity. In other words, the act of bravery should be such which is suitable for making a recommendation for Gallantry Medal or Prime Minister's Life Saving Medal. In addition, the acts of bravery are also recognized by granting Commendation CIVIL WRIT PETITION NO.7515 OF 2008 :{ 11 }: Certificates alongwith suitable cash rewards. Besides this, the `ORP” is also given in recognition of exceptional achievement in professional areas of policing as well as outstanding achievement in the field of sports such as recipients of Arjuna Award of Govt. of India or Bhim Award of Haryana Government or those who win Gold Medals in All India Police Games and Duty Meet or Gold/Silver/Bronze Medals in Olympics or Gold/Silver/Bronze Medal in Commonwealth Games or Asian Games or Gold Medal in Asian/Commonwealth Championships/Inter State Championships or Gold/Silver Medal in SAARC Games or Gold Medal in National Championships. The championships should have been conducted by recognized State/National sports bodies. Sports person shall include both male and female.” The Director General of Police has deposed on an affidavit that there is no room for playing favours for some ones or for denying O.R.P to deserving officials. The revised policy for O.R.P is also annexed with this affidavit and it is as under:- “What is promotion in “OWN Rank and Pay” (ORP):-In order to encourage enrolled police officers i.e. Constable to Inspector ranks `Out of Turn' or Adhoc promotions may be granted by the DGP as per provisions of ORP Policy, mentioned hereunder. Accordingly, Constable, HCs, ASIs and SIs shall be allowed to wear badges of the next higher rank against their substantive rank and pay. This CIVIL WRIT PETITION NO.7515 OF 2008 :{ 12 }: will be known as promotion in `OWN Rank and Pay'. A person who has been promoted in his `OWN Rank and Pay' for all intents and purposes shall be treated as an official in his substantive rank and will not consume or exhaust any substantive post of higher ranks in the regular channel of promotion. Such personnel would get their regular promotions as HCs, ASIs, SIs and Inspectors on their turn and seniority subject to passing the promotional courses on their turn. The other main features of ORP Policy shall be as follows:- 1. Promotions under ORP are meant to encourage the subordinate police officers and shall be given only to enrolled police officers (Constable to Sub Inspector) only upto the rank of Inspector. 2. The `ORP' should be given in recognition of some `Gallant Action' by the member of Police force. The `Gallant Action' means an act of bravery of the highest order by a police officer/official, in the face of imminent danger to his own life in furtherance of maintenance of peace and public order, protection of public life and property, and serving larger public interest i.e. apprehending and taking prompt legal action in face to face encounters with terrorists/militants/ desperadoes/ antisocial elements and violent/furious mobs or similar actions during natural calamity. In other words, the act of bravery should be such which is suitable for making CIVIL WRIT PETITION NO.7515 OF 2008 :{ 13 }: a recommendation for Gallantry Medal or Prime Minister's life saving medal. In addition, the acts of bravery may also be recognized by granting Commendation Certificates alongwith suitable cash rewards. Besides this, the `ORP' should also be given in recognition of exceptional achievement in professional areas of policing as well as out standing achievement in the field of sports such as recipients of Arjun Award of Govt. of India or Bhim Award of Haryana Government or those who win Gold Medals in All India Police Games and Duty Meet or Gold/silver/Bronze Medal in Olympics or Gold/Silver/Bronze Medal in Commonwealth Games or Asian Games or Gold Medal in Asian/Commonwealth Championships/Inter State Championships or Gold/Silver Medal in SAARC Games or Gold Medal in National Championships. The championships should have been conducted by recognized State/National sports bodies. Sports person shall include both male and female. 3. ORP promotion will be ordered by the Director General of Police on the recommendation of a Committee comprising of one ADGP (Chair Person) and One IGP and PHQ (Member Secretary) nominated by DGP, and One IGP Range other than the one who has recommended the case (Member) within a period of twelve months from the date of occurrence/event CIVIL WRIT PETITION NO.7515 OF 2008 :{ 14 }: after which it may be treated as time barred. However, in exceptional cases for reasons to be recorded in writing, DGP may differ with the recommendations of the Committee. DGP may fix a time frame to be adhered to by field units for making such recommendations. 4. The `ORP to Constables should invariably be regularized under 10% quota of B-1 under PPR 13.7 provided they fulfill laid down criteria. However, for regularizing such ORP cases under the above mentioned 10% category, care should be taken that the candidate must not have received any major punishment and should have a consistently good service record. 5. This revised ORP policy shall be prospective in nature and will be applicable from the date of approval of the State Government. 6. A Committee will be constituted by DGP and the recommendations of the Committee would be got approved by the DGP being Head of the Department for non-gazetted staff.” Though, the policy was formulated and appears to be in operation but still the Court, while noticing the facts in the writ petition, came to take a view that there was nothing gallant appearing from the acts committed by the private respondents herein, who had been granted O.R.P. Promotion and it was only a routine act of policing, which had been viewed as a gallant act and promotions CIVIL WRIT PETITION NO.7515 OF 2008 :{ 15 }: bestowed. It was accordingly felt that such promotions were still being made on account of some consideration, other than merit of the case/act and hence, notice was issued as to why these promotions be not interfered with. The submission by the counsel representing the petitioners generally is to the effect that the gallant act not being defined with any precision, still could be viewed in the discretion of the concerned officers, who have to make recommendations and also of the Committee, which was to view the same and then make its recommendation to the Director General of Police. The submission, thus, is that either in the policy or otherwise, the gallant act should be defined with precision so as to minimise the scope of discriminatory pick and choose, if any, specially in the cases of gallant act for ORP promotion. The counsel would co-relate this aspect with the cases where O.R.Ps are granted to those officials who excel in the field of sports where these promotions are granted on a well recognized and understood parameters like where one has got Arjuna award or is a recipient of Bhim award or has won a medal in the games, which are, thus, well defined to leave any scope of any doubt in the method of selection. There may, thus, be a need to say something about those cases of ORP promotion where it is to be granted on the basis of gallant act and for selection of persons for the purpose of promotion for professional excellence. As already noticed, there may not be much difficulty in the cases where the promotion is to be granted for excelling in the field of sports. A well laid out method is available in the policy for grant of such promotions and this is related to the CIVIL WRIT PETITION NO.7515 OF 2008 :{ 16 }: achievement, which are well recognized either by the award bestowed by the Government or on account of the medal, which an employee is able to win. The difficulty would arise in those cases where such promotions are to be made on account of excellence in the performance or on account of an act of bravery. There is an age old tradition to recognize acts of conspicuous bravery or distinguished service by persons in the Armed Forces. This is done by bestowing various awards, which have been instituted for such purposes. Such awards, besides honouring the individual concerned, also serves to inspire and motivate others. Need to select deserving persons after careful consideration that too with comparison with others in similar circumstances would need no emphasis. Generally, it would be difficult to define a gallant act with precision and such an act has to be judged from the facts in each case and the manner in which said gallant act is performed. To define the gallant act as such, would be rather difficult and