1 WA 160/11 HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR CORAM : DIVISION BENCH Hon'ble Mr. Justice S.N. Aggarwal And Hon'ble Mr.Justice Brij Kishore Dube Writ Appeal No. 160 of 2011 Suresh Pal Singh -Vs- State of Madhya Pradeh and others ------------------------------------------------------------------------------------------- Shri Prashant Sharma, Advocate for the appellant. Shri Vivek Khedkar, Deputy Advocate General for the respondents/State. ------------------------------------------------------------------------------------------ O r d e r (oral) (09/12/2011) Per S.N. Aggarwal, J. This is an intra-court appeal filed by the appellant aggrieved by the order of learned Single Judge dated 26th October, 2010 in Writ Petition No.3785/09 rejecting his claim for out of turn promotion to the post of inspector from the post of sub inspector. (2) Briefly stated, facts of the case giving rise to this appeal are as follows : The appellant, in the night of 16th November,2002 while working as sub inspector at Police Station, Panihar had participated in an encounter in which six dacoits including the gang leader, a known dacoit Pappu Gurjar, were killed on account of exemplary acts of bravery exhibited by the members of the police party that participated in the encounter. In terms of Regulation 70-A of Madhya Pradesh Police Regulations, a police personnel can be considered for out of turn promotion for his act 2 WA 160/11 of bravery on the recommendations of the competent authority. The competent authority of the respondents granted out of turn promotion to four police personnel who were members of the police party that participated in the encounter. A copy of the order of their promotion is Annexure P/4 at page 70 of the appeal paper book. The appellant was not granted out of turn promotion. The authorities recommended him for issuance of citation and for cash reward of Rs.5,000/- which he got. Consequent upon recommendations of the competent authorities of the respondents, the appellant was rewarded for the acts of his bravery exhibited by him in the incident in question by award of police medal and cash of Rs.5,000/-. However, he was denied out of turn promotion by the respondents for the following two reasons : (i) “The act of of bravery of the appellant was distinguishable from the act of bravery of those who were granted out of turn promotion. Reference may be made in this regard to the return of the respondents and the relevant portion of which is at page 73 of the appeal paper book. (ii)There was no vacancy of inspector in the quota of out of turn promotion at the time he was considered for such promotion.” (3) The appellant was aggrieved by denial of out of turn promotion by the respondents to him and he challenged their administrative decision in this regard by filing a writ petition in which the order impugned in the present appeal has been passed by the learned Single Judge. The learned Single Judge has upheld the administrative decision of the respondents in denying out of turn promotion to the appellant basing his finding on the plea of respondents that the act of the appellant was distinguishable from the acts of those who were granted out of turn promotion. The learned Single Judge did not go into the second reason regarding availability or non-availability of 3 WA 160/11 vacancy in the quota of out of turn promotion which was also a ground for denial of out of turn promotion to the appellant by the Department. (4) We have heard Shri Prashant Sharma, learned counsel appearing on behalf of the appellant and Shri Vivek Khedkar, learned Deputy Advocate General appearing on behalf of respondents/State. We have also perused the record and have given our anxious consideration to the rival submissions made by the counsels for parties before us. (5) The first ground on which the appellant has been denied out of turn promotion which has also been accepted by the learned Single Judge is that his act of bravery in the incident was distinguishable from those who were granted out of turn promotion vide order Annexure P/4 at page 70 of the appeal paper book. The respondents have pleaded in their return as under : “While scrutinizing case of petitioner Screening Committee observed that petitioner has fired on dacoits taking shelter of his colleague B.K.Parashar which was totally against field crafts and tactics. In this manner petitioner has put the life of his colleague in danger and as such committee did not found work of petitioner distinguishable for grant of out of turn promotion.” With the assistance of the counsels for the parties we have scanned the record in order to find out whether the role of the appellant was actually distinguishable from the role of those who have already been granted out of turn promotion. In this regard, we would like to refer to the contents of the FIR as also the report of Superintendent of Police as both these documents contain the role performed by the appellant in the encounter. (6) An FIR of the incident in which six dacoits including the gang leader Pappu Gurjar were killed was lodged by Station House Officer Inspector B.K.Parashar. A typed copy of the FIR is 4 WA 160/11 Annexure P/2 at pages 48 to 57 of the appeal paper book and the relevant portion insofar as it deals with the role of the appellant in the incident is extracted herein below : “ ,l-ih- Xokfy;j dh ikVhZ edku dh nhokj ls ek= 5 xt dh nwjh ij iksth'ku fy, gq, Fkh rFkk fNius ds fy, Ik;kZIr txg ugh Fkh fQj ,l-ih- lk- us viuh tku tksf[ke Mkydj xksyh dh ckSNkj ds chp mPp dksVh dh ohjrk iznf'kZr dj dRkZO;ijk;.krk dk ifjp; nsrs gq, vnE; ohjrk ls viuh ikVhZ ds vU; vf/kdkjh ,oa deZpkjh ds lkFk eSnku esa ysV dj o vkxs c<rs gq, QkslZ dk eukscy c<krs jgs ,oa vkRe j{kkFkZ Qk;j djus ds vkns'k fn;s iqfyl vf/k- us bl chp vkRe j{kkFkZ Qk;j dj MdSrksa dks iqu% vkRe leiZ.k ds fy, yydkjk blh chp esa ,dM dSV us njokts ds ikl vksV ysdj vkj- fouksn ij tkuysok Qk;j djus ds fy, fu'kkuk lk/kk fd ikl esa ekStqn eq> ,l- vks- oh-ds-ikjk'kj us vkRej{kkFkZ viuh tku tksf[ke esa Mky dj mPp dksfV dh drZO; ijk;.krk dk ifjp; nsrs gq, vnE; lkgl ds lkFk vius ekdZ 3 jk;Qy ds lkFk geykoj gks jgs MdSr dks Qk;j dj /kjklkbZ dj fn;k ;fn esjs }kjk rRdky MdSr ij Qk;j ugh fd;k tkrk rks vkj-fouksn dk thou [krjs esa gks tkrk ekjs x;s MdSr dh ckn esa igpku lqjs'k xqtZj ds :i esa gqbZ A MdSr lqjs'k dks /kjklkbZ gksrs ns[k mlds ikl ekStqn nwljs MdSr us ,dne vkdzked gksdj eq> ,l-vks- ch-ds-ikjk'kj dks tku ls ekjus dh xjt ls rsth ls Qk;j >kSad fn;k bl chp esjs lkFk esjh Vhe ds lnL; mi fujh- ,l-ih- flag] ,l-vks- ifugkj esa vnE; lkgl ,oa ohjrk dk ifjp; nsdj vius tku dh ijokg u djds eq> ,l-vks- ch-ds-ikjk'kj dks vksV esa ysrs gq, geykoj MdSr ij vkRe j{kkFkZ Qk;j dj /kjklkbZ dj fn;k ftldh f'kuk[r MdSr jkeoju flag xwtZj ds :i esa gqbZ ;fn ,l-vkbZ- ,l-ih-flag ml le; mPp dksfV ,oa drZO;ijk;.krk dk ifjp; u nsdj Qk;j ugha djrs rks eq> ,l- vks- dh tku [krjs esa iM ldrh Fkh A” (7) The Superintendent of Police had recommended the case of the appellant alongwith others for their out of turn promotion vide document which is at page 60 of the appeal paper book and the relevant portion thereof is extracted herein below : “----------yxkrkj MdSarksa dh QkslZ }kjk ?ksjk canh ,oa eq[kfcj lwpuk ls fnuakd 16-12-2002 dks tkudkjh feyh dh dq[;kr MdSr iIiq xqtZj xSax vig`r nhid 'kekZ ds lkFk vuariqjk ikyh ds gkj esa nqyhjke dh eMS;k esa fNik gqvk gS A bl lwpuk ij iIiq xqtZj xSax dks idMus ,oa vig`r nhid 'kekZ dks ldq'ky NqMkus dh n`f"V ls esjs }kjk rhu ikfVZ;ksa dk xBu fd;k x;k A esjh vVSd ikVhZ ua-1 esa mi fujh{kd ,l-ih-flag 'kkfey Fkk A eqBHksM LFky nqYyhjke dq'kokg dh eMS;k dh ?ksjkcanh ds i'pkr mi fujh{kd lqjs'k iky flag us vnE; lkgl ,oa vR;Ur cgknqjh dk ifjp; nsrs gq, viuh iqfyl ikVhZ ds lkFk eMS;k dh nhokj ds ikl tkdj iksth'ku yh 5 WA 160/11 ftlds Hkhrj MdSr xSax ,oa vig`r O;fDr nhid 'kekZ fMIVh jsatj ekStwn Fks rFkk nqYyhjke ds yMds ls iwNrkN dh vkSj eMS;k esa MdSrksa dh gksus iq"V gqbZ A mlds ckn eSus MdSrksa dks gfFk;kj Mkydj eMS;k ls ckgj fudyus ,oa vig`r dks iqfyl dks lkSaius gsrq yydkjk ijUrq MdSrksa us xkfy;ak cdrs gq, iqfyl ij tkuysok Qk;j 'kq: dj fn;s vkSj njokts ds lkeus iksth'ku fy;s gq;s fujh{kd v'kksd flag HknkSfj;k dh ikVhZ ij tc MdSrksa us tkuysok geyk fd;k ml le; mi fujh{kd ,l-ih-flag us MdSrks dks yydkjrs gq, eMS;k ls ek= 10 QqV nwj [kqys [ksr esa ysVdj eMS;k ds njokts rFkk f[kMfd;ksa ls tgak ls MdSr Qk;j dj jgs Fks ij yxkrkj Qk;fjax dh A fujh{kd v'kksd flag HknkSfj;k tc MdSrksa dh xksyh yxus ls ?kk;y gks x;s rks mUgs f'kQ~V djokus esa mi fujh{kd ,l-ih-flag us cgqr ljkguh; Hkwfedk vnk dh] ftl le; cPkko ikVhZ Jh HknkSfj;k dks [khapdj ys tk jgh Fkh ml le; mi fujh{kd ,l-ih-flag yxkrkj doj Qk;j nsrs jgs ftlls MdSrksa dks v'kksd flag HknkSfj;k dh ikVhZ ij Qk;j djus dk ekSdk ugha feyk lkFk gh ftl le; mi fujh{kd oh-ds-ikjk'kj fujh{kd v'kksd flag HknkSfj;k dks f'kQ~V dj jgs Fks ml le; ,d MdSr us oh-ds- ikjk'kj ds mij fu'kkuk yxk;k gh Fkk fd ,dne ls lkgl vkSj ohjrk dk ifjp; nsrs gq, mi fujh{kd ,l-ih-flag }kjk MdSr ij rRdky dkjxj Qk;j fd;k ftlls mDr MdSr ogha /kjk'kkgh gks x;k ;fn ij fujh{kd ,l-ih-flag QqrhZ ls ;s dkjxkj Qk;j ugha djrs rks oh-ds-ikjk'kj dh tku tk ldrh Fkh A”” (8) A bare reference to the role of the appellant contained in the FIR and the recommendation letter of Superintendent of Police would amplify the act of his bravery and would negate the first reason given by the respondents for denying out of turn promotion to him. Rather the role of the appellant as contained in the above documents tends to show that he had exhibited an exemplary act of bravery in the encounter for which he was eligible to be considered for his out of turn promotion in terms of Regulation 70-A of Madhya Pradesh Police Regulations. The appellant, in fact, stand already by the Department for his act of bravery by issuance of a citation and giving him cash reward of Rs.5,000/-. It was on the recommendations of the Department that the appellant got President Medal for the act of bravery exhibited by him in the incident of encounter on 16th November,2002. (9) The next question that now stares at us craving for an answer is whether the appellant was also entitled for out of turn promotion as a matter of right in terms of Regulation 70-A of 6 WA 160/11 Madhya Pradesh Police Regulations. A perusal of the order dated 27th October, 2008 ( Annexure P/1 at page 38 of the appeal paper book) would show that the appellant was denied out of turn promotion also for the reason that there was no vacancy available for him at the relevant time when he was considered for out of turn promotion. The relevant portion of the order by which he was denied out of turn promotion is extracted herein below : “ ;g Hkh mYys[kuh; gS fd e/;izn'k iqfyl esa orZeku esa fujh{kd ds dqy Lohd`r 1014 inksa esa ls vukjf{kr oxZ ds fy, fpfUgr 649 inksa ij orZeku esa vukjf{kr oxksZ ds dqy 95 fujh{kd dze ls iwoZ inksUufr izkIr fujh{kd gS A 'kklu ds ifji= dz&2 (v) 516@85@ch&4@nks fn-10@6@87 ds vuqlkj dze ls iwoZ inksUufr gsrq 10 izfr'kr dk dksVk fu/kkZfjr fd;k x;k gS A blh izdkj dqy 1014 Lohd`r inksa ds fo:) orZeku esa dk;Zjr lHkh oxksZ ds 921 fujh{kdksa esa lHkh oxksZ ds 100 ls vf/kd fujh{kd dze ls iwoZ inksUufr okys gS A bl izdkj dksVs ls vf/kd inksUufr ns nsus ls lkekU; inksUufr ds volj psuy izHkkfor gksrs gS] ftlls fnu&jkr csgrj dke djus okys vf/kdkfj;ksa@deZpkfj;ksa ds eukscy ij foijhr izHkko iMrk gS] tcfd fdlh ,d ?kVuk fo'ks"k esa vPNs dk;Z ds vk/kkj ij dqN yksx dze iwoZ inksUufr ikdj vius lgdfeZ;ksa ls dbZ&dbZ o"kZ vf/kd ofj"B gks tkrs gS A blls lEiw.kZ QkslZ ds eukscy ,oa muds dk;Z izn'kZu ij foijhr vlj iMrk gS vkSj iqfyl QkslZ dk lexz ijQkjesal nq"izHkkfor gksrk gS A bl izfdz;k esa lokZf/kd uqdlku ,l0lh0@,l0Vh0 dksVs ds vf/kdkfj;ksa dk gksrk gS D;ksafd tSlk fd lak[;dh; ls izdV gS fd vkjf{kr oxZ ds fofUgr inksa ij vHkh Hkh lkekU; oxksZ ds de ls de 30 fujh{kd dze ls iwoZ inksUufr izkIr dj in Hkjs gq, gS A bl izdkj Hkh lkekU; oxksZ ds fy, dze iwoZ inksUufr ds dksbZ in gh miyC/k ugha gS vkSj bl izdkj 'kklu ds vkj{k.k vf/kfu;eksa dk iw.kZr% ikyu djus dks dfBukbZ gksrh gS A” (10) The respondents in their return to the writ petition filed by the appellant have reiterated their stand that there was no vacancy available for the appellant to grant him out of turn promotion. The relevant portion of the return of the respondents in regard to vacancy position which is there at page 74 of the appeal paper book is extracted herein below : “ Beside all the above it is further to be submitted that presently there are total 1014 sanctioned post of Inspector in Police force against which 649 posts are allocated for unresered category. Out of 649 unreserved 7 WA 160/11 category posts 95 Inspectors are holding such post on the basis of out of turn promotion. The State Government by order dated 10.6.87 has fixed criteria of 10% posts and as against total sanctioned post of 1014 posts 921 Inspectors are in existence and out of them 100 Inspectors from all category is holding post of Inspector on the basis of out of turn promotion. In this way out of turn promotion has been given in excess to fixed quota which adversely affect on career of general promotion channel employee. In this manner no post for grant of out of turn promotion is presently available.” (11) The aforementioned facts pleaded by the respondents in the order by which the appellant was denied out of turn promotion as also in their return regarding vacancy position do not depict whether the vacancy position disclosed by them was of a time when he was considered for out of turn promotion in regard to his act of bravery in the encounter of 2002. Though, the appellant has not pleaded either in the writ petition or in the appeal that the respondents had granted out of turn promotion to any of his juniors, but for the first time, the learned counsel appearing on his behalf has orally submitted before us that the respondents have granted out of turn promotion to the persons junior to him. The learned Deputy Advocate General, appearing on behalf of the respondents/State says that he can neither admit nor deny the statement of the appellant in regard to grant of out of turn promotion to any junior of the appellant as he had no opportunity to take instructions in this regard from his client. (12) We are of the view that out of turn promotion in terms of Regulation 70-A of Madhya Pradesh Police Regulations is not a matter of legal right. It is within the discretion of the competent authority of the respondents to grant or not to grant out of turn promotion. But exercise of administrative discretion by the Department must not be vitiated by any unreasonableness, irrationality, prejudice or any bias. Since a 8 WA 160/11 plea has been taken on behalf of the appellant that the Department has granted out of turn promotion to his juniors in regard to the same act of bravery, we deem it appropriate that ends of justice shall be adequately met in case the case of the appellant for his out of turn promotion is considered by the Department once again limiting only on the point whether any person junior to him has been granted out of turn promotion with regard to the same act of bravery in the incident of encounter that took place on 16th November,2002. In case, upon such consideration, it is found by the Department that any person junior to the appellant has been granted out of turn promotion, then they should also consider the claim of appellant for his out of turn promotion taking into account the role played by him in the encounter which we have already extracted herein above, but that should again be dependant upon availability of vacancy in the quota of out of turn promotion at the relevant time and, of course, the relevant time is the date when encounter in which the appellant had participated had taken place. (13) In view of the foregoing, we find it difficult to sustain the impugned order of the learned Single Judge which is hereby set aside. This appeal is partly allowed to the extent already mentioned herein above. The respondents are directed to pass a speaking order in the light of our observations within four weeks of receipt of certified copy of this order under intimation to the appellant. The parties are left to bear their own costs. ( S.N.Aggarwal ) (Brij Kishore Dube) J u d g e J u d g e ppg