RESERVED JUDGMENT Court No.2 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (S/B) No. 428 of 2006 D.C.Dhaundiyal and another …….... Petitioners. Versus State of Uttaranchal through Principal Secretary, Home, Civil Secretariat, Dehradun and others. ……... Respondents. Sri D.C.S.Rawat, learned counsel for the petitioners. Sri J.P.Joshi, learned Chief Standing Counsel for the State/respondents. Date: November 11, 2008 Hon’ble P.C. Verma, J. Hon’ble Dharam Veer,J. (Delivered by Hon’ble P.C.Verma,J.) This petition has been filed by the petitioners seeking writ of mandamus commanding the respondents to enforce the law laid down vide Government order dated 03.02.1994 and the consequential order passed by the Director General of Police, U.P. in the State of Uttaranchal as mandated under the U.P. Reorganisation Act and to provide the benefit of the same after the enforcement, to the petitioners. 2. The facts of the writ petition, in brief, are that the petitioners are police personnel and they have shown extreme courage and bravery and thus are entitled for grant of out of turn promotion in view of the Government Order dated 03.02.1994 and the consequential order dated 10.02.1994 issued by the 2 Director General of Police, State of U.P. The petitioners seek to challenge the same on the ground that in view of the provisions contained under the U.P. Reorganisation Act, the said orders are law and to be enforced in the State of Uttaranchal. The petitioner No.1 is a Police Inspector and the petitioner No.2 is a Head Constable and both are working with the respondents and were involved in the nabbing down a dreaded criminal Khem Singh alias Khemi S/o Diwan Singh Rai Sikh, R/o Village-Kanta Kheri, P.S. Sadar Fatehabad, Haryana and the petitioners were the main persons in the said case and was entitled for showing extreme courage and bravery but due to the non enforcement of the said law the respondents did not extend any benefit to the petitioners. The petitioner No.1 subsequent to the said incident again showed his extreme courage and bravery and encountered two hardcore criminals on 23.01.2003 in Khatima region and a cash prize of Rs. 27,500/- and certificate of appreciation was given to him by Udyog Vyapaar Mandal, Kashipur. Again on 24/25.09.2003 the petitioner No.1 arrested four hardcore criminals and recovered one automatic AK 56 Rifle and other weapon, two maruti cars and cash Rs. 7000/-, on which a certificate of appreciation was given to him by the District Magistrate and Senior Superintendent of Police, Udham Singh Nagar. After the incident held in 2002 i.e. the encounter of Khemi Singh, the S.S.P. Fatehabad referred the matter of petitioners and two others to the S.S.P., Udham Singh Nagar, Uttaranchal through letter dated 19.09.2002 for further necessary action. The similar Government Orders were there in the State of Haryana and five Police personnel who are associated with the 3 petitioners in nabbing down Khem Singh alias Khemi, the dreaded criminal, were provided the benefit by the State of Haryana vide order dated 30.09.2002 issued by the Inspector General of Police, Hisar Range, Hisar but the respondents have not cared to provide the benefit flowing from the Government Order dated 03.02.1994 and consequential order dated 10.02.1994 issued by the erstwhile State of Uttar Pradesh and its authorities. 3. The erstwhile State of U.P. issued the Government Order dated 03.02.1994 providing that the police personnel who have been involved in nabbing down the dreaded and hardcore criminals would be given various benefits and on the basis of the said Government Order the Director General of Police, U.P. issued another order dated 10.02.1994. The State of Uttaranchal came into existence on 09.11.2000 and in view of the provisions laid under Section 2 (f) and Section 86 of the U.P. Reorganisation Act, 2000 the law applicable on the appointed day i.e. 09.11.2000 would be applicable in the State of Uttaranchal unless rescinded, altered or modified. The respondents, who are under a legal obligation to enforce the said Government Orders in the State of Uttaranchal, are sitting tight over the matter and have not enforced the said law in the State of Uttaranchal and the impugned action of the respondents apart from being illegal and arbitrary is violative of the fundamental rights of the petitioners guaranteed to them under Articles 14 & 21 of the Constitution of India. 4. The respondents have filed counter affidavits stating therein that a Special Operation Group (S.O.G.) was constituted for arrest/nabbing down to criminal 4 Khem Singh alias Khemi in State of Haryana in regard of number of cases of theft, robbery, abduction etc. The petitioner No.1 alongwith District Inspector Chandgi Ram of Police Station, Fatehabad, Haryana and other team members by a joint operation nabbed down the aforesaid Khem Singh alias Khemi on 13.07.2002 in the area of Police Station, Rudrapur near Minto Hotel, District Udham Singh Nagar. The Inspector General of Police, State of Haryana awarded a sum of Rs. 50,000/- to the Special Operation Group headed by petitioner No.1 and the same was distributed to team members. In this connection, the S.S.P. Udham Singh Nagar also sent a report dated 28.08.2002 to Police Head Quarter, Dehradun. In an incident dated 12.07.2002 dacoity took place in the house of Neeranjan Lal Agarwal of Sitarganj. The Police team headed by Sri Praveen Kumar Tyagi after an encounter arrested Mahendra alias Mehendi Hasan and also recovered a part of the looted articles. In this incident it was found that Sub Inspector Sri Praveen Kumar Tyagi has shown his extreme courage and bravery and as such the S.S.P., Udham Singh Nagar recommended a proposal of out of turn promotion vide his proposal dated 07.09.2002 to D.I.G. Kumaon, Nainital. The said proposal was sent to the Director General of Police by D.I.G. Kumaon Range, Nainital. This proposal was considered by the Committee constituted in this regard in view of Circular dated 10.02.1994. The committee thereafter found that the proposal was not fit for out of turn promotion. Thereafter the selection committee, in compliance of the Court’s order, considered the whole matter afresh and also gone through the service record of the petitioners and the report of 5 Magisterial inquiry and decided that the role of the petitioners in the aforesaid different incidents was though appreciable but not fit to grant them out of turn promotion. It is also contended in the counter affidavit that since the petitioners have already promoted on regular basis to the higher posts on which they were posted at that relevant time as such their case now is not fit to be considered for out of turn promotion. 5. The petitioners rebutted the contentions made in the counter affidavit by way of rejoinder affidavit and stated that the committee considered the matter but did not find the case of the petitioners fit for out of turn promotion. However, no reasons have been mentioned by the committee held on 10.12.2006 as evident from the minutes of the meeting and while recommending for cash prize, no reasons have been assigned as to why the petitioners cannot be given out of turn promotion. The Superintendent of Police on 28.08.2002 clearly stated that the dreaded criminal Khem Singh alias Khemi could be nabbed down only because of the valuable efforts of the petitioners who worked hard and even did not care for their lives. The documents brought on record by the respondents themselves clearly reveals that the petitioners shown their bravery and courage and became entitled for the benefit flowing from the Government Order dated 10.02.1994 issued by the Director General of Police, Uttar Pradesh in pursuance of the Government Order dated 03.02.1994 and the report of S.S.P., Udham Singh Nagar dated 28.08.2002 clearly establishes that the petitioners have shown extreme courage and bravery and have also put their life in danger, yet the 6 respondents have came up with a case that the committee did not find the petitioners suitable for out of turn promotion which is wholly illegal and arbitrary. The Police personnel who were involved with the petitioners in nabbing down Khemi Singh of State of Haryana have been promoted by State of Haryana but the petitioners have been denied the promotion on the grounds that the role of the petitioners was not found to that extent granting the benefit of out of turn promotion and the decision making process adopted by the respondents in the present writ petition is legally vitiated. The committee held on 10.12.2006 though has taken note of the incidences mentioned in the proceedings yet has not recorded any reason as to why the petitioners are not entitled for out of turn promotion and when the respondents themselves have recommended the case of the petitioner No.1 for President Medal. It is also contended by the petitioners in the rejoinder affidavit that the recommendation for awarding the President Medal itself makes it clear that the petitioner has shown extreme courage and bravery. 6. We have heard the learned counsel for the parties and perused the record. 7. The learned counsel for the petitioners submitted that the law has been defined under Section 2 (f) of the U.P. Reorganisation Act and Section 86 of the said Act provides for the construing of laws. For the sake of convenience Section 2 (f) and Section 86 of U.P. Reorganisation Act, 2000 are being quoted as under:- 7 “2(f) “law” includes any enactment, ordinance, regulation, order, bye-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing State of Uttar Pradesh. 86. Territorial extent of Laws.- The provisions of Part II shall not be deemed to have effected any change in the territories to which the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1961 and any other law in force immediately before the appointed day, extends or applies, and territorial references in any such law to the State of Uttar Pradesh shall, until otherwise provided by a competent Legislature or other competent authority be construed as meaning the territories within the existing State of Uttar Pradesh before the appointed day.” The learned counsel for the petitioners further submitted that in view of the mandate of the provisions of the U.P. Reorganisation Act, 2000 the law applicable on the appointed day i.e. 09.11.2000 would be applicable in the State of Uttaranchal unless rescinded, altered or modified and the Government Order dated 19.01.2007 rescinding the Government Order dated 03.02.1994 has not been given retrospective effect nor it can have retrospective effect in the case in hand and this order has been issued only with a view to prejudice the case of the petitioners as canvassed by them before this Court. The respondents cannot press the Government Order dated 19.01.2007 at this stage when the petitioners are claiming the benefits of the Government Order dated 03.02.1994 on the basis of their extreme courage and bravery shown in the intervening period of 03.02.1994 to 18.01.2007. 8. We find no force to the argument of the learned Chief Standing Counsel that since the petitioners 8 have already been promoted to the higher post and after promoting the petitioners to the higher post, no incident of extraordinary courage and bravery has been reported, entitling them to be considered for next higher post because the petitioners have been granted promotion on regular basis and the same is an incidence of service and has been granted to the petitioners on the basis of relevant service rules when the petitioners fell within the zone of consideration. The said promotion on regular side has no concern at all with the case of the petitioners. 9. The petitioners have further argued that the decision of the committee recommending that the petitioners cannot be given out of turn promotion but the committee has not recorded any reason while refusing the same. It has further been argued by the petitioners that not only the decision of the committee but the entire decision making process suffers from the vice of not only malice of fact but also of malice in law inasmuch as the State Government has itself recommended the case of the petitioner No.1 for awarding the ‘President Medal’ but the Ministry of Home Affairs, Government of India did not approve the same yet the recommendation made by the State Government has shown extreme courage and bravery and this solitary incident was sufficient enough for providing out of turn promotion to the petitioners but the committee has rejected the case of the petitioners by writing that ‘the committee does not recommend for out of turn promotion’. 10. The learned Chief Standing Counsel argued that the decision of the committee cannot be challenged by the petitioners. The learned counsel for the petitioners 9 in reply submitted that not only the decision but the entire decision making process adopted by the respondents in the present case suffers from malice in law and fact and has relied upon the judgment of the Apex Court reported in (1994) 6 SCC 1 Tata Cellular versus Union of India and on the basis of the said decision it has been argued that this Court while exercising its extra ordinary jurisdiction conferred under Article 226 of the Constitution of India can go into the decision making process. 11. We also found no force to the argument of the learned counsel for the State that if the decision of the committee suffers from illegality, the same may be remitted to the authorities for fresh consideration because when the facts regarding eligibility are admitted and the State has itself recommended the case of the petitioners for grant of ‘President Medal’, there remains no doubt that the petitioners are legally entitled for out of turn promotion and besides the said incidence, three other incidences where the extraordinary bravery and courage shown by the petitioners were before the committee. Hence, remitting the case back to the respondents authority will be a futile exercise and this Court while exercising the powers under Article 226 of the Constitution of India can issue mandamus to the respondents. Reliance has been placed by the learned counsel for the petitioners in the case State of Bihar versus Dr.Braj Kumar Mishra, reported in (1999) 9 SCC 546, in which the Hon’ble Supreme Court has said that the decision may not be treated to be precedent with respect to the subject regarding which the appellants 10 have conceived an apprehension, but the present case is squarely covered within the fore corners of the aforesaid decision. 12. The petitioners have further relied upon a number of decisions of the Hon’ble Supreme Court wherein it has been held that if the decision making process suffers from malice in law or malice in fact or is legally vitiated, this Court while exercising the powers under Article 226 of the Constitution of India can interfere with the said process. 13. A perusal of the finding recorded by the committee in its report dated 10.12.2006 reveals that the State Government has itself recommended the case of the petitioners on 17.12.2003 for awarding the ‘President Medal’ and the said recommendation is made only when the Police personnel has shown extreme courage and bravery and is not recommended in a normal mode and while making the said recommendation the record of the Police personnel is taken into consideration thoroughly. It is admitted in the said report by the respondents that the recommendation sent by the State Government for ‘President Medal’ on 17.12.2003 was not approved by the Government of India. The record also reveals that the Police personnel who were involved with the petitioners in nabbing down the criminal Khemi Singh of State of Haryana have been granted promotion by the State of Haryana but the petitioners have been denied out of turn promotion without assigning any reason as to why the petitioners are not eligible for being given out of turn promotion. This shows that not only the decision but the 11 entire decision making process adopted by the respondents is illegal and vitiated. 14. In view of above discussion, the writ petition is allowed. Writ of mandamus is issued with a direction to the respondents to enforce the Government Order dated 03.02.1994 and the consequential order passed by the Director General of Police, Uttar Pradesh and to grant benefit of out of turn promotion to the petitioners in the State of Uttaranchal. No order as to costs. 15. Recall application No.3152 of 2007 stands disposed of accordingly. (Dharam Veer,J.) (P.C.Verma,J.) 11.11.2008 11.11.2008 P.Singh 12