Madhya Pradesh High Court
Raghvendra Singh vs The State Of M.P. on 29 November, 2018
1
The High Court of Madhya Pradesh
WP 187/2009(S)
Raghvendra Singh vs. State of MP
Gwalior, dtd. 29/11/2018
Shri M.P.S. Raghuvanshi, Counsel for the Petitioner.
Shri Yogesh Chaturvedi, Govt. Advocate, for the State.
Heard finally.
This petition under Article 226 of the Constitution of India,
has been filed seeking the following relief :
''7(i).That, the respondents be directed to
grant out of turn promotion to the petitioner on the post of A.S.I. for distinguishable work performed by him as certified by the respondent officials, in respect of incident dt. 14-15/03/2007. It may also be directed to grant such benefit of promotion to the petitioner from the date the other 35 persons have been granted promotion with all consequential benefits i.e., w.e.f. 07-07-2007.'' The necessary facts for the disposal of the present petition in short are that the petitioner was holding the post of Head Constable. One notified gang of dacoits Jagjeevan and Paramjeet, was active in dacoit activities and had terror in 4 States. Total reward of Rs.9 lacs was declared by all the four States.
A Secret information was received regarding the presence of the notified gang of Jagjeevan in the house of Heera Singh Parihar in village Gari Bhudhara. Accordingly, the police parties were dispatched. When the dacoits noticed the presence of the police party, they opened fire, causing death of one police inspector, and some of the police personnel were injured. As the dacoits were inside the house, therefore, it was decided to make a hole in the roof. It is pleaded by the petitioner, that along with 2 Shri J.K.Dixit, Reserve Inspector, Morena, the petitioner climbed on the roof of the house of Heera Singh Parihar, and a hole was made from which the gun shots were fired. After the exchange of firing came to an end, it was found that total 7 dacoits, including Jagjeevan and Paramjeet were killed.
It is submitted that as per Police Regulation 70-A, as the same was in force at the relevant time, 35 police personnel have been granted out of turn promotion, but the petitioner has been denied the benefit of Regulation 70-A without any reason. It is undisputed that the petitioner was also a member of the police party. It is submitted that for denying the benefit of out of turn promotion to the petitioner, no reasons have been assigned by the respondents. It is submitted that in fact the act of the respondents is mala fide and arbitrary. It is further submitted that by not granting out of turn promotion to the petitioner and by granting the same benefit to the similarly placed police personnel, the respondents have discriminated the petitioner and thus, their act is violative of Articles 14 and 16 of the Constitution of India.
Per contra, it is submitted by the Counsel for the State that it is true that the petitioner had participated in the operation against the Parihar Gang, but it does not mean that all the members of the police party who participated in the operation to kill or caught the members of the notified dacoit gang Jagjeevan Ram and Paramjeet Parihar. It is submitted that a Magisterial enquiry was conducted and the enquiry officer had pointed out various persons, who had shown extraordinary courage in performing their duties in the operation against the dacoits and their names have been specifically mentioned whereas the name of the petitioner does not find place in the said enquiry report. Thus, for granting out of turn promotion to 35 persons, the 3 State has relied upon the enquiry report.
Heard the learned Counsel for the Parties.
In the present case, the encounter with the notified gang of Jagjeevan Ram and Paramjeet Parihar took place on 7-7- 2007. Regulation 70-A of Police Regulations was in force at the relevant time, however, the same has been omitted in the year 2012.
Regulation 70-A of Police Regulations reads as under :
''70-A.Notwithstanding anything contained in Regulation 70, a Constable may be promoted to the Rank of Head Constable by the Superintendent of Police with the prior approval of the Director General of Police and a Head Constable to the rant of Assistant Sub- Inspector by the Deputy Inspector General of Police with the prior approval of the Director General of Police, if he has distinguished himself in anti-dacoit operations, law and order situations of shooting competitions or in some other field of duty or who has been awarded the President's Police Medal for Gallantry or for meritorious/distinguished services, if he considers him suitable for promotion. Similarly, the Inspector General of Police may promote an Assistant Sub- Inspector to the rank of Sub-Inspector and a Sub-Inspector to the rank of an Inspector on similar grounds if found suitable for promotion and subject to the prior approval of the Director General of Police. The number of Officers promoted under this Regulation shall not exceed 10 per cent.'' The participation of the petitioner in the encounter has not been disputed by the respondents. The Magisterial Enquiry Report has been filed as Annexure P/5, on which the respondents have also placed reliance for awarding out of turn promotion to 35 persons. It is the case of the respondents that the name of the petitioner does not find place in the said 4 enquiry report. The operative part of the enquiry report reads as under :-
''fu"d"kZ%& fnukad 14 ,oa 15-03-2007 dks xkze xf<;k cq/kkjk fLFkr ghjk flag ifjgkj ds edku esa ?kqls Qjkjh] b'rgkjh ,oa bukeh MdSr txthou ifjgkj ,oa mlds lkfFk;ksa dh iqfyl }kjk ?ksjkcUnh dh xbZA iqfyl egkfujh{kd pEcy jsat }kjk"Li"V :i ls lwpukvksa dk izs"k.k ,oa lQy funsZ'k izsf"kr fd;s x,A ?kVuk LFky ij mi iqfyl egkfujh{kd pEcy jsat Jh Mh0lh0 lkxj] iqfyl v/kh{kd eqjsuk MkW0 gjhflag ;kno ds usr`Ro esa iqfyl cy Rofjr :i ls xkze xf<;k cq/kkjk igqaWpsA iqfyl v/kh{kd eqjSuk MkW0 gjhflag us ekSds dh j.kuhfr cukus mls fdz;kfUro djkus ,oa MdSrksa dh izHkkoh ?ksjkcUnh djus o fu;af+=r] yf{kr xksyh ifjpkyu dh j.kuhfr rS;kj djus esa mRd``"V o ljkguh; dk;Z fd;s gSaA iqfyl egkfujh{kd pEcy jsat Jh fot; ;kno dk dq'ky usr`Ro izHkkoh ,oa dkjxj ,oa ifj.kke ewyd fl) gqvkA Mh0vkbZ0th0 Jh Mh0lh0 lkxj us j.kuhfr cukus esa lg;ksx dj ljkguh; dk;Z fd,A Vh0vkbZ0 ohjsUnzflag HknkSfj;k tku dh ckth yxkdj MdSrksa ls yksgk ysrs gq, ohjxfr dks izkIr gks x;s] muds vnE; lkgl Hkjs iz;klksa dh ljkguk djuk ykteh gSA Vh0vkbZ0 lrh'k nqcs ,oa Vh0vkbZ0 ds0Mh0 lksufd;k us vnE; lkgl ,oa drZO; ijk;.krk dk ifjp; nsrs gq, tku dh ckth yxkdj ?kVuk LFky tgkW fd MdSr f?kjs gq, Fks] ml edku esa izos'k dj MdSrksa ls yksgk fy;k ,oa bl nkSjku os ?kk;y Hkh gq,] mDr nksuksa fujh{kdksa dk d`R; vR;ar ljkguh; jgk tks mDr nksuksa Vh0vkbZ0 ds d``R; lkgliw.kZ ,oa drZO; ijk;.krk dk |ksrd gSA ,l0Vh0,Q0 izHkkjh Jh fnyhi flag] ,l0ih0 eqjSuk ds xujksa ,oa Mªk;ojkas us Hkh bl vfHk;ku ds nkSjku lkgl iw.kZ ,oa drZO;ijk;.krkiw.kZ dk;Z fd;k ,oa ,l0ih0 fHk.M us Hkh bl vfHk;ku esa lg;ksx fn;kA vkj0vkbZ0 iqfyl Jh nhf{kr us Rofjr iqfyl cy ?kVuk LFky ij jokuk djus ,oa Lo;a ? kVuk LFky ij igqWpdj iqfyl v/kh{kd eqjSuk ds usr`Ro eas ljkguh; dk;Z fd;kA iz/kku vkj{kd Jh jktsUnz flag ifjgkj ?kk;y gksus ds ckotwn MdSrksa ls yksgk ysrs jgs] tks muds drZO; ijk;.krk lkgl ,oa dk;Z dq'kyrk dk ifjpk;d gSA vkj{kd jkeoju ?kk;y gksus ds ckotwn MdSrksa ls yksgk ysrs jgs mudk d``R; Hkh drZO;ijk;.krk ,oa lkgl dk |ksrd gSA bl vfHk;ku esa vU; ftu iqfyl deZpkjhx.k] ftUgksus nkf;Ro fuHkk;k] lkgfld o drZO;5
ijk;.krk iw.kZ d``R; djus ls ljkguk ds ik= gSa] ftldk mYys[k iqfyl v/kh{kd] eqjSuk ds vfHkdFku esa vafdr gSA ;g rF; fufoZokn gS fd MdSr txthou ifjgkj ,oa mlds lkFkh b'rgkjh ,oa Qjkjh Fkas] ftu ij rhu jkT;ksa dze'k% e/;izns'k] mRrj izns'k ,oa jktLFkku ls buke ?kksf"kr FkkA MdSr txthou ifjgkj ,oa mlds lkfFk;ksa dk {ks= essa cgqr Hk; ,oa vkrad dk;e FkkA e0iz0 ,oa lhekorhZ jkT; mRrjizns'k ,oa jktLFkku esa mDr MdSrksa dk vkrad ,ao Hk; FkkA mDr MdSrksa ds ejus ls {ks= esa yksd ifj'kkafr dk;e gksuk LokHkkfod gSA mDr lkr MdSrksa ds ejus ls bl {ks= esa rFkk vklikl o lhekorhZ jkT; mRrjizns'k ,oa jktLFkku esa veu pSu ,oa 'kkafr dk okrkoj.k dk;e gqvk gS ,ao iqfyl o iz'kklu ds izfr turk esa fo'okl c<+k gSA'' Thus, it is clear that in the enquiry report, the names of all the 35 police personnel have not been mentioned. On the contrary, it is mentioned that S.T.F. In-charge Shri Dilip Singh, the Gunners of S.P. Morena and Drivers also discharged their duties with bravery. Thus, the enquiry report has praised several persons, without naming each of them. Thus, in the considered opinion of this Court, the enquiry report alone cannot be made a basis for picking 35 persons and awarding benefit of Regulation 70-A of Police Regulation.
However, out of turn promotion for act of bravery is not a legal right, however, the administrative discretion should not be vitiated by any unreasonableness, irrationality, prejudice, bias or arbitrariness. This Court in the case of Suresh Pal Singh Vs. State of M.P.& Others, reported in 2012(1) MPHT 226 (DB), has held as under :-
''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 6 administrative discretion by the Department must not be vitiated by any unreasonableness, irrationality, prejudice or any bias. Since a 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 dependent 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.'' Thus, it is clear that the petitioner cannot claim his out of turn promotion for the act of his bravery, as a matter of legal right, but at the same time, the discretion of the authorities should not be arbitrary and unreasonable.
In the present case, the respondents for denying benefit of Police Regulation 70-A (which stood omitted by Notification dated 11-9-2012 w.e.f. 11-9-2012), has taken a stand that in the Magisterial enquiry report, there is no mention of name of the petitioner. As this Court has already pointed out that in the said Magisterial Enquiry report, the names of all the 35 persons 7 were not mentioned, who have been granted the benefit of Police Regulation 70-A. Thus, this Court is of the considered view that non-consideration of the case of the petitioner, by the respondents, cannot be approved.
Accordingly, it is directed that subject to the availability of post under 10% quota as provided in the Police Regulation 70-A, the respondents shall consider the case of the Petitioner, for extending the benefit of Police Regulation 70-A. In case, if the respondents are of the view that the petitioner is not entitled for such benefit, then they shall pass a detailed speaking order. Accordingly, the Petitioner is directed to make a fresh representation to the respondents, along with the certified copy of this order, within a period of one month from today. Let the entire exercise be completed within a period of six months from the date of receipt of the fresh representation.
The Petition succeeds and is hereby Allowed.
(G.S.Ahluwalia) Judge MKB* MAHENDRA KUMAR BARIK 2018.11.30 14:24:51 +05'30'