Madhya Pradesh High Court
Ramlakhan Sharma vs State Of M.P on 4 September, 2019
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
W.P.No.2850/2012(S)
(1)
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
JUSTICE S.A.DHARMADHIKARI
W.P. No.2850/2012(S)
Ramlakhan Sharma
Vs.
State of M.P. & others
----------------------------------------------------------------------------
Mr. S.K. Shrivastava, Advocate for the petitioner.
Miss Anuradha Singh, Government Advocate for the
respondents/State.
----------------------------------------------------------------------------
ORDER
04/09/2019 In this petition, under Article 226 of the Constitution of India, petitioner has assailed the legality, validity or proprietary of the order dated 03.01.2012 (Annexure P-1) passed by respondent No.2; whereby the claim of the petitioner seeking out of turn promotion has been rejected.
2. Brief facts leading to filing of the case are that the petitioner was appointed as Constable in S.A.F. vide order dated 01.10.1986. The petitioner had been working as body guard of Superintendent of Police Mr. Sanjeev Shami at the relevant time. An encounter with the gang of docit-Dayaram Gadaria took place on 05.08.2006. In the aforesaid encounter, the renowned dacoit Dayaram Gadaria was killed by the police. An FIR was lodged to this effect on 09.08.2006, and as per the W.P.No.2850/2012(S) (2) said FIR, the petitioner had participated in the said encounter and had fired 12 rounds with A.K. 47 Rifle. Thereafter, Superintendent of Police recommended the case of the petitioner for out of turn promotion, as per the policy laid down by the Police Regulations. The petitioner was not granted out of turn promotion but was awarded with the sum of Rs.5,000/-.
3. Learned counsel for the petitioner contended that the petitioner was discriminated in the matter granting out of turn promotion and as many as 13 police personnel, who had participated in the said encounter were granted the benefit of out of turn promotion. Being aggrieved, the petitioner preferred a representation before the Competent Authority. Since no decision was taken on the representation, the petitioner took shelter of this Court by filing W.P.No.3314/2007. The said petition was dismissed vide order dated 30.04.2008. Being aggrieved the petitioner preferred W.A.No.332/2008 and this Court vide order dated 13.10.2008 allowed the writ appeal and passed the following orders :
"In the result, the writ appeal is allowed and the impugned order is hereby quashed. The Inspector General of Police is directed to consider the case of the present appellant afresh and pass appropriate orders after comparing his involvement in the encounter along with other 13 police personnel, who were promoted only on the ground that they were actively participated W.P.No.2850/2012(S) (3) in the encounter. This exercise shall be done by the Inspector General of Police within a period of four months from the date of receipt of certified copy of this order. No costs."
4. In compliance to the aforesaid order, the respondents passed order dated 05.02.2009; whereby the claim of the petitioner was again rejected inspite of the specific findings given by the Division Bench holding the petitioner to be entitled for out of turn promotion. Being aggrieved, the petitioner again knocked the door of this court by filing W.P.No.1983/2009 and this Court vide order dated 11.02.2011 allowed the aforesaid writ petition in the following terms :
"Resultantly, this petition succeeds and is hereby allowed. The impugned order Annexure P-1 dated 05.02.2009 is hereby quashed and the respondents are hereby directed to provide out of turn promotion to the petitioner in terms of Clause 70-A of the M.P. Police Regulations with all consequential benefits from the date when other police personnel were give out of turn promotion. Let the orders be passed on or before 31st March, 2011."
5. Respondents/State, being aggrieved with the order dated 11.02.2011, challenged the same in W.A.No.397/2011. The Division Bench vide order dated 21.09.2011 allowed the writ appeal in the following terms :
W.P.No.2850/2012(S) (4) "In our opinion, the learned Single Judge has committed an error of law in issuing a direction to grant out of turn promotion along with consequential benefits. Hence, the writ appeal filed by the appellants is allowed. The order passed by the learned Single Judge is hereby quashed. It is directed that the appellants shall consider the case of the respondent afresh after considering all the relevant facts and the fact as to whether the act of the respondent was similar to those persons, who were granted out of turn promotion or also the fact that some other persons have not been granted out of turn promotion. Appellants shall also consider the fact that there was any post available for out of turn promotion at the time of consideration of the case of the respondent at par with similarly situated persons. This exercise be completed within a period of three months from the date of receipt of the copy of this order."
6. Thereafter, in compliance of the order dated 21.09.2011 passed in W.A.No.397/2011, the respondents for the second time again rejected the claim of the petitioner for out of turn promotion by impugned order dated 03.01.2012 (Annexure P-
1). Being aggrieved, the petitioner has challenged the same in the present petition.
7. Learned counsel for the petitioner contends that the W.P.No.2850/2012(S) (5) respondents are not extending the benefit of out of turn promotion inspite of the fact that this Court vide order dated 13.10.2008 passed in W.A.No.332/2008 in paragraph 11 have clearly held that there is absolutely no material to discriminate those persons who have been given out of turn promotion. After aforesaid finding, the respondents were left with no option but to grant the petitioner out of turn promotion. Even though, the respondents have time and again rejected the claim. Moreover, while passing the order dated 21.09.2011 in W.A.No.397/2011, this Court directed the respondents that they shall consider the case of the petitioner afresh after considering all relevant facts and the fact as to whether the act of the petitioner was similar to those persons who were granted out of turn promotion. The respondents have not followed the directions. No finding with regard to availability of post or to that of similar nature of case have been discussed in the impugned order. It is pure case of discrimination which amounts to violation of Article 14 and 16 of the Constitution of India. Consequently, Annexure P-1 is liable to be set aside and the petitioner is liable to get out of turn promotion.
8. Per contra, learned counsel for the respondents/State contended that the competent authority i.e. Inspector General of Police has considered the petitioner's case and found that no one has recommended the petitioner's case for out of turn promotion during the scrutiny and he has already been granted W.P.No.2850/2012(S) (6) Prashansha Patra and cash reward. No doubt he was the body guard of the Superintendent of Police, therefore, his name was entered in the FIR but the petitioner has no active participation in the encounter which is evident from perusal of the FIR and Roznamchasana. This Court had already held that as per Regulation (70-A of Police Regulation), it is purely discretion of the authority to consider the case for out of turn promotion, therefore, same cannot be claimed as a matter of right. In support of his contention, learned counsel for the respondents had relied on the order dated 12.02.2018 passed in W.A.No.261/2017; State of M.P. Vs. Hanuman Prasad Verma & others. It is further submitted that rejection is proper which needs no interference and the writ petition deserves to be dismissed.
9. Heard the learned counsel for the parties.
10. On bare perusal of the order passed by Division Bench of this Court on 13.10.2008, which reveals that this Court gave a specific finding to the effect that the petitioner was awarded for actively participating in the encounter. It was further held that there is absolutely no material to discriminate the petitioner to the other 13 police personnel who were awarded for their active participation in the encounter. The order in writ appeal passed by Division Bench had attained finality since it was not challenged in the Supreme Court. Therefore, this Court is of the view that the petitioner is entitled for out of turn W.P.No.2850/2012(S) (7) promotion which has already been decided in his favour in the earlier round of litigation.
11. Since the petitioner has been made to run from pillar to post inspite of the specific finding for granting out of turn promotion, the questions which arise for consideration by this Court is that whether the Court can direct the respondents to promote the petitioner out of turn in the peculiar facts and circumstances of the case particularly when the findings of this Court has attained finality instead by directing the authorities to consider the case for promotion. In the earlier round of litigation, this Court had directed for reconsideration but again the same order was passed ignoring the finding of this Court.
12. The Division Bench of this Court in the case of State of M.P. & others Vs. Mahendra Kumar Sharma; ILR (2008) MP 208, in similar circumstances has held as under :
"8. On this root question, whether Writ Court should directly order for promotion of an employee or should only give direction to consider his case for promotion, as per the decision of the Constitutional Bench, it is true that generally in such cases the Court should not order for directing promotion to the employee and direction should be given to consider the case. As per Regulation 70-A, if the appellant is found suitable for promotion he can be granted out of turn W.P.No.2850/2012(S) (8) promotion. It is also true that in the return, State has not stated anything that the respondent was not found otherwise unsuitable for promotion on any other ground. Therefore, if the respondent was found suitable then he was entitled for out of turn promotion. While rejecting the case of the respondent, Screening Committee has not recorded such a finding that he is not fit for promotion. Under Article 226 of the Constitution of India while issuing the mandamus the High Court is fully competent in appropriate cases to issue such directions. If the circumstance permits and case is made out legally and if it is found that the person was not otherwise found unsuitable for promotion and a case of discrimination is made out, then certainly there cannot be any embargo on the powers of the High Court to issue such a directions. In this case under the circumstances brought on record and explained in the order, learned Single Judge has already directed to promote the respondent w.e.f. 27.05.2003. Therefore, we do not find any ground to interfere in such direction nor such a direction is contrary to law. However, it is made clear that at the time of issuing promotion order the respondent shall be free to consider that the respondent is not otherwise unsuitable for promotion.
9. Consequently, this writ appeal is W.P.No.2850/2012(S) (9) disposed of accordingly."
13. Resultantly, this petition succeeds and is hereby allowed. The impugned order dated 03.01.2012 (Annexure P-
1) is hereby quashed. The respondents are directed to extend the benefit of out of turn promotion in terms of Clause 70-A M.P. Police Regulation with all consequential benefits from the date when other identically situated police personnel were granted out of turn promotion.
14. Let this exercise be completed within a period of eight weeks from the date of receipt of certified copy of this order.
(S.A.Dharmadhikari) Judge bj/-
BARKHA JHA 2019.09.0 4 17:20:53 +05'30'