Madhya Pradesh High Court
Sanjay Shukla vs The State Of Madhya Pradesh on 8 March, 2017
(1)
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR.
W.P. No.7097/2014.
Sanjay Shukla.
Vs.
State of M.P. and others.
PRESENT:
For Petitioner : Shri V.K. Shukla, Advocate.
For Respondents : Shri Santosh Yadav, P.L.
(O R D E R ) 08.03.2017 Per : Justice Sujoy Paul The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution for the second time. The petitioner is aggrieved by the action of the respondents in not granting him out of turn promotion on the post of Inspector.
2. The petitioner while posted as Sub Inspector at Police Station, Majhgawan, District Jabalpur received a message that adjoining villages are surrounded with flood. The petitioner immediately rushed to the said village and saved the life of many villagers. He also ensured that no post-rain epidemic affects the health of the local residents. However, the respondents have given only Rs,.7,500/- to the petitioner for showing aforesaid gallantry. One Shri B.S. Parihar who saved life of only 16 persons was given promotion on the post of Inspector. Aggrieved, petitioner filed WP No.2653/20112 before this Court. This Court by order dated 9.10.2012 allowed the writ petition and directed the respondents to consider the case of the petitioner for grant of out of turn promotion. The said order of writ Court got a (2) stamp of approval from the Division Bench on dismissal of WA No.36/2013 decided on 8.2.2013.
3. In turn, respondents rejected the claim of the petitioner for grant of out of turn promotion by order dated 27.4.2013. Criticizing this order, Shri Vijay Shukla, learned counsel for the petitioner submits that the petitioner's case was recommended for grant of out of turn promotion by Superintendent of Police, Jabalpur which is clear from the order of learned Single Judge. The respondents although raised this point about non-submission of recommendation by SP in their writ appeal, the said ground was not entertained by the Division Bench. Hence, it is no more open to the respondents to contend that there was no recommendation for grant of out of turn promotion for the petitioner by Superintendent of Police. He submits that other reasons assigned in the rejection order are without there being any justification. It cannot be said that petitioner's case has no merits. The reason 7(c) mentioned in the impugned order is being criticized by Shri Shukla by contending that these parameters are not laid down in any provision for grant of out of turn promotion. Thus, the same cannot be reason to deprive the petitioner from consideration. It is further submitted that petitioner's act of gallantry is of the year 2005 and the incident took place on 20.8.2005. Even if by notification dated 11.9.2012, the Regulation 70A which is relating to grant of out of turn promotion is deleted, right of consideration which was existing prior to the said date cannot be taken away. He submits that impugned order is arbitrary and runs contrary to the order passed in the first round of litigation.
4. Prayer is opposed by Shri Santosh Yadav, learned Panel Lawyer. He supported the impugned order for the reasons mentioned in the said order coupled with the reasons mentioned in the (3) recommendation of the Committee dated 1.4.2014 Annexure R/1. Learned counsel for the respondents submits that there is no legal error in the rejection order and therefore the present petition is devoid of substance.
5. No other point is pressed by the learned counsel for the parties.
6. I have heard the learned counsel for the parties and perused the record.
7. In the first round (WP No.2653/2011), the petitioner filed the petition mainly on the ground of parity. This Court considered the claim of the petitioner qua Shri B.S. Parihar who was accorded out of turn promotion. It is apt to quote relevant paragraph of this order:
"5. In the case of B.S. Parihar, the Sub Inspector posted in Jabalpur was granted the out of turn promotion by order dated 20.12.1993. The incident in which he had taken steps and which was treated to be an act of extra-ordinary gallantry and discharge of his duties, was also relating to flood in the area in which about 16 persons were saved by him. This act by said B.S. Parihar was regarded as an act of such a category on account of which he was granted out of turn promotion. The report submitted by the petitioner indicates that the flood had occurred all of a sudden on 20.8.2005 in the area in which about 1500 residents were badly affected. The reports indicate that the petitioner had not only taken immediate steps to reach the spot for the rescue of the life of the hundreds of family but also saved them. The sub Divisional Officer, Revenue has submitted a report indicating that not only those persons were saved by the petitioner but he further made arrangements with the help of local people to make arrangement for stay of those affected persons, and also made arrangement for them to provide food, water, medicines. He also made other arrangements to avoid the epidemic condition which were likely to occur in such flood conditions. The Superintendent of Police (4) also sent a report in this respect and the local bodies of the area have highly appreciated the work of the petitioner. When the commendation were sent to the department concerned, this was very specifically recommended by the Superintendent of Police, Jabalpur that looking to such act of the petitioner, he not only should be granted the out of turn promotion but also a certificate of commendation as well. These recommendation of the authorities have resulted only in granting the cash award of Rs.7,500/- and his claim has not been considered at all for grant of out of turn promotion.
6. It is vehemently contended by learned Deputy Government Advocate that grant of out of turn promotion is discretionary function of the higher authority. Such a submission is rejected out-rightly as this is not a discretion vested in the higher authority. If the committee is constituted, the said committee is required to examine the case of the eligible persons strictly in accordance to recommendation made. It cannot be the sweet will of the committee to grant out of turn promotion to one and not to the other even if the similar circumstances were earlier taken into consideration.
7. In view of the aforesaid, it is to be held that the petitioner was not rightly considered by the higher authority for granting him out of turn promotion. Consequently, the writ petition is allowed. The respondents are directed to consider the case of the petitionerfor grant of out of turn promotion on account of gallantry work done by him as has been reported by the superior authorities. These recommendations be considered as the same was done in the case of B.S. Parihar who was promoted on 20.12.1993.
8. Let the aforesaid exercise be completed and appropriate orders be issued by the respondents within a period of three months from the date of receipt of certified copy of the order passed today.
9. The writ petition is allowed and disposed of. There shall be no order as to costs."
This order was unsuccessfully challenged in WA No.36/2013. The Division Bench held as under:
(5) WA No.36/201308.02.2013 Shri Vijay Pandey, Deputy Advocate General for the appellants/State.
Shri Rajendra Tiwari, Senior Advocate with Shri V.K. Shukla, Advocate for the respondent.
This intra-court appeal has been filed challenging the order of the learned Single Judge dated 9.10.2012 passed in Writ Petition No.2653/2011 whereby the learned Single Judge has allowed the writ petition with a direction to the respondents to consider the case of the petitioner for grant of out of turn promotion on account of gallantry work done by him as has been reported by the superior authorities.
We have heard learned counsel for the appellants/State and perused the record.
We see no reason to interfere in the appeal having regard to the extraordinary performance of the respondent beyond the cause of duty. It is not disputed on behalf of the appellant that such out of turn promotions have been given to sports persons and the case referred to in the judgment.
In view of the above, the writ appeal stands dismissed."
The respondents have rejected the claim of the petitioner by assigning certain reasons in the impugned order dated 27.4.2013 Annexure P/17. The reasons are as under:
(1) When Shri B.S. Parihar was given out of turn promotion, no Committee was constituted to consider his claim. The Committee was constituted on 8.3.1994.
(2) At this stage, it is difficult to gather as to what were the criteria for grant of out of turn promotion to Shri B.S. Parihar. Hence, no parity can be claimed by the petitioner.
(3) No recommendation was received for grant of out of turn promotion by the higher office. In other words, Superintendent of Police had not sent any such recommendation for out of turn promotion of the petitioner.(6)
(4) Petitioner's case has no merits.
(5) The petitioner has not worked in anti dacoity campaign.
(6) The petitioner has not shown any exceptional work in
relation to maintaining law and order.
(7) The petitioner has not participated in any shooting
competition and has not acquired any excellence in any other field.
(8) Petitioner is not a recipient of any gallantry or special police medal.
(9) The out of turn promotion takes away the right of promotion flowing from Statutory Rules mentioned in Clause (d) of the impugned order.
(10) Lastly, it is mentioned that the enabling provision for grant of out of turn promotion (Regulation 70A) is deleted with effect from 11.9.2012.
8. The order passed in WP No.2653/2011 has attained a finality in absence of any further challenge to it after dismissal of WA No.36/2013. A plain reading of finding given by this Court shows that Shri B.S. Parihar saved 16 persons from flood whereas petitioner saved about 1500 residents who were badly effected by flood. The petitioner had taken immediate steps to reach to the spot and ensured that hundred of families are rescued and saved. There is a specific finding by learned Single Judge that the Sub Divisional Officer, Revenue submitted a report that not only those persons were saved by the petitioner, he further made arrangement with the help of local people for those affected persons to provide them food, water, medicines, etc. He also made arrangement to avoid the epidemic condition which were likely to be occurred in such flood condition. It is pertinent to note here that in the first round, the learned Single Judge has given a specific finding that "Superintendent of Police also sent a report in this respect and the local bodies of the area has highly (7) appreciated the work of the petitioner". It is apposite to note here that in paragraph 5 of the earlier order, the learned Single Judge has mentioned it on more than one occasion that SP Jabalpur recommended the case of the petitioner for grant of out of turn promotion. In ground (a) and (b) of WA No.36/2013, the respondents have contended that no such recommendation was made by SP for out of turn promotion. However, their WA was dismissed. Thus, finding given by learned Single Judge has attained a finality. In the teeth of such finding, in my view, it is no more open to the respondents to contend that there was no recommendation of SP in favour of the petitioner for grant of out of turn promotion. Thus, this ground cannot be accepted for rejecting the claim of the petitioner.
9. I find substantial force in the argument of Shri Shukla that once this Court opined that petitioner's claim was not properly considered and directed for his consideration at par with the case of B.S. Parihar, it cannot be said that petitioner's case has no merits. Thus, this reason assigned is also without any basis.
10. Another reason for rejection is that while giving out of turn promotion to Shri Parihar it was not clear as to what were the criteria. This cannot be a ground to reject the claim of the petitioner when admittedly the petitioner's degree of valiancy is more than the valourness shown by Shri B.S. Parihar. At the cost of repetition, it is noted that Shri Parihar saved the life of only 16 persons whereas petitioner saved 1500 residents and ensured that they get food, water, medicines, etc. Thus, petitioner's claim is on a much higher footing than that of Shri Parihar.
11. In ground 7(c) of the impugned order dated 27.4.2013, the respondents have mentioned that petitioner has not participated in (8) anti dacoity campaign. He has not shown any extra ordinary work in relation to maintenance of law and order. He is not recipient of any police medal, etc. However, the respondents are unable to show whether these are the pre-requisite criteria for grant of out of turn promotion. Thus, in absence of showing that these are the parameters on the anvil of which the claim for out of turn promotion is to be considered, the said reasons cannot be accepted or become ground for rejection of claim of the petitioner. Thus, the reasons assigned in para 7 A to D are without any substance and are liable to be disapproved. The last reason assigned is that the very enabling provision (Regulation 70A) does not find place in the Statute Book with effect from 12.5.1997. In my view, this reason is also without any substance. The petitioner's claim is relating to the year 2005. At that point of time, the petitioner's case was required to be considered for grant of out of turn promotion. The enabling provision was very much available till 11.9.2012. If petitioner's case was wrongly considered or erroneously rejected, the deletion of provision cannot be a ground to deprive the petitioner from his right of meaningful consideration from due date.
12. At this stage, it is apt to note that a similar controversy cropped up before this Court few months ago. In the said case WP. No.1244/15 (Yogendra Yadav vs. State of M.P. and others), in the first round, the learned Single Judge opined that the petitioner therein has shown a higher degree of valiancy in comparison to the person with whom parity was prayed for. By giving such specific finding, the respondents were directed to reconsider the case of the petitioner therein for promotion on out of turn basis. The respondents rejected the said claim by stating that it does not have any merit. Certain findings were given for rejecting the claim which run contrary to the order passed by the learned Single Judge. This Court after taking (9) note of the factual scenario, opined as under:
"7. Before dealing with the rival contentions advanced at the bar, it is apt to quote certain findings given by this Court in WP. No. 20482/12 which reads as under:-
7. "Having heard learned counsel for the parties and on a perusal of the records, it is clear that from the details of the incident, which the petitioner and Shri Nitin Choubey are said to have performed, it is clear that the act of the petitioner as reflected in the Certificate -
Annexure P/3 is definitely more exceptional and is of a higher category than that of Shri Nitin Choubey. To that effect, there cannot be any dispute. That being so, then in the impugned order the Inspector General of Police has committed an error in granting appointment to Shri Nitin Choubey and rejecting the claim of the petitioner on similar considerations.
If the case of Shri Nitin Choubey and that of the petitioner are taken note of, there cannot be any dispute that the petitioner's case also demanded equal consideration and in not doing so, the competent authority has committed an error and the reasons given by the competent authority in the impugned order -Annexure P/11 to say that the act of bravery of the petitioner is not of an exceptional category warranting grant of appointment cannot be accepted, for the simple reason that for a less braver act than the petitioner, Shri Nitin Choubey has been granted appointment.
Even though the respondents say that once the provisions of Regulation 52 and directory in nature, no interference can be made in the matter of appointment, I am unable to accept the aforesaid contention. As far as the present case is concerned, in the matter of the petitioner and Shri Nitin Choubey, discrimination is apparent from the face of the record and this Court can always interfere into the matter and issue appropriate directions.
Accordingly, the petition is allowed. The matter is remanded back to the Inspector General of Police to reconsider the matter in (10) comparison to Shri Nitin Choubey and after taking note of the observations made hereinabove, the act of bravery of the petitioner and as approved in the case of Shri Nitin Choubey for the purpose of grant of appointment, take a decision afresh within a period of 45 days from the date of receipt of certified copy of this order.
With the aforesaid, the petition stands allowed and disposed of.
CC as per rules."
8. A plain reading of the aforesaid order which has attained finality, makes it clear that this Court has given a specific finding that the act of bravery of the petitioner is more exceptional and is of a higher category than Nitin Choubey. This Court gave further finding that the petitioner's case demanded equal consideration and while not doing so, the competent authority has committed an error. Therefore, the petition was allowed and the matter was remitted back to the police authorities to reconsider the matter. In view of aforesaid findings, it is clear that it was not open for the respondents to say that the petitioner's case is different than Nitin Choubey. On the contrary, this Court gave a specific finding that petitioner's case is better in terms of bravery qua Nitin Choubey.
9. Apart from this, the enquiry report (Annexure R/2) shows that the respondents have recorded the statement of children, who were saved by the petitioner. Ku. Rukmani and Master Amit (brother and sister) were saved by the petitioner in the year 2000. Both the witnesses deposed their statements before the enquiry committee wherein they specifically stated that there was sufficient water in the tank and they were drowning on the date of incident. The petitioner saved them on the said date. The other villagers, who had witnessed the said incident, have also deposed in favour of the petitioner. The common string in the depositions is that on the date of incident there was sufficient water which could have resulted into death of two children because of drowning. In view of these statements, there is no justification in holding that there was not sufficient water in the concerned water tank. I find force in the arguments of Ms. Shweta Yadav, learned counsel for the petitioner that after 14 years, depth of the (11) water tank cannot be reaccessed. In view of material produced before the enquiry committee, it is clear that there was sufficient water and the petitioner has shown bravery saved the life of two children. The respondents after having realized this, gave gallantry award to petitioner.
10. Resultantly, I am unable to approve the impugned order whereby the petitioner's claim for appointment is rejected on extraneous and irrelevant consideration. The impugned order is based on surmises and conjuncture which runs contrary to specific findings given by the Court in the first round of litigation. Hence, the impugned order dated 24-04-2014 is set aside. The respondents are directed to issue the appointment order to the petitioner on a suitable post as per relevant police regulation within 30 days from the date of communication of this order.
12. The petition is allowed."
13. It is apposite to note that normally the consideration and grant of promotion is an administrative/managerial function. If consideration is found to be erroneous, normally courts direct for reconsideration of the case. However, in the peculiar facts and circumstances of the case, wherein it is clearly established that the case of the petitioner is having more merit qua the person with whom parity is claimed, court can direct for issuance of promotion order on out of turn basis. If the present case is examined on the basis of principle laid down in the said case, it will be crystal clear that the petitioner's degree of valiancy is much more than the person who was given benefit of out of turn promotion. Thus, in the peculiar facts and circumstances of the case, I deem it proper to disapprove the action of the respondents in rejecting the claim of the petitioner. Resultantly, for the reasons stated above, the impugned order dated 27.4.2013 is set aside. The respondents are accordingly directed to issue appropriate promotion order on the post of Inspector in favour of the petitioner within 30 days from the due date. Due date shall be (12) determined in relation to right of consideration of the petitioner which was accrued in the year 2005. On promotion, the petitioner will reap the benefit of notional seniority and notional fixation of pay from due date. He shall not get any arrears of pay while getting notional promotion.
Petition is allowed. No cost.
(Sujoy Paul) Judge YS/