Madhya Pradesh High Court
Niranjan Sharma vs The State Of Madhya Pradesh on 6 December, 2016
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Shri Justice Subodh Abhyankar,J
WRIT PETITION NO.14141 OF 2012
Niranjan Sharma.
Vs.
State of Madhya Pradesh & others.
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Shri N.S.Ruprah, learned counsel for the petitioner.
Shri Anubhav Jain, learned Panel Lawyer for the respondents/
State.
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ORDER
(Passed on the 6th day of December, 2016) The petitioner before this Court is an Inspector in the Police Department and is seeking out of turn promotion on the ground that there are various recommendations in his favour for his out of turn promotion issued by various Government authorities, but still vide orders dated 20.04.2012 (Annexure- P/1), Order dated 30.06.2004 (Annexure-P/2) and order dated 9.12.2011 (Annexure P-15) his out of turn promotion recommendations have been turned down by the respondents by a cryptic and non-speaking order.
2. In brief, the case of the petitioner is that when the petitioner was posted as In-charge SHO of Police Station Bamhni District Mandla from 2.4.2001 to 19.11.2001, during this period the petitioner arrested one Naxalite Manoj Ram Manohar @ Manohar Neti, who was involved in various criminal cases and a reward of Rs.5000/- was declared by the Government for his arrest. Since the said naxalite was arrested at the instance of the petitioner, the then Superintendent of Police, Mandla vide letter dated 14.4.2003 (Annexure P-3) recommended the case of the petitioner for grant of out of turn promotion. The recommendation of the Superintendent of Police, Mandla was again recommended by the I.G. Police Balaghat Range on 30.4.2003 vide Annexure P-4. In the year 2003 the petitioner again apprehended drugs when he was posted at Neemuch and as many as 15 cases were registered by the efforts made by the petitioner, hence the Superintendent of Police, Neemuch also recommended the petitioner for his out of turn promotion on 5.5.2003 vide Annexure P-5 and subsequently on the basis of earlier recommendations vide Annexure P-6 dated 24.3.2003, the Secretary Home Department also granted permission for out of turn promotion to the petitioner, but the Director General of Police did not recommend the case of the petitioner for his out of turn promotion and passed the impugned order dated 30.6.2004 (Annexure P-2) in an arbitrary manner.
3. Further, it is the case of the petitioner that when he sought information under RTI Act that how many cases have been recommended by the Government for out of turn promotion and how many of them have been promoted, the respondents vide their letter dated 16.5.2008 (Annexure-P/8) replied that in all, in the year 2002-03, nine cases were not recommended by the PHQ for out of turn promotion and except the petitioner's case, in eight cases out of nine cases, out of turn promotion was given. So far as their performance is concerned, it is also submitted by the petitioner that vide Annexure-P/9, the work of other policemen posted in Naxal areas was considered to be so exemplary so as to deserve out of turn promotion despite there was no seizure and no arrest of any Naxalite. Other cases are of one S.I. Malkeet Singh who had done âgood workâ in the Naxal area and one Ramdas who seized brown sugar and Ganja which are filed as annexure-P/10. Another case is of one Anand Kumar Yadav, S.I. who is also granted out of turn promotion vide Annexure- P/11 although his seizer of contraband is much less than that of the petitioner. On such facts therefore, the contention of the petitioner is that there was no reason for the respondent No.1 to change its opinion only on the basis of the refusal of the DGO, PHQ while considering the case of the petitioner. Under these circumstances, it is prayed that the impugned orders (Annexure P-1, P-2 and P-15) may be quashted and the respondents may be directed to give out of turn promotion to the petitioner as per Annexure P-6, w.e.f. 24.9.2003 with all the consequential benefits. In support of his contention, reliance is also placed on the judgment of the Division Bench of this Court in the case of State of MP and other Vs. Mahendra Kumar Sharma, reported in (2008) 1 MPLJ
320. The relevant para 8 of the same reads as under:
â8. 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 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. 27-5-2003. 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.â
4. In reply to the petition, the respondents have inter-alia submitted that they were governed by Regulation 70-A of the MP Police Regulation, which reads as under:-
â70-Aâ 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 Directors General of Police and a Head Constable to the rank of Assistant Sub Inspector by the Dy. Inspector General of Police with the prior approval of the Director General of Police if he has distinguished himself in anti dacoity 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 approval of the Director General of Police. The number of officers promoted under this Regulation shall be not exceed 10 per cent.â It is submitted by the respondents that it is the sole discretion of the respondents to award out of turn promotion in accordance with the aforesaid regulation and the discretion is unfettered. It is further submitted that the Out of Turn Promotion Committee on 28.6.2003 has already rejected the petitioner's case for promotion and the same cannot be questioned. It is also submitted that the petitioner's case was considered in the light of the order passed by this Court in WP No.865/2012. On the other hand it is further contended by the respondents that vide notification dated 11.9.2012 in exercise of powers conferred by Sub Section (2) & (3) of Section 46 read with Section 2 of the Police Act, 1861 the State Government has made amendment in Madhya Pradesh Police Regulation whereby the Regulation 70-A has been deleted, and therefore the petitioner cannot claim any benefit emanating from the aforesaid Regulation 70-A. In support of their contention, reliance is also placed on the order of the Division Bench of this Court in the case of Zubair Vs. State of MP and others, passed in WP No.1485/2004. The relevant paras are reproduced as under:
â6. We have considered the rival contentions and we find that with regard to grant of mining lease under the Mineral Concession Rules itself in the case of M/s Hind Stone (supra) similar situation has been considered and it is found that when the application was submitted under the Rules, a particular statutory provision governed grant of permission. However, during the pendency of the application, the statutory rules was amended. Before the Supreme Court also similar question arose as is in existence in the present case i.e. whether the application for grant of renewal of licence which was submitted prior to amendment of the Rules, has to be processed as per the unamended provisions or as per the amended provisions. And after considering the legal principle, Hon'ble Supreme Court has held that no vested right accrues to a person for grant of licence on mere submission of the application and none can claim a vested right to have an application for grant of licence dealt with in a particular manner. It has been held by the Supreme Court that an application for licence has to be dealt with according to the Rule in force on the date of disposal of the application and only on the ground that there was delay in processing the application, the amended provision cannot be ignored. This principle laid down in the case of M/s Hind Stone (supra) has been followed by the Division Bench in the case of Brijendra Kumar Agrawal (supra) and again in the case of B. L. Nanda (supra). That apart, while considering the applications for registration of building plan and grant of permission under the M.P. Nagar Palika (Registration of Colonizer, Terms and Conditions) Rules, 1998 and the Rules framed therein, in the case of Paras Lifestyles Pvt. Ltd. And others Vs. State of M.P. -2012(1) MPLJ 690, similar question has been considered and it has been laid down by a Bench of this Court after taking note of various judgments in the said case that when a statutory procedure or rule is prescribed for grant of permission or approval, a application for the same has to be considered and decided in accordance to the statutory provisions as is applicable on the date of consideration. It has been held in all the cases that no vested right is available to the person to seek a permission or a grant in accordance to the rule applicable when the application was made.
It has been consistently held that when a statutory provision governs the rules and regulation for grant of permission and approval, then the permission or approval can be granted only in accordance to the rules or statutory provisions as they existed on the date of consideration and not in accordance to the provisions that existed when the application was filed.
7. Once the law on the question is clear, in this case also when the petitioner submitted the application under the unamended provisions of Rule 22-D was applicable but once on the date of consideration when certain prohibitions were enforced by virtue of amended provision of Rule 22- D and if respondent No.3 has rejected the application on such consideration, we see no error in the same warranting interference. By merely submitting the application for grant of lease, no vested right accrues to the petitioner and therefore, applying the law laid down in the cases referred to herein above, particularly in the case of M/s Hind Stone (supra), we see no error in the order passed by respondent No.3 as the provisions of Rule 22-D applicable after 10.4.2003 prohibits grant of lease to the petitioner and on such consideration if the application is rejected, the same cannot be termed as erroneous or illegal.â On the aforementioned preposition of law the learned counsel for the respondents submitted that the petitioner cannot take any advantage of Regulation 70-A after its repeal.
5. I have heard the learned counsel for the parties and perused the record.
6. From the record, it appears that the petitioner is a hard working police officer and has worked diligently on the posts at various places where he was appointed. It is also apparent that the petitioner was promoted from the post of Sub Inspector to the post of Inspector on 5.10.2011, but the grievance of the petitioner is that he is entitled for promotion from 24.2.2003 i.e. the date on which the order (Annexure P-6) was passed and he was recommended for out of turn promotion. The contention of the petitioner is also positively demonstrated by the order dated 14.4.2004 (Annexure P-3) passed by the then Superintendent of Police Mandla whereby a recommendation has been made for out of turn promotion of the petitioner on the ground that he was responsible for arrest of dreaded naxalite Manoj Ram Manohar @ Manohar Neti, which is recorded in the Rojnamcha Entry No.908 dated 18.6.2001, and the petitioner has also made other arrest of as many as 21 naxalites in connection with Crime No.107/90 and 108/90. It is also mentioned in that order that such promotion would encourage the other officers to work in the naxalite area and vide Annexure P-4 the recommendation of the Superintendent of Police Mandla was again recommended by the I.G. Police Balaghat Range vide order dated 30.4.2003 (Annexure P-4) which reads as under:-
âeq[kfcj dh lwpukvksa ij rRijrk ls vey djrs gq;s vius vnE; lkgl dk ifjp; nsrs gq;s tku dh ijokg fd;s fcuk mijksDr nqnkZUr uDlyh eukst mQZ jkeukjk;.k usxh firk cgknwj xksaM dks thfor voLFkk esa fxjQrkj djus esa lQyrk izkIr dh xbZ tks mifujh{kd dh vPNh lsokvksa dh fof'k"Vrk dks Lo;a izdV djrh gS uDlyh vfHk;ku esa buds fn;s x;s ;ksxnku ,oa iqfyl egkfuns'kd egksn; ds i= dzekad Mhthih@16193 fnukad 22-07-2002 ds rkjrE; esa mifujh{kd dh ;ksX;rk] fof'k"Vrk ,oa miyfC/k;ksa dks n`f"Vxr j[krs gq;s iqfyl jsX;wys'ku ds iSjk dzekad 70¼d½ ds rgr dze ls iwoZ inksUufr fn;s tkus gsrq iqfyl v/kh{kd dh jk; lger gksrs gq;s vuq'kalk djrk gwWA izdj.k ls lacaf/kr lEiw.kZ nLrkost ewyr% layXu dj vfxze dk;Zokgh gsrq izsf"kr gSAâ
7. From the record, it is also revealed that during the period 1997 to 2000 when the petitioner was posted at Neemuch he registered as many as 15 cases under NDPS Act and seized considerable amount of contraband (drugs), and hence the Superintendent of Police, Neemuch also recommended the case of the petitioner for out of turn promotion on 5.5.2003 (Annexure P-5). It is also apparent that on the basis of the recommendations (Annexures P-3 to P-5), the respondent No.1 has granted permission for out of turn promotion of the petitioner on 24.09.2003 (Annexure P-6) which reads as under:-
â2- vr% jkT; 'kklu }kjk Jh fujatu 'kekZ] mi fujh{kd] iqfyl }kjk fd;s x;s mDr fof'k"V dk;kZs dks n`f"Vxr j[krs gq, mUgsa iqfyl jsX;wys'ku ds Hkkx&2 ds v/;k;&2 ds vuqHkkx&1 esa jsX;wys'ku&70¼d½ ds rgr] mi fujh{kd iqfyl ls iqfyl fujh{kd ds in ij dze ls iwoZ inksUufr fd;s tkus dh vuqefr iznku dh tkrh gSAâ
8. Surprisingly, the respondent No.1 vide its impugned order dated 30.6.2004 (Annexure P-2) has refused to give out of turn promotion to the petitioner. Thereafter, the petitioner preferred WP No.865/2012, which was disposed of vide order dated 18.1.2012 with following observations:
âIn the circumstances, the petition by the petitioner is disposed of with a direction to the effect that in case the petitioner files a fresh representation before the authorities within three weeks from today along with a copy of the order passed today and a copy of the petition, the concerned authority shall reconsider the same and pass a reasoned order thereon expeditiously in accordance with law, preferably within a period of three months thereafter by taking into consideration the orders passed by the respondent authorities.â In pursuance of the aforesaid order, the respondent No.2 after reproducing the aforesaid order has dismissed the petitioner's representation vide impugned order dated 20.4.2012 (Annexure P-1) simply saying that since earlier also on 28.6.2003 the petitioner's claim has not been found suitable for consideration, hence there is no need to reconsider the petitioner's case, whereas the Out of Turn Promotion Committee in its order dated 28.6.2003 (Annexure R-1) filed along with the return, after quoting the contents of the recommendations passed in favour of the petitioner, has observed as under:-
âmi fujh{kd fujatu 'kekZ] rRdk- ftyk e.Myk gkWy inLFk uhep dks iq-v-e.Myk rFkk iqefu ckyk?kkV ,oa iq-v- uhep }kjk dze ls iwoZ inkSUufr iznku fd;s tkus dh vuq'kalk dh xbZ gSA lfefr }kjk ?kVukdze ds laca/k esa izdj.k ds leLr vfHkys[kksa dk ijh{k.k@v/;;u fd;k x;kA mDr mi fujh{kd }kjk dksbZ fof'k"V vFkok mYys[kuh; dk;Z fd;k tkuk ifjyf{kr ugh gqvk gS] dsoy uDlyoknh {kS= es inLFkkiuk ds le; fd;s x;s vPNs dk;kZs rFkk uhep ftys esa eknd inkFkksZ ds idMs tkus ds fy;s dze ls iwoZ inkSUufr fn;s tkus dh vuq'kalk dh xbZ gSA lfefr izdj.k ds iw.kZ ijh{k.kksijkar mi fujh{kd fujatu 'kekZ dks dze ls iwoZ inkSUufr fn;s tkus dh vuq'kalk ugha djrh gSA â
9. It is a matter of record that the high ranking officers of the State Police have recommended the case of the petitioner for out of turn promotion i.e. Superintendent of Police, Mandla on 14.4.2003 and 30.4.2003, whereas Superintendent of Police, Neemuch vide letter dated 5.5.2003 and the Additional Secretary, Home (Police) Department vide its letter dated 24.9.2003. In such circumstances, the observations made by the respondent No.1 appear to be unreasonable, arbitrary and biased and based of no substantive ground. Therefore, the petitioner's claim cannot be rejected merely on the ground that the State has unfettered discretion in the matter and also that Regulation 70-A on the basis of which the petitioner was claiming his right, has been deleted subsequently.
10. That apart, the petitioner has also brought on record various documents to demonstrate that he has been discriminated which is apparent from Annexures P-9 to P-11 wherein out of turn promotion has been given to other police personnel whose performance was either equal or low from the petitioner. Under these circumstances, the reliance placed by the learned counsel for the respondents in the case of Zubair (supra) is not applicable in the present case simply for the reason that in the order dated28.6.2003 (Annexure R-1) as well as the impugned orders Annexure-P/1, P/2 and P/15 the petitioner's claim has not been thwarted on the ground of deletion of Regulation 70-A of Police Regulations but on the ground of his unsuitably, in an arbitrary and cavalier manner without assigning any reasons.
This contention of repeal of regulation 70-A is being taken for the first time before this court and cannot be allowed to sustain. On the other hand, the case is also distinguishable on the ground that the petitioner, who was already a sub- inspector at the time of his recommendations was entitled on merits to be promoted out of turn under Regulation 70-A, hence his right was a vested right, earned by him by being in the line of fire which could not be undone by a mere stroke of pen, on technical grounds.
11. So far as the contention of the respondents that the State have an âunfettered discretionâ in granting the out of turn promotion, it has already lost its luster as the respondents are duty bound to perform the public duty without any passion and prejudice, for there is no such thing as âunfettered discretionâ when performing a public duty. The honâble Apex Court in the case of Akhil Bhartiya Upbhokta Congress v. State of M. P. and Ors (AIR 2011 SC 1834), has lashed out on the tendency of the government officials to act arbitrarily, indiscreetly in the following manner:-
â18. For achieving the goals of Justice and Equality set out in the Preamble, the State and its agencies/instrumentalities have to function through political entities and officers/officials at different levels. The laws enacted by Parliament and State Legislatures bestow upon them powers for effective implementation of the laws enacted for creation of an egalitarian society. The exercise of power by political entities and officers/officials for providing different kinds of services and benefits to the people always has an element of discretion, which is required to be used in larger public interest and for public good. In principle, no exception can be taken to the use of discretion by the political functionaries and officers of the State and/or its agencies/instrumentalities provided that this is done in a rational and judicious manner without any discrimination against anyone. In our constitutional structure, no functionary of the State or public authority has an absolute or unfettered discretion. The very idea of discretion is totally incompatible with the doctrine of equality enshrined in the Constitution and is an antithesis to the concept of rule of law.
19. In his work 'Administrative Law' (6th) Edition, Prof. H.W.R. Wade, highlighted distinction between powers of public authorities and those of private persons in the following words :
"... The common theme of all the authorities so far mentioned is that the notion of absolute or discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, no absolutely - that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms."
Prof. Wade went on to say :
"......The whole conception of discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good...........â For the same reasons there should in principle be no such thing as unreviewable administrative discretion, which should be just as much a contradiction in terms as discretion. The question which has to be asked is what is the scope of judicial review, and in a few special cases the scope for the review of discretionary decisions may be minimal. It remains axiomatic that all discretion is capable of abuse, and that legal limits to every power are to be found somewhere."
(emphasis supplied)
12. The Honâble Apex Court, while dealing with the identical situation in the case of Mohammad Aftab Mir Vs. State of Jammu and Kashmir & others, (2011) 11 SCC 82 where, in a case of out of turn promotion, where the petitioner, a police man was claiming his right under a circular issued in the year 1990, whereas the State relied upon a circular issued subsequently in the year 2000 has held as under :-
â8. On behalf of the Appellant it was urged that he was duly covered by the Circular No. 14-GR of 1990 dated 6th March, 1990 and his claim to out-of-turn promotion was duly supported by the recommendations by the officers who were present when the Charare Sharif incidents took place. It was submitted that the task performed by the Appellant at Chadoora was no less significant than the task performed by the Police personnel in Charare Sharif itself and there was, therefore, no reason to discriminate between the Appellant and the Station House Officer of Charare Sharif, particularly when both had been recommended for out-of-turn promotion by the Superintendent of Police (Operations) and the Senior Superintendent of Police, Budgam District, Kashmir.
9. On the other hand, it was submitted on behalf of the Respondent-State that the case of the Appellant for out-of-turn promotion had been duly considered by the authorities at the highest levels and a decision was taken, considering the situation at the ground level on 10th and 11th May, 1995 when Charare Sharif town was gutted. It was contended that the situation in Charare Sharif town itself and in Chadoora were different, in that, within Charare Sharif town the Police were engaged with the militants directly as they had moved into the shrine itself, whereas in Chadoora the duty performed on the said two days was one of containment.
Regarding the incident at Badipora, the same was also aimed against communal forces who were trying to burn down the temple, but the same also involved containment and not a direct and active confrontation with militants. It was submitted that in the different circumstances, involving the S.H.O. of Charare Sharif and the Appellant, it could not be said that the Appellant had been discriminated against in the matter of out- of-turn promotion.
10. Having considered the submissions made on behalf of the parties and the materials on record, as also the judgments of the learned Single Judge and the Division Bench of the High Court, it does appear that the circumstances prevailing within the town of Charare Sharif and in Chadoora were different during the disturbance and the decision to grant out-of-turn promotion to Shaikh Hamidulla, who was the Station House Officer, Charare Sharif, during those fateful days was fully justified.
10. In the absence of any glaring discrepancy or bias in the decision-making process, ordinarily the Court does not normally take upon itself the task of making a subjective assessment of an officer's performance in relation to matters of promotion and that too of the nature contemplated in the present case. However, at the same time, the Court is also entitled to consider the materials placed before it in order to arrive at a conclusion as to whether an injustice has been caused to the concerned officer. In the present case, both the Superintendent and Senior Superintendent of Police, Budgam District, had a chance to observe the Appellant's performance on the ground on 10th and 11th of May, 1995, when the incident was actually taking place and they have recommended that the Appellant should be given out- of-turn promotion. The Director General of Police has also recognized the exemplary performance of the Appellant. All such recommendations seemed to suggest that the performance of the Appellant merited special consideration. Of course, the Appellant has already been promoted to the post of Inspector on 19th August, 2000, and the only question which now survives is whether such promotion should be given retrospective effect from the date on which Shaikh Hamidulla and Sub- Inspector Sonaullah were given such promotion.
12. While considering the Appellant's claim for out-of-turn promotion or accelerated promotion in the Writ Petition filed by him, the learned Single Judge took special note of the condition, procedure and norms which provided that out-of-turn promotion would be considered only for consistently exceptional performance on the anti- militancy front. The learned Judge took note of the fact that except for two episodes, which, in any event, were performed in the usual course of duties, the same did not constitute any consistent exceptional performance on the part of the Appellant which would entitle him to out- of-turn promotion. The said view was endorsed by the Division Bench while dismissing the Letters Patent Appeal filed by the Appellant herein.
13. Neither the learned Single Judge nor the Division Bench of the High Court appears to have given proper attention to the Circular No. 14-GR of 1990 dated 6th March, 1990, in relation to the recommendations which had been made by the Superintendent and the Senior Superintendent of Police, Budgam District. However, the final assessment for giving out-of-turn promotion lay with Director General of Police and in his judgment a cash reward of Rs. 2,000/- was felt to be appropriate in recognition of the exemplary services rendered by the Appellant.
14. However, from the materials on record it is quite clear that the claim of the Appellant is covered by the policy decision of the Government contained in Circular No. 14-GR of 1990 dated 6th March, 1990, which provided an incentive to all Government employees to give their best performance of duties in the service of the people and in meeting the challenge of the anti-national forces to disturb the law and order situation in the State. It is only subsequently that on 6th January, 2000, that a Government Order No. Home-3(P) of 2000 was published by the State in its Home Department regarding the procedure for out-of-turn promotion in the Police Department. It is in the said circular that it has been indicated that out-of- turn promotion could be considered only for consistently exceptional performance on the anti- militancy front and that the recommendations of the Director General of Police, along with the dossier of the concerned employee, along with other formalities and the extent of deviation from the seniority rule, would have to be placed before the Home Department Select Committee for consideration and recommendation which would then be placed before the Chief Minister with the prior approval of the Minister of State, Home Department.
15. The aforesaid circular dated 6th January, 2000, directly links up out-of-turn promotion with the concept of consistently exceptional performance on the anti- militancy front, which did not figure in the earlier Circular No. 14-GR of 1990 dated 6th March, 1990. Both the learned Single Judge and the Division Bench appear to have overlooked the difference in the two different circulars and the decision of the learned Single Judge is based on the later Circular dated 6th January, 2000, while the Appellant's claim is under the earlier Circular of 6th March, 1990, in relation to incidents which had taken place prior to the promulgation of the Government Order dated 6th January, 2000.
16. In fact, in the Supplementary Affidavit filed on behalf of the State of Jammu and Kashmir on 3rd August, 2010, the said two circulars have been referred to and it has been submitted that the Circular of 6th January, 2000, had been issued in continuation and in addition to the Circular dated 6th March, 1990. It has also been stated that since the Circular dated 6th January, 2010, was issued subsequent to the circular issued in the year 1990, cases which have occurred after the issuance of the 2000 Circular would be subject to the same. It has been categorically stated that the case of the Appellant belongs to the period prior to the issuance of the 2000 Circular and, therefore, he would be governed by the 1990 Circular. Of course, it has also been submitted that the said Circular dated 6th March, 1990, does not confer any legal right on the Appellant nor does it cast any obligation on the State of Jammu and Kashmir, since it was only an internal guideline which authorized the State Government to grant out-of-turn promotion in cases where the officials of the Jammu and Kashmir Police display exemplary bravery and courage in confronting terrorists, militants and insurgents. In the said affidavit it has been sought to be justified that the case of the Appellant did not merit out-of-turn promotion and he deserved a cash reward which had been duly awarded to him.
17. It is clear that the Respondent State of Jammu and Kashmir is also alive to the fact that the claim of the Appellant has to be considered in the light of the earlier Circular dated 6th March, 1990, and not by the subsequent Circular dated 6th January, 2000.
18. In these circumstances, we are of the view that the Appellant's claim for out-of- turn promotion, on the basis of the facts disclosed, require reconsideration in the light of the Circular dated 6th March, 1990, and not the Circular dated 6th January, 2000, as has been sought to be done in his case.
19. Accordingly, we set aside the orders passed by the learned Single Judge and the Division Bench of the High Court and direct that the case of the Appellant be reconsidered by the concerned Respondents in accordance with the Circular No. 14- GR of 1990 dated 6th March, 1990, for the purpose of granting retrospective effect to the promotion already granted to him on 19th August, 2000, and if such retrospective effect is given, to consider such other benefits that he may, thereafter, become entitled to in accordance with law. The said exercise should be completed within three months from the date of communication of this order.â (emphasis supplied)
13. In the above mentioned facts and circumstances of the case, the petitioner who is painstakingly agitating his cause since 2003 before the respondents as well as this High Court, has made out a case for his out of turn promotion which has been denied to him arbitrarily and with discrimination as already discussed above, hence the writ petition filed by the petitioner deserves to be allowed, accordingly, it is allowed and the impugned orders Annexure-P/1, P/2 and P/15 are hereby quashed. Normally this court would have sent the matter back to the Authorities to reconsider the case of the petitioner in light of the observations made in this order, but looking to the long period which has already lapsed in the litigation; it would be in the fitness of the things to put an end to the further complications at this stage only and the respondents are directed to grant out of turn promotion to the petitioner retrospectively, with all consequential benefits forthwith, in accordance with law, within a period of three months from the date of receipt of certified copy of this order. There shall be no order as to costs.
(Subobh Abhyankar) Judge 06/12/2016 Ansari