Sonpal Singh [Hearing List] vs State Of U.P. Through Principal ...
2013 Latest Caselaw 6950 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 18
 

 
Case :- SERVICE SINGLE No. - 889 of 2011
 

 
Petitioner :- Sonpal Singh [Hearing List]
 
Respondent :- State Of U.P. Through Principal Secy. Home Lucknow And Ors.
 
Counsel for Petitioner :- Ramesh Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

Heard Sri Ramesh Singh, learned counsel for petitioner, Sri Vikrant Raghuvanshi,learned State counsel and perused the record.

Facts in brief of the present case are that the petitioner who was working on the post of constable, posted under Senior Superintendent of Police/Dy. Inspector General of Police, Lucknow Region, Lucknow. On 18.05.1999, deputed for carrying an accused, namely, Kamal Kishore Singh Yadav before the court (District and Sessions Judge, Lucknow). After producing the abovesaid person in the court, while he was returning along with aforesaid person, in front of court of District and Sessions Judge, Lucknow, two unknown persons had fired upon Sri Kamal Kishore Singh Yadav with a Katta, on account of which he sustained injury in his stomach.

Petitioner, putting his life in danger, caught one of the person who has fired upon Sri Kamal Kishore Singh Yadav along with Katta. In this regard, on 18.05.1999, an FIR was also lodged at Police Station Wazirganj.

Further, in the incidence in question, the then District and Sessions Judge, Lucknow wrote an appreciation letter dated 30.06.1999 to Senior Superintendent of Police, Lucknow, appreciating the act of the petitioner. Thereafter, the Senior Superintendent of Police, Lucknow by letter dated 21.08.1999 taking into consideration the appreciation made by District and Sessions Judge, Lucknow wrote a letter for out of turn promotion of the petitioner, in this regard was also made by Inspector General of Police, Lucknow, Lucknow Region, Lucknow.

However, thereafter no heed has been paid for considering the case of the petitioner for out of turn promotion, so he approached this Court by filing a Writ Petition No. 878 (SS) of 2010, praying therein that the official respondents may be directed to consider the case of the petitioenr for out of turn promotion in view of the incidence which took place on 18.05.1999, disposed of by order dated 17.02.2010 with the following direction:-

"Considering the peculiar facts and circumstances of the case, the Committee of Police Establishment Board/opposite party No.4 is directed to examine the matter and pass appropriate orders on the representation for out of turn promotion, taking into consideration the Government Order dated 3.2.1994, within a maximum period of two months from the date of presentation of a certified copy of this order.

The writ petition stands disposed of in above terms. "

In pursuance to the same, the impugned order dated 06.08.2010 has been passed by which the claim of the petitioner has been rejected by O.P.No. 2. Aggrieved by the said fact, present writ petition has been filed.

While challenging the impugned order, learned counsel for petitioner submits that the same has been passed on the basis of report submitted by the Committee which has rejected the case of the petitioner for out of turn promotion, copy of which for the first time has been served on the petitioner by means of counter affidavit filed by the respondents.

Accordingly, learned counsel for petitioner submits that the Committee while considering the case of the petitioner for out of turn promotion had not considered the case of the petitioner in correct prospective and has also not taken into consideration the appreciation letter written by District and Sessions Judge, Lucknow as well as recommendation made in favour of the petitioner on the basis of letter written by District and Sessions Judge, Lucknow by the Superintendent of Police, Lucknow and Inspector General of Police, Lucknow for out of turn promotion.

He further submits that even no finding has been given by the Committee in its report that why the Committee disagree with the recommendation made in favour of the petitioner for giving out of turn promotion to the next higher post. So, the impugned order dated 06.08.2010 which has been passed taking into consideration the report submitted by the Committee that the petitioner is not entitled for out of turn promotion in view of the provisions as provided under Government Order dated 03.02.1994 is an action which is illegal and arbitrary, contrary to the facts on record, liable to be set aside.

Sri Vikrant Raghuvanshi,learned State counsel while defending the impugned order submits that the case of the petitioner as per the procedure provided under Government Order dated 03.02.1994 has been placed before the Committee constituted for the said purpose, after taking into consideration the material on record not found fit to recommend the case of the petitioner for out of turn promotion to the appropriate authority as the act which was performed by the petitioner on 18.05.1999 is an act to be performed by the police Constable while discharging his duties, further committee has given a categorical finding the petitioner has caught a person who has fired on Sri Kamal Kishore Singh Yadav with the help of public present on the spot.

He further submits that taking into consideration the said facts as well as the fact that the petitioner has been awarded Rs. 1000/- as reward and the recommendation given by the District and Sessions Judge, Lucknow is only an appreciation letter and the recommendation given by Senior Superintendent of Police, Lucknow as well as Inspector General of Police, Lucknow for out of turn promotion of the petitioner are only a recommendation, not binding on the Committee, so there is no illegality or infirmity in the impugned order by which the petitioner case for out of turn promotion has been rejected, hence the present writ petition liable to be dismissed.

I have heard learned counsel for parties and perused the record.

On the basis of the undisputed fact as stated above of the present case are that in the incidence which took place on 18.05.1999 in the premises/front of Court of District and Sessions Judge, Lucknow, the said authority had wrote a letter to the competent authority/ Senior Superintendent of Police, Lucknow thereby appreciating the act done by the petitioner in the said incidence. Subsequently, the Senior Superintendent of Police, Lucknow wrote a letter dated 21.08.1999 to the higher authority/ Inspector General of Police, Lucknow recommending the case of the petitioner for out of turn promotion, thereafter, the Inspector General of Police, Lucknow also recommended the case of the petitioner for out of turn promotion to the O.P.No. 2.

So far as the matter in respect to giving out of turn promotion to a police personnel is concerned, the same is governed by a Government Order dated 03.02.1994 and in order to decide the controversy involved in the present case, the para No. 3 of the said Government Order is relevant quoted hereinbelow:-

"पुलिस बल के ऐसे आरक्षी या उपनिरीक्षक / प्लाटून कमांडर अद्धमय साहस एवं शौर्य का प्रदर्शन करने वाले पुलिस कर्मी कि कोटि में जायंगे जिन्होंने कुख्यात आतंकवादी या जघन्य अपराधी के साथ मुठभेड़ या उनकी गिरफ़्तारी में साहस एवं शौर्य प्रदर्शित किया हो या अपने कर्त्वय के पालन के दौरान जोखिम भरा कार्य किया हो |"

In the instant case, a Committee has been constituted to considered the case of the petitioner for out of turn promotion as per Government Order dated 03.02.1994 after considering the case of the petitioner had recommended that he is not entitled for out of turn promotion as the act performed by the petitioner on 18.05.1999 is an act which is to be performed by the police Constable while discharging his duties and the accused which has been caught by him with the help of public.

Needless to mention herein that from the perusal of the recommendation of the Committee, the position which emerged out that the said Committee has not given any finding whatsoever that on what ground and reason the said Committee had rejected the recommendation made by the police authorities under whom the petitioner is posted i.e. Senior Superintendent of Police, Lucknow as well as Inspector General of Police, Lucknow Region, Lucknow who have recommended the petitioner's case for out of turn promotion taking into letter of appreciation written by District and Sessions Judge, Lucknow rather on the point in issue the report submitted by the Committee is a non-speaking.

Thus, keeping in view the said fact, the first question which is to be considered in the present case that whether the action on the part of Committee thereby not recommending the case of the petitioner for out of turn promotion is subject to judicial review or not in view of the fact stated hereinabove.

This Court while exercising power of judicial review under Article 226 of the Constitution of India does not exercise appellate powers. It is not intended to take away from administrative authorities the powers and discretion properly vested in them by law and to substitute courts as the bodies making the decisions. Judicial review is a protection and not a weapon.

In the case of Council of Civil Service Unions (CCSU) V. Minister for the Civil Service (1984) 3 ALL ER 935, Lord Diplock has observed the scope of judicial review in the following words:-

"Judicial Review as I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality' the second 'irrationality' and the third 'procedural impropriety".

Moreover, judicial review has certain inherent limitation. It is suited more for adjudication of disputes than for performing administrative functions. It is for the executive to administer the law and the function of the judiciary is to ensure that the Government carries out its duty in accordance with the provisions of the rules and statute.

In the case of Chief Constable of the North Wales Police V. Evans, (1982) 3 ALL ER 141, it was observed by Lord Hailsham as under:-

"Purpose of judicial review is to ensure that individual receives fair treatment and not to ensure that the authority, after according fair treatment reaches on a matter which it is authorized by law to decide with its conclusion which is corrected in the eyes of the Court."

In the same case, Lord Brightman observed that:-

"Judicial review as the words imply is not an appeal from a decision but a review of the manner in which a decision was made," and held, that "it would be an error to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself."

The aforesaid observations made by the Lord Hailsham and Lord Brightman were quoted with approval by their Lordships of Supreme Court in State of U.P. V. Dharmendar Prasad Singh, AIR 1989 SC 997, and while upholding that the judicial review is directed not against the decision, but is confined to the examination of the decision making process, it was held by the Supreme Court as under:-

"When the issue raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account, relevant factors or is so manifestly unreasonable that no reasonable authority entrusted with the power in question could reasonable have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors."

In the case of Tata Cellular V. Union of India (1994) 6 SCC 651 the Supreme Court stated that:-

"Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made but the decision making process itself," and enumerated some broad grounds upon which an administrative action is subject to control by judicial review and classified them under the heading of 'illegality', 'irrationality' and 'procedural impropriety.' In their supervisory jurisdiction as distinguished form the appellate one, the Courts do not themselves embark upon rehearing of the matter but nevertheless courts will, if called upon, act in a supervisory capacity and see that the decision making body acts fairly. If the decision making body is influenced by considerations which ought not to influence or fails to take into account the matters which ought to have been taken into account the Courts will interfere. If the decision making body comes to its decision on no evidence or comes to a finding so unreasonable that a reasonable man could not have come to it then again the Courts will interfere.

Further if the decision making body goes outside its power or misconstrues the extent of its power, then too the Courts can interfere, and if the decision making body acts in a bad faith or with ulterior object which it is not authorized by law, its decision will be set aside in supervisory jurisdiction. A decision of a public authority will be liable to be quashed or otherwise dealt with by appropriate order in judicial review proceedings, where the Courts concludes that the decision is such that no authority properly directing itself on the relevant law and fact acting reasonably could have reached it."

In view of the said settled position of law on the point in issue on judicial review, this Court while exercising the power of judicial review under Article 226 of the Constitution of India can very well take into consideration and judge the decision making process of the authority concerned.

In view of the said position, I am of the considered opinion that the Committee while not considering the case of the petitioner for out of turn promotion had not given any finding that why disagree with the recommendation given by the Senior Superintendent of Police, Lucknow and Inspector General of Police, Lucknow as well as appreciation letter written by the District and Sessions Judge, Lucknow on the basis of which the abovesaid authority had recommended the case of the petitioner for out of turn promotion rather on the point in issue the report of the Committee is silent.

Further, in the case of Ashok Rana Vs. Home Secretary,U.P.Shashan and others, reported in [(2000) 3UPLBEC 2324] in which this court has held as under,

"The reports 'of the sponsoring authorities constituted valid material for the formation of opinion as to whether the petitioner was entitled to be given out of turn promotion and were not liable to be ignored sans any rhyme or reason. The grant of power to give out of turn promotion to a police officer is no doubt subjectively formulated but the decision of the Committee one way or the other must be based on objective consideration of valid materials such a the reports/recommendations made by the SSP/DIG/IG(P). I find no valid reason justifying the order impugned herein passed in disregard of valid materials on record. (see Pooran Singh Mehra Vs. State of U.P. and others, 2002(4) ESC( All) 450 and Prathviraj Chauhan and another Vs. State of U.P. and others(2006) 3 UPLBEC 2790)"

In the case of Constable 126, Rajiv Chandra Kaushik vs. State of U.P. and Ors reported in [2006(4) ESC 2901(All)] it was held,

"that in case a person has shown extra courage and bravery and recommended for out of turn promotion and the committee constituted for the said purpose if ignore the relevant valid material, the same cannot be sustained and has taken a view, 'that the grant of power to give out of turn promotion to a police officer is no doubt subjectively formulated but the decision of the Committee one way or the other must be based on objective consideration of valid materials such as the report/ recommendations made by the sponsoring authorities". Meaning thereby the Committee which has been constituted for the purpose of out of turn promotion to take into consideration the recommendation of the sponsoring authority."

This Court by judgment and order dated 14.12.2010 passed in Writ Petition No. 982 of 2010 (SB) State of U.P. & Anr. Vs.Sunder Singh Solanki decided on 14.12.2010 held while dealing with the matter with regard to out of turn promotion for the act of bravery by police personnel, the State Government or the Director General of police cannot act in arbitrary manner. State or its authorities have to discharge their obligation in a just and fair manner and the recommendations of the sponsoring authorities constitute valid material for the purpose and if ignored without valid reasons and sufficient ground, the same cannot be sustained.

Thus in view of the above said judgment , the position which emerge out to the facts that police personnel has got no right to get out of turn promotion as a matter of right but for the purpose of granting the same a report of sponsoring authority constitute valid material for formulation of material whether he is entitled to be given out of turn promotion or not and the said report / recommendation is subjective material which is taken to be consideration by the Committee while considering the case for grant out of turn promotion and if the committee disagree with the said material , it should give a valid reason for disagreement whey the person whose case has been recommended by the sponsoring authority for out of turn promotion is not entitled for the, so once the recommendation of the Committee is not in accordance with law, the impugend order dated 06.08.2010 passed by O.P.No. 2 on the basis of the same is not sustainable, liable to be set aside.

For the foregoing reasons, the impugned order dated 06.08.2010 (Annexure No. 1) passed by O.P.No. 2 is set aside and the matter is remanded to the said authority to reconsider again in view of the observations made hereinabove expeditiously.

With the above observation, the writ petition is allowed.

Order Date :- 12.11.2013

Ravi/