Vijai Kumar Singh Bhadoria S/O ... vs State Of U P Thr.Prin.Secy.Home & 3 ...
2015 Latest Caselaw 2276 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- SERVICE SINGLE No. - 6259 of 2011
 

 
Petitioner :- Vijai Kumar Singh Bhadoria S/O Late Bhagwati Singh
 
Respondent :- State Of U P Thr.Prin.Secy.Home & 3 Ors
 
Counsel for Petitioner :- R U Pandey,Ramesh Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Anil Kumar,J.

By means of present writ petition, petitioner has challenged the order dated 22.5.2000 passed by opposite party no.2/ Director General cum Inspector General of Police, U.P. Lucknow thereby rejecting the petitioner's claim for out of turn promotion.

Facts, in brief, of the present case are that petitioner, who was working on the post of Sub Inspector in Police Department in the State of U.P. has put forward his claim for out of turn promotion on the following points/ grounds:-

"(1)वर्ष १९८५ में लखनऊ में बाढ़ पीड़ितों की सेवा करने एवं १९७९ से १९८३ तक प्रांतीय एवं राष्ट्रीय स्तर पर आयोजित खेलों में पदक अर्जित करने के कारण "आउट ऑफ़ टर्न" प्रोन्नति की मांग ।

(2)दिनांक ३०.१०.१९९० को जुबेनाइल जेल, सीतापुर में राम जन्म भूमि बाबरी मस्जिद विवाद के दौरान उत्तेजित कार सेवकों एवं जेल कैदियों के मध्य हुए विवाद एवं मारपीट के समय सूझ बुझ व साहस के साथ बिगड़ती हुई स्थिति को नियंत्रित करने एवं शांति स्थापित करने में निभाई गई भूमिका के लिए "आउट ऑफ़ टर्न" प्रोन्नति की मांग ।

(3)दिनांक२५.१२.१९९४ को नई दिल्ली रेलवे स्टेशन पर एक आर्मी अधिकारी की पत्नी श्रीमती शालिनी नायर के बच्चे एवं उन्हें चलती ट्रेन में सुरक्षित चढाने में सहयोग करने एवं महिला के पर्स को जिसमें नकद दो लाख से अधिक रुपये थे, सुरक्षित उन्हें सौपने के लिए प्रोन्नति की मांग ।"

When no need paid, approached this Court by filing Writ Petition No. 3759 (SS) of 1996 ( Vijay Kumar Singh Bhadauria Vs. The State of U.P. And others), Vide order dated 14.10.1996, disposed of with the following directions:-

"In these circumstances, the State Government is directed to consider the case of the petitioner, if already not considered, in accordance to law with regard to out of turn promotion within a period of three months from the date a certified copy of this order is produced before him."

By order dated 9.6.1997 , the case of the petitioner was rejected, challenged by filing Writ Petition No.6807 (SS) of 1997 ( Vijay Kumar Singh Bhadauria Vs. State of U.P. And others ) on the ground that he is entitled for out of turn promotion in view of the Government Order dated 3.2.1994, allowed vide order dated 18.2.2000 which on reproduction reads as under:-

"The petitioner is claiming out of turn promotion under the government order dated 3.2.1994, a copy of which has been filed as Annexure no.11 to this writ petition. The photo copy of the said government order which has been filed is not very clear but it appears from the reading of paragraph no.3 of that government order that exceptional bravery and gallantry in encounter with notorious terrorist and hardened criminals or their arrest is one of the condition and the other condition is doing dangerous work in discharge of their duty. The word used between these two clauses 'ya' (in hindi) equivalent to 'or'. The case of of the petitioner was recommended by the Sub-ordinate officers but has been rejected by the Committee. It appears from the reading of the order of Committee dated 9.6.1997 Annexure -1 to this writ petition that the Committee has considered only first part of the government Order referred to above and has framed that the petitioner is not entitled for the benefit of out of turn promotion, under that government order as he has not been involved in encounter or arrest of terrorist or criminals . The Committee has overlooked the second part of the clause 3 of the said government order which provides that in the alternative where dangerous work has been performed in discharge of duty , then also police man can be considered for the benefit under that government order. Events of bravery mentioned can fall within the second clause therefore, the order dated 9.6.1997 Annexure -1 cannot be sustained on account of lack of application of mind by the Committee to the fact whether the said activities of the petitioner' qualify him for the out of turn promotion under the second part of clause -III of the government order dated 3.2.1994.

Considering these facts, the impugned order dated 9.6.1997, Annexure -1 to this writ petition is hereby quashed and set aside. The respondents will consider the case of the petitioner again under the said government order in accordance with aforesaid observations, taking into the account the recommended performance of the petitioner regrading display of exceptional bravery prior or subsequent to the order of the Committee which has been quashed . The decision will be taken within three months from the date on which the certified copy of this order is produced by the petitioner before the respondent no.2.

With these directions, this writ petition is allowed."

Thereafter the case of the petitioner was considered and rejected vide order dated 22.5.2000 passed by opposite party no.2 / Director General cum Inspector General of Police, U.P. Lucknow.

Sri Ramesh Pandey, learned counsel for the petitioner while challenging the impugned order 22.5.2000 submits that petitioner is entitled for out of turn promotion because the same is in contravention to the order dated 18.2.2000 passed in Writ Petition No.6807 (SS) of 1997 by which it was held that action on the part of Committee dated 8.6.1997, rejecting the claim of the petitioner for out of turn promotion is contrary because while rejecting the claim of the petitioner considered only first part of the government order and find that petitioner was not entitled for the benefit of out of turn promotion under that Government Order as he was not involved in encounter or arrest of terrorist or criminals . The Committee has overlooked the second part of the clause 3 of Government Order which provides that in the alternative where dangerous work has been performed in discharge of duty , then also police man can be considered for out of turn promotion under that Government Order.

Accordingly, learned counsel for the petitioner submits that ground/ events on which he claims out of turn promotion falls within the ambit of second part of clause 3 of the Government Order dated 3.2.1994 so the petitioner is entitled for out of turn promotion as the work/ events performed by the petitioner as mentioned above while discharging his duties on the post of Sub Inspector of the police falls within the ambit of ' Vishesh Jokhiim/ Jokhim purna Karya" .

Learned counsel for the petitioner vehemently argued that the petitioner/ Sri Vijay Kumar Singh Bhadauria, Sub Inspector attached with police office , Sitapur as per orders passed by Superintendent of Police, Sitapur sent on official duty to Delhi. After completion of his duty, reached New Delhi Railway Station to catch Gomti Express for his journey to Lucknow, the train was about to leave. While boarding the running train , he noticed one lady with a child in her lap with a big bag over her right shoulder, lost her balance, grip of her hand on the railing. On seeing this, petitioner without wasting a moment with a grave risk to his own life held the lady alongwith the child with one hand firmly and with the help of other passengers was able to pull her inside the compartment. The lady out of exhaustion and panic became unconscious. The petitioner immediately put water on her face, as a result of the same after about half and hour she regained her consciousness. On opening her eyes , she first inquired about her bag containing more than two lakhs rupees, handed over to her by the petitioner .

Later on, in regard to said incidence, Smt. Shalini Naiyar ( said lady) wrote a letter dated 31.12.1994 to Home Secretary, Ministry of Home, New Delhi for giving award to the petitioner and in respect to the said incidence a recommendation has been made for giving award/ out of turn promotion by Superintendent of Police, Sitapur by letter dated 18.6.1995. And by letter dated 22.9.1995 the then Director General of Police Uttar Pradesh recommended the case of the petitioner for award of Police Medal. Further a cash award of Rs 10000/- was given to the petitioner by the State Government and his name was also recommended for " Jivan Raksha Medal" , so keeping in view the said facts he is entitled for out of turn promotion as such the impugned order is contrary to law , liable to be set aside.

Sri K.K. Shuka, learned Standing Counsel for opposite parties while defending the impugned order submits that the acts performed by the petitioner on the basis of events he has put forward his case for out of turn promotion, does not falls within the category of " Adambh Sahash and Shaurya' so in view of the Government Order dated 3.2.1994 and is not entitled for out of turn promotion . The Committee on the basis of material on record as well as taking into consideration the Government Order darted 3.2.1994 specially in clause 3 has not recommended the case of the petitioner for out of turn promotion. Accordingly the opposite party no.2 by means of impugned order dated 22.5.2000 has rejected the case of the petitioner So there is not illegality or infirmity in the impugned order passed by opposite party no.2. In support of his arguments, he placed reliance on the following judgments :-

1. Satya Pal Singh and others Vs. State of U.P. and others , 1999 (4) AWC 3294

2. Umesh Chandra Pandey Vs. State of U.P. and others, 2008 (3) AWC 2939

3. Ram Saran Goyal Vs. State of U.P. and others, 2003(6) AWC 5515

4. Shiv Kumar Singh Vs. State of U.P. and others , 2007(69) ALR 433

Heard Sri Ramesh Pandey, learned counsel for the petitioner, Sri K.K. Shuka, learned Standing Counsel for opposite parties and perused the record.

All the police personnel are governed by Police Act 1861 and the U.P. Police Regulations and Statutory Rules framed for governing their service conditions. Section 23 of the Police Act, 1861 provides the duties of police officers, which is quoted below :

"23. Duties of police-officers-- It shall be the duty of every police-officer promptly, to obey and execute all orders and warrants lawfully issued to him by any competent authority, to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend, and for whose apprehension sufficient ground exists; and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant to enter and inspect, any drinking-shop, gaming-house or other place of resort of loose and disorderly characters."

Chapter- XXX of U.P. Police Regulations provides for mode of promotion of police personnel. Chapter- XXXI of the Regulations provides the provision with regard to 'Rewards'. Paragraph 466(4) provides as under:

"466(4)- Rewards should not be given to any class officers for 'general good work' but only for particular acts of special merit, such as good arrests, good detection or good service on a special occasion. Cash reward for good marksmanship during annual weapon firing and shots during musketry competitions are also admissible. Rewards are not to be given as a matter of routine whenever a case is directed. Nor should they be given for the efficient discharge of ordinary duties, e.g., to a reserve inspector for good recruiting or for training recruits."

From perusal of Section 23 of the Police Act, 1861 it is clear that it is the normal duty of a police personnel to detect and bring offenders to justice and to apprehend all persons whom he is legally authorised to apprehend,and for whose apprehension sufficient ground exists. Paragraph-466(4) of the U.P. Police Regulations contemplates that the rewards should not be given to any class of officers for 'general good work' but only for particular acts of special merit."

The Government Order No.665(1)/Chh: Pu-1-24-93 Lucknow dated3.2.1994 under which the petitioners are claiming for out of turn promotion, is reproduced below :

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fnukad % Qjojh 3] 1994

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v/kksgLrk{kjh dks mRrj izns'k iqfyl cy ds ,sls vkj{kh vkSj mifujh{[email protected] dek.Mj dk] ftUgksaus vnE; lkgl vkSj 'kkS;Z dk izn'kZu fd;k gks]eukscy ,oa lkgl c<+kus ds fy;s dze'k% eq[; vkj{kh in ij vkSj fujh{[email protected] dEiuhdek.Mj ij fu;qDr djus ds laca/k esa fuEufyf[kr vkns'k nsus dk funsZ'k gqvk gSA

¼1½ vnE; lkgl ,oa 'kkS;Z izn'kZu djus okys iqfyl cy ds mDr dfeZ;ksa dks ;FkkfLFkfr vkj{kh ls eq[; vkj{kh rFkk mifujh{kd ls fujh{[email protected] dEiuh dek.Mj ds fu%loxhZ; in ij fu;qDr fd;k tk;sxkA

¼2½ izR;sd foRrh; o"kZ ds fy;s] ;FkkfLFkfr eq[; vkj{kh ;k fujh{[email protected] dEiuh dek.Mj ds fu%loxhZ; inksa dk l`tu jkT; ljdkj }kjk iqfyl egkfujh{kd] mRrj izns'k ds izLrko ijfd;k tk ldsxkA

¼3½ iqfyl cy ds ,sls vkj{kh ;k mifujh{[email protected] IykVwu dek.Mj vnE; lkgl vkSj 'kkS;Z dk izns'kZu djus okys iqfyl dehZ Hkh dksfV esa vk;saxs] ftUgksusa dq[;kr vkradoknh ;k t?kU; vijk/kh ds lkFk esa eqBHksM+ esa ;k mudh fxjQrkjh esa lkgl vkSj 'kkZ;Z iznf'kZr fd;k gks;k vius drZO; ikyu ds nkSjku tksf[kr Hkjk dk;Z fd;k gksA

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¼5½ ;g vkns'k bl fo"k; ij le; le; ij tkjh vkns'kksa esa fdlh vU; ckr ds gksrs gq;s Hkh izHkkoh gksxkA

¼6½ ;g vkns'k rkRdkfyd izHkko ls ykxw gksxkA

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izfrfyfi % fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr %

1- iqfyl egkfuns'kd] mRrj izns'k ] y[kumA

2- vij iqfyl egkfuns'kd] mRrj izns'k iqfyl eq[;ky;] bykgkcknA

3- leLr iqfyl egkfuns'kd] tksUlA

4- leLr iqfyl mi&egkfuns'kd] jsUtA

5- vij iqfyl egkfuns'kd] ih0,0lh0 y[kumA

The Government Order dated 3.2.1994 contemplates for out of turn promotion to certain categories of police personal, if a police personnel shows "Indomitable courage and gallantry (vnE; lkgl ,oa 'kkS;Z )",. The word 'Courage' used in the said Government Order is qualified by the word-"Indomitable".

As per Oxford English-Hindi- dictionary the word-'Indomitable' means to defeat or frighten, even in a difficult situation, very brave and determine (dfBu ifjfLFkfr esa Hkh vts; ,oa fuMj ).

In the case of Ram Saran Goyal Vs. State of U.P. and others, 2003(6) AWC 5515, vide paragraph-10 this Court held as under :

" Gallantry has been defined as dashing bravery, showily attentive behaviour to women; a compliment made to a woman firing with her (New Lexicon Webster's Dictionary). The same dictionary defines bravery as courage, and courage has been defined as the capacity to meet danger without giving way to fear. The exemplary courage and bravery as such requires something more than being gallant. The award of police medal for gallantry may be one of the consideration for out of turn promotion on the ground of exemplary courage and bravery or taking risk in performance of duties, but that by itself, cannot be a conclusive proof to form an opinion for bravery and courage."

Accordingly, in view of Section 23 of the Police Act, 1861, Paragraph-466(4) of the U.P. Police Regulations read with Government Order dated 3.2.1994 and the dictionary meaning of the words-"Indomitable courage and gallantry (vnE; lkgl ,oa 'kkS;Z )", it is clear that for out of turn promotion under the government Order dated 3.2.1994, something more than good work and bravery is required. The said Government Order dated 3.2.1994 requires a police personnel claiming out of turn promotion to prove that his action showed "Indomitable courage and gallantry (vnE; lkgl ,oa 'kkS;Z )".

So far the act which was performed by the petitioner, as mentioned herein above i.e. point/ grounds no. 1 and 2 do not in any manner can said to be an act which falls in "Indomitable courage and gallantry (vnE; lkgl ,oa 'kkS;Z ) thereby entitling the petitioner to get out of turn promotion .

Further in the instant matter, learned counsel for the petitioner has vehemently argued and submits that taking into consideration the act which has been performed by the petitioner as per point no.3 mentioned herein above, is entitled for out of turn promotion because when he reached new Delhi Railway Station to catch Gomti Express for his journey to Lucknow , the train was about to leave. While boarding the train , he noticed one lady with a child in her lap with a big bag over her right shoulder lost her balance and grip of her hand on the railing. On seeing this, petitioner without wasting a moment with a grave risk to his own life held the lady alongwith the child with one hand firmly and with the help of other passengers was able to pull her inside the compartment . The lady out of exhaustion and panic became unconscious and on opening her eyes , she first inquired about her bag containing more than two lakhs rupees handed over to her by the petitioner. In this regard Smt. Shalini Naiyar wrote a letter dated 31.12.1994 to Home Secretary, Ministry of Home, New Delhi for giving award and in the same incidence , Superintendent of Police, as well as Director General of Police has has recommended his case for awarding Police Madal and he was also awarded Rs. 10000/- as cash.

Thus, keeping in view the above said fact that even if there is a recommendation made by Smt. Shalini Naiyar or by the authorities of the department in which petitioner is working and has been awarded Rs. 10000/- as cash in respect to the incident (mentioned at item no.3 herein above) and his case has been recommended for Gallantry award and for Prime Minister's " Jeevan Raksha Medal ', so far the matter relating to out of turn promotion, the same is to be given to the police personnel as per Government Order dated 3.2.1994. The act in question which is performed by the petitioner does not in any manner fall within the ambit and scope of Indomitable courage and gallantry (vnE; lkgl ,oa 'kkS;Z ) and Jokhim purna Karya, so he is not entitled for out of turn promotion ( See: Satya Pal Singh and others Vs. State of U.P. and others , 1999 (4) AWC 3294, Umesh Chandra Pandey Vs. State of U.P. and others, 2008 (3) AWC 2939, Ram Saran Goyal Vs. State of U.P. and others, 2003(6) AWC 5515 and Shiv Kumar Singh Vs. State of U.P. and others , 2007(69) ALR 433).

Further, opposite party no.2 / Director General cum Inspector General of Police U.P. Lucknow after considering the case of the petitioner and the material on record and taking into consideration the Government Order dated 3.2.1994, specially clause III of the said Government Order, as well as the directions issued by this Court in the matter in issue, held that petitioner is not entitled for out of turn promotion as the act performed by the petitioner ( at item no. 3 as mentioned above) because the said act does not fall within the ambit and scope of Indomitable courage and gallantry (vnE; lkgl ,oa 'kkS;Z ) and Jokhim purna Karya. The said finding is based on material on record, taking into consideration the said fact and the facts that this Court while exercising the power of judicial review under Article 226 of the Constitution of India cannot interfere with the finding of fact given by opposite party no.2 rejecting the case of the petitioner because Hon'ble the Apex Court in the case of S.N.Mukherjee Vs. Union of India reported in A.I.R. 1984 has held as follows:-

"In view of the expanding horizon of the principles of natural justice, the requirement to record reason an be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework where under jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest under lying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case. Therefore except in cases where the requirement has been disposed with expressly or by necessary implications, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision.

The recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and assures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. Therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It is however not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicitly so as to indicate that the authority has been due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."

In the case of Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S.Gandhi and others reported in 1991 (2) SCC, 716 the Apex Court has held as under:-

"The reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at. They also exclude the chances to reach arbitrary, whimsical or capricious decision or conclusion. The reasons assure an Inbuilt support to the conclusion/decision reached. When an order affects the right of a citizen or a person, irrespective of the fact whether it is a quasi-judicial or administrative order, and unless the rule expressly or by necessary implication excludes recording of reasons, it is implicit that the principles of natural justice or fair play require recording of germane and precise relevant reasons as a part of fair procedure. In an administrative decision, its order/decision itself may not contain reasons. It may not be the requirement of the rules, but a the least, the record should disclose reasons. It may not be like a judgement. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicitly so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, of it affirms such an order, need not give separate reasons. If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge. The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record. It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under Article 226 or the appellate jurisdiction of the Supreme Court under Article 136 to see whether the authority concerned acted fairly and justly to mete out justice to the aggrieved person."

In the case of M/s Mahabir Prasad Santosh Kumar Vs. State of U.P. & others reported in AIR 1970, SC, 1302, the Apex Court has held as under:-

"The High Court in rejecting the petition filed by the appellants has observed that the District Magistrate in considering the explanation of the appellants had "considered all the materials" and also that "the State Government in considering the appeal had considered all the materials". We have, however, nothing on the record to show what materials if any were considered by the District Magistrate and the State Government. The High Court has also observed that Clause 7 of the Sugar Dealers' Licensing Order does not require "the State Government to pass a reasoned order. All that is required is to give an aggrieved person an opportunity of being heard." We are of the view that the High court erred in so holding. The appellants have a right not only to have an opportunity to make a representation, but they are entitled to have their representation considered by an Authority unconcerned with the dispute and to be given information which would show the decision was reached on the merits and not on considerations of policy or expency. This is a clear implication of the nature of the jurisdiction exercised by the appellate authority; it is not required to be expressly mentioned in the statute. There is nothing on the record which shows that the representation made by the appellants was even considered. The fact that Clause 7 of the Sugar Dealers' Licensing Order to which the High Court has referred does not "require the State Government to pass a reasoned order" is wholly irrelevant. The nature of the proceeding requires that the State Government must given adequate reasons which disclose that an attempt was made to reach a conclusion according to law and justice."

In view of the said fact, I do not find any illegality or infirmity in the impugned order dated 22.5.2000 passed by opposite party no.2/ Director General cum Inspector General of Police, U.P. Lucknow thereby rejecting the petitioner's claim for out of turn promotion.

For the forgoing reasons, the writ petition lacks merit and is dismissed.

Order Date :- 11.09.2015

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