Head Constable Bramha Nand Yadav vs State Of U.P. And Others
2017 Latest Caselaw 1576 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 5
 

 
Case :- WRIT - A No. - 51284 of 1999
 

 
Petitioner :- Head Constable Bramha Nand Yadav
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- A.K. Bajpai,U.N. Sharma
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

Heard Sri M.A. Ausaf, learned counsel for the petitioner and Sri Azad Khan, learned Standing Counsel for the respondents.

The petitioner in this writ petition is seeking quashing of the order dated 25.05.1999 whereby it has been directed that he could not be considered for promotion to the post of Sub Inspector on the ground that he has not qualified the training course of the post of Head Constable and that he was only given out of turn promotion on the post of Head Constable.

Briefly stated the facts of the case are that the petitioner was appointed on the post of Constable in the U.P. Police on 10.12.1984. On 13.09.1994 on the call given by a Political Party for the State wide Bandh the High Court was also sought to be closed down and there was a tussle between the lawyers and the members of certain political parties and an unruly mob also tried to attack the then Chief Justice of Allahabad High Court Hon'ble S.S. Sodhi, J. The petitioner at the relevant point of time was posted in the security of the then Hon'ble Chief Justice of Allahabad High Court and he showed exemplary bravery and courage in providing protection to the Hon'ble Chief Justice and was instrumental in preventing happening of any untoward incident involving the life of the then Hon'ble Chief Justice. Appreciating the exemplary courage shown by the petitioner a recommendation letter was sent by the High Court to the Senior Superintendent of Police, Allahabad on 21.10.1994 (Annexure-2 to the writ petition) referring to the incident which had happened in the High Court with the request that this appreciation letter of the then Hon'ble Chief Justice may be placed in the Character Roll of the petitioner. Acting on this appreciation letter of the High Court the petitioner was also given out of turn promotion on the post of Head Constable (Armed Police) by the order dated 02.11.1994 (Annexure-3 to the writ petition).

At the time of admission of the writ petition this Court had directed the respondents to provisionally enlist the petitioner for training as Sub-Inspector (Armed Police) which would be subject to the result of the writ petition.

Interim order of this Court dated 25.07.2000 reads as under:

"Having heard Sri U.N.Sharma for the petitioner and Sri K.N.Kushwaha, Standing Counsel representing the respondents at considerable length and having gone through the affidavits brought on record I am prima facie of the view that the petitioner has been illegally denied promotion to the post of Sub Inspector or merely on the ground that he was given out of turn promotion to the post of Head Constable and had not undergone training essential for appointment to the post of Head Constable. Absence of training before promotion to the post of Head Constable, in my opinion, is not a ground for denying further promotion which is regulated by criterion of "seniority subject to rejection of the unfit" as laid down by the U.P.Govt. Servants Recruitment by Promotion Rules, 1994 as amended from time to time. In the circumstances, the respondents are directed to provisionally enlist the petitioner for training as Sub Inspector (Armed Police) subject to the result of the writ petition."

Sometimes in 1999 the petitioner applied for the post of Sub Inspector through representation dated Nil (Annexure-4 to the writ petition). On this application of the petitioner the impugned order dated 25.05.1999 was passed in which the claim of the petitioner has been denied on the ground that the promotion granted to the petitioner on the post of Head Constable was only on temporary basis and that he had not qualified the training course for the post of Head Constable in view of the Police Headquarter, Allahabad Notification dated 22.03.1999. Aggrieved, the petitioner has come before the High Court challenging the order dated 25.05.1999.

Learned counsel for the petitioner submitted that the petitioner was given out of turn promotion for showing exemplary bravery and courage in saving the life of the then Hon'ble Chief Justice and a recommendation to that effect was also made by the then Hon'ble Chief Justice upon which the petitioner was granted promotion to the post of Head Constable. He further submitted that this promotion was granted to him in view of the provisions of Regulation 455 of the Uttar Pradesh Police Regulations (hereinafter referred to as the Regulations) which do not provide for any training course to be qualified by the Head Constable as otherwise required under Regulation 454 of the Regulations and therefore, Regulation 455 being an exception of Regulation 454 the respondent could not have insisted upon the petitioner to qualify the training course of Head Constable for purposes of his further promotion to the post of Sub-Inspector.

It has also been submitted by the learned counsel for the petitioner that after the incident which had happened in the Court of Hon'ble Chief Justice another incident had happened on 05.05.2003 at about 12.20 P.M. when the petitioner was on duty in Court Room No.37 in the High Court he showed exemplary attentiveness, bravery and tremendous courage, when by his vigilant and swift action he succeeded in capturing a person (subsequently recognized as Jagdish Chandra Pathak), who entered the Court room with a loaded revolver .32 Bore (6 rounds loaded) while the Court was functioning and Court room was fully packed with lawyers and staff members. The petitioner spotted this men and tried to catch hold of him, when he was trying to flee away from the Court room but was chased by the petitioner and apprehended at a few paces in the corridor of the Court room, overcoming the resistance and confrontation caused by the said person and the loaded revolver as well as the mobile phone of the said Jagdish Chandra Pathak was thereafter seized. In this regard a letter was also written by the Hon'ble Mr. Justice M.C. Jain to the Registrar (Protocol) on 21.05.2003 on which another recommendation was made by the High Court through the letter of the Registrar General, High Court of Judicature at, Allahabad to the Senior Superintendent of Police, Allahabad dated 22.05.2003 recommending the petitioner for promotion in the next higher rank giving him out of turn promotion and also to place the appreciation letter of the Hon'ble Judge in the Character Roll of the petitioner. The copy of the letter of Hon'ble Mr. Justice M.C. Jain reads as under:

" Registrar (Protocol)

Sri Brahmanand, Head Constable AP No.33 (Posting-District Fatehpur) has been attached as Shadow for the last about 4 years (excepting the period of my tenure as Judge Uttaranchal High Court from November 2000 to November 2001). I always found him quite brave, vigilant courageous and alert in his duty. He is swift in his actions.

A recent incident in Court room no.37 on 5th May, 2003 at about 12.20 P.M. presented an ideal example of his attentiveness and tremendous courage, when by his vigilant and swift action he succeeded in capturing a person (subsequently recognised as Jagdish Chanra Pathak), who entered the Court room with a loaded revolver .32 Bore (6 rounds loaded), while the Court was functioning and the Court room was fully packed with lawyers and staff members. When the aforesaid Shadow Sri Brahmanand spotted him and tried to catch hold of him, he tried to flee away from the court room, whereupon the aforesaid shadow, bravely, chased and apprehended him at a few paces in the corridor of the Court rooms, overcoming the resistance and confrontation caused by the said person. The lawbreaker was ultimately produced by the Shadow along with the seized arm (loaded revolver) and mobile phone whereafter he was handed over to the police. The Court work was interrupted for some time. The shadow Brahmanand thus tactfully handled the situation and prevented happening of an untoward incident. His courageous deed, in fact, is praiseworthy and commendable. He well deserves to be given promotion in next higher rank even out of turn. The Director General of Police, U.P. Lucknow be communicated accordingly. Let this appreciation be also placed on the Character Roll of Sri Brahmanand.

(Justice M.C. Jain)"

Letter of Shri Girish Verma, Registrar, High Court of Judicature at Allahabad reads as under:

From: Shri Girish Verma,

Registrar,

High Court of Judicature at,

Allahabad.

To,

The Sr. Superintendent of Police,

Allahabad

Dt. 22.05.2003

Shri Brahmanand, Head Constable A.P. No.33 is attached with Hon'ble Mr. Justice M.C. Jain for the last about four years. His Lordship has always found him quite brave, vigilant, courageous and alert in his duty besides being swift in his actions.

On 5th May, 2003 at about 12.20 p.m. in Court No.37 the aforesaid shadow showed an ideal example of his attentiveness and tremendous courage in capturing a person, namely, Sri Jagdiesh Chandra Pathak who entered the Court Room with a loaded revolver of .32 Bore (6 round loaded) while the Court was functioning. Sri Bhrahmanand spotted him and when he tried to catch hold of him, he tried to flee away from the Court whereupon the aforesaid shadow bravely chased and apprehended him at a few paces, in the corridor of the Court Rooms, overcoming the resistance and confrontation caused by the said person.

The aforesaid act of Shri Brahmanand prevented happening of an untoward incident. His courageous deed, in fact is praiseworthy and commendable.

I am desired by Hon'ble Mr. Justice M.C. Jain to request you to kindly give him promotion in next higher rank even out of turn and this appreciation be placed on the Character Roll of Sri Brahmanand.

Thanking you.

Yours faithfully

(GIRISH VERMA)"

On these recommendation letters of the High Court, a report was also called by the Inspector General of Police, Allahabad Zone, Allahabad through his letter dated 01.11.2004.

Sri Azad Khan, learned Standing Counsel, on the other hand, has referred to the Police Headquarter Notification dated 22.03.1999, copy of which has been filed as Annexure-CA-4 which provides that the candidates for promotion to the post of Sub-Inspector must not be more than 40 years of age as on 01.01.1999 and must have qualified the Head Constable Armed Police Training Course by 05.05.1999. He also submitted that there is a procedure prescribed for selection of Sub-Inspector under Regulation 447 read with Regulation 448 of the Uttar Pradesh Police Regulation. He further submits that promotion to the post of Head Constable is governed by the provisions of Regulation 454 particularly paragraph (c) thereof which provides Constables of the Civil Police and Armed Police who have passed the prescribed course at the Police Training School, Sitapur and since the petitioner had not qualified the Police Training Course from the Police Training School, Sitapur, therefore, he is not entitled for further promotion to the post of Sub-Inspector.

In order to appreciate the controversy in the present case it would be necessary to refer to the provisions of Regulation 454 and Regulation 455 of the Police Regulation. Regulation 454 of the Police Regulation reads as under:

"454. The following constables will be eligible for promotion to the rank of head constables.

(a) constables of the civil police who qualified before 1st January, 1941, in accordance with the rules then in force and who have also passed such course as the Inspector General may prescribe.

(b) constables of the armed police who have already obtained a regimental drill certificate, and

(c) constables of the civil and armed police who have passed the prescribed course at the Police Training School, Sitapur."

Regulation 455 of the Police Regulation reads as under:

"455. Specially deserving constables of Civil Police who are unable to qualify for promotion in the manner specified in paragraph 454 may be promoted to the rank of Head Constable with the approval of the Range Deputy Inspector General of Police, provided that the total number of head constables so promoted in the district shall at any one time not exceed 20 per cent of the total number of head constables, Civil Police, sanctioned in the district fro Watch and Ward Duty.

Specially deserving constables, Civil Police of the Criminal Investigation Department who are unable to qualify for promotion in the manner specified in paragraph 454, may be promoted to the rank of head constable by the Deputy Inspector-General of Police, Criminal Investigation Department provided that the total number of head constables so promoted in the Criminal Investigation Department shall not exceed 50 per cent of the head constables, Civil Police, sanctioned for the Criminal Investigation Department.

Specially deserving constables of the Armed Police who are unable to qualify for promotion in the manner specified in paragraph 454 may be promoted to the rank of head constable by the Deputy Inspector General of Police. Headquarters, provided that the total number of head constables so promoted shall not exceed 2-1/2 per cent of the posts of head constables, Armed Police sanctioned for the Police Force."

A conjoint reading of the two provisions, namely, Regulation 454 and Regulation 455 of the Police Regulations what is noticed is that the Regulation 455 is an exception to the provisions of Regulation 454. Regulation 454 provides that Constables will be eligible for further promotion as Head Constable if they fulfilled the condition laid down in sub paragraphs (a), (b) and (c) of Regulation 454. Regulation 454 (c) no doubt requires that the constables of the civil and armed police, pass the prescribed course at the Police Training School, Sitapur but Regulation 455 of the Regulations clearly provides that specially deserving constables of Civil Police who are unable to qualify for promotion in the manner specified in Regulation 454, may be promoted to the rank of Head Constable with the approval of the Range Deputy Inspector General of Police, provided that the total number of head constables so promoted in the district shall at any one time not exceed 20 per cent of the total number of head constables, Civil Police sanctioned in the district.

It is nobody's case that the petitioner was given out of turn promotion in excess of 20% of the total strength of Head Constables in the District. He was given out of turn promotion on the recommendation of the High Court considering the exemplary bravery and courage shown by him in protecting the life of the then Hon'ble Chief Justice of the Allahabad High Court. Regulation 455 carves out a special category of deserving constables of the civil police "unable to qualify for promotion" in the manner specified in paragraph 454 for promotion to the rank of Head Constable.

The promotion order of the petitioner (Annexure-3 to the writ petition) also clearly states that this promotion is being granted to him under regulation 455 of the Police Regulation for showing exemplary courage and bravery in saving the life of the then Hon'ble Chief Justice of the Allahabad High Court in the incident which had happened on 13.09.1994. This clearly shows that the petitioner even if had not passed the prescribed course at the Police Training School was not required to qualify the same in view of the exemption granted to that effect by Regulation 455. Regulation 455 of the Police Regulation does not contemplate promotion on temporary basis. In this view of the matter the promotion of the petitioner made under Regulation 455 must be held to be promotion on regular basis.

The submission of the learned Standing Counsel that the promotion given to the petitioner was purely temporary and therefore he had no right to be promoted to the post of Head Constable or to be considered for further promotion as Sub-Inspector has been made only to be rejected for the simple reason that the petitioner was promoted as Head Constable in 02.11.1994 under Regulation 455 and he continued to work as such even on the date when the impugned order was issued on 25.05.1999. The impugned order nowhere mentions that the petitioner's work and conduct has not been satisfactory. The only ground for denying him promotion to the post of Sub-Inspector is that he did not qualify the prescribed Police Training Course as provided in the Police Headquarter Order dated 22.03.1999 read with Police Headquarter Order dated 19.05.1998. The Police Headquarter Order dated 19.05.1998 has not been filed with the counter affidavit or with the supplementary counter affidavit but has been shown to the Court by the learned Standing Counsel. This Government Order only provides for the procedure of selection to the post of Sub-Inspector and Constable (male/female), P.A.C. and Constable. It does not provide for any training course to be undergone by the candidate. The only requirement for training in the Police Training School, Sitapur is contained in the Regulation 454 of the Police Regulation but as already observed above since Regulation 455 of the Uttar Pradesh Police Regulations under which the petitioner was given promotion as Head Constable is an exception to Regulation 454 of the Police Regulation, therefore, in my opinion, the petitioner could not have denied being considered for promotion to the post of Sub-Inspector only on the ground that he had not undergone the prescribed Police Training Course.

Lastly, it was submitted by the learned Standing Counsel that the petitioner is now over age and could not be considered for promotion to the post of Sub-Inspector. This was not a ground for denying the promotion to the petitioner on the post of Sub-Inspector in the first place.

Learned counsel for the petitioner submits that 256 posts were advertised out of which only 254 posts have been filled and two posts have been left unfilled because this writ petition was pending and also because against the impugned order the State had filed Special Appeal No.781 of 2000 (State of U.P. and Others Vs. Bramha Nand Yadav) and the said Special Appeal was dismissed with the observations that there was no ground for interfering with the interim order dated 25.07.2000 as the Court has merely directed that the respondent (petitioner herein) be sent for training of Sub-Inspector but he has not been otherwise held to be entitled for consideration on the post of Sub-Inspector nor has he been promoted.

The order of the Special Appeal reads as under:

"1.The respondent had filed an application for being considered for promotion to the post of Sub Inspector. This application was rejected on 25.05.1999. He filed writ petition against the same. In this writ petition an interim order was passed on 25.07.2000 directing to provisionally enlist the petitioner for the training of Sub Inspector. Hence the present special appeal.

2. We have heard the standing counsel for the appellant.

3. The Court has merely directed to enlist the respondent in the training of Sub Inspector. The Court has neither held him to be entitled to be considered for promotion on the post of Sub Inspector nor has promoted him.

4. In view of the same there is no justification to interfere with the order dated 25.7.2000 after 9 years. However, the Writ Petition No.51248 of 1998 may be decided expeditiously. With the aforesaid, the special appeal is dismissed."

In this view of the matter and in the light of the observations made above, in my opinion the petitioner could not be denied promotion on the post of Sub-Inspector only on the ground that he has not undergone the prescribed training course in the Police Training School, Sitapur.

The writ petition deserves to be allowed and is accordingly allowed.

The impugned order dated 25.05.1999 cannot survive and is accordingly quashed.

A direction is issued to the respondents to consider the petitioner for promotion for the post of Sub-Inspector within the period of two months from the date of receipt of a certified copy of this order.

Since in view of the interim order of the High Court dated 25.07.2000 the claim of the petitioner is required to be considered subject to the outcome of the writ petition, therefore it goes without saying that the petitioner would be considered for promotion to the post of Sub-Inspector with effect from the relevant date. The respondents shall consider the claim of the petitioner for the post of Sub Inspector (Armed Police) Ranker Examination strictly in accordance with law.

Order Date :- 2.6.2017

N Tiwari