Arun Kumar vs The State Of Jharkhand
2022 Latest Caselaw 5103 Jhar

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     L.P.A. No.392 of 2019
                                ----
Arun Kumar, aged about 63 years, S/o Late Ramrup Prasad,
R/o Krishna Apartment, Flat No.201, Near Jaipal Singh
Stadium, P.O. - G.P.O., P.S. - Kotwali, District - Ranchi.
                            ...     ...       Appellant/Petitioner
                             Versus
1. The State of Jharkhand
2. Director General of Police - Jharkhand, P.O. & P.S. -
Dhurwa, District - Ranchi.
3.    The    Secretary,    Department       of   Personnel   and
Administrative Reforms, Government of Jharkhand, P.O. &
P.S. - Ranchi, District - Ranchi.
4. The Senior Superintendent of Police - Ranchi, P.O. & P.S.
Ranchi, District - Ranchi.
5(a). Sushmita Devi, W/o Late Amarnath, r/o Premchand
Nagar, Police Line, Dhanbad, P.O. & P.S. - Kotwali, Dist -
Dhanbad.
6. Shri Dhananjay Kumar Singh, Constable no. 86 Simdega.
7.Shri Ramakant Rai, Constable no. 104 Simdega
8. Shri Bishu Oraon, Constable no. 346 Simdega
9. Shri Marwari Oraon, Constable no. 380 Simdega
10. Shri Salan Paul Kerketta, Constable no.381, Simdega.
11. Shri Yodhya Oraon, Constable no. 414 Simdega
12. Shri Maheshwar Mahto, Constable no. 461 Simdega
13. Shri Bhutnath Singh Munda, Constable no. 478 Simdega
14. Shri Sukhram Nag. Constable no. 493 Simdega
15. Shri Md. Abrar, Constable no. 509 Simdega
16. Shri Upendra Kumar Rai, Learning Driver, Constable
no.535, Simdega
17. Shri Sanjay Kumar Sharma, Constable no. 618 Simdega
      All resident of P.O.+ P.S. - Simdega, Dist - Simdega, at
Present address of Police Headquarterd P.O. + P.S. - Dhurwa,
Dist - Ranchi.
                      ...     ... Respondents/Respondents
                              -------
CORAM :           HON'BLE THE CHIEF JUSTICE
           HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                               ------
For the Appellant     : Mr. Kalyan Roy, Advocate
                        Mr. Sidhartha Roy, Advocate
For the State         : Mr. Ashok Kumar Yadav, Sr. S.C.-I
                        Mr. Piyush Chitresh, A.C. to A.G.
For Resp. Nos. 8, 9, : Mr. Ansuhman Kumar, Advocate
11, 12, 13, 15 & 17 Mr. Ashok Kumar Sinha, Advocate
                                   --------
C.A.V. on 23.11.2022              Pronounced on 16.12.2022
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Per Sujit Narayan Prasad, J.

I.A. No.8569 of 2019

The instant interlocutory application has been filed

seeking a direction for amendment in the pleadings of the

instant appeal on the basis of a document, i.e., letter dated

02.08.2012 issued by Director General of Police Human Right

Jharkhand.

2. It has been contended by the appellant that the learned

Single Judge has wrongly given a finding that the petitioner‟s

claim for giving him out of turn promotion by the

Departmental Promotion Committee was rejected on the

ground that he has not been awarded any medal for bravery,

as stipulated under Rule 660 of the Police Manual.

It has been further stated that the learned Single Judge

has given aforesaid wrong finding without taking into

consideration the supplementary affidavit dated 12.04.2013

filed by the writ petitioner/appellant in W.P.(S) No.1458 of

2008.

3. This Court has perused the copy of letter dated

02.08.2012, as appended as Annexure-11 to the instant

interlocutory application wherefrom it is evident that the

petitioner was awarded with the Police Medal in the year

2012 but the fact remains that at the time of meeting of

Departmental Promotion Committee, which was held on

10.01.2008, the writ petitioner/appellant was not having any

medal for bravery as required for getting out of turn

promotion under the provision or Rule 660(C) of the Police

Manual.

4. The learned Single Judge, while dismissing the writ

petition has observed that neither the petitioner was awarded

any medal for his bravery nor any citation was given to him

for his outstanding work taking into consideration the

minutes of the meeting of Departmental Promotion

Committee which was held on 10.01.2008 by which date the

petitioner was not awarded with the police medal which he

has received in the year 2012.

5. In view of aforesaid, this Court finds that even if the

instant interlocutory application will be allowed, the writ

petitioner/appellant will not be benefitted because he has got

the police medal in the year 2012 while the recommendation

for out of turn promotion was made by the Departmental

Committee on 10.01.2008.

6. In view thereof, this instant interlocutory application is

dismissed.

L.P.A. No.392 of 2019

7. The instant appeal, preferred under Clause 10 of the

Letters Patent, is directed against the order/judgment dated

05.04.2016 passed by learned Single Judge of this Court in

W.P.(S) No.1458 of 2008 whereby and whereunder the order

dated 10.01.2008 passed by the Departmental Promotion

Committee by which the prayer of the petitioner for grant of

out of turn promotion has been rejected, has been refused to

be interfered with.

8. Brief facts of the case as per the pleadings made in the

writ proceeding, which are required to be enumerated,

read as under :-

The writ petitioner was posted as Sub Inspector of Police

in Chutia P.S. at the time of filing of the writ petition. He was

posted at Runi Saidpur in Sitamarhi District in the month of

October, 1992, a communal riot had taken place on the

occasion of immersion of Idol of Goddess Durga, which

resulted in a huge loss of life and property.

The writ petitioner claims that he was instrumental in

apprehending two criminals with a huge cache of arms for

which recommendation was made for rewarding the petitioner

for his bravery. The Director General of Police had also

communicated vide letter dated 18.01.1994 recommending

the award of a revolver on account of his bravery.

The recommendation so made by the Director General of

Police was accepted by the Joint Secretary, Government of

Bihar, Home, (Police Department) vide his letter dated

21.08.1996. The writ petitioner was not desirous of accepting

the award, rather wanted out of turn promotion in terms of

Rule 660 (C) of the Police Manual and, as such, made

representation for consideration of his case for out of turn

promotion. The same was not considered and, as such, writ

petition being W.P.(S) No. 351 of 2004 was filed which was

disposed of on 22.01.2004 directing the Senior

Superintendent of Police to consider the representation of the

writ petitioner by passing a reasoned order.

Adverse decision was taken against the writ petitioner

on the ground that two departmental proceedings were

initiated and, as such, refused to give out of turn promotion

to the writ petitioner.

The writ petitioner, being aggrieved by such refusal on

the part of the respondents, had preferred writ petition being

W.P.(S) No. 5772 of 2004 which was dismissed on 02.11.2004

and was affirmed in L.P.A. No. 772 of 2004.

The writ petitioner, subsequent thereto, was exonerated

from the charges in one of the departmental proceedings as

the charges could not be proved whereas in the other

departmental proceedings, the order of punishment of the

disciplinary authority was set aside by the appellate authority

and only minor punishment of censure was awarded.

The writ petitioner, in view of the subsequent

developments, again preferred another writ petition being

W.P.(S) No. 6553 of 2006 which was disposed of on

31.10.2007 directing the authorities to dispose of the

representation of the petitioner and pursuant to the same,

the order was passed on 10.01.2008 rejecting the claim of the

petitioner.

The writ petitioner, being aggrieved with the same, has

again approached to this Court by filing writ petition being

W.P.(S) No. 1458 of 2008 by taking the ground that he fulfills

all the requisite criteria in terms of Rule 660(C) of the Police

Manual, save and except Police Medal for Gallantry and

Distinct Service. But the case of the petitioner has been

overlooked by the Departmental Promotion Committee, but in

the same meeting other police officials were granted out of

turn promotion even though the said persons did not fulfill all

the requisite criteria as is necessary to come within the

periphery of Rule 660(C) of the Police Manual.

The further ground has been taken that after the order

was passed in W.P.(S) No. 351 of 2004, departmental

proceedings were initiated against the petitioner, but

subsequently the petitioner having been exonerated in one

proceeding and a minor punishment awarded in another

proceeding, claim of the petitioner should have been

considered in the right perspective and in terms of the criteria

laid down in Rule 660(C) of the Police Manual.

The State has seriously objected to such contention by

taking the ground that in view of the bravery shown by the

petitioner, recommendation was made by the Director

General of Police for awarding him with a revolver, which was

awarded to the writ petitioner but he has not accepted the

same.

It has been contended that the writ petitioner is not

fulfilling the criteria laid down under Rule 660(C) of the Police

Manual for the purpose of granting him out of turn

promotion.

The learned Single Judge, after taking into consideration

the rival submission as also by considering the provision as

contained under Rule 660(C) of the Police Manual has

refused to interfere with the order dated 10.01.2008 by

dismissing the writ petition, which is the subject matter of

the instant intra-court appeal.

9. Mr. Kalyan Roy, learned counsel appearing for the writ

petitioner/appellant, has taken the ground in assailing the

order that the learned Single Judge has failed to appreciate

that on similar circumstances the other similarly situated

persons have been granted out of turn promotion even

though they were not fulfilling the requisite criteria laid down

under Rule 660(C) of the Police Manual. While in the case of

the writ petitioner, similar situation is there and in his case

the ground has been taken by the concerned respondent that

the writ petitioner is not fulfilling the requisite criteria.

Therefore, according to the learned counsel, it is a case

where the writ petitioner has seriously been discriminated by

denying the out of turn promotion even though he is similarly

situated to others whose cases have been considered by the

Departmental Promotion Committee recommending their

names for out of turn promotion and subsequent thereto they

have been granted promotion.

Learned counsel, in the aforesaid backdrop, has

submitted that the order impugned passed by the learned

Single Judge requires interference as also the decision of the

authority dated 10.01.2008, whereby and whereunder the

claim of the writ petitioner has been rejected, is also fit to be

quashed and set aside.

10. Per contra, Mr. Ashok Kumar Yadav, learned Sr. S.C.-I

assisted by Mr. Piyush Chitresh, learned A.C. to A.G., has

defended the order passed by the learned Single Judge by

taking the ground that the writ petitioner is not fulfilling the

criteria laid down under Rule 660(C) of the Police Manual

since the writ petitioner has got no Prasasti Patra.

It has been contended that the out of turn promotion is

to be governed by the provision as contained under Rule

660(C) of the Police Manual but the writ petitioner is not

fulfilling the eligibility criteria as stipulated under the said

provision, therefore, if the case of the writ petitioner has been

rejected by the authority by passing the impugned order

dated 10.01.2008, the same cannot be said to suffer from any

error.

It has further been contended on behalf of State that

appointment or promotion, if made contrary to the eligibility

criteria as prescribed under the applicable Rules, the same if

granted, will be illegal and dehors the Rule.

The learned State counsel, in the backdrop of the

aforesaid fact, has submitted that the order passed by the

learned Single Judge requires no interference.

11. This Court has heard the learned counsel for the

parties, perused the documents available on record as also

the finding recorded by the learned Single Judge in the

impugned order.

12. The following issues are involved in this case which are

required to be considered by this Court :-

(i) Whether the writ petitioner is entitled for

consideration of out of turn promotion in the light of the

criteria laid down under Rule 660(C) of the Police

Manual?

(ii) Whether the recommendation made by the

Superintendent of Police for issuance of Prasasti Patra

(citation), to be issued by the State Government, but

such citation has not been issued and, as such the

recommendation which was made by the

Superintendent of Police can be construed to be citation

for the purpose of bringing one or the other in-service

candidates under the fold of eligibility criteria, as per the

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stipulation made under Rule 660(C) of the Police Manual

for the purpose of granting out of turn promotion?

(iii) Whether the recommendation so made by the

Director General of Police in favour of the writ petitioner,

similar to that of the recommendation made by the

Superintendent of Police with respect to other

employees, who have subsequently been impleaded as

party respondent Nos. 5 to 17, gives right to the

petitioner for getting out of turn promotion merely

because the private respondents have been considered

for out of turn promotion even though they are not

eligible as per the provision of Rule 660(C) of the Police

Manual?

(iv) Whether the competent authority of the State

Government who have accepted the recommendation of

Departmental Promotion Committee recommendation

the promotion to be given by way of out of turn

promotion in favour of private respondent Nos. 5 to 17,

is liable to be dealt with departmentally for accepting the

recommendation of DPC for out of turn promotion even

though they are not eligible for such promotion?

13. The Issue Nos. (i) to (iii) since are similar, leaving apart

Issue No.(iv), therefore, these issues are being dealt with

together.

This Court, before answering the issues, deems it fit and

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proper to refer the stipulation made under Rule 660(C) of the

Police Manual, as contained in Notification No.GSR 1463

dated 04.02.1989, which reads hereunder as:-

"660-C out of turn promotion.- The following criteria and procedure will be adopted for giving out of turn promotion. (i) The officer concerned should not have been awarded any major punishment till the date of consideration and order of out of turn promotion. (ii) Should have very good entries in permanent character roll. (iii) Should have received citations for high standard of investigation, supervision of cases and for excellence in intelligence work. (iv) Should have ability for shouldering higher responsibilities consonant with the proposal promotion. OR should have been awarded Presidents medal or Medal for gallantry. OR should have received citation for outstanding operational work. (b) Out of turn promotion will be decided, by committee which will be constituted as follows:

(i) Director General and I.G. of Police, Bihar, Patna Chairman

(ii) Senior Officer-in-Charge of CID, Bihar Member

(iii) Senior Most Officer in-charge of Special Branch, Bihar Member

(iv) Senior Most officer-in-charge (personnel) of Bihar Member

(v) Senior most regional I.G. of Police Member

(vi) Special Secretary/ Addl. Secretary Home (Police) Department Member Secretary."

It is evident from the aforesaid provision that the criteria

for giving out of turn promotion has been provided, i.e., (i) the

officer concerned should not have been awarded any major

punishment till the date of consideration and order of out of

turn promotion, (ii) should have very good entries in

permanent character roll, (iii) should have received citations

for high standard of investigation, supervision of cases and

for excellence in intelligence work, (iv) should have ability for

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shouldering higher responsibilities consonant with the

proposal promotion or should have been awarded Presidents

medal or Medal for gallantry or should have received citation

for outstanding operational work.

(b) out of turn promotion will be decided, by committee which

will be constituted as follows:

(i) Director General and I.G. of Police, Bihar, Patna Chairman

(ii) Senior Officer-in-Charge of CID, Bihar Member

(iii) Senior Most Officer in-charge of Special Branch, Bihar

Member

(iv) Senior Most officer-in-charge (personnel) of Bihar Member

(v) Senior most regional I.G. of Police Member

(vi) Special Secretary/ Addl. Secretary Home (Police)

Department Member Secretary.

It is, thus, evident that the criteria for grant of out of

turn promotion are that there should not be any major

punishment awarded till the date of consideration for out of

turn promotion. The candidate should have very good entries

in permanent character roll, should have received citations

for high standard of investigation, supervision of cases and

for excellence in intelligence work and should have ability for

shouldering higher responsibilities consonant with the

proposal promotion. Apart from that the condition which is

required to be possessed by one or the other in-service

candidate to get out of turn promotion is that he should have

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been awarded Presidents medal or Medal for gallantry or

should have received citation for outstanding operational

work. The candidature of such candidates will be considered

by duly constituted committee headed by Director General

and Inspector General of Police.

14. In the given facts of the case, the fact which is not in

dispute in this case is that although two departmental

proceedings were initiated against the writ petitioner, but in

one of the departmental proceeding he has been exonerated

from charges while in another minor punishment of censure

was imposed. Therefore, so far as the condition pertaining to

not having been awarded with any major punishment is

applicable to the writ petition as per the material available on

record.

It is not the case of the State respondents that the writ

petitioner is having no good entry in the permanent character

roll. However, the case of the State respondents is that he has

not received citations and, therefore, he is not entitled to be

considered for out of turn promotion.

However, due to his bravery, the Director General of

Police has made recommendation to award him and in

pursuance thereto, a revolver was offered to be awarded to

the writ petitioner but the writ petitioner refused to accept for

the purpose of claiming out of turn promotion mainly on the

ground that other similarly situated employees, who are

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newly impleaded Respondent Nos. 5 to 17, have also been

recommended for such bravery but they have been

recommended for out of turn promotion by the District

Superintendent of Police and accepting the same the

competent authority has granted them out of turn promotion.

The writ petitioner, therefore, has tried to make out a

case of discrimination since he has differently been treated

even though he is similarly situated to the private

respondents.

15. This Court, in order to ascertain the aforesaid fact, had

directed the State respondents to file affidavit specifically

clarifying as to whether any of the officials who have been

granted out of turn promotion, has ever been issued with the

„citations‟ since by going through the order of rejection of the

claim of the writ petitioner along with consideration of the

other candidates who have been granted out of turn

promotion, this Court has found from the discussion made

therein that in none of the cases citations have ever been

issued in their favour or any police medal has ever been

awarded.

Therefore, this Court has posed a question upon the

learned State counsel that how out of turn promotion has

been granted in favour of the Respondent Nos. 5 to 17 even

though they are not fulfilling the requisite eligibility criteria

as stipulated under Rule 660(C) of the Police Manual.

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This Court has further thought it proper to implead

such respondents who have been considered for out of turn

promotion so that opportunity of hearing be provided to

them, as would appear from the order dated 16.12.2020,

wherein after discussing the fact in detail, the following order

was passed, which for ready reference, is being referred

hereunder :-

"13/Dated: 16.12.2020 With consent of the parties, hearing of this matter has been done through video conferencing. They have no complaint about any audio and visual quality.

What comes from the latest affidavit filed on behalf of the respondents-State in response to the order dated 07.12.2020, as stated by Mr. Piyush Chitresh, learned A.C. to A.G. appearing for the respondents-State, is that the I.G.- cum-D.G. is the authority which has to take a decision regarding the award of citation. Though it is stated that there is no particular format of citation but the State has completely failed to show or come with any order accepting the recommendation by the Superintendent of Police for award of citation. It is being said that the recommendation has been treated to be a citation. Even if that is accepted, then again a question will arise as to which authority has treated it to be a citation. Learned State Counsel is answering this query with silence.

Thus, as a natural corollary, it is apparent that there is no order of award of citation by anybody. Even then the DPC has granted out-of- turn promotion to some persons and not granted such out-of-turn promotion to the writ petitioner/appellant. Mr. Piyush Chitresh, learned counsel appearing for the respondents-State, at the time of hearing, has clearly stated before us that there is no citation granted in favour of those 13 persons who have been granted out-of- turn promotion by the DPC.

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In such a situation, before coming to a final conclusion, it would be apt and proper to issue notice to all such persons who were considered by the DPC and granted out-of-turn promotion which was not granted to the writ petitioner.

Accordingly, the writ petitioner/appellant is directed to implead all such persons as party-respondents.

Let notice be issued to them under ordinary process as well as registered cover with A/D to show cause as to why the delay of 1132 days in filing the appeal be not condoned and the appeal be not admitted for hearing or disposed of at the stage of admission itself, for which requisites, etc must be filed within two weeks after the Christmas Holidays."

The beneficiaries of out of turn promotion have been

impleaded as Respondent Nos. 5 to 17. They have put their

appearance through their counsel who argued on their behalf

taking the ground that the writ petitioner may be granted

such promotion but any adverse order may not be passed

against the private respondents who have been considered for

out of turn promotion and subsequently have been granted

such promotion.

16. Today, when the matter has been taken up, some of the

newly impleaded respondents have been represented through

their counsel namely Mr. Ansuhman Kumar and Mr. Ashok

Kumar Sinha, but even though the name of the counsel for

Respondent Nos. 5, 6, 7, 10, 14 and 16 are appearing in the

daily cause list but they have chosen not to appear.

17. Since the matter has been heard on several occasions

and as would appear from the order-sheet that the matter

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has been adjourned several times for accommodating the

State to satisfy what is the meaning of „citation‟ and whether

the recommendation can be construed to be citation?

But the State respondents have failed to come out with

any notification in this regard.

18. It is not in dispute that making recommendation for

citation is one thing which is to be done by the local authority

depending upon the performance of one or the other police

personnel/officials for getting out of turn promotion or the

police medal or any other bravery award but either „citation‟

or police medal or any bravery award is the domain of the

State/Central Government to issue on the basis of such

recommendation.

As such, the recommendation, according to our

considered view, cannot be construed to be citation unless

accepted by the Government.

The State respondents, in spite of several opportunities

being granted by this Court, neither came out with the

notification pertaining to definition of citation nor produced

any document. However, in course of argument it has been

confessed that the recommendation cannot be construed to

be citation.

19. This Court, after considering the confession of the State

respondents that the recommendation cannot be construed

to be citation then posed a pinpointed question upon the

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State respondents that how and under what authority

Departmental Promotion Committee so constituted for the

purpose of consideration of out of turn promotion, has

considered the recommendation made by the District

Superintendent of Police to be citation.

Learned counsel appearing for the State respondents

has not replied to the aforesaid query. To that effect specific

direction has been passed on 11.05.2022 directing the State

to file proper affidavit regarding issuance of directly or

indirectly citation in favour of the persons who have been

given promotion, for ready reference the order dated

11.05.2022 is quoted hereunder :-

"23/Dated: 11.05.2022 Heard.

On the last occasion, learned counsel for the State took time to take instruction in this matter as to whether the petitioner should also be granted promotion from the date due when his contemporary or junior were given promotion then it was said that since the petitioner has already retired then only consequential benefit would be given and as such they are contemplating to take such decision. Now again an affidavit has been filed bringing on record the recommendation of the Superintendent of Police regarding grant of citation with respect to the earlier persons to whom promotion was already given.

We are unable to understand this action of the State and it is regretted that in place of taking such decision they have again filed this affidavit.

We have made it clear that admittedly since there is no order passed by the State authorities on the recommendation of the Superintendent of Police granting, directly or indirectly, citation in favour of the persons who

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have been given promotion and it is also further admitted that promotion was given on the basis of that. That had led this Court to issue notice to all such persons who have been granted promotion by the State on that ground.

If the State does not take such decision or file proper affidavit then this Court would be left with no option than to decide the matter on its merit. Then the fate of the persons who have already been granted promotion would also be decided.

It appears that by repeating all the earlier statements, the State authorities are trying to mislead this Court without answering the issue.

Learned counsel has not been able to show the rules regarding grant of citation. They have not appended any annexure showing grant of citation in favour of the persons who were promoted rather some order with respect to some other persons have been brought on record perhaps only for the purpose of misleading this Court.

Accordingly, let the Director General of Police appear before us tomorrow (12.05.2022) to explain the conduct of the Police Department before us.

Put up this case tomorrow (12.05.2022) at 10.30 A.M."

Accordingly, the Director General of Police appeared on

12.05.2022 but it has been admitted that no citations have

been issued, rather on the basis of recommendation, out of

turn promotion has been granted in favour of the private

respondents.

20. This Court has perused the recommendation so made by

the District Superintendent of Police in favour of the private

respondents wherefrom it is evident that the

recommendations have only been made by narrating the work

performed by the private respondents and the said

recommendations have been treated to be citations by the

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Departmental Promotion Committee basis upon which the

due recommendation was made for granting out of turn

promotion in favour of the private Respondent Nos. 5 to 17,

which was subsequently accepted by the competent authority

by issuance of appropriate order in this regard.

This Court has perused such recommendation having

been made by the Senior Superintendent of Police, as has

been appended in the affidavit filed on 22.11.2022, wherein

recommendation has been for out of turn promotion from the

rank of Sub-Inspector of Police to Inspector of Police, so far

as writ petitioner is concerned. Such recommendation is also

there as would appear from the minutes of the meeting of

Departmental Promotion Committee wherein while treating

the recommendation made by the Superintendent of Police,

Simdega as was made vide letter No.3 dated 09.01.2008 for

out of turn promotion in favour of Shri Dhananjay Kumar

Singh, Respondent No.6, such recommendation has also been

made in favour of Shri Ramakant Rai, Respondent No.7, as

contained in letter No.3 dated 09.01.2008. It appears that

such recommendation has been made by the Superintendent

of Police, Simdega in respect of all the newly impleaded

respondents in the same letter.

21. The question arose for consideration, as has been

agitated by the writ petitioner that if such recommendation

has also been made by the Senior Superintendent of Police

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recommending the name of the writ petitioner for out of turn

promotion, as would appear from the recommendation made

by Senior Superintendent of Police vide letter dated

10.07.2004, then why the writ petitioner has been

discriminated.

This Court is of the view that in filling up of the public

post, all similarly situated employees are required to be

treated equally in order to maintain equality of opportunity

which has been enshrined under Article 16 of the

Constitution of India subject to exception carved out therein.

But this Court is also considering the factual aspect with the

legal issues that if the employees who have been granted out

of turn promotion are not eligible for such promotion as per

the eligibility criteria prescribed under Rule 660(C) of the

Police Manual, are they entitled to hold the post?

Position of law is settled that the eligibility criteria is

required to be fulfilled by one or the other candidates and

there cannot be any deviation therefrom. It is also equally

settled that there cannot be any relaxation in the eligibility

criteria, as has been held by Hon'ble Apex Court in Bedanga

Talukdar v. Saifudaullah Khan & Ors. [(2011) 12 SCC

85], wherein at paragraph 29 has observed, which is being

quoted hereunder :-

"29. We have considered the entire matter in detail. In our opinion, it is too well settled to need any further reiteration that all appointments to public office have to

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be made in conformity with Article 14 of the Constitution of India. In other words, there must be no arbitrariness resulting from any undue favour being shown to any candidate. Therefore, the selection process has to be conducted strictly in accordance with the stipulated selection procedure. Consequently, when a particular schedule is mentioned in an advertisement, the same has to be scrupulously maintained. There cannot be any relaxation in the terms and conditions of the advertisement unless such a power is specifically reserved. Such a power could be reserved in the relevant statutory rules. Even if power of relaxation is provided in the rules, it must still be mentioned in the advertisement. In the absence of such power in the rules, it could still be provided in the advertisement. However, the power of relaxation, if exercised, has to be given due publicity. This would be necessary to ensure that those candidates who become eligible due to the relaxation, are afforded an equal opportunity to apply and compete. Relaxation of any condition in advertisement without due publication would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India."

It is also equally settled that if any

appointment/promotion has been granted dehors the rule,

the incumbent who has been granted promotion, is not

entitled to hold the post. This is on the basis of the

proposition that illegality cannot be allowed to be perpetuated

and the moment the illegality comes to the notice, it has to be

set at right. Reference in this regard may be made to the

judgment of Hon'ble Apex Court in State of Orissa and Anr.

v. Mamata Mohanty, [(2011) 3 SCC 436], wherein, at

paragraphs 56 and 57, Their Lordships have been pleased to

hold:-

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"56. It is a settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Thus, even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the petitioner to get the same relief.

57. This principle also applies to judicial pronouncements. Once the court comes to the conclusion that a wrong order has been passed, it becomes the solemn duty of the court to rectify the mistake rather than perpetuate the same. While dealing with a similar issue, this Court in Hotel Balaji v. State of A.P. [1993 Supp (4) SCC 536] observed as under: (SCC p. 551, para

12) "12. ... „2. ... To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter [1 NY 3 (1847) : A.M.Y. p. 18] at p. 18:

"a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors".‟ [As observed in Distributors (Baroda) (P) Ltd. v. Union of India, (1986) 1 SCC 43, p. 46, para 2.] "

It is also required to refer herein about the position of

law that Article 14 of the Constitution of India does not

envisage negative equality, rather it envisages positive

equality, as has been held in State of Bihar & Ors. v.

Kameshwar Prasad Singh & Anr., [AIR 2000 SC 2306] at

paragraph 30, which is quoted hereunder:-

30. The concept of equality as envisaged under Article 14

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of the Constitution is a positive concept which cannot be enforced in a negative manner. When any authority is shown to have committed any illegality or irregularity in favour of any individual or group of individuals, others cannot claim the same illegality or irregularity on the ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does not entitle others to claim similar benefits. In this regard this Court in Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459] held that citizens have assumed wrong notions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article 14 of the Constitution by way of writ petition filed in the High Court. ... ... ..."

22. In the given facts of the case, the writ petitioner is

claiming parity with the Respondent Nos. 5 to 17 on the

ground that the writ petitioner is having similar

recommendation made by Senior Superintendent of Police,

Ranchi and the same is also the case with the private

respondents wherein Superintendent of Police, Simdega has

made recommendation for their out of turn promotion.

The writ petitioner has never claimed that he is holding

citation making him eligible for out of turn promotion, rather

his case is that why he has differently been treated while he

is also having the recommendation of Senior Superintendent

of Police, Ranchi.

But the question is that whether any relief can be

granted in favour of the writ petitioner on the basis of

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violation of Article 14 of the Constitution of India when the

parity against whom is being claimed by the writ petitioner

are themselves not fulfilling the eligibility criteria as per Rule

660(C) of the Police Manual. If the respondents will be

directed to grant promotion to the writ petitioner for the

purpose of maintaining parity, the same will be nothing but it

will be a case of granting relief on the basis of negative

equality which is not permissible as per the position of law

and after taking into consideration the spirit of Article 14 of

the Constitution of India which does not envisages negative

equality as has been held by Hon‟ble Apex Court in State of

Orissa and Anr. v. Mamata Mohanty (Supra) and State of

Bihar & Ors. v. Kameshwar Prasad Singh & Another

(Supra).

Therefore, according to our considered view, since the

writ petitioner is not fulfilling the criteria as laid down under

Rule 660(C) of the Police Manual, having not received citation

or any police/gallantry award, there cannot be any direction

under Article 226 of the Constitution of India commanding

upon the respondents to consider the case of the writ

petitioner for out of turn promotion.

23. The further question required to be decided is as to

whether the private respondent Nos. 5 to 17 who are also not

possessing the citation and not fulfilling the eligibility criteria

as prescribed under Rule 660(C) of the Police Manual and

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can they be allowed to retain the post? Will it not allow the

illegality to be perpetuated?

This Court is of the view on the basis of the principle

laid down by the Hon'ble Apex Court that the public posts

cannot be allowed to be retained by such candidates who are

not eligible as per the Rules of Appointment/Promotion.

It is equally settled that there cannot be any relaxation

in the rule although it is not a case of any relaxation as

would appear from the fact of the given case, rather it is a

case of wrong consideration by the competent authority

deviating from the statutory rule by considering the

recommendation as citation and merely on the basis of

recommendation, the private respondents have been granted

promotion in absence of citation or any Police/President

medal, as per the eligibility criteria provided under Rule

660(C) of the Police Manual.

24. This Court, after taking into consideration the principle

laid down by the Hon'ble Apex Court that the illegality cannot

be allowed to be perpetuated and public posts cannot be

allowed to be filled up from ineligible candidate, is of the

considered view that the promotion granted in favour of

private respondent Nos. 5 to 17 requires interference by this

Court in order to set the act of the State authority right.

25. Accordingly, the promotion granted in favour of

Respondent Nos. 5 to 17 is being set at naught. Their

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promotion is held to be illegal and they be directed to be

reverted to their original post forthwith.

26. Accordingly, Issue Nos. (i) to (iii) have been answered.

27. Now the last issue that why the competent authority,

even though there is no ambiguity in the rule governing the

field, i.e., Rule 660(C) of the Police Manual, has granted

promotion in favour of the private respondents?

The competent authorities who have been assigned with

the power to grant such promotion are required to strictly

and scrupulously follow the statutory rule to fill up the public

posts.

Herein, the Superintendent of Police of the district has

made recommendations for promotion but the competent

authority, without giving due adherence to the eligibility

criteria, as stipulated under Rule 660(C) of the Police Manual,

has granted out of turn promotion to the private respondents

causing financial loss to the State exchequer which,

according to our considered view, is not allowed to be done

and is not expected from the competent authority who have

been conferred with the power to appoint or promote to fill up

the public posts.

Since it is a case of out of turn promotion and, as such,

the decision in that respect ought to have been taken with

more care but the competent authority, without taking into

consideration that none of the private respondent have

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citation or other eligibility criteria for consideration of their

cases for out of turn promotion and in absence thereof, the

member of the Departmental Promotion Committee have

recommended names of the private respondents for

promotion which finally has culminated into the final

decision passed by the competent authority.

28. This Court, since is exercising the jurisdiction conferred

to this Court under Article 226 of the Constitution of India,

deems it fit and proper in the peculiar facts and

circumstances of the case to direct the Chief Secretary of the

State to conduct an enquiry against the Members of the

Departmental Promotion Committee and the authorities who

have granted promotion on the basis of recommendation

made by the local authorities treating it to be citations.

Such enquiry is necessary since the State exchequer has

been overburdened by disbursement of salary by extending

the benefit of promotion illegally.

The Chief Secretary of the State of Jharkhand is to

conduct an enquiry for the purpose of fixing accountability so

as to compensate the loss caused to the State exchequer.

Needless to say that while fixing accountability, the

officers concerned will be dealt with under the applicable

Conduct Rules/Pension Rules, as applicable.

29. The Chief Secretary, State of Jharkhand is directed to

complete such exercise by conducting proper enquiry, in

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accordance with law, within stipulated period of six months

from the date of receipt of a copy of this order.

30. Accordingly, the instant appeal stands disposed of with

the above observation and direction.

31. Pending interlocutory application, if any, also stands

disposed of.

(Dr. Ravi Ranjan, C.J.) I agree

(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.)

Birendra/ A.F.R.