Arvind Bhardwaj And Anr vs Director General Of Poli And Anr
2023 Latest Caselaw 4585 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 15143/2010

1.     Arvind Bhardwaj S/o Shri Surendra Singh, age 40 years,
       ASI CIB, CB, Jaipur
2.     Surendra Singh S/o Shri Ramnath Singh, aged 38 years,
       ASI, CID-CB, Jaipur
                                                                  ----Petitioners
                                   Versus
1.     Director General Of Police, Rajasthan, Jaipur.
2.     Addl. D.G.P. CID, CB, Rajasthan, Jaipur.
                                                                ----Respondents

For Petitioner(s) : Mr. M.M. Mehrishi & Mr. Shobhit Tiwari For Respondent(s) : Mr. P.S. Naruka for Mr. Rupin Kala, GC

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Order

RESERVED ON :: 23.08.2023 PRONOUNCED ON :: 05.09.2023

1. Instant petition has been filed by the petitioner with the

following prayer:

"(i) Direct the Respondents to treat the Petitioners as holding the rank of ASI substantively on 22.11.07.

(ii) Declare that consequently the Petitioners Special Promotion given by the D.G.P. under Rule 28A vide Order No.7210 dated 22.11.07 be treated as a promotion from the rank of ASI to the rank of Sub- Inspector from the date as specified above.

(iii) Direct the respondents to treat the Petitioners as Sub-Inspector w.e.f. 22.11.2007 and they be nominated to under P.C.C. of Sub-Inspectors.

(iv) Direct the Respondents to give all consequential benefits and promotion, pay and allowances to the

(2 of 14) [CW-15143/2010]

Petitioners under the Rules, w.e.f. the date of their promotion.

(v) May pass such other orders and also given such other benefits as may be deemed in the facts and circumstances of the case.

(vi) To pass appropriate writ, order or direction, whereby Order dated 17.12.2015 be quashed and set aside and consequently Petitioners be given their rightly special promotion on post of Police Inspector with all consequential benefits and reliefs."

2. Learned counsel for the petitioners submits that the

petitioners were holding the post of Head Constable and because

of their courageous act Gallantry Award was awarded to them and

out of turn special promotion was granted to them to the post of

Assistant Sub Inspector under Rule 28 of the Rajasthan Police

Subordinate Service Rules, 1989 (for short 'the Rules of 1989')

vide order dated 22.11.2007. Counsel submits that subsequently

both petitioners completed their Promotion Cadre Course (for

short, 'PCC') by participating in the departmental examination

process on 08.08.2008. Counsel submits that the petitioners were

granted regular promotion for the vacancy year 2006-07. Counsel

submits that under these circumstances, the petitioner submitted

a detailed representation before the respondents for

reconsideration of their promotion to the post of Sub Inspector.

Counsel submits that when no orders were passed on the said

representation the petitioners approached this Court by way of

filing instant writ petition, but during the pendency of this petition

the respondents have passed the order impugned on 18.12.2015

by which their special promotion order dated 22.11.2007 was

recalled by which the Gallantry award of the petitioner was

converted into cash reward of Rs.25,000/-. Counsel submits that

(3 of 14) [CW-15143/2010]

the aforesaid exercise was done by the respondents to defeat their

claim to get the promotion on the post of Sub Inspector. Counsel

submits that under the similar circumstances special promotion

was granted to three similarly situated persons Panna Lal, Ummed

Singh and Nand Lal. Counsel submits that all these persons were

granted special promotion out of turn from the post of Head

Constable to the post of Assistant Sub Inspector but subsequently

their case was considered for promotion on the post of Sub

Inspector. Counsel submits that under the similar circumstances

the petitioners are also entitled to get the same benefits, so the

respondents be directed to consider the case of the petitioners for

special promotion out of turn to the post of Sub Inspector. In

support of their contentions they have placed reliance upon the

following judgments passed by the Co-ordinate Bench of this

Court in the case of:

1. Ummed Singh Vs. The State of Rajasthan and Ors. (S.B. Civil Writ Petition No.11192/2012).

2. Satyapal Pareek Vs. State and Ors. (S.B. Civil Writ Petition No.2940/2013).

3. Per contra, learned counsel for the State respondents

opposed the arguments raised by the counsel for the petitioners

and submitted that regular promotion was granted to the

petitioners against the vacancies of the year 2006-07, hence

respondents have not committed any error in converting the

Gallantry awards of the petitioners into cash award vide order

dated 18.12.2005. Counsel submits that since regular promotion

was given to the petitioners on the post of Sub Inspector, hence, it

was not necessary for the respondents to grant special out of turn

(4 of 14) [CW-15143/2010]

promotion to the petitioners on the post of Sub Inspector. Counsel

submits that special promotion out of turn cannot be claimed as a

matter of right on the basis of parity. In support of his contentions

he has placed reliance upon the judgment passed by the Hon'ble

Apex Court in the case of The State of Madhya Pradesh and

Anr. vs. Sanjay Shukla, reported in 2023 LiveLaw (SC) 277.

Counsel submits that discretion lies with Director General of Police

to exercise such powers and in the instant case on the basis of the

discretion exercised by the Director General of Police, Gallantry

Award of the petitioner was converted into cash reward, hence the

respondents have not committed any error in passing the order

impugned. Counsel further submits that under these

circumstances, interference of this Court is not warranted. In

support of his further contentions he has placed reliance upon the

judgment passed by the Co-ordinate Bench of this Court in the

case of Anop Singh Rathore vs. State of Rajasthan and Ors.

reported in 2011 (2) DNJ 885.

4. Heard and considered the submissions made at the Bar and

perused the material available on the record.

5. Rule 28 of the Rules of 1989 deals with the provisions of

special nominations for promotion cadre post and accordingly, out

of turn promotion is granted to those police personnel who have

shown their outstanding work in anti dacoity, anti smuggling or in

any special field of police working including performance in games

and exclusive service.

6. Looking to the outstanding work of the petitioners, out of

turn promotion was granted to them from the post of Head

Constable to Assistant Sub Inspector on 22.11.2017 by the

(5 of 14) [CW-15143/2010]

respondents by exercising the power contained under Rule 28(1)

of the Rules of 1989. But, prior to that the petitioners appeared in

qualifying test for promotion to the post of Assistant Sub Inspector

(for short, 'ASI') for the vacancy year 2006-07 and the petitioners

were subsequently promoted to the post of ASI after completion of

PCC. Thereafter, revised select list was issued on 28.01.2010, the

petitioners were included in the select list of ASI. The petitioners

submitted a representation before the respondents from granting

them special promotion to the post of Sub Inspector under Rule

28(1) of the Rules of 1989. But without deciding the said

representation, the respondents converted the gallantry award of

the petitioners into cash reward of Rs.25,000/- each, instead of

giving them special/out of turn promotion, regular promotion was

granted to them on the post of ASI.

7. The respondents have granted out of turn promotion to the

similarly situated person Panna Lal vide order dated 12.11.2010

from the post of Head Constable to ASI under Rule 28(1) of the

Rules of 1989. While the said Panna Lal also participated in PCC

against the vacancy of the year 2009-2010. Hence, regular

promotion was given to him to the post of ASI. Under these

changed circumstances, he was granted special promotion to the

post of Sub Inspector vide order dated 18.04.2013.

8. But in the case of similarly situated persons Ummed Singh,

Suresh Kumar and Rajendra Singh, the similar discrimination was

done and they were also granted regular promotion from the post

of Head Constable to ASI but the special out of turn promotion

was not granted to them as per Rule 28 of the Rules of 1989,

hence, under these compelling circumstances, they approached

(6 of 14) [CW-15143/2010]

the Principal Seat at Jodhpur by way of filing three different

petitions and all were decided in a bunch with a lead case of

Ummed Singh (supra) and the same was allowed vide order

dated 19.12.2014 with the following observations and directions:

"As per Rule 28 of the Rajasthan Police Subordinate Service Rules, 1989, the Director General-cum- Inspector General of Police is required to make nominations for promotion cadre course upto 10% of the vacancies to be filled in by way of promotion in a particular year out of those police personnel who have shown outstanding work in anti-dacoity, anti- smuggling or in any special field of police work including performance in games and sports, or have put in not less then 20 years of exclusive service. The Rule 28 of the Rules of 1989 reads as under:-

28. Special nomination for promotion cadre course : Notwithstanding anything contained in sub-rule (1) to (3) of rule 27 above:

(a) Nomination for promotion cadre course for next higher rank up to Sub-Inspector in Section I and Section III and upto Platoon Commander in Section II and Section IV of Rule-4 upto 10% of the vacancies to be filled in by promotion in a particular year, may be made by the Director General-cum-Inspector General of Police in case of those who have shown outstanding work in the anti-dacoity anti-smuggling or in any special field of Police work including performance in Games and Sports, or have put in not less than 20 years service exclusively as member of the service and also have exceptionally good and unblemished record of service with integrity:

Provided that no member of the service shall be nominated more than once on account of 20 years service as mentioned above.

(b) The Government may nominate for Promotion Cadre Course upto 10 percent of the vacancies by promotion in a particular year from amongst the member of service holding substantive rank from the rank of Sub-inspector/platoon Commander to Supervisor/ Inspector/Company Commander rank and from Sub- Inspector/Supervisor to Inspector on the recommendation of the Director General-

cum-Inspector General of Police who have shown Outstanding work in the anti-dacoity,

(7 of 14) [CW-15143/2010]

anti-smuggling or in any special field of Police work including performance in games and sports or have put in not less than 20 years service exclusively as members of the service and also have exceptionally good and unblemished record of service with integrity:

Provided that no member of the service shall be nominated more than once on account of 20 wears service as mentioned above."

Learned counsel for the respondents has relied on the judgment rendered by this Court in S.B. Civil Writ Petition No. 5374/2008 (Anoop Singh Rathore Vs. State of Rajasthan & ors.) decided on 18.05.2011 to contend that the promotion is to be recommended in the discretion of the Director General of Police and if such authority is of the opinion that personnel concerned has done outstanding work only then he can be given an out of turn promotion and that it was not a right vested in them to seek out of turn promotion when the Committee and the Director General of Police have in their wisdom come to a conclusion that their act was although required to be acknowledged but did not fall under the category of extraordinary or outstanding work. This Court although in agreement with the proposition that promotions cannot be granted as a matter of course and is the discretion to be exercised by the Director General of Police and the Court should not normally interfere unless such use of discretion is malafide and arbitrary, has no choice but to interfere in the facts of the present case.

The petitioners in Para No. 15 of the writ petition have raised the ground of discrimination. It is alleged that the respondents in the cases bearing similar facts and circumstances were awarded the benefit of special promotion. The order granting out of turn promotion to one Shri Nand Singh on the ground that he got arrested the accused and got recovered an amount of Rs.4,95,51,051/- as well as 10.900 kgs of gold has been placed on record as Annexure-6. Another order dated 31.01.2012 allowing special promotion to at lease four persons, namely, Shri Gheesa Lal, Shri Kamalveer, Shri Vijay Singh and Shri Niranjan Singh under Rule 28-A of the Rules of 1989 has been placed on record as Annexure-7. These persons investigated a crime relating to F.I.R. No. 18/2012 lodged at Police Station Bilara for the offences under Sections 460, 394, 302, 307, 34, 323, 327, 325, 397, 449, 450, 459 and 411 of I.P.C. The life of these police personnel was also not at stake at any point of time during investigation. Another Order dated 12.11.2010 granting out of turn promotion to ore Shri Panna Lal Head Constable for arresting the accused in. F.I.R. No. 171/2010 lodged at Police Station Vaishali

(8 of 14) [CW-15143/2010]

Nagar, Jaipur City for the offences under Sections 307, 323, 332, 353, 394, 379 of I.P.C. and Sections 3/25 & 4/25 of Arms Act and getting recovered an amount of Rs. 15,40,171/- has also been placed on record as Annexure-

9. The orders granting special promotion in the case of Shri Pannalal is of the year 2010, Shri Nandlal is of the year 2011 and four persons, namely, Shri Gheesa Lal, Shri Kamalveer, Shri Vijay Singh and Shri Niranjan Singh is of the year 2012.

The fact with respect to the grant of said promotion to all the above mentioned persons has not been denied. In fact, an attempt has been made to distinguish the case of the petitioners with the others who have been granted out of turn promotion in similar set of circumstances by stating that their act was an individual act, whereas, in the case of the petitioners, it was a team work. However, it is evident from Order dated 31.01.2012 placed on record as Annexure-7 that special promotion was granted to the aforesaid four persons who were part and parcel of the team. It is evident from recommendation of the committee dated 12.07.2012 that while acknowledging that they had arrested the accused, got recovered diamonds worth Rs. 25 lacs in F.I.R. No. 365/2010 lodged at Police Station Sardarshaher, District Churu for the offence under Sections 302 & 201 of I.P.C. and F.I.Rs. No. 359/2010 & 360/2010 lodged at Police Station Dungargarh, District Bikaner for the offence under Sections 302 & 201 of I.P.C. did not give any reason for denying the special promotion to the petitioner. The order of Director General of Police has also not disclosed the reason as to why the same was being denied to the petitioners. The reasons have been furnished for the first time in the reply to the writ petition filed before this Court.

The Apex Court in the case of Dipak Babaria and another Vs. State of Gujarat and others reported in (2014) 3 Supreme Court Cases 502 has specifically held that the Government must defend its' action on the basis of the order that it has passed, and it cannot improve its stand by filing subsequent affidavits. While holding so, the reliance was placed on the judgments rendered in the cases of Commr. of Police Vs. Gordhandas Bhanji reported in AIR 1952 SC 16 as well as Mohinder Singh Gill Vs. Chief Election Commr. reported in (1978) 7 SCC 405 and held in Para No. 64 as under -

64. That apart, it has to be examined whether the Government had given sufficient reasons for the order it passed, at the time of passing such order. The Government must defend its action on the basis of the order that it has passed, and

(9 of 14) [CW-15143/2010]

it cannot improve its stand by filing subsequent affidavits as laid down by this Court long back in Commr. of Police V. Gordhandas Bhanil in the following words

"9... public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he' intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself"

This proposition has been quoted with approval in para 8 by a Constitution Bench in Mohinder Singh Gill V. Chief Election Commr. wherein Krishna lyer J. has stated as follows

"8.The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out."

In the case in hand, no reason for denying special promotion has been mentioned either in the recommendation of the committee dated 12.07.2012 or in the Order dated 26.07.2012 passed by the Director General of Police. Thus, his Court cannot look into the reasoning given for the first time in their reply to the writ petition. Moreover, there is nothing to distinguish the case of the petitioners from the case of Shri Nand Singh, Shri Panna Lal, Shri Gheesa Lal, Shri Kamalveer, Shri Vijay Singh and Shri Niranjan Singh who have been granted out of turn promotion on almost similar set of circumstances.

(10 of 14) [CW-15143/2010]

This Court in the case of Prem Shanker Sharma Vs. Union of India & others reported in 1994 (1) Western Law Cases (Raj) 473 while considering his case for special promotion as an outstanding sportsman on the ground of discrimination held as under:-

"Having taken a decision expressly or impliedly for relaxing the relevant provisions of the incentive scheme in the case of the two persons, there remained no justification for the competent authority to have not followed the same in the case of the petitioner. The petitioner cannot be considered to be in a worse position qua Om Prakash who has secured a silver medal. Similarly, when Shankarpal can be given promotion even without securing medal, there is no justification for denying promotion to the petitioner on the post of Sub-

Inspector even though he has secured two gold medals. Having taken a decision to make a deviation from the scheme, competent authority is bound to apply the same standard in the case of the petitioner in order to do compliance with the equality clause enshrined in Arts. 14 and 16 of the Constitution. Since that has not been done, it is reasonable for this court to conclude that the action of respondents in not giving promotion on the post of Sub-Inspector to the petitioner even when he secured two gold medals, is arbitrary and unreasonable"

Similarly, the Division Bench of this Court in the case of Mohammad Yunus Khan Vs. State of Rajasthan & others reported in 2008(5) Western Law Cases (Raj.) 714 came heavily on the pick and choose method applied by the authorities in implementing the Rule 28-A and held in Para No. 9 as under:-

"9. Since promotion file of Constable Khem Singh not be produced despite our directions, we may infer that the DGP gave promotion to Khem Singh considering his special role in

(11 of 14) [CW-15143/2010]

recovering the idol. Although role of appellant in recovering 24 idols also got appreciation from DGP the appellant was awarded only cash prize. Two similarly situated persons were treated differently by the DGP for the reasons best known to him. Nothing has been brought on record to show why Rule 28-A should not be applied in favour of the appellant. The DGP is expected to implement the mandate of Rule 28-A fairly and uniformly. Their Lordships of the Apex Court in State of Haryana Vs. Gurucharan Singh [2004(12) SCC 540] observed as under:

".....However, at the same time it is clear that the Government having taken a policy decision, must implement that policy decision fairly and uniformly. It is not open to the Government to discriminate between persons similarly situated......"

It is apparent from the above that consideration of special promotion of the police personnel under Rule 28-A is for the outstanding work in the field of anti dacoity, anti smuggling besides the performance in games, sports etc. The petitioners were recommended by the Superintendent of Police and the Inspector General of Police for their performance and role in the case involving dacoity and murder. The persons in similar set of circumstances have been considered and granted the special promotion. No reason for denying the same to the petitioners has been mentioned in the order of the Director General of Police and nor reasons have been mentioned by the Committee while recommending the case of the petitioners for cash reward but not for the special promotion.

For the reasons aforesaid, the present writ petitions are allowed. The Order dated 26.07.2012 passed by the Director General of Police to the extent of refusing to grant gallantry promotion to the petitioners is set aside. The recommendation of the Committee dated 12.07.2012 to the extent vide which the case of the petitioners have not been recommended being arbitrary and discriminatory in nature is also set aside.

(12 of 14) [CW-15143/2010]

The Director General of Police is directed to consider and grant special promotion to the petitioner under Rule 28-A of the Rajasthan Police Subordinate Service Rules, 1989 against the 10% vacancies reserved for the said purpose with all consequential benefits. The Director General of Police shall ensure compliance of above directions within two months."

9. Following the directions issued by this Court in the case of

Ummed Singh (supra), promotion was granted to him on the

post of Sub Inspector vide order dated 14.06.2017.

10. The record indicates that the respondents have extended the

benefit of out of turn promotion to Panna Lal, Ummed Singh and

Nand Lal to the post of Sub Inspector. It is worthy to note here

that all the persons were also working on the post of Head

Constables and for their courageous act, they were granted

gallantry award and in the meantime, they got the regular

promotion to the post of ASI but exercising the powers contained

under Rule 28 of the Rules of 1989, they were granted out of turn

special promotion to the post of Sub Inspector.

11. When the case of the petitioners is at par with the case of

the above three similarly situated persons Panna Lal, Ummed

Singh and Nand Lal, then the petitioners are also entitled to get

the similar treatment. It is well settled position of law that two

equals should be treated equally and unequals should be treated

unequally. Treating the equals as unequals would affect the

doctrine of equality enshrined under Article 14 of the Constitution

of India. The principle that two equals cannot be treated unequally

is a fundamental principle of justice and fairness that is recognized

by legal systems around the world. Many countries have enshrined

this principle in their legal frameworks, either through specific

(13 of 14) [CW-15143/2010]

laws or through constitutional provisions. For example, the

Universal Declaration of Human Rights, which is recognized by the

United Nations as a foundational document for human rights,

states in Article 7 that "All are equal before the law are entitled

without any discrimination to equal protection of the law.

Similarly, many countries have anti-discrimination laws that

prohibit discrimination on the basis of race, gender, religion, or

other factors. These laws are designed to ensure that all

individuals are treated equally, regardless of their background or

personal characteristics.

12. There is no doubt that the State Government is the

Appointing Authority and the discretion lies with it as per Rule

28(1) of the Rules of 1989, but such discretionary powers

exercised by the government must be exercised in a manner that

is not arbitrary, unreasonable, or discriminatory. In many

countries, discretionary powers are granted to government

officials and agencies to enable them to make decisions that are

necessary for the effective administration of government policies

and programs. However, the exercise of these powers must be

subject to certain legal and constitutional limitations to prevent

abuses of power. The principle of non-arbitrariness requires that

government officials and agencies must act in good faith and in

accordance with the law when exercising discretionary powers.

This means that they must have a rational basis for their decisions

and must not act in a manner that is capricious, whimsical, or

discriminatory. Any exercise of discretionary power must be based

on relevant and objective criteria, rather than on personal

preferences, biases, or prejudices.

(14 of 14) [CW-15143/2010]

13. In the instant case, the discretion has been used by the

respondents in a vague and fanciful manner. The judgments relied

by the respondents are not applicable in the facts of the present

case.

14. In view of the reasons stated above, the present petition

stands allowed.

15. The order dated 17.12.2015 passed by the respondents

granting cash award to the petitioners stands quashed and set

aside. The respondents are directed to consider the case of the

petitioners for special promotion to the post of Sub Inspector in

the term of Rule 28 of the Rules of 1989 and grant them all

consequential benefits.

16. All applications (pending, if any) also stand disposed of.

17. It goes without saying that needful would be done by the

respondents within a period of three months from the date of

receipt of certified copy of this order.

(ANOOP KUMAR DHAND),J

KuD/94/pcg

Powered by TCPDF (www.tcpdf.org)