Bhupendra Singh vs State of M.P. and Others

Sujoy Paul, J.—These petitions are analogously heard on the joint request of learned counsel for the parties.

Facts are taken from W.P. No. 7657/2011.

This petition filed under Article 226 of the Constitution challenges the order dated 20.6.2011 (Annexure P-1) whereby petitioners'' application for grant of out of turn promotion is rejected by the respondent No. 2. The petitioner earlier filed W.P. No. 289/2009 which was disposed of by this Court on 5.4.2011 with certain directions. In turn, the respondents considered the application of the petitioner and rejected it by impugned order (Annexure P-1).

The facts as narrated by Shri Amit Lahoti are that the petitioner was appointed in the year 1997 on the post of Constable. Because of petitioner''s excellent performance, he was inducted in the special task force constituted for the purpose of anti dacoity operation. The order dated 19.11.2004 by which petitioners'' names were included in the said force is filed as Annexure P-2. Thereafter, the respondent No. 4 vide order dated 25.11.2004 included the petitioner in "G Branch of STF''. This team was headed by Inspector Ashok Singh Bhadoria. Thereafter, on 5.8.2006, the police authorities received information about location of the dacoit Dayaram Gadariya. Four teams were constituted to arrest him. The petitioners were members of party No. 3. In the operation by the aforesaid teams, the dacoit Dayaram Gadariya was killed. It is clear from the document filed at page 28. The FIR shows that the petitioners were part of the team. Thereafter the Superintendent of Police prepared the synopsis Annexure P-5 dated 24.8.2006. By drawing attention on this document, it is submitted that this recommendation in no uncertain terms makes it clear that the recommendation was for granting out of turn promotion to the petitioners. Thereafter, the Inspector General Gwalior Range issued a letter dated 21.3.2007 (Annexure P-6). The names of the petitioners were included for recommending their names for out of turn promotion. The recommendation was made to respondent No. 2. Attention is also drawn on page 38 in which the I.G. has recommended the name of one Jagveer Singh for granting him cash award.

Shri Lahoti submits that the name of Jagveer Singh does not find place in the FIR. Thereafter, a revised list was prepared which is Annexure P-7 dated 7.5.2007 by the I.G. Gwalior range. In this list the name of Jagveer Singh is included for grant of out of turn promotion and names of the present petitioners were deleted. Another recommendation of same nature is prepared by the I.G. Gwalior range on 20.6.2007. The name of Jagveer Singh is again included in this list. Thereafter, by order dated 21.6.2007, 14 persons who were part of different teams were given out of turn promotion. Thereafter, the petitioners preferred representations (Annexure P-11) for grant of out of turn promotion. In turn, the D.I.G. Gwalior range by communication dated 19.7.2007 (Annexure P-12) recommended their names for grant of out of turn promotion. These recommendations were sent to I.G. Gwalior range. In turn, the I.G. Gwalior range after considering the D.I.G.''s aforesaid recommendation, recommended the names of the petitioners for grant of out of turn promotion. It is requested by I.G. that petitioners names need to be considered for out of turn promotion sympathetically.

Shri Lahoti drew attention of this Court on Annexure P-14 dated 25.7.2007. It is submitted that after receiving the recommendations from I.G., surprisingly the Commandant, 7th Battalion sent a new recommendation letter dated 12.6.2007. This officer was posted as S.P. Gwalior at the relevant point of time. There was no occasion for this officer to sent a new recommendation after the recommendations by the D.I.G. and I.G. were sent in favour of the petitioners. Despite those recommendations, nothing has been done and petitioners were not given out of turn promotion.

Feeling aggrieved by this inaction, the petitioners filed W.P. No. 289/2008 before this Court. The said W.P. was disposed of on 5.4.2011. This Court opined that initially the case of each of the employees were examined and the names of petitioners were included in the list for out of turn promotion. It is ultimately disposed of with following direction:-

Petitions filed by the petitioner is disposed of with a short direction that the competent authority shall again examine the performance of the petitioners and shall consider the case of the petitioners sympathetically comparing the merits of others who has been promoted out of turn by passing a reasoned order within a period of two months.

In turn, the impugned order Annexure P-1 is passed. Attention is also drawn on the order dated 11.2.2011 passed in W.P. No. 1983/2009 whereby one Ramlakhan Sharma approached this Court and the writ court directed to grant him out of turn promotion.

By criticizing the impugned order, it is submitted that the order passed by this Court in the earlier round of litigation is not complied with. In the order, irrelevant material has been taken into consideration and relevant material is left out. In addition, it is submitted that the respondent No. 2 has considered the FIR and stated that in the FIR there is no mention about any special contribution by the petitioners. By taking this Court on the FIR, it is submitted that so far petitioners'' case is concerned, only name of Ashok Singh Bhadoria is mentioned. Except petitioners, all the persons who were members of team No. 3 have been given out of turn promotion. One Pancham Singh was also deprived. It is submitted that the employees of team No. 3 who were given promotion, there is no specific mention about their part in the FIR, yet they have been given promotion. The FIR contains special mention only about team leader Ashok Singh Bhadoria. He submits that the petitioner is subjected to hostile discrimination and respondents adopted the policy of ''pick and choose'' which hits Article 14 and 16(1) of the Constitution.

Per contra, Shri Raghavendra Dixit, learned Government Advocate drew the attention of this Court on a Division Bench judgment in W.A. No. 397/2011 whereby the Division Bench has modified the order of writ court in the case of Ramlakhan Sharma (supra). The Division Bench only directed for consideration of the case for out of turn promotion. However, learned counsel for the parties are unable to state whether Ramlakhan Sharma was ultimately promoted or not. Shri Raghavendra Dixit by taking this Court to certain paragraphs of the return, submits that the out of turn promotion can be given only upto 10%. Beyond 10% the promotion is impermissible. In addition, he supported the impugned order and submits that the scope of judicial review of this kind of order is limited. The order is based on due consideration of relevant facts and is passed on the recommendation of the S.P. of Shivpuri and Gwalior and I.G. Gwalior Range. Thus, no interference is warranted.

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

The record clearly shows that in initial synopsis dated 24.8.2006 (Annexure P-5) the petitioners names were recommended for out of turn promotion by S.P. It was also recommended by the I.G. Gwalior Range on 21.3.2007. However, subsequently petitioners names were deleted and in lieu thereof the name of Jagveer Singh was included whose name neither finds place in the FIR, nor in the first recommendation for out of turn promotion. Later on, the DIG again wrote letter recommending the name of the petitioners for out of turn promotion which was endorsed by the IG. The Commandant, SAF sent new recommendation after the recommendation of the IG. Ultimately the petitioners were not promoted.

Considering the aforesaid factual backdrop, this Court directed the respondents in clear terms to examine the performance of petitioners and consider the case of the petitioners sympathetically by comparing with the merits of others who have been promoted on out of turn basis. In the impugned order passed on the basis of directions, it is clear that upto para 2 the respondent No. 2 has only mentioned about the history of the matter. In para 3 he relied on the FIR to state that no special role of petitioners is mentioned in the FIR. In para 4, the respondent No. 2 stated that out of turn promotions of certain persons are based on the recommendations of S.P. and I.G. and those recommendations cannot be disbelieved.

As analyzed above, the recommendations are diametrically opposite to a great extent. In initial recommendations, the S.P. and I.G. have categorically recommended the names of petitioners for out of turn promotion. However, in the subsequent recommendations/revised list dated 7.5.2007, the names of the petitioners were not included for out of turn promotion and name of one Jagveer Singh was included whose name did not figure in the FIR and for whom the initial recommendation was only for grant of cash award. Thereafter, again the DIG and I.G. recommended the name of the petitioners for out of turn promotion. There is no whisper in para 4 of the impugned order as to why the initial recommendation and subsequent recommendations were not taken into account and the recommendation which was to the detriment of the petitioners was treated as gospel truth and accepted. In absence of application of mind on above aspect, order cannot be upheld.

This Court directed to consider the role of the petitioners qua other persons who were part of the encounter team and were given promotion. There is no discussion on this aspect. Thus, the impugned order does not fulfill the requirement of the order passed by this Court. I am not obvious that scope of interference under writ jurisdiction in promotion matters is limited. This Court is not obliged to sit as an appellate authority to re-weigh or re-appreciate the recommendations of the authorities. However, this Court can examine the correctness of decision making process adopted by the respondents. If the decision making process is seen, it will be crystal clear that the irrelevant material is taken into consideration and relevant material has escaped notice of the respondents. The recommendations (more in number) which were made in favour of the petitioners were not considered and the singular recommendation of I.G. and Commandant SAF were acted upon in which the petitioners names were dropped.

The Apex Court in (2008) SCC 395 (Badrinath Vs. Government of Tamil Nadu and others) held that the Wednesbury doctrine can be applied even in cases of promotion. In para 40, the Apex Court held as under:-

Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, courts and Tribunals cannot interfere with assessments made by Departmental Promotion Committees in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspects of one''s career is strongly displayed, or if the interferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed.

The said principle was followed by this Court in Virendra Kumar Swarnkar Vs. M.P. State Agricultural Marketing Board and Another, . This Court in para 11 opined as under:-

In view of this legal position, it is crystal clear that the Wednesbury principle is made applicable even in cases of D.P.C. proceedings/promotion. If the findings of D.P.C. are based on inadmissible, irrelevant or insignificant material/fact, this can very well be a ground to interfere in Article 226 proceedings. Thus, in the light of 2002 rules, it is required to be examined wither singular reason of imposition of punishment which came to an end much before the date of D.P.C. can be a valid reason to deprive the petitioner form the fruits of promotion.

On the anvil of aforesaid legal position, if impugned order is tested, it will be clear that the respondents have considered inadmissible material and failed to consider the relevant and significant material. The order is also not in consonance with the directions passed by this Court in W.P. No. 289/08. Even in administrative orders adequate reasons should be given.

Reasons are heart beats of conclusions and in absence of reasons conclusions have no legs to stand. The Apex Court has laid down the principles on this aspect in Kranti Associates Pvt. Ltd. and Another Vs. Sh. Masood Ahmed Khan and Others, , which reads as under:-

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior courts.

(emphasis supplied)

On the basis of aforesaid, the impugned order cannot be permitted to stand. Resultantly, the order dated 20.6.2011 (Annexure P-1) in both the cases are set aside. The matter is remitted back to respondent No. 2 to reconsider the case of the petitioners for out of turn promotion in the light of aforesaid analysis. The aforesaid exercise be completed within 90 days and the outcome shall be communicated to the petitioners.

Petitions are allowed to the extent indicated above.