Manoj Tiwari vs State of M.P.

Sujoy Paul, J.—The petitioner, a Constable in Police Department, has challenged the legality, validity and propriety of the action of respondents in not awarding him out of turn promotion. On 13.7.2009, an incident of dacoity took place at Ashok Nagar, Guna road. The dacoits were caught and money was recovered. The petitioner along with another Constable Sanjay Gupta played an important and crucial role in this regard. Accordingly, the Superintendent of Police (S.P.), Guna by communication dated 15.10.2010 recommended the name of the petitioner and Constable Sanjay Gupta for out of turn promotion. Another letter of same date (15.10.10) was written recommending the name of the petitioner and Constable Sanjay Gupta. After the recommendations, the respondents gave out of turn promotion to Constable Sanjay Gupta by communication dated 1.3.2011 (Annexure P-5). However, the petitioner was only given Rs. 1000/- as cash award.

The grievance of the petitioner, as canvassed by Shri Sanjay Sharma, Advocate is that Annexure P-2 and P-3 shows that the petitioner has performed similar nature of duties. Their involvement is of same degree and, therefore, there is no justification in not giving out of turn promotion to the petitioner. It is submitted that the action of the respondent is discretionary in nature and hits Article 14 of the Constitution. He has relied Bhupendra Singh Tomar Vs. State of M.P., in this regard.

Per contra, Mrs. Patankar, learned G.A. supported the order. By taking this Court to the return filed, it is submitted that nature of work performed by the petitioner and Constable Sanjay Gupta are not exactly same. Sanjay Gupta was assisted by the petitioner in the work of cyber cell (analyzing the call details and thereafter aiding the prosecution agencies which ultimately led to arrest of the culprits involved in the crime). Annexure R-2 is also relied in this regard. By relying on various documents filed with the return, it is submitted that there is no scope of interference in this matter. The employer is the best judge to decide as to who is the fit person for the purpose of giving out of turn promotion.

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

The case of the petitioner is that the recommendations were made by S.P. in favour of the petitioner and Shri Sanjay Gupta in one voice. There is no justification in putting the petitioner to a comparatively disadvantageous position qua Shri Sanjay Gupta. The stand of the respondents is that Sanjay Gupta has not been impleaded as a party respondent. In absence thereof, petition is not tenable. It is further stated in the return that the Inspector General of Police had awarded cash award of Rs. 1000/- to the petitioner. Petitioner is not entitled for out of turn promotion. In para 5 of the return, it is stated that "S.P. Guna has recommended for out of turn promotion in favour of Shri Sanjay Gupta and forwarded the recommendation to DIG, Police, Gwalior on 18.8.2010." This recommendation is enclosed as Annexure R-2. It is further stated in page 4 of the return that a revised recommendation was forwarded by S.P. Guna to DIG, Gwalior by communication dated 15.10.2010 (Annexure R-6) and thereafter, the competent authority by assigning valid reasons rejected the claim of the petitioner for grant of out of turn promotion vide order dated 27.10.2010.

Annexure R-1 dated 2.8.2010 shows that I.G., Gwalior Zone directed S.P. Guna to send names of the police personnels who have played important and excellent role in the matter of aforesaid dacoity arising out of Crime No. 278/09. In turn, S.P. Guna sent the communication dated 18.8.2010 (Annexure R-2). In the return, it is submitted that this recommendation is only in favour of Shri Sanjay Gupta. However, two more recommendations were made by S.P. Guna which are filed as Annexure P-2 and P-3. The relevant portion of this communication dated 15.10.2010 reads as under:-

The claim of the petitioner was rejected for reasons assigned in Annexure R-7 dated 27.10.2010. It is mentioned by DIG, Gwalior Range that in the initial communication the S.P. only recommended in favour of Sanjay Gupta. Later on, for the same work, the petitioner''s name is recommended. For this reason, petitioner''s claim was turned down.

In the opinion of this Court, the promotion order of Sanjay Gupta was issued in March, 2011. Thus, till 27.10.2010, no decision was taken, nor any promotion order was issued with regard to Sanjay Gupta. The S.P. Guna sent two letters Annexure P-2 and P-3 in response to the letter of I.G., Gwalior Zone dated 2.8.2010 (Annexure R-1). This is not the case of the respondents that the recommendations in favour of the petitioner and Shri Sanjay Gupta dated 15.10.2010 are factually incorrect. It is not acted upon solely on the ground that in the earlier recommendation dated 18.8.2010 (Annexure R-2), the name of present petitioner was not mentioned. The last paragraph of order dated 27.10.2010 shows that while not sending the case of the petitioner for out of turn promotion, the liberty was reserved to the S.P. to sent the matter for reconsideration. However, the return is silent as to whether S.P. has undertaken the said exercise or not.

So far the objection that Sanjay Gupta has not been impleaded as party is concerned, in the opinion of this Court, the petitioner has not prayed any relief against Sanjay Gupta. He is claiming parity with the said personnel. Thus, he is not a necessary party and his non-impleadment will not have any adverse impact on this petition. Thus, this objection stands overruled.

I am not oblivious of the fact that the scope of interference in promotion matters by this Court is limited. This Court is not required to sit as a appellate authority to re-appreciate or re-weigh the performances of the officers. Interference can be made when there is apparent arbitrariness or wednesbury doctrine is attracted. The said doctrine is attracted when inadmissible or irrelevant material is taken into account or relevant material is ignored. In the present case, the S.P. made specific recommendations dated 15.10.2010 (Annexure P-2 and P-3). The said recommendations were not disbelieved by the remaining respondents. It is merely turned down on the ground that initially petitioner''s name was not recommended in August, 2010. In my view, the petitioner cannot be blamed for the same, nor he can be deprived for the said reason. The exercise of recommendation is required to be undertaken by the concerned S.P. If he has not send the name in August, 2010 but sent it by two communications on 15.10.2010, petitioner cannot be blamed or deprived from consideration. More-so, when the promotion order was issued much after receiving the communications dated 15.10.2010. The promotion order was issued only in March, 2011. Thus, this is to be seen whether relevant consideration has been ignored. In Badrinath Vs. Government of Tamil Nadu and Others, , the Apex Court opined 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.

If the matter is examined on the anvil of aforesaid principles, it will be clear that the respondents have not considered the recommendations Annexure P-2 and P-3. The respondents received these recommendations in October, 2010 itself and promotion order of Sanjay Gupta was issued in March, 2011. There was no justification in not considering these recommendations when correctness of these recommendations were not doubted. Thus, it is clear that the relevant consideration and material is ignored. Thus, wednesbury doctrine is attracted. In this view of the matter, the interference of writ court is warranted.

Considering the aforesaid, the action of the respondents in not considering the case of the petitioner for out of turn promotion is disapproved. In the light of aforesaid, the respondents are directed to consider the case of the petitioner dispassionately for grant of out of turn promotion from the date it was given to Sanjay Gupta. The reconsideration be made within 90 days from the date of communication of this order. The outcome of such consideration be communicated to the petitioner.

Petition is allowed to the extent indicated above. No cost.