AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr. A. Bimol, learned counsel appearing for the petitioners and Mr. H. Samarjit, learned G.A. appearing for the State respondents. None appears for the private respondents though they have been served notices properly.
In this writ petition, the petitioners, three (3) in number who are presently serving as Havildars in the Manipur Police have challenged the promotion order dated 25.04.2016 issued by the DGP by which the private respondents and others have been given promotion to the higher posts of Jemadar. The grievance of the petitioners, in short, is that they being gallantry awardees are entitled to be considered for promotion to the higher posts of Jemadar under the 15% of posts of the Jemadars reserved under promotion quota reserved for those who are recognised for their gallantry acts and sportspersons. However, by ignoring the case of the petitioners and by recommending the private respondents who are junior to some of the petitioners, their rights have been violated.
The promotional post in issue is the post of Jamadar which is governed by the Recruitment Rules namely, Recruitment Rules for the post of Jemadar (Manipur Rifles/India Reserve Battalions) of Police as contained in the Assam Police Mannual Part - III. As per the Recruitment Rules for the post of Jemadar, 50% of the posts are to be filled up by promotion. 85% of the promotion quota are to be filled up from amongst Havildars (MR/IR Bns.) who have passed the Pre-Promotion Selection Test prescribed by State Government and have satisfactorily completed the probation with 5 (five) years regular service in the grade and remaining 15% of the promotion quota are to be filled up from Havildars (MR/IR Bns.) who have satisfactorily completed the probation with 3 years regular service in the grade, having passed the Pre-Promotion Selection Test prescribed by the State Government and who have been recommended by the DGP for promotion by reason of their conspicuous acts of gallantry in discharge of official duties or who are outstanding sportsmen recognized by the All India Police Sports Control Board, provided that - (i) Officers recommended beyond the normal zone of consideration under the second category above shall be placed below officer recommended under normal zone of consideration in the merit list.
(ii) If the promotion quota under the second Category above cannot be filled up due to various reasons, the same may be filled up from the category (1) above during a particular recruitment year.
It has also been further provided in the Recruitment Rules that the promotion shall be based on overall inter-se seniority in all battalions.
The post of Jemadar is a "Selection Post" and is to be filled up on the basis of merit cum seniority by considering the case of those who are within the normal zone of consideration and only when the inter se merits are same, the promotion will be decided on the basis of the seniority position. Rules provide for consideration of candidates belonging to SC or ST by extending the normal zone of consideration if no eligible SC/ST candidates are available within the normal zone of consideration. Before the actual determination of suitability by the Departmental Promotion Committee recommendation on merit, the Administrative Department has to prepare or furnish the list of eligible candidates based on seniority and who are within the zone of consideration. The role of the Administrative Department is restricted to preparing the list of eligible candidates based on seniority and who are within the zone of consideration. In the process, a person who is in the zone of consideration cannot be left out, nor a person who is not within the zone of consideration can be included. Thus, when the promotion is to be made either under 85% General quota or 15% reserved for gallantry awardees and outstanding sports persons, the same principle is to be followed for each of these categories. Accordingly, appointment under the aforesaid 15% reserved quota which is known in popular parlance in the Police as out of turn promotion quota is also to be made on the basis of merit-cum seniority by considering the case of those persons who are within the zone of consideration. The DGP is to make the recommendation for promotion under the out of turn quota by reason of their conspicuous acts of gallantry in discharge of official duties or who are outstanding sportsmen from amongst those who are within the zone of consideration and those who are within the zone cannot be left out. The DGP while recommending for consideration of promotion under the aforesaid 15% quota is to follow the similar principle/norm as followed for the remaining quota. The DGP cannot recommend any persons who do not fall within the zone of consideration and by ignoring seniority for promotion under 15% quota. The actual recommendation for promotion has to be made by the competent DPC on the basis of service records and other relevant materials by determining their suitability on merit, which cannot be done by any other authority including the DGP. The general norm for consideration of promotion applicable to the selection post will equally apply for the aforesaid 15% out of turn promotion quota. The general norm for selecting eligible candidates on the basis of seniority and those who fall within the zone of consideration has to be applied by the DGP and the Department before they are considered by the DPC in respect of the 15% out of turn quota. The only difference is that the DGP has been given the responsibility to recommend those eligible persons for promotion under the aforesaid 15% out of turn promotion quota who are credited with conspicuous acts of gallantry in discharge of official duties or who are outstanding sportsmen recognized by the All India Police Sports Control Board as mentioned above. The Recruitment Rules do not contemplate the DGP to make his own method of recommendation contrary to the general norm applicable for selecting the eligible persons for promotion to a selection post or to take over the role of the Departmental Promotion Committee to adjudge the suitability of the candidates for promotion under the aforesaid quota. The only scope of the authority of the DPC in this exercise is to ensure and verify that these persons who are recommended are senior and within the zone of consideration, and are credited with conspicuous acts of gallantry or are meritorious sportspersons. There may be cases, where a person might have earned awards by dint of meritorious and diligent service. For example, a person may have contributed significantly in solving an intricate and complicated case, without involving any physical risk to his life or limb or show of physical courage, yet he may also earn awards. What the relevant rules contemplate, as evident from the language used in the recruitment rules is that such acts must be conspicuously gallantry acts in discharge of official duty. Gallantry in normal parlance would mean courage as also defined in Oxford Advanced Learner''s Dictionary. Courage is naturally associated with physical attributes and bravery. Therefore, an act of gallantry would normally involve physical courage and prowess putting oneself at risk to his limb and life, in contradistinction to any other meritorious performance not involving physical prowess but only involving mental exercise. Though there cannot be hard and fast definition as to the meaning of gallantry acts, certainly there cannot be gallantry act without bravery and physical risk to life and limb. Therefore, discretion of the DGP is merely to choose only those persons who have been involved in conspicuously gallantry acts involving courage and bravery and the discretion given to the DGP not to recommend a person who in his opinion was not involved in any gallantry act. Once the DGP is satisfied on the basis of the records that such person was involved in any act of conspicuous act of gallantry then, he will be entitled to be recommended by the DGP. Consequently, if the DGP for valid reasons comes to a conclusion that a person was not involved with any conspicuous act of gallantry, the DGP would have a right not to make a recommendation. That is the discretion which the DGP has to exercise on valid, relevant and germane materials and by not considering irrelevant materials.
However, the DGP cannot adjudge the relative merit of the conspicuous acts of gallantry for the purpose of promotion, which exercise is to be undertaken by the DPC concerned. The role of the DGP is merely to recommend only those persons who have been found to be involved any conspicuous act of gallantry or meritorious sportspersons. The present case is not one where the DGP has not recommended the petitioners on the ground that they were not involved in any conspicuous act of gallantry but on the ground that the petitioners were later recipients of gallantry awards. The recruitment rules, have used the expression "who had been recommended by the DGP" because of which an impression may be created that it is the DGP who has the authority to make recommendation for promotion in respect of 15% promotion quota. Though such an interpretation is a plausible one, the same may not be the correct approach, keeping into consideration the scheme of promotion in respect of the selection post which is to be made on the basis of merit-cumseniority. While adjudging suitability for promotion in a selection post the Departmental Promotion Committee has to assess the relative merits of the candidates based on various relevant parameters and also after taking into consideration the entries made in the ACRs of the candidates. It is now well settled that the DPC can devise its own method for assessing the suitability and adjudging the merit of the candidates and they are not bound by the entries made in the ACR. The DPC can make its own independent assessment. For example, though in respect of candidates there may be similar assessments recorded in the ACR, there may be different remarks and observations made in the ACRs on the basis of which the DPC may arrive at the different conclusions and grade the candidates differently. Thus, this autonomy of the DPC to make such independent assessment based on various parameters of the ACRs and other relevant consideration is a unique responsibility of the DPC which perhaps the DGP may not be in a position to do so, specifically when the rules are not specifically clear about it.
Therefore, when the recommendation is made by the DGP for promotion under 15% quota, it is his duty merely to ensure that only those who have been involved in the conspicuous acts of gallantry in discharge of official duties or who are outstanding sportsmen are recommended for consideration for promotion. The scope of the power of the DGP is restricted to examine whether such person has acted in any conspicuous act of gallantry or is an outstanding sportspersons. But while doing so, he can neither ignore the seniority list or the zone of consideration. The general norm or principle governing promotion to a selection post which is applicable to 85% promotion quota will be applicable equally for the 15% out of turn quota, except for the fact that it will be confined to only a special category of gallantry awardees or sportspersons.
In the present case, keeping in view the aforesaid principle, this Court has to examine as to whether the aforesaid principle had been followed by the DGP while making recommendation for promotion under the aforesaid 15% quota.
Mr. A. Bimol, learned senior counsel submits that it is not in dispute that the petitioner No. 1 is senior to all the private respondents, petitioner No. 2, to all the private respondents except respondent No. 3 and the petitioner No. 3 is senior to the private respondents No. 6 to 8. Thus, the petitioners are senior to all respondents or some of them. He further submits that the petitioners are gallantry awardees as they were involved in the conspicuous acts of gallantry in discharge of official duties. This fact has not been denied. That the petitioners also fulfill the other criteria is also not in dispute. Therefore, according to Mr. Bimol recommending persons who are junior to the petitioners by ignoring the case of the petitioners is arbitrary and discretionary and has illegally violated the rights of the petitioners to be considered for promotion.
Mr. H. Samarjit, learned G.A. submits that the private respondents are more meritorious and they are gallantry awardees in an earlier period prior to the petitioners. Therefore, they are senior as far as the receipt of meritorious awards are concerned. He submits that on the basis of the date of receipt of the meritorious award, the names of the private respondents have been recommended by the DGP. This principle though may not seem to be arbitrary or un-reasonable, however, cannot be applied in the present case as there is no such specific provision under the recruitment rules that who get gallantry awards earlier will get precedence over later awardees. The date of receipt of gallantry award will have reference to only for consideration of the year wise vacancy. For example, while considering for the year 2011-2012, only those persons who had actually received gallantry award during that period or earlier will be considered, provided that they are otherwise eligible and within the zone of consideration. A senior who has got the gallantry award in a subsequent year cannot be considered for the aforesaid period. From the year wise vacancy chart show in para 5 of the affidavit-in-opposition of the Respondents, it has been shown that there were 2 vacancies (which is disputed by the petitioners to be 3) during the year 2014-2015. The petitioners claim that they were given gallantry awards in 2011 and 2013, in which event they are entitled to be considered for the vacancies arising during 2014-2015 at least.
Accordingly, for the reasons discussed above, this Court cannot accept the contention of the State Government to be valid that since the private respondents were given meritorious awards prior to the petitioners, their names were recommended and not the petitioners. It is not in dispute that the petitioners are seniors to all/or some of the private respondents. It is also not in dispute that the petitioners are recipients of various gallantry awards. Thus, if their juniors were considered, there is no reason for the authorities to ignore their claim. Since the rules do not provide for giving preference or precedence to those who had been given gallantry awards earlier, there cannot be any reason for ignoring the petitioners. As mentioned above, the date of receipt of gallantry award will have relevance with reference to the year wise consideration of vacancies. The actual merit has to be considered only by the competent DPC, neither by the Administrative Department nor the DGP. Their role is restricted only to forwarding the names of eligible persons for consideration for promotion. This limited role of the DGP has to be exercised only by following the known procedure or principle, i.e., forwarding only those eligible candidates as per seniority and who are within the zone of consideration, unless the rules provide otherwise, which has not been so provided.
The result will be that the promotion of the private respondents to the post of Jemadar cannot be sustained. In view of the above, this Court is of the opinion that the Court may not examine other grounds raised by the petitioner, in as much as the present petition can be allowed on the basis of the finding arrived at on the issue as mentioned above. Therefore, this Court would hold that the recommendation for promotion to the post of Jemadar as far as the private respondents are concerned, vide recommendation dated 16.03.2016 and the consequential promotion order dated 25.04.2016 of the private respondents cannot be sustained. Accordingly, the promotion of the private respondents would be required to be set aside.
At this stage, Mr. H. Samarjit, learned G.A. submits that the there are adequate numbers of vacancies to the posts of Jemadar and without disturbing the promotion of the private respondents already made, the case of the petitioners can also be considered for promotion under the aforesaid 15% out of turn quota, and if they are found to be suitable for promotion to the posts of Jemadar under the aforesaid out of force quota, they can be given promotion. This suggestion made by the learned G.A. seems to be reasonable.
In this regard, it may be also noted that contrary to the claim of the petitioners that there were 10 vacancies available under the 15% out of turn quota, the State respondents have stated that there were only 7 vacancies. While examining the manner in which the respondents have worked out the vacancies as mentioned in para 5 of their affidavit-inopposition, it is seen that for the year 2011-12, as against the total 14 vacancies available, the respondents have shown the vacancy under the 15% out of turn quota to be "NIL" though the figure comes to "0.9". Similarly, in respect of vacancies for the year 2013-14, it has been shown to be "NIL" against the figure of "0.75" and only 2 vacancies for the year 2014-15 against the figure of "2.85". This Court would agree with the submission of Mr. A. Bimol that the rule of rounding off numbers, should be made applicable, as otherwise, whenever, the percentage of the vacancies fall just below "1"; it has to be treated as "NIL" which would deprive those claimants under the 15% promotion quota. The rule of rounding off numbers should be made applicable to the 15% promotion quota as well as to the 85% promotion quota category. In such an event, this Court is also of the view that the number of vacancies under the 15% promotion quota would increase to 10 from 7 as earlier determined by the respondent authorities, against which the case of the petitioners can also be considered.
Under the above facts and circumstances and for the reasons discussed above, the present petition is allowed by holding that the promotion of the private respondents to the posts of Jemadar is not sustainable in law. However, their promotion is not interfered with and not disturbed for the reasons discussed above, and this Court directs the official respondents to consider the case of the petitioners along with private respondents again for promotion to the posts of Jemadar by holding a review DPC and in the event, the petitioners are also found to be suitable, they are to be given promotion and be assigned seniority on the basis of the inter se merit position so determined by the review DPC along with the private respondents. It goes without saying that if the petitioners are recommended for promotion to the posts of Jemadar by the review DPC, they are also to be given promotion from the date when the private respondents were given promotion to the posts of Jemadar. This exercise shall be completed within a period of 3 (three) months from today. With the above observation and direction, writ petition is allowed.