State of U.P. and Others vs Ram Pratap Verma and Another

S.C. Chaurasia, J.—This writ petition has been filed with the prayer that a writ, order or direction in the nature of certiorari may be issued quashing the judgment and order dated 29.3.2007, passed by the opposite party No. 2 in claim Petition No. 1356 of 2005, Ram Pratap Verma v. State of U. P. and others, contained as Annexure-1 to the writ petition, and a writ order or direction in the nature of mandamus may also be issued commanding the opposite parties not to compel the Petitioners to comply with the impugned judgment and order dated 29.3.2007.

The brief facts, giving rise to this writ petition, are that the opposite party No. 1, Ram Pratap Verma, was appointed as Sub-Inspector of Police in January, 1984, after completion of training. He arrested a notorious criminal Ram Phali, on 5.9.1986, who was involved in several cases of extortion, criminal intimidation and murder etc., while he was posted at Police Station-Nagram, district Lucknow. After arrest, the accused, Ram Phali, was carried to the Police Station-Nagram, and after making necessary entries in the record, he was required to be produced before the Magistrate. No vehicle was available at the police station. The opposite party No. 1 alongwith his colleague, Sri R. S. Pushkar, Sub-Inspector, and the accused Ram Phali, was going to the Court on a motorcycle. Sri R. S. Pushkar was driving the motorcycle and the opposite party No. 1 alongwith the accused was sitting behind him. The roadways bus was coming from the opposite direction near the town of Mohanlalganj. The motorcycle was disbalanced and met with an accident. The opposite party No. 1 lost consciousness and his leg had to be amputed. The first information report of the incident was lodged at the police station. The opposite party No. 1 moved an application on 22.5.1995 for his out of turn promotion, on the basis of the said incident, in accordance with the Government order dated 3.2.1994, on which a recommendation was made by the Inspector General of Police (Administration), contained as Annexure-5 to the claim petition. After considering the application of the opposite party No. 1, the Government vide letter No. 3670/6-1-96-90 (49)/95 dated May, 1996, rejected the request of the opposite party No. 1 for out of turn promotion being not covered under the Government order No. 6650 (1) CHHA: PU-1-24/93 Lucknow: Dated: 3.2.1994. Copy of the rejection letter dated May, 1996 is contained as Annexure-6 to the claim petition and the copy of the Government order dated 3.2.1994, is contained as Annexure-2 to the claim petition.

The opposite party No. 1 filed a claim Petition No. 443 of 1997 challenging the said rejection order dated 1.5.1996 alongwith prayer for consideration of out of turn promotion, which was contested by the Petitioners. After hearing, the said claim petition was allowed vide judgment and order dated 9.2.2001, and the said order dated 1.5.1996 was quashed and the writ Petitioners were directed to consider the case of the opposite party No. 1 for out of turn promotion in the light of the observations made in the judgment for the post of Inspector/equivalent post for the extraordinary courage and bravery shown by the opposite party No. 1, causing him permanent disability by amputation of his leg. In pursuance of the said judgment and order dated 9.2.2001, the case of the opposite party No. 1 for out of turn promotion was again considered by the Government and a detailed and speaking order was passed on 27.8.2001. No justification was found for out of turn promotion of the opposite party No. 1 in the light of the Government order and the matter was disposed of accordingly, contained as Annexure-1 to the claim petition.

The opposite party No. 1 feeling aggrieved by the said order dated 27.8.2001, filed the Contempt Petition No. 202 of 2001 before the Public Services Tribunal. The Tribunal framed the charge in respect of the disobedience of the order dated 9.2.2001, passed by the Tribunal in Claim Petition No. 443 of 1997, and issued notices to the Secretary, Home Department u/s 17 of the Contempt of Courts Act, 1971 vide order dated 15.4.2004, contained as Annexure-11 to the claim petition. The Writ Petition No. 1622 (S/B) of 2004 was filed by the Petitioners in this Court challenging the impugned judgment and order dated 9.2.2001, passed in Claim Petition No. 443 of 1997 and against the order dated 15.4.2004, passed in Contempt Petition No. 202 of 2001. This Court vide order dated 13.12.2005, directed that

the contempt proceedings in Contempt Petition No. 202 of 2001 pending before the State Public Services Tribunal, shall remain stayed till further orders of this Court. However, it will be open for the opposite party No. 1 to challenge the order dated 27.8.2001, in accordance with law, if he is so advised. In case, any claim petition is filed within ten days from today, the same shall not be dismissed by the Tribunal on the ground of limitation.

Thereafter, the opposite party No. 1 filed the Claim Petition No. 1356 of 2005 before the State Public Services Tribunal challenging the said order dated 27.8.2001, which was contested by the Petitioners. After hearing, the learned Tribunal allowed the Claim Petition No. 1356 of 2005 partly vide impugned judgment and order dated 29.3.2007, and quashed the order dated 27.8.2001 with the direction to the State of U.P. to consider Sri Ram Pratap Verma to have been promoted out of turn as Inspector of Police/equivalent post notionally w.e.f. 3.2.1994 treating him to be in continuous service in the said cadre alongwith due increments. The State of U.P. was further directed to pass a formal order of promotion in favour of the opposite party No. 1.

The Petitioners have challenged the said impugned judgment and order dated 29.3.2007 on the grounds that the learned Tribunal has held illegally on the basis of surmises and conjectures that the order dated 27.8.2001 has been passed on the same illegal pattern on which the previous order dated 1.5.1996 was passed, but, failed to consider that the office memorandum dated 27.8.2001, was passed as per direction of the learned Tribunal dated 9.2.2001, in Claim Petition No. 443 of 1997, after considering the facts and circumstances of the case; that the opposite party No. 1 had not done any act of extraordinary courage and bravery in arresting any notorious terrorist or criminal and it was the case of accident with roadways bus, for which he is not entitled to claim the benefit of out of turn promotion under the Government order dated 3.2.1994 ; that the Government order dated 3.2.1994 is not applicable in the case of the opposite party No. 1 for out of turn promotion, because, the incident is of 5.9.1986 and the Government order dated 3.2.1994 has been made applicable from the date of issuance and it has not been given retrospective effect; that the learned Tribunal held illegally that the case of Mr. Harish Ram Arya is equal to the case of the opposite party No. 1, but, failed to consider that it was not identical as Sri Arya had become handicapped, while defusing the bomb kept at the residence of the Chief Minister and while allowing him out of turn promotion, it was specifically mentioned that it would not be treated as an example for other matter ; that the learned Tribunal has illegally directed to pass a formal order of promotion in favour of the opposite party No. 1; that the learned Tribunal held illegally that the impugned order is violative of Articles 14 and 16 of the Constitution of India and against the principles of natural justice ; that the learned Tribunal has failed to consider that every case for out of turn promotion has to be considered on its own facts and circumstances and there is no violation of said provision ; that the delay and laches, if any, in filing the writ petition are not deliberate or intentional and a detailed explanation in respect of it, has been given in the writ petition.

The opposite party No. 1 has filed the counter-affidavit. His version is that the writ petition is liable to be dismissed on the basis of delay and laches and the delay cannot be condoned on the ground of inter departmental correspondence. The writ petition is liable to be dismissed due to non-joinder of necessary parties. In Contempt Petition No. 201 of 2001, Ram Pratap Verma v. J. N. Chamber and others, the Principal Secretary (Home), U.P. has filed an affidavit on 19.6.2008 to the effect that action in respect of the judgment delivered in Claim Petition No. 1356 of 2005, is pending consideration before the State Government. The case of the opposite party No. 1 comes within the purview of Government order of 1994, contained as Annexure-2 to the claim petition. The Government order of 1994, is not applicable from the date of its issue, but, its contents are to be considered for making out of turn promotion. Moreover, this plea was not taken before the Tribunal, hence, the said plea cannot be taken before this Court and the Petitioners are estopped to raise said plea. There is no illegality in the judgment of the State Public Services Tribunal and the writ petition is liable to be dismissed.

Rejoinder-affidavit has been filed on behalf of the Petitioners, in which, they have reiterated their version.

We have heard the learned Counsel for the Petitioners, learned Counsel for the opposite party No. 1 and perused the record thoroughly.

The learned Counsel for the Petitioners has submitted that the case of the opposite party No. 1 does not come within the purview of the Government order dated 3.2.1994 and hence, he is not entitled for the benefit of out of turn promotion, but, the learned Tribunal has misinterpreted the said Government order and hence, erred in directing that the opposite party No. 1 shall be considered to have been promoted out of turn as Inspector of Police/equivalent post notionally w.e.f. 3.2.1994, treating him to be in continuous service in the said cadre alongwith due increments and further directing the State of U.P., to pass a formal order of promotion in favour of the opposite party No. 1. He has further submitted that the cases of Sri Shiv Ratan Singh Solanki, S.I. and Sri Harish Ram Arya, Platoon Commander are not identical to the case of the opposite party No. 1 and he is not entitled to claim parity in the matter of out of turn promotion and there has been no violation of Articles 14 and 16 of the Constitution of India. His contention is that the Government order dated 3.2.1994 has no retrospective application.

Learned Counsel for the opposite party No. 1 has submitted that the case of the opposite party No. 1 comes within the purview of the Government order dated 3.2.1994 and in view of the said Government order, the opposite party No. 1 is entitled for out of turn promotion like other police personnel and there is no illegality in the impugned judgment and order dated 29.3.2007, passed by the learned State Public Services Tribunal, Lucknow, and hence, no interference is called for by this Court.

An application dated 22.5.1995 was moved on behalf of opposite party No. 1, Sri Ram Pratap Verma, for granting out of turn promotion on the basis of the alleged incident dated 5.9.1986. In respect of the said incident, first information report was lodged by Sri Gauri Shanker Sharma at Police Station Mohanlal Ganj, and the case was registered at Crime No. 390 of 1986, under Sections 279, 338, 337 and 427, I.P.C. The contents of the first information report mentioned in the Government order dated 27.8.2001 are reproduced as under:

In the said application dated 22.5.1995, the opposite party No. 1 has mentioned that after investigation in the said case, the charge-sheet was submitted, which is pending in the Court.

Paragaraphs Nos. 4 to 9 of the Claim Petition No. 1356 of 2005, Ram Pratap Verma v. State of U.P. and others, are reproduced as under for ready reference:

That after the arrest, the accused Sri Ram Phali, he was brought to the Police Station Nagram and after making the necessary entries in the record, he was to be produced before the Magistrate in accordance with the law.

That it is a matter of chance that no vehicle was available at the police station and the applicant alongwith the another colleague Sri R. S. Pushkar, Sub Inspector made preparation to take the said criminal to the Court on motorcycle of Sri R. S. Pushkar who drove the vehicle and the Petitioner alongwith the accused was sitting behind the motorcycle and be held the criminal firmly so that he might not be able to escape.

That while the motorcycle was being driven with full care and caution, a roadways bus coming from the opposite direction near the town of Mohan Lal Ganj. The bus was being driven on the wrong side in a negligent manner and taking advantage of the situation, the said criminal Ram Phali intentionally made movements with a view to escape and thus the motorcycle was disbalanced.

That the Petitioner was sitting behind the motorcycle and he was holding the criminal without caring for his safety gripped firmly so that he may not be able to escape.

That the Petitioner had gripped firmly the accused otherwise he would have escaped and due to the devotion of duty with the highest tradition in the Police Force and the motorcycle was disbalanced and met with an accident with the Roadways Bus and the matter of incident was lodged in the Police Station Mohanlal Ganj.

That the injuries received by the Petitioner were so grievous that he lost consciousness and his leg had to be amputed.

From the perusal of the allegations made in the first information report, which was lodged just after the incident, it is clear that the opposite party No. 1, Sri Ram Pratap Verma, S.I. alongwith Sri B. D. Pushkar, S.I., was carrying the accused, Ram Phali, by motorcycle, which was being driven by Sri B. D. Pushkar, S.I., from Police Station Nagram, Lucknow, to the concerned Court for sending him to jail after obtaining remand from the competent court, but, in the way, the accident was caused due to rash and negligent driving of the bus and consequently, both the Sub-Inspectors of Police and the accused, Ram Phali, sustained grievous injuries and the case was registered against the driver of the bus under Sections 279, 338, 337 and 427, I.P.C. There is neither any allegation in the first information report that the accused, Ram Phali, attempted to escape from the police custody nor any case was registered against him u/s 224 of the Indian Penal Code. If in fact, the accused Ram Phali, would have attempted to escape from the police custody, the first information report would have been lodged against him u/s 224 of the I.P.C. The omission of it, clearly indicates that in fact the accused Ram Phali, did not attempt to escape from the police custody prior or at the time of said accident. Moreover, as per the allegations made in the first information report, the accused, Ram Phali, had also sustained grievous injuries and he was not in a position to attempt to escape from the police custody. The version of the opposite party No. 1 that the said bus was being driven negligently on the wrong side and taking advantage of the situation, the accused, Ram Phali, intentionally made movements with a view to escape and the motorcycle was disbalanced and he had gripped firmly the accused, otherwise, he would have escaped and he met with an accident with the roadways bus, is afterthought and is not worthy of reliance, particularly, when the accused himself sustained grievous injuries in the said accident and was not in a position to escape from the police custody and no case was registered against him u/s 224 of the Indian Penal Code. It appears that the opposite party No. 1 has taken the said stand, so that his case may come within the purview of the Government order dated 3.2.1994, which provides for out of turn promotion under the circumstances mentioned therein.

The relevant portion of the U.P. Government Home (Police) Section-1, Office Memorandum No. 6650 (1) CHHA: PU-1-24/93 Lucknow: Dated 3.2.1994, is reproduced for ready reference:

Clause 3 of the office memorandum dated 3.2.1994, as mentioned above, clearly provides that the police personnel mentioned therein shall come in the category of police personnel displaying, extraordinary courage and bravery, who have displayed courage and bravery in encounter or arrest of the hardcore terrorists or hardened criminals or took life risk during discharge of their duties. Now the point for determination is as to whether any action of the opposite party No. 1 comes within the purview of the said category as mentioned in the office memorandum dated 3.2.1994.

From the perusal of the record, it transpires that the accused, Ram Phali, was arrested by the opposite party No. 1, who was involved in Case Crime No. 308 of 1986, u/s 398/307, I.P.C. and was brought to Police Station Nagram. The accident was caused in the way, when the said accused was being carried from Police Station Nagram to the concerned Court for seeking remand and sending the accused to the jail. It was part of the normal duty of the opposite party No. 1, Sri Ram Pratap Verma, S.I., to produce the accused before the concerned court after his arrest. It is unfortunate that the accident was caused and the roadways bus collided with the motorcycle, causing grievous injuries to Sri Ram Pratap Verma, S.I., Sri B. D. Pushkar, S.I., and the accused, Ram Phali, who were moving by motorcycle. Thus, there was neither any occasion for the opposite party No. 1 to take life risk nor he has taken any such risk in discharge of his duty. It is just a matter of chance that the opposite party No. 1 met with an accident in the way, when he was carrying the accused by motorcycle for producing him before the Court in discharge of his normal duty.

We have deep sympathy with the opposite party No. 1, but, the Court cannot be swayed by emotions, while interpreting the statute or any office memorandum/Government order and it has to be interpreted in accordance with well established principles. We are of the definite view that the case of the opposite party No. 1, does not come within the purview of the office memorandum dated 3.2.1994 and he is not entitled for out of turn promotion in accordance with the said office memorandum. The learned State Public Services Tribunal has not considered the matter properly and has misinterpreted the said office memorandum dated 3.2.1994 and consequently, has come to a wrong conclusion, which cannot be sustained.

It appears from the record that in the year 1990, Sri Shiv Ratan Singh Solanki, S.I., displayed the extraordinary courage and bravery at the time of encounter with the hardcore terrorist. In the year 1991, Sri Harish Ram Arya, Platoon Commander, became disabled due to explosion of the bomb, when he was defusing the bomb kept at the residence of the Chief Minister. On account of extraordinary courage and bravery displayed by the said police personnel, they were granted out of turn promotions. In the instance case, the opposite party No. 1, sustained grievous injuries and became disabled as a result of the accident and not by any act of extraordinary courage and bravery displayed during discharge of his duty and hence, he is not entitled to claim parity with the said police personnel in the matter of out of turn promotion. Every case of out of turn promotion has to be considered on its own facts and circumstances. In our view, there has been no violation of Articles 14 and 16 of the Constitution of India and the principles of natural justice.

Clause 6 of the office memorandum dated 3.2.1994 as mentioned above, clearly indicates that the said order would be effective with immediate effect. It shows that the said order has become effective w.e.f. 3.2.1994. It has not been given retrospective effect. Prior to issue of office memorandum dated 3.2.1994, the Government was competent to grant out of turn promotion in respect of the incident occurred prior to the said date. It appears that the matter of opposite party No. 1 for out of turn promotion, which relates to incident occurred in the year 1986, was also referred to the Government, but, after consideration, the Government did not find any justification for granting out of turn promotion to Sri Ram Pratap Verma, S.I., after relaxing the office memorandum/Government order dated 3.2.1994. Under the circumstances, the Government cannot be compelled to grant out of turn promotion to the opposite party No. 1 after relaxing the said office memorandum dated 3.2.1994.

We find force in the submission of the learned Counsel for the Petitioners that the learned Tribunal has exceeded its jurisdiction by directing the State of U.P. to pass a formal order of promotion in favour of the opposite party No. 1. In our view, it was beyond the jurisdiction of the learned Tribunal to direct the State of U.P. to pass a formal order of promotion in favour of opposite party No. 1. Learned Tribunal can only direct the competent authority to consider the matter of the concerned employee for promotion.

In view of the foregoing discussions, we are of the view that the claim Petitioner/opposite party No. 1 was not entitled to get any relief, but, the learned Tribunal erred in allowing the claim petition partly and hence, the impugned judgment and order dated 29.3.2007, cannot be sustained.

The writ petition is allowed and the impugned judgment and order dated 29.3.2007, passed in Claim Petition No. 1356 of 2005, Ram Pratap Verma v. State of U.P. and others, by learned State Public Services Tribunal, Lucknow, are quashed and the Claim Petition No. 1356 of 2005, stands dismissed. The parties shall bear their own cost.