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HEM RAJ SINGH versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Hem Raj Singh v. State Of U.P. And Others - WRIT - A No. 41671 of 2003 [2006] RD-AH 12271 (26 July 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.26

  Civil Misc.Writ Petition No. 41671 of 2003

 Hem Raj Singh

      Versus

        State of U.P. and others  

Hon.Shishir Kumar, J.

By means of the present writ petition the petitioner has approached this Court under Article 226 of the Constitution of India for quashing the order dated 27.3.2003 (Annexure 13 to the writ petition).  Further issuing a writ in the nature of mandamus directing the respondents to give out of turn promotion to the petitioner as per Government Order dated 27.12.1998.

The facts narrated in short stated in the writ petition are that the petitioner was appointed on 16.12.1979 as a Constable and after completing the training he was posted as Constable on 1.12.1980.  From the date of appointment, the petitioner performed his duty with full devotion and always got appreciation by his superior authorities.  Petitioner was performed his field duty since 1982 to 1985, 1986 to 1990 where the petitioner worked with his best ability and always got appreciation by the senior authorities during his service.  There is not a single adverse remark in the entire career of the petitioner.  Due to good performance of the petitioner various other certificates were also given to the petitioner from different organizations.  The petitioner got ''B' certificate from N.C.C, which was issued by the Defence Ministry in the year 1978.  In the year 1979, the petitioner got ''C' certificate from National Cadet Corps.  Petitioner joins the Annual Training Camp and a certificate was issued to the petitioner.  Petitioner had also passed the parashoot training and a certificate to that effect was also given to the petitioner.  Due to the aforesaid performance of the petitioner, the petitioner was given 60 cash award and 70 best appreciation in his character role.  Petitioner has also received the award on 26.1.1998 for good service and received the Honour marks.  The Government has issued a Government Order dated 27.12.1998 by which there is a provision for out of turn promotion and certain criteria has been fixed in the said government order.  The name of the petitioner on the basis of application submitted before the  Additional Superintendent of Police Gautam Budh Nagar has recommended the application of the petitioner for giving out of turn promotion.  The Senior Superintendent of Police, Gautam Budh Nagar has also recommended the case of the petitioner for out of turn promotion.  In spite of the recommendation of the name of the petitioner for out of turn promotion, the respondents have not given the same for which the petitioner is entitled.  When the petitioner enquired into the matter, an information to this effect has been given to the petitioner that the name of the petitioner is not being considered in view of the modification in the Government Order dated 31.7.1999 issued  by Inspector General of Police in which a clarification was given that while considering the persons for out of turn promotion, the services of 10 years means preceding 10 years of service rendered by that person in field. It does not mean 10 years of service in field of the total tenure.  Though from the perusal of Clause I, it is clear that out of 10 years of service at least a person who is a candidate for the purposes of out of turn promotion should be having five years field experience. A copy of the Government order dated 31.7.1999 is annexed as Annexure 9 to the writ petition.

Due to adopting of discriminatory criteria the petitioner challenged the order dated 31.7.1999 before this Court and by way of counter affidavit filed in the said writ petition the petitioner got an information that by order dated 30.8.1999, the case of the petitioner has been rejected.  On the basis of the Government Order dated 31.7.1999  the petitioner challenged the aforesaid order on two grounds-

(a) The subsequent changed in the Government Order policy for making out of turn promotion is arbitrary and gives free handed to the Higher authorities for favoritism on the basis of so called explanation/amendment which in effect seeks to incorporate an additional condition which was not earlier in the original policy.

(b) Another ground was that the departmental clarification vide notification dated 31.7.1999 has been issued by the Inspector General of Police U.P. Lucknow who was not competent to alter by way of explanation or amendment in any manner.  The terms and conditions of out of turn promotion as per policy framed by the Government was contained in the notification dated 27.12.1998 issued by the Director General of Police, Lucknow.  

     After considering the entire aspect of the matter this Court vide its order dated 10.10.2002 allowed the writ petition and a direction to this effect was given that the case of the petitioner be considered ignoring the departmental  order dated 31.7.1999.  The operative portion of the order passed  by this Court is being reproduced below-  

"15. In view of the above, I find that the case of the petitioner should have been considered for out of turn promotion as per Director General of Police letter dated 27.12.1998 (Annexure 9 to the writ petition), ignoring the departmental order dated 31.7.1999 (Annexure 10 to the writ petition) passed subsequently.  

16. Accordingly, a writ in the nature of mandamus is issued commanding the respondents to consider the case of the petitioner for out of turn promotion and if he is found fit as per Government order, then confer all such benefit as has been given to his juniors in the past so that the petitioner does not suffer for his belated consideration of out of turn promotion.

17. The writ petition stands allowed.  No order as to costs.

Petition Allowed."

Immediately, after obtaining the certified copy of the order, the petitioner submitted an application before the Director General of Police (Karmik), Allahabad, but no orders were passed in spite of serving of the certified copy as well as the direction issued by this Court.  Then the petitioner preferred a Contempt Petition No.751 of 2003 and the notices were issued and as soon as the notices were issued, the respondents in a hurried manner without considering and without obeying the order of this Court in true spirit had passed an order without application of mind on 27.3.2003 without assigning any reason, only stating therein that the case of the petitioner has been considered and as the petitioner does not fulfill the criteria laid down in the Government Order dated 27.12.1998, therefore, the petitioner is not found fit for out of turn promotion. Aggrieved by the aforesaid order, the petitioner has approached this Court.

Notices were issued and counter and rejoinder affidavits have been exchanged, as such, with the consent of the parties the writ petition is being disposed of finally.

It has been submitted on behalf of the petitioner that earlier rejection of the petitioner was only on the ground that the petitioner does not fulfill the first requirement of field duty in view of the notification issued by the Inspector General of Police dated 31.7.1999.  The other requirement has been fulfilled by the petitioner but the impugned order which has been passed in a haste manner has only states that the petitioner does not fulfill the requirement of Government Order dated 27.12.1998.  In support of the contention the learned counsel for the petitioner submits that in Para 3 of the counter affidavit filed by the respondent in earlier Writ Petition No.13430 of 2000, the respondents have admitted this fact that all conditions contained in the circular are being fulfilled by the petitioner but the main condition for serving in field duty for minimum ten years in preceding years is not fulfilled by him.  Meaning thereby the respondents themselves have admitted this fact that all other conditions have been fulfilled by the petitioner.  For the ready reference, Para 3 of the counter affidavit filed in Writ Petition No.13430 of 2000 is being reproduced below-

"3- ;g fd 'kiFkdrkZ ;kfpdk dk izLrkoj mRrj nsus ls iwoZ ekuuh; U;k;ky; ds laKku esa dqN vfrvko';d rF;ksa dks ykuk pkgrk gS tks fuEufyf[kr gS%&

1-¼d½ ;g fd iz'uxr fjV ;kfpdk mRd`"V lsok ds vk/kkj ij iqfyl egkfuns'kd] m0iz0 ds ifji= fnukad 27-12-98 ds vk/kkj ij vkmV vkQ VuZ izksUufr iznku fd;s tkus dh ekWax dks ysdj nk;j dh x;h gSA ekuuh; mPp U;k;ky;] bykgkckn }kjk izfri{khx.k dks izfr 'kiFki= nkf[ky fd;s tkus dk funsZ'k fn;k x;k gSA

¼[k½  ;g fd mDr ds laca/k esa mYys[kuh; gS fd iqfyl v/kh{kd xkSrecq) uxj }kjk Jh gsejkt flag dkUr] dks mRd`"V lsok ds vk/kkj ij vkmV vkQ VuZ izksUufr iznku fd;s tkus ds laca/k esa izLrko iqfyl miegkfujh{kd] esjB ifj{ks= dks miyC/k djk;k x;k Fkk] ijUrq os foxr ikWap o"kksZa esa QhYM fM;wVh iw.kZ ugha fd;s Fks vr% ifj{ks=h; Lrj ij mDr izLrko fujLr dj fn;k x;k Fkk ftlds fo:) ;kph us fjV ;kfpdk la0 1340/2000 nk;j dh x;h Fkh bl fjV ;kfpdk esa ekuuh; mPp U;k;ky; us fnukad 12-10-02 dks fjV ;kfpdk �?,ykm�? djrs gq, vknsf'kr fd;k Fkk fd iqfyl egkfujh{kd Lfkkiuk ds ifji= la[;k % Mhth&pkj&100(1326)-94 fnukad 31-7-99 dks utj vankt dj ¼bXuksj½ djrs gq, izdj.k esa fopkj fd;k tkosA ekuuh; mPp U;k;ky; ds mDr vkns'k dk vuqikyu u gksus ds dkj.k ;kph gsejkt flag] vkj{kh }kjk ekuuh; mPp U;k;ky; esa voekuuk ;kfpdk la0 571/2003 nk;j dh x;h ftlesa ekuuh; U;k;ky; }kjk ikfjr fu.kZ; fnukad 20-2-2003 ds ikfjr fu.kZ; ds vuqikyu esa mRd`"V lsok ds vk/kkj ij vkj{kh 616 uk0iq0 gsejkt flag tuin xkSrecq) uxj dks fu%laoxhZ; in ij ,d jSad inksUufr iznku djrs gsrq izkf/kd`r lfefr }kjk izdj.k esa fnukad 24-3-03 dks fopkj foe'kZ fd;k x;k  rFkk ;kph dks mRd`"V lsok ds vk/kkj ij 'kklukns'k la[;k 3540/6-iq0-10-97-1200(49)/97 fnukad 2-1-98 ds ifjisz{; esa eq[;ky; iqfyl egkfuns'kd ls fuxZr ifji= la[;k&Mhth&pkj&106(1362)94 fnukad 27-12-98 esa fu/kkZfjr vgZrkvksa dks iw.kZ ugha djrs gSaA vr% izkf/kd`r lfefr }kjk ;kph dks �?mRd`"V lsok�? ds vk/kkj ij fu%laoxhZ; in ij ,d jSaad inksUufr iznku fd;s tkus dh laLrqfr ugha dh x;hA lfefr dh cSBd fnukad 24-3-2003 dh Nk;k izfr layXud lh0,01 ds :i esa layXu dh tk jgh gSA"

But now in the impugned order only it has been stated that the petitioner is not found fit to be promoted in view of Government Order dated 27.12.1998.  

It has further been submitted on behalf of the petitioner that this Court while allowing the writ petition of the petitioner has clearly held that the departmental order dated 31.7.1999 will be ignored while considering the case of the petitioner for out of turn promotion, therefore, the respondents has got no jurisdiction to consider the case of the petitioner in view of the aforesaid government order.  The other condition is being fulfilled by the petitioner, which is admitted by the respondents in the counter affidavit, therefore, rejection of the case of the petitioner is an action of malafide and has been passed in a haste manner due to notice which has been  issued in the contempt petition.  The said action of the respondents is in clear violation of the judgment and order passed by this Court.  The case of the petitioner has to be seen according to the Government Order dated 27.12.1998.  The subsequent clarification issued by the Inspector General of Police dated 31.7.1999 cannot be taken into consideration in view of the judgment and order passed by this Court.  It has further been submitted that this cannot be the intention of the legislature to be taken into consideration the preceding 10 years means on the date a person is being considered earlier continuous 10 years will be taken into consideration.  The government order clearly states that a person has to complete 10 years of service and during this 10 years tenure he has to serve five years in field duty and the service record should also be good.  It has also been stated in the counter affidavit that there is nothing against the petitioner, only it has been said that the petitioner does not fulfill the requirement of Government Order dated 27.12.1998 but as regards the entry in the service record, the respondents have admitted this fact that the entry of the petitioner was very good in the last 10 years.

It has also been submitted that from the perusal of the order dated 27.12.2003, it clearly appears that the order is of non application of mind without assigning any reason, as such, the same is liable to be quashed.

A counter affidavit has been filed on behalf of the respondents.  In Para 3 of the said counter affidavit it has been stated that as the petitioner has not completed five years of field duty in the last preceding year, therefore, the Committee has considered the case of the petitioner and found that he does not come under the preview of criteria laid down in Government Order dated 27.12.1998.  In Para 5 of the counter affidavit a detail has been given regarding the entries, which have been awarded to the petitioner from time to time.  The Learned Standing Counsel wanted to submit that on the basis of the judgment and order passed by this Court the case has been considered by the Committee and it was found that he does not come under the purview of the criteria laid down, as such, his case has been rejected.

I have heard learned counsel for the petitioner and learned Standing Counsel and have perused the record.

From the record it is clear that the petitioner was never awarded any adverse entry at any point of time.  The service record of the petitioner is clean.  The case of the petitioner was considered by the competent authority but was earlier rejected only on the ground of departmental order dated 31.7.1999 Only on the ground that the petitioner has not completed 10 years of field service in the last preceding year when the case of the petitioner was being considered.  In the counter affidavit filed on behalf of the respondents in the earlier writ petition the respondents in Para 3 of the counter affidavit, which has been quoted above, clearly goes to show that other conditions except condition mentioned  above, has been fulfilled by the petitioner.  It is also clear from the record that the direction to this Court in the writ petition is clear to his effect that the case of the petitioner will be considered ignoring the departmental order dated 31.7.1999.  Meaning thereby that there was no option before the Committee constituted except to give promotion to the petitioner, when the petitioner was being considered after the judgment of this Court. Contention of 10 preceding year in field service was directed to be ignored and now counter affidavit filed on behalf of the respondents in the earlier writ petition, the respondents have admitted that except this criteria the petitioner fulfill all other requirements of Government Order dated 27.12.1998. But from the perusal of the impugned order it is clear that the respondents have only state that as the petitioner does not fulfill the requirement of Government order dated 27.12.21998, therefore, his case has been rejected.  No other reason has been given. From the aforesaid order, it is also clear that the order dated 27.3.2003 is an order of non application of mind without assigning any reason appears to be passed in haste manner on the basis of issuance of notice in contempt application.  It is well settled that administrative authority is also bound to record reason while considering the claim of an employee.  If no reason has been recorded it  appears that the aforesaid order is an order, which cannot be taken into consideration and appears to be passed without application of mind.  It is also borne out from the record that though the judgment and order passed by this Court in earlier writ petition, as the petitioner was fulfilling the other criterias laid down in the Government Order, he should have been given benefit of out of turn promotion in compliance of judgment and order passed by this Court because nothing was lacking in the criteria against the petitioner except the criteria laid down in the departmental order dated 31.7.1999 which has been admitted in the counter affidavit filed in the earlier Writ Petition No.13430 of 2000.

It is also to be noted that in Para 5 of the counter affidavit the respondents themselves have admitted this fact that during the 18 years of service the petitioner has never been awarded any adverse entry and always the petitioner was being awarded �?vfrmRre Js.kh�?, �?mRd`"V Js.kh�?, mRre Js.kh                                                                  and only for a period of three years he has been awarded  larks"ktud Js.kh.                         The Para 5 of the said counter affidavit is being reproduced below-

5- ;g fd ;kfpdk ds izLrj 1 o 2 esa of.kZr dFku esa ;g dguk gS fd ekuuh; mPp U;k;ky;] bykgkckn esa nk;j fjV ;kfpdk la0 13430/2000 esa ikfjr fu.kZ; fn0 10-10-2002 rFkk voekuuk la[;k 571/2003 esa ekuuh; mPp U;k;ky;] bykgkckn }kjk ikfjr fu.kZ; fnukad 20-20-2003 esa ikfjr fu.kZ; ds vuqikyu esa mRd`"V lsok ds vk/kkj ij vkj{kh 616 uk0iq0 gsejkt flag tuin xkSrecq) uxj dks fu%laoxha; in ij ,d jSad izksUufr iznku djus gsrq izkf/kd`r lfrfr us izdj.k dk ijh{k.k fd;kA rnuqlkj ;kph gsejkt flag dksk lEiw.kZ lsok dky ¼18 o"kZ½ esa izkIr ok okf"kZd eUrO;ksa dh leh{kk izkf/kd`r lfefr }kjk djus ij ik;k x;k fd budh 18 o"kZ dh lsok vof/k esas ek= 3 o"kZ ds okf"kZd eUrO; �?mRd`"V Js.kh�?@06 o"kZ ds okf"kZd eUrO; �?vfrmRre Js.kh�?@06 o"kZ okf"kZd eUrO; �?mRre rFkk 03 o"kZ ds okf"kZd eUrO; �?larks"ktud Js.kh ds gSA blds vfrfjDr budh 10 o"kZ dh lsok esa 03 �?mRd`"V Js.kh@06 vfrmRre Js.kh ds rFkk 01 �?mRre Js.kh ds okf"kZd eUrO; gS] ftlds dkj.k ;g mRd`"V lsok ds vk/kkj ij 'kklukns'k la[;k 3540/6-iq0-10-97-1200¼49½/97 fnukad 2-1-98 ds ifjisz{; esa eq[;ky; ls fuxZr ifji= ls fuxZr la[;k %Mhth&pkj &106 ¼1362½ -94] fnukad 27-12-98 esa fu/kkZfjr vgZrkvksa dks iw.kZ ugha djrsA bl izdkj buds }kjk dh x;h lEiw.kZ lsok ds okf"kZd eUrO;ksa dks n`f"Vxr j[krs gq, izkf/kd`r lfefr us ;kph dks �?mRd`"V lsok�? ds vk/kkj ij fu%laoxha; in ij ,d jSad inksUufr iznku fd;s tkus dh laLrqfr ugha dhA ifri= fnukad 27-12-98 dh Nk;k izfr layXud lh0,0 2 ds :i esa layXu dh tk jgh gSA

The order passed by the respondent No.5 dated 27.3.2003 is liable to be quashed only on the ground that the same has been passed without assigning any reason.

In view of the aforesaid fact the writ petition is allowed.  The order dated 27.3.2003 is hereby quashed and the respondent No.3 is directed to consider the case of the petitioner without taking into consideration the departmental order dated 31.7.1999 and will also take into consideration the statement in Para 3 of the counter affidavit filed in Writ petition No.13430 of 2000 in which the respondents  have admitted that  accept in the modification made in the departmental order dated 31.7.1999 the petitioners fulfills all the other criterias.   The respondent No.3 is further directed to consider the case of the petitioner in view of the Government Order dated 27.12.1998 and an appropriate orders be passed regarding consideration of the case of the petitioner for out of turn promotion without taking the criteria dated 31.7.1999 within a period of two months from the date of production of the certified copy of this order.

There shall be no order as to costs.

20.7.2006

SKD  

       


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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