# Krishna Kumar Pundir v. State of U.P., 2001

- **Citation:** (2003) 2 ILRA 477
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-06-11
- **Case number:** Civil Misc. Writ Petition No. 20053 of 2003
- **Bench:** Sunil Ambwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kumar-pundir-v-state-of-u-p-2001-40126
- **Pages:** 4

## Headnote

Constitution of India, Article 226-Judicial
Review-Scope-High
Court
while
exercising writ jurisdiction cannot form a
different opinion as an appellate courtimpugned order quashed.

Held- Para 9

This Court while exercising powers of
judicial review, cannot form a different
opinion or sit in appeal over the order. It
can only interfere where the committee
has not considered the case; relied upon
some irrelevant materials or has failed to
take into consideration the materials
which were relevant to the matter. The
fact
that
the
petitioner
was
recommended
for
police
medal
for
gallantry was one of the circumstance
but that cannot be said to conclusive
reason to arrive at a decision.

(B) Service Law- Out of turn promotion-
Petitioner posted as Sub-Inspector- G.O.
dated 3.2.1994 providing out of turn
promotion
to
only
those
showing
exemplary courage and bravery in an
encounter
with
some
notorious
or
hardened
Criminals
or
for
showing
courage or bravery in their arrest or for
taking risk in performance of duty-In
present
case
impugned
order
of
Committee
showing
that
in
joint
operation in comparison to heavy force
and weapons, there were four CriminalsThree of them made good their escape-
From one Criminal shot dead only a
Single barrel gun and a pistol were
recovered-Committee further found that
neither
of
police
personals
either
individually or collectively demonstrated
any such exemplary courage or bravery,
which may entitle them out of turn
promotion- Award of Police Medal for
gallantry may be one of consideration for
out of turn promotion on ground of
exemplary courage and bravery or taking
risk in performance of duties, but that by
itself cannot be conclusive proof to form
an opinion for bravery and couragePetition dismissed.

Held- Para 10

The award of police medal for gallantry
may be one of the consideration for out
of turn promotion on the ground of
exemplary courage and bravery or taking
risk in performance of duties, but that,
by itself, cannot be a conclusive proof to
form an opinion for bravery and courage.
Case Law Referred:
Krishna Kumar Pundir V. State of U.P., 2001
(3) A.W.C. 2163

## Text

2 All] Ram Saran Goyal V. State of U.P. through Special Secretary (Home) and others
477
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.06.2003

BEFORE
THE HON'BLE SUNIL AMBWANI, J.

Civil Misc. Writ Petition No. 20053 of 2003

Ram Saran Goyal

 ...Petitioner
Versus
State of U.P. through Special Secretary
(Home) and others
 ...Respondents

Counsel for the Petitioner:
Sri S.M. Haider Zaidi

Counsel for the Respondents:
S.C.

Constitution of India, Article 226-Judicial
Review-Scope-High
Court
while
exercising writ jurisdiction cannot form a
different opinion as an appellate courtimpugned order quashed.

Held- Para 9

This Court while exercising powers of
judicial review, cannot form a different
opinion or sit in appeal over the order. It
can only interfere where the committee
has not considered the case; relied upon
some irrelevant materials or has failed to
take into consideration the materials
which were relevant to the matter. The
fact
that
the
petitioner
was
recommended
for
police
medal
for
gallantry was one of the circumstance
but that cannot be said to conclusive
reason to arrive at a decision.

(B) Service Law- Out of turn promotion-
Petitioner posted as Sub-Inspector- G.O.
dated 3.2.1994 providing out of turn
promotion
to
only
those
showing
exemplary courage and bravery in an
encounter
with
some
notorious
or
hardened
Criminals
or
for
showing
courage or bravery in their arrest or for
taking risk in performance of duty-In
present
case
impugned
order
of
Committee
showing
that
in
joint
operation in comparison to heavy force
and weapons, there were four CriminalsThree of them made good their escape-
From one Criminal shot dead only a
Single barrel gun and a pistol were
recovered-Committee further found that
neither
of
police
personals
either
individually or collectively demonstrated
any such exemplary courage or bravery,
which may entitle them out of turn
promotion- Award of Police Medal for
gallantry may be one of consideration for
out of turn promotion on ground of
exemplary courage and bravery or taking
risk in performance of duties, but that by
itself cannot be conclusive proof to form
an opinion for bravery and couragePetition dismissed.

Held- Para 10

The award of police medal for gallantry
may be one of the consideration for out
of turn promotion on the ground of
exemplary courage and bravery or taking
risk in performance of duties, but that,
by itself, cannot be a conclusive proof to
form an opinion for bravery and courage.
Case Law Referred:
Krishna Kumar Pundir V. State of U.P., 2001
(3) A.W.C. 2163

(Delivered by Hon'ble Sunil Ambwani, J.)

1. Petitioner is at present posted as
Sub Inspector, Civil Police, Kanpur
Nagar. He joined the services on 16th
January, 1984. In the year 1999, petitioner
was posted at Fatehgarh. An office
message was communicated to him on
27.10.1999 by the Senior Superintendent
of Police, Farrukhabad for immediate
rushing to Village Ishapur. Petitioner
immediately rushed to the spot with
additional police force and was engaged
in operation in which hardened criminal
Nem Kumar alias Bilaiya was flushed out
from inside a house where he had taken
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
478
shelter and had opened fire. Petitioner
sustained injuries in his forehead. He was
immediately
taken
to
the
District
Hospital, Farrukhabad where he was
treated and lateron shifted to Priya
Hospital, Kanpur.

2. The encounter was widely
reported and that petitioner along with
other police personals, engaged in the
encounter,
were
recommended
for
awarding police medal for exhibiting
extraordinary
courage,
gallantry
and
bravery. Sri Rajeev Krishna, Senior
Superintendent of Police, Fatehgarh has
also
recommended
and
forwarded
petitioner's for out of turn promotion.
Vide
notification
dated
27.3.2002,
petitioner was declared for award of
police medal by the President's Secretariat
for gallantry. Government Orders dated
3.2.1994 and 19.1.1995 provide for out of
turn promotion to those police officers
who show exemplary courage and bravery
in performance of their duties.

3. By impugned order dated
1.3.2001, the Superintendent of Police
(Establishment)
U.P.
had
informed
petitioner that the matter of his out of turn
promotion vide Government Order dated
3.2.1994
along
with
other
police
personnel's, involved in the encounter,
was considered by a committee. The
Committee
has
considered
all
the
documents
and
after
taking
into
consideration
all
the
facts
and
circumstances, refused to recommend
petitioner and other officers for out of
turn promotion. By this writ petition,
petitioner has prayed for quashing the
impugned
communication/order
dated
1.3.2001 as well as for directing the
respondents to promote petitioner out of
turn to the post of Inspector for showing
extraordinary gallantry and courage in the
encounter dated 27.10.1999.

4. I have heard Sri S.M. Haider
Zaidi for petitioner and learned standing
counsel for the respondents.

5. For the reasons given below, this
writ petition is dismissed at the admission
stage.

6. Learned counsel for petitioner
submits that petitioner sustained injuries
on his forehead and neck. The Senior
Superintendent
of
Police
in
his
recommendation
mentioned
that
petitioner
has
shown
extra-ordinary
courage and bravery and this fact needs
no further enquiry inasmuch as on the
same footing, petitioner and other police
officers involved in the encounter of
hardened criminal, were recommended
for police medal for gallantry. Petitioner
has relied upon a judgment of this Court
in Krishna Kumar Pundir Vs. State of
U.P. (2001 (3) AWC 2163).

7. Learned standing counsel, on the
other hand, submits that a committee of
senior police officers has been constituted
to consider each and every case on its
own merit. The Government Order dated
3.2.1994 provides for out of turn
promotion to only such Constables, or
Sub Inspectors/Platoon Commanders of
the Police who have shown exemplary
courage and bravery in the encounter with
some notorious or hardened criminals or
for showing courage and bravery in their
arrest, or for taking risk in performance of
their
duties.
The
committee
has
considered the merits of the present case
and has given reasons for refusing out of
turn promotion to the police personnel's,
including petitioner, who were involved
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2 All] Ram Saran Goyal V. State of U.P. through Special Secretary (Home) and others
479
in
the
encounter.
These
reasons,
according to the learned standing counsel,
have been given on the basis of relevant
materials available on record and that this
Court cannot substitute its own opinion as
an appellate authority or to review the
order.

8. In the present case, the impugned
order shows that the committee found that
under the leadership of the Senior
Superintendent of Police, Fatehgarh;
Superintendent of Police; four Circle
Officers; three Sub Inspectors and many
Station Officers alongwith large number
of police and P.A.C. personnel's were
included. Out of this group, twenty four
officers were armed with modern and
power-full weapons, viz; A.K.-47 Rifles
and S.L.R.'s with which they fired upon
the criminal. In comparison of this heavy
force and weapons, there were four
criminals. Three of them made good their
escape, and only one was shot dead from
whom only a single barrel gun and a
pistol were recovered. In the joint
operation and firing, although some police
personnel's received injuries but neither of
them, either individually or collectively,
demonstrated
any
such
exemplary
courage or bravery which may entitle
them out of turn promotion.

9.
I
have
gone
through
the
documents, annexed to the writ petition,
including the F.I.R., injury report and
recommendation. Petitioner was only a
member of Police party involved in the
encounter. The first information report
shows that he had fired four shots from
his pistol. Hand grenades were thrown in
the room in which Nem Kumar alias
Bilaiya was hiding. He was armed only
with a single barrel gun and a country
made pistol which were recovered from
the room where he was hiding. The
operation, in general, was single sided
affairs
in
which
the
police
party
surrounded the criminals. The facts given
in the F.I.R. and the recommendation
does not show that petitioner showed any
such bravery or courage or took initiative
either on the direction of leader of the
police party, or on his own, in the
operation. He may have sustained injury
but that does not appear to have been
caused in demonstration of some extraordinary part taken by petitioner in the
operation, where three criminals escaped
and one was killed, and thus it cannot be
said that any one of them either
individually or collectively, demonstrated
any such exemplary courage or bravery.
This Court while exercising powers of
judicial review, cannot form a different
opinion or sit in appeal over the order. It
can only interfere where the committee
has not considered the case; relied upon
some irrelevant materials or has failed to
take into consideration the materials
which were relevant to the matter. The
fact that the petitioner was recommended
for police medal for gallantry was one of
the circumstance but that cannot be said
to conclusive reason to arrive at a
decision.

10. Gallantry has been defined as
dashing
bravery;
showily
attentive
behavior to women; a compliment made
to a woman flirting with her (New
Lexicon Webster's Dictionary). The same
dictionary defines bravery as courage, and
courage has been defined as the capacity
to meet danger without giving way to
fear. The exemplary courage and bravery
as such requires something more that
being gallant. The award of police medal
for gallantry may be one of the
consideration for out of turn promotion on
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INDIAN LAW REPORTS ALLAHABAD SERIES [2003
480
the ground of exemplary courage and
bravery or taking risk in performance of
duties, but that, by itself, cannot be a
conclusive proof to form an opinion for
bravery and courage.

11. For the aforesaid reasons, I do
not find any ground to interfere with the
impugned order. The writ petition is
dismissed.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.06.2003

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE RAJES KUMAR, J.

Civil Misc. Writ Petition No. 3305 of 2003

Animesh Jain

...Petitioner
Versus
Home Secretary U.P., through State of
U.P. and Another.
...Opposite Party

Counsel for the Petitioner:
Sri C.M. Shukla
Sri C.B. Shukla

Counsel for the Opposite Party:
Sri R.S. Maurya
A.G.A.

Constitution
of
India-
Article
226maintainability against the Government
Officers or the employees of the State-if
filled against the State and the State is
not impleaded, the writ not maintainable
(Held in para )

Case law referred:
AIR 1965 277
AIR 1976 SC 2538
AIR 1964 SC 669
(2003) 3 SCC 472
AIR 1977 SC 1701

Held- Para 13

Writ is not maintainable against the
Government officers or the employees of
the State, it lies only against the State
and if State is not impleaded, the writ is
not maintainable.

(Delivered by Hon'ble Dr. B.S.Chauhan, J.)

1. This writ petition has been filed
for seeking a direction to the Home
Secretary of the State of Uttar Pradesh to
transfer the investigation to the C.B.C.I.D.
in Case Crime No. 92 of 2003 Under
Section 302 I.P.C. relating to Police
Station Adarsh Mandi, Muzaffarnagar.

2. The present writ petition has been
filed on the ground that the petitioner
does not expect a fair investigation by the
police for the reasons that the Area is
dominated by the Jats and they are
pressurizing the investigating Agency to
involve the petitioner. Therefore, the
investigation may be transferred to the
C.B.C.I.D.

3. The Learned A.G.A. has raised
preliminary
objection
regarding
the
maintainability of the writ petition as it
has been filed impleading only respondent
no. 1 i.e., The Home Secretary, U.P.
Lucknow, through State of U.P. It has
been submitted by him that the State has
not been impleaded as a respondent and
the writ cannot be entertained against the
officer of the State without impleading the
State as has been held by the Court's time
and again.

4. In Ranjeet Mal Vs. General
Manager, Northern Railway, New Delhi
& Anr, AIR 1977 SC 1701, the Hon'ble
Apex Court considered a case where the
writ petition had been filed challenging
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