# Sushil Kumar Dubey v. State of U.P. through Secretary Department of Home & others

- **Citation:** (2001) 2 ILRA 274
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-01-09
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-dubey-v-state-of-u-p-through-secretary-department-of-home-others-39903
- **Pages:** 6

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
274
court suffers from no legal infirmity and,
therefore, it has to be upheld.

12. Lastly, it was urged by the
learned counsel for the petitioner that the
lower appellate court has not awarded any
amount of compensation to the petitioner
for vacating the released accommodation.
In para 14 of the counter affidavit, the
landlord has expressed his willingness to
pay the requisite amount of compensation
to the petitioner. I feel that a sum of
Rs.5000 (Rupees Five Thousand only)
should
be
appropriate
amount
of
compensation which the landlord is
required to pay to the petitioner tenant for
vacating the released accommodation.

13. The writ petition is dismissed
without any order as to costs. It is
however, made clear that the order of
release passed by the lower appellate
court on 9.1.2001 in rent appeal no. 156
of 1982 arising out of P.A. case no. 820 of
1980 shall become executable soon after
the landlord pays a sum of Rs. 5000/-
(Rupees
Five
Thousand
only)
as
compensation to the petitioner and if he
refuses to accept, deposits the same with
the Prescribed Authority.

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By the Court

1. The case of the petitioner - Sushil
Kumar Dubey, who is Sub Inspector of
Police and was, at the relevant time,
posted in district Agra was recommended
for out of turn promotion pursuant to the
Government order no. 665 (1) Pi-1-24/94
dated 3.2.1994 for having displayed
exemplary courage and bravery risking
his own life in the course of an encounter
with a dreaded and notorious criminal,
namely, Alya alias Ali Mohd. alias Pappu
Pahalwan. The incident had taken place in
the following circumstances.

2. On 19.1.1997, a prominent
businessman- brick kiln owner and leader
2All] Sushil Kumar Dubey V. State of U.P. through Secretary Department of Home & others 275
of Kisan Kamgar Party - Chaudhary
Nepal Singh - was kidnapped with his
Maruti
car
by
certain
unknown
miscreants. The incident gave rise to
Crime No. 33 of 1997 under Section 364
I.P.C
registered
at
P.S.
Kotwali,
Bulandshahar city. On getting a tip from
an informer, the Senior Superintendent of
Police, Bulandshahar organised a raid on
25.2.1997 and positioned four separate
police parties comprising in all 31 police
officials, including four Sub Inspectors of
Police, viz, Rajesh Kumar Dwivedi,
Ashok Kumar Verma, Jitendra Kumar
Singh and the present petitioner - Sushil
Kumar Dubey. At about 11.35 A.M. on
noticing a moving white Maruti car
coming from the side of Aligarh Rajesh
Kumar Dwivedi, Sub Inspector of Police
signalled it to stop. It sped up. The
presence of the abductee Chaudhary
Nepal Singh in the car was noticed and
consequently Rajesh Kumar Dwivedi, S.I.
pursued
the
same.
The
miscreants
swerved the car on a Kucha pathway. It
struck up in sand near a bush. Thereupon,
desperadoes, five in number, alighted
from the car and dragging the abductee
moved swiftly towards the jungle. There
was exchange of fire. Police parties
surrounded the miscreants and asked them
to surrender. Rajesh Kumar Dwivedi and
Ashok Kumar Verma, Sub Inspectors of
Police sustained fire arm injuries in the
process of getting the abductee released.
The other party members opened fire with
the result three miscreants were laid to
death on the spot. The other two were
successful in escaping. Chaudhary Nepal
Singh, adbuctee was recovered. Three
criminals who were killed in encounter
included Alya alias Ali Mohd alias Pappu
Pahalwan.

3. The gallantry on the part of the
police officials was praiseworthy and it
received
wide
publicity
and
commendation. Recommendation for out
of turn promotion of the concerned police
officials was made which was met with
favourable response at all the stages till it
reached the High Powered Committee
constituted
for
the
purposes
of
consideration of out of turn promotion.
On 2.5.1998, the committee scrutinised
the entire matter and after taking into
consideration all the facts, implications
and ramifications, did not recommend
promotion of any one of the police
officials mainly on the ground that it was
a group action and no particular person
was
responsible
for
the
successful
outcome of the raid. This decision
obviously incensed the participants and
resulted in dissatisfaction and frustration
in the rank and file. A proposal was sent
for reconsideration of the matter for out of
turn promotion of Sub Inspectors Rajesh
Kumar Dwivedi, Ashok Kumar Verma,
Jitendra Kumar Singh, and Constables
Ram Kumar and Jitendra Singh through
the Inspector General of Police Meerut
Zone. The Committee in its meeting dated
26.10.1998 reviewed and reconsidered the
matter and after appropriate examination
and analysis of the documents and the
facts, turned down the recommendation.
The Director General of Police discussed
the matter with the members of the
Committee and constituted a committee
headed by Deputy Inspector General of
Police, Meerut for in-depth study of the
matter and to report about the individual
role played by the police officials in the
entire episode. The Committee sponsored
and recommended the name of the above
named three Sub Inspectors and two
Constables for out of turn promotion in its
meeting held on 23.12.1998 to the
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
276
Director General of Police who approved
the same on 24.12.1998. The name of the
petitioner
did
not
figure
in
the
recommendation.
He
made
a
representation and sought out of turn
promotion but was not met with any
better luck.

4. By means of this writ petition
under Article 226 of the Constitution of
India, the petitioner has prayed for a writ
to command the respondent to grant him
out of turn promotion w.e.f. 27.12.1998
and to permit him to function as Inspector
in the Civil Police.

5. Counter and rejoinder affidavit
have been exchanged. Record of the
proceedings of the committee constituted
for the purpose of consideration of out of
turn promotion under Government order
dated 3.2.1994 was produced.

6. Heard Sri Ashok Khare, Senior
Advocate, for the petitioner and the
learned Standing counsel. Shri Ashok
Khare pointed out that there was a clear,
unambiguous
and
positive
recommendation at all the stages in favour
of the petitioner also for out of turn
promotion and non-consideration of his
case which resulted in ultimate denial of
promotion of the petitioner is arbitrary.
Sri Khare maintained that since other
three Sub Inspectors of Police have been
given the benefit of out of turn promotion,
the petitioner, in all fairness, should have
been extended the same benefit. The
learned standing counsel urged that out of
turn promotion has been granted to five
out of 31 police officials on the basis of
specific
role
played
by
them
in
challenging and encountering of the
criminals and recovery of the abductee. It
was pointed out that Rajesh Kumar
Dwivedi and Ashok Kumar Verma, Sub
Inspectors
of
Police
received bullet
injuries which indicated that they had
risked their lives to get the abductee
released
from
the
clutches
of
the
criminals. Sri Ashok Khare pointed out
that the third Sub-Inspector - Jitendra
Kumar Singh, who has been given out of
turn promotion, did not receive any fire
arm injury and the claim of the petitioner
is exactly on similar footing.

7. I have given anxious consideration
to the matter. Promotion as understood
under service law jurisprudence means
advancement in rank, grade or both. It is
always a step towards advancement to a
higher position, grade or honour. It is
normal incident of service. The provision
for promotion increases efficiency in
public service while stagnation reduces
efficiency
and
makes
the
service
ineffective. In Council of Scientific and
Industrial Research V. K.G.S. BhattA.I.R. 1989 SC -1972, the Hon'ble
Supreme Court observed:

"It is often said and indeed, adroitly,
an organization public or private does not
'hire a hand' but engages or employs a
whole man. The person is recruited by an
organization not just for a job, but for a
whole career. One must, therefore, be
given an opportunity to advance. This is
the oldest and most important feature of
the
free
enterprise
system.
The
opportunity
for
advancement
is
a
requirement
for
progress
of
any
organization. It is an incentive for
personnel development as well. (See
Principles of Personnel Management by
Flipo Edwin B. 4th Ed. P. 246). Every
management
must
provide
realistic
opportunities for promising employees to
move upward. 'The organization that fails
2All] Sushil Kumar Dubey V. State of U.P. through Secretary Department of Home & others 277
to develop a satisfactory procedure for
promotion is bound to pay a severe
penalty in terms of administrative costs,
misallocation of personnel, low morale,
and ineffectual performance, among both
non-managerial
employees
and
their
supervisors.' (See Personnel Management
by Dr. Udai Pareek p. 277). There cannot
be any modern management much less
any
career
planning,
man-power
development, management development
etc., which is not related to a system of
promotions.
(See
Management
of
Personel in Indian Enterprises by Prof.
N.N. Chatterjee Ch. 12, p. 128.

Since efficiency in public service is
an essential part of the machinery of a
welfare State, promotional policies having
the effect of stagnation either by reason of
the terms of the policy or by not providing
for promotion will result in reducing such
efficiency
and
making
the
service
ineffective.
Such
a
policy
would
obviously be unfair, unjust and against
public
interest
and,
therefore,
unreasonable
and
arbitrary
violating
Article 14 and 16 of the Constitution."

8. Although an employee has no
right to be promoted, he has a right to be
considered for promotion. The right to be
considered for promotion is one of the
'matters
relating
to
employment
or
appointment' within the meaning of
Article 16 (1) of the Constitution of India.
The operation of Article 14 and 16 in
matters relating to employment is now too
elementary and hardly needs further
discussion. The Fundamental Right to
equality in Article 14 and 16 of the
Constitution,
therefore,
prohibits
the
application of unreasonableness or unfair
standards in the matter of considering an
employee
for
promotion.
The
discrimination
or
unfairness
or
unreasonableness in the rules or norms or
policies relating to promotion may be
with regard to criteria for consideration,
i.e.,
determination
of
seniority
or
determination
of
merit.
Article
14
specifically obligates the State to ensure
equality of opportunity in matters relating
to employment or appointment to any
office under the State. Consideration for
promotion is directly related to the
concept of opportunity in Article 16 and
the constitutional requirements of equality
with
regard
to
such
opportunity
necessarily
means
exclusion
of
arbitrariness
in
the
course
of
consideration for promotion, for example,
arbitrary deviation from rules or norms. A
statutory rule or a statutory norm or a
policy or an executive order relating to
promotion
cannot
transgress
any
constitutional restriction. In the context of
the principle under consideration, it is
necessary to emphasise that Article 16 of
the
Constitution
expressly
provides
equality of opportunity in the matters
relating to appointment (which includes
promotion also) to any office under the
State.

9. In the background of the
constitutional prescription contained is all
pervasive Article 14 and 16 of the
Constitution, the policy of out of turn
promotion
has
to
be
viewed.
The
Government order dated 3.2.1994 for out
of turn promotion is applicable to the
employees of the police department. The
safety, security, peace and tranquillity of
the citizens is to be maintained at all costs
by the police force. There are various
serious hazards in the way of police
officials in providing security to the
public, in general, and individuals, in
particular, and maintaining peace and
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
278
tranquility in the society. They have to be
prepared to remake any sacrifice to meet
any eventuality. With a view to ensure
that every police official has zeal and
enthusiasm
in
exhibiting
exemplary
courage,
bravery
and
gallantry,
a
provision for out of turn promotion has
come to be made by way of incentive. Out
of turn promotion is granted to those
police
officials
who
have
shown
extraordinary courage and bravery by
risking their lives in the performance of
their duties.

10. In the present case, the stand
taken by the petitioner is that he has been
discriminated in the matter of out of turn
promotion by not considering his case at
all, and in any case, he has been denied
equal treatment as has been extended to
other Sub Inspectors. As said above, there
were 31 members who formed different
parties to combat the menace of the
dreaded notorious criminal Alya alias Ali
Mohd. alias Pappu Pahalwan who had
extended
his
criminal
activities
in
different States. Out of them, the names
of eight persons (four Sub Inspectors of
Police and four Constables) were initially
recommended for out of turn promotion.
The petitioner was one of them. The
recommendation
was
turned
down
obviously on the ground that it was a
group action and individual specific role
was not discernible. On subsequent
reconsideration
of
the
matter,
the
recommendation was confined to five
persons
only,
namely,
three
Sub
Inspectors of Police and two Constables
and it was at this stage that the name of
the petitioner came to be omitted. Sri
Ashok Khare took pains to point out that
in the cadre of Sub Inspectors, Jitendra
Kumar Singh has been granted out of turn
promotion and since the case of the
present petitioner was on the same footing
as that of Jitendra Kumar Singh, he
cannot be denied promotion on any
perceivable ground. This submission is
founded on the basis that though the two
Sub Inspectors - Rajesh Kumar Dwivedi
and Ashok Kumar Verma have received
bullet injuries as a result of the cross fire,
the present petitioner as well as Jitendra
Kumar Singh did not receive any injury. It
was maintained that if Jitendra Kumar
Singh could be granted promotion why
not petitioner? Call of equable treatment
was made. It was also urged that the
petitioner is entitled for promotion in
view of the decision of this court in
Ashok Rana Vs. Home Secretary U.P.
Shashan
-2000(4)
E.S.E.
2713
(Allahabad). I have thoroughly studied the
said
decision
and
find
that
the
observations made therein do not squarely
apply to the facts of the present case. In
the instant case, the question is whether
the case of the petitioner can be
distinguished from that of Jitendra Kumar
Singh, who has been granted out of turn
promotion. The report of the Committee
which was ultimately accepted by the
Director General of Police does not
indicate that the case of the petitioner was
ever considered. His case had been
recommended at all the stages. Things
would have been different if the case of
the petitioner had been considered and
then rejected on the ground of the specific
role played by him. It is quite possible
that on account of positioning of the
petitioner at the time of the raid, his role
may have been negligible or otherwise
beyond the ambit of the expression
'exemplary courage and bravery'. If on
the ground of parity only, promotion is
granted to the petitioner, the remaining 25
persons would spring up to claim out of
turn promotion. Granting of promotion to
2All] Arvind Kumar Rai and others V. State of U.P. and others
279
all would frustrate the very purpose for
which Government order for out of turn
promotion
has
been
issued.
The
Government order cannot be reduced to a
farce and cannot be banked upon for
normal promotion.

11. The power of judicial review
does not extend to interfering with a
policy
providing
for
out
of
turn
promotion. This court is not in a position
to say that which particular person has to
be granted out of turn promotion and
which one has to be denied. Ultimately,
departmental wisdom has to prevail. The
past
antecedents
of
the
employee
concerned are also to be looked into. If an
employee is not having neat past, or his
service record is not up to the mark, he
would perhaps be denied the benefit of
out
of
turn
promotion
howsoever
exemplary courage or bravery he might
have exhibited. There have to be certain
parameters which have to be adopted in
granting out of turn promotion.

12. As said above, since the case of
the petitioner was earlier recommended
for out of turn promotion, his case
undoubtedly
was
required
to
be
considered by the Committee. It was
necessary to record reasons for denying
the benefit of out of turn promotion to the
petitioner
as
his
case
had
been
recommended at all the levels. If the
individual role of the petitioner is not, in
any manner, inferior to the role played by
Jitendra Kumar Singh, Sub Inspector,
who has been granted out of turn
promotion and all other things remaining
the same, then certainly, the petitioner
would also be entitled for out of turn
promotion. All the above facts can well be
taken
into
consideration
by
the
departmental
authorities.
To
ensure
fairness and equable treatment, the case of
the petitioner needs reconsideration.

13. In the conspectus of the above
facts, the writ petition is finally disposed
of with the direction that the Deputy
Inspector General of Police, Karmik, U.P.
Police
Headquarters,
Allahabad
-
respondent no. 5 shall place the necessary
material before the committee formed
under
the
Government
order
dated
3.2.1994 for consideration of the matter of
the
petitioner
in
the
light
of
the
observations made above. The committee
shall meet for the purpose within a period
of six months from the date of production
of a certified copy of this order before the
respondent no. 5.

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