A.K. Gohil, J.
This Writ Appeal has been filed by the State u/s 2 (1) of the Madhya Pradesh Uchcha Nyayalay (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005 against the order dated 27-2-2007 passed by the learned Single Judge in W.P. No. 579/2004 (S).
The only grievance of the appellant/State is that the learned Single Judge has committed illegality in giving a direction to grant of out of turn promotion to the respondent w.e.f. 27-5-2003. The learned Single Judge, instead, ought to have directed the Screening Committee to reconsider the case of the respondent for promotion.
There is no dispute about the facts of the case that on 1-12-2002 the respondent took active part in the Anti-Dacoity Operation with a gang headed by Hanni @ Hanif Musalman as in-charge of the Police Station, Jigana District Datia and thereafter there was an encounter with the gang and the respondent took active part in the encounter with the gang leader Hanni @ Hanif Musalman in which he was killed. It was further the case that under the Regulation 70-A of the M.P. Police Regulations of the Police Manual on taking active part in the distinguished Anti-Dacoity Operation, any officer is entitled for President''s Police Medal for gallantry or he can be considered for promotion. Since the case of the respondent was strongly recommended by the departmental officer but was not considered and was turned down for grant of out of turn promotion by Screening Committee, though without assigning any reason, therefore, the submission of Shri Brijesh Sharma is that the State has filed this appeal on this legal point of principle that the Writ Court should only direct for consideration of the case by the Government and should not give direction that he be treated as promoted out of turn with effect from 27-5-2003 and in support of his submission, learned Government Advocate placed reliance on a decision in the case of
Generally speaking promotion is a management function; but it may be recognized that there may be occasions when a Tribunal may have to interfere with promotions made by the management where it is fell that persons superseded have been so superseded on account of malafides or victimisation. Even so after a finding of malafides or victimisation, it is not the function of a Tribunal to consider the merits of various employees itself and then decide whom to promote or whom not to promote. If any Industrial Tribunal finds that promotions have been made which are unjustified on the ground of malafides or of victimisation, the proper course for it to take is to set aside the promotions and ask the management to consider the cases of superseded employees and decide for itself whom to promote, except of course the person whose promotion has been set aside by the Tribunal.
He also placed reliance on a decision in the case of
In reply, Shri M.P.S. Raghuvanshi, learned Counsel for the respondent submitted that under the facts and circumstances of the case, the High Court is empowered to pass such an order with a view to do justice with the party. He submitted that if by Annexure R-l, dated 27-5-2003 Screening Committee has not taken proper decision and denied the right of out of turn promotion to the respondent, then certainly Court may pass suitable orders for his promotion directly in appropriate cases, therefore, the order passed by learned Writ Court is justified. Learned Counsel for the respondent also placed reliance on a decision of the Supreme Court in the case of
7. It is true that normally the Court, in exercise of its power under Articles 226/227 of the Constitution of India, after quashing the impugned order should remand the matter to the authority concerned particularly when such authority consists of experts for deciding the issue afresh in accordance with the directions issued and the law laid down by it but in specified cases, as the instant case, nothing prevented the Court from issuing directions when all the facts were admitted regarding the eligibility of respondent No. 1, and his possessing the requisite qualifications. Remand to the authorities would have been merely a ritual and ceremonial. Keeping in mind the lapses attributable to the Commission which had failed to take appropriate action despite recommendation made in favour of respondent No. 1, the learned Single Judge as also the Division Bench of the High Court felt it necessary to declare respondent No. 1 promoter with effect from 1-2-1985. We do not find any illegality or error of jurisdiction.
After hearing learned Counsel for the parties, we have considered the facts of the present case. Admittedly, the respondent was working on the post of Sub-Inspector on 1-12-2002 and he was also in-charge of Police Station Jigana, District Datia. He received an information with regard to operation by a notified dacoits gang headed by Hanif Musalman, who was a notified dacoit of T-5 and a reward of Rs. 25,000/- was declared on him. The respondent alongwith the Superintendent of Police Mr. K.P. Khare and other members of the Police reached on the spot and ultimately there was an encounter with the gang leader Hanif Musalman. In the encounter, Hanif Musalman was killed by the fire made particularly by Mr. Mahendra Kumar Sharma. The case of the respondent for out of turn promotion under Clause 70-A of the M.P. Police Regulation was recommended by the SP to the DIG, DIG had also recommended the case to the Inspector General of Police, who had also recommended and ultimately the matter was referred to the Screening Committee. It is also important to mention here that the DIG as well as IG of the Police both also recommended that the Superintendent of Police Mr. K.P. Khare be awarded Presidential Medal for gallantry and on the recommendation of the Department, the medal was awarded to the Superintendent of Police, but the Screening Committee summarily turned down the request for grant of out of turn promotion by order dated 27-5-2003 without assigning any reason.
We have seen the recommendations of the Superintendent of Police, Datia (Annexure R-2) recommendation by IG, Chambal Range (Annexure R-3) and the report of the ministerial inquiry dated 13-1-2003 (Annexure P-5), Superintendent of Police Datia has mentioned that Mahendra Kumar Mishra was alongwith him at the time of encounter and he supported him shoulder to shoulder and put his life into peril and was continuously involved in firing on the dacoit and as a result of continuous firing, Hanif Musalman, gang leader of T-5 was shot dead. He was fully devoted to the cause and exhibited tremendous courage. It was he, who fired on the dacoit. It was submitted that earlier in the similar matter when the three other dacoits of the same gang were shot dead by the police officers, the police officers, those who were involved in Anti-Dacoit Operations were awarded out of turn promotion. But in this case the Committee has simply rejected the claim without assigning any reason. We have perused the Regulation 70-A, which reads as under:
70. S.I. Promotion of.- The system of promotions in the subordinate executive ranks will be as laid down in the supplement to the Madhya Pradesh Police Gazette, dated 5-10-1960 as given in Appendix ''A''.
70-A. Notwithstanding anything contained in Regulation 70, a Constable may be promoted to the rank of Head Constable by the Superintendent of Police with the prior approval of the Directors General of Police and a Head Constable to the rank of Assistant Sub-Inspector by the Deputy Inspector General of Police with the prior approval of the Director General of Police, if he has distinguished himself in anti-dacoit operations, law and order situations of shooting competitions or in some other field of duty or who has been awarded the President''s Police Medal for Gallantry or for meritorious/distinguished services, if he considers him suitable for promotion. Similarly, the Inspector General of Police may promote an Assistant Sub-Inspector to the rank of Sub-Inspector and a Sub-Inspector to the rank of an Inspector on similar grounds if found suitable for promotion and subject to the prior approval of the Director General of Police. The number of Officers promoted under this Regulation shall not exceed 10 per cent.
From the aforesaid Regulation, it is clear that if a person is not otherwise found unsuitable for promotion, he can be granted out of turn promotion if he was involved in anti-dacoit operations. Therefore, there is no dispute that in the aforesaid encounter which was held on 1-12-2002. Respondent-Mahendra Kumar Mishra took an active part and acted courageously and shot dead the T-5 gang leader Hanif Musalman and was entitled for out of turn promotion on the aforesaid ground. On the same ground if the benefit was extended to the other police officers, the respondent was also entitled for the same. Therefore, we are of the view that learned members of the Screening Committee have wrongly discarded the case of the respondent without assigning any reason whereas it was obligatory on the part of the Committee to assign reasons for doing so. Therefore, in such circumstances, learned Single Judge was justified in quashing the aforesaid resolution (Annexure R-1), dated 27-5-2003 passed by Screening Committee.
On this root question, whether Writ Court should directly order for promotion of an employee or should only give direction to consider his case for promotion, as per the decision of the Constitutional Bench, it is true that generally in such cases the Court should not order for directing promotion to the employee and direction should be given to consider the case. As per Regulation 70-A, if the appellant is found suitable for promotion he can be granted out of turn promotion. It is also true that in the return, State has not stated anything that the respondent was not found otherwise unsuitable for promotion on any other ground. Therefore, if the respondent was found suitable then he was entitled for out of turn promotion. While rejecting the case of the respondent, Screening Committee has not recorded such a finding that he is not fit for promotion. Under Article 226 of the Constitution of India while issuing the mandamus the High Court is fully competent in appropriate cases to issue such directions. If the circumstance permits and case is made out legally and if it is found that the person was not otherwise found unsuitable for promotion and a case of discrimination is made out, then certainly there cannot be any embargo on the powers of the High Court to issue such a directions. In this case under the circumstances brought on record and explained in the order, learned Single Judge has already directed to promote the respondent w.e.f. 27-5-2003. Therefore, we do not find any ground to interfere in such direction nor such a direction is contrary to law.
However, it is made clear that at the time of issuing promotion order the respondent shall be free to consider that the respondent is not otherwise unsuitable for promotion.
Consequently, this writ appeal is disposed of accordingly.
