- (1.) THE petitioner is employed in the Central Reserve Police Foree and is posted in 96th Battalion in Ajmer. He participated in the various events of All India Police Games and has won medals in individual as well as team events. All India St. John. Ambulance Competition was held in Jamshedpur (Bihar) from 8/11/1989 to 13/11/1989. For having secured 100% marks in the competition he was awarded gold medal for his individual performance as well as for his performance in the team. In support of his assertion that gold medals were awarded to him, the petitioner has placed on record certificates Annexures 1 and 2. THE petitioner submits that for his performance he was given cash award of Rs. 1,500. Out of this, Rs. 1,000/- was given for his individual performance and Rs. 500/- for his performance in the team event. In terms of the incentive Sheme introduced by the respondents for giving out of turn promotion to the outstanding sportsmen, the petitioner made applications on more than one occasions for being promoted as Sub-Inspector. His request was, however, turned down by the competent authority. A representation made by the petitioner to the Director General, CRPF was also rejected. Having failed in his attempt to persuade the authorities of CRPF to give him out of turn promotion, the petitioner has prayed for issue of a writ of mandamus. THE basis of the claim made by the petitioner is that he secured 2 gold medals in the competition held at the national level and, therefore, he has a right to be promoted as Sub-Inspector in accordance with the incentive scheme. He has also pleaded that a large number of other persons have been given out of turn promotion although some of them did not even qualify to be given out of turn promotion under the incentive scheme. THE respondents have opposed the writ petition. In the first place, they have raised preliminary objection to the entertainability of the writ petition on the ground that the petitioner has failed to avail remedy of revision available to him. In the second place, they have stated that the incentive scheme for promotion to the sportsmen was introduced by the organisation after approval of the Additional Director General. THE candidature of the petitioner was considered for the grant of cash award and in accordance with Rule 1, he was given a sunt of Rs. l,000/ -. THEy have also referred to the incentive scheme circulated on 23. 10. 1987 under the instructions of the Director General, CRPF. According to them, promotion is given from the post of Head Constable to that of Sub-Inspector only, if a person wins two gold medals in individual skill and since the petitioner failed to secure two gold medals, he has no right to be given promotion. Regarding the other persons who have been given out of turn promotion, the respondents have submitted that in some cases promotion had been accorded before the introduction of the incentive scheme vide Circular dated 23/10/1987. In the case of other persons, the competent authority had considered the performance of the individual concerned and it came to the conclusion that promotion deserved to be given out of turn to the individual concerned.
(2.) BEFORE I consider the merits of the case, I deem it proper to first deal with the preliminary objection raised by respondents that the writ petition should be dismissed on the ground that the. petitioner has failed to avail alternative remedy of revision. This objection has been mentioned by me only to be rejected summarily. In the first place, the remedy of revision has not been considered to be alternative remedy even by the Apex Court in Collector of Customs, Cochin vs. A. S. Bava (1) and Beni Shankar vs. Surya Kant Secondly, the writ petition has not only been entertained by the Court, but has been heard on merits. After having heard the learned counsel for both the parties at length on merits of the case, I find little justification for non suiting the petitioner on the technical plea of availability of alternative remedy. Thirdly, the Court has the discreton to entertain or not to entertain a writ petition despite availability of alternative remedy. There is no constitutional embargo against entertainability of a writ petition merely because alternative remedy is available and I do not find any justification to import such restriction on the exercise of power under Art. 226 of the Constitution of India by sheer implication. Having disposed of the preliminary objection, I may now examine the merits of the contention advanced by the learned counsel for the petitioner. Firstly, the argument of the learned counsel for the petitioner is that even though the petitioner has not made the claim for promotion to the post of Sub Inspector in terms of the incentive scheme circulated by the Director General, CRPF vide Circular dated 23/10/1987, the petitioner has a right to be promoted on the post of Sub Inspector. The petitioner has submitted that in terms of para 3 of the formula (Appendix A enclosed to the Circular dated 23/10/1987), the petitioner has a right to be promoted as Inspector because he has won a gold medal at the national level. I find no merit in the submission of the learned counsel for the petitioner. Firstly, no claim has been made by the petitioner in the writ petition for issue of a writ of mandamus to the respondents to promote him as Inspector. In the absence' of a case having been set up in the writ petition, it is not proper for this Court to allow the petitioner to make this claim for the first time at the stage of hearing. Secondly, All India St. John Ambulanee Competition cannot under any circumstance be treated as national games. They cannot even be treated as national level games. The claim for out of turn promotion has to receive literal construction. Unless a person fulfills the conditions enumerated in the said scheme, he cannot be given out of turn promotion. The petitioner has not come with the case that he has won two gold medals at the national level games and, therefore, he cannot make his claim for promotion to the post of Inspector. An alternative argument of the learned counsel for petitioner is that the petitioner has a right to be promoted as Sub- Inspector because he has acquired two gold medals. Shri Bhargava argued that gold medals awarded to the petitioner vide Annexures 1 and 2 are sufficient to entitle him to claim promotion to the post of Sub-Inspector. This argument of Shri Bhargava cannot be accepted for the simple reason that the petitioner has not acquired gold medals at All India Police Games. Next submission of Shri Bhargava is that although persons who have not secured even one gold medal, have been given promotion, the petitioner who has secured two gold medals, has been denied promotion. He has referred to the cases of a number of persons including that of Constable Shankarpal. Shri Bhargava has further submitted that HC Hoshiar Singh was promoted as Sub- Inspector in 1986 on winning a gold medal in the First Aid Competition. He submitted that others have been given promotion under the incentive scheme for the sportsmen and argued that there is no reason not to apply the same yardstick in the case of petitioner. Shri Bhargava invited the attention of Court to para 18 of the writ petition and its reply and submitted that the petitioner has been subjected to hostile discrimination. In reply to the arguments of Shri Bhargava, Shri Balwada contended that HC Hoshiar Singh was promoted as Sub-Inspector for his excellent performance in the First Aid Competition held in the years 1977 and 1984 and the Director General, CRPF had ordered his promotion looking to the provisions of the incentive scheme which was in force in the year 1985. According to Shri Balwada, the scheme introduced by Circular dated 23. 10. 1987 could not be applied to the promotions made in the year 1985. Regarding HC Om Prakash, he stated that he has been promoted as Sub-Inspector during 1989 for his performance and winning medals in All India Police Games because he made excellent efforts to get the position with medal amongst a large number of: athletes who took part in All India Police Games. He was adjudged as best athlete. According to Shri Balwada, performance of each event has its own merit and consideration at various levels and one event cannot be compared with other. Regarding Constable Shankarpal, it has been argued that he was promoted) to the rank of L/nk as he improved his performance at All India Police Games/national' Games and became eligible for promotion. In regard to HC Laxman Singh, it has been stated that he was given promotion to the rank of Sub-Inspector for his outstanding performance and award of "best Shot" medal and the gold medal in Prime Minister's National Combat Shooting Championship held in 1988. I have given my thoughtful consideration to the rival submissions and have perused the contents of para 18 of the writ petition and its reply. It is clear to me that the respondents have not been able to offer any tangible explanation for giving out of turn promotions to HC Om Prakash and Constable Shankarpal. Admittedly, these promotion had been given after 23/10/1987 i. e. the date on which the new incentive scheme came into force. The averments made by the parties in their respective pleadings clearly establish that out of those menetioned in para 18 of the writ petition, at least these two persons did not fulfil the condition of eligibility enumerated in the incentive scheme (Annexure R/2 ). The petitioner has come out with the specific case that Om Prakash had won a silver medal and Shankarpal was promoted even though he did not win any medal. The respondents have not contested this statement made by petitioner. It can, thus, be said that the departmental authorities have themselves thought it proper to make deviation from the provisions of incentive scheme at least in these two cases. I do not wish to say that the competent authority made violation of the scheme, but it is more than evident that the cases of these persons have been dealt with differently. Having taken a decision expressly or impliedly for relaxing the relevant provisions of the incentive scheme in the case of the two persons, there remained no justification for the competent authority to have not followed the same in the case of the petitioner. The petitioner cannot be considered to be in a worst position qua Om Prakash who has secured a silver medal. Similarly, when Shankarpal can be given promotion even without securing medal, there is no justification for denying promotion to the petitioner on the post of Sub-Inspector even though he has secured two gold medals. Having taken a decision to make a deviation from the scheme, competent authority is bound to apply the same standard in the case of the petitioner in order to do compliance with the equality clause enshrined in Arts. 14 and 16 of the Constitution. Since that has not been done, it is reasonable for this Court to conclude that the action of respondents in not giving promotion on the post of Sub-Inspector to the petitioner even when he secured two gold medals, is arbitrary and unreasonable.
(3.) FOR the reasons aforesaid, the writ petition is allowed. The respondents are directed to promote the petitioner to the post of Sub-Inspector, CRPF with effect from 13/11/1989 and to give him all consequential benefits. Petitioner's pay shall be notionally fixed in the grade of the post of Sub-Inspector with effect from 13. 11. 1989. Other benefits shall be admissible to the petitioner from the date of this order. Costs made easy. .;