IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH CIVIL WRIT PETITION 20038 OF 2008 DECIDED ON :27-11-2008 Ram Singh son of Shri Phool Singh ....Petitioner versus The State of Haryana and others ....Respondents CORAM : HON'BLE MR.JUSTICE MEHTAB S GILL HON'BLE MR.JUSTICE K KANNAN Present: Shri J.S.Maanipur, Advocate, for the petitioner K KANNAN, J 1.A police constable was dismissed from service on 11-03-1993 for the gross misconduct of habitual absence after enquiry. He has been hovering around Courts and before other authorites with appeals, revisions and writ petitions incessantly. The same degree of alacrity if he had shown either during service or during initial enquiry, perhaps he may have come by the position that he finds himself placed now. The writ petition seeks for a Mandamus to direct the order of dismissal made on 11-03- 1993 to be treated as one of compulsory retirement with all consequential benefits permissible under the law. The other relief that he claims is the quashing of several orders passed by the disciplinary authority and by the authorities in the successive hierarchies that have disposed of his memorials against him. 2.It is not his case that there had been any lapse in the issuing of show- cause notice or in the procedures adopted by the disciplinary authorities. His contention is that the Courts have always interpreted Rule 16.2 of the Punjab Police Rules, 1934 as requiring the disciplinary authority to consider the length of service and the effect of retiral benefits whenever an employee faces the prospective dismissal from service. By relying upon the decision of the Division Bench of this Court in Ex Constable Tarsem Singh versus State of Punjab and others 1996(2) RSJ 599, the petitioner wants to contend that the punishment imposed for having remained absent for a period of 366 days by removal from service was liable to be interfered with when the Court found that the punishment inflicted for allegations which did not form part of charge sheet and which adopted procedures that were contrary to the principles of natural justice, was CWP 20038 of 2008 --2-- liable to be set aside. He made particular reference to Rule 16.2 of the Punjab Police Rules where this Court has held that mere absence from duty could not be treated as an act of gravest misconduct as to warrant the punishment of dismissal. According to the petitioner, he had joined the department as Constable in the year 1971 and the dismissal effected without taking note of the service for 11 years for over 21 years was grossly unjust. 3.We would have no difficulty in following the decision of the Bench in the interpretation that it has made if this case could have been brought within the four corners of the principle of law laid down by several bench decisions of this Court while interpreting Rule 16.2 of the Punjab Police Rules. On the other hand, this case of constable whose conduct has been found to be unsatisfactory does not to avail to him any sympathetic consideration. The first order of dismissal which was passed on the basis of the report of the Enquiry Officer where the disciplinary authority had particularly referred to this aspect in paragraph 3 of the order reads as follows :- “The next plea put forth by the defaulter regarding the provisions PPR 16.2(1) is also untenable as the defaulter has a checkered service record. He has a long spell of wilful absences. This all proves him total unfit for retention in the police force, as he has proved not to be corrigible. It is true that the defaulter has a long service i.e. more than 20 years service, but, in my view, that cannot be any bar in teaching a lesson to such a delinquent official as the defaulter has proved to be. As such, the decision of the Hon'ble Supreme Court of India in Rama Kant Misra versus The State of U.P. (1983) (1) SLR-135 does not apply in this case. In view of the above, the reply of the defaulter has been found quite unsatisfactory. Since the defaulter is also absenting himself now-a-days and the instant departmental enquiry has been completed against him ex-parte, therefore, the defaulter could not be provided an opportunity of personal hearing before me. However, I am convinced on going through the departmental enquiry file that the defaulter has nothing to defend himself. Had he anything to produce in his defence, he might have turned up and defend himself adequately. All this makes me think that the defaulter is little anxious about the consequences of the departmental enquiry. As regards the quantum of punishment likely to be inflicted upon CWP 20038 of 2008 --3-- the defaulter, I have taken into consideration every pros and cons of the matter, including the statements of prosecution witnesses, and the findings returned by the enquiry officer, but found nothing favourable to the defaulter. The police is a disciplined force, in which the presence and alertness of every member, irrespective of rank or position, are required round-the-clock. Any laxity on any part of the force member may prove disastrous. Especially, during the period to which the absence of the defaulter relates, the police remained face to face to counter terrorism. The absence of the defaulter in such a period cannot be taken lightly. As such, the misconduct of the defaulter is inexcusable and there is no point of showing any leniency towards him. As such, after pondering over the whole issue, I do not find any reasons for scaling down the proposed punishment in respect of the defaulter and, as such, hereby order dismissal of the defaulter from service with immediate effect.” 4.The disciplinary authority had taken particular note of even the fact that the delinquent had deliberately stayed away at every stage of the proceedings before the enquiry officer. The disciplinary authority also took notice of the fact that it was a crucial time when the police had perforce to counter a terrorism and the unauthorised absence during the said period was a gross dereliction. Even the appellate authority had specifically adverted to the conduct of the petitioner which impelled the authorities to take strict view of his conduct and particularly of the fact that the petitioner who was posted in the police station, Panchkula wherefrom on 08-11-1988 he was deputed to the Sessions Court, Ambala for producing the file of Case Number 171 of 1988 for offence under section 406 IPC but he did not report back continuously for duty without any leave or permission and having perused all the past records and conduct, the appellate authority was of the opinion that there was no scope for interference. The revision submitted to the Director General of Police referred to the fact that the authority had carefully gone through the revision petition, departmental enquiry filed along with other relevant documents and he had found that the various pleas taken by the petitioner have been found to be devoid of any merits. 5.Petitioner had not left the matter there to reside at the disposal of the writ petition. He had also filed the memorandum to the Home Secretary Home Department when he was directed to consider his memorial and passed suitable orders by a direction from the High Court in CWP 10758 of 2007. The Authority viz the CWP 20038 of 2008 --4-- Financial Commissioner and Principal Secretary, while disposing of the memorial vide his order dated 04-01-2008 held that he had carefully considered the memorial filed by the petitioner against the order of dismissal of the services of the petitioner but still he found no ground to interfere with it. No doubt, he has stated that there is no provision for memorial under the Rules. The counsel for the petitioner challenges, by reference to appendix 11 relating to the Rules regarding submission of memorial, that 'Memorial' as contemplated by the Rules shall include petitions, letters and applications of the nature of memorial. These instructions apply to memorials addressed to the Governor of Punjab or the State Govt. by persons who have been in civil services to the Punjab Govt. in respect of matters arising out of such employment and who are or were subject to the rule making power of the Governor. The memorials shall be in addition to and not in derogation of rules governing the conditions of service. The memorial is required to be submitted through the Head of the Department to which the memorialist belongs or belonged. The Home Secretary has stated that he has considered the contention of the petitioner but he has found no scope of interference with the decision taken already by the disciplinary authority. Although his observation that there was no provision for any memorial under the Punjab Police Rules, was not correct. The Principal Secretary had considered the representation but still found that there was no ground for interference. 6.We are unable to persuade ourselves to take a different view from how the disciplinary authorities have considered the issue and we are of the view that there is no merit in the writ petition warranting a fresh consideration of all the aspects which have been pressed into service in the writ petition. 7.This writ petition is, therefore, dismissed as devoid of merits. Sd/- Sd/- {Mehtab S Gill} {K.Kannan} Judge Judge 27-11-2008 IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH CIVIL WRIT PETITION 18405 OF 2008 DECIDED ON :26-11-2008 Inder Pal Singh ....Petitioner versus State of Haryana etc. ....Respondents CORAM : HON'BLE MR.JUSTICE MEHTAB S GILL HON'BLE MR.JUSTICE K KANNAN Present: Shri S.S.Dinarpur, Advocate, for the petitioner K KANNAN, J 1.The petitioner who claims to be an outstanding Sports person finds himself sidelined in comparison to how the Government has treated while proclaiming the attainments of respondents 5 and 6 in rewarding them with posts in the Police Department as DSPs. The complaint of the petitioner is that he is more meritorious than respondents 5 and 6 and that the appointments offered to respondents 5 and 6 are illegal and arbitrary and seeks for a direction that respondents 1 to 4 should fill up the posts of DSPs earmarked for outstanding sports persons by giving due publication affording an opportunity of consideration to all the eligible candidates from sports quota as per law. 2.The States of Punjab and Haryana have been under arclights of adulation in the recent past when the gold and bronze medals were won at the Olympics 2008 made at China through emiment sports persons from Punjab and Haryana. The idea of rewarding emiment sports persons with Government employments accords with the lofty State policy of encouraging sports persons. Achievement in even individual events at an international level is not merely seen as personal to the sports person but brings laurels to the entire nation. Respondent No.5- Joginder Sharma wrote himself into cricketing history in T20 match at South Africa when he had “played a decisive role in the death” and helped his team and his country to gain victory. Respondent No.6-Mamta Kharab was an outstanding hockey player who captained India and decorated with 'Bhim Award' by the State Government and 'Arjun Award' by the Government of India. Ms.Kharab and Women's hockey have become syonymous after the sterling performance at Thailand in Asia Women's Hockey CWP 18405 of 2008 --2-- Tournament in 2007. The Government had decided to reward them with appointments in the police category as DSPs. The decision had been taken in a meeting of the Council of Ministers and the objection of the petitioner is that he is also an outstanding sports person and the appointments made only to respondents 4 and 5 smacked of favouritism. 3.It is an admitted case that there are provisions in the Haryana Police Rules, 2002 in the matter of appointments to the outstanding sports persons. The State Government has provided 3% of the total permanent posts of Deputy Superintendent of Police which shall be reserved for outstanding sports persons of Haryana that win medals at the Olympic games and win laurels to the country and the State of Haryana vide notification GSR.10/Const./Art/309/2008 dated 24-06-2008. The complaint of the petitioner is that there has to be a transparent policy and it cannot be done merely on a choice of some Ministers who consider among some sports persons alone as meritorious without any objective criteria. It is not denied that respondents 5 and 6 were truly emiment personalities in the arena of sports and their selection per se cannot be questioned. If according to the petitioner, he is also an eminent person and he could have also been selected, it is a matter which should be considered by the appropriate authorities and it would not be possible for us to sit in judgement as to who among the sports persons deserve appointments. Rule 18 of the Haryana Police Services Rules, 2002 reads as follows :”Where the Governor is of the opinion that it is necessary or expedient to do so, it may, by order, for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons.” There is nothing vague about the rules which make room for encouraging sports through rewarding eminent persons in sports by government appointments without having to call explanations through Employment Exchange and paper advertisements. It is essentially a matter of state of largesse and unless it is shown to be a grossly discriminatory and arbitrary mode of reckoning, that should fall foul of Article 14 of the Constitution, there could be no scope for judicial intervention in the choice of persons who are rewarded with State appointments . The validity of the Rule providing for relaxation of the provisions is also not under challenge before us. We do not wish to join issues on whether the petitioner is more meritorious than respondents 5 and 6 or not. The petitioner may have good ground for consideration in his own right but the choice of respondents 5 and as having been found fit for appointment to the posts of DSPs cannot be a matter for our adjudication.Several averments made in the writ CWP 18405 of 2008 --3-- petition that the appointments of respondents 5 and 6 had been made without reference to any advertisement or writing test or any other form of physical test or interview as a ground for annulment, their appointments seem puerile. There is further no fundamental right to reservation and no person could demand that any particular posts reserved for sports persons should be considered in his favour unless he points out to a complete lack of authority for exercising the option to appoint some persons under the said category. We have already pointed out the fact that the Punjab Police Rules provide for appointments to eminent sports persons and it sets out sufficient guidelines for resorting to the rules by following the relevant procedures. 4.The writ petition is wholly without merits and deserves, therefore, to be dismissed. It is accordingly dismissed. Sd/- Sd/- {Mehtab S Gill} {K.Kannan} Judge Judge 26-11-2008 IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH CIVIL WRIT PETITION 12734 OF 2007 DECIDED ON :3-12-2008 H.C.Ram Singh ....Petitioner versus State of Haryana and another ....Respondents CORAM : HON'BLE MR.JUSTICE MEHTAB S GILL HON'BLE MR.JUSTICE K KANNAN Present: Shri Rajbir Shehrawat, Advocate, for the petitioner Shri Harish Rathee, Senior DAG, Haryana K KANNAN, J 1.The order of reversion of the petitioner who is a Head Constable, to the post of Constable on the ground that his service record was not good, is challenged by the petitioner on the ground that there was inherent error in characterising the petitioner as ad-hoc promotee, who could not have been tossed about and pushed down to the grade by specious reference to some adverse entry in his Annual Confidential Reports. 2.Admittedly, the petitioner was promoted as Head Constable on the basis of seniority on 16-04-1993 against specific vacancies but the order of appointment (Annexure P-1) referred to his promotion as on ad-hoc basis. That order also stated that the petitioner along with another person by name Ajit Singh was adjusted in the place of Head Constables Ram kishan and Ram Chander respectively who had been promoted to the rank of ASI. Order of reversion came to be passed on 01-03-2005 after a show-cause notice on 03-12-2004 on the ground that the confirmation case of officiating Head Constable had been taken up but since his ACR from 05-11-2000 to 31- 03-2001 had been commented upon adversely and his service record being unsatisfactory during the period of probation he was liable to be reverted by virtue of the fact that under Punjab Police Rules 13.18, an officiating official was required either to be confirmed in the rank when a permanent post was available to him or to be reverted to his substantive rank. A permanent post was available with effect from 31-08-2003 but he could not be confirmed due to the unsatisfactory record during the period of probation. 3.The petitioner challenges all expressions found in the impugned order CWP 12734 of 2007 --2-- dated 01-03-2005. According to him, there is no ad-hoc appointment under the Punjab Police Rules and the appellation used even under the first order of promotion on 16-04- 1993 that he was being posted as Head Constable on ad-hoc basis was clearly wrong. Reliance on the decision of the Hon'ble Supreme Court in Rishal Singh versus State of Haryana reported in 1994(2) SCT 556 has been made which laid down that there was no rule for promotion on ad-hoc basis and in the absence of any such rules no ad- hoc promotion could be made. A promotion that is made under Rule 13.8(ii) will always have to be taken as a regular post though specifically said to be on ad-hoc or temporary basis. The petitioner therefore, contended that since he had been promoted even on 16-04-1993 against a vacant post that fell vacant on account of the promotion of one of the persons to still higher post as ASI , his promotion must be understood only as on permanent basis. Even if it were to be taken that it was merely an ad-hoc engagement and that he was on probation, the period of probation itself could not be for an indefinite period to be treated as such till the order of 2005 to take up the issue for making him permanent against a post that fell vacant in 1993. The Punjab Police Rules stipulates an outer limit of two years as a period of probation and if no order was passed revoking the probation, it should be taken that as confirmation to the post that the particular person held. The petitioner further contended that on 16-04-1995 i.e. on the completion of two years, he was bound to be taken as confirmed on the post of Head Constable and there was no scope for undertaking a fresh appraisal in the year 2005 to confirm the probation or not. Such an exercise undertaken by the IGP, according to the petitioner was clearly erroneous. 4.We are in full agreement with the contentions raised by the counsel for the petitioner as regards the twin submissions that the initial appointment although called as ad-hoc engagement in the absence of statutory rules for such ad-hoc promotion , his appointment was bound to be considered only as a regular promotion. The continuity on the post as a Head Constable could not be taken as on probation for as late as 2005 to enable the respondents to inflict the order of reversion on the specious plea that his conduct in the year 2000 was not satisfactory .If there had been any adverse entries in his ACR that would stand in the way of his promotion, it could be only in respect of any fresh consideration when a particular entry in the ACR during the said period would be relevant. Therefore, we hold that the petitioner held the post as Head Constable not on ad-hoc basis and neither the treatment of the petitioner as on probation nor the consideration for reversion could be upheld as tenable. The impugned CWP 12734 of 2007 --3-- order of the respondent is legally unsustainable and we uphold the claim of the petitioner and quash the impugned order dated 19-02-2005. 5.The writ petition under the circumstnaces is allowed in the above terms. Sd/- sd/- {Mehtab S Gill} {K.Kannan} Judge Judge 3-12-2008 IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH CIVIL WRIT PETITION 6918 OF 2008 DECIDED ON :3-12-2008 ASI Dayanand No. 1792, Faridabad ....petitioner versus State of Haryana and others ....Respondents CORAM : HON'BLE MR.JUSTICE MEHTAB S GILL HON'BLE MR.JUSTICE K KANNAN Present: Shri S.N.Yadav, Advocate, for the petitioner Shri Harish Rathee, Senior DAG,Haryana K KANNAN, J 1.Adverse remarks in the ACRs for the period between 01-04-1996 to 10- 01-2007 is sought to be expunged by the judicial intervention at the instance of the petitioner on the ground that the entries are against the departmental instructions about the manner of recording of adverse remarks in the column of integrity. 2.The case deserves disposal on a short point that the incident that had coloured the preception of reviewing an officer was the fact that there had been some criminal complaint and departmental proceedings pending against the petitioner. The criminal complaint had been withdrawn; even the departmental proceedings that had been initiated against him, were ultimately entered in his favour on the ground that the charges had not been proved. The only plea of the petitioner is that the entries in the ACR would require to be removed in view of changed circumstances. The petitioner has drawn our attention to the entries from 1984 to 31-03-1990 when no adverse entries had been made but on the other hand the petitioner had been described as a good officer consistently. Only during the period from 07-07-1990 to 31-03-1991 the remark had been that there was departmental enquiry on the charge of dereliction of his duty and then again from 1991 to onwards he had been graded as an Officer of low standard. But for the period from 01-04-2006, there were adverse entries in his ACR which is what is impugned before us. The departmental enquiries during the said period when the entries had been adverse, have been shown before us as having concluded in favour of the petitioner. We are not entering into the merits as to whether the advese entries should continue or not and when we put it across the issue of fresh CWP 6918 of 2008 --2-- consideration in the light of the outcome of the departmental enquiry, counsel for the respondents has no objection to the same. 3.Under the circumstances, we set aside the orders impugned in the writ petition, namely, the orders of respondents Nos.3 and 5 and direct reconsideration of the entries in the light of ultimate outcome of the departmental enquiries undertaken during the relevant period. 4.The writ petition is disposed of in the above terms. Sd/- sd/- {Mehtab S Gill} {K.Kannan} Judge Judge 3-12-2008