Civil Writ Petition No.11091-CAT of 2001 [1] IN THE HIGH COURT OF PUNAJB AND HARYANA AT CHANDIGARH Date of Decision: February 13, 2008 Daya Nand ............ Petitioner versus Union of India and others ............. Respondents CORAM HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3.Whether the judgment should be reported in the Digest ? -.- Present: Shri A.K. Chopra, Senior Advocate with Shri N.D. Kalra, Advocate for the petitioner Ms. Alka Chatrath, Advocate for respondents No. 1 to 3 Shri N.P. Mittal, Advocate for respondent No. 4 HEMANT GUPTA, J. The challenge in the present writ petition is to the order dated 26.06.2001, Annexure P-2, passed by the Chandigarh Administrative Tribunal, Chandigarh Bench, Chandigarh (hereinafter to be referred as “the Tribunal”) whereby an application filed by Om Parkash, respondent No.4 herein, under section 19 of the Administrative Tribunal Act, 1985 (hereinafter to be referred as “the Act”) was allowed. By virtue of the order passed by the Tribunal, order dated 09.03.1994, Annexure A-12, promoting the petitioner to the post of Deputy Superintendent of Police was quashed and a review Departmental Promotion Committee was ordered to be Civil Writ Petition No.11091-CAT of 2001 [2] convened to consider the matter in its true perspective afresh in accordance with law. The petitioner joined as Assistant Sub Inspector of Police on 5.5.1972 and confirmed as Assistant Sub Inspector on 27.4.1976. He was promoted as Sub Inspector on 11.10.1979 after he qualified Upper School Course in August, 1978. On the other hand, respondent No.4 Om Parkash was appointed as Assistant Sub Inspector on 21.05.1973 and confirmed on 7.7.1980. The said respondent was promoted as Sub Inspector on 7.7.1981. Though the petitioner was entitled to be confirmed as Sub Inspector in October, 1981 but it was delayed and confirmed on 23.1.1986, whereas respondent No. 4 was confirmed as Sub Inspector on 18.11.1985. Later on, the petitioner was further promoted as Inspector on 4.4.1986 and Om Parkash, respondent No.4, was promoted on 24.12.1986 and confirmed on 24.12.1988. It is, thus, alleged and not disputed that, in fact, the petitioner is senior to respondent No. 4 as Inspector. It is the case of the petitioner that he was given ad hoc promotion as Deputy Superintendent of Police vide order dated 03.08.1992 for a period of six months. It is pointed out that on 17.05.1992, Shri R.S. Gupta, IPS, the then Inspector General of Police, arrived at Chandigarh airport at 11.00 a.m. It is pleaded by the petitioner that Shri Gupta was accompanied by his friend Shri D.K. Gupta, a businessman. Shri R.S. Gupta got their luggage traced in the aircraft and under the direction of the Captain it was handed over to the loader from the aircraft directly and put the same in the car of his friend. Such action of the then Inspector General of Police was objected by the petitioner. The Inspector General of Police felt annoyed and used unparliamentary language. The petitioner has attached a copy of Civil Writ Petition No.11091-CAT of 2001 [3] letter dated 25.05.1992 with the writ petition as Annexure P-1. Annexure P- 1 is a letter addressed to the Inspector General of Police, Chandigarh, by the petitioner in response to letter dated 20.05.1992. It has been pointed out that there was no official information received by the airport security staff regarding the arrival of the Inspector General of Police but still necessary arrangements were made from the available staff to receive at the ladder point. It is the categoric case of the petitioner that Shri R.S. Gupta, the Inspector General of Police, felt annoyed when he arrived at Chandigarh airport on 17.05.1992. It may be noticed that no reply has been filed on behalf of the Chandigarh Administration. It is the categorical case of the petitioner that Shri Gupta was a member of the Departmental Promotion Committee for placement of the Inspectors on List “G” and he spoiled the Annual Confidential Report for the year 1992-93 about 10 days prior to the meeting of the Departmental Promotion Committee. It is also pleaded by the petitioner that the meeting of the Departmental Promotion Committee was delayed by the then Inspector General of Police to see that respondent No.4 also became eligible. It was on acquiring eligibility by respondent No.4, meeting of the Departmental Promotion Committee was held on 12.09.1993. Though the Departmental Promotion Committee in its meeting on 12.09.1993 recommended Jaspal Singh and Om Parkash, respondent No.4, for being brought on “G” List and made recommendation for promotion to the rank of Deputy Superintendent of Police but such recommendation of the Departmental Promotion Committee was not accepted. Subsequently, a meeting of the Departmental Promotion Committee was held on 7.1.1994. In the said meeting, recommendations were made to take the petitioner on Civil Writ Petition No.11091-CAT of 2001 [4] “G” List and for promotion to the post of Deputy Superintendent of Police after finding that till 1992, for the years under consideration, his 50% Annual Confidential Reports were good. Before the said meeting, Shri R.S. Gupta ceased to be the Inspector General of Police of Chandigarh. On the basis of recommendations of the Departmental Promotion Committee held on 07.01.1994, the petitioner was promoted as Deputy Superintendent of Police vide order dated 4.4.1992 i.e., the date when the vacancy in the cadre of Deputy Superintendent of Police became available for the Scheduled Caste candidate. Aggrieved against the order promoting the petitioner to the post of Deputy Superintendent of Police, respondent No.4 invoked the jurisdiction of the Tribunal. The learned counsel for the Chandigarh Administration, purportedly on the basis of record, conceded that the proceedings of the Departmental Promotion Committee approving the name of respondent No.4 for promotion to the post of Deputy Superintendent of Police had not correctly noticed the gist of the Annual Confidential Reports relating to the said officer. It was held by the Tribunal to the following effect:- “ 11. When the matter came up for hearing on 1.6.2000, learned counsel appearing for the official respondents after verifying the records, conceded that the proceedings of the DPC approving the name of respondent No.4 for promotion to the post of Deputy Superintendent of Police had not correctly noticed the gist of the Annual Confidential Reports relating to the said officer inasmuch as for the year 1988-89, the Departmental Promotion Committee had noticed ACR of the respondent No.4 as “Good” which in fact is “AVERAGE”. Same is the position relating to the Annual Confidential Report for the year 1989-90 and that apart from the Departmental Civil Writ Petition No.11091-CAT of 2001 [5] Promotion Committee did not consider the record of the officer for six years as was required under the relevant rules and the instructions. Counsel went on to submit that in view of the discrepancy found, a meeting of the Departmental Promotion Committee was held on May 28, 2001 and May 29, 2001 to review the case relating to promotion to the post of Deputy Superintendent of Police . As per the proceedings of the Departmental Promotion Committee held on May 28, 2001 and May 29, 2001, Inspector Daya Nand, Respondent No. 4 who was ordered to be promoted as Deputy Superintendent of Police in view of the Departmental Promotion Committee held in January, 1993, he had earned average reports for all the six years except for the period 23.10.1990 to March 30, 1991 and 1.4.1991 to 16.1.1991 for which he has assessed as Good while on deputation with CITCO. However, for these periods also be had been assessed by the officers in the Police Department as “Average”. Not only this, he had been conveyed adverse remarks for the year 1.4.92 to 31.3.1993. As against this, the applicant had been graded as “A” during the years 1987-88, 1989-90, 1990-91, 1991-92 and 1992-93. He was, however, assessed as “B” for the period 1988-89”. On the basis of the said finding, the Tribunal found that the promotion of the petitioner has been ordered on wrong premises. Therefore, the same was set aside and a review Departmental Promotion Committee was directed to be convened to consider the matter in its true perspective afresh in accordance with law. Learned counsel for the petitioner has vehemently argued that the Tribunal has examined the Annual Confidential Report as if the promotion to the post of Deputy Superintendent of Police is based on merit. The rule of promotion is seniority-cum-merit and once the petitioner is not found unfit for promotion, he is entitled to be promoted. On the basis of Civil Writ Petition No.11091-CAT of 2001 [6] Annual Confidential Reports, he was rightly recommended for promotion by the Departmental Promotion Committee. It is also contended that the finding recorded by the Tribunal that the Annual Confidential Report of the petitioner was not correctly noticed is, in fact, incorrect. Ms. Chatrath, learned counsel for the Chandigarh Administration, has produced the record of the Annual Confidential Reports of the petitioner and also minutes of the Departmental Promotion Committee. The Annual Confidential Reports have a column “Class of reports”. A, B and C are the three classes mentioned therein. From the perusal of the record of the Annual Confidential Reports of the petitioner, we find that the allegation of the petitioner that it was Shri R.S. Gupta, the then Inspector General of Police, Chandigarh, who had spoiled his Annual Confidential Report is substantially apparent from the record. We would like to reproduce the extract of the Annual Confidential Reports for the period from 1.4.1987. Firstly, we shall reproduce the record without the report of Shri R.S. Gupta, the then Inspector General of Police. The relevant extract reads as under:- Sr.No. Period Class of Report Overall Grading 1 1.4.1986 to 31.03.1987 B - 2 1.4.1987 to 31.03.1988 B Average 3 1.4.1988 to 31.03.1989 B - 4(a) 1.4.1990 to 16.08.1990 A Good Police Officer 4(b) 17.08.1990 to 19.10.1990 No report 4(c) 23.10.1990 to 31.03.1991 As Security Officer, CITCO, on deputation. Recorded by Shri D.V. Bhatia, Managing Director, CITCO, on 30.01.1992. - Good 5(a) 01.04.1991 to 09.07.1991 On deputation with CITCO as DSP, Security. Endorsed by Shri D.V.Bhatia on 28.05.1992. - Good 5(b) 10.07.1991 to 16.11.1991 Endorsed by Shri D.V. Bhatia on 28.05.1992. - Good Civil Writ Petition No.11091-CAT of 2001 [7] 5(c) 25.11.1991 to 31.03.1992 A Good Police Officer Note: Shri R.S. Gupta, former Inspector General of Police, recorded “Average Officer”, graded “B” on 16.09.1994. 6 01.04.1991 to 31.03.1992 Recorded by Shri S.P. Security B Average Shri R.S. Gupta vide his communication dated 28.08.1993 sent the Annual Confidential Reports of the petitioner for the period from 1.4.1989 to 31.3.1990 and from 20.10.1990 to 31.03.1991. He also sent the Annual Confidential Report of Om Parkash, respondent No.4, from 1.4.1992 to 31.03.1993 and from 1.4.1993 to 12.08.1993 as special report. Sr. No. Period Class of Report Overall Grading 1 01.04.1989 to 31.03.1990 Recorded on 27.08.1993 - Average Officer 2 22.10.1990 to 31.03.1991 For the period of deputation with CITCO. Recorded on 27.08.1993 by Shri D.V. Bhatia, Managing Director, CITCO, with the remarks of Shri R.S. Gupta, Inspector General of Police, recorded on 27.08.1993 as “Just an Average Officer”. - Average A perusal of the above chart shows that for the period from 22/23.10.1990 to 31.03.1991, there are two reports recorded by the same officer Shri D.V. Bhatia, IAS, a former Managing Director of CITCO. In the first report dated 30.01.1992, the overall assessment is good but in the subsequent report by the same officer on 27.08.1993, overall assessment recorded is average. The subsequent report has been forwarded to the Home Secretary, Chandigarh Administration, by Shri R.S. Gupta, the then Inspector General of Police, on 28.08.1993. Still further, report for the period 1.4.1989 to 31.03.1990 has been recorded by Shri HKL Dewan, former Superintendent of Police, CID & Security, Union Territory, Civil Writ Petition No.11091-CAT of 2001 [8] Chandigarh, on 27.08.1993 which was again forwarded by Shri R.S. Gupta on 28.08.1993 as mentioned above. Incidentally, the meeting of the Departmental Promotion Committee did not recommend the petitioner for empanelment on List “G” in its meeting held on 12.09.1993 in which Shri R.S. Gupta was one of the members. A perusal of the record further shows that the paging in the file of Annual Confidential Report with the receipt of letter dated 20.08.1993 has undergone changes which is apparent from the cuttings in the pagination of the file. Since no earlier Annual Confidential Report for the period from 1.4.1989 to 31.3.1990 is available on the record, therefore, we proceed with the assumption that it is average report with 'B' as class of report. But report dated 27.08.1993 for the period from 22.10.1990 to 31.03.1991 cannot be comprehended in any manner. During the said period, the petitioner was on deputation with CITCO and the former Managing Director of the organisation has recorded on 30.01.1992 agreeing with the remarks of the General Manager that the overall assessment is good. The subsequent report has purportedly been furnished at the asking of Shri R.S. Gupta, the then Inspector General of Police, by the former Managing Director of CITCO. For the said period, the petitioner was on deputation. Therefore, the remarks of the then Managing Director and the then Inspector General of Police is totally contrary to the earlier report. We find that the second report could not be furnished but was furnished as an attempt by the senior functionaries to damage the career of the petitioner. It may be noticed that for the subsequent period from 1.4.1991 to 31.3.1992, the petitioner was on deputation with CITCO from 1.4.1991 till 16.11.1991.In the report for the period from 01.04.1991 to 09.07.1991 Civil Writ Petition No.11091-CAT of 2001 [9] and from 10.07.1991 to 16.11.1991, petitioner has been graded “good” by Shri D.V. Bhatia, the same Managing Director of the CITCO, on 28.05.1992. In view of the said fact, the report dated 27.08.1993 furnished for the earlier period is crude attempt by the senior functionaries to tinker with the service record of the petitioner. We say no more. Still further, for the period from 25.11.1991 to 31.03.1992, the Superintendent of Police has graded A with remarks good officer but Shri R.S. Gupta, the then Inspector General of Police, has recorded as average officer and graded B on 16.09.1994 i.e., after relinquishing the charge as Inspector General of Police, Chandigarh, and after the meeting of the Departmental Promotion Committee on 07.01.1994. Since the vacancy was of the year 1992, Annual Confidential Reports of six years are required to be examined in view of Rule 6.2 of Punjab Police Service Rules, 1959 read with the guidelines on Departmental Promotion Committee issued by the Government of India. The relevant rule reads as under:- Rule 6(2) of the Punjab Police Service Rules, 1950 “ 6 (2) Appointments by promotion shall be made by the Government from Inspectors brought on list “G” which will be a list of officers considered for promotion to the rank of Deputy Superintendent of Police, prepared by Government in consultation with the Commission. The names in this list prepared at one time shall be arranged according to their inter se seniority. This list will be maintained in two parts; Part I (for officers from the Executive line) and Part II (for officers from the Prosecution line). Guidelines on Departmental Promotion Committees “ 6.1.4. Government also desires to clear the Civil Writ Petition No.11091-CAT of 2001 [10] misconception about “Average” performance. While “Average” may not be taken as adverse remarks in respect of an officer, at the same time, it cannot be regarded as complimentary to the officer, as “Average” performance should be regarded as routine and undistinguished. It is only performance that is above average and performance time is really noteworthy which should entitle an officer to recognition and suitable rewards in the matter of promotion. 6.2.1. Confidential Rolls are the basic inputs on the basis of which assessment is to be made by each D.P.C. The evaluation of CRs should be fair, just and non-discriminatory. Hence - (a) The D.P.C. Should consider C.Rs for equal number of years in respect of all officers considered for promotion subject to (c ) below. (b) The D.P.C. should assess the suitability of the officers for promotion on the basis of their service record and with high particular reference to the C.Rs for 5 preceding years. However, in cases where the required qualifying service is more than 5 years, the D.P.C. should see the record with particular reference to the C.Rs for the years equal to the required qualifying service. (If more than one C.R. has been written for a particular year, all the C.Rs for the relevant year shall be considered together as the C.R. for one year ). (c ) and (d) xx xx xx xx xx (e) The D.P.C. should not be guided merely by the overall grading, if any, that may be recorded in the C.Rs but should make its own assessment on the basis of the entries in the C.Rs, because it has been noticed that some times the overall grading in a C.R may be inconsistent with the grading under various parameters or attributes. 7. Non-Selection Method: Where the promotions are to be made on 'non- selection' basis according to Recruitment Rules, the D.P.C. Civil Writ Petition No.11091-CAT of 2001 [11] need not make a comparative assessment of the record, of officers, and it should categorise the officers as 'fit' or 'not yet fit' for promotion on the basis of the assessment of their record of service. While considering an officer 'fit', guidelines in para 6.1.4 should be borne in mind. The officers categorised as 'fit' should be placed in the panel in the order of their seniority in the grade from which promotions are to be made”. Rule 13.17 of the Punjab Police Rules reads as under:- “ 13.17 Annual Confidential Reports:- (1) Superintendents shall prepare and submit annually to the Deputy Inspector- General, after obtaining the District Magistrate's remarks thereon, reports in form 13.17 on the working of all Upper Subordinates serving under them. These reports shall be submitted to reach the Deputy Inspector-General on or before 15th April. Deputy Inspectors-General and Assistant Inspector- General, Government Railway Police, will add their own remarks and retain reports on Assistant Sub-Inspectors and Sub-Inspectors who are not on list 'F' in their own offices. Reports on all Inspectors, Sub-Inspectors on list 'F' and Sergeants will be forwarded by Deputy Inspectors-General and Assistant Inspector General, Government Railway Police, so as to reach the Inspector General on or before the 15th May. In the cases of Indian Inspectors of the General Line, Sub Inspectors on list 'F' and all Sergeants, Deputy Inspectors-General and Assistant Inspector-General, Government Railway Police, will attach with each report so submitted a duplicate copy thereof. Any remarks recorded by the Inspector-General on the original report will be copies in his office on the duplicate prior to the return of the latter report for record with the duplicate personal file maintained in accordance with Rule 12.38 (1). (2) Reports shall be of three kinds, A. B and C, and shall be marked as such:- A reports.---- Reports in which for special reasons it is Civil Writ Petition No.11091-CAT of 2001 [12] recommended that promotion be given irrespective of seniority. B reports.-----Reports in which it is recommended that promotion be given in the ordinary course of seniority. C reports. ----- Reports in which it is recommended that the officer be passed over for promotion or that the taking of departmental action on general grounds of inefficiency or unsatisfactory conduct be considered. In 'A' and 'C' reports detailed reasons must be given for the recommendations made. Xx x x xx xx xx xx” As per record, the gist of Annual Confidential Reports in the minutes of the Departmental Promotion Committee held on 7.1.1994 reads as under:- “ 1987-88 Average 1988-89 Good 1989-90 1.4.1990 to Very Good 16.08.1990 22.10.1991 to Average 31.03.1991 01.04.1991 to Average 31.03.1992 01.04.1992 to 'B' 31.03.1993 He was conveyed adverse remarks in 1992 for which his representation is under consideration with the Home Secretary. Till 1992 he has 50% ACR as good. The D.P.C. recommends to take him on 'G' list and for promotion to the post of D.S.P.” In view of the summary of reports reproduced above, the overall grading should be as under:- Civil Writ Petition No.11091-CAT of 2001 [13] Sr. No. Period Class of Report Overall Grading 1 01.04.1987 to 31.03.1988 B Average Officer 2 01.04.1988 to 31.03.1989 B - 3 01.04.1989 to 31.03.1990 - Average 4(a) 01.04.1990 to 16.08.1990 A Good Police Officer 4(b) 23.03.1990 to 31.03.1991 - Good 5 01.04.1991 to 16.11.1991 By CITCO 21.11.1991 to 31.03.1992` - B Good Average Note: We have excluded the report sent by Shri R.S. Gupta for the period from 20.10.1990 to 31.03.1991 as there is already earlier report furnished by the Managing Director of CITCO and also report dated 1.4.1991 to 31.03.1992 wherein he has been graded as “B” though while working in CITCO, he has been graded as “Good”. The said chart is not to reassess the petitioner for list “G” but to, prima facie, demonstrate the patent errors, which renders the decision of the Tribunal as wholly against the record. The summary of the above would show that the petitioner has got either “B” or “A” grade. He has got no “C” grade. “B” grade is fit for promotion in terms of Rule 13.17 of the Punjab Police Rules, 1934. As a matter of fact, all other officials in the meeting held on 7.1.1994 have been classified with grades “B” or “A” but it was only the petitioner who has been classified with other remarks and not the grades which have been given to him. In fact, the entire file of the Departmental Promotion Committee shows that the candidates have been considered with their respective grades and not on the basis of the remarks. Even if the reports given subsequently and taken into consideration, still it is apparent that the petitioner was never declared unfit for promotion. The rule of promotion being seniority, the petitioner was rightly found fit for recommendation to List “G” and for promotion by the Departmental Promotion Committee. The Civil Writ Petition No.11091-CAT of 2001 [14] Tribunal has carried out the exercise as the promotion is based upon merit principle. The entire basis of consideration by the Tribunal is contrary to the rule of promotion which is seniority-cum-merit. Since the basis of consideration by the Tribunal is factually and legally not correct, we set aside the order passed by the Tribunal and restore the order dated March 09, 1994 promoting the petitioner w.e.f. 4.4.1992. The original record pertaining to the Annual Confidential Reports and that of Departmental Promotion Committee of the petitioner, which has been produced by Ms. Alka Chatrath, learned counsel for Chandigarh Administration, be returned to her. The writ petition disposed of accordingly. (HEMANT GUPTA) JUDGE February 13, 2008 (MOHINDER PAL) ks JUDGE