IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Writ Petition No.11575 of 2008 Date of Decision: November 10, 2009 Jagir Singh .....PETITIONER(S) VERSUS State of Punjab & Others .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. G.S. Bal, Advocate, for the petitioner. Ms. Charu Tuli, Senior Deputy Advocate General, Punjab, for the respondents. . . . AJAI LAMBA, J (Oral) Jagir Singh, Head Constable, serving in Punjab Police has filed this petition under Article 226/227 of the Constitution of India praying for issuance of a writ in the nature of certiorari, quashing Order dated 1.10.2007 (Annexure P-9) whereby benefits given under Order, Annexure P-1 have been withdrawn. Substance of order dated 28.1.2005, Annexure P-1 reads as under:- “....The name of Head Constable Jagir Singh No.759/PTL hereby exempted from passing intermediate School Course at PPA, Phillaur and his name is approved for admission to promotion list D-II (Exemptee) with immediate effect. His name is further approved for promotion to the rank of CWP No.11575 of 2008 [2] Officiating Assistant Sub-Inspector, by exercising powers under P.P.R.13.21, in view of his outstanding performance. 2. Formal orders in this regard will be issued by Dy. Inspector General of Police, Patiala Range, Patiala, if the above said official is not facing any Departmental/ Vigilance enquiry or criminal proceedings.” It has been pleaded that the petitioner joined Punjab Police on 16.12.1980. After passing Lower School Course, the petitioner was granted promotion as Head Constable w.e.f. 21.9.1989 and was confirmed as such on 21.9.1991. Vide Order dated 28.1.2005, Annexure P-1, the petitioner was granted exemption from passing Intermediate School Course. Further the name of the petitioner was approved for admission to promotion list D-II. The petitioner further was approved for promotion to the rank of Assistant Sub Inspector (Officiating) by respondent No.2 i.e. Director General of Police, Punjab, while exercising powers under Rule 13.21 of Punjab Police Rules, 1934 (for short, `the Rules’). Further details are not required to be given in so much as Order dated 28.1.2005 (Annexure P-1) has been withdrawn by virtue of subsequent order passed by the Director General of Police, Punjab, on 1.10.2007 (Annexure P-9). Gist of the first argument addressed by learned counsel for the petitioner CWP No.11575 of 2008 [3] is that as per law laid down, the Director General of Police is required to assign reasons for invoking powers under Rule 13.21 of the aforesaid Rules. Although Annexure P-1 discloses no reason, the order is legal in so much as the reasons have been noticed and recorded on the file. The second argument of learned counsel is that after passing of order, Annexure P-1, the petitioner has been serving. Service rendered by the petitioner is exemplary as is made out from Orders, Annexure P-5 dated 30.7.2005, passed by the Deputy Superintendent of Police, Sub Division, Rajpura; and Annexure P-6 dated 17.8.2005 passed by the Senior Superintendent of Police, Patiala. On the strength of these two documents, it has been argued that the petitioner is entitled to retain the benefits arising out of order, Annexure P-1. The third contention of learned counsel is that once the benefit has been given under Annexure P-1, the same could only be withdrawn in accordance with law, under Rule 13.12(2) of the Rules. Learned counsel for the respondent has pointed out that in a very whimsical manner without assigning any reasons, the exemption was CWP No.11575 of 2008 [4] given as is evident from perusal of order Annexure P-1. It has further been contended that Division Bench of this Court while dealing with CWP No. 18254 of 2004 decided on 15.10.2008, Vibhor Kumar Vs. State of Punjab and Others has held in the following terms:- "We now proceed to deal with the rival contentions of the counsel. A perusal of Rule 13.21 of the Punjab Po- lice Rules shows that the power of relaxation con- tained in the said Rule can be exercised "with respect to any class or category of persons". This apart, while exercising this power, certain reasons have to be re- corded in writing. However, the order passed by the DGP in the present case shows that the power has been exercised not in respect of any class or category but in respect of an individual. Besides, the order passed by the DGP does not specify the reasons for granting the relaxation except that it was in recogni- tion of his outstanding performance. On the other hand, learned counsel for the State has contended that illegal benefit had been conferred upon the petitioner dehors the mandate of statutory rules. From a perusal of the record it is clear that the peti- tioner was granted out of turn promotion while on deputation. However, the order whereby the said rule was invoked, does not given any reasons for exercise of power under the said rule. Needless to say that the DGP could not have invoked rule 13.21 to grant re- laxation to the petitioner, at his whim. The order mush show valid reasons for exercise of this power for pro- moting a police official to a higher rank. In the present case, however, no such reason is discernible from a perusal of the impugned order." It transpires from the judgment of this Court that the order passed under Rule 13.21 of PPR needs to assign reasons within the scope of the provisions of the Rule. Learned counsel for the respondent- CWP No.11575 of 2008 [5] State, on the strength of original record brought to Court for its consideration, states that the facts revealed from the file are surprising. The case of the petitioner for giving benefits under Annexure P-1 was not forwarded by any officer under whom the petitioner had been serving. Rather, the matter was put up on the same day i.e. 28.1.2005 and order Annexure P-1 was passed. No reasons have been assigned for giving benefit to the petitioner while invoking Rule 13.21 of the Rules. It has also been pointed out that it is a cyclostyled order. Rather the noting sheet indicates that it originates on 25.5.2005 when the application was sent back from the office of Director General of Police to Deputy Inspector General of Police. It has further been pointed out that the then Director General of Police namely Mr. A. Siddiqui passed a number of orders of similar nature without consideration of merit of individual case, before the date of his superannuation i.e. 31.1.2005. Order Annexure P-1, in the present case is one such order and had been passed on 28.1.2005. Learned counsel for the petitioner, faced with the original record, concedes that no reasons have been assigned for giving benefits to the petitioner under Order, Annexure P-1. CWP No.11575 of 2008 [6] I have considered various contentions made on behalf of the petitioner. The short question posed is, legality of order, Annexure P-1, per-se, which has subsequently been withdrawn vide impugned order, Annexure P-9. Considering the facts as they emanate from the record viz. no reasons have been assigned for giving benefits to the petitioner, out of turn, I find that the matter is covered by judgment dated 15.10.2008 rendered in Civil Writ Petition No.18254 of 2004, `Vibhor Kumar vs. State of Punjab & Others’, relevant portion whereof has been extracted above. In view of the above, I hold that the Director General of Police could not have invoked Rule 13.21 of the Rules to give approval to the petitioner for promotion to the post of officiating Sub Inspector. I am further constrained to observe that order Annexure P-1 is whimsical and without any basis. The petitioner had never served under the Director General of Police who passed Order, Annexure P-1, and therefore, had no occasion to see the work and conduct of the petitioner so as to term it as “outstanding performance”. The case was put up by the Personal Assistant whereupon CWP No.11575 of 2008 [7] the order had been passed. There are no reasons assigned on the file so as to relax the condition and promoting the petitioner to the rank of Assistant Sub Inspector (Officiating). Although Order Annexure P-1 records that the performance of the petitioner was outstanding, the Director General of Police had no inputs in regard to the work and conduct of the petitioner from the officers under whom the petitioner had served. In view of the above, order Annexure P-1 is clearly arbitrary, unreasonable and unjustifiable. In such facts and circumstances, the first argument of learned counsel for the petitioner holds no merit and the same is rejected. So far as the second argument of learned counsel for the petitioner is concerned, Orders Annexure P-5 and P-6 are dated 30.7.2005 and 17.8.2005 respectively. Subsequent conduct of the petitioner shall not entitle the petitioner to a benefit granted earlier in point of time by virtue of Annexure P-1 dated 28.1.2005. The conduct and quality of service and performance of the petitioner was required to be considered before passing of order. This having not done, subsequent good conduct of the petitioner will not attach reasons and legitimacy to action of CWP No.11575 of 2008 [8] the respondents i.e. to an order passed earlier i.e. Annexure P-1. So far as the third argument is concerned, reference has been made to Rule 13.12 (2) of the Rules, relevant portion of which, when extracted, reads as under:- (2) The conduct and efficiency of men on lists D and E shall be at all times watched with special care. Any officer, who, whether in his substantive rank or while officiating as an Assistant Sub Inspector of Sub-Inspector, is guilty of misconduct of a nature reflecting upon his character or fitness for responsibility, or who shows either by specific acts or by his record as a whole, that he is unfit for promotion to higher rank shall be reported to the Deputy Inspector-General for removal from list D or list E, as the case may be.....” Learned counsel for the petitioner contends that in the intervening period, the petitioner has not been guilty of any misconduct of a nature reflecting upon his character or fitness for responsibility. In such circumstances, name of the petitioner cannot be removed from List D-II. I have considered this third contention. The issue has to be considered in the context of benefit initially granted to the petitioner vide Annexure P-1. In view of the fact that it has already been held that Annexure P-1 is without any application of mind; dehors the record of the petitioner; in violation of rules; CWP No.11575 of 2008 [9] and therefore is arbitrary, the contention of learned counsel cannot be accepted. The petitioner was promoted as officiating Assistant Sub Inspector vide an illegal order in arbitrary exercise of power. Exemption was given to the petitioner from passing intermediate course and his name was approved for ptomotion List D-II (Exemptee) vide an illegal order passed without recording reasons and basis. Order does not disclose as to what weighed with the then Director General of Police to grant exemption to the petitioner from passing intermediate course. Since the order is illegal, no legal consequences, as prayed on behalf of the petitioner would flow. Subsequent conduct will not make the order Annexure P-1 legitimate. There is another aspect of the matter. By virtue of giving benefits to the petitioner out of turn and in a discriminatory exercise of power, the persons who could be considered instead, could not be considered. Under the circumstances, it would be against principle of equity to make an illegitimate order legitimate, that has been procured through arbitrary and injustifiable action. If the order itself is found to be result of colourable exercise of power, the petitioner CWP No.11575 of 2008 [10] cannot claim that subsequent events, such as the good service rendered by the petitioner after passing of order Annexure P-1, be taken into account to sustain the order (Annexure P-1). Perusal of impugned order Annexure P-9 shows that while passing the order, relevant facts and circumstances have been taken into account viz; a number of senior intermediate school course qualified Head Constables on list `D’ are waiting their turn for promotion to the rank of ASIs; there is no outstanding work of professional merit on official record of petitioner which would justify his exemption and out of turn promotion; the case needs to be reviewed for withdrawal of exemption and promotion in the light of High Court direction dated 5.5.1970 passed in Civil Writ Petition No.1692 of 1969, `Sardul Singh vs. I.G. State Police Punjab’. Order Annexure P-9 has been passed after giving an opportunity of hearing to the petitioner. Under the circumstances, no illegality can be traced in the action of the respondents in passing order Annexure P-9 and review of order Annexure P-1. In view of the above, the petition is dismissed. It is however made clear that the CWP No.11575 of 2008 [11] petitioner would be entitled to promotion on his own turn. (AJAI LAMBA) November 10, 2009 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?