IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 17377 of 2009 Date of Decision: 3.3.2010. Rajinder Singh --Petitioner Versus State of Haryana and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Ms. Preeti Khanna, Advocate for the petitioner. Mr. R.K.S. Brar, Addl. A.G., Haryana. *** PERMOD KOHLI.J (ORAL) Aggrieved of the order dated 24.9.2009 passed by the Director General of Police, Haryana rejecting the claim of the petitioner for promotion w.e.f. 5.3.2008, the petitioner has filed this petition seeking its quashment as also the validity of the Govt. Instructions dated 2.6.1999 relied upon by the respondents while passing the impugned order. Further prayer is made for quashing the adverse remarks communicated vide memo (Annexure P-13) and consequential relief for promotion from the date persons junior to the petitioners were promoted to the post of Inspector. Briefly stated the facts as emerge from the record are noticed hereinafter. The petitioner was appointed as Assistant Sub Inspector on probation on 13.2.1995 and promoted as Sub Inspector on 16.12.2002. A recommendation was made for his out of turn promotion on account of exemplary performance, courage and devotion to his duties in arresting three criminals in a long and hard chase by the Superintendent of Police, Gurgaon vide communication dated 8.5.2003 (Annexure P-3). The CWP. No. 17377 of 2009 -2- petitioner also earned various commendations and awards for his exemplary service. Copies of such commendations and awards have been placed on record as Annexures P-4 to P-12. The petitioner was, however, confirmed as Sub Inspector on 31.8.2006. Petitioner was served with a memo dated 8.1.2007 communicating him adverse remarks for the period 1.4.2005 to 3.8.2005. He was graded as dishonest, below average and unreliable officer, who does not take requisite interest in his work. The petitioner represented against the aforesaid adverse entry in his service record vide his representations Annexures P-14 & P-15. Representation of the petitioner was, however, partly accepted whereby the adverse entry made in Coloumn No.1 and general remarks regarding his integrity were ordered to be expunged retaining the remaining entries. It is alleged that even during the period petitioner was rated as below average and his honesty was doubted, he received commendation certificate and cash awards and after the said period also, he received letters of appreciation. Respondents made promotions of Sub Inspectors to the post of Inspector w.e.f. 5.3.2008 onwards in Gurgaon and other ranges. All these promotees were junior to the petitioner. The grievance of the petitioner is that his case was not considered for promotion, though, he was fully eligible and suitable for promotion. The petitioner made representations, applications and served legal notice against his non-promotion. Receiving no response, petitioner filed CWP No. 14475 of 2008 challenging the adverse remarks and denial of promotion from the date his juniors were promoted. During the pendency of the aforesaid petition, petitioner was promoted vide order dated 29.11.2008 as officiating Inspector of Police. Since the promotion of the petitioner was prospective vide Annexure P-27, CWP. No. 17377 of 2009 -3- the petitioner made another representation dated 1.1.2009 to the Director General of Police claiming benefit of promotion from the date his juniors were promoted (Annexure P-28). In the meantime, the respondents filed a written statement in CWP No. 14475 of 2008 which was pending at the time of promotion. The respondents relied upon the Govt. Instructions dated 31.10.2001 (Annexure P-29) to deny promotion to the petitioner from the date his juniors were promoted. These instructions inter alia provide that where an entry “ not being reliable” is awarded to an official of the police department, Home Guard and Civil Defence and is substantiated by concrete examples, such officers may not be allowed any promotion for at least two years. It is further clarified that the period of two years for withholding promotion will be counted after last date i.e. 31st of March of the year in which the officer/official has been described as unreliable. It was accordingly pleaded that the petitioner could not have been considered for promotion from 5.3.2008 as the adverse entry awarded to the petitioner had the effect up to 31.3.2008. The aforesaid writ petition filed by the petitioner, however, came to be decided vide order dated 14.7.2009. Even though, the instructions were not under challenge in the writ petition, this court while construing the applicability of the instructions observed as under:- “ Even if the period of report is to be taken into account, two years would expire on 31.8.2007. It would otherwise not be fair to count a period in any other manner on the basis of letter of clarification, which would lead to denial of right of consideration to a person, which is a constitutionally guaranteed right. Though it has not been argued before me but it may be required to be seen if one can be denied consideration for a CWP. No. 17377 of 2009 -4- specified period on the basis of any entry made in the confidential report.” After the above observations, following directions were issued:- “ However, the writ petition is partly allowed with a direction to the respondents to consider the case of the petitioner for promotion with effect from 5.3.2008, when persons junior to him were considered for promotion. Needless to clarify that the petitioner has only a right of consideration of promotion and no right to seek promotion. The respondents would consider the case of promotion with effect from 5.3.2008 and pass any appropriate order in accordance with law.” As a consequence of the above directions to consider the case of the petitioner w.e.f. 5.3.2008 the Director General of Police has passed the impugned order (Annexure P-5). Promotions from one rank to another are regulated by the Punjab Police Rules, 1934 as applicable to the State of Haryana. Rule 13.1 and 13.16 contained in Chapter XIII deals with the promotion generally and reads as under:- “ 13.1. Promotion from one rank to another: (1) Promotion from one rank to another, and from one grade to another in the same rank shall be made by selection tempered by seniority. Efficiency and honesty shall be the main factors governing selection. Specific qualifications, whether in the nature of training courses passed or practical experience, shall be carefully considered in each case. When the qualifications of two officers are otherwise equal, the senior shall be promoted. This rule does not affect increments within a time-scale.” CWP. No. 17377 of 2009 -5- Rule 13.16 specifically deals with the promotion to the rank of Inspector and reads as under:- “ 13.16. Promotion to the rank of Inspector-(1) Substantive vacancies in the rank of Inspector, save those which are specifically designate for the appointment of probationers shall be filled by promotion of officers from list F selected according to the principles laid down in rule 13.1. Sergeants are eligible for promotion in the appointments reserved for European Inspectors. (2) Temporary vacancies in the rank of Inspector shall be filled by the officiating promotion of officers on F list by the authorities empowered by rule 13.4 to make the appointment. Such officiating promotions shall be made in accordance with the principles laid down in sub-rule 13.12 (1) in the case of E list, and the second part of that rule shall, mutatis mutandis, govern the scrutiny of the work of F list officers and the removal from that list of the names of those who are found unfit for the rank of inspector.” From the conjoint reading of the aforesaid rules, it appears that the promotion to the post of Inspector is from the officers listed in List F in accordance with the criteria prescribed under Rule 13.1 that is by selection with due regard to seniority. The promotions are to be made in terms of the aforesaid rules primarily from the list in accordance with seniority unless a person suffers any disqualification or his name is removed from the list F. There is no allegation against the petitioner of earning any disqualification nor his name has been removed from the list F. The only ground for his non-consideration at the time of promotion of his juniors is that he had earned entry of “ unreliability” and in view of the Govt. Instructions dated 31.10.2001 his claim for promotion could only be CWP. No. 17377 of 2009 -6- considered on expiry of two years commencing from 31st March of the year when the adverse entries are awarded to an official. The petitioner was awarded adverse entry for the period 1.4.2005 to 3.8.2005. It is accordingly pleaded that the two years embargo for consideration for promotion commenced from 31.3.2006 and expired on 31.3.2008. Thus, the petitioner could not have been accorded any consideration on 5.3.2008 due to non- expiry of period in terms of the Govt. Instructions, referred to above. No other ground whatsoever has been indicated in the impugned order to deny consideration for promotion to the petitioner when his juniors were promoted. Although, the Govt. Instructions were not under challenge in the earlier writ petition and are under challenge in the present writ petition, yet the clear and unambiguous observations made by this Court in its judgement dated 14.7.2009 in CWP No. 14475 of 2008 are sufficient to reject the ground for denying promotion contained in the impugned order. This Court in the aforesaid writ petition has construed the instructions wherein following observations are made:- “ Even if the period of report is to be taken into account, two years would expire on 31.8.2007. It would otherwise not be fair to count a period in any other manner on the basis of letter of clarification, which would lead to denial of right of consideration to a person, which is constitutionally guaranteed right.” The aforesaid judgement has attained finality. Respondents cannot be permitted to interpret the Govt. Instructions in any other manner. Apart from the above, the instructions are subject matter of challenge in the present writ petition. CWP. No. 17377 of 2009 -7- I have perused the Govt. Instructions (Annexure P-29). The basic instructions contained in letter dated 2.6.1999 prescribed only two years period for withholding promotion, where an official has earned the remarks “ not being reliable”. The simple expression “two years” is sought to be interpreted by clarificatory letter dated 31.10.2001 by incorporating an imaginary date i.e. 31st March of the year for purposes of counting two years period envisaged under the original instructions. What is the significance, purpose and object of introduction of this date to count the period of two years is neither explained in the clarificatory notification nor sought to be justified in the reply. The right of the employer to lay down norms has to be conceded but the norms should be rational, fair and should have the element of objectivity particularly when such norms are in the realm of executive instructions. By providing an imaginary date to count the period of two years, the embargo of two years has been extended to 2 years and 7 months in the present case which cannot be said to be rational, fair or objective in any manner. The period of two years has to be counted as the period from the date the specified adverse entry is earned by an officer. This Court had rightly construed the Govt. Instructions in judgement dated 14.7.2009. To interpret the instructions in any other manner would itself be violative of Article 14 of the Constitution. The impugned instructions to the extent it introduces an imaginary and illusory date to count the period is arbitrary in nature and is not sustainable as it tends to enhance the period of two years contemplated under the original instructions. In view of the clear interpretation of the instructions and in view of the above the impugned order is not sustainable in law. Petitioner has already been promoted as Inspector w.e.f. 29.11.2008 and denial of promotion to him from 5.3.2008 is CWP. No. 17377 of 2009 -8- only on account of the intervention of the Govt. Instructions. Since the Govt. Instructions cannot be pressed into service against the petitioner to count the period of two years of for consideration for promotion, the petitioner shall be promoted from 5.3.2008, when admittedly persons junior to him were promoted to the post of Inspector. This leaves the other prayer of the petitioner for quashing the remaining adverse entries. In earlier writ petition being CWP No. 14475 of 2008 this Court had specifically declined the prayer for quashing the remaining adverse entries. The judgement has attained finality. The same issue cannot be re-agitated in the present writ petition. Hence the prayer to quash the remaining adverse entries is hereby declined. The petition is disposed of in the above manner. (PERMOD KOHLI) JUDGE 3.3.2010. lucky Whether to be reported to the Reporters? Yes.