CIVIL WRIT PETITION NO.14475 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: July 14, 2009 Sub Inspector Rajinder Singh .....Petitioner VERSUS State of Haryana & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Ms.Preeti Khanna, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner, Sub Inspector in Haryana Police, has filed this petition to impugn the action of the respondents in denying him promotion and consideration for promotion with effect from the date his juniors have been so promoted. He has also made a prayer for quashing some adverse remarks recorded in his annual confidential report for the period from 1.4.2005 to 3.8.2005. CIVIL WRIT PETITION NO.14475 OF 2008 :{ 2 }: The petitioner was directly appointed as Probationer Assistant Sub Inspector (ASI) on 13.2.1995. He was promoted to the post of Sub Inspector on 16.12.2002. He claims that his name was recommended for out of turn promotion on 8.5.2003 as he had exhibited an exemplary performance of professionalism, devotion to duty and presence of mind, alertness, courage, exceptional organization skills and scientific approach displayed in solving cyber crime cases. Copy of said recommendation is annexed as Annexure P-1. The petitioner was confirmed as Sub Inspector on 31.8.2006. It is averred in the petition that the petitioner has earned number of commendations and awards for his exemplary and exceptionally good work. Reference is made to commendation certificate alongwith cash award of Rs.5,000/- in this regard on 16.7.2003. Reference is also made to some other commendations bestowed on the petitioner by the Deputy Commissioner and City Magistrate and the commendation by Inspector General alongwith cash award, copies of which are annexed as Annexures P-3 and P-4. Annexures P-5 and P-6 are again the copies of cash awards by Inspector General of Police and commendation certificate alongwith cash award for exceptionally good work in the years 2004 and 2005. Similarly, reference is also made to commendation/cash awards by various authorities and about the good work done by the petitioner in the years 2005 and 2006. Copies of these have been annexed with the petition as Annexures P-7 to P-10. In this background, the petitioner avers that he was shocked and surprised to receive a memo dated 8.1.2007 (Annexure P-11) through which he was conveyed certain adverse remarks through S.P., Gurgaon recorded CIVIL WRIT PETITION NO.14475 OF 2008 :{ 3 }: during the period from 1.4.2005 to 3.8.2005. . Copy of this is annexed with the petition as Annexure P-11. In this report, adverse remarks about the honesty and other qualities have been made, are communicated to the petitioner. The petitioner is described as dishonest, below average in moral character and general control and organization ability. He is prescribed as below average in initiative and leadership abilities. It is also mentioned that he shows low interest in modern investigation techniques and modern policing techniques. He is also described as below average in the qualities of remedial and research related skills and practical experience of criminal law and procedure. He has also been described as unreliable. Ultimately, as general remarks, it is recorded:- “A below average police officer. Does not take requisite interest in his work. Constant complaints have been received about his honesty also but inspite of warning, he has not shown any improvement in his conduct.” It is accordingly stated that the petitioner be advised and warned to remove the above-said defects. Aggrieved against the above damaging remarks, the petitioner submitted his representation to the Inspector General of Police in January 2007. The petitioner pleaded that these adverse remarks were liable to be expunged being illegal and unlawful and not based on any material whatsoever. The petitioner submitted another representation on 7.2.2007 for expunging these remarks being unsustainable. The petitioner also refers to another communications dated 28.5.2007 and 15.8.2007, when he again received an appreciation letter from the Superintendent of Police, CIVIL WRIT PETITION NO.14475 OF 2008 :{ 4 }: saying, “commendable job, utmost dedication to duty, professional competency and resourcefulness.” The petitioner had arrested an accused involved in most sensational triple murder case within 24 hours, for which he received this commendation. The petitioner was also honoured by Deputy Commissioner for catching big criminals. Through memo dated 18.1.2008, the petitioner was informed that his representation dated 7.2.2007 was considered and partially accepted. The adverse remarks recorded in column No.1 and the general remarks regarding integrity were expunged. In this background, the petitioner pleads that action of the respondents in considering and promoting as many as 8 Sub Inspectors with effect from 5.3.2008 having the same seniority as that of the petitioner and ignoring him is illegal and arbitrary. As can be seen, Sub Inspectors, junior to the petitioner, were considered and promoted w.e.f. 5.3.2008 without considering the claim of the petitioner for said promotion. The petitioner represented against the said action through his representation dated 24.3.2008, pointing out that adverse remarks pertaining to integrity have been expunged and further pleaded that he be promoted with effect from the same date. The representation of the petitioner was ignored and some more Sub Inspectors, junior to the petitioner, were considered and promoted. The petitioner obtained the information regarding all those who were considered and promoted and finally served a legal notice on 2.7.2008. The grievance of the petitioner is that his legal notice and representations have again been ignored and more juniors promoted on 2.8.2008 w.e.f 5.3.2008. He has accordingly filed this writ CIVIL WRIT PETITION NO.14475 OF 2008 :{ 5 }: petition, making the prayer that he be considered for promotion from the date his juniors were considered and so promoted. In response to notice of motion, written statement on behalf of respondent Nos.1 to 5 has been filed by Commissioner, Gurgaon. In the reply, reference is made to instructions issued by the Financial Commissioner and Secretary, Home Department, dated 31.10.2001, wherein it has been clarified that an officer may not be allowed any promotion for at least two years where an entry is made in the A.C.R of the police officer being not reliable is substantiated by concrete example. It is then stated that there was some confusion for counting the period of two years for withholding the promotion. It is clarified that the period of two years for withholding promotion will be counted after the last date i.e. March 31 of A.C.R in which the officer/official has been described as unreliable. Stating that the petitioner has earned this adverse ACR for the period from 1.4.2005 to 3.8.2005, representation against which was partly accepted on 18.1.2008, making the adverse remarks regarding unreliability to stand, it is maintained that his case can not be considered from the date his juniors were promoted due to the adverse remarks. As per the respondents, these remarks would have effect upto 31.3.2008 and cut off date for consideration of the post was 5.3.2008. It is then pointed out that the petitioner was considered for promotion and has been promoted to the rank of Inspector on 29.11.2008. I have heard the learned counsel for the parties. The counsel for the petitioner would maintain that even if the adverse remarks of unreliability is to stand in the ACR of the petitioner, he was still required to be considered for promotion on CIVIL WRIT PETITION NO.14475 OF 2008 :{ 6 }: 5.3.2008, when the case of officers junior to him were considered and promoted. On the other hand, the State counsel would say that the period of two years, as per the instructions referred to above, is to be counted from 31.3.2006 and as such, would end on 31.3.2008 and accordingly, the petitioner was rightly not due for consideration, when the case of junior officers was considered for promotion on 5.3.2008. On 8.7.2009, the State counsel was required to seek instructions if the case of the petitioner was considered for promotion on 5.3.2008. It then transpired that the petitioner was not considered for promotion on the said date due to the reasons as already explained. In this background, it is required to be seen if the respondents are justified in not considering the case of the petitioner. As is clear from the record, the adverse remarks recorded in the confidential report of the petitioner are for the period from 1.4.2005 to 3.8.2005. The whole case of the respondents for not considering the petitioner on 5.3.2008 is on the basis of instructions, Annexure R-1. The instructions on the basis of which officer is rendered ineligible or barred for promotion for a period of two years in case he has earned an adverse remark of unreliability, have not been placed on record. Since this aspect of the matter has not been disputed and the instructions in this regard are not under challenge before me, there would not be any need to go into the the validity of such instructions. That being so, it is to be seen whether the period of two years has been correctly counted by the respondents to deny right of consideration to the petitioner on 5.3.2008. The impugned report is for the period from 1.4.2005 to 3.8.2005. The instructions provide as a clarification that “period of two years for withholding CIVIL WRIT PETITION NO.14475 OF 2008 :{ 7 }: promotion will be counted after the last date i.e. 31st March of the ACR in which the officers/officials have been described as unreliable.” Construing this part of the instructions, Annexure R-1 literally, it can be said that the period of two years is required to be counted from the year to which this report pertains. The report pertains to the year 2005. The view is possible that the two years would expire on 31.3.2007. 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 specified period on the basis of an entry made in the confidential report. It is possible to view that all persons are required to be considered for promotion by taking the report containing adverse remarks into consideration. A person with adverse entry may not be found suitable and can be rejected on the basis of such adverse remarks. To deny consideration for promotion to a person on the basis of some adverse remarks contained in the Annual Confidential Report on the basis of instructions may not pass the test of being just, fair and valid. Since the instructions are not under challenge, these need to be interpreted fairly. The fair approach, even in terms of the policy, would be to count the period of two years from the last date of the period to which the report pertains. Since this report was for the period from 1.4.2005 to 3.8.2005, the period of two years in fairness should count from September 2005 onwards and, thus, would end in CIVIL WRIT PETITION NO.14475 OF 2008 :{ 8 }: August-September 2007. The denial of right of consideration of promotion to the petitioner on 5.3.2008, thus, can not be sustained. There is no plea raised or substantiated before me, which would call for interference in the assessment of adverse remarks or for expunging the same on any of the grounds as pleaded. That part of the prayer of the petitioner is accordingly declined. 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. The writ petition is allowed to this limited extent. July 14, 2009 ( RANJIT SINGH ) khurmi JUDGE