IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CM No. 15389 of 2008 in/and Civil Writ Petition No.4787 of 1994 (O&M) Date of decision: July 27, 2011 SI Shamsher Singh .. Petitioner Vs. State of Haryana and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sanjiv Thakur, Advocate for the petitioner. Mr. Ajay Gupta, Addl. A.G. Haryana. A.N. Jindal, J CM No. 15389 of 2008 Civil miscellaneous application is allowed and the amended writ petition is taken on record. Main case The petitioner by way of invoking the powers under Article 226 of the Constitution of India seeks quashing of the order dated 28.6.2006 (Annexure P6) whereby Director General of Police has withdrawn the order dated 24.3.2000 (Annexure P3), vide which the adverse remarks in the ACR of the petitioner for the year 1992-93 were expunged), as well as for quashing the show cause notice dated 24.8.2006 (Annexure P7) whereby the petitioner was sought to be reverted (presently Inspector with 34 years of total service) to the rank of Assistant Sub Inspector. He has further sought a writ of mandamus directing the respondents to allow the petitioner to continue on the post of Inspector and place the relevant information qua the petitioner viz-a-viz his seniors on the record of the case before this Court and confirm the petitioner as Sub Inspector w.e.f. 25.3.1993 when the petitioner had completed two years of probation. While elaborating, it is alleged that the petitioner joined Haryana Police Services on 26,.5.1972 and he was promoted as Assistant Sub Inspector w.e.f. 5.1.1991. He had got about 80 commendation certificates without no adverse entries in his service record of 22 years. However, adverse ACR was given to him for the period 1992-93 and then Civil Writ Petition No.4787 of 1994 -2- *** on 16.3.1994, he filed a representation which was rejected on 16.3.1994. Thereafter, he had filed civil writ petition No.4787 of 1994 which was admitted by this Court. During the pendency of the writ petition, the Director General of Police, Haryana, on the mercy appeal of the petitioner, had quashed the ACR vide order dated 24.3.2000. Consequently, he was promoted as Inspector by the present Director General of Police, Haryana on 7.9.2005 and he is now working as such. But, on 7.9.2005, he was issued a show cause notice by the Inspector General of Police, Rohtak Range, Rohtak for the proposed re-construction of the adverse remarks which were expunged by the earlier Inspector General of Police on 24.3.2000. The petitioner had filed a detailed reply to the show cause notice on 21.10.2005 challenging the order of the Inspector General of Police, Rohtak Range, Rohtak issuing him show cause notice for reconstruction of ACR on the ground that he himself was the reporting officer of adverse remarks, however, Director General of Police on 28.6.2006 rejected his representation and on the same day he also issued another show cause notice for withdrawing the undue benefit of confirmation on the rank of Assistant Sub Inspector, promotion list 'E' approved for promotion as Sub Inspector and Inspector by reverting the petitioner to the rank of Assistant Sub Inspector on the basis of the said ACR. The petitioner had moved civil miscellaneous application No.14640 of 2006 in CWP No. 4787 of 1994 with a prayer to place on record the aforesaid facts and documents. But at that time, he was not aware of the show cause notice regarding his reversion, as such, he withdrew the civil miscellaneous application No. 14640 of 2006 and has now filed an amended writ petition vide miscellaneous application No. 15389 of 2008. Reply to the petition has been filed, wherein it was alleged that the writ petition is a misuse of the process; the petitioner has not come with clean hands with distorted facts; the respondents have not re-opened the decision of the earlier Inspector General of Police, Rohtak Range, Rohtak. As a matter of fact, Director General of Police, Haryana issued memo No.10530-35/E(II)-3 dated 9.6.2005 addressed to all range Inspector Generals of Police in Haryana, Inspector Generals of Police, Railways & Tech. Services, Haryana, Panchkula and Inspector Generals of Police, Civil Writ Petition No.4787 of 1994 -3- *** Haryana Armed Police, Madhuban stating as under :- “It has been noticed that in some cases old adverse remarks regarding integrity were expunged after obtaining fresh representations despite the fact that their earlier appeals/mercy petition, memorial or writ petition have already been rejected/ dismissed by the competent authority/ State Govt. or court. After expunction of adverse remarks irregularly, it is alleged that seniority was re-fixed by giving them undue benefit of promotions as well as confirmations etc. Legal Remembrancer, Haryana had already clarified that acceptance as representation after a lapse of 10/12 years particularly when such earlier representations were rejected is not proper. It has further been opined by the Legal Remembrancer, Haryana that wrongly expunged adverse remarks can be reconstructed after giving show cause notice to the concerned official. Therefore, such cases may be reviewed and brought to the notice of police Headquarters for further necessary action. It has been further stated that in order to review all such cases, you should check up service records of all NGOs/ORs who have been granted illegally benefit of adhoc promotion or ORP promotion or confirmation or irregular expunging of adverse reports for the purpose of granting seniority/confirmation/promotion to the next rank and refer such cases to this office with background note covering full facts along with service records for reviewing their cases and re-fixing their seniority as per rules.” Consequent to the aforesaid letter, on checking it was found that the ACR of the petitioner w.e.f. 16.5.1992 to 31.3.1993 was expunged by entertaining second representation in violation of the government instructions. The reply also refers to the standing order No.65 of 1998 in which it was specifically stated as under :- Civil Writ Petition No.4787 of 1994 -4- *** “Every representation should be submitted within six months of the order against which it represents and that no competent authority shall consider any representation against an order if the order against which the personnel is aggrieved is more than five years old.” It has been further urged that when the earlier Deputy Inspector General of Police, Rohtak Range, Rohtak had rejected the representation on 28.9.1994, then the second representation on the basis of which the adverse remarks were expunged on 24.3.2000 was not maintainable and as such expunction of the remarks is illegal. As such, the remarks were reconstructed. The respondents had reconstructed the remarks after application of due process of law. Now the petitioner cannot challenge the said reconstruction of the adverse remarks as the expunction of the remarks itself was illegal being on the second representation. Arguments heard. Record perused. It has been settled time and again that once a representation has been duly rejected by the Competent Authority, then the second representation cannot be considered and is not maintainable before the same authority. As such, the adverse remarks expunged after six years of the rejection of the first representation was without any basis and were not of any value. The Division Bench of this Court in a judgment delivered in case State of Haryana and others vs. ASI Sadhu Ram, LPA No. 238 of 2011 (O&M), decided on 14.2.2011, while relying upon the judgment delivered in case Ram Niwas v. State of Haryana and others, 2007 (1) S.L.R. 243 observed as under :- “3. A perusal of the facts in the present case shows that earlier order passed by the Director General of Police expunging the adverse remarks recorded against the writ petitioner- respondent was sought to be reviewed by the successor-in-office and L.P.A. No. 238 of 2011 (O&M) 2 accordingly, the order reviewing the earlier adverse remarks was without jurisdiction as has been held by a Division Bench Civil Writ Petition No.4787 of 1994 -5- *** of this Court in the case of Ram Niwas v. State of Haryana and others, 2007 (1) S.L.R. 243. The matter is squarely covered against the State and in favour of the writ petitioner. Accordingly, there is no merit in the appeal. Dismissed.” However, now coming to the other question with regard to reversion of the petitioner from Inspector to Assistant Sub Inspector. It has been argued that since the punishing authority is now the same, who was the reporting authority of the ACR in the year 1992-93, therefore, he being bias against the petitioner, his reversion was sure. In this regard it is observed that the adverse remarks were given to the petitioner for the period from 16.5.1992 to 31..3.1993 in the year 1993. The petitioner had been serving the police department since then. During this period, he was promoted as Assistant Sub Inspector w.e.f. 5.1.1991 and made Sub Inspector w.e.f. 26.3.1991 (on account of out of turn promotion). On the basis of the old adverse remarks for the year 1992-93, the petitioner has been served notice on 7.9.2005 for re-construction of the adverse remarks and show cause notice dated 24.8.2006 for reverting him from the post of Sub Inspector to the original rank. In this regard it is observed that it has been settled time and again that very old remarks should not be given due importance in the light of the positive aspect of the career of an employee. The Hon'ble Supreme Court in case J.D. Srivastava v. State of M.P. (1984) 2 SCC 8 observed as under :- “8. The above reports no doubt speak for themselves as stated in the counter- affidavit of the Additional Registrar. But they all speak in favour of the appellant and not against him. A perusal of these reports shows that there was nothing against him. In the state of the above record it was impossible to take the view that the appellant was liable to be compulsorily retired, unless there was any other circumstance which was adverse to him. We have found it necessary to incorporate in this judgment the relevant confidential remarks in great detail only to show that the action of the High Court was not called for. We may state here that the learned counsel for the High Civil Writ Petition No.4787 of 1994 -6- *** Court very fairly stated that there was no other circumstance against the appellant during the period subsequent to 1971 which would support the order of compulsory retirement. From what has been stated we find that the decision taken by the High Court in respect of the appellant is arbitrary as it was mainly based on the entries that were made about 20 years before the date on which the decision was taken. Dependence on such stale entries cannot be placed for retiring a person compulsorily, particularly when the officer concerned has been promoted subsequent to such entries, as held by this Court in D. Ramaswami case. In that case one of us (Chinnappa Reddy, J.) observed thus at pages 79-80 : (SCC p. 513, para 4) “In the face of the promotion of the appellant just a few moths earlier and nothing even mildly suggestive of ineptitude or inefficiency thereafter, it is impossible to sustain the order of the Government retiring the appellant from service. The learned counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it which was prior to his promotion. We do not say that the previous history of a Government servant should be completely ignored, one he is promoted. Sometimes, past events may help to assess present conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion, we see no justification for needless digging into the past.”” It has also been held by the Hon'ble Apex Court in case Baikuntha Nath Dass and another vs. Chief District Medical Officer (1992) 2 SCC 299 that it would not be reasonable and just to consider adverse entries of remote past and to ignore good entries of recent past. If entries for a period of more than 10 years' past are taken into account it would be an act of digging out past to get some material to make an order Civil Writ Petition No.4787 of 1994 -7- *** against the employee. The Apex Court in case Badrinath vs. Government of Tamil Nadu and others (2000) 8 SCC 395, at page 420 further reaffirmed that old adverse remarks are not to be dug out and are to be treated as having lost their “sting”. Similarly, in the present case, adverse remarks were not only old i.e. pertaining to the year 1992-93, but also notice as given in the year 2005-06 to the petitioner by the officer who had given the adverse remarks to him. In the circumstances, this court though does not feel appropriate in favour of expunging the adverse remarks on the basis of the second representation filed by him, and dismiss the petition, but at the same time a direction is issued to the respondents to decide the show cause notices dated 7.9.2005 and 24.8.2006 without taking into consideration the old adverse remarks given in the year 1992-93. However, the respondents would be at liberty to consider the over all record of the petitioner while deciding the show cause notices. July 27, 2011 (A.N. Jindal) deepak Judge