IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.: 2629 of 2008. Decided on: 27.03.2009. Mohan Singh. … Petitioner. Versus State of Himachal Pradesh and Others. … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner: Ms. Salochana Kaundal, Advocate vice Mr. O.P. Thakur, Advocate. For the Respondents: Mr. R. K. Sharma, Senior Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General for respondents No.1 and 2. Mr. Onkar Jairath, Advocate for respondents No.3 and 4. Rajiv Sharma, Judge (Oral): Brief facts necessary for the adjudication of this petition are that the petitioner was appointed as Constable in the Himachal Pradesh Police on 22.10.1974. He was confirmed as Constable with effect from 18.4.1982. He was promoted to the post of Head Constable on 17.6.1985. He was confirmed as Head Constable on 1.4.1989. He was promoted to the post of Assistant Sub Inspector on temporary and Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - ad hoc basis on 22.7.1993. His pay was also fixed on the higher post on 24.8.1993. He was promoted as Assistant Sub Inspector on officiating basis vide order dated 22.2.1995. The order dated 22.2.1995 reads thus:- “In exercise of the powers vested in me under Police Rule 13.21 H.C. Mohan Singh, CID, HP Shimla who has been given fortuitous promotion as ASI in the CID is hereby promoted as ASI on Offg. basis with immediate effect against existing vacancy in the CID on the ground of professional ability and exceptional merit. 2. It is further ordered that the above official shall not be entitled to claim the benefit of seniority in the rank of ASI till such time he is promoted as such on regular basis after his name is duly brought on list B-1.” He filed original application before the learned H.P. State Administrative Tribunal against the threatened action of the respondents whereby he was likely to be reverted to the post of Head Constable on the basis of order dated 11.8.1995. The copy of order dated 11.8.1995 was not placed on record. His precise case before the learned Tribunal was that his promotion on officiating basis was ordered by the Director General of Police strictly as per Rule 13.21 of Punjab Police Rules as applicable to the State of Himachal Pradesh. He has annexed with the original application recommendations/certificates vide Annexure A-1 to Annexure A-25. The respondents/State had filed detailed reply. Preliminary objection was taken by the respondents/State that the petitioner has not appended the impugned order with the original - 3 - application. On merits, it was contended that the petitioner could not be granted out of turn promotion without considering the exceptional merit of the petitioner in the maintenance of law and order, detection of crime or any specific instance of exceptional merit. It is also pleaded that the promotion of the petitioner on officiating basis was approved by the Director General of Police on the day he relinquished his office, i.e. 21.2.1995. There was resentment in the police department qua the manner in which the petitioner was promoted on officiating basis and the persons senior to him were ignored. This issue also echoed in the Himachal Pradesh Vidhan Sabha. The matter was looked into by the respondent No.1 after seeking report from respondent No.2. The respondent No.1 has asked the respondent No.2 to intimate the achievements of the petitioner in the maintenance of law and order, detection of crime etc. or any other achievement which prompted the out of turn promotion. The respondent No.2 informed the respondent No.1 that there was no mention of any achievement in the maintenance of law and order, detection of crime or any specific instance of exceptional merit in the order made by the Director General of Police on 21.2.1995. There was no recommendation made by the C.I.D. It is in these circumstances that the order dated 11.8.1995 was issued whereby the petitioner was reverted from the post of Assistant Sub Inspector to Head Constable. It is intriguing to note that the learned Tribunal granted interim relief to the petitioner on 16.8.1995 without the impugned order dated 11.8.1995 being placed on record. The original application, in fact, was filed against the threatened action of his reversion. The learned Tribunal - 4 - in these circumstances should have insisted for placing on record the impugned order. The fact of the matter is that the petitioner on the basis of interim order granted by the learned Tribunal on 16.8.1995 was permitted to discharge the duties of Assistant Sub Inspector. Ms. Salochana Kaundal has strenuously argued that no notice was issued to the petitioner before issuance of office order dated 11.8.1995. She then contended that the promotion of the petitioner was strictly in conformity with Rule 13.21 of Punjab Police Rules and her client could not be reverted. She has drawn the attention of the Court to Annexure A-1 to Annexure A-25 to establish the achievements in maintenance of law and order, detection of crime etc. of her client while working in the police department. The learned Senior Additional Advocate General has vehemently argued that the promotion granted to the petitioner on officiating basis on the basis of order dated 22.2.1995 is an act of favouritism. He then contended that the promotion of the petitioner was in violation of Rule 13.21 of the Punjab Police Rules as applicable to the State of Himachal Pradesh. According to him while exercising the powers of granting out of turn promotion to the petitioner, the Director General of Police was required to record reasons for doing so. He further contended that the promotion of the petitioner on officiating basis was approved by the Director General of Police on the day he had relinquished the charge, i.e. 21.2.1995. He lastly contended that since the promotion was on officiating basis, no notice was required to be issued to the petitioner. I have heard the learned counsel for the parties and perused the record carefully. - 5 - The Court is of the opinion that the original application in the present form was not maintainable at all before the learned H.P. State Administrative Tribunal against the threatened action. The learned Tribunal could not have entertained the original application without the impugned order being placed on record. The learned Tribunal has further erred by granting the interim relief to the petitioner without looking at the impugned order. The petitioner was promoted on temporary and ad hoc basis to the post of Assistant Sub Inspector on 22.7.1993. He was promoted on officiating basis by the Director General of Police vide office order dated 22.2.1995. The Director General had relinquished the office on 21.2.1995. He has recommended/approved the case of the petitioner for promotion on officiating basis on the day he had relinquished the office. The regular promotion to the post of Assistant Sub Inspector is regulated under Rule 13.9 of the Punjab Police Rules, which reads thus:- “13.9 (1) A list shall be maintained in each district in card index Form 13.9(1) of those head constables who have passed the lower school course and the Intermediate school course at the Police Training School and are approved by the Deputy Inspector- General as eligible for officiating or substantive promotion to the rank of assistant sub-inspector. No head constable shall be admitted to this list who is not thoroughly efficient in all branches of the duties of a constable and head constable and of established integrity. (2) Officiating promotion to the rank of assistant sub-inspector shall be made from the list prescribed in sub-rule (1), as far as possible in rotation, so as to give - 6 - each man a trial in the duties of the higher rank. Substantive promotion shall be made by the Deputy Inspector-General in accordance with the principles prescribed in rule 13.1, and officiating promotion shall be made in accordance with sub-rule 13.4(2). (3) Half-yearly reports in Form 13.9(3) on all head constable in this list shall be furnished on the 15th April and the 15th October, to the Deputy Inspector-General.” The out of turn promotion is governed under Rule 13.21 of Punjab Police Rules as applicable to the State of Himachal Pradesh which reads thus:- “Whenever there are cases in which the Inspector General of Police, Himachal Pradesh is of the opinion that it is necessary or expedient to do so, he may, by order (for reasons to be recorded in writing) relax any of the provisions of this chapter with respect to any class or category of persons.” It is evident from the phraseology employed in Rule 13.21 of Punjab Police Rules that the Inspector General of Police/Director General of Police is required to record reasons in writing while relaxing any provision of Chapter-XIII. It is not borne out from the pleadings that this exercise was ever undertaken by the Director General of Police while approving the case of the petitioner for promotion to the post of Assistant Sub Inspector on officiating basis. The petitioner was at Sr. No.52 of seniority list of Head Constables (Annexure R-1). It is thus evident that the persons senior to him have been ignored and he was promoted as Assistant Sub Inspector by invoking Rule 13.21 of the Punjab Police Rules. The promotion of the petitioner was resented to by - 7 - the persons who were superseded. The respondent No.1 had sought information from respondent No.2 to explain how the petitioner was promoted by invoking Rule 13.21 of Punjab Police Rules. The respondent No.2 informed the respondent No.1 that there was nothing on record to establish the exceptional merit of the petitioner in the maintenance of law and order, detection of crime or any specific instance of exceptional merit in the order. In fact, the proposal was not routed through the department of C.I.D. No achievement or specific instance had been mentioned in the proposal. The Court is of the firm opinion that Rule 13.21 of Punjab Police Rules has been wrongly invoked by the then Director General of Police while approving the case of the petitioner for promotion as Assistant Sub Inspector on officiating basis. He was required to assign reasons after taking into consideration the achievements of the petitioner in the maintenance of law and order and detection of crime etc. Recording of reasons by the Director General of Police was sine-qua-non. It is settled law by now that if some-thing is required to be done in a particular manner, it must be done in that manner alone. Out of turn promotions should be granted only as an exception and not as a rule. Out of turn promotion without fulfilling the necessary ingredients brings frustration to the Government employees. It is evident from a bare perusal of order dated 22.2.1995 (Annexure A-28) that the petitioner was promoted on officiating basis. In these circumstances he was not required to be served with any notice before his demotion on 11.8.1995. The petitioner has failed to establish - 8 - any fundamental or legal right to hold the post of Assistant Sub Inspector on officiating basis. Public employment has great importance in a democracy. The process for filling up the posts must conform to Articles 14 and 16 of the Constitution of India. Public employment cannot be treated as largess to be distributed whimsically. In the present case, the Director General of Police has approved the promotion of the petitioner on officiating basis to the post of Assistant Sub Inspector on the day he was to relinquish the charge. The Court dis-approves in strong words this practice. The persons who have to exercise the discretion must do it judiciously and not according to humour. The authorities have to act within the four corners of law. They are not law unto themselves. They work under the constitution and statutes. They must exercise self-restraint while recommending out of turn promotions, that too on the verge of their retirement. Their action should be above board. We do not follow “spoil’s system” in India. Accordingly, there is no merit in this petition and the same is dismissed. The petitioner had worked after his reversion on 11.8.1995 on the basis of orders passed by the learned Tribunal on 16.8.1995. The interim order dated 16.8.1995 is vacated. It is open to the respondents/State to proceed against the petitioner for restitution of the salary and other benefits which he had derived on the basis of interim order dated 16.8.1995. The respondents are directed to ensure in future that the guidelines/para-meters are framed for making “out of turn” promotions. The respondents shall consider all the eligible persons as - 9 - per the criteria prescribed and shall not resort to pick and choose. There shall, however, be no order as to costs. March 27, 2009. (Rajiv Sharma) (sck). Judge.