IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 4915 of 1995 (O&M) Date of Decision: April 1, 2011 Chaman Lal Goyal ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR JUSTICE M.M. KUMAR HON'BLE MS JUSTICE RITU BAHRI Present: Petitioner in person. Mr. Suvir Sehgal, Additional Advocate General, Punjab. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? RITU BAHRI, J. 1. The instant petition filed under Article 226 of the Constitution challenges order dated 14.3.1995 (P-9) rejecting the claim of the petitioner for promotion to the post of Deputy Inspector General Prisons, Punjab, being not found fit by the Departmental Promotion Committee in view of adverse remarks recorded in his Annual Confidential Report for the year 1992-93, which casts aspersions on his integrity. and for direction to reconsider the petitioner for promotion to the rank of D.I.G. Prisons with effect from 1.5.1993. A further prayer has been made to issue directions to the respondents to promote the petitioner as Deputy Inspector General of Police Prisons with effect from 1.5.1993. 2. The petitioner has been serving the Punjab Government since November 22, 1957. He was selected in the C.W.P. No. 4915 of 1995 (O&M) Punjab Prisons State Service Class II and joined as Deputy Superintendent Jail Grade II on 1.1.1969. He was confirmed as such on 1.7.1970. Thereafter, on 15.3.1980, he was promoted as Superintendent Jail/Deputy Superintendent Grade I. On 11.12.1986 he was promoted to the post of Superintendent Central Jail/ Principal, Jail Training School/A.I.G. in the Punjab Prisons State Service (Class I). His promotion was approved by the Punjab Public Service Commission. It has been claimed that during the entire service period from 1957 till 1993, he earned 'Very Good' and 'Outstanding' remarks in the Annual Confidential Reports. 3. On 1.5.1993, the post of Deputy Inspector General Prisons fell vacant consequent upon the retirement of Shri M.L. Sandhu. The petitioner alleges that being the senior most in the department and having meritorious record throughout his 36 years of service career, he deserved to be promoted to the post of D.I.G. (Prisons) with effect from 1.5.1993. However, his representation was rejected vide order dated 24.8.1993 on the ground that he could not be considered for promotion because a regular enquiry pertaining to an attempted escape by eight prisoners at Nabha Jail on 1/2.1.1987 was pending against him. On 20.9.1993, the petitioner was transferred to Patiala on the post of Principal, Jail Training Patiala. 4. It is relevant to mention here that the petitioner challenged the charge sheet and inquiry proceedings initiated against him by filing Civil Writ Petition No. 10268 of 1993. He made various allegations against Shri B.S. Sandhu-respondent No. 2. The said petition was allowed by a Division Bench of this Court on 25.8.1994 with costs of ` 5000/- (P-4). The charge sheet and appointment of the Enquiry Officer was quashed. A direction was 2 C.W.P. No. 4915 of 1995 (O&M) also given to the respondents to consider the case of the petitioner for promotion in accordance with law. 5. The petitioner also filed Civil Writ Petition No. 735 of 1994 challenging continuance of Shri B.S. Sandhu-respondent No. 2 as Inspector General of Prisons, Patiala. He alleged that Shri B.S. Sandhu-respondent No. 2 was granted extension from 27.6.1992 to 31.3.1997 and in this manner chances of his promotion to the post of Inspector General of Prisons were adversely affected. 6. On 29/30.9.1993, the petitioner was communicated adverse remarks, which were recorded in his Annual Confidential Report for the year 1992-93. He represented against the adverse remarks. In the adverse remarks there was reference regarding purchase one bigha of plot and construction of 6-7 shops beyond his known source of income. Accordingly, his honesty was doubted in the said Annual Confidential Report. Alleging mala fide against Shri B.S. Sandhu-respondent No. 2 in recording of Annual Confidential Report for the year 1992-93, the petitioner challenged the said adverse remarks in Civil Writ Petition No. 15012 of 1994. 7. In compliance with the order dated 25.8.1994 passed in CWP No. 10268 of 1993, the respondents passed an order dated 24.10.1994 to the effect that the Departmental Promotion Committee considered the case of the petitioner but rejected his case for promotion as DIG Prisons because adverse remarks were recorded in his Annual Confidential Report for the year 1992-93. In other words, in view of the aforesaid adverse entry suffered by the petitioner, his claim for promotion was rejected by the DPC. Feeling aggrieved, the petitioner challenged order dated 24.10.1994 by filing Civil Writ Petition No. 15685 of 1994 in this Court. 3 C.W.P. No. 4915 of 1995 (O&M) 8. In the meantime, the respondent State of Punjab filed Special Leave Petition No. 10268 of 1994 before Hon'ble the Supreme Court against the judgment dated 25.8.1994 passed by a Division Bench of this Court in Civil Writ Petition No. 10268 of 1993. On 31.1.1995, the Special Leave Petition was allowed and while setting aside the Division Bench judgment of this Court, Hon'ble the Supreme Court directed the State of Punjab to finish the enquiry within eight months. A further direction was also given that the petitioner should be considered for promotion by not taking into consideration the pendency of the said regular enquiry. 9. In compliance of the direction of Hon'ble the Supreme Court, the DPC was constituted to consider the case of the petitioner. However, the petitioner was again not found fit for promotion to the post of D.I.G. Prisons on the ground that there were adverse remarks in his Annual Confidential Report for the year 1992-93 casting aspersion on his integrity. The representation filed by the petitioner having been rejected, he was not found fit for promotion to the rank of D.I.G. Prisons. The DPC found one Shri Amrik Singh, who earned 'Very Good' and 'Outstanding' reports for the year 1993-94, fit for promotion as D.I.G. Prisons. On 14.3.1995, an order was passed rejecting the claim of the petitioner, which is subject matter of challenge in the instant petition. 10. The petitioner has alleged that Shri B.S. Sandhu, the then Inspector General of Prisons was biased against him. His participation in the entire proceedings of Departmental Promotion Committee was illegal and violative of principle of natural justice. The petitioner has claimed that Shri B.S. Sandhu-respondent No. 2 was interested to keep him out in order to secure his own posting 4 C.W.P. No. 4915 of 1995 (O&M) and extension to the post of Inspector General of Prisons. The petitioner has also alleged that promotion of Shri Amrik Singh as D.I.G. Prisons is against the provisions of Rule 6 of the Punjab Prisons State Service Class I Rules, 1979 (for brevity, 'the Rules'), which reads thus: “Rule 6 METHOD OFAPPOINTMENT (1) Appointment to posts in service shall be made as under:- a) In the case of Inspector General of Prisons- (i) by selection from amongst the officers of the department holding the posts specified in Group II and Group III of Appendix 'A' who have an experience of working on any one or more of these posts for a minimum period of 7 years; (ii) by transfer of deputation of an officer in the cadre of I.A.S., I.P.S., or P.C.S.(Selection Grade). (b) In case of Deputy Inspector General of Prisons, by selection from amongst the officers mentioned in Group III of Appendix 'A' who have an experience of working on either or both of the posts of Superintendent Central Jail and Assistant Inspector General of Prisons, for a minimum period of five yeas. (c) In the case of Assistant Inspector General of Prisons or Superintendent, Central Jail by promotion from amongst the Superintendent, District Jail, and 5 C.W.P. No. 4915 of 1995 (O&M) Deputy Superintendent, Ist Grade who are members of Punjab Prisons Service (Class II ) and have an experience of working on either or both of these posts for a minimum period of five years. (2) All appointments to posts in the service shall be made by selection on the basis of merit and no person shall have the right for promotion on the basis of seniority alone.” 11. According to the petitioner, Shri Amrik Singh-respondent No. 3, who has been selected as D.I.G. Prisons, was not having experience for a minimum period of five years on either or both of the posts of Superintendent, Central Jail and Assistant Inspector General of Prisons. Respondent No. 3 was appointed as Superintendent on 17.2.1989. Till 1.5.1993, he had experience of only 4 years 2 months and 14 days. The vacancy became available on 1.5.1993 on account of retirement of Mr. M.L. Sandhu. The instructions which governs setting up of DPC and departmental eligibility for promotion to the higher post from the date of occurrence of the vacancy have not been followed by the department while promoting Shri Amrik Singh-respondent No. 3. 12. In the written statement filed by the Deputy Secretary to Government of Punjab, Department of Home Affairs and Justice, the stand taken is that the petitioner was duly considered for promotion by the Departmental Promotion Committee on 14.3.1995. He was not found suitable for promotion. His case for promotion as DIG Prisons was not approved. It has been high lighted that the petitioner had merely a right of consideration for promotion and not a right to be actually promoted. Chances of promotion are not 6 C.W.P. No. 4915 of 1995 (O&M) conditions of service and are defeasible. Refuting the allegation of bias, referring to Rule 6(1)(a) of the Rules, it has been submitted that appointment to the post of Inspector General of Prisons is to be made by selection from amongst the officers of the department holding the posts specified in Group-II and Group-III of Appendix 'A', who have an experience of working on one or more posts for a minimum period of 7 years. The appointment can also be made by way of transfer or deputation. 13. It has further been pointed out that Shri B.S. Sandhu- respondent No. 2 was merely a member of the Departmental Promotion Committee and was not the final authority for appointing DIG Prisons from the cadre of I.A.S., I.P.S., or P.C.S. (Selection Grade). The Home Secretary to the Government was the Chairman of the Departmental Selection Committee. Similarly, Shri B.S. Sandhu-respondent No. 2 was not the final authority for recording the Annual Confidential Report. The Home Secretary/Secretary Jail and Justice is the accepting authority of in respect of the Annual Confidential Report of the petitioner. According to the official respondents in these circumstances it cannot be said that Shri B.S. Sandhu-respondent No. 2 was instrumental or exercised any influence not to promote the petitioner to the post of D.I.G. Prisons. In fact, the petitioner's case for promotion to the post of D.I.G. Prisons was duly considered by the DPC as per directions of Hon'ble the Supreme Court. However, on account of adverse entry in the Annual Confidential Report for the year 1992-93, doubting his honesty, the petitioner was not found fit for the post of D.I.G. (Prisons). 14. Shri B.S. Sandhu-respondent No. 2 has also filed written 7 C.W.P. No. 4915 of 1995 (O&M) statement denying all the assertions of mala fide and bias made against him. Reiterating the same stand, it has been stated that the petitioner was duly considered for promotion and due to pendency of charge sheet his case for promotion was rejected vide order dated 24.8.1993 (P-3) and later vide order dated 14.3.1995 (P-9). He was found unfit for promotion due to his adverse remarks for the year 1992-93. Regarding his participation in the DPC, it has been explained that in the capacity of Head of the Prisons Department, he has to participate in the DPC. However, the meeting of the DPC was chaired by the Principal Secretary Home. Therefore, all the deliberations of the DPC were as per rules and they do not suffer from any irregularity. It has been further asserted that the proceedings of the DPC were conducted as per Government instructions. 15. It is apposite to mention here that by a judgment of the even date, we have allowed CWP No. 15012 of 1994 filed by the petitioner challenging the adverse remarks in the Annual Confidential Report for the year 1992-93. It has been held in the said judgment that the Annual Confidential Report for the year 1992-93 has not been recorded on correct facts. In fact, the petitioner duly informed the respondent department about purchase of 1 bigha of land and construction of 2/3 shops. Moreover, this allegation has already been dropped in the inquiry conducted by the respondent department. After going through the official record, we found that the petitioner has a clean record throughout his service by earning 'Very Good' and 'Outstanding' reports. From the very fact that he was sanctioned leave, it could not be recorded that he was an irresponsible officer who avoided difficult posting. 8 C.W.P. No. 4915 of 1995 (O&M) 16. As a sequel to the above discussion and in view of the observations made by us in the judgment of even date rendered in Civil Writ Petition No. 15012 of 1994, we set aside the order dated 14.3.1995 (P-9). The respondents are directed to consider the case of the petitioner for promotion to the post of D.I.G. (Prisons) without taking into consideration the Annual Confidential Report for the year 1992-93. It is worthwhile to note here that Hon'ble the Supreme Court, vide judgment dated 31.1.1995, has already issued direction not to consider the pendency of regular inquiry while considering his case for promotion. The needful shall be done within a period of three months from the date of receipt of a copy of this judgment. No order as to costs. 17. Before parting it is relevant to mention that during the pendency of the instant petition the petitioner filed an application under Section 340 of the Code of Criminal Procedure. However, it is dismissed as we do not find any good ground to entertain the same. (M.M. KUMAR) (RITU BAHRI) JUDGE JUDGE April 1, 2011 Anoop/Pkapoor 9