Case: SUSHIL KUMAR Vs. THE STATE OF HARYANA &amp; ORS

Provided that list B-1 shall not be final until the same is approved by the Inspector General of Police/Deputy Inspector General of Police, who is the controlling officer of the said Superintendent of Police or Commandant. The Inspector General of Police/Deputy Inspector General of Police shall accord his approval only after due scrutiny of the list about its correctness. He will also be competent to refer the list back to the Superintendent of Police or Commandant from whom it had been received for correction of errors/omission, if any, in the list and will also be competent to seek clarification about some points from the Departmental Promotion Committee if he considers necessary. 7. The mandate of the above rule for appointment to the post of Head Constable under the aforementioned 10% quota for outstanding performance can be restated as under - 7.1 There shall be a Departmental Promotion Committee (DPC) in every district/unit comprising of the SP/ Commandant and two Deputy Superintendent of Police, headed by the SP. 7.2 The DPC shall prepare a list called List B-I. The list will be prepared from among the eligible candidates to be appointed the requirement of which is specified under Rule 13.7. All constables irrespective of their educational qualifications shall be eligible to be brought on list B-I on the basis of consistent outstanding performance in job or exceptional display of bravery during the course of performance of official duty if they are under the age of 40 years and have completed two years of service on the first day of January of the year in which selection is made. 7.3 The List prepared by the DPC, headed by the SP will be forwarded to the Inspector General of Police/ Deputy Inspector General of Police (hereinafter IG/DIG) who is the Cadre Controlling Officer of the SP/Commandant. (i) The IG/DIG will undertake and examine its correctness. (ii) The IG/DIG will be competent to seek clarifications from the DPC if he considers it to be necessary. (iii) He is also competent to refer the list back to the SP for correction of any error or omission. (iv) The IG/DIG shall thereafter accord his approval. (v) It is specifically provided that the List shall not be final until the same is approved by the IG/DIG. 7.4 IG/DIG shall send its recommendations on behalf of each unit to the CDPC. The CDPC is appointed by the Director General of Police, (hereinafter the DGP). 7.5 Finally, the 10% quota is allocated out of a State Level Comparative Merit List prepared on the basis of the list sent from each unit by the IG. Findings- 8. In view of the clear procedure laid down under the Rule 13.7, the contentions of the Appellant must fail for the following reasons- 8.1 In the first place, the assumption that the recommendation of DPC headed by the SP is final and that the IG has no power to review or substitute the decision is misconceived. The Rule itself clarifies the position that the recommendations of the SP are not final until the same is approved by the IG. Further, the powers of the IG are elucidated clearly in Rule 13.7(14). It is stated that the approvalis by the Cadre Controlling Authority of the SP. It is the IG, who shall accord approval only upon scrutiny. This means if the IG is not satisfied, he shall not accord approval. The scope of the power vested in the IG is also indicated in the Rule which provides that he can seek clarifications from the DPC and also refer the List back to the SP for corrections/omissions if he thinks it is necessary. Having considered the Rule in its entirety, we are of the opinion that the recommendation of the DPC is not final. It is also evident that the recommendation of the DPC does not give any indefinite right to be appointed as Head Constable. 8.2 The 10% quota for constables having outstanding performance will be filled on the basis of State level comparative merits. As indicated above, there is a three-stage scrutiny before a constable is selected as a Head Constable. The third stage requires the candidate to be sufficiently high in the State Level Comparative Merit of the candidates to be selected under the 10% quota. Therefore, it can never be contended that mere recommendation of the SP at the initial stage is sufficient to claim a right for promotion. The further contention of the Appellant is that the power of the IG is not discretionary but mandatory is also incorrect as Sub-rule 14 of Rule 13.7 clearly empowers the IG to exercise the power of scrutiny and grant approval. This power would also extend to not granting an approval if the IG is not satisfied. Therefore, the power is not be rested solely on the basis of the word through in Rule 13.7(9). 8.3 As far as the contention of Appellant that the subsequent recommendation was also on the very same outstanding performance is concerned, it is to be noted that the merits and accolades of the candidates recommended for promotion vary from year to year on a comparative merit scale. The competitive environment differs from year to year. The scrutiny is dynamic and cannot be adjudged on the basis of a previous years performance. The Appellants accolades may not have made a fit case to be recommended in the year 2004 but the same could make a fit case to be considered in a subsequent year. It is the domain of the IG as also the CDPC to analyse, consider and clear the names of the candidates found fit to be promoted in the List B-I for that year and it must best be left to the discretion of the said authorities. 8.4 The Single Judge as well as the Division Bench for good reasons refrained from going into the individual comparative merit. In judicial review proceedings, the Courts are concerned with the decision-making process and not the decision itself.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. In view of the clear procedure laid down under the Rule 13.7, the contentions of the Appellant must fail for the following reasons-8.1 In the first place, the assumption that the recommendation of DPC headed by the SP is final and that the IG has no power to review or substitute the decision is misconceived. The Rule itself clarifies the position that the recommendations of the SP are not final until the same is approved by the IG. Further, the powers of the IG are elucidated clearly in Rule 13.7(14). It is stated that the approvalis by the Cadre Controlling Authority of the SP. It is the IG, who shall accord approval only upon scrutiny. This means if the IG is not satisfied, he shall not accord approval. The scope of the power vested in the IG is also indicated in the Rule which provides that he can seek clarifications from the DPC and also refer the List back to the SP for corrections/omissions if he thinks it is necessary. Having considered the Rule in its entirety, we are of the opinion that the recommendation of the DPC is not final. It is also evident that the recommendation of the DPC does not give any indefinite right to be appointed as Head Constable.8.2 The 10% quota for constables having outstanding performance will be filled on the basis of State level comparative merits. As indicated above, there is a three-stage scrutiny before a constable is selected as a Head Constable. The third stage requires the candidate to be sufficiently high in the State Level Comparative Merit of the candidates to be selected under the 10% quota. Therefore, it can never be contended that mere recommendation of the SP at the initial stage is sufficient to claim a right for promotion. The further contention of the Appellant is that the power of the IG is not discretionary but mandatory is also incorrect as Sub-rule 14 of Rule 13.7 clearly empowers the IG to exercise the power of scrutiny and grant approval. This power would also extend to not granting an approval if the IG is not satisfied. Therefore, the power is not be rested solely on the basis of the word through in Rule 13.7(9).8.3 As far as the contention of Appellant that the subsequent recommendation was also on the very same outstanding performance is concerned, it is to be noted that the merits and accolades of the candidates recommended for promotion vary from year to year on a comparative merit scale. The competitive environment differs from year to year. The scrutiny is dynamic and cannot be adjudged on the basis of a previous years performance. The Appellants accolades may not have made a fit case to be recommended in the year 2004 but the same could make a fit case to be considered in a subsequent year. It is the domain of the IG as also the CDPC to analyse, consider and clear the names of the candidates found fit to be promoted in the List B-I for that year and it must best be left to the discretion of the said authorities.8.4 The Single Judge as well as the Division Bench for good reasons refrained from going into the individual comparative merit. In judicial review proceedings, the Courts are concerned with the decision-making process and not the decision itself.