IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Civil Writ Petition No.11575 of 2008
Date of Decision: November 10, 2009
Jagir Singh
.....PETITIONER(S)
VERSUS
State of Punjab & Others
.....RESPONDENT(S)
. . .
CORAM: HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: - Mr. G.S. Bal, Advocate, for the
petitioner.
Ms. Charu Tuli, Senior Deputy
Advocate General, Punjab, for the
respondents.
. . .
AJAI LAMBA, J (Oral)
Jagir Singh, Head Constable,
serving in Punjab Police has filed this petition
under Article 226/227 of the Constitution of
India praying for issuance of a writ in the
nature of certiorari, quashing Order dated
1.10.2007 (Annexure P-9) whereby benefits given
under Order, Annexure P-1 have been withdrawn.
Substance of order dated 28.1.2005,
Annexure P-1 reads as under:-
“….The name of Head Constable Jagir Singh No.759/PTL
hereby exempted from passing intermediate School Course
at PPA, Phillaur and his name is approved for admission
to promotion list D-II (Exemptee) with immediate effect.
His name is further approved for promotion to the rank of
CWP No.11575 of 2008 [2]
Officiating Assistant Sub-Inspector, by exercising powers
under P.P.R.13.21, in view of his outstanding
performance.
2. Formal orders in this regard will be issued by Dy.
Inspector General of Police, Patiala Range, Patiala, if the
above said official is not facing any Departmental/
Vigilance enquiry or criminal proceedings.”
It has been pleaded that the
petitioner joined Punjab Police on 16.12.1980.
After passing Lower School Course, the petitioner
was granted promotion as Head Constable w.e.f.
21.9.1989 and was confirmed as such on 21.9.1991.
Vide Order dated 28.1.2005, Annexure P-1, the
petitioner was granted exemption from passing
Intermediate School Course. Further the name of
the petitioner was approved for admission to
promotion list D-II. The petitioner further was
approved for promotion to the rank of Assistant
Sub Inspector (Officiating) by respondent No.2
i.e. Director General of Police, Punjab, while
exercising powers under Rule 13.21 of Punjab
Police Rules, 1934 (for short, `the Rules’).
Further details are not required to
be given in so much as Order dated 28.1.2005
(Annexure P-1) has been withdrawn by virtue of
subsequent order passed by the Director General
of Police, Punjab, on 1.10.2007 (Annexure P-9).
Gist of the first argument
addressed by learned counsel for the petitioner
CWP No.11575 of 2008 [3]
is that as per law laid down, the Director
General of Police is required to assign reasons
for invoking powers under Rule 13.21 of the
aforesaid Rules. Although Annexure P-1 discloses
no reason, the order is legal in so much as the
reasons have been noticed and recorded on the
file.
The second argument of learned
counsel is that after passing of order, Annexure
P-1, the petitioner has been serving. Service
rendered by the petitioner is exemplary as is
made out from Orders, Annexure P-5 dated
30.7.2005, passed by the Deputy Superintendent of
Police, Sub Division, Rajpura; and Annexure P-6
dated 17.8.2005 passed by the Senior
Superintendent of Police, Patiala. On the
strength of these two documents, it has been
argued that the petitioner is entitled to retain
the benefits arising out of order, Annexure P-1.
The third contention of learned
counsel is that once the benefit has been given
under Annexure P-1, the same could only be
withdrawn in accordance with law, under Rule
13.12(2) of the Rules.
Learned counsel for the respondent
has pointed out that in a very whimsical manner
without assigning any reasons, the exemption was
CWP No.11575 of 2008 [4]
given as is evident from perusal of order
Annexure P-1. It has further been contended that
Division Bench of this Court while dealing with
CWP No. 18254 of 2004 decided on 15.10.2008, Vibhor Kumar Vs.
State of Punjab and Others has held in the following
terms:-
“We now proceed to deal with the rival contentions of
the counsel. A perusal of Rule 13.21 of the Punjab Po-
lice Rules shows that the power of relaxation con-
tained in the said Rule can be exercised “with respect
to any class or category of persons”. This apart, while
exercising this power, certain reasons have to be re-
corded in writing. However, the order passed by the
DGP in the present case shows that the power has
been exercised not in respect of any class or category
but in respect of an individual. Besides, the order
passed by the DGP does not specify the reasons for
granting the relaxation except that it was in recogni-
tion of his outstanding performance. On the other
hand, learned counsel for the State has contended that
illegal benefit had been conferred upon the petitioner
dehors the mandate of statutory rules.
From a perusal of the record it is clear that the peti-
tioner was granted out of turn promotion while on
deputation. However, the order whereby the said rule
was invoked, does not given any reasons for exercise
of power under the said rule. Needless to say that the
DGP could not have invoked rule 13.21 to grant re-
laxation to the petitioner, at his whim. The order mush
show valid reasons for exercise of this power for pro-
moting a police official to a higher rank. In the present
case, however, no such reason is discernible from a
perusal of the impugned order.”
It transpires from the judgment of
this Court that the order passed under Rule
13.21 of PPR needs to assign reasons within the
scope of the provisions of the Rule.
Learned counsel for the respondent-
CWP No.11575 of 2008 [5]
State, on the strength of original record brought
to Court for its consideration, states that the
facts revealed from the file are surprising. The
case of the petitioner for giving benefits under
Annexure P-1 was not forwarded by any officer
under whom the petitioner had been serving.
Rather, the matter was put up on the same day
i.e. 28.1.2005 and order Annexure P-1 was passed.
No reasons have been assigned for
giving benefit to the petitioner while invoking
Rule 13.21 of the Rules. It has also been pointed
out that it is a cyclostyled order. Rather the
noting sheet indicates that it originates on
25.5.2005 when the application was sent back from
the office of Director General of Police to
Deputy Inspector General of Police. It has
further been pointed out that the then Director
General of Police namely Mr. A. Siddiqui passed a
number of orders of similar nature without
consideration of merit of individual case, before
the date of his superannuation i.e. 31.1.2005.
Order Annexure P-1, in the present case is one
such order and had been passed on 28.1.2005.
Learned counsel for the petitioner,
faced with the original record, concedes that no
reasons have been assigned for giving benefits to
the petitioner under Order, Annexure P-1.
CWP No.11575 of 2008 [6]
I have considered various
contentions made on behalf of the petitioner.
The short question posed is,
legality of order, Annexure P-1, per-se, which
has subsequently been withdrawn vide impugned
order, Annexure P-9.
Considering the facts as they
emanate from the record viz. no reasons have been
assigned for giving benefits to the petitioner,
out of turn, I find that the matter is covered by
judgment dated 15.10.2008 rendered in Civil Writ
Petition No.18254 of 2004, `Vibhor Kumar vs.
State of Punjab & Others’, relevant portion
whereof has been extracted above.
In view of the above, I hold that
the Director General of Police could not have
invoked Rule 13.21 of the Rules to give approval
to the petitioner for promotion to the post of
officiating Sub Inspector.
I am further constrained to observe
that order Annexure P-1 is whimsical and without
any basis. The petitioner had never served under
the Director General of Police who passed Order,
Annexure P-1, and therefore, had no occasion to
see the work and conduct of the petitioner so as
to term it as “outstanding performance”. The case
was put up by the Personal Assistant whereupon
CWP No.11575 of 2008 [7]
the order had been passed. There are no reasons
assigned on the file so as to relax the condition
and promoting the petitioner to the rank of
Assistant Sub Inspector (Officiating). Although
Order Annexure P-1 records that the performance
of the petitioner was outstanding, the Director
General of Police had no inputs in regard to the
work and conduct of the petitioner from the
officers under whom the petitioner had served.
In view of the above, order
Annexure P-1 is clearly arbitrary, unreasonable
and unjustifiable. In such facts and
circumstances, the first argument of learned
counsel for the petitioner holds no merit and the
same is rejected.
So far as the second argument of
learned counsel for the petitioner is concerned,
Orders Annexure P-5 and P-6 are dated 30.7.2005
and 17.8.2005 respectively. Subsequent conduct of
the petitioner shall not entitle the petitioner
to a benefit granted earlier in point of time by
virtue of Annexure P-1 dated 28.1.2005. The
conduct and quality of service and performance of
the petitioner was required to be considered
before passing of order. This having not done,
subsequent good conduct of the petitioner will
not attach reasons and legitimacy to action of
CWP No.11575 of 2008 [8]
the respondents i.e. to an order passed earlier
i.e. Annexure P-1.
So far as the third argument is
concerned, reference has been made to Rule 13.12
(2) of the Rules, relevant portion of which, when
extracted, reads as under:-
(2) The conduct and efficiency of men on lists D
and E shall be at all times watched with special care. Any
officer, who, whether in his substantive rank or while
officiating as an Assistant Sub Inspector of Sub-Inspector,
is guilty of misconduct of a nature reflecting upon his
character or fitness for responsibility, or who shows either
by specific acts or by his record as a whole, that he is unfit
for promotion to higher rank shall be reported to the
Deputy Inspector-General for removal from list D or list E,
as the case may be…..”
Learned counsel for the petitioner
contends that in the intervening period, the
petitioner has not been guilty of any misconduct
of a nature reflecting upon his character or
fitness for responsibility. In such
circumstances, name of the petitioner cannot be
removed from List D-II.
I have considered this third
contention.
The issue has to be considered in
the context of benefit initially granted to the
petitioner vide Annexure P-1. In view of the fact
that it has already been held that Annexure P-1
is without any application of mind; dehors the
record of the petitioner; in violation of rules;
CWP No.11575 of 2008 [9] and therefore is arbitrary, the contention of learned counsel cannot be accepted. The
petitioner was promoted as officiating Assistant
Sub Inspector vide an illegal order in arbitrary
exercise of power. Exemption was given to the
petitioner from passing intermediate course and
his name was approved for ptomotion List D-II
(Exemptee) vide an illegal order passed without
recording reasons and basis. Order does not
disclose as to what weighed with the then
Director General of Police to grant exemption to
the petitioner from passing intermediate course.
Since the order is illegal, no legal
consequences, as prayed on behalf of the
petitioner would flow. Subsequent conduct will
not make the order Annexure P-1 legitimate.
There is another aspect of the matter. By virtue of giving benefits to the
petitioner out of turn and in a discriminatory
exercise of power, the persons who could be
considered instead, could not be considered.
Under the circumstances, it would
be against principle of equity to make an
illegitimate order legitimate, that has been
procured through arbitrary and injustifiable
action. If the order itself is found to be result
of colourable exercise of power, the petitioner
CWP No.11575 of 2008 [10]
cannot claim that subsequent events, such as the
good service rendered by the petitioner after
passing of order Annexure P-1, be taken into
account to sustain the order (Annexure P-1).
Perusal of impugned order Annexure
P-9 shows that while passing the order, relevant
facts and circumstances have been taken into
account viz; a number of senior intermediate
school course qualified Head Constables on list
`D’ are waiting their turn for promotion to the
rank of ASIs; there is no outstanding work of
professional merit on official record of
petitioner which would justify his exemption and
out of turn promotion; the case needs to be
reviewed for withdrawal of exemption and
promotion in the light of High Court direction
dated 5.5.1970 passed in Civil Writ Petition
No.1692 of 1969, `Sardul Singh vs. I.G. State
Police Punjab’. Order Annexure P-9 has been
passed after giving an opportunity of hearing to
the petitioner. Under the circumstances, no
illegality can be traced in the action of the
respondents in passing order Annexure P-9 and
review of order Annexure P-1.
In view of the above, the petition
is dismissed.
It is however made clear that the
CWP No.11575 of 2008 [11]
petitioner would be entitled to promotion on his
own turn.
(AJAI LAMBA)
November 10, 2009 JUDGE
avin
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?