SUSHIL KUMAR versus THE STATE OF HARYANA & ORS on 19 January 2022

[2022] 16 S.C.R. 279

SUSHIL KUMAR

v.

THE STATE OF HARYANA & ORS.

(Civil Appeal No. 401 of 2022)

JANUARY 19, 2022

[K. M. JOSEPH AND PAMIDIGHANTAM SRINARASIMHA, JJ.]

Punjab Police Rules, 1934: rr. 12.10, 13.1, 13.7 – Promotionto Head Constable – Promotion under the 10% quota of outstandingperformance for inclusion in the B-I List – Recommendation powerof Departmental Promotion Committee (DPC) – Power of InspectorGeneral of Police (IG) to review or substitute the recommendationsof Superintendent of Police (SP) – Appellant was appointed as aHead Constable in the year 1995 – His name was recommended bythe SP under the 10% quota of outstanding performance forinclusion in the B-I List for promotion to the post of Head Constablein the year 2004 – However, his name was dropped down by the IG– Three years later, i.e., in 2007, his name was again forwarded bythe SP and this time it was passed by the IG, by virtue of which hewas granted promotion and was made the Officiating HeadConstable from 2008 – Appellant filed writ petition in 2011 seekingretrospective promotion with effect from 2004, his grievance wasthat he should have been promoted in the year 2004 itself and thatthe delay in appointing him in 2008 is illegal and arbitrary – HighCourt dismissed the petition on the ground that selection is not amatter of right – Held: In view of the clear procedure laid downunder Rule 13.7, the claim of the appellant fail as the assumptionthat the recommendation of DPC headed by the SP is final and thatthe IG has no power to review or substitute the decision ismisconceived – The Rule itself clarifies the position that therecommendation of the SP is not final until the same is approved bythe IG – Further, the powers of the IG are elucidated clearly inr.13.7(14) – It is stated that the ‘approval’ is by the Cadre ControllingAuthority of the SP – It is the IG, who shall accord ‘approval’ onlyupon scrutiny – This means if the IG is not satisfied, he shall notaccord approval – The scope of the power vested in the IG is alsoindicated in the Rule which provides that he can seek clarifications

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Afrom the DPC and also refer the list back to the SP for corrections/omissions if he thinks it is necessary – Thus, the recommendation ofthe DPC is not final and does not give any indefinite right to beappointed as Head Constable – Service law.

Dismissing the appeal, the CourtB

HELD: 1.1 In view of the clear procedure laid down underthe Rule 13.7, the contentions of the Appellant must fail as theassumption that the recommendation of DPC headed by the SP isfinal and that the IG has no power to review or substitute thedecision is misconceived. The Rule itself clarifies the positionCthat the recommendations of the SP are not final until the same isapproved by the IG. Further, the powers of the IG are elucidatedclearly in Rule 13.7(14). It is stated that the ‘approval’ is by theCadre Controlling Authority of the SP. It is the IG, who shallaccord ‘approval’ only upon scrutiny. This means if the IG is notsatisfied, he shall not accord approval. The scope of the powerDvested in the IG is also indicated in the Rule which provides thathe can seek clarifications from the DPC and also refer the Listback to the SP for corrections/omissions if he thinks it is necessary.The recommendation of the DPC is not final. It is also evidentthat the recommendation of the DPC does not give any indefiniteEright to be appointed as Head Constable. [Para 8, 8.1][286-F-H;287-A-B]

1.2 The third stage of scrutiny before a constable is selectedas a Head Constable. requires the candidate to be sufficientlyhigh in the State Level Comparative Merit of the candidates toFbe selected under the 10% quota. Therefore, it can never becontended that mere recommendation of the SP at the initial stageis sufficient to claim a right for promotion. The further contentionof the Appellant is that the power of the IG is “not discretionarybut mandatory” is also incorrect as Sub-rule 14 of Rule 13.7 clearlyempowers the IG to exercise the power of scrutiny and grantGapproval. This power would also extend to not granting anapproval if the IG is not satisfied. Therefore, the power is not berested solely on the basis of the word “through” in Rule 13.7(9).[Para 8.2][287-B-D]

1.3 As far as the contention of Appellant that the subsequentHrecommendation was also on the very same outstanding performance is concerned, it is to be noted that the merits andaccolades of the candidates recommended for promotion varyfrom year to year on a comparative merit scale. The competitiveenvironment differs from year to year. The scrutiny is dynamicand cannot be adjudged on the basis of a previous year’sperformance. The Appellant’s accolades may not have made a fitcase to be recommended in the year 2004 but the same couldmake a fit case to be considered in a subsequent year. It is thedomain of the IG as also the CDPC to analyse, consider and clearthe names of the candidates found fit to be promoted in the ListB-I for that year and it must best be left to the discretion of thesaid authorities. [Para 8.3][287-E-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 401 of2022.

From the Judgment and Order dated 19.11.2015 of the High Courtof Punjab and Haryana at Chandigarh in LPA No. 1910 of 2010.

Surender Kumar Gupta, Chitvan Singhal, Ms. Priyanka Terdal,Ms. Priya Mishra, Advs. for the Appellant.

Raj Singh Rana, Addl. AG, Pankaj Kumar Singh, Dinesh KumarMudgal, Vishwa Pal Singh, Ms. Kiran Bala Dewangan, Jhingan AshwaniOmprakash, Prijender Singh Dhull, Arihant Mehta, Vikas Gothwal, Advs.for the Respondents.

The Judgment of the Court was delivered by PAMIDIGHANTAM SRI NARASIMHA, J.

Leave granted.

2. This Civil Appeal arises out of the final judgment and orderdated 29.07.2015 of the High Court of Punjab and Haryana at Chandigarhpassed in LPA No. 1910 of 2011.

3. The Appellant was appointed as a Constable in the year 1995.It is his case that he was positioned as a Head Constable under theextent ORP Policy on 21.08.2001. Due to his acts of bravery his namewas recommended by the Superintendent of Police (hereinafter ‘theSP’) for promotion under the 10% quota of outstanding performance forinclusion in the B-I List for promotion to the post of Head Constable in AB

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Athe year 21.01.2004. However, the Appellant’s name was dropped downby the Inspector General of Police (hereinafter the ‘IG’), when only 7out of the 9 names were forwarded to the Central Departmental PromotionCommittee (hereinafter the ‘CDPC’). Three years thereafter, i.e., in2007 his name was again forwarded by the SP and this time it waspassed by the IG, by virtue of which he was granted promotion and wasBmade the Officiating Head Constable from 26.10.2008. It is his grievancethat he should have been promoted in the year 2004 itself and that thedelay in appointing him in 2008 is illegal and arbitrary. He filed a writpetition in 2011 seeking retrospective promotion with effect from21.01.2004. The Single Judge dismissed the petition on the ground thatCselection is not a matter of right. Writ appeal was also dismissed by theDivision Bench by the order impugned herein.

4. The learned counsel for the Appellant, Shri Surender KumarGupta has argued that the IG has no power to interfere with therecommendation of the SP. He further alleges that when the SP hasDforwarded the decision of the Departmental Promotion Committee(hereinafter ‘DPC’), the IG does not act as the appellate authority andcannot substitute his decision to that of the DPC. It is also contendedthat the IG has no power to adjudge the comparative merit in list B-Iprepared by the DPC. He further submits that the IG has not given anyreasons nor was the Appellant given any opportunity of hearing. HeEalleges that he is far more meritorious than the ones who have beenrecommended by the SP and approved by the IG in 2004. It is his casethat the decision is arbitrary because the very same credentials enabledhim to be selected and recommended in 2007. He has therefore prayedfor retrospective promotion from the year 2004.F

5. The learned Additional Advocate General for the Respondent-State, Shri Raj Singh Rana, has submitted that the names recommendedby the SP to the CDPC are only provisional and subject to ratification bythe IG, and mere forwarding of the name of the Appellant by the SP willnot create any right of promotion in his favour. He has submitted that theGword “through” in Rule 13.7(9) of the Punjab Police Rules, 1934 callsfor application of mind by the IG and not mere forwarding of therecommendations as sent by the concerned unit head. The Respondentshave alleged that the seven constables appointed were more qualifiedthan the Appellant.

The Rules:

6. The present appeal pertains to the promotion of Constables tothe post of Head Constables in the State of Haryana. The matters relatingto the promotion of Constables to the rank of Head Constables aregoverned under the Punjab police Rules, 1934 as applicable in the Stateof Haryana.

6.1 The scheme of appointment and promotion is governed by theprovisions which are as follows:

12.10 Appointment of Head Constable: Head constables shallbe appointed by promotion from selection grade constablesin accordance with rules 13.7 and 13.8.

13.1 Promotion from one rank to another.

(3) For the purposes of regulating promotion amongst enrolledpolice officers six promotion lists- A,B,C,D,E and F will bemaintained.

Lists A, B, C, and D shall be maintained in each district asprescribed in rules 13.6, 13.7, 13.8 and 13.9 and will regulatepromotion to the selection grade of constables and to theranks of head constables and assistant sub-inspector.........

6.2 Chapter 13 of the Rules lay down the scheme for promotion.Rule 13.7 is concerned with the selection of candidates for admission tothe Lower School Course at the Police Training College out of whichpostings of Head Constables are made. The Head Constables areselected out of a list of Selection Grade Candidates which is made out ofthree sources being: (a) direct recruitment-(55% quota), (b) Seniority-cum-merit -(35% quota) (c) Outstanding performance-(10% quota). Rule13.7 prescribing the method of selection, leading to the appointment ofHead Constable, to the extent that it is relevant for the 10% quota isextracted herein below:

“13.7 Selection of candidates for admission to courses at thePolice Training College: List B (in Form 13.7) shall bemaintained by each Superintendent of Police. It shall includethe names of all constables selected for admission to the LowerSchool Course to be held at the Police Training College.Selection to the list B shall be made in the month of Januaryeach year and shall be limited to the number of seats allotted A

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to the district for the year. The number of seats in Lower SchoolCourse in a year shall be allotted on the basis of existingvacancies and the vacancies likely to be created within oneyear in the respective unit. 55% of the seats allotted to a unitin the Lower School Course shall be filled in on the basis ofa competitive examination, 35% on the basis of seniority-cum-fitness and 10% on the basis of consistent outstandingperformance in job/obtaining Gold or Silver Medal in All IndiaPolice Games/Duty Meet/National Games or exceptionaldisplay of bravery during the course of performance ofofficial duty…………

(2) (iii) All constables irrespective of their educationsqualifications shall be eligible to be brought on list B-1, onthe basis of consistent outstanding performance in job/obtaining Gold or Silver medal in All India Police Games/Duty Meets/National or International Games or exceptionaldisplay of bravery during the course of performance ofofficial duty if they are under the age of 40 years and havecompleted two years of service on the first day of January ofthe year in which selection is made. Only those constablesshall be brought on list B-1 after two years of service, butbefore five year of service who have won a medal inInternational Sports events like Olympics, Asian Games,Commonwealth Games or similar International events.Constables who have won medals in National Games/All IndiaPolice Games/Duty Meets and who are being considered forexceptional bravery or consistent outstanding performanceshall be considered only if, they have put in the minimum fiveyear of service……….

(9) Various units shall be allotted only 90% of total seats ofthe year for list B and candidates for 10% seats common toall units shall be selected by Central Departmental Committee.For selecting 10% of the candidates on the basis of consistentoutstanding performance in job/attaining Gold or SilverMedal in All India Police Games/Duty Meet/National Gamesor exceptional display of bravery in the job, each unit shallsend its recommendation through the concerned InspectorsGeneral of Police/Deputy Inspectors General of Police to the SUSHIL KUMAR v. THE STATE OF HARYANA & ORS.[PAMIDIGHANTAM SRI NARASIMHA, J.]

Central Departmental Promotion Committee to be appointedfor the entire State by the Director General of Police. These10% seats shall be filled in on the basis of State levelcomparative merit of candidates sponsored by the units asabove on the recommendation of the State level DepartmentalPromotion Committee. Such candidates recommended by theabove Departmental Promotion Committee shall be assignedto various units for inclusion in list B against 10% quotairrespective of the unit to which the candidate originallybelongs……

(14) A Departmental Promotion Committee headed by theSuperintendent of Police/commandant of the concerneddistrict or unit and consisting of two Deputy Superintendentsof Police shall prepare list B-1: Provided that list B-1 shallnot be final until the same is approved by the InspectorGeneral of Police/Deputy Inspector General of Police, whois the controlling officer of the said Superintendent of Policeor Commandant. The Inspector General of Police/DeputyInspector General of Police shall accord his approval onlyafter due scrutiny of the list about its correctness. He willalso be competent to refer the list back to the Superintendentof Police or Commandant from whom it had been received

for correction of errors/omission, if any, in the list and willalso be competent to seek clarification about some points fromthe Departmental Promotion Committee if he considersnecessary.”

7. The mandate of the above rule for appointment to the post ofHead Constable under the aforementioned 10% quota for outstandingperformance 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 DeputySuperintendent of Police, headed by the SP.

7.2 The DPC shall prepare a list called List B-I. The list will beprepared from among the eligible candidates to be appointed therequirement of which is specified under Rule 13.7. All constablesirrespective of their educational qualifications shall be eligible to bebrought on list B-I on the basis of consistent outstanding performance in AB

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Ajob or exceptional display of bravery during the course of performanceof official duty if they are under the age of 40 years and have completedtwo years of service on the first day of January of the year in whichselection is made.

7.3 The List prepared by the DPC, headed by the SP will beBforwarded to the Inspector General of Police/ Deputy Inspector Generalof Police (hereinafter IG/DIG) who is the Cadre Controlling Officer ofthe SP/Commandant.

(i) The IG/DIG will undertake and examine its correctness.

(ii) The IG/DIG will be competent to seek clarifications from theCDPC if he considers it to be necessary.

(iii) He is also competent to refer the list back to the SP forcorrection of any error or omission.

(iv) The IG/DIG shall thereafter accord his approval.

D(v) It is specifically provided that the List shall not be final untilthe same is approved by the IG/DIG.

7.4 IG/DIG shall send its recommendations on behalf of each unitto the CDPC. The CDPC is appointed by the Director General of Police,(hereinafter the DGP).

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7.5 Finally, the 10% quota is allocated out of a State LevelComparative Merit List prepared on the basis of the list sent from eachunit by the IG.

-Findings

F8. 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 ofDPC headed by the SP is final and that the IG has no power to review orsubstitute the decision is misconceived. The Rule itself clarifies the positionGthat the recommendations of the SP are not final until the same is approvedby the IG. Further, the powers of the IG are elucidated clearly in Rule13.7(14). It is stated that the ‘approval’ is by the Cadre ControllingAuthority of the SP. It is the IG, who shall accord ‘approval’ only uponscrutiny. 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 H

which provides that he can seek clarifications from the DPC and alsorefer the List back to the SP for corrections/omissions if he thinks it isnecessary. Having considered the Rule in its entirety, we are of theopinion that the recommendation of the DPC is not final. It is also evidentthat the recommendation of the DPC does not give any indefinite rightto be appointed as Head Constable.

8.2 The 10% quota for constables having outstanding performancewill be filled on the basis of State level comparative merits. As indicatedabove, there is a three-stage scrutiny before a constable is selected as aHead Constable. The third stage requires the candidate to be sufficientlyhigh in the State Level Comparative Merit of the candidates to be selectedunder the 10% quota. Therefore, it can never be contended that mererecommendation of the SP at the initial stage is sufficient to claim a rightfor promotion. The further contention of the Appellant is that the powerof the IG is “not discretionary but mandatory” is also incorrect asSub-rule 14 of Rule 13.7 clearly empowers the IG to exercise the powerof scrutiny and grant approval. This power would also extend to notgranting an approval if the IG is not satisfied. Therefore, the power isnot 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 subsequentrecommendation was also on the very same outstanding performance isconcerned, it is to be noted that the merits and accolades of the candidatesrecommended for promotion vary from year to year on a comparativemerit scale. The competitive environment differs from year to year. Thescrutiny is dynamic and cannot be adjudged on the basis of a previousyear’s performance. The Appellant’s accolades may not have made afit case to be recommended in the year 2004 but the same could make afit case to be considered in a subsequent year. It is the domain of the IGas also the CDPC to analyse, consider and clear the names of thecandidates found fit to be promoted in the List B-I for that year and itmust best be left to the discretion of the said authorities.

8.4 The Single Judge as well as the Division Bench for good reasonsrefrained from going into the individual comparative merit. In judicialreview proceedings, the Courts are concerned with the decision-makingprocess and not the decision itself.

9. We are of the opinion that there is no illegality or arbitrarinessin the process of selection and for the reasons stated above we are not AB

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[2022] 16 S.C.R.

Ainclined to interfere with the judgment of the High Court. Appeal, istherefore, dismissed. Parties to bear their own costs.

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Devika Gujral and Amarendra Kumar

(Assisted by : Bodhi Ramteke, LCRA)

Appeal dismissed.

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