Vinod Kumar Vs State of Haryana .

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C.A. No. 392 of 2008

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 392 OF 2008

VINOD KUMAR …..... APPELLANT(S)

VERSUS

STATE OF HARYANA & ORS. ….......RESPONDENT(S)

WITH

CIVIL APPEAL Nos. 393 of 2008; 396 of 2008; 405 of 2008; 395 of 2008; 400 of 2008; 402 of 2008; 1811 of 2008; 1721 of 2008; 592 of 2009; 459 of 2008; SLP(C)No. 5080 of 2008; C.A. 9455/2013 (@SLP(C)No. 3932 of 2008) C.A. 9456/2013 (@SLP(C)No. 32653 of 2011)

J U D G M E N T

A.K. SIKRI, J.

1. Though all these appeals were directed to be heard together, during the

course of hearing, it transpired that on facts all these cases are not identical

or of similar nature. At the same time these appeals can be categorized in

three groups. These appeals have arisen from the judgments of Punjab and

Haryana High Court. First judgment in point is dated 4.4.2007, which is the

main judgment, passed by the High Court in batch of writ petitions with

CWP No. 9805 of 2006 as the lead case. Appeal in the said case is C.A. No. 1

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C.A. No. 392 of 2008

392 of 2008. Therefore, we propose to start from this appeal so that the

veracity or the legality of the main judgment is discussed. Some of other

appeals fall in this group and discussions in other groups of appeals would

also flow from this case. In this manner, we would be in a position to proceed

systematically and coherently.

Ist Group Cases

C.A. No. 392 of 2008

2. The appellant in this appeal was recruited into the police service in the State

of Haryana as a Constable in the year 1971. He got promotion to higher ranks

from time to time and became Inspector of Police in the year 2002. During

the course of his employment, an adverse entry was recorded in his Annual

Confidential Report (hereinafter to be referred as 'ACR') for the period

11.10.1989 to 31.3.1990. Though the exact report was not placed on record

either before the High Court or this Court, it is a common case of the parties

that the ACR for this period related to adverse comments on his “integrity”. It

was acknowledged by the appellant's counsel before the High Court that the

said adverse remarks pertained to his character and antecedents.

3. These remarks were recorded by the then Superintendent of Police, Hisar

Range, Hisar. As he wanted these remarks to be expunged, the appellant

made a representation to the Deputy Inspector-General of Police, Hisar. His

representation was rejected on 26.5.1993. Initially, there was a stoic silence

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on the part of the appellant who did not pursue the matter further for quite

some time. However, he woke up from slumber and after almost 9 years, he

made another representation to the Director General of Police, Haryana. This

was accepted by the DGP vide orders dated 15.7.2002 and the aforesaid

remarks were expunged. The operative part of the order of the DGP, Haryana,

in this behalf, is as under:-

“Mercy Petition of ASI Vinod Kumar NO. 345/SR5S (now SI No. 56/H) against the adverse remarks in the matter of integrity recorded his ACR for the period from 14.11.89 to 31.3.1990, has been considered on the basis of available record. The departmental enquiry was conducted on the charges of carelessness and indiscipline in which he was awarded a punishment of censure. No advice/ warning was awarded to him in the matter of integrity. But the reporting officer has doubted his integrity. Thus, the adverse remarks are uncalled for and without any basis and will not stand scrutiny of the judiciary. The mercy petition is accepted and adverse remarks are expunged in the interest of principles of natural justice. The representationist may be informed accordingly.”

4. As would be seen in almost all these appeals before us, the DGP had

expunged adverse remarks of many such police officials during this period

namely from 1999-2002. After the change of regime when new Director

General of Police took over the charge, he noticed this phenomena where the

adverse remarks were expunged after substantial lapse of time and/ or for no

valid reasons and in some cases even after all the departmental remedies had

been exhausted by those officials, unsuccessfully. The new DGP, therefore,

issued Instructions dated 9.6.2005 to all Range Inspector General of Police,

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Railways and Technical Services, Haryana and the Inspector General of

Haryana Armed Police, Madhuban. In these Instructions, it was stated that he

had come across some old cases where remarks related to integrity were

expunged after obtaining fresh representations, despite the fact that their

earlier representation/ mercy petition/ memorial/ writ petitions had been

rejected/ dismissed by the competent authority/ State Government or Courts.

Many such cases were even accepted after a lapse of 10/ 12 years. Opinion of

the Legal Remembrancer, Haryana was taken who had opined out that in

such cases expunction of remarks of the concerned employees was wrongful

and the adverse remarks recorded earlier should be reconstructed, after

issuing show-cause notice to these officials. Vide these Instructions, the DGP

ordered a review of all such cases.

5. Show cause notice was issued to the appellant. He submitted his reply dated

22.5.2006. After considering the same, DGP, Haryana passed the orders dated

21.6.2006 restoring/ reconstructing the earlier adverse remarks and recalled

orders dated 15.7.2002 of the DGP, Haryana vide which the aforesaid

remarks were expunged.

6. The appellant filed petition challenging the aforesaid Orders dated 21.6.2006.

This petition was heard alongwith some other cases where similar orders

were passed and vide common judgment dated 4.4.2007, the writ petition of

the appellant has been dismissed.

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7. Since this is the main judgment giving detailed reasons for dismissing the

writ petitions, it would be apt to traverse through the same to find out the

grounds of challenge laid by the appellant and other writ petitions before the

High Court as well as the reasons given by the High Court while rejecting

those submissions.

JUDGMENT OF THE HIGH COURT

8. The argument of the appellant before the High Court was that second

representation was permissible having regard to the instructions contained in

Standing Order No. 65/ 1998 dated 8.2.1999 issued by the DGP, Haryana.

These instructions referred to the earlier policy instructions issued by the

State Government dated 28.8.1962 which lays down procedures for the

guidance of all departments for entertaining the representations against the

adverse remarks. In the Government's Instructions dated 28.8.1962, it was

emphasized that in the absence of specified procedure for entertaining the

representations against ACR, the authorities had noted that whenever any

officer in a key position is transferred, certain government servants think that

it is a good opportunity to re-open finally settled cases connected with their

conditions of service or disciplinary matters, which may be even several

years old. There was also a tendency of sending advance copies of

representations to all the higher authorities which was leading to unnecessary

work at all levels. At the same time, it was also necessary to ensure a fair

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chance of representation to the government employee. Going by these

considerations the detailed procedure was laid down in those Instructions

dated 28.8.1962. It inter alia provided that if a government servant wishes to

press his claim or to seek redress of his grievance, the proper course was to

address his immediate official superior, or the head of office or such other

authority at the lowest level, who is competent to deal with the matter. Once

that authority decides the case, one representation be allowed to the next

higher authority. When the lowest competent authority is the Government

itself, one representation is allowed asking for a review of Government

orders. These instructions also categorically stipulate that no further

representations are allowed except in those cases where new facts have come

to light and representation on such ground would be considered by the

original deciding authority. Period of six months is provided for making such

a representation. There is also a provision for allowing one memorial which

is to be decided at Government level in terms of Instructions dated 12.2.1952.

Second memorial is permissible if it furnishes new material grounds

requiring re-consideration. Relevant portions of these Instructions, stating the

aforesaid position, is extracted below:

“ After Careful consideration the following procedure is laid down for the guidance of all departments:-

(a) Whenever in any matter connected with his service rights or conditions, a government servant wishes to press his claim or to seek

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redress of a grievance, the proper course for him is to address his immediate official superior, or the Head of Office or such other authority at the lowest level, as it competent to deal with the matter. When a case has thus been decided by the lowest competent authority one representation should be allowed to the next higher authority. Where the lowest competent authority is government itself, one representation should be allowed, asking for a review or government orders.

(b) If an official sends up a representation in addition to those permitted under (a) above, on the ground that certain new facts have come to light, that representation will be considered by the origianl deciding authority, who will be competent to withhold it and reject it if finds that in fact no new data has been given which would provide any material grounds for reconsideration.”

9. In nut-shell as per Policy Instructions dated 28.8.1962, representations can

be made, if it is a case of adverse remarks, in the following manner:

1. Representation to immediate official superior, or the head of office or such other authority at the lowest level who is

competent to deal with the matter.

2. If it is rejected by the lowest authority one more representation is allowed to the next higher authority.

OR If the lowest competent authority is the Government itself then representation by way of review is allowed to the Government.

3. No further representation is to be entertained except on the ground that certain new facts have come to light. If it is found by the competent authority that no new fact has been given he would be competent to reject it.

4. After the representations are made in the manner stated 7

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above, one memorial is allowed which is to be decided at Government level.

5. Second memorial is allowed only on furnishing new material grounds.

10. As already pointed above, Instructions dated 28.8.1962 were referred to

in Standing Order No. 65/1998 dated 8.2.1999. In these Instructions, reliance

was placed on the earlier Standing Order. It reiterated the tendency to entertain

belated representations qua seniority or seeking ante-dated promotion or

expunction of adverse remarks in ACR or appeals against punishments after

lapse of number of years that too whenever any officer in key position is

transferred. It condemned and deprecated this practice in strong words. It also

highlighted that entertainment of such representations after long lapse of time is

not only in contravention of Rules and settled legal position on the subject but it

also creates unnecessary complications/ litigations and unsettles the settled inter

se relativities. Apart from issuing mandate to the effect that such delayed

representations qua seniority, promotion, ACR's etc. be not entertained ,

following instructions were specifically issued, which are relevant in the context

of entertaining representations against ACR:-

1. If any personnel is not satisfied with the decision of the competent authority or next higher authority, he may approach next higher authority to get justice as per settled law within six months.

2. No competent authority shall consider any representation against an order, if the order against which the personnel is aggrieved is more than 5 years old.

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11. It was argued before the High Court, which was the submission before us

as well, that these instructions were applicable only in those cases which were

not covered or governed by the Punishment and Appeal Rules. It was argued that

a representation was permitted to an employee in addition to the prescribed

representations as per para (b) of the Policy Instructions dated 28.8.62 and the

second representation of the appellant which was accepted by the DGP was thus,

permissible. However, this argument was brushed aside by the High Court, and

rightly so, taking note of the fact that as per clause (b), further representation

could be made only on the ground that certain new facts have come to light.

Further, whereas the period specified for making this representation as per 1962

Instructions was six months, the appellant had made the second representation

almost after nine years which was clearly not permissible as reiterated even in

1999 instructions. In fact, it is this mischief of re-opening the settled cases, by

making belated representations which these government instructions aimed

curbing at. The High Court in the impugned judgment, in this behalf, aptly

remarked as under:

“Although, the contention of the learned counsel for the petitioner seems to be attractive on first blush, however, a perusal of clause (c) takes the wind out of the aforesaid contention. It is clearly and emphatically pointed out, that any such representation permitted to be made under the 1962 instructions, has to be made within a period of six months. It is not the case of the petitioner, that the representation made by him was within the ambit of the instructions of 1962. In fact, from the facts narrated hereinabove, it is apparent, that after the first representation made by the

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petitioner was rejected on 26.5.1993, whereafter the second representation was allegedly made by the petitioner only on 25.2.2002 i.e. after almost nine years.”

12.It is manifest that after the change of guards, the appellant took a chance by

making another representation to the new DGP and got favourable orders.

13. Even the punishment under Appeal Rules are of no help to the appellant.

Reliance was placed on Rules 16.28 and 16.32 of Punjab Police Rules, 1934.

These Rules read as under:

“16.28. Powers to review proceedings.--

(1) The Inspector-General, a Deputy Inspector-General, and a superintendent of Police may call for the records of awards made by their subordinates and confirm, enhance, modify or annul the same, or make further investigation or direct such to be made before passing orders.

(2) If an award of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by reinstatement, or not. The order should also state whether service previous to dismissal should count for pension or not.

(3) In all cases in which officers propose to enhance an award they shall, before passing final orders, give the defaulter concerned an opportunity of showing cause, either personally or in writing, why his punishment should not be enhanced.

16.32. Review.- An officer whose appeal has been rejected is prohibited from applying for a fresh scrutiny of the evidence. Such officer may, however, apply, within a month of the date of despatch of appellate orders to him, to the authority next above the prescribed appellate authority for revision on grounds of

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material irregularity in the proceedings or on production of fresh evidence, and may submit to the same authority a plea for mercy: provided that no application for the revision of an order by the Inspector-General will be entertained. An officer whose appeal has been heard by the Inspector-General may, however, submit to the Inspector-General a plea for mercy or may apply to the Inspector-General for a review of his appellate order only on the ground that fresh evidence has become available since the appellate order has been pronounced. This Rule does not affect the provisions of Rule 16.28. Such application or plea must be in English”.

14. However, these are part of Rule 16 which falls in Chapter XVI relating

to “punishment”. This Rule 16 prescribes the procedure for conducting

departmental inquiries and imposition of penalties consequent thereto. It has

nothing to do with the confidential reports. In fact, provision relating to

Confidential Reports is contained in Rule 13.17 of the aforesaid Rules. Relevant

portion of Rule 13.17 reads as under:-

“13.17. Annual Confidential Reports.--

(1)Superintendents shall prepare and submit annually to the Deputy Inspector-General, after obtaining the District Magistrate's remarks thereon, reports in form 13.17 on the working of all Upper Subordinates serving under them. These reports shall be submitted to reach the Deputy Inspector-General on or before 15th April.

Deputy Inspectors-General and Assistant Inspector- General, Government Railway Police, will add their own remarks and retain reports on Assistant Sub- Inspectors and Sub-Inspectors who are not on list 'F' and Sergeants will be forwarded by Deputy Inspectors- General and Assistant Inspector-General, Government Railway Police, so as to reach the Inspector-General on or before the 15th May. In the cases of Indian Inspectors of the General Line, Sub-Inspectors on list

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'F' and all Sergeants, Deputy Inspectors-General and Assistant Inspector-General, Government Railway Police, will attach with each report so submitted a duplicate copy thereof. Any remarks recorded by the Inspector-General on the original report will be copied in his office on the duplicate prior to the return of the latter report for record with the duplicate personal file maintained in accordance with Rule 12.38 (1).

(2)Reports shall be of three kinds, A, B and C, and shall be marked as such:--

A reports.-- Reports in which for special reasons it is recommended that promotion be given irrespective of seniority. B reports.-- Reports in which it is recommended that promotion be given in the ordinary course of seniority.

C reports.-- Reports in which it is recommended that the officer be passed over for promotion or that the taking of departmental action on general grounds of inefficiency or unsatisfactory conduct be considered.

15. This Rule only states the manner in which ACR is to be written. We also

have Rule 14.7 which may be relevant to the context and is reproduced below:-

“14.7 Comments on remarks of superior officer.-- A police officer shall not record comments on the remarks made by a superior officer. If a police officer considers that an erroneous view has been taken of his conduct or of any matter affecting his administration he may refer the question in a temperate manner through the proper channel.”

16. Thus, these Rules only pertain to recording of ACRs. There is no

provision in the Rules containing any procedure for dealing with representations

against the ACRs. That is provided in 1962 and 1999 Instructions, already taken

note of above. Therefore, the High Court rightly rejected the contention of the 12

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appellant predicated on these Rules. Thus, we find that on the face of it, the

second representation preferred by the appellant, in which the ACRs were

expunged was not permissible. It was not only contrary to 1962 and 1999

Instructions, but was made after 9 ½ years from the date when first

representation against the ACR was rejected.

17.We would like to make certain comments, at this juncture, on the powers of

the successor DGP, Haryana in over turning the decision of his predecessor

who had accepted the representation and expunged the adverse remarks in a

petition which was not maintainable and wholly unwarranted. The general

principle is that merely because there is a change in the regime or when the

successor assumes the office, he would not be entitled to review and reopen

the cases decided by his predecessor. That would apply in those cases where

the predecessor had passed the orders which he was empowered to pass

under the Rules and had exercised his discretion in taking a particular view.

Therefore, this proposition applies in a situation where order of the

predecessor resulted in legal, binding and conclusive decision. However, the

position would be different when it is found that the order of the predecessor

was without jurisdiction or when a palpably illegal order was passed

disregarding all the cannons of administrative law viz. when the

predecessor’s decision was without jurisdiction or ultra vires or when it was

exfacie an act of favoritism. In the present case we find that not only the

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order passed by earlier DGP, Haryana was ultra vires, as that was not backed

by any authority vested in it under the Rules as the representation/ mercy

petition was not maintainable, even while exercising its discretion in passing

that order, the alleged reasons are abhorrent to the good administration/

governance and in fact there was no valid reason or justification shown in

exercise of the non existent power. It was, thus, not a case of mere discretion

which the DGP was empowered to exercise or the exercise of power on

rational basis. Undue sympathy, that too without stating any such

sympathetic grounds would be anathema to fairness. There has to be fairness

in the administrative action and it should be free from vice of arbitrariness.

We may usefully refer to the judgment of the English Court in the case of

Roberts v. Hopwood ; 1925 All E.R. 24 laying down the law in the following

terms:

“.... A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what her likes merely because he is minded to do so – he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.....”

18. The matter can be looked into from another angle as well. In those cases

where Courts are concerned with the judicial review of the administrative action,

the parameters within which administrative action can be reviewed by the courts

are well settled. No doubt, the scope of judicial review is limited and the courts

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do not go into the merits of the decision taken by the administrative authorities

but are concerned with the decision making process. Interference with the order

of the administrative authority is permissible when it is found to be irrational,

unreasonable or there is procedural impropriety. However, where reasonable

conduct is expected, the criterion of reasonableness is not subjective but

objective; albeit the onus of establishment of unreasonableness rests upon the

person challenging the validity of the acts. It is also trite that while exercising

limited power of judicial review on the grounds mentioned above, the court can

examine whether administrative decisions in exercise of powers, even if

conferred in subjective terms are made in good faith and on relevant

considerations. The courts inquire whether a reasonable man could have come

to the decision in question without misdirecting himself on the law or facts in a

material respect.(See: M.A.Rasheed & Ors. v. The State of Kerala; (1974) 2

SCC 687). The decision of the administrative authority must be related to the

purpose of the enabling provisions of Rules or Statutes, as the case may be. If

they are manifestly unjust or outrageous or directed to an unauthorized end, such

decisions can be set aside as arbitrary and unreasonable. Likewise, when action

taken is ultra vires, such action/decision has no legal basis and can be set aside

on that ground. When there are Rules framed delineating the powers of the

authority as well as the procedure to be followed while exercising those powers,

the authority has to act within the limits defined by those Rules. A repository of

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power acts ultra vires either when he acts in excess of his power in the narrow

sense or when he abuses his power by acting in bad faith or for an inadmissible

purpose or on irrelevant grounds or without regard to relevant considerations or

with gross unreasonableness. This was so explained in S hri Sitaram Sugar

Co.Ltd. v. Union of India (1990) 3 SCC 223 in the following manner:

“A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness. See Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223. In the words of Lord Macnaghten in Westminster Corporation v. London and North Western Railway, [1905] AC 426:

“...It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first....”

In Barium Chemicals Ltd. and Anr. v. The Company Law Board and Ors., : [1966] Supp. SCR 311, this Court states:

“...Even if (the statutory order) is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts.”

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In Renusagar, AIR1988SC1737 , Mukharji, J., as he then was, states:

“The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. Similarly, if the power has been exercised on a non-consideration or non- application of mind to relevant factors the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated”.

The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi-judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it.”

19. Thus, if wrong and illegal acts, applying the aforesaid parameters of

judicial review can be set aside by the courts, obviously the same mischief can

be undone by the administrative authorities themselves by reviewing such an

order if found to be ultra vires. Of course, it is to be done after following the

principles of natural justice. This is precisely the position in the instant case and

we are of the considered opinion that it was open to the respondents to take

corrective measures by annulling the palpably illegal order of the earlier DGP,

Haryana.

20. We, therefore, do not find any merit in this appeal which is accordingly,

dismissed.

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C.A. No. 393 of 2008

21. This appeal arises out of decision in Civil Writ 9805 of 2006 which was

decided by the common judgment dated 4.4.2007 already taken a note of above.

In this case, ACR is for the period 25.4.1994 – 31.3.1995. It was inter alia

recorded that there was report of corruption against this officer. The appellant

made the representation which was rejected in the year 1995 itself. After a lapse

of almost 7 years, the appellant gave another representation in the year 2002

which was accepted by the DGP, Haryana who expunged the adverse remarks,

giving following reasons:

“Representation of SI Swantanter Singh No. 225/H has been examined in depth. Keeping in view the improvement shown by the SI especially in view of good entries against major punishment nil, adverse remarks so recorded in his ACR for the period from 25.4.1994 to 31.3.1995, are hereby expunged and upgraded as “Good”. The representations may be informed accordingly.”

22. Thus, in this case also not only second representation was made after

more than 7 years, but there was no new material or facts as well which were

given in the second representation. Furthermore, the reasons given for

expunging the remarks on “corruption” and substituting the same by “good

remarks” is shocking and untenable to say the least. Simply because the

appellant allegedly showed improvement and earned good entries in the

subsequent years cannot be a ground to erase the earlier remarks recorded 7

years ago thereby treating him as a good officer even for the earlier period i.e.

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25.4.1994 to 31.3.1995. The petition of the appellant was thus, rightly dismissed

by the High Court. Present appeal is totally bereft of any merits and is

accordingly dismissed.

CA No. 395 of 2008

23. The petitioner was communicated adverse annual confidential remarks

for the period from 24.4.1998 to 31.3.1998. Relevant extract thereof is

reproduced hereunder:-

1. Discipline Poor

2. Integrity Poor

3. Reliability Poor

4. Moral Character Deserves Improvement

5. General Remarks He was placed under suspension

due to misbehaviour with Smt.

Dhano Devi, DC/FTB was

requested to accord sanction under

PPR 16.38 for DE. But DC/ FTB

refused to accord sanction.

24. Dissatisfied with the aforesaid annual confidential remarks

communicated to the petitioner, the petitioner made his first representation for

the expunction thereof, on 13.12.1999. The aforesaid representation made by the

petitioner was partly accepted by an order dated 22.6.2000 inasmuch as the

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general remarks recorded in the annual confidential report extracted hereinabove

at Serial No. 5 were expunged.

25. The petitioner submitted a second representation for the expunction of

his other adverse remarks on 13.7.2000. The second representation made by the

petitioner was also rejected on 27.12.2000. Dissatisfied with the aforesaid

rejection, the petitioner moved a mercy petition i.e. the 3rd representation in his

series of representations, on 9.8.2001. This mercy petition was rejected by the

authorities on 22.11.2001. The petitioner, then made a 4th representation for the

expunction of annual confidential remarks communicated to him for the period

24.4.1998 to 31.3.1999. This representation of the petitioner was accepted by an

order dated 12.6.2002 (14.6.2002). Relevant extract thereof is being reproduced

hereunder:-

“The representation dated 1.1.2002of H.C. Ram Kumar No. 26/ Fatehabad against adverse remarks has been considered and accepted. The adverse remarks recorded in his A.C.R. For the period from 24.4.98 to 31.3.99 have been expunged. He may please be informed accordingly.”

26. The respondents, having arrived at the conclusion, that only one

representation was competent at the hands of the petitioner for the expunction of

adverse annual confidential remarks, acceptance of 4th representation made at

the hands of the petitioner on 1.1.2002 by an order dated 12.6.2002 was

impermissible in law. Therefore, a show cause notice dated 4.7.2006 was issued

to the petitioner. After the petitioner submitted his reply thereto, an order dated

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23.8.2006 was passed whereby the order expunging the adverse annual

confidential remarks dated 12.6.2002 was set aside and the annual confidential

remarks for the period 24.4.1998 to 31.3.1999, as originally recorded, subject to

the modification vide order dated 22.6.2000, was reconstructed.

27. Vide judgment dated 18.4.2007, the Division Bench dismissed the

appellant’s challenge to the orders dated 23.8.2006 relying upon the legal

position expressed in Vinod Kumar's Case (supra). At the same time, the Court

clarified that the remarks in the ACR for the period from 24.4.1998 to

31.3.1999, which relate to the allegation of misbehaviour based on his conduct

with Smt. Dhano Devi, were actually and factually expunged (since a regular

inquiry was conducted in this behalf in which he was exonerated) while

deciding his first representation which was partly accepted on 22.6.2000.

28. In so far as other remarks are concerned, in view of our detailed

discussion above, it is clear that such a mercy petition, in the form of 4th

representation, at the hands of DGP, Haryana was impermissible in law. The writ

petition of the appellant was, therefore, rightly dismissed. This appeal also

stands dismissed accordingly.

C.A. No. 402 of 2008

29. From the facts of this case also it is apparent that the representation

against the ACR for the period 1992-1993 was rejected on 7.5.1996 and

thereafter when fresh representation dated 20.6.2000 was made after a lapse of

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more than 4 years. It was accepted vide orders dated 12.7.2000 and the adverse

remarks were expunged. This case is thus, on the same footing as Vinod

Kumar's case. The appeal is accordingly dismissed.

C.A. No. 405 of 2008

30. The appeal arises out of C.W.P. NO. 20401 of 2006 which was part of

batch petitions decided vide common judgment dated 4.4.2007 with lead matter

in the case of Vinod Kumar. Without stating the facts in detail, suffice is to

mention that adverse reports is for the period 1.4.2001 to 31.3.2002 which was

communicated to him on 2.7.2002. His first representation was rejected by IGP

on 30.9.2002, he filed second representation to the higher authority namely DGP

which was rejected on 28.1.2003. Thereafter, he made another representation

(purported to be a review) before the DGP in July, 2003 which was allowed on

30.9.2003 by expunging the adverse remarks. After issuance of show cause

notice, orders dated 19.10.2006 were passed recalling earlier order dated

30.9.2003 and reconstructing the ACR by restoring earlier adverse remarks. As

is clear from the above, the appellant had earlier exhausted the remedy of first

representation before the immediate officer and second representation to the

higher officer namely DGP. Thereafter, DGP could not entertain any further

representation or review except on “new facts”. Record reveals that no such new

facts were pleaded. Thus, we do not find any merit in this appeal as well and

dismiss the same.

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C.A. No. 392 of 2008

SLP(C)No. 5080 of 2008

31. No one appeared in this matter to address the petition at the time of

hearing. Dismissed.

2nd Group Cases

C.A. No. 396 of 2008 & SLP(C)No. 32653 of 2011.

32. This appeal and SLP are filed by the same appellant H.C. Shiv Kumar.

Leave granted in SLP.

33. On the basis of those adverse remarks, the appellant was compulsorily

retired from service. Vide orders dated 17.3.2011, his writ petition challenging

the compulsory retirement has been dismissed against which SLP(C)No.

32653/2011 is preferred. Thus, the outcome of this SLP depends upon the result

of C.A. No. 396 of 2008.

34. Coming to C.A. No. 396 of 2008, in the case of the appellant, adverse

remarks relate to the period 1.4.2001 to 2.10.2001 which were communicated to

him on 2.7.2002. He made the representation dated 24.8.2002 for expunction of

these remarks to the Inspector-General of Police which was rejected on

10.3.2003. Immediately thereafter, in the month of March itself he filed the

revision petition which was allowed on 2.5.2003 expunging the adverse remarks

in toto and replacing the same with 'good' rating.

35. The appellant was also issued show cause notice dated 30.6.2006, in a

similar manner as in other cases, stating that as per Government’s Instructions

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C.A. No. 392 of 2008

dated 28.8.1962, no second representation lies against the adverse remarks.

Therefore, it was proposed to re-construct the original adverse remarks

recorded in his ACR for the period in question. The appellant submitted his

detailed reply to the aforesaid show cause notice running into almost 20 pages.

However, his reply did not cut any ice with the authorities and vide orders dated

25.10.2006, DGP, Haryana recalled earlier order dated 2.5.2003 and directed re-

construction of the ACR by restoring the remarks recorded earlier for the period

in question i.e. 1.4.2001 to 2.10.2001. His Writ Petition against the said orders

dated 25.10.2006 has met the same fate at the hands of the High Court which

has dismissed a Writ Petition, following Vinod Kumar's Case (supra), and

holding that second representation submitted by a employee is not acceptable in

law.

36. We would like to point out, at this stage, that it was also the contention

of the appellant before the High Court that on the same set of allegations on the

basis of which the adverse remarks were communicated to him, a regular

departmental inquiry was conducted against the appellant and the appellant had

been exonerated in the said inquiry. It was argued that for this reason adverse

remarks could not remain in his service record and the order of restoring those

remarks was illegal on this ground as well. The High Court however, rejected

this contention recording a finding that the charge sheet in which the inquiry

was held, was dated 13.3.2001, which naturally referred to the allegations

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C.A. No. 392 of 2008

preceding the date of charge sheet. On the other hand, the adverse remarks were

relatable to the subsequent period and, therefore, in the opinion of the High

Court, this contention of the appellant was untenable.

37. Mr. Patwalia, learned Senior Counsel appearing for the appellant, after

drawing our attention to the chronology of events from the date of recording the

adverse remarks to that of expunction thereof, made a fervent plea that the case

was not covered by the principle laid down by the High Court in its earlier

judgment in Vinod Kumar's Case (supra) and there was an apparent error in

applying that judgment in the present case as well. His first submission in this

behalf was that it was not a case where the “second representation” was made

after long lapse of time. Secondly, his first representation was to the Inspector-

General which was rejected and the purported “second representation” was in

fact in the nature of representation given to the higher authority namely DGP

which was permissible under the Rules. He, thus, argued that the High Court

wrongly treated the same as second representation to the same authority which

became the cause of error on the part of the High Court. He referred to the

judgment of the High Court in the case of Vinod Kumar itself where such cases

as that of the appellant, were saved after interpreting the relevant Instructions.

38. We find the aforesaid contention of Mr. Patwalia to be meritorious.

While discussing C.A. No. 392/2008, we have already taken note of the relevant

government instructions as well as Rules on the subject. In para 9 above, we

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C.A. No. 392 of 2008

have summarised the position contained in the policy instructions dated

28.8.1962 as per which, once a representation is rejected by the immediate

superior officer, one more representation is permissible and allowed to be made

to the next higher authority. This precisely happened in the instant case. First

representation was to the Inspector-General of Police which was rejected on

10.3.2003 and within few days, the appellant made second representation which

was allowed on 2.5.2003. Thus, not only this representation was made within

stipulated period prescribed under the Rules namely six months, which is

prescribed in the Standing Order, it was made to the higher authority as well. It

seems that this vital difference between the appellant's case from the fact

situation in Vinod Kumar's Case has been overlooked by the High Court.

39. Once, we find that the revision or second representation to the higher

authority was made within prescribed period (in fact within few days of the

rejection of representation by the IGP) and such a representation to the higher

authority was permissible, it cannot be said in this case that the order of the

DGP, Haryana was without jurisdiction i.e. on a representation “which was not

permissible” in law. Once, we find this to be the factual position, we are

constrained to hold that three years thereafter, the case could not be re-opened

and order dated 25.2003 could be interdicted by the successor.

40. As a result, this appeal is allowed and the order of the High Court is set

aside. Result would be to allow the writ petition filed by the appellant before the

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C.A. No. 392 of 2008

High Court and quash the orders dated 25.10.2006 passed by the DGP, Haryana.

41. The appellant was given show cause notice dated 24.10.2010 proposing

compulsory retirement. The ground on which the action proposed was attached

to the show cause notice. On perusal thereof reveals that the material sought to

be put up against the appellant was as under:

1. Adverse remarks for the period 1.4.2001 to 2.10.2001.

2. Award of punishment of “warning” vide SP/AMB/OB/218/08 for showing negligence in investigation in case FIR NO. 121 dated 9.7.2008 under Section 279/ 304 A IPC, PS Narayan.

42. In reply, the appellant had submitted that his appeal No. 396/08 is

pending against the judgment of the High Court in so far as ACR's for the

period 1.4.2001 to 2.10.2001 is concerned and, therefore, notice in question be

withdrawn. However, this plea of the appellant was not accepted and vide

orders dated 17.3.2011, appellant was ordered to be compulsory retired from

service with immediate effect. In this order also, same two grounds namely,

ACR for the period 1.4.2001 to 2.10.2001 and award of punishment of warning

in every case, are mentioned.

43. Since, we have allowed C.A. No. 396 of 2008, the effect thereof is that

adverse remarks for the period in question no longer remain in the service record

of the appellant and for this period his rating now is “good” to which he was

upgraded vide orders dated 2.5.2003. In so far as award of “warning” is

concerned, leaned Counsel for the State could not dispute that “warning” is not a 27

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C.A. No. 392 of 2008

punishment prescribed under the Rules. It was not given to him after holding

any inquiry. Therefore, such a warning recorded administratively in a service

record cannot be the sole basis of compulsory retirement.

44. The appellant's writ petition has been dismissed by the High Court vide

orders dated 26.12.2011. We, thus allow this appeal and set aside the impugned

judgment of the High Court. As a consequence, the appellant shall be reinstated

in service in the same position on which he was working as on the date of

compulsorily retirement with consequential benefits in case he has not already

attained the age of superannuation. However, if he has already attained the age

of superannuation, he shall be treated as deemed to be in service throughout as if

no compulsory retirement orders were passed and will be given consequential

benefits including pay for the intervening period and pensionary benefits on that

basis.

C.A. No. 400 of 2008

45. The ACR for the appellant pertains to 3.11.2002 to 31.3.2003 which

were adverse in nature. These remarks were conveyed to him vide memo dated

8.6.2003, the appellant made representation against those adverse remarks vide

his communication dated 30.10.2003 which was rejected by the Inspector-

General of Police, Hisar Range, Hisar. He filed “appeal” thereagainst to the

Director General of Police within a few days thereafter i.e. 30.10.2003 which

was accepted by the DGP. Adverse remarks were expunged and his ACR was

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C.A. No. 392 of 2008

upgraded to 'good'. He was given show cause notice for reversal of the good

rating and re-construction of old ACR on 15.8.2006 and order to this effect was

passed, after eliciting his reply, on 18.10.2006 on the ground that his adverse

remarks were expunged on his “second representation” which was not

permissible in law. The aforesaid facts would demonstrate that the appellant

herein is also identically situated as the appellant in C.A. No. 396 of 2008. For

the reasons given therein, this appeal is also allowed and the order of the High

Court is set aside. As a consequence, writ petition of the appellant stands

allowed and the orders dated 18.10.2006 of DGP, Haryana are hereby quashed.

46. Leave granted.

47. The appeal arises out of C.W.P. No. 1249 of 2007 which was part of

batch petitions decided vide common judgment dated 4.4.2007 with lead matter

in the case of Vinod Kumar. Adverse remarks in the case of this petitioner are

for the period 1.4.2001 to 31.3.2002. His representation dated 18.7.2002 was

rejected. On 30.4.2003, he filed revision/ representation against order dated

30.4.2003 to the higher authority namely DGP which was by the DGP vide

orders dated 6.10.2003 and the adverse remarks were expunged. He was given

show cause notice dated 8.9.2006 whereafter orders dated 3.12.2006 were

passed reviewing the earlier order dated 6.10.2003 and reconstructing the ACR

by maintaining earlier adverse report which was communicated to him in the

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C.A. No. 392 of 2008

beginning. From the aforesaid facts it becomes clear that it was not a case of

second representation to the same authority. Another representation to the higher

authority was made which is permissible under the Rules and that too

immediately after his first representation by the IGP was rejected. His case is

thus para materia with C.A. No. 396 of 2008.

48. The impugned order of the High Court qua the appellant is accordingly

set aside and appeal is accordingly allowed.

C.A. No. 459 of 2009

49. This appeal is filed by the State of Haryana against the judgment of the

High Court in the writ petition filed by the respondent. The respondent was

communicated adverse ACR for the period 5.11.00 to 31.3.2001. On 13.11.2001

he submitted his representation dated 18.12.2001 which was rejected on

14.8.2002. Thereafter he filed the revision petition dated 4.10.2002 which was

allowed on 13.2.2003. However, this order was recalled vide orders dated

18.1.2007 after giving show-cause notice dated 21.11.2006. From the aforesaid,

it is clear that second representation to a higher authority was clearly

maintainable and this aspect has been discussed in detail by us while dealing

with CA 396 OF 2008.

50. Additionally, we find that on the same allegations on which ACR's were

recorded, the respondent was also issued charge sheet but was completely

exonerated therein. The High Court in these circumstances rightly allowed the

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C.A. No. 392 of 2008

writ petition following its earlier judgment in the case of Randhir Singh, ASI vs.

State of Haryana & Ors. (C.W.P. No. 867 of 2007 decided on 29.3.2007) in the

following manner:-

“In our view, the claim of the petitioner was liable to be adjudicated upon its merits based on the judgment and decree dated 24.5.1999. in this behalf, it would be pertinent to mention, that the annual confidential report for the period 1.4.1995 to 2.7.1995 ( which has been extracted herein above), clearly reveals that the same was based on the allegation, wherein in a departmental enquiry was conducted against the petitioner, and the petitioner had been found guilty, and inflicted with the punishment of stoppage of two annual increments with cumulative effect. So far as the aforesaid factual position is concerned, there was no difference of opinion between learned counsel representing the rival parties. However, the aforesaid factual position underwent a change, with the passing of the judgment and decree at the hands of the civil judge at Sirsa dated 24.5.1999. The findings recorded int eh departmental enquiry which constituted the foundation and the basis of the annual confidential report dated 30.9.1995 were set aside in the judgment and decree dated 24.5.1999. In sum and substance, therefore, the very basis on which the annual confidential report (under reference) was recorded, had been annulled by the judgment and decree dated 24.5.1999. Not only that, although liberty was given by the trial Court o the respondents to hold a fresh enquiry, yet, after a conscious application of mind, the Government by its order dated 11.7.2002 decided to file the matter. That being so, we have no doubt in our min, that the allegation contained in the charge sheet were considered to be unjustified by the respondents themselves. Since, the basis of the aforesaid charge sheet was treated as unjustified by the State Government itself, it is apparent, that the adverse remarks recorded thereon were wholly unjustified in the facts and circumstances of this case. We are, therefore satisfied, that the former Director General of Poki8ce, was fully justified in passing the order dated 26.8.2003, by which he ordered the expunction of remarks communicated to the petitioner on 30.9.1995.”

51. We thus, do not find any merit in these appeal and is dismissed. 31

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C.A. No. 392 of 2008

C.A. No. 592 of 2009

52.This appeal is also preferred by State of Haryana. The factual position in this

case is same as in C.A. No. 495 of 2008. For same reasons, this appeal also

stands dismissed.

3rd Group Cases

C.A. No. 1721 of 2008

53. In this appeal, subject matter is not the annual confidential report but the

departmental inquiry. Though the orders are shadowed by same set of

circumstances, here the penalty imposed as a result of disciplinary proceedings

was set aside on the basis of mercy petition filed by the appellant, that too after

exhausting all the departmental remedies. It happened in the following

circumstances:

The appellant was charge sheeted and departmental inquiry conducted

against him related to conduct of investigation in a case wherein he had

implicated innocent persons in false cases getting the accused free from police

custody and misusing his post for ulterior motives. Charges were proved in the

inquiry on the basis of which Superintendent of Police, Faridabad as a

disciplinary authority imposed the penalty of stoppage of three future annual

increments on permanent basis vide order dated 17.1.1999. The appellant filed

appeal against the said order which was rejected by the DGP on 1.3.1999. He

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C.A. No. 392 of 2008

filed revision on 20.6.2000 which was also rejected on 13.2.2001. Under the

disciplinary Rules, there is no further departmental remedy provided. However,

the appellant has preferred mercy petition dated 12.5.2001 to the Secretary,

Home, Government of Haryana, through proper channel. On this mercy petition,

order dated 9.7.2001 was passed by DGP, Haryana accepting the said petition

thereby setting aside the penalty imposed upon the appellant.

54. A perusal of the orders dated 9.7.2001 would show that the DGP took

note of the facts of the case and holding of the inquiry. He also referred to the

departmental remedy of appeal and revision filed by the appellant. Thereafter, it

is mentioned that being satisfied with the order passed in revision the appellant

had “preferred the instant mercy petition”. Curiously, after examining the

records, the DGP also held the view that departmental inquiry was properly

conducted. Inspite thereof, without giving any reasons and simply “taking a

lenient view”, the punishment is set aside as is clear from the following paras of

the said order.

“And whereas, I have carefully gone through the revision petition, departmental enquiry file and the relevant records. The instant departmental enquiry has been conducted as per prescribed Rules and procedure and does not suffer from any legal infirmity various pleas taken by the revisionist have been examined and could to be devoid of any merit.

Now, therefore, keeping in view the please of mercy made by the revisionist after taking a lenient view, the punishment of stoppage of three future annual increments with permanent effect is hereby set aside”.

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C.A. No. 392 of 2008

55. When this fact came to light, show-cause notice dated 25.8.2006 was

issued stating that there was no provision in the Rules for entertaining another

petition (Mercy Petition) by the DGP without new material, once revision

petition of the appellant had already been considered and rejected. It was,

therefore, proposed to restore the penalty orders and the appellant was asked to

show-cause against the proposed action. The appellant submitted his reply and

on consideration thereof the orders dated 22.10.2006 were passed restoring the

earlier penalty order finding no merit in the lease taken by the appellant.

56. Writ petition of the appellant challenging the said order has been

dismissed by the High Court. However the High Court has directed the

respondent not to make any recovery from the appellant as he did not play any

fraud or made any mis-representation.

57. While dealing with C.A. No. 392 of 2008, we have already reproduced

extract of the relevant Rules i.e. Rule 16.28 and 16.32 of the Punjab Police

Rules, 1934. Rule 16.28 relates to the review which had already been exhausted

by the appellant. As per Rule 16.32 such an officer is prohibited from applying

from a fresh scrutiny of an appliance. He could however apply, within a month

of the appellate order, to the authority next above the prescribed appellate

authority for revision on grounds of material irregularity in the proceedings.

58. Thus, such a review under Rule 16.32 is admissible only if some

material irregularity in the proceedings is found or some fresh evidence is

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C.A. No. 392 of 2008

surfaced.

59. Rule 16.28 is in Chapter XVI which deals with “punishments” and

various sub rules of Rule 16 in this Chapter cover all the aspects of punishment

which include the nature of punishments that can be imposed and the

circumstances under which such punishments can be imposed viz. either on the

basis of conviction in a judicial case or after conducting departmental inquiry

into the misconduct. These provisions also deal with suspension, subsistence

grants etc.. Rule 16.24 deals with the procedure which is to be adopted in

departmental inquiries. Thereafter, relevant provision is Rule 16.28 which deals

with “powers to review proceedings”. Next Rule is Rule 16.29 which gives

“right of appeal” to the delinquent employee. Rule 16.30 relates to the manner of

dealing with these appeals and Rule 16.31 enumerates the orders on appeals by

prescribing that every order shall contain the reasons. Thereafter, comes Rule

16.32 which again deals with revision.

60. In the scheme of things, as provided, it is clear that Rule 16.28 is

different from Rule 16.32. While Rule 16.28 deals with Review, Rule 16.32

deals with Revision which is permissible under certain specified circumstances,

after the appeal is rejected. It is this provision in Rule 16.32 which talks of

Revision on certain grounds namely (a) material irregularity in the proceedings

or (b) on provision of fresh evidence.

61. It also stipulates that mercy petition may be submitted to the same

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C.A. No. 392 of 2008

authority. There is no separate or other provision for mercy petition which is

contained in Rule 16.32 itself. Thus, under Rule 16.32 an employee can seek

Revision either on the ground of material irregularity in the proceedings or on

provision of fresh evidence. In the alternative he can submit Revision Petition

raising a plea for mercy. We are ,therefore, of the opinion that when the Revision

Petition is earlier rejected on merits, another revision petition raising the plea for

mercy would not permissible. Moreover, no grounds for mercy are stated except

showing that lenient view be taken.

62. In the present case, we also find that the mercy petition was not filed

within one month. Further, it was not filed on the ground of material irregularity

in the proceedings or by producing any fresh evidence. On the contrary, as

pointed out above, the DGP while allowing the mercy petition specifically

recorded that there was no irregularity in the conduct of departmental

proceedings. In spite thereof, he cancelled the order of penalty without giving

any cogent reasons. Such a order was palpably illegal and was rightly set right

departmentally. We thus do not find any merit in this appeal which is

accordingly dismissed.

C.A. No. 1811 of 2008

63. This is also a case of departmental inquiry which was held against the

appellant and culminated an order of dismissal from service on 2.2.1999. His

appeal was rejected by DIG on 1.7.1999. Thereafter, revision was rejected by

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C.A. No. 392 of 2008

the IGP ON 3.9.1999. More than 1 ½ years, thereafter he preferred mercy

petition which was allowed by DGP, Haryana and the punishment of dismissal

was reduced to stoppage of 5 increments. This order was also recalled after

giving show-cause notice, vide orders dated 16.10.2006. Appellant challenged

this order by filing writ petition in the High Court which has been dismissed by

the High Court on 21.8.2007. Order fo the High Court is the subject matter of

the present appeal.

64. In view of our discussion in C.A. No. 1721 of 2008, we find that here

also such a mercy petition was not maintainable which was not only filed

belatedly but no fresh material was also furnished.

65.Thus, we are of the view that the order allowing the mercy petition without

reason was clearly untenable and was rightly recalled. We thus, do not find

any merit in this appeal either which is accordingly dismissed.

…..............…..….......................J [Sudhansu Jyoti Mukhopadhaya]

…................….........................J. [A.K. Sikri]

New Delhi October 24, 2013

37

VINOD KUMAR Vs STATE OF HARYANA .

VINOD KUMAR Vs STATE OF HARYANA .