“In fact, today the Inspector-General of Police is administratively subordinate to the Director-General of Police and the Additional Director-General of Police.”
The Rules, the Court lamented, have not kept pace with the changing times.
“The Rules were also framed at a time when the system of Ranges and Commissionerates had not been established. Indubitably, the Rules, for better or for worse (worse, we hazard) have not kept pace with the times. We do not appreciate why the authorities concerned are unable to update/amend the Rules with at least the correct official description of posts to obviate confusion.”
“Clearly, the ‘review’ contemplated in Rule 16.28 empowers a superior authority to ‘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.’ As such, the ‘review’ is by a superior authority and not the same authority”, the Bench observed.
Further, the Court said that to a judicially or legally trained mind, it is obvious that ‘review’ carries a specific connotation, but the same isn’t the case here.
“Put simply, review is a re-look at an order passed by the same authority which passed the original order, be it a Court or an executive officer. The heading to the rule above is a misnomer inasmuch as no power of ‘review’ is created or conferred, as manifest from a reading of (1), (2) and (3) of Rule 16.28. For completeness, Rule 16.29 is entitled “Right of appeal” and Rule 16.32 is labelled “Revision”. This is one part of the issue”, the Bench highlighted.
The Court said that the Civil Judge was wrong to grant liberty to the appellant to move for expunction of remarks especially in the absence of any such provisions in the Punjab Police Rules, 1934.
“There may be cases where a High Court under Articles 226 or 227 of the Constitution of India or this Court in exercise of its constitutional powers may specifically direct for fresh consideration of a representation, even in the absence of specific provisions…. Thus, the observation by the learned Civil Court that the appellant could approach the authority, cannot be taken to mean that the appellant was granted carte blanche liberty in law to approach the same authority. What the learned Civil Court lost sight of was that no provision permitted the course of action suggested by it.”
The Court further commented that for a person in uniformed service, adverse entry relating to his/her integrity and conduct is to be adjudged by the superior authority(ies) who record and approve such entry. “Personnel having such remarks being compulsorily retired as per the statutory provisions under the Punjab Civil Services Rules, 1934, in the instant facts, is not an action this Court would like to interdict”, the Bench said before dismissing the appeal.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVILAPPEAL NO.4044 OF 2023
[ @ SPECIAL LEAVE PETITION (CIVIL) NO.12248 OF 2023]
[ @ DIARY NO. 23042 OF 2011]
AISH MOHAMMAD …APPELLANT
VERSUS
STATE OF HARYANA & ORS. …RESPONDENTS
R1: STATE OF HARYANA
R2: DIRECTOR GENERAL OF POLICE (HARYANA), PANCHKULA
R3: INSPECTOR GENERAL OF POLICE, GURGAON
R4: SENIOR SUPERINTENDENT OF POLICE, GURGAON
R5: INSPECTOR GENERAL OF POLICE, FARIDABAD
R6: SUPERINTENDENT OF POLICE, NUH
R7: SUPERINTENDENT OF POLICE, PALWAL
J U D G M E N T
AHSANUDDIN AMANULLAH,J.
Heard learned counsel for the parties finally on
the basis of the available record. The Respondents
2
are represented through counsel and have filed
written submissions. Delay condoned, in these
peculiar facts and circumstances, in the interest of
justice. I.A. 72995/2022 [seeking condonation of
delay in refiling/curing the defects] is formally
allowed.
2. Leave granted.
3. The sole appellant has moved this Court being
aggrieved by the Final Judgment and Order dated
25.04.2011 (hereinafter referred to as the “Impugned
Judgment”) [2011 SCC OnLine P&H 4687 | ILR (2012) 2
P&H 747] passed by a learned Division Bench of the
High Court of Punjab and Haryana at Chandigarh
(hereinafter referred to as the “High Court”) in
Letters Patent Appeal No.406 of 2011 (O & M), whereby
the learned Division Bench allowed the appeal
preferred by the respondent-State and set aside the
Order dated 27.01.2010 [2010 SCC OnLine P&H 1193]
passed by the learned Single Judge in Civil Writ
Petition No.19128 of 2006.
3
THE FACTUAL PRISM:
4. The appellant joined as Constable in Haryana
Police on 15.01.1973 and promoted as Head Constable
on 06.12.1993. One Assistant Sub-Inspector Basant Pal
made a complaint against the appellant. This led to a
departmental enquiry, where the appellant was held
guilty and ordered to be reverted from Head Constable
to Constable. A representation was filed by the
appellant before the Inspector General of Police,
Gurgaon Range against the said reversion order,
resultantly whereof, by order dated 28.04.2001, the
Inspector General of Police, Gurgaon Range, modified
the order of reversion to stoppage of one increment.
The Controlling Officer of the appellant recorded
adverse remarks against him for the periods between
11.10.1999 to 31.03.2000 and 01.04.2000 to
29.12.2000. Initially, the representation filed
apropos the period between 01.04.1999 to 31.03.2000
was rejected by orders dated 19.02.2002 and
27.06.2001. However, the representation pertaining to
the period from 01.04.2000 to 29.12.2000 was partly
4
accepted by order dated 20.07.2002. Thereafter, the
appellant preferred a second consolidated
representation for the aforesaid periods, which was
accepted on 28.01.2005. This second representation by
the appellant was pursuant to judgment dated
27.09.2004 in Civil Suit No.168 of 2002 (filed on
06.08.2002) before the learned Civil Judge (Junior
Division), whereby the stoppage of one increment was
set aside and the respondents were directed to
release the same. However, his prayer for expunging
the adverse remarks was not accepted, yet liberty to
prefer a fresh representation was granted by the
learned Civil Court.
5. Challenge to judgment dated 27.09.2004 supra by
the respondent-State was dismissed by the learned
District Judge, Gurgaon, and the same has attained
finality. The appellant, in terms of observations
made by the learned Civil Judge (Junior Division)
Gurgaon in the judgment dated 27.09.2004, preferred a
consolidated representation before the Inspector
5
General of Police, Gurgaon Range for expunction of
adverse remarks, on 07.01.2005. The Inspector
General of Police, Gurgaon Range, Gurgaon vide order
dated 28.01.2005 expunged all the adverse remarks.
Thereafter, the appellant received a Show-Cause
Notice dated 05.09.2006 from the Director General of
Police, Haryana stating that undue benefit had been
given to the appellant by expunction of remarks and
why the same should not be restored and an order of
compulsory retirement be passed against him,
indicating thereby, that due to expunction of these
adverse remarks, he had escaped being retired from
service compulsorily and also became eligible for
further promotion. The appellant filed his Reply to
the Show-Cause Notice on 22.09.2006. The Director
General of Police, Haryana by order dated 30.10.2006
directed reconstruction of the Annual Confidential
Report [hereinafter referred to as “ACR” (in
singular) and “ACRs” (in plural)] for the aforesaid
period.
6
6. Aggrieved by the order dated 30.10.2006, the
appellant filed Civil Writ Petition No.19128 of 2006
before the High Court. During the pendency of this
writ petition, the appellant received notice for
retirement issued by the Superintendent of Police,
Mewat, Nuh dated 08.09.2008, informing him that his
service was not required by the department beyond the
age of 55 years, in public interest and he was to
stand retired from service under the State of Haryana
in terms of Rule 3.26(d) of the Punjab Civil Services
Rules, 1934 Vol-I Part I and Rule 8.18 of the Punjab
Police Rules, 1934 as applicable to the State of
Haryana. This was followed by the order of the
Superintendent of Police, Palwal dated 27.10.2008
directing his retirement with effect from 30.11.2008.
The learned Single Judge by judgment dated 27.01.2010
in Civil Writ Petition No.19128 of 2006 [2010 SCC
OnLine P&H 1193] allowed the Writ Petition and the
order for reconstruction of the adverse ACRs and
compulsory retirement was quashed. The learned Single
Judge also held that the appellant was entitled to
7
all consequential benefits. The relevant part of the
said judgment1 notes:
“…
I have heard learned counsel for the parties.
The controversy involved in these writ
petitions is covered by a judgment in the case
of Amarjit Kaur v. State of Punjab and others,
1988 (4) SLR 199 and a Division Bench judgment
of this Court dated 26.5.2006 passed in CWP No.
8356 of 2006 (Ram Niwas v. State of Haryana) as
also a judgment of the Hon’ble Supreme Court in
the case of Rathi Alloys and Steel Ltd. v.
C.C.E. (1990) 2 SCC 324. In the case of Ram
Niwas (supra), following observations have been
made:-
“….Firstly, in law there is
administrative hierarchy which was
not to be respect and any
successor cannot set aside the
order passed by his predecessor.
Secondly, there is no provision
under the Punjab Police Rules,
1934, as applicable to Haryana or
in any instructions or subordinate
legislation providing for review
of an order passed by the
predecessor in office. It is well
settled that power or review
cannot be exercised unless it is
expressly provided by the Statute.
In this regard, reliance may be
placed on a judgment of the
Hon’ble Supreme Court in the case
of Rathi Alloys and Steel Ltd. v.
C.C.E., (1990) 2 SCC 324. Our view
also finds support from the
1 The extract is from the SCC OnLine version. It is noted that
the cited portion from Ram Niwas (supra) seems to be grammatically incorrect.
8
judgment of this Court in the case
of Amarjit Kaur v. State of Punjab
and others, 1988 (4) SLR 199….”
Following the aforesaid judgment, CWP No. 9973
of 2007 and CWP No. 12095 of 2007 were allowed
by a co-ordinate Bench of this Court vide order
dated 23.3.2009. Ratio of all these judgments
is that the predecessor of an Officer in the
hierarchy of service has no authority to review
his orders.”
(sic)
7. Evincibly, the learned Single Judge concluded, in
essence, that the original expunction could not be
held to be illegal, and the subsequent reconstruction
of the remarks would be incorrect in view of the
pronouncements of law referred to by him.
8. The respondent-State, aggrieved, preferred
Letters Patent Appeal No.406 of 2011 (O & M) which
was allowed by judgment dated 25.04.2011 [2011 SCC
OnLine P&H 4687] setting aside judgment dated
27.01.2010 of the learned Single Judge, thereby
restoring the order of the Director General of
Police, Haryana dated 30.10.2006. The judgment of the
learned Division Bench is impugned before us.
9
SUBMISSIONS BY THE APPELLANT:
9. Learned counsel for the appellant submitted that
the judgment impugned is unsustainable for the reason
that the main ground for allowing the appeal of the
respondent-State was that the Order of the Inspector
General of Police dated 28.01.2005 was completely
against the verdict of the learned Civil Court
refusing to expunge the adverse remarks, which was
not only highly improper but totally unwarranted and
the Director General of Police rightly set aside the
order of his subordinate. It was submitted that the
learned Division Bench failed to consider that the
Director General of Police did not have any power of
review as per the Punjab Police Rules, 1934 which
applied to the State of Haryana.
10. Moreover, reiterating that the basic reasoning
of the learned Division Bench for allowing the appeal
of the State, as noted supra, was that the learned
Civil Court had refused to interfere in expunging the
remarks passed by the Controlling Officer and thus,
10
the Inspector General of Police had no authority to
pass an order for expunction, was highly improper and
totally unwarranted. Learned counsel submitted that
under similar circumstances, a co-ordinate Single
Bench had interfered to hold that the Director
General of Police had no power to review an order
passed by the predecessor-in-office.
SUBMISSIONS ON BEHALF OF THE OFFICIAL RESPONDENTS-R1
to R7:
11. Per contra, learned counsel for the State of
Haryana and the other official respondents (R2, R3,
R4, R5, R6 and R7) submitted that the present case
had been refiled after an inordinate delay of 11
years. It was submitted that even though the ground
of delay is sought to be explained, being the
unfortunate death of the appellant’s son, the same
took place in 2011 and thus, re-filing having been
done only in 2022 i.e., 10 years after such incident,
would not entitle the appellant to the benefit of
condonation for such long and unexplained delay. He
11
submitted that the view taken in the Impugned
Judgment, that the Inspector General of Police could
not have over-reached the judgment of the learned
Civil Court, is correct. Moreover, it was submitted
that the adverse entry in the ACR of the appellant
was on account of serious charges – viz. Corruption,
insubordination and dereliction of duty.
12. Learned counsel summed up his arguments by
taking the stand that the appellant, having been
compulsorily retired, the same not being a
‘punishment’, the principles of natural justice would
not be applicable.
ANALYSIS, REASONING AND CONCLUSION:
13. Having considered the rival submissions, the
Court would note that both the learned Single Judge
and the learned Division Bench did not appreciate the
legal position in the correct perspective of the
factual background.
12
14. The undisputed position is that adverse remarks
were entered into the ACR of the appellant for the
period(s) in question, due to which initially an
order of departmental enquiry was passed based on a
complaint; in the departmental enquiry, an order came
to be passed, and the appellant was reverted from the
post of Head Constable to the post of Constable. The
appellant challenged such reversion. The reversion
order was modified to stoppage of one increment. For
expunction of the adverse remarks, he moved before
the Inspector General of Police, Gurgaon Range, which
was initially rejected for the entire period in
question. On further representation, the Inspector
General of Police, Gurgaon Range, on 20.07.2002,
expunged the remarks partially for the period of
01.04.2000 to 29.12.2000.
15. The appellant filed Civil Suit No.168 of 2002
against the order of stoppage of one increment as
also the adverse entry(ies)/remark(s) in his ACR,
which was finally decided by the learned Civil Judge
13
(Junior Division), Gurgaon by judgment and order
dated 27.09.2004, interfering with the stoppage of
one increment, but not interfering with the ACR
aspect. However, in the said judgment, it was
observed as under:
“If at all, plaintiff feels that recording
remarks was the result of above adverse said
departmental proceedings and result thereof,
then in the wake of setting aside of the
impugned order by this court, plaintiff, if so
advised may again file a representation with
the competent authority against the adverse
remarks which shall be decided by said
authority expeditiously. In the totality of
circumstances, this court is not inclined to
interfere with the satisfaction of competent
authority to record adverse remarks in the ACR
of plaintiff. Hence, no relief whatsoever
regarding expunction of adverse remarks can be
granted in favour of plaintiff. Accordingly,
issue No.2 is hereby decided against plaintiff
and in favour of defendants.”
(sic)
16. This permitted the appellant to again file a
representation before the Inspector General of
Police, Gurgaon Range, for expunction of adverse
remarks, which was disposed favourably, and the
adverse remarks were expunged. However, the Director
General of Police issued a Show-Cause Notice to the
14
appellant that the adverse remarks were wrongly
expunged, which made the appellant escape compulsory
retirement. Thereafter, the appellant was retired
having crossed the age of 55 years, in terms of such
power being conferred on the competent authority
under the Punjab Civil Services Rules. The matter
then came before the High Court, initially before the
learned Single Judge who, relying on certain
precedents, recorded that the Director General of
Police could not have passed the order impugned
therein, as it amounted to a review of an order
passed by his predecessor-in-office.
17. The Court would pause at this juncture to
indicate that the factual premise noted by the
learned Single Judge itself was wrong, inasmuch as it
was the Inspector General of Police, who had, in
effect, ‘reviewed’ an order passed by his
predecessor-in-office by expunging the adverse
remarks, which was previously declined by his
15
predecessor-in-office. Volume II of the Punjab Police
Rules, 1934 provides as under:
“16.28. Powers to review proceedings
(1) The Inspector-General, a Deputy InspectorGeneral, 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.”
(emphasis supplied)
18. Clearly, the ‘review’ contemplated in Rule 16.28
empowers a superior authority to ‘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.’ As such, the ‘review’ is by a
superior authority and not the same authority.
16
19. Before adverting to the merits, we may at once
highlight the incongruity that has crept in the Rules
(supra) due to passage of time, legally and in fact.
To a judicially or legally trained mind, it is
obvious that ‘review’ carries a specific connotation,
but the same is not the case herein. Put simply,
review is a re-look at an order passed by the same
authority which passed the original order, be it a
Court or an executive officer. The heading to the
rule above is a misnomer inasmuch as no power of
‘review’ is created or conferred, as manifest from a
reading of (1), (2) and (3) of Rule 16.28. For
completeness, Rule 16.29 is entitled “Right of
appeal” and Rule 16.32 is labelled “Revision”. This
is one part of the issue.
20. The next part is that the Rules, originally
framed in 1934, contemplated the authorities as “The
Inspector-General, a Deputy Inspector-General, and a
Superintendent of Police”. The “Inspector-General” of
that time [when the service was called
17
Imperial/Indian Police] headed the State Police, but
is today known as, in most States and Union
Territories, barring a handful, in the hierarchy of
the State Police, as the Director-General of Police,
an officer drawn from the Indian Police Service, who
sits at the apex of the state police machinery. In
fact, today the Inspector-General of Police is
administratively subordinate to the Director-General
of Police and the Additional Director-General of
Police.
21. The Rules were also framed at a time when the
system of Ranges and Commissionerates had not been
established. Indubitably, the Rules, for better or
for worse (worse, we hazard) have not kept pace with
the times. We do not appreciate why the authorities
concerned are unable to update/amend the Rules with
at least the correct official description of posts to
obviate confusion.
18
22. In the case at hand, the Director General of
Police, Haryana, had never passed any order earlier
and for the first time when the issue was brought to
his notice, a Show-Cause Notice was issued to the
appellant as to why the adverse remarks be not
reconstructed; as due to such expunction, he had
escaped from being retired from service compulsorily.
Thus, the order passed by the learned co-ordinate
Single Judge in CWP No.9973 of 2007 and CWP No.12095
of 2007 dated 23.03.2009 had no applicability in the
facts and circumstances of the present case. Be that
as it was, the State of Haryana moved in appeal
against the judgment of the learned Single Judge
herein, which was allowed in favour of the
respondent-State.
23. This Court finds that the learned Division Bench
has not approached the issue in the manner it was
required to. The reason given for interference with
the learned Single Judge’s view is that it was highly
improbable and unwarranted for the Inspector General
19
of Police to have expunged the adverse remarks when
there was a judicial verdict by the learned Civil
Court refusing to do so. The said reasoning was
employed despite noting the fact that even if there
was any power of review, in the extant circumstances,
it was wholly arbitrary. It was further observed that
a judicial verdict by the learned Civil Court should
have been respected. This Court would note that such
reasoning is also erroneous. The fact remained that,
rightly or wrongly, the learned Civil Court had
granted this opportunity to the appellant to move
again for expunction of adverse remarks, which the
appellant did. Having said that, this Court would now
look at the issue from a totally legal point of view
– firstly, the authorities were exercising the power
conferred on them by statute, and secondly, any order
which amounts to ‘review’ (in the legal sense of the
word) of an earlier order by the same authority
cannot be undertaken, unless specifically so
conferred by the relevant statute.
20
24. Moreover, the learned Civil Judge (Junior
Division) found no ground to interfere with the
adverse remarks yet granted liberty to the appellant
to move for expunction thereof. The learned Civil
Court erred in assuming that it had the power to do
so, in the absence of any such provision in the
Punjab Police Rules, 1934. There may be cases where a
High Court under Articles 226 or 227 of the
Constitution of India or this Court in exercise of
its constitutional powers may specifically direct for
fresh consideration of a representation, even in the
absence of specific provisions. In High Court of
Tripura v Tirtha Sarathi Mukherjee, (2019) 16 SCC
663, the question that arose was whether, in the
absence of a statutory provision, a writ petitioner
could seek re-evaluation of examination answer
scripts? Answering, this Court held:
“20. The question however arises whether even
if there is no legal right to demand revaluation as of right could there arise
circumstances which leave the Court in any
doubt at all. A grave injustice may be
occasioned to a writ applicant in certain
21
circumstances. The case may arise where even
though there is no provision for re-valuation
it turns out that despite giving the correct
answer no marks are awarded. No doubt this must
be confined to a case where there is no dispute
about the correctness of the answer. Further,
if there is any doubt, the doubt should be
resolved in favour of the examining body rather
than in favour of the candidate. The wide power
under Article 226 may continue to be available
even though there is no provision for revaluation in a situation where a candidate
despite having giving correct answer and about
which there cannot be even the slightest manner
of doubt, he is treated as having given the
wrong answer and consequently the candidate is
found disentitled to any marks.
21. Should the second circumstance be
demonstrated to be present before the writ
court, can the writ court become helpless
despite the vast reservoir of power which it
possesses? It is one thing to say that the
absence of provision for re-valuation will not
enable the candidate to claim the right of
evaluation as a matter of right and another to
say that in no circumstances whatsoever where
there is no provision for re-valuation will the
writ court exercise its undoubted
constitutional powers? We reiterate that the
situation can only be rare and exceptional.”
(emphasis supplied)
25. The unique nature of power bestowed on the High
Courts under Article 226 has very recently been
commented upon in B S Hari Commandant v Union of
India, 2023 SCC OnLine SC 413. In Sanjay Dubey v
22
State of Madhya Pradesh, 2023 SCC OnLine SC 610,
while declining to interfere with the order impugned
therein, a reason which weighed was that a High Court
had passed the said order, and not a Court of
Session. This again emphasised the special nature of
the High Courts, including that they are
Constitutional Courts.
26. Thus, the observation by the learned Civil Court
that the appellant could approach the authority,
cannot be taken to mean that the appellant was
granted carte blanche liberty in law to approach the
same authority. What the learned Civil Court lost
sight of was that no provision permitted the course
of action suggested by it. Examined from another
lens, even if we were to read the learned Civil
Court’s view in the appellant’s favour, at best, he
may have had some justification in approaching the
Director General of Police, Haryana, being a superior
authority, but the same authority could not have been
approached again. On this line of reasoning, it
23
becomes clear that even though the appellant had a
window to move before the authorities again and
dehors the learned Civil Court not interfering, but
the same should have been to the superior authority
and not the same authority, which had earlier refused
expunction. In any event, we need not dilate on this
further.
27. As far back as in 1971, directions were issued
by the State Government that repeated representations
would not be entertained as it would be contrary to
Government Letter No. 2784-3S-70 dated 22.03.1971
mandating that a second representation against
adverse remarks would not lie and which clarified the
position that the same authority did not have any
power of review for an order passed by its
predecessor-in-office.
28. As such, the Director General of Police had
rightly show-caused the appellant and taken
subsequent action thereupon. Considering the chain of
events, the consequential action, in our considered
24
view, cannot be said to be arbitrary or shocking the
conscience of the Court, so as to warrant
interference. For a person in uniformed service, like
the police, adverse entry relating to his/her
integrity and conduct is to be adjudged by the
superior authority(ies) who record and approve such
entry. Personnel having such remarks being
compulsorily retired as per the statutory provisions
under the Punjab Civil Services Rules, 1934, in the
instant facts, is not an action this Court would like
to interdict. We are hence not inclined to interfere
with the order impugned, though as discussed above,
for entirely different reasons than what were
considered by and prevailed with the learned Division
Bench.
29. Accordingly, the instant appeal stands dismissed.
30. Parties are left to bear their own costs.
25
ADDITIONAL DIRECTION(S):
31. Copies of this judgment be communicated to the
(a) the Chief Secretaries, Governments of Punjab and
Haryana at Chandigarh; (b.1) the Principal Secretary,
Department of Home Affairs and Justice, Government of
Punjab and (b.2) the Additional Chief Secretary,
Home, Government of Haryana, and (c) the Directors
General of Police, Punjab and Haryana by the
Registry.
32. Steps be taken forthwith in line with the
observations recorded at Paragraphs 19 to 21.
…………………….J.
[VIKRAM NATH]
…………………….J.
[AHSANUDDIN AMANULLAH]
NEW DELHI
JUNE 14, 2023